Ndungu Land Commission

Last updated April 27, 2019

The Commission of Inquiry into the Illegal/Irregular Allocation of Public Land, which came to be known as the "Ndungu Commission" after the name of its Chair, Paul Ndungu, was a Kenya Government Commission established in 2003. The Commission was formulated to inquire into the extra-legal allocation of public lands and lands reserved for public purpose to private individuals and corporate entities, and to provide recommendations to the Government for the restoration of those lands to their original purpose or other appropriate solutions.^[1]

Kenya, officially the Republic of Kenya, is a country in Africa with 47 semiautonomous counties governed by elected governors. At 580,367 square kilometres (224,081 sq mi), Kenya is the world's 48th largest country by total area. With a population of more than 52.2 million people, Kenya is the 27th most populous country. Kenya's capital and largest city is Nairobi while its oldest city and first capital is the coastal city of Mombasa. Kisumu City is the third largest city and a critical inland port at Lake Victoria. Other important urban centres include Nakuru and Eldoret.

In all modern states, a portion of land is held by central or local governments. This is called public land. The system of tenure of public land, and the terminology used, varies between countries. The following examples illustrate some of the range.

Membership

The Commission as appointed by President Mwai Kibaki had representatives from civil society, academia, the legal profession, and civil service:^[2]

Mwai Kibaki, C.G.H. is a Kenyan politician who was the third President of Kenya, serving from December 2002 until April 2013.

Paul Ndiritu Ndungu - (Chairman)
Michael Aronson - (Vice-chairman)
Ahmed Ahmed Abdallah
Davinder Lamba
Ann Kirima
Ishan Kapila
Odenda Lumumba
Winston O. Ayoki
Nancy Mukunya
Peter Koech
John Githongo - Permanent Secretary, Office of the President, responsible for Governance & Ethics
Kiriinya Mukiira - Permanent Secretary, Ministry of Lands and Settlement
Rachel Arungah - Permanent Secretary, Ministry of Environment, Natural Resources and Wildlife
Erastus Kabutu Mwongera - Permanent Secretary, Ministry of Roads, Public Works and Housing
Zachary Onyancha Ogongo - Permanent Secretary, Ministry of Local Government
Lawrence Agayi Orowe - Designated representative of the Permanent Secretary, Office of the President, responsible for Governance & Ethics
Nelson Waruinge Kimani - Designated representative of the Permanent Secretary, Ministry of Lands and Settlement
David K. Mbugua - Designated representative of the Permanent Secretary, Ministry of Environment, Natural Resources and Wildlife
Musa Kibiti Rintari - Designated representative of the Permanent Secretary, Ministry of Roads, Public Works and Housing
Muli Nyamai Malombe - Designated representative of the Permanent Secretary, Ministry of Local Government

The following served as Joint Secretaries:

Victoria Kattambo
Smokin Wanjala

The Counsel to the Commission was:

Wanyiri Kihoro

Summary of findings

Upon detailed review of land-related laws in Kenya, official reports concerning the land issue by government and non-government bodies, documents and records submitted by ministries and public bodies, and reports and memoranda by professional associations and members of the public, the Commission categorised its findings^[3] according to three broad types of public land:

I. Urban, State & Ministries’ Land

The Commission indicated that numerous methods were used to grab land falling under this category.

Widespread abuse of presidential discretion with regard to unalienated urban land, with ‘in many instances’ (both) Presidents Jomo Kenyatta and Daniel arap Moi making grants to land to individuals without any consideration to the public interest, for political reasons, and without proper pursuit of legal procedures, whilst there was also extensive illegal allocation by both former presidents of alienated land (viz, land which they did not have legal power to allocate).
Various Commissioners of Lands had made direct grants of government land without any authority from the President. Forged letters and documents were used to allocate land in numerous instances, with many records at the Ministry of Lands and Settlements having been deliberately destroyed. Often, land was sold by grantees without any adherence to the conditions laid down by letters of allotment, and many illegal titles to public land were transferred to third parties, often State Corporations, for massive sums of money.
Land compulsorily acquired, like that for the proposed Nairobi by-pass, was illegally allocated to individuals and companies, and then often sold on to third parties, whilst land reserved for public purposes such as schools, playgrounds, and hospitals etc. had been sold off in blatant disregard of the law by both the Commissioner of Lands and numerous local authorities.

Jomo Kenyatta was a Kenyan anti-colonial activist and politician who governed Kenya as its Prime Minister from 1963 to 1964 and then as its first President from 1964 to his death in 1978. He was the country's first indigenous head of government and played a significant role in the transformation of Kenya from a colony of the British Empire into an independent republic. Ideologically an African nationalist and conservative, he led the Kenya African National Union (KANU) party from 1961 until his death.

Alienated land is that which has been acquired from customary landowners by the government, either for its own use or for private development requiring a mortgage or other forms of guarantees. The term refers historically to the appropriation of customary land by European colonial powers. Land was alienated in all colonies.

In summary, the Commission found that the powers vested in the President had been grossly abused by both former Presidents and successive Commissioners of Lands and their deputies over the years, under both previous regimes; there had been ‘unbridled plunder’ (Commission: p. 81) of public land by local Councillors and officials; illegal transactions were hugely facilitated by the extensive complicity of professionals (lawyers, surveyors, valuers, physical planners, engineers, architects, land registrars, estate agents and bankers) in the land and property market; and most high profile allocations of public land were made to companies incorporated specifically for that purpose, largely to shield the directors and shareholders of such entities from easy public view. Finally, and the Commission found that ‘most illegal allocations of public land took place before or soon after the multiparty general elections of 1992, 1997 and 2002’, reinforcing its view that public land was allocated ‘as political reward or patronage’ (p. 83).

