One gets the impression that the Lands ministry hadn’t until recently fully comprehended the implications of the looming land reforms. Otherwise it would have blocked or refused to provide leadership to the national land policy formulation initiative and the related land chapter of our constitution.
On approval of the two, it has dawned on the ministry that it must undergo fundamental institutional restructuring, which will bring to an end the traditional unfettered powers and privileges of its top brass. This is what the national land commission recommended in the national land policy and established under the constitution essentially implies.
The composition of this constitutional organ should take into account representation of the people, expertise, integrity and equity. The commission has a clear mandate, which is well spelt in the constitution and the land policy. Broadly, this commission will deliver technical services to Kenyans while the residual Lands Ministry will be left to primarily mind policy and budgetary matters. The recommendation to establish a land commission was borne out of the fact that the current institutional arrangement in the land sector has failed Kenyans.
The Lands ministry has been corrupt and failed to deliver efficient services to Kenyans. It has also failed to involve Kenyans in decision making on matters pertinent to the land administration and management of their land. It has acted rogue and unaccountable. This inappropriate arrangement had to give.
But Kenyans forgot that the ministry consists of highly educated and intelligent officers eager to remain. They couldn’t take such vast changes without a fight. They are now on a combination of subtle approaches to preserve themselves and their powers. First, they have put in place a mechanism where the proposed land reform legislation is outsourced. They have contracted a private consultant under their pay to originate the framework and content of all the proposed bills. Given that they are the paymasters, this consultant will only originate legislation friendly to them. Little wonder that the draft Bill recently produced to establish the proposed national land commission subtly creates a moribund institution to be at the ministry’s behest. The bill leaves an open ended commencement date, leaving leeway for it to remain unimplemented till the executive sweeps room. It provides for the Lands minister to appoint the panel to short-list and vet prospective commissioners.
This helps executive to get malleable people to ring-fence and re-invent the current arrangements. It allows officers in the ministry to be taken over by the commission instead of leaving it to recruit staff competitively. And it provides that any actions done by the Ministry prior to the establishment of the commission will be assumed to have been performed by the commission. So what if such actions are unconstitutional?
And some could be, such as allowing transactions on land under 999 year leases and freeholds held by non-Kenyans to change hands before conversion to 99 years as provided under Article 65 of the constitution. And also defeating private land rights contrary to the provisions of Article 40 and 68! And the ministry was quite innovative in developing this bill. It pretended to be consulting stakeholders but then ignored their views. No wonder the many flaws.
But just in case this fails, they have option two…..the establishment of independent service provision national authorities. Without these, there’d be no need for one; retaining status quo. How very shrewd? It’s therefore upon Kenyans to firmly confront this blatant impunity.
