Constant institutional conflicts

The wars between the Lands Ministry and the Commission have been rather public and annoying. And various practitioners and landowners will recount endless tales of frustrations with transactions tabled for consideration since the Land Commission came to office over two years back. Uncertainties are the rule. One is never sure that documents tabled will ever be processed. One is left to speculate on whom, between the Ministry and the Commission, should act on such documents. While these uncertainties were previously restricted to Ardhi House, they are slowly emerging at County level after assumption of office by the Commission’s organs, the County Land Management Boards. I have found county land registrars anxious about who should now act on disputes presented. Other practitioners report subtle supremacy wars between county land officers in charge of land offices and the county land management board secretaries. Such competition is unhealthy for technical processes.

The laws, not personalities, are the problem

For lack of background knowledge, many observers have attributed the overt and subtle wars in the Ministry to personalities, especially at the level of Cabinet Secretary and the Commission Chair. That isn’t so. Remember that the Commission assumed office during the tenure of Permanent Secretary Dorothy Angote. The previous Minister James Orengo had then moved on, leaving Angote to hold sway at the top. There were differences with the Commission till she left. In came Charity Ngilu and, with her political flair, the wars escalated. Now there is Fred Matiang’i. It’s just that he has a different style but insiders will tell you that subtle wars remain. And they will not end till we confront the situation. But what has been the problem?

Policy aimed at a technical Commission; Constitution gave an advisory one

While the national land policy intended to give Kenyans a technical land commission, the constitution changed that. A good read of article 67 reveals that the constitution bequeathed us a commission with largely advisory powers of advising, recommending, assessing, encouraging or monitoring processes without direct implementation roles. But during law making, stakeholders in the sector, informed by their previous frustrations with the Lands Ministry, donated technical roles to the commission through the subsection that allowed parliament to prescribe any other functions to the commission. Pundits however observe that if the constitution had so intended, it would have specifically spelt so in the main text. In mitigating the donated technical roles, senior officers then heading key departments in the Ministry either changed, deleted or included counter provisions. But none of these groups, and later parliament, had sufficient time to effectively read through the text of the three bills (Land, Land Registration and National Land Commission) that were moved simultaneously, before enactment.

Technical powers 'donated' to Commission by Statute

The enacted bills therefore ended up with gaps and contradictions. Within one technical process, for instance land registration, the statutes would give the commission some role and leave the other to the Cabinet Secretary. In fact, the Land Act provides that the commission will manage settlement programmes while leaving the Land Adjudication Act, which gives the Cabinet Secretary powers to appoint officers to deal and oversee such programmes, unrepealed. The contradictions are obvious to anyone who takes time to objectively read the three laws. And because of the continuity required by the technical nature of the processes in the Lands Ministry, separate command centres will continue to occasion conflicts. Services are therefore at an all-time low. This won’t be cured by boardroom discussions or judicial interpretations.

Indeed, in a recent discussion on the matter, I illustrated the dilemma through the analogy of the legendary two mothers who claimed the same child. Their attempts to each claim half the child convinced observers that none of them meant well. It is so for the Lands Ministry and the Commission. Their continued claims to maintain mandate despite the inefficiencies and delays in service delivery occasioned by the legal muddle can only be read as self-serving. They mustn’t be allowed to hold the country hostage any longer.

Parliament must amend laws

During our discussions, stakeholders pleaded with the National Assembly and the Senate Committees on Land to reflect upon the land governance challenges we have observed for over two years and boldly amend the law for Kenya. Because of the donated roles, the Commission has ended up diverted from its key function of managing public land. Little wonder that irregular practices have visited us much more furiously during the commission’s tenure of office. Parliament should therefore proceed and enact the Land Laws (Amendment) Bill 2015 to free technical processes from separate command organs.

Ibrahim Mwathane(Chair, Land Development and Governance Institute: This e-mail address is being protected from spambots. You need JavaScript enabled to view it , Twitter: @mwathane)