National Police Service Commission NPSC

 

 

Open. Accountable. Responsible

 

Contents
Introduction

Authority

The NPSC is empowered to recruit officers to both the Police Services (National and Administration Police Service) and make appointments of top officers. These powers were previously with the Office of the President.

Roles and Functions

The Commission will oversee the recruitment and discipline of all officers serving in the National Police Service.

Composition

The NPSC will be headed by six civilian Commissioners and the Inspector-General and the two deputy Inspector-Generals.

 

 

 Introduction

 

 NPSC logo

As a Commission, the National Police Service Commission NPSC, will act in such a manner as to "....... (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).

 

 

 

Authority

 

This is a new Commission under the Constitution of Kenya 2010 anchored by Article 246, of Chapter 14 - National Security, and Article 248 of Chapter 15 - Commissions and Independent Offices. Excerpts: 

246. (1) There is established the National Police Service Commission.

248. (2) The commissions are— (j) the National Police Service Commission.

Previously, the Police (who were under the direct control of the Ministry of Internal Security under the Office of the President), conducted their own recruitment. These recruitment exercises were often not without controversy and generated strong public accusations of nepotism and lack of transparency - complaints that went unheeded.

246. (3) The Commission shall— (a) recruit and appoint persons to hold or act in offices in the service, confirm appointments, and determine promotions and transfers within the National Police Service; 

Thus, the NPSC has administrative authority over both the Kenya Police Service and the Administration Police Service; i.e., it is now the sole authority over recruitment, staffing, and posting operations of all Police Officers.

Indeed, in July 2014, the Commission undertook its second recruitment exercise of Police Officers (the first was in 2012). And, like in previous years, there were widespread accusations of bribery, nepotism, and other malpractices, prompting the Commission to constitute an investigative panel barely a week after the conclusion of the exercise to receive and investigate the claims.

A deeply entrenched corrupt recruitment process was shown to be far from dead as the Commission's June 2014 recruitment exercise for approximately 10,000 police officers was nullified by the High Court, with orders for a repeat exercise be carried out.

Although the NPSC appealed the High Court's decision soon after, the matter was not to be brought to its logical conclusion as a series of unforgettable (and regrettable) events took place in the country in April of 2015 that led to the voiding and subsequent withdrawal of the appeal.

It all began with a deadly terror attack on the Garissa University College in the early morning of the 2nd of April in which 148 people, mostly students, lost their lives.  

The Commission found itself between a rock and a hard place when the President, in an address to the Nation later that day, ordered the Inspector General of Police to prepare to immediately to receive the 10,000 trainees whose recruitment by the NPSC had, as stated above, been nullified by the High Court in a ruling on the 31st October 2014.

Said the President, "I further direct the Inspector-General of Police to take urgent steps and ensure that the 10,000 recruits, whose enrolment is pending, promptly report for training at the Kenya Police College, Kiganjo."

I take full responsibility for this directive. We have suffered unnecessarily due to shortage of security personnel. Kenya badly needs additional officers, and I will not keep the nation waiting.

Despite widespread outcry from the public, from IPOA - the Independent Police Oversight Authority - from the Commission for the Implementation of the Constitution CIC, and other defenders of the constitution, the Inspector General of Police still went ahead to ask the 10,000 recruits to report on the 12th April for training. He did this without providing any evidence of a written order from the President, complete with a seal and signature as the Constitution demands. Chapter 9 - The Executive, Part 1 - Principals and Structure of the National Executive, Article 135:

135. A decision of the President in the performance of any function of the President under this Constitution shall be in writing and shall bear the seal and signature of the President.

However, in a (clever) move designed to work around the brewing legal storm created by the President's verbal directive, and to cool the heightened public anxiety over the possible blatant disobedience of a direct court order by the national executive, the Commission stepped in with its own invitation for a fresh police recruitment exercise to be conducted on the 20th of April countrywide:

249. (1) The objects of the commissions and the independent offices are to—(b) secure the observance by all State organs of democratic values and principles; and (c) promote constitutionalism.

Thus both the President's and the IGP's orders that were in clear contravention of a judicial ruling (and the Constitution) were never to be.

For close to a year after the General Elections of March 2013, the Commission and the Inspector General of Police IGP (and who by the way is a member of the same Commission) were constantly differing in public on who had administrative authority over officers in the Service. So much so, that on the 27th of March 2014, the High Court was called upon by way of a civil petition to make a determination on the legality (or otherwise), of deployment (as opposed to appointments) of County Police Commanders by the Inspector General in June of the previous year.

Although the Court ruling confirmed that such authority of deployment belonged to the IGP and not the Commission, it was however of the view that the Commission exercised wide administrative functions over the Police Service according to Article 246. (3) above.

By reassigning this authority from the Service and by implication, the Office of the President, to an independent Commission, the Constitution has (hopefully) effectively freed the Police from undue interference and manipulation from the political class (and the executive) and consequently strengthened its independence and ability to carry out its mandates.

The reader should bear in mind that up and until June 2014, the National Police Service Act, 2011 authorised the Commission to take care of the recruitment and appointment of the top office of the IGP. Excerpts from Section 12 of the Act:

12. (1) Whenever a vacancy arises in the office of the Inspector-General, the Commission shall, ....... declare the vacancy, and request for applications.  
(3) The Commission shall consider the applications, conduct public interviews and shortlist at least three persons qualified  for the position advertised for under subsection (1).  
(5) The Commission shall ....... forward the shortlisted names to the President for nomination of the Inspector-General. 
(6) The President shall, ....... nominate a person for appointment as Inspector-General from among the shortlisted names and submit the name of the nominee to  Parliament  for approval; ....... 

