Land commissions are rather recent inventions around Africa. Most were born out of post-independence land reform drives in an attempt to improve on colonial experiences with land administration and management. The commissions are aimed at complementing the existing state ministries responsible for land. Their mandates vary depending on jurisdictional history and experiences. The jury is still out for most, and only time will tell how well the institutions serve Africa.

Kenya’s land commission, anchored in the national land policy and constitution, assumed office on 27^th February 2013. In swearing it in, the then Chief Justice Dr Willy Mutunga shared some poignant advise. He appealed to the commissioners to have a stiff spine, cool heads and be guided by the constitution. He also cautioned about the powerful interests around land in Kenya. Among other things, he implored the commissioners not to let the national land commission be reduced to a theatre of the absurd. In retrospect, Justice Mutunga had a strong premonition about the commission’s six year journey which ends in February next year. The constitution provides that, unless they are ex-official, each member of an independent commission shall hold office for single term of six years and shall not be eligible for re-appointment. So come February next year, the men and women who constituted Kenya’s first land commission will exit to make room for the second.

From observations, Justice Mutunga’s words to the commissioners have turned out to have been prophetic. The commission’s journey has been chequered. It’s been rough and at times very unkind. The commissioners walked into an institutional environment that wasn’t the most welcoming. In fact, the Lands Ministry kept suspicious of their every move. But this should have been anticipated, given that the very assumption of duty by the commission diminished both mandate and stature of some officers in the Ministry. The ring fencing by the ministry notwithstanding, I guess that in retrospect, the commissioners can easily appreciate where they may have gone overboard.

The outright and very public hostility and spats with the leadership of the ministry and the state didn’t serve them well. Much as constitutional commissions enjoy independence, this must be exercised within practical realities. Every commission is meant to protect the sovereignty of the people and promote constitutionalism. But a plethora of state organs responsible for policy, legislation, budgets, security and sectoral development are key players in defining and advancing the state. These must therefore be navigated carefully and any differences resolved progressively. Direct confrontation with any of them, including sector ministries, essentially undermines service delivery and negates the collective principle of service delivery to the citizenry. Successfully walking this balance without subordinating themselves to other state organs therefore makes or breaks constitutional commissions.

It is against this context that Kenya’s land commission will be judged. This first lot of commissioners had no precedents and had to chart a new path. They set out to serve without offices, institutional framework or staff and unfortunately, with a contested mandate. That it leaves behind office space, some national and county level governance structure and staff needs to be appreciated. That it made attempts to deliver on some of its mandate, even though with mixed results, needs to go down on record. The ongoing mapping of land for public schools, along with efforts to develop a framework for advising the national government on titling gaps and needs are good for Kenya and should be scaled up. But the numerous public confrontations and arrests of officers for various reasons haven’t served commission’s public image well. Integrity issues, real or perceived, have cost the first commission many friends. Cultivating public trust will therefore be a big challenge for the second commission.

The commission is now in its last two months. Its actions and omissions before exit will either raise or further diminish its battered image. If media reports that the commissioners operate in two camps are true, then the public has reason for anxiety since this splits the operational staff too. Earlier this month, there were reports regarding contests on the contractual terms of the secretariat. The details aside, any instability of the secretariat will undermine continuity and shouldn’t be allowed. There are also reports that Chairman Mohammad Swazuri has recalled formal documents signed by Vice Chair Abigael Mbagaya while he was out of office. Chairman Swazuri has allegedly issued a gazette notice seeking to invalidate all signatures earlier appended to any land transaction documents by his Vice Chair. This has the potential to create needless confusion and adversely exposing affected transactions, including the ongoing compensation processes.

Currently, reports have it that a computer with land compensation data has disappeared from the Commission offices. Strange!! These recent developments aren’t good for the commission and set a perfect stage for an ignominious exit. Yet these are all internal matters that the commission could resolve in-house. It retains the discretion to work together and leave behind some order or continue with the “theatre of the absurd” that Justice Mutunga advised against and exit much more dishonourably.

Dated 22nd December, 2018