Media statement by the land sector non-state actors in Kenya

Joint Statement

Reference is made to the recent statement made by President William Ruto on 21st of May, 2023 at a public prayer rally in Isiolo County regarding the role of National Land Commission (NLC) for Compulsory Acquisition of Land for mega infrastructural development projects. In his statement, the President is quoted indicating that it his intention and that of his government to have the role of valuation reverted back to the Ministry of Lands and Physical Planning. We therefore wish to point out the following:

1. We bring to the attention of the public and the President that the current framework for Land Governance in Kenya has been developed following a protracted painful reform process which sought to address the historical land injustices and land questions arising from Political interferences, economic challenges and complex unjust legal systems. The end result of this process was the Constitution of Kenya 2010; The Land Laws (Statutes), The Regulations, The Sessional Papers on Land Policy.
2. We further wish to remind the public and the President that, before the Land Reforms, land governance processes which were presided over by the then Ministry of Lands were riddled by rampant land grabbing, severe land insecurity, poor accountability, inequalities in land allocation, rampant corruption, landlessness and poor land use planning. Compulsory land acquisition procedures domiciled in the Ministry of Lands during that time were either abused or not adhered to leading to irregular acquisitions, delayed or denied compensation and numerous lengthy court cases.
3. We further remind the public that it is during that era that the powers of the president, the Commissioner of Lands and the Local authorities were grossly abused to the detriment of Citizens Land Rights. The net effect was mismanagement of the land governance. It a history which we do not wish to go back to.
4. Subject to this history, it was the wisdom of Kenyans that the role of Compulsory Land Acquisition (including valuation) be placed under an independent commission here in referred to as the National Land Commission.

5. We wish to point out that, the consistent attack to the National Land Commission as an independent commission is an affront to the Constitution and seek to delegitimize the role of the National Land Commission and its independence for short term selfish gains.

1. We wish to urge members of the public to treat with utmost contempt and ignore the supposed unilateral declaration that the functions of Valuation for Land Acquisition purposes have been transferred from the National Land Commission which is an Independent Constitutional Commission without any public participation and disregard to the Constitutional dictates and or legal process in policy making goes against the national values and principles of governance as provided for under Art 10 of the Constitution of Kenya 2010, which should be upheld by the President and the Presidency. This is a red flag.
2. This supposed move is an outright infringement of Article 40(3)(b)(c) which requires the state to make prompt payment in full, of just compensation to the person whose property is compulsorily acquired for public purpose. History has taught us that the Ministry of Lands and Physical Planning did not execute this function with the respect is so deserves.
3. The Presidents statement further disregards the provisions of the Land Act of 2012, Part VIII S.112 and 113 which provides for the role of the National Land Commission on valuation and compensation. It is public knowledge that the Executive through the line Ministry of Lands being the party acquiring, developing the land value index, carrying out valuation, budgeting, appointing the Land Acquisition Tribunal, paying compensation makes it highly conflicted in the process. It is a serious concern that the Ministry (Executive) seeks to acquire land, value it, appoint the land acquisition Tribunal to determine the complaints and implement the public works projects. That is akin to being the coach, the manager, the player and the referee in a match.
4. The above creates scenario where the chances of a private Land owner, receiving prompt payment in full of first compensation will be almost nil. We urge Kenyans’ to be vigilant. The sustained bastardisation of the National Land Commission as an institution is akin to killing the what Kenyans fought for in land reforms in Kenya. The neutrality of the National Land Commission being and independent institution is more neutral than the Ministry of Lands which is at the whims of the Executive.

10.We highly suspect that there are intentions to amend the law to suit this narrative. Kenyans’ be vigilant.

We therefore demand that

1. The president and the state halt any unconstitutional moves aimed at transferring the valuation for compulsory acquisition to the MOLPHUD. That is an affront to the Constitution and the Land Laws.

2. We further wish to call upon the state to engage the constitutionally mandated institutions to investigate any alleged malpractice by any official in the National Land Commission or any other institution involved in managing the process of compulsory Land acquisition.

3. The Government should urgently establish the Land acquisition tribunal; Finalize the development of the Land value index as provided for under the Land Value (Amendments) Act, 2019

We conclude by saying that

1. Civil Society Organizations, private sector and professional bodies collectively referred to as Non-State Actors (NSA) have played a critical role in Land Reforms and management and continue to do so to date. NSA were instrumental in the development of National Land Policy and implementation 2009. In 2010 the promulgation of a new constitution and the subsequent land laws in the country.

2. The Land Sector Non-State Actors (LSNSA) recognizes the fundamental function of independent commissions these institutions were established from a history of balancing of power. Chapter Fifteen of the Constitution of Kenya 2010 establishes and spell the roles of the Commissions and Independent Offices in Art. 249 (1), (a), (b), (c), the role of these institutions is well stipulated and they include the protection of the sovereignty of the people, democratic principles and constitutionalism. We the LSNSA observe with deep concern the issues we hold to be of fundamental importance in the Statement by the Head of State the transfer of the task from the National Land Commission to the Ministry of Land.

3. We have observed that the statement shall have far reaching impacts to The Constitution, The Land Act and the National Land Commission Act. The commission draws constitutional powers under Art. 67 (2) which among other things is to advice the government. The process of evaluation of the merits, valuation of the value of the property and payment are processes which the Commission is guided on as a technical institution and where there are improprieties individuals then take responsibility for their acts.