However, on the 26th of June 2014, all that changed when the President assented to the National Police Service (Amendment) Bill 2013 that inter alia, allowed the Head of State to nominate the IGP without reference to the Commission. Excerpts from the National Police Service Amendment Act 2013:

12. The Principal Act is amended by deleting section 12 and substituting therefore the following new section 12— — 12. (1) Pursuant to Article 245 (2) (a) of the Constitution, the Inspector-General of the Service shall be appointed by the President with the approval of Parliament. 
(2) The President shall nominate a person for appointment as the Inspector-General and submit the name of the nominee to Parliament.

 

Roles and Functions

 

Specifically, the role of the NPSC is to protect the rights and liberties of the men and women serving in the Kenya Police Service and the Administrative Police Service; and by extension, guarantee the rights and liberties of the people of Kenya when seeking Police services. Excerpts from Article 246:

246. (3) The Commission shall— (b) observing due process, exercise disciplinary control over and remove persons holding or acting in offices within the Service; and (c) perform any other functions prescribed by national legislation.

This is important as a measure of checks and balances to ensure that every officer is performing their calling to the public and working without fear of or intimidation by their superior officer.

In the past, the Police handled their own internal affairs leading to partiality, cover-ups, intimidation, arbitrary sackings, etc. However, independent investigations of such misconduct especially those which touch on the wider public are presently being performed by a different agency constituted for that purpose - the Independent Policing Oversight Authority IPOA

IPOA's membership is purely civilian (unlike that of the NPSC), i.e., does not have any serving Police Officers. In a sense, the Authority complements the functions of the Commission: to provide "...... civilian oversight of the work of the Police; ........". Excerpts from Section 5 and 6 of the IPOA Act, 2011:

5. The objectives of the Authority shall be to—  (a) hold the Police accountable to the public in the performance of their functions;

6. The functions of the Authority shall be to—  (a) investigate any complaints related to disciplinary or criminal offences committed by any member of the Service, whether on its own motion or on receipt of a complaint, and make recommendations to the relevant authorities, including recommendations for prosecution, compensation, internal disciplinary action or any other appropriate relief, and shall make public the response received to these recommendations; 

One of the most important reports so far by IPOA touching on the performance of the Police was published in October 2014 following investigations on the June 15-16 terror attacks in Mpeketoni in the County of Lamu that led to the death of scores of people, exposed serious flaws in the structure, command, and logistic systems not only within the police, but also between the service and other national security organs and the provincial administration.

Curiously however, no sooner had the the new Cabinet Secretary for Interior and Coordination of National Government been sworn into his new office on the 24th December 2014, that he promptly expressed the view that both the National Police Service Commission and IPOA were an impediment to the smooth and effective operations of the National Police Service. He said, “We cannot have civilians commanding uniformed people. It cannot happen, it has never happened anywhere in the world. It is only the activists and civil society which brought this law and it is what is affecting the command structure. We can even scrap it!”

These remarks by Joseph Nkaissery, himself a retired Kenya Army Major-General, appeared to express a contempt for civilian oversight and authority over uniformed agencies. His views elicited mixed reactions from the public given that his appointment, which was well received, came at a time when the country had suffered frequent and deadly terror attacks that were mostly viewed as being as a result of an ineffective leadership in the Ministry and the Police - for which his predecessor Joseph Ole Lenku was removed from office by the President while the Inspector General of Police David Kimaiyo opted to retire. For much of their time in office, the two faced sustained public calls for them to resign.

To summarise, the National Police Service Commission Act, No 30 of 2011 assented to in November 2011, espouses the very provisions that guide the Commission as an administrative oversight body over the National Police Service and the officers serving in it.

Only when the Police Service is properly functioning can it serve the interests of the wider public.

 

Composition

 

picture of Johnstone Kavuludi Chair of the National Police Service Commission

Johnstone Kavuludi, Chair of the National Police Service Commission

 

The NPSC shall ensure that the recruitment of the officers and the top leadership of both the Police Services reflects the diversity of Kenya's peoples:

246. (4) The composition of the National Police Service shall reflect the regional and ethnic diversity of the people of Kenya.

The Commission will have nine members when fully constituted, to serve for a six year term:

(2) The Commission consists of— (a) the following persons, each appointed by the President— (i) a person who is qualified to be appointed as a High Court Judge; (ii) two retired senior police officers; and (iii) three persons of integrity who have served the public with distinction; (b) the Inspector-General of the National Police Service; and (c) both Deputy Inspectors-General of the National Police Service.

The six Commissioners listed in Clause (2) (a) were recruited by a specially constituted board, while those in clauses (b) and (c) were recruited by the six who were appointed by the President in October 2012, after vetting by the National Assembly. 

 

 

References:

1. Constitution of Kenya, 2010. National Council for Law Reporting. The Attorney-General.

2. National Police Service Commission Act, 2011. National Council for Law Reporting. The Attorney General.

3. International Centre For Policy and Conflict v Attorney General & 2 others [2014] eKLR. Miscellanous Civil Case 226 of 2013. National Council for Law Reporting. The Attorney General.

4. National Police Service Act, 2011. National Council for Law Reporting. The Attorney General.

5. National Police Service Amendment Act, 2013. National Council for Law Reporting. The Attorney General.

6. The Independent Policing Oversight Authority Act, 2011. National Council for Law Reporting. The Attorney General.

7. Independent Policing Oversight Authority & another v Attorney General & 660 others [2014] eKLR. National Council for Law Reporting. The Attorney General.

8. IPOA Report following the Mpeketoni attacks of June 15 and 16, 2014. Independent Policing Oversight Authority. Retrieved December 2014.

