Kenphilip O. Oriku*
Introduction
The National Land Commission, is a constitutional commission. It is constituted under Article 67 (2) of the Constitution[1] as read together with the National Land Commission Act[2], Act No. 5 of 2012. This paper seeks to review and answer, what the overall mandate of the National Land Commission is as outlined in the National Land Commission Act.
Mandate of the National Land Commission
Section 5 of the National Land Commission Act (hereinafter, the Act) stipulates the functions of the National Land Commission (hereinafter, the commission). The functions, therein, are inter-alia derived from Article 67(2) of the Constitution of Kenya. The Supreme Court of Kenya, In the Matter of the National Land Commission, whilst rendering an advisory opinion[3] sought by the Commission emphasized on Functional independence: that entailed commissions exercising their autonomy through carrying out their functions, without receiving any instructions or orders from other State organs or bodies. That had also been referred to as administrative independence. Functional independence was in line with the general functions and powers of commissions, as provided under articles 252 and 253 of the Constitution[4]. The Supreme Court of Kenya in its Advisory Opinion underlined the Perception of independence: That meant the commissions had to be seen to be carrying out their functions free from external interferences. The perception of independence was crucial in showing proof of independence.
Functions of the Commission
Section 5(1)(a) of the Act, provides that the function of the commission is to manage public land on behalf of the national and county governments. The Supreme Court of Kenya, while rendering its advisory opinion[5] pronounced itself on this function as to what entails management. The court in its advisory opinion noted that, the statute did not define the term management and it can only be inferred from the context within which they have been used. It’s noteworthy to note that, the court also addressed itself as to whether this function implies there’s an agency relationship between the commission, the National and County Governments. The Court found that the relationship intended between the Commission on the one hand, and the National and County Government on the other, does not lend itself to the agency template, rather it’s a straightforward constitutional relationship, in the public law mode.
Section 5(1)(b) of the Act, provides that the function of the commission is to recommend a national land policy to the national government.
Section 5(1)(c) of the Act, provides that the function of the commission is to advise the national government on a comprehensive programme for the registration of title in land throughout Kenya. The Supreme Court of Kenya, in its advisory opinion[6] noted that, the Cabinet Secretary, while undertaking functions such as those set out in Section 36(4) of the Land Act[7], is to take into consideration the advise of the Commission on the comprehensive programme for the registration of title to Land in Kenya.
Section 5(1)(d) of the Act, provides that the function of the commission is to conduct research related to land and the use of natural resources, and make recommendations to appropriate authorities.
Section 5(1)(e) of the Act, provides that the function of the commission is to initiate investigations, on its own initiative or on a complaint, into present or historical land injustices, and recommend appropriate redress. This function, guidelines and its procedure is well spelt out in Section 15 of the National Land Commission Act, 2012.
The Environment and Land Court at Thika in the matter of Gathoni Park Farm Limited v National Land Commission & 7 others[8] where the Petitioner contended that Section 15 of the National Land Commission Act was unconstitutional as that it is akin to land grabbing and that it infringes upon Article 40 of the Constitution, various provisions of the Land Registration Act and that it is ultra vires to Section 7 of the Limitation of Actions Act. The court found that given that investigations of historical injustices is one of the mandate of the National Land Commission, then the said contention is farfetched as the said Section defines what historical injustices is. Further the said Section mandates the Commission to exercise due diligence and conduct its hearings with the rules and principles of natural justice in place. Further the Commission has also been empowered to investigate issues that have been presented before it.
As to the petitioner’s contention that the said Section is contrary to the Limitation of Actions Act. The court noted that, it is not lost to the Court and must not be lost to the parties therein the reasons as to why the Constitution of Kenya provided for settling of historical injustices with regards to land. The said Section 15 of the National Land Commission actually acknowledges that there exists Section 7 of the Limitation of Actions Act. However due to the unique situation, the said section has placed disputes that fall within the said limitation as those that can be considered as historical injustices. Therefore, the Court found that Section 15 of the National Land Commission Act was enacted in accordance with Article 67 of the Constitution. Further the said Section has provided for guiding principles to the National Land Commission that will enable the Commission efficiently and effectively carry out its mandate and therefore, it cannot be said that it provides for arbitrary deprivation of the right to property. Further, the Court found that the said Section was not unconstitutional and the Petitioner’s prayer that the said Section be declared so was not merited and the same was dismissed entirely.
