Constitution of Kenya explained
- Written by Steve Nguru
National Land Commission NLC
Open. Accountable. Responsible
Mandated to be the sole administrator of all Public Land in Kenya.
Manage all public land as well as monitor access, use and ownership of all land in Kenya.
The proposed NLC has nine full-time Commissioners led by a Chair.
All the land in all of Kenya is owned by the people in their various respective capacities as given in this excerpt from Article 61 from Chapter 5 - Land and Environment, of the Constitution of Kenya 2010:
61. (1) All land in Kenya belongs to the people of Kenya collectively as a nation, as communities and as individuals.
The National Land Commission NLC, is charged by the people to protect their individual and collective interests in land matters. Therefore, as a Commission, the NLC must "...... (a) protect the sovereignty of the people; (b) secure the observance by all State organs of democratic values and principles; and (c) promote constitutionalism." (Article 249).
The New Constitution has sought to give clarity to the whole question of land use and ownership vis-a-vis individual and collective rights of the people of Kenya. The often emotive and confrontational issues of land use and ownership in Kenya are expected to be the subject of comprehensive deliberations. These reviews aim - through both short and long-term measures by way of detailed legislation - to address, streamline and give clarity to the very many issues that surround land involving its classification, access, use, registration and ownership:
60. (1) Land in Kenya shall be held, used and managed in a manner that is equitable, efficient, productive and sustainable, and in accordance with the following principals— (a) equitable access to land; (b) security of land rights; (c) sustainable and productive management of land resources; (d) transparent and cost effective administration of land; (e) sound conservation and protection of ecologically sensitive areas; (f) elimination of gender discrimination in law, customs and practices related to land and property in land; and (g) encouragement of communities to settle land disputes through recognised local community initiatives consistent with this Constitution.
As an independent Commission, the NLC is best-placed to implement the principals and policies in the article 60 above governing all public and private land. Were this exercise to be left entirely to the National Executive, chances are that it would be dogged by endless political bickering and delays. Unfortunately, these predictions came true soon after the Cabinet was constituted in April 2013. The Cabinet Secretary for Land, Housing & Urban Development and the Commission were pitted in a supremacy contest for the better part of 1 year forcing the NLC to seek the Supreme Court's Advisory opinion on separation of powers and functions between the Commission and the Ministry.
The National Government will largely concern itself with policy on all matters touching on land and, in order to implement the said policies, prepare and present relevant Bills in the Houses of Parliament:
60. (2) These principles shall be implemented through a national land policy developed and reviewed regularly by the national government and through legislation.
The overhaul of land laws must not only be thorough, it must be preceded by comprehensive review efforts:
68. Parliament shall— (a) revise, consolidate and rationalise existing land laws; (b) revise sectoral land use laws in accordance with the principles set out in Article 60 (1); and (c) enact legislation— (i) to prescribe minimum and maximum land holding acreages in respect of private land; (ii) to regulate the manner in which any land may be converted from one category to another; (iii) to regulate the recognition and protection of matrimonial property and in particular the matrimonial home during and on the termination of marriage; (iv) to protect, conserve and provide access to all public land; (v) to enable the review of all grants or dispositions of public land to establish their propriety or legality; (vi) to protect the dependants of deceased persons holding interests in any land, including the interests of spouses in actual occupation of land; and (vii) to provide for any other matter necessary to give effect to the provisions of this Chapter.
Clearly, as a political institution, Parliament will always be a key and active player in the entire process to review the policies and legislation on land for the obvious reason that land remains embedded at the heart of the social, economic and political lives of the Kenyan people.
The whole issue of land in Kenya is addressed under the Public Land link.
The National Land Commission NLC is a constitutional Commission under the Constitution of Kenya 2010. Excerpts from Chapter 5 - Land and Environment, Part 1 - Land, Article 67, 248:
67. (1) There is established the National Land Commission.
248. (2) The commissions are— (b) the National Land Commission;
The Authority of the NLC is far-reaching and encompasses all land in Kenya including that which will be under the direct administration by the County governments. Excerpts from Article 62:
62. (2) Public land shall vest in and be held by a county government in trust for the people resident in the county, and shall be administered on their behalf by the National Land Commission, ....... .
(3) Public land ....... shall vest in and be held by the national government in trust for the people of Kenya and shall be administered on their behalf by the National Land Commission.
To this end, the old powerful position of Commissioner of Lands would cease to exist after October 18, 2013 whereby its authority and functions were to be transferred to the NLC under the New Constitution's transitional provisions. The process was not without a hitch, however.