 

 

 

 

Salaries and Remuneration Commission SRC

 

 

Open. Accountable. Responsible


Contents
Introduction

Authority

To set and review the salaries of all state officers.

Roles and Functions

To regularly study labour market conditions and advise both national and county governments on the remuneration of public officers.

Composition

Total of fourteen part-time Commissioners.

 

 

 Introduction

 SRC logo

The SRC was established by the Constitution of Kenya 2010 by the people in their bid to harmonise the salaries of state officers in the context of fairness across the board, and "......(b) secure the observance by all State organs of democratic values and principles (Article 249 (1)).

In order to properly carry out this mandate, the SRC must continuously perform a social-political and fiscal balancing act.

The Commission will be "expected to minimize disharmony in the public sector and encourage orderly wage and benefit negotiations." (Kirira N, 2011). 

It must not shy away from addressing the following pertinent questions: Whether to raise the pay of those it considers relatively underpaid or, lower the salaries of the overpaid; what fraction of national income should cover salaries; whether State jobs are able to attract and retain requisite talent, etc?

These and many other questions inform the considerations that the SRC must give serious thought to as it deliberates on an acceptable and workable formulae for the salaries of State officers going forward. Chapter 12 - Public Finance:

230. (5) In performing its functions, the Commission shall take the following principles into account— (a) the need to ensure that the total public compensation bill is fiscally sustainable;

 

Authority

 

The Salaries and Remuneration Commission SRC, is a constitutional commission established by Article 248 of Chapter 15 - Commissions and Independent Offices. Excerpts:

248. (2) The commissions are— (h) the Salaries and Remuneration Commission;

And Article 230 of Chapter 12 - Public Finance, Part 7 - Financial Officers and Institutions. Excerpts:

230. (1) There is established the Salaries and Remuneration Commission.

The SRC is the body to determine the remuneration of State officers. In this mandate the Commission acts to determine who earns what:

(4) The powers ...... of the Salaries and Remuneration Commission shall be to— (a) set and regularly review the remuneration and benefits of all State officers; .......

'State Officers' include those working under both the National and County governments, those in Commissions and Independent Offices and all those working in State organs.

On the 1st of March 2013, one month to the first General Elections under the Constitution of Kenya 2010, the SRC published and gazetted its maiden tabulation of the remuneration and benefits of State Officers.  The publication did not elicit much reaction from the political class who were busy campaigning for election. 

However, things changed soon after the winners were sworn in and took office.

A section of members of the 11th National Assembly and many County Assemblies began a sustained public assault on the SRC, claiming unfair remuneration. Indeed, the National Assembly Member for Igembe South, Mithika Linturi, sought to disband the Commission through a petition to remove its Commissioners for 'incompetence and gross violation of the Constitution'.

This petition was examined by the Departmental Committee on Delegated Legislation which in its report, sought instead to degazette the notice of the SRC of 1 March 2013 that set out the salaries of the members of the new Assembly. This report was also unanimously adopted by the whole House.

However, this move elicited reactions of disapproval from the President as well as from the Commission for the Implementation of the Constitution CIC. 

This push for higher wages fizzled out and was in September 2013 replaced by a new attempt to amend the Constitution so that House Members (as well as several other State Officers), be declassified as State Officers ostensibly to place them outside the jurisdiction of the SRC with respect to their salaries and remunerations.

Soon after, the Members of the County Assemblies MCAs, took the cue and went into a go-slow in an effort to force the hand of the Commission using public forums to claim that the National Government and the Commission were frustrating devolution. The Chair of the SRC famously quipped on the 28th October 2013 that, "The success of devolution cannot be measured by how much money is in the pocket of the (MCAs) leaders......." (Sarah Serem, 2013).

Nonetheless, the Commission has not entirely escaped public criticism of lacking firmness and being slow to act in reigning in the bloated public wage bill. When the Cabinet announced a freeze on new employment in November 2013 the SRC was portrayed as indecisive as there was no indication that the Cabinet decision had been made on the advise of the Commission.

"....... the SRC should make haste with its new wage policy for the country, to ensure that it does not shut the gate after the horse of runaway wages has bolted." (Kwame Owino, Daily Nation O/Ed, 2013).

The following year in March 2014 when the President initiated a public and stakeholders debate on a bloated and unsustainable public wage bill, the Commission was placed on the spot once more, this time by the public who were quick to blame it for its failure to remain firm in resisting the salary and benefits demands of the political elite. Moreover, the fact that this public wage bill debate was led by the President and not the SRC did not augur well in the court of public opinion with some commentators wondering why a public wage debate was required in the first place when there is a constitutional Commission established to address the same.

It will be interesting to know however, why the Commission established a harmonised salary schedule in 2014 across Counties given that different Counties do not all have the same economic power, wealth, development and levels of production, etc notwithstanding the fact that its Act of 2011 requires it to adhere to the "equal remuneration to persons for work of equal value" principal.

On the 11th of September 2015, the High Court ruled that Parliament must consult with the SRC whenever it is legislating on a matter touching on the remuneration and benefits of State Officers. As a matter of fact, the ruling came 3 years late because it followed a petition by (curiously), a sister Commission - the Kenya National Commission on Human Rights KNCHR - which had sought the declaration of the Presidential Retirement Benefits (Amendment) Act of 2012 and the Retirement Benefits (Deputy President and Designated State Officers) Bill as being unconstitutional, given that one of the early beneficiary of the amendments, Kenya's third President Mwai Kibaki, and who was the second respondent in the petition having assented to the same Bills, had already retired two-and-half years before.

To be fair to the relevant watchdog commission with respect to constitutional implementation i.e., the Commission for the Implementation of the Constitution CIC the ruling was a case of the chicken coming home to roost as it had 3 years before warned the National Assembly and the President on the unconstitutionality of the Amendment Acts but had obviously been ignored.

