Ministry’s bid to hurriedly change key land laws smacks of mischief
Acting Land, Housing and Urban Development Cabinet Secretary Fred Matiang’i, who has been barred by a Nakuru Court from sacking a junior information officer allegedly in relation to a family land dispute. PHOTO | TONNY OMONDI |
It is in the public domain that the Ministry of Land has published three bills to amend the existing land laws. These include the Community Land Bill, the Physical and Spatial Planning Bill and the Land Laws (Amendment) Bill.
But instead of bringing the desired relief that the public has been yearning for, the three bills have stoked a huge undying controversy surrounding the true government intentions behind them.
At the outset, the public was not amused by the incessant squabbles and the public spats between the Ministry of Land officials versus the officials of the National Land Commission (NLC).
The two government institutions shared mutual suspicion and exhibited mutual hostility as they could not quite agree on each other’s mandate.
Execute this mandate
It has quickly emerged that the ministry officials have justified their case based on Article 66 of the Constitution of Kenya 2010, whereas the NLC officials have found solid footing in Article 67 of the Constitution of Kenya 2010.
Article 66 provides the State with the liberty to regulate the use of any land or any interest in or right over any land, in the interest of defence, public safety, public order, public morality, public health or land use planning. The ministry feels that it is the right State institution to execute this mandate.
Independent commissions
It is therefore in the spirit of Article 66 that the three Bills which are pending before the National Assembly have been drafted and published by the acting Cabinet Secretary for Land, Housing and Urban Development and presented for debate.
But Article 67 has spoilt the party by establishing the National Land Commission. The Constitution and the National Land Commission Act 2012 section 5, defines her functions as to manage public land on behalf of national and county governments.
Furthermore Article 249 (2) of the Constitution declares that the commission, among others, is subject only to the Constitution and the law and additionally, not subject to direction or control by any person or authority (which includes the Cabinet Secretary for Land, Housing and Urban Development).
Article 249(1) empowers the National Land Commission, like all other independent commissions, among others, the liberty and responsibility to secure observance by all State organs of democratic values and principles and to promote constitutionalism.
It is in Article 249 that the controversy becomes more glaring on the matter of independence and then followed in quick succession by the definition of a State organ as stipulated in Article 260, on the interpretation of the Constitution which places the office of the Cabinet Secretary as one of the State organs.
Be that as it may, it still remains mysterious as to why the ministry is in a hurry to initiate amendments to the existing land laws, including the National Land Commission Act 2012.
It would be a bit honest if the ministry extrapolated the deficiencies in the current statutes to warrant their overhaul.
Secondly, the ministry ought to produce a comprehensive audit of the existing land laws to convince the public that it has noble intentions pertaining to the pending amendments.
Thirdly, the ministry ought to explain to Kenyans why it should be granted overriding powers over an independent constitutional commission, namely, the NLC.
The intended amendments also seek to dismantle the County Land Management Boards that the NLC established and to transfer the same powers to the minister.
In recent weeks, the Department of Land and its head, acting minister Fred Matiang’i have been on the offensive with commentaries on these Bills but have deliberately refused to explain to Kenyans the source of its desire to dismantle offices and structures established by an independent constitutional commission.
Equally outrageous is the attempt to delegate the task of recruiting commissioners of the NLC to the Public Service Commission. This proposal is borne out of absolute mischief, since the proposers appear to have ignored or not read Article 252(3) of the Constitution.
This section isolates only three (3) commissions and one (1) independent office and confers them with special and exclusive powers to compel witnesses to appear before them and assist them for the purposes of their investigations.
Quasi-judicial powers
These quasi-judicial powers are not mentioned regarding the rest of the constitutional commissions and independent offices.
It therefore implies that the NLC, the Kenya National Human Rights and Equality Commission, the Judicial Service Commission and the Auditor-General enjoy certain powers which are deemed to be over and above their “contemporaries”, including the Public Service Commission.
All these make the intended amendments that purport to empower the Public Service Commission to hire and fire the commissioners of the NLC ridiculous.
Legal dispensation
The Community Land Bill, the Physical and Spatial Planning Bill both dated August 11 and the Land Laws (amendment) Bill, dated August 18; are the bundle of amendments which experts and stakeholders deem to be the direct assault on the National Land Policy 2009, the Constitution and the rest of the progressive legal dispensation that Kenyans have endeavoured to realise for posterity.
Mr Oliewo is an independent analyst based in Nairobi, [email protected].
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