On the 25th October 2013, the Cabinet Secretary for Lands, had to de-gazette her own appointment of an acting Director-General for Lands made only a few weeks before on October 11, after both the Commission and Joint Committees of the National Assembly's and the Senate's Departmental Committees for Lands and Delegated Legislation stressed that the NLC was the sole body authorised by the Constitution and the law (the Land Act and Land Registration Act) to issue land title deeds. The Public Service Commission also explained to the Committees that the Cabinet Secretary had usurped her powers to create such a position within the Public Service.
Nonetheless, the Commission must work with State agencies that have a long historical memory of administering large tracts of land such as the Kenya Wildlife Service, the Kenya Forest Service, and the Kenya Railways among others. It must also consider the input of specialised organs such as the National Environment Management Authority when making decisions on change of land use. For example in October 2014, the NLC granted the Kenya Railways Corporation permission to access all the land required for the laying of the Standard Gauge Railway line after consultations with the KWS in whose National Parks much of the line would pass through on its way to Nairobi from the port of Mombasa.
The NLC is a custodian of justice and arbitrator in so far as matters concerning land use and ownership in Kenya are concerned. It must first perform a situation analysis on the present state of land issues to bring itself up to speed in order to be an effective referee on matters of land.
Many of these matters are of a historical nature. Others are more recent and are as a result of the absence of adequate land policies. Excerpts from Article 67:
67. (2) The functions of the National Land Commission are— (e) to initiate investigations, on its own initiative or on a complaint, into present or historical land injustices, and recommend appropriate redress; (f) to encourage the application of traditional dispute resolution mechanisms in land conflicts;
At various times in 2014, the NLC did hold the first of a series of public hearings designed to review grants and disposition of public land by summoning those claiming to own the affected lands.
On July 31 2014, the President publicly ordered the Lands Cabinet Secretary to repossess about half a million (500,000) acres of public land believed to have been irregularly obtained by private companies and individuals in Lamu County. Although the constitutionality of the President's order was swiftly questioned by the Commission for the Implementation of the Constitution CIC, the NLC, careful to walk circumvently with regard to upholding the law, chose to treat the President's order as a normal complaint and instead launched investigations into the issue.
Said the Chair of the NLC, “To us, this is a complaint we received from the national government represented by the President". The Commission began its probe by invoking its authority to conduct such an investigation when it summoned the owners of the said land to appear before it. Article 252:
252. (3) The following commissions and independent offices have the power to issue a summons to a witness to assist for the purposes of its investigations— (c) the National Land Commission; ........
The NLC will be the official manager of all public land. Further to that at the local level, the NLC will play an oversight role over county policy laws governing the use of public land within their respective jurisdiction, to ensure checks and balances:
67. (2) The functions of the National Land Commission are— (a) to manage public land on behalf of the national and county governments; (h) to monitor and have oversight responsibilities over land use planning throughout the country.
In a bid to decentralise the functions of the Commission in the management of public land, the National Land Commission Act 2012 mandates the NLC to liaise with County governments to form County Land Management Boards. Sections 17 and 18 of the Act:
17. In carrying out its functions, the Commission shall work in consultation and co-operation with the national and county governments subject to Article 10 and Article 232 of the Constitution.
18. (1) The Commission shall, in consultation and co- operation with the national and county governments, establish county land management boards for purposes of managing public land.
18. (8) In the discharge of their functions, the boards shall be comply with the regulations made by the Commission under this Act.
(9) The boards shall - (a) subject to the physical planning and survey requirements, process applications for allocation of land, change and extension of user, subdivision of public land and renewal of leases; and (b) perform any other functions assigned by the Commission or by any other written law.
In the first year after the General Elections of 2013, the Commission repeatedly complained about budgetary constrains that were affecting its ability to swiftly deliver on its roles and functions. Furthermore, and perhaps more importantly was the Commission's accusations that the National Government was deliberately slow in surrendering functions assigned to the NLC by the Constitution and the National Land Commission Act.
One of these functions is private land acquisition and owner compensation by Government. On the 14th of October 2014, the Chair of the NLC was categorical that the mega Lapsset Corridor project was in contravention of the Constitution because it had not involved the Commission in the process of acquiring, valuing, and compensating private land owners through whose land the transport project's infrastructure would be laid. The Government had instead delegated that function to the State organs involved in the project. "None of them has the mandate to do land valuation and compensation except NLC. All of them hijacked the mandate of the commission." (Swazuri, 2014).