 

Roles and Functions

 

As a Commission, the SRC must align its recommendations with the New Constitution, with national policies, and with prevailing economic conditions: 

230. (4) The ..... functions of the Salaries and Remuneration Commission shall be to— (b) advise the national and county governments on the remuneration and benefits of all other public officers.

To do so, the SRC must regularly obtain and analyse accurate data on the output of every State officer, and for all to see, reward accordingly, those who are highly productive: 

(5) In performing its functions, the Commission shall take the following principles into account— (c) the need to recognise productivity and performance; and (d) transparency and fairness.

Obviously, the SRC must, as is common practice, begin by taking a full audit of all job descriptions in the public service so it can advise to finer detail on the remuneration and benefits of every employee in every public office.

 

Composition

 

Sarah Serem Chair of the SRC Sarah Serem Chair of the SRC

 

 

 

This Commission was among the earliest to be established after the promulgation of the Constitution of Kenya 2010. Sixth schedule, Consequential and Transitional Provisions:

25. (2)The Salaries and Remuneration Commission shall be constituted within nine months after the effective date. 

As we have seen the Salaries and Remuneration Commission is an important commission that must consider the remuneration needs of all State officers spread across the country in various departments and organs. To do so effectively, the Commission must receive and consider the input of numerous stakeholders. This requirement is what informed the Constitution to provide for a large and widely representative membership in the SRC - made up of nominees from diverse constitutional organs, trade unions and employers, among other stakeholders and experts. In fact the SRC has one of the largest membership of Commissioners (fourteen of them) among all the constitutional Commissions:

(2) The Salaries and Remuneration Commission consists of the following persons appointed by the President— (a) a chairperson; (b) one person each nominated by the following bodies from among persons who are not members or employees of those bodies— (i) the Parliamentary Service Commission; (ii) the Public Service Commission; (iii) the Judicial Service Commission; (iv) the Teachers Service Commission; (v) the National Police Service Commission; (vi) the Defence Council; and (vii) the Senate, on behalf of the county governments; (c) one person each nominated by— (i) an umbrella body representing trade unions; (ii) an umbrella body representing employers; and (iii) a joint forum of professional bodies as provided by legislation; (d) one person each nominated by— (i) the Cabinet Secretary responsible for finance; and (ii) the Attorney-General; and (e) one person who has experience in the management of human resources in the public service, nominated by the Cabinet Secretary responsible for public service.

These part-time Commissioners will serve for a one-term period of 6 years from 2011 to 2017.

 

 

References:

1. Constitution of Kenya, 2010. National Council for Law Reporting. The Attorney-General.

2. The Salaries and Remuneration Commission Act, 2011. National Council for Law Reporting. The Attorney-General.

3. Njeru Kirira (2011). "Public Finance under Kenya's new Constitution". Constitutional Working Paper Series No. 5. Society for International Development, SID.

4. Website of the Parliament of Kenya. Retrieved May 2013.

5. Website of the Parliament of Kenya. Retrieved May 2013.

6. "Uhuru sets the tone for public wage bill cut". Business Daily Politics and Policy Article of 16 April 2013.

7. Serem, S (2013). Chair of the SRC. Speaking in response to the failure by MCA's to meet with the Commission. Citizen (TV) Live. Captured on the 28 October 2013.

8. "Cabinet freezes new employment to check wage bill". Daily Nation article of 22 Nov 2013. 

9. Kwame Owino, 2013. "Cabinet decision to freeze public employment shows the SRC is failing". Daily Nation Op/Ed Article of 27 Nov 2013.

10. "National Debate on Public Wage Bill Sustainability". Official webstite of the President. Retrieved March 2014.

11. Job Group Computation of Remuneration by the SRC for State Officers. Website of the SRC. Retrieved April 2014.

12. Kenya National Commission on Human Rights v Attorney General & another [2015] eKLR. National Council for Law Reporting. The Attorney-General.

 

 

 

Ethics and Anti-Corruption Commission, EACC

 

 

Open. Accountable. Responsible

 

Contents
Introduction

Authority

Can directly prosecute corruption crimes and confiscate money or wealth that was obtained corruptly.

Roles and Functions

Prevent corruption, educate the public on corruption and its prevention.

Composition

Five Commissioners to serve at the EACC, led by a Chair.

 

 

Introduction

 

 

eacc--new-logo from eacc.go.ke

 

Most historians, public commentators, policy makers, social scientists and other experts are of the view that corruption is the single most important contributor to poor governance in the past in Kenya. Corruption has frustrated the people's aspirations for a life in which merit, equity and justice is a way of life. The establishment of a body to lead the fight against corruption began way back in the 1990s with the formation of the toothless and ineffective Kenya Anti-Corruption Authority, KACA. KACA was disbanded by a constitutional court to be replaced by the KACC or Kenya Anti-Corruption Commission which did not achieve anything either.

The New Constitution has established an independent Commission, the Ethics and Anti-Corruption Commission EACC, to lead the fight against corruption in all sectors - economic, social and political but perhaps more importantly, to set the integrity bar for all and especially for officers in the Public Service. Indeed, the very process of appointment of its first chair in May of 2012, was soon the subject of a petition in the High Court. The Court set aside the appointment while ruling that both the Selection Panel and the National Assembly failed to investigate adequately the allegations made against the integrity of the nominee for Chair of the Commission. However in July 2013, the Appeals Court overturned the lower Court's judgment saying that the Judges exceeded their mandate by failing to maintain the separation of powers.

Public expectations are however at an all-time high on the EACC to deliver on its mandate largely because the Commission has come in together with the widely-popular Constitution of Kenya 2010.

