Overwhelming initial support for land commission

A review of media footage, both print and electronic, would reveal that the establishment of Kenya’s land commission perhaps enjoyed one of the best public and stakeholder support. There was collective, consistent and relentless stakeholder advocacy to embed the commission in the constitution right from the onset of the review process. There was strong opposition to this though, culminating in the deletion of the proposal to establish the commission during the Naivasha forum. But renewed stakeholder intervention got it back and, as the constitution received parliamentary endorsement in 2010, the item to establish the land commission was on.

But further challenges lay ahead. The enactment of the enabling legislation was delayed and was only tabled for discussion when the constitutional deadline became imminent. The enactment of the National Land Commission Act in 2012, along with the Land and Land Registration Acts, was again the beneficiary of intense stakeholder pressure. Even with the legal framework in place, there was little hurry by the executive to put the commission in office. After further pressure, interviews for the nine commissioners were done and the successful candidates were vetted and approved by parliament for appointment. But no appointment was done. It took a court case, and intense advocacy, including personal sacrifices by some, to finally get the commissioners appointed and sworn into office. To everyone’s relief, they assumed office in late February 2013, a few days before the March 2018 general elections.

Confrontation and differences with government and public scandals

However, for the next three years, the commission would be known more for confrontation and differences with the government than outputs and service delivery. These ranged from spats over office space with the then Permanent Secretary Dorothy Angote, differences over issuance of title deeds in Coast with Charity Ngilu, mandate contests in the Supreme Court to resisting amendments to the land laws under Fred Matiang’i when he briefly acted as Cabinet Secretary.

Prof Jacob Kaimenyi’s tenure from the end of 2015 to early 2018 saw quiet moments visit relations between the Lands Ministry and the Commission. Farida Karoney has continued the quiet legacy. But ironically, the quiet moments have exposed the other side of the commission. Perhaps, previous differences with Ardhi House bigwigs had till then diverted public attention from the adverse activities by the commission. In the last two and half ‘quiet’ years, we have been treated to scandal after another about the commission. Issues on the compensation for land acquired for the LAPSSET and SGR phase one corridors played out. Then came petitions in parliament for one thing or another, but with one which went to committee hearing tearing out the commission so badly that it became obvious that it runs in two camps.

Soon after, sensational raids by the EACC associated with the alleged discovery of loads of raw cash in the houses and offices of some commission officials hit public space. SGR phase two with further compensation issues followed. We are now onto the Ruaraka land saga. More may come. It all sounds like some soap opera, yet this is a very condensed brief of the commission’s five year road map. These developments leave the land commission’s image and public perceptions battered. The commissioner’s and senior officials need to mind this diminishing image, bearing in mind what it took Kenyans to put the commission in place. They need to make personal reflections on the future of the commission, given its chequered and scandalized start up.

If commission irredeemable, rethink options

I revisit this history with heavy and mixed feelings. Here is a commission in which there has been so much investment in resources and expectations by Kenyans. Yet, however much we needed it, its actions and inactions cannot be wished away, given impacts to public money and good. Many Kenyans have had to suffer the brunt of poor services in the land sector as turf and ego wars continued between the Ministry and the Commission. It’s clear that the commission has hitherto not developed a seamless working relationship with the Ministry, leading to situations where service seekers literally feel the ‘jump’ between the two. This beats original intent. In the ideal, land administration ought to consist of a series of self-triggering internal business processes where applications filed on one end move right through to the output end after processing without having to suffer gaps and delays occasioned by institutional partitions. But with the culture cultivated by our land commission from the outset, shall we achieve such seamless processes?

Granted, a few people in the commission are doing a good job including those engaged in research, the mapping of public land and piloting land information management. There are others in the support teams too. They must remain encouraged. But the larger question on the future of the land commission as is, and even its mandate, now begs. Kenya’s past with the management of public land, particularly its selective allocation and dispossession, still informs us. But we cannot remain held on a rut. If the commission becomes irredeemable, then Kenyans will have to explore alternative options to improve land administration and governance.