Section 5(1)(f) of the Act, provides that the function of the commission is to encourage the application of traditional dispute resolution mechanisms in land conflicts. This is a significant provision considering that land conflicts form the bulk of natural resource conflicts reported in the country, and the land issue is an emotive one.[9] However, it’s noteworthy that considering the diversity of Traditional Dispute Resolution mechanisms based on the different communities as well as the informality that comes with it, the enforcement of their outcomes is going to prove difficult. This is also likely to be complicated by the non-binding nature of these mechanisms such as mediation. For example, in the matter of Sahara Ahmed Hillow (Suing as administrator ad litem of the Estate of the late Ahmed Hillow Osman (Deceased) v Mohamed Hassan Jillo & 2 others[10] the ELC Court at Garissa was called upon by the defendant/applicant to determine an application seeking orders that the proceedings be stayed and that the dispute be referred to the local community elders for resolution. The Court observed that, ‘Under Article 159 (2) (c ) the courts and tribunals are to ensure that there is promotion of Alternative Dispute Resolution mechanism, mediation reconciliation, arbitration and traditional dispute resolution as a means of bringing cohesion and co-existence amongst the people. However, parties have to consent and be willing to be bound by the decision of the decision makers. In this case, the parties had initially agreed to refer the dispute to a panel of elders but the plaintiff later abandoned the process and elected to bring the dispute for resolution to this court’.
The formal recognition of traditional dispute resolution mechanisms in the Draft ADR Bill, 2019 is commendable as these mechanisms have often faced challenges in their application as they mostly depend on particular and differing customs of the different communities. Having a formal basis for their application as envisaged in the Constitution is thus to be lauded. However, there is a need to move beyond the formality of the proposed Bill to come up with procedures that can actually work. This is especially important in the application of traditional dispute resolution mechanisms in land conflicts (Art. 67) as well as dealing with the intercommunity and intra community conflicts that are mostly natural resource based.[11]
Section 5(1)(g) of the Act, provides that the function of the commission is to assess tax on land and premiums on immovable property in any area designated by law. This is also one of the issues that came up in the Advisory opinion sought by the commission at the Supreme Court of Kenya. The issues raised by the applicant as to this function were;
(i) Should the Ministry relinquish the land-tax function, roles, records and powers to the NLC; and if so, by what date?
(ii) Should the Ministry account for, and remit to the NLC the rent (annual ground rent and stand premium), royalty and payments under any lease or licence that the Ministry has collected, as well as the records for such collection since the 27th February, 2013 and if so, by what date?
(iii) Are the monies received, earned, or accruing to the NLC, and the balances at the close of each financial year, in the nature of monies excluded from payment into the Consolidated Fund under Article 206(1)(a) of the Constitution?
(iv) Is the NLC entitled under Article 206(1)(b) of the Constitution to retain monies received, earned, or accruing to the NLC, and the balances at the close of each financial year, for the purpose of defraying the expenses of the Commission?
(v) Has the Ministry, in failing to account for and to remit to the NLC the funds due to the Commission under Section 26(1)(a) of the NLC Act, been in breach of the terms of the Constitution?
Section 5(1)(g) of the Act, provides that the function of the commission is to monitor and have oversight responsibilities over land use planning throughout the country.
Pursuant to Article 67(3) of the Constitution, in addition to the foregoing functions, under Section 5(2)(a) of the Act, the Commission on behalf of, and with the consent of the national and county governments, will alienate public land. The Land Act[12] defined alienation as the sale or other disposal of rights to land, while the NLC Act conferred the power of alienation of public land upon the Commission. The power of alienation of public land was one of the ways through which the NLC administered such land. The Supreme Court of Kenya in its Advisory Opinion found that the requirement of consent to such a transaction, from the National or County Government, was certainly a check-and-balance relationship between the two State organs.
Section 5(2)(b) of the Act, provides that the Commission should monitor the registration of all rights and interests in land. The Commission 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 lays with the National Government, and the Ministry had the authority to issue land title on behalf of the said Government.