 

Authority

 

The Ethics and Anti-Corruption Commission has constitutional authority of an Independent Commission as defined in Chapter 15's Article 248. This means, the Commission is fully independent since it has been granted the same status and powers of a Constitutional Commission. Chapter 6 - Leadership and Integrity, Article 79 states in part:

79. Parliament shall enact legislation to establish an independent ethics and anti-corruption commission, which shall be and have the status and powers of a commission under Chapter Fifteen, .......

To provide for checks and balances, the EACC must report to the President and Parliament, on its activities and financial statements at least once each year. These published reports will of course be appropriately publicised. Article 27 of the Act:

27. (2) The Commission shall submit the annual report to the President and the National Assembly .......
(3) The annual report shall contain, ........ (a) the financial statements of the Commission; (b) a description of the activities of the Commission; (d) any recommendations made by the Commission to State departments or any person and the action taken; (e) the impact of the exercise of any of its mandate or function; (f) any impediments to the achievements of the objects and functions under the Constitution, this Act or any written law; ........
(4) The Commission shall cause the annual report to be published and the report shall be publicized in such manner as the Commission may determine.

Indeed, the EACC, in May 2013, submitted to the National Assembly, its first quarterly report following the March 2013 general elections.

 


 

 

Roles and Functions

 

Chapter 6 of the New Constitution addresses Leadership and the requisite levels of Integrity expected of all State and Public Officers. It is to the EACC that the people of Kenya look up to, to ensure full compliance to high standards of Integrity by all public officers especially during recruitment into office. The Commission is also expected to enforce those standards through constant monitoring and evaluation of performance among public servants. Chapter 6 - Leadership and Integrity:

79. Parliament shall enact legislation to establish an independent ethics and anti-corruption commission, ........ for purposes of ensuring compliance with, and enforcement of, the provisions of this Chapter.

Consequently, the EACC was established pursuant to Article 79, by the enactment of the Ethics and Anti-Corruption Commission Act of 2011. The Commission must set the tone early in the public's eyes and more so among public servants on what constitutes best practice in service delivery and consumption i.e., a code of conduct for everyone whether in private or public service and what it all means in light of national values and principals of good governance. In other words, the Commission must execute civic education and frequent public campaigns on how corruption looks like and what its evil effects are, and how to avoid and expose corrupt practices. Further to that, the Commission must diligently and fairly and without fear, enforce the code of conduct on integrity and anti-corruption. 

To properly carry out its mandate of development and promotion of standards and best practices in integrity and anti-corruption, the EACC must first of all, familiarise itself with the systems, procedures and processes in all public offices and continuously monitor the same in order to

31. "....... detect corrupt practices and to secure the revision of methods of work or procedures that may be conducive to corrupt practices." (Ethics and Anti-Corruption Commission Act of 2011).

The Commission must cooperate with other Commissions, State organs and agencies that foster good governance, law and order. Hence, the EACC is a sort of master advisor to other Commissions and Independent Offices on the code of conduct within their jurisdictions. To this end, the Commission is empowered by Article 252 of the New Constitution to investigate any integrity and corruption issues that may be raised from time to time. Chapter 15 - Commissions and Independent Offices:

252. (1) Each commission, and each holder of an independent office— (a) may conduct investigations on its own initiative or on a complaint made by a member of the public;

Further to that, the EACC is mandated by the Act, to push for the prosecution of offenders and to recommend and advise on disciplinary measures to be taken against Public Service officers who fail the ethics test. Article 11 of the Act, excerpts:  

11. (1) ....... the Commission shall— (d) investigate and recommend to the Director of Public Prosecutions the prosecution of any acts of corruption or violation of codes of ethics or other matter prescribed under this Act or any other law enacted pursuant to Chapter Six of the Constitution: (e) recommend appropriate action to be taken against State officers or public officers alleged to have engaged in unethical conduct;

The EACC Act of 2011, has expressly allowed the EACC, through the Courts, to recover, freeze or confiscate property that is proved to have been acquired corruptly or unethically:

11. (1) ....... the Commission shall— (k) institute and conduct proceedings in court for purposes of the recovery or protection of public property, or for the freeze or confiscation of proceeds of corruption or related to corruption, or the payment of compensation, or other punitive and disciplinary measures."

Some of the provisions of Chapter 6 that the Commission must seek to enforce compliance with, are bound to drastically change the status quo. For example, it was common practice in the past, for State officials to hold more than one jon - a clear conflict with their public positions. Going forward therefore, a State officer cannot hold 2 such jobs. Article 77 of the New Constitution:

77. (1) A full-time State officer shall not participate in any other gainful employment.

Senior public officers cannot be active political party operatives either as that may compromise their impartiality and independence in the discharge of their duties:

(2) Any appointed State officer shall not hold office in a political party. 

The above twin provisions are designed to ensure there are no conflicts of interest among serving State Officers. 

The EACC is expected to monitor financial dealings of State officers to assure that they do not receive 'thank you' gifts from the public or business community or keep foreign bank accounts in circumstance that are outside of the law:

76. (2) A State officer shall not— (a) maintain a bank account outside Kenya except in accordance with an Act of Parliament; ...... .

Finally, the EACC must keep a keen eye on the politically sensitive process of public recruitment with a view to ensure that such a process is based on and conducted purely on grounds of merit:

73. (2) The guiding principles of leadership and integrity include— (a) selection on the basis of personal integrity, competence and suitability, or election in free and fair elections; (b) objectivity and impartiality in decision making, and in ensuring that decisions are not influenced by nepotism, favouritism, other improper motives or corrupt practices.