In the final end of things, the NLC must become the custodian of all data relating to land, its resources and use in line with separation of powers previously belonging to the Government. This is expected to pit it and the National Government (and its attendant politically-driven sense of judgement) for the 'right' to handle land matters, in the foreseeable future. In all fairness, the Commission is really the de-jure adviser to the National Government (and by extension, the County Governments), on ordinary matters relating to land;
67. (2) ....... (d) to conduct research related to land and the use of natural resources, and make recommendations to appropriate authorities; (b) to recommend a national land policy to the national government; (c) to advise the national government on a comprehensive programme for the registration of title in land throughout Kenya;
In line with the mandate in Sub-Clause (c) above, the National Land Commission NLC sent out an invitation in July 2013 to all holders of Letters of Allotment of Private Land to present their documents for verification and subsequent registration and issuance of title deeds upon payment "....... of requisite stand premium and appropriate fees." This was done as a first step in line with the legal timeline binding the Commission to register all land in Kenya within 10 years. The National Land Commission Act No 5 of 2012, Section 5(3):
5. (3) Despite the provisions of this section, the Commission shall ensure that all unregistered land is registered within ten years from the commencement of this Act.
Around August of 2014 at the time when the issue of more than 500,000 acres of irregularly allocated public land in Lamu County came up, the Commission announced that it was ready to regularise ownership of private and communal land in parts of the same County by conferring titles to what are traditionally known as Swahili villages.
The NLC is also the de-jure adviser on financial matters relating to land:
(2) ....... (g) to assess tax on land and premiums on immovable property in any area designated by law; .......
Muhammed A Swazuri Chair of the National Land Commission
The New Constitution is surprisingly silent on the formation and composition of the members of the National Land Commission. However a reading of the National Land Commission Act of 2012, confirms that it will be made up of a Chair and 8 other Commissioners after vetting by Parliament's Departmental Committee on Land and Natural Resources, to serve for a term of 6 years without the option of reappointment.
Although the National Land Commission Act came into effect in May of 2012, their gazettement did not happen without controversy, owing largely to petitions filed in the High Court and unexplained actions by the President. It took the intervention of the Court for that to happen. Their gazettement, "......... was delayed by reason of conservatory orders given by the High Court of Kenya in High Court petition No. 266 of 2012. That petition was subsequently withdrawn, and two other petitions by different parties, No.373 of 2012 and No.426 of 2012 were heard and dismissed by the High Court. This was on 12th October 2012. It is a matter of public record that on 15th October 2012, the Attorney General in writing informed the office of the President of the judicial developments and advised the gazzettement of the Commission Members."
In view of the continued refusal, neglect and/or failure by the President to make the appointment, two citizens filed petition No. 6 of 2013 the High Court. In giving its judgment on the petition the High Court made the following observations:
“The process of appointment of the chairperson and commissioners of the Commission set out in the First Schedule is imperative and no cause has been shown why it cannot be implemented to give effect to the provisions of Article 67 and 250(2). I also find and hold that failure to complete the appointment of the chairperson and members of the Commission undermines the value of good governance in that the institution intended to govern land law and prepare land policy remains in limbo for an indeterminate period."
The Court concluded by giving these orders that:
“ The President be and is hereby directed to comply with the provisions of paragraph 8 of the First Schedule to the National Land Commission Act and officially appoint the Chairperson and Members of the National Land Commission within seven (7) days from the date hereof”.
This order was given on 4th February 2013, and the 7 days thus expired on 11th February, 2013. (CIC Website, 2013).
Eventually, the Commissioners were gazetted on Wednesday 20 Feb, 2013.
1. Constitution of Kenya, 2010. National Council for Law Reporting. The Attorney-General.
2. National Land Commission Act no. 5 of 2012. National Council for Law Reporting. The Attorney-General.
3. "Failure by the President to appoint the National Land Commission". Commission for the Implementation of the Constitution, CIC Website. Retrieved February 20, 2013.
4. DR. KIMPEI MUNEI & 59 OTHERS V NATIONAL LAND COMMISSION SELECTION PANEL & ANOTHEReKLR. Petition 266 of 2012. National Council for Law Reporting. The Attorney-General.
5. John Waweru Wanjohi & 27 others v Attorney General & 6 others  eKLR. PETITION NO. 373 OF 2012 CONSOLIDATED WITH PETITION 426 OF 2012. National Council for Law Reporting. The Attorney-General.
6. Amoni Thomas Amfry & another v Minister for Lands & another & Mohamed Swazuri & 8 others  eKLR. Petition No. 6 of 2013. National Council for Law Reporting. The Attorney-General.
7. "Ministry yet to surrender some functions to lands commission". Daily Nation online article. Retrieved April 2014.
8. "National Land Commission now takes supremacy row to court". The Standard Digital online newspaper. Retrieved April 2014.
9. "Swazuri demands involvement of lands commission in Lapsset matters." Daily Nation article. Retrieved October 15, 2014.
10. "Railways gets green light to pass through national parks." Daily Nation article. Retrieved October 15, 2014.