Section 5(2)(c) of the Act, provides that the Commission should ensure that public land under the management of the designated state agencies is sustainably managed for the intended purposes. The National Land Commission Strategic Plan 2021-2026[13] identified poor and unsustainable land use practices both in urban and rural areas as a challenge that impedes sustainable Administration and Management of land. This underlined the fact that the commission is cognizant of its role as to sustainable management of public land.
Section 5(2)(c) of the Act, provides that the Commission may develop and maintain an effective land information system for the management of public land. The National Land Commission vide Gazette Notice No. 6916 gazetted The National Land Information Management System Standards and Guidelines[14] to facilitate actualization of its mandate. The National Land Commission established a functional GIS lab to support Public Land Inventory (PLI) & Public Land Information System (PLIS) in tandem with its mandate under Section 5(2)(c) of the National Land Act.[15]
Section 14(1) of the Act, provides that the Commission shall review all grants or dispositions of public land to establish their propriety or legality. Section 14 (2-9) is instructive as to procedure to be followed when undertaking this mandate. The jurisdiction of the National Land Commission was challenged under this section as to whether the National Land Commission had jurisdiction to revoke titles, grants or dispositions of land. Also, whether the National Land Commission had jurisdiction to revoke titles to land even where it finds, after an inquiry, that such title was irregularly or illegally acquired in the case of Mwangi Stephen Muriithi v National Land Commission & 3 others[16]. The court also considered whether the National Land Commission could revoke title to land or it could only issue recommendations for the Registrar to revoke title to land in respect to Section 14(5) of the National Land Act. In this matter, the court found that The National Land Commission does not have jurisdiction to revoke Titles even though it was established that they were acquired unlawfully.
Section 15(1) of the Act, provides that the Commission shall receive, admit and investigate all historical land injustice complaints and recommend appropriate redress. Section 15 elaborates the function of the commission as illustrated under Section 5(1)(e) of the Act. Section 15(2-11) gives guidelines as to how this function is to take place.
CONCLUSION
Comprehensively, the Commission was operationalized by the National Land Commission Act of 2012. The National Land Commission (NLC) is a constitutional Commission established under Article 67 (1) and Chapter 15 of the Constitution of Kenya 2010, to amongst other things, manage and administer public land on behalf of the national and county governments, initiate investigations into present or historical land injustices and recommend appropriate redress, and monitor and have oversight responsibilities over land use planning throughout the country.
* LLB (Hons), MOI UNIVERSITY. Post-Graduate Diploma in Law, KENYA SCHOOL OF LAW.
[1] The Constitution of Kenya, 2010.
[2] National Land Commission Act, Act No. 5 of 2012.
[3] In the Matter of the National Land Commission, (2015), eKLR.
[4] Ibid note.1
[5] Ibid.
[6] Ibid.
[7] The Land Act, Act No. 6 of 2012.
[8] Gathoni Park Farm Limited v National Land Commission & 7 others [2019] eKLR
[9] Government of Kenya, Report on the Commission of Inquiry into Land Law Systems in Kenya on Principles of a National Land Policy Framework, Constitutional Position of Land and New Institutional Framework for Land Administration (Government Printer Nairobi, 2002).
[10] Sahara Ahmed Hillow (Suing as administrator ad litem of the Estate of the late Ahmed Hillow Osman (Deceased) v Mohamed Hassan Jillo & 2 others [2018] eKLR, Environment and Land Case 30 of 2017 (Formerly 77 of 2017, Embu)
[11] Kariuki Mungai, phD, Effective Application of Traditional Dispute Resolution Mechanisms in the Management of Land Conflicts in Kenya: Challenges and Prospects, 2019. Available at http://kmco.co.ke/wp-content/uploads/2019/10/Effective-Application-of-Traditional-Dispute-Resolution-Mechanisms-in-Management-of-Land-Conflicts-in-Kenya-Challenges-and-Prospects-October-2019-5.pdf [Accessed on 22/02/2022]
[12] Ibid n.7
[13] National Land Commission, Strategic Plan 2021 – 2026, Available at https://www.landcommission.go.ke/media/erp/upload/nlc_strategic_plan._2.pdf [Accessed on 22/02/2022]
[14] Kenya Government Gazette, Gazette No. 103 2016-09-02, Notice No. 6916.
[15] Ibid n.15.
[16] Mwangi Stephen Muriithi v National Land Commission & 3 others, High Court at Nairobi, Petition 100 of 2017.
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