 


 

 

Composition and Tenure 

 

mumo matemu chair of anti-corruption commission

Mumo Matemu, immediate past Chair of the Ethics and Anti-Corruption Commission

 

 

The Ethics and Anti-Corruption Commission had a Chair, and three other Commissioners, appointed in May 2012 for a single term of 6 years. However, as noted in the introduction part of this article, the appointment of the Chair, Mumo Matemu, was delayed by a petition in the High Court touching on his integrity and could not be effected until August 2013 when the Court of Appeal upheld the decision of the lower court and confirmed his suitability to hold office.

As it turned out, Matemu's tenure was rarely out of the public eye with one negative allegation following the other. At one time in September 2014, two of the Commissioners including the Vice Chair, had written to the President saying the Chair was unfit to hold office. In March 31 2015, another of the Commissioners had resigned her position citing divisions within the agency.

Matters came to a head in April 2015 when the National Assembly voted to remove both he and his Vice Chair. The President promptly suspended the two bosses and appointed a Tribunal to look into their conduct.

Oddly, during the vetting of the same Commissioners in 2012, the Departmental Committee on Justice and Legal Affairs of the then Tenth Parliament, had found that the 3 (the Chair was not among them), "....... lacked passion, initiative and the drive to lead the fight against corruption in this country. The nominees did not demonstrate sufficient interest in the fight against corruption.......".(Hansard, April 22, 2015 Afternoon).

In July 2015, the Commission on Administrative Justice CAJ raised objections to the Ethics and Anti Corruption Commission (Amendment) Bill 2015, passed on the 9th of July by the National Assembly ostensible to restructure the EACC in a bid to cure its short but messy existence. Said the CAJ in an Advisory: "The Ethics and Anti-Corruption Commission has had challenges right from its establishment which was manifested in the appointment of the Commissioners and the challenges in working relationship among the Commissioners inter-se and also with the Secretariat."

Believing that the legislators were off the mark, the Advisory was unequivocal, "These challenges cannot be attributed to structural framework of the institution......(as) other Commissions similarly structured have not experienced similar issues. It is our opinion that it is not a sound practice to amend the law by restructuring a State Organ simply because the individuals who held office did not perform or that others who can perform have been differently designated. In our view, there is no problem with the structure of EACC. Historical hitches in appointment, incompatibility of individuals or individual questions of integrity are not reasons to restructure.Advisory Opinion on the Proposed Restructuring of the EACC - July 2015.

Others such as the Commission for the Implementation of the Constitution CIC seeing mischief on the part of the National Assembly in passing the controversial Bill, said that it was, "........ aimed at paralyzing ongoing investigations by the anti-graft body."

Thankfully on the 5th of August 2015, the President declined to assent to the Bill.

 

 


 

References:

1. Constitution of Kenya, 2010. National Council for Law Reporting. The Attorney General.

2. The Ethics and Anti-Corruption Commission Act of 2011. National Council for Law Reporting. The Attorney General.

3. Petition 229 of 2012. MUMO MATEMU V TRUSTED SOCIETY OF HUMAN RIGHTS ALLIANCE & 5 OTHERS[2013] eKLR. National Council for Law Reporting. The Attorney-General.

4. Civil Appeal 290 of 2012. MUMO MATEMU V TRUSTED SOCIETY OF HUMAN RIGHTS ALLIANCE & 5 OTHERS[2013] eKLR. National Council for Law Reporting. The Attorney-General. 

5. Hansard Report April 22, 2015 Afternoon. Website of The National Assembly. Accessed May 2015.

6. Advisory Opinion on the Proposed Restructuring of the EACC. Commission on Administrative Justice. 

 

 

Parliamentary Service Commission under the New Constitution

 

 

Open. Accountable. Responsible

 

Contents
Introduction

 Authority

The PSC is a Commission under the Constitution of Kenya 2010's Chapter 15 with full status and powers of a Commission.

Roles and Functions

To develop and administer the structures and personnel in the Parliamentary Service.

Composition

The Commission will be led by the Speaker of the National Assembly and a vice-Chair, and ten others, two of whom will not be members of the two August Houses.

 

 Introduction

 

As its name suggests, the Parliamentary Service Commission PSC, will basically form and run the bureaucratic administration of both the National Assembly and the Senate of the Republic of Kenya. As a Commission, the PSC is expected to provide  a certain level of checks and balances on Parliament i.e., (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). In other words, the people of Kenya have delegated power to the PSC to see to it that both Houses of Parliament do what they are supposed to do. Excerpts from Chapter 8 - The Legislature, Article 127:

127. (6) The Commission is responsible for— (d) undertaking, singly or jointly with other relevant organisations, programmes to promote the ideals of parliamentary democracy; .......

 

Authority

 

The Parliamentary Service Commission is a constitutional Commission under the New Constitution. Excerpts from Chapter 8 - The Legislature, Article 127:

127. (1) There is established the Parliamentary Service Commission.

248. (2) The commissions are— (d) the Parliamentary Service Commission;

 

Roles and Functions

 

As we stated earlier, the PSC will run the administrative bureaucracy of the two Houses of Parliament. The PSC will thus be expected to design the structures and terms of service, recruit, deploy and supervise the staff numbers in the legislative bureaucracy. Excerpts:

127. (6) The Commission is responsible for— (b) constituting offices in the parliamentary service, and appointing and supervising office holders; (e) performing other functions— (i) necessary for the well-being of the members and staff of  Parliament; .......

128. (1) There shall be a Clerk for each House of Parliament, appointed by the Parliamentary Service Commission .......
(2) The offices of the Clerks and offices of members of the staff of the Clerks shall be offices in the Parliamentary Service.

