Law made relations between ministry and land commission quite difficult

The National Land Commission was established to help manage public land on behalf of the national and county governments.

Besides the mandate spelled out in Article 67 of the Constitution, extra powers for the commission were bundled in through the National Land Commission Act and the Land Act.

These extra powers are tempered by some provisions of the Land Registration Act, which accords the Lands Cabinet Secretary and the Public Service Commission powers to establish land registries.

This effectively puts these critical “engines” of our land administration processes at national and county levels under the Ministry of Lands.
This law gives the commission peripheral roles in matters of land registries too. Little wonder we are now being treated to endless arguments on matters involving title deeds and who should sign them.

Stakeholders are not entirely surprised by the confusion. Following the promulgation of the Constitution in August 2010, the formulation of land laws was delayed, leaving little time for good background research and review.

These laws were rushed through Parliament in early 2012, just to beat the constitutional timelines. Due to their complexity, Parliament had to extend the timeline.

There were challenges over process too. To stop the furious turf wars in the short term, the laws must be amended to sort out any inherent conflicts.

But in the medium and long term, Kenyans must devise an appropriate model of a Land Commission. Arrangements in which the President and the Commissioner of Lands held sway over the allocation of public land were routinely abused.

While establishing the commission, it was assumed that professionalism would govern the allocation and management of public land to support national and local priorities. This is why the commission was anchored in the Constitution so that it could have reasonable latitude to make decisions.

But looking at events in the last one year of the commission’s existence, there are numerous emerging concerns. Has the commission worked in the best interests of the country so far?

Has it demonstrated high-level leadership? Is it able to carefully navigate Kenya’s rough political environment? Would it have done better under political leadership?

Can it cope with the vast mandate the Constitution and the laws have bestowed on it? Is it likely to do better or diminish in stature with time under the current arrangements? Is it quite feasible to totally delink the allocation and management of public land, a key resource with political implications, from government?

These are hard questions.
Uganda’s land commission is currently chaired by a former Minister of Lands. I haven’t interrogated the reasons. But knowing that such a chair fully understands the sway land holds in the country’s politics,

I guess this was Uganda’s way of ensuring that the commission does not attempt to operate outside the ruling government’s priorities and interests.
Ghana’s journey with land commissions dates back to 1969.

A land Commission established under the 1969 constitution was chaired by the Lands Minister, who, in effect, subordinated its agenda and priorities to those of the day’s government.

To address this, Ghana’s 1979 Constitution provided that the ‘Commission chairman must not be a minister or deputy minister of state’. This was written into their Land Commission Act.

But it created institutional problems since the Department of Lands, which held the records was left answerable to the minister, leaving the commission with difficulties in accessing the very land records it needed for effective operations.

Ghana’s 1992 constitution, which informed the Land Commission Act of 1994, redressed this by putting the Lands Department under the Land Commission. But to put the key land institutions under one roof, Ghana enacted a new Land Commission Act 2008 through which the functions of the commission, valuation board, registration of title and survey department were merged.

But the chairperson and members of the commission are appointed by the President and of course, these appointees aren’t without express political and party affiliations. Ghana’s Land Commission would, therefore, find it difficult to be politically independent and neutral.

Kenyan authorities, too, need to rethink the issue in view of the endless Commission-State feuds, which have slowed down land reforms and undermined service delivery in the last one year.

Mr Mwathane is a consultant in surveying and land information management, and has participated in the national and continental land policy processes.([email protected])