The PSC's bureaucracy is therefore a fully-fledged secretariat designed to provide logistical and back-office support to the Members of Parliament, and plan for, control, manage and account for the revenues due, and expenditures of the two Houses:

(6) The Commission is responsible for— (a) providing services and facilities to ensure the efficient and effective functioning of Parliament; (c) preparing annual estimates of expenditure of the parliamentary service and submitting them to the National Assembly for approval, and exercising budgetary control over the service;

In line with Sub-Article (6) (a) above, the PSC oversees the important Parliamentary Budget Office, PBO that assists both Houses of Parliament and their Committees with "technical support on matters relating to Public Financial Management (PFM) and financial oversight ....... The PBO therefore helps in bridging the information gap in budgetary and economic matters in Parliament." (Parliament's Website, 2013). 

Obviously, the PSC will closely liaise and consult with other independent bodies such as the Salaries and Remuneration Commission before setting the terms of service for its staff; with both the Director of Budget and the Auditor-General in preparing its budget controls and submitting its obligations to external audits respectively - an important feature of checks and balances on Parliament and on the Commission itself.

 

Composition and Tenure

 

Justin Muturi Chair of the Parliamentary Service Commission

Justin Muturi Chair of the Parliamentary Service Commission

 

 

 

The Parliamentary Service Commission is the only constitutional Commission whose chair is not appointed by the President. The Speaker of the National Assembly is the automatic chair of the PSC. The PSC is also perhaps the only Commission that should effortlessly fulfill the New Constitution's requirements for gender parity in the composition of its members, who number 12 as follows:

127. (2) The Commission consists of— (a) the Speaker of the National Assembly, as chairperson; (b) a vice-chairperson elected by the Commission from the members appointed under paragraph (c); (c) seven members appointed by Parliament from among its members of whom— (i) four shall be nominated equally from both Houses by the party or coalition of parties forming the national government, of whom at least two shall be women; and (ii) three shall be nominated by the parties not forming the national government, at least one of whom shall be nominated from each House and at least one of whom shall be a woman; and (d) one man and one woman appointed by Parliament from among persons who are experienced in public affairs, but are not members of Parliament.
(3) The Clerk of the Senate shall be the Secretary to the Commission.

The removal of a Commissioner from the PSC is straight forward. Basically, if a Commissioner MP looses their seat in Parliament under any circumstances, they give up their seat at the Commission. Similarly, a non-MP Commissioner may loose their seat at the Commission if Parliament revokes their membership say for gross misconduct:

(4) A member of the Commission shall vacate office— (a) if the person is a member of Parliament— (i) at the end of the term of the House of which the person is a member; or (ii) if the person ceases to be a member of Parliament; or (b) if the person is an appointed member, on revocation of the person’s appointment by Parliament.

 

 

References:

1. Constitution of Kenya, 2010. National Council for Law Reporting. The Attorney-General.

 

 

 

 

National Land Commission NLC

 

 

Open. Accountable. Responsible

 

Contents
Introduction

Authority

Mandated to be the sole administrator of all Public Land in Kenya.

Roles and Functions

Manage all public land as well as monitor access, use and ownership of all land in Kenya.

Composition

The NLC has nine full-time Commissioners led by a Chair.

 

 Introduction

 

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 years after the enactement of the New Constitution. 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 bickering and delays as politics would invariably find its way into the mix.

And true to form, this prediction came to pass soon after the Cabinet was constituted in April 2013; on the one hand, the Cabinet Secretary for Land, Housing & Urban Development, and the Land Commission on the other, became immersed in a supremacy contest (over who has what functions and powers to do what) 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 it and the Ministry, thanks to the Constitution's Article 163. (6) in Chapter 10 - Judiciary, Part 2 - Superior Courts:

163. (6) The Supreme Court may give an advisory opinion at the request of the national government, any State organ, or any county government with respect to any matter concerning county government. 

Upon receipt of the petition, the Supreme Court first attempted the way of reconciliation, "........ for the parties to engage one another in good faith, and to seek mutual understanding....... . Prior to the conduct of a hearing, the Court allows a 90-day interlude during which the parties may undertake a constructive engagement towards reconciliation and a harmonious division of responsibility."

However, the 90-day period (to July 2015) that the Court allowed for the parties to work out their differences elapsed without any meaningful resolution, and the matter was forced into full hearing.

The NLC had basically sought specific clarity on nearly two dozen questions on land matters it felt ought to be fully in its domain to manage and to administer effectively, and to be fully independent of the Executive by having staff, assets, and funding exclusive to it. Key among these were:

i) are Land Registrars (recorders of titles) and Land Surveyors answerable to the NLC, or to the Cabinet Secretary of the Ministry?

ii) what meaning is to be assigned to the words “to manage”, and “to administer” public land, unregistered trust land, and unregistered community land by virtue of Articles 62(2), 62(3), 67(2)(a) and 67(3) of the Constitution of Kenya; and Sections 5(1)(a) and 5(2)(e) of the National Land Commission Act No. 5 of 2012 [NLC Act]?

iii) which functions that were previously performed by the Ministry, before the creation of the NLC, have now been transferred to the NLC?

iv) should the Ministry relinquish the land-tax function, roles, records and powers to the NLC; .......?

v) is land registration a function of the NLC, or the Ministry?

vi) is it practical that the NLC be charged with the task of creating registration units, registration sections, or registration blocks; of prescribing nomenclature for land titling; of regulating rectification of land registers by Registrars; and of annually reporting to the President and Parliament as regards the progress made in the registration of title in land when the NLC is not the agency mandated to control the process of registration of land?

vii) is the Ministry obliged to transfer to the NLC all property and assets of the departments whose functions have now, by law, been transferred to the NLC; .......? 

viii) which agency has the mandate to administer and manage dealings in private land?

On its part, the Court felt it necessary to "rescale" the 23 questions sought by the Commission to just the one question, that is, "What is the proper relationship between the mandate of the National Land Commission, on the one hand, and the Ministry of Land, Housing and Urban Development, on the other hand – in the context of Chapter Five of the Constitution; the principles of governance (Article 10 of the Constitution); and the relevant legislation?

The Supreme Court delivered its opinion on the 2nd of December 2015. In the very extensive opinion, the Court was keen to emphasis its earlier view that the Commission and the Ministry are required to work in harmony by way of, "...... reconciliation and a harmonious division of responsibility.", and that it was impossible to demarcate their independence:

309. ....... the allocation of discrete functions to the one or the other is not possible, or indeed necessary........

Upon examination of the historical issue of land injustices, it also noted the special place of the NLC saying:

285. The Court, thus, has to take into account the historical background of land issues in Kenya, that necessitated the establishment of the NLC, and the mischief that the NLC was intended to cure in the allocation of public land. 

However, there being separation of land administration from land registration, the Court was categorical that although the Commission has extensive roles in land administration under the law (specifically the Land Registration Act), it has no authority to register titles:

289. The foregoing sub-Section separates the role of “land administration” from “registration”, notwithstanding that the term “land administration” has a wider meaning under the Act, which suggests the inclusion of functions of registration of title. As implementation is of the essence, we are of the view that a definition on its own, does not confer any definite category of power; only by a substantive provision in the relevant Act, can a specific head of power be vested upon any agency. As observed in para. 287, the position is that, under the Land Registration Act, the NLC has no power to register title documents.

The Court however acknowledged that the Commission plays a part in the process leading to registration:

310. The NLC has a mandate in respect of various processes leading to the registration of land, but neither the Constitution nor statute law confers upon it the power to register titles in land. The task of registering land title lies with the National Government, and the Ministry has the authority to issue land title on behalf of the said Government.

The reader should note that the process leading to the Opinion revealed contradictions in the Acts that touch on Land, prompting the Court to advise the relevant agencies concerned with law reform to do something about it:

312. As already noted herein, the various statutes relating to land are not in all cases consistent among themselves; and in some cases they have been framed with imprecision, and without a clear reflection of the relevant principles of the Constitution. We recommend that the complete set of land-related
statutes, be placed before the Honourable the Attorney-General, and before the Kenya Law Reform Commission, for a detailed professional review, in the context of this Advisory Opinion.

The Chief Justice added his voice to the Opinion in choosing to highlight the importance of full and comprehensive public participation that has been lacking in the post-CoK 2010 reforms being undertaken in the statutes governing land in Kenya.

Moving on, 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. 

 

 


 

 

Authority

 

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 and partner to 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; ........

 

 


 

 

Roles and Functions

 

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.

(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 taxation matters relating to land:

(2) ....... (g) to assess tax on land and premiums on immovable property in any area designated by law; .......

The keen reader will note from Article 67 of the Constitution defining the roles and functions of the NLC that its primary responsibilities are largely of an oversight and advisory nature over other national and county agencies whose mandate is more core in respect to matters of land. Indeed, this fact was highlighted in one of the Supreme Court's Judge's consenting opinion emphasising that the nature of the Commissions's executive scope was indeed limited. Said the Judge of the Supreme Court, Njoki Ndung'u:

358. Similarly, the institutions so crafted under the Constitution, must also not run contrary to the general remit of the functions of Chapter 15- institutions. As oversight institutions, any mandate that they are given in the Constitution of Kenya must be construed as narrowly as possible so as to avoid role conflicts; and should not be extended unreasonably by statute.

The Judge drew the attention of the NLC to the specific verbs in the Article 67 to make her point, repeated herebelow for reference and italicised for emphasis:

"To my mind, the language of Article 67(2)(b) to (h): as to the functions of the National Land Commission, is clear and specific:
“…
(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;
(d) to conduct research related to land and the use of natural resources, and make recommendations to appropriate authorities;
(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;
(g) to assess tax on land and premiums on immovable property in any area designated by law; and
(h) to monitor and have oversight responsibilities over land use planning throughout the country” [emphasis supplied].

"The words ‘recommend, advise, research, investigate, encourage, assess, monitor and oversight’ – are all actions than provide a facilitative role rather than a primary one. The context in which those words are used, presumes that there is another body or organ whom such recommendations, advice, research, investigations, encouragement, and assessment shall be sent to, received by, and in relation to which the proposals shall be implemented. There is therefore a clear separation of roles between a body providing oversight, and a body upon which the oversight is to be conducted. In my opinion, this means that unless specified within the enabling constitutional provision, a body with oversight function, and a body that implements the recommendations of the former, are different, and their roles do not overlap.

Generally, this Advisory Opinion came as a rude shock to many who had mistakenly believed that most land transactions and functions had been taken away from the hands of the parent ministry - dubbed a "den of corruption" for decades, and given to the Commission. Indeed, the NLC chair was often in the news making bold declarations and not afraid to mix it with the Ministry's Cabinet Secretary. 

 

 


 

 

Composition

 

Picture of Muhammed Swazuri Chair of the National Land Commission 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 20th Feb, 2013.

 

 


 

References:

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 & ANOTHER[2012]eKLR. Petition 266 of 2012. National Council for Law Reporting. The Attorney-General.

5. John Waweru Wanjohi & 27 others v Attorney General & 6 others [2012] 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 [2013] 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.

11. In the Matter of the National Land Commission [2015] eKLR. Advisory Opinion Reference No 2 of 2014. National Council for Law Reporting. The Attorney-General.

 

 

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