II. Settlement Schemes & Trust Lands

Trust land, including settlement scheme land purchased by government with international loans from European settlers for settlement by African smallholders or carved out of Trust land, has been similarly abused. The Commission found that, overall, whilst the establishment of settlement schemes and their subsequent allocation in the early years of independence generally conformed to the original objectives, in latter years there was extensive deviation, with much land having been allocated for purposes other than settlement and agricultural production.
Allocation of plots, formally conducted under Settlement Fund Trustees, devolves in practice upon District Plot Allocation Committees composed of the District Commissioner, District Settlement Officer, District Agricultural Officer, the area MP, the Chairman of the relevant County Council and the Clerk to Council. Settlement Fund Trustees appear to lack any supervisory powers over these committees, with the result that the local committees have been almost wholly unaccountable. The result has been predictable, with the interests of the landless having been ignored in favour of those of ‘District officials, their relatives, Members of Parliament, Councillors and prominent politicians from the area, Ministry of Lands and Settlement officials, other civil servants and … so called ‘politically correct’ individuals’ (p. 127). And whilst the majority of deserving allottees received smaller plots, the undeserving often received large ones. Meanwhile, farms belonging to the Agricultural Development Corporation, designed to provide the needs of the agricultural industry by developing high quality seeds or livestock or undertaking research etc., have been illegally established as settlement schemes and subsequently illegally allocated to individuals and companies, often as political reward or patronage (Commission: pp. 134–5).
Extensive tracts of Trust Land have been illegally allocated, with County Councillors having been the main beneficiaries. Whilst the Commission was able to provide some glaring examples of such abuse, it was hampered in its work by the failure or refusal of councils to submit relevant information (p. 140). It concludes:

Instead of playing their role as custodians of public resources including land, county and municipal councils have posed the greatest danger to these resources … the most pronounced land grabbers in these areas were the Councillors them-selves…The corruption within central government has been replicated at the local level through the activities and omissions of county and municipal councillors (Commission: p.147).

III. Forestlands, National Parks, Game Reserves, Wetlands, Riparian Reserves & Protected Areas

Only 1.7% of the 3% of the country which was covered by gazetted forests at independence remained, most of the reduction having come about as a result of illegal and irregular excisions, usually made without any reference to scientific considerations or under the guise of settlement schemes. The beneficiaries of such excisions include schools (often private), government institutions, and religious bodies as well as private individuals and companies.
Land around riparian sites have been illegally allocated by the Kenya Wildlife Service, with many of the allocations – such as those made since 1995 to some 14 beneficiaries around Lake Naivasha – being known to have severely affected the ecosystem. Fortunately, the Commission finds that the National Parks and Reserves have been more effectively protected, yet nonetheless it provides some ten cases of illegal allocations within KWS protected areas, and 15 cases in KWS alienated plots beside them.
The Commission recorded 26 instances of illegal allocations of land from Nature Reserves falling under the domain of local authorities, whilst there are some 8 known cases of land set aside for national museums and monuments having been illegally allocated to private individuals. The latter include the allocation of Kongo Mosque site at Kwale to former President Moi in 1986. It comes as no surprise that land belonging to the military, and even land portions belonging to State Houses and lodges, have also been sold off.

Through this catalog of corruption, the Commission concluded that there was systematic and widespread abuse of public trust by public officials, to the extent that many officials failed to see anything morally wrong with their allocating land illegally. T*here were many centers of power which were responsible for the illegal allocation of land, yet the Commission makes it clear that the lead in public plunder has consistently been given from the top. Kenya, it concludes, has fallen into a state of ‘moral decadence’, this epitomized no more clearly than by the extensive participation in land grabbing by churches, mosques, temples and other faith institutions, these including such venerable institutions as the Catholic Archdiocese of Nairobi, the Church Commission of Kenya, and the Anglican Church.

Land grabbing is the contentious issue of large-scale land acquisitions: the buying or leasing of large pieces of land by domestic and transnational companies, governments, and individuals. While used broadly throughout history, land grabbing as used in the 21st century primarily refers to large-scale land acquisitions following the 2007–08 world food price crisis. Obtaining water resources is usually critical to the land acquisitions, so it has also led to an associated trend of water grabbing. By prompting food security fears within the developed world and new found economic opportunities for agricultural investors, the food price crisis caused a dramatic spike in large-scale agricultural investments, primarily foreign, in the Global South for the purpose of industrial food and biofuels production. Although hailed by investors, economists and some developing countries as a new pathway towards agricultural development, investment in land in the 21st century has been criticized by some non-governmental organizations and commentators as having a negative impact on local communities. International law is implicated when attempting to regulate these transactions.

Summary of recommendations

The Commission made a series of recommendations^[4] for each of the three main categories as outlined above in the Summary of Findings, as well as a number of recommendation which apply to across the board.

All allocations of public utility land are illegal and should be nullified, and such lands should be repossessed and restored to the purpose for which they were intended;
Where land has been reserved for a public purpose, no consent to an application for change of user with respect to that land shall be granted unless the proposed change of user is in the public interest;
All public officials/persons/professionals who facilitated in or participated in the illegal allocation of public land should be investigated and prosecuted in accordance with the applicable penal law;
All lands reserved for the use or purposes of a Ministry, Department or any other government institutions which have since been illegally allocated to individuals or companies should be repossessed and restored to their original purpose, and titles acquired pursuant to the illegal allocations should be revoked;
All land allocations in settlement schemes which were made to people who were at the time public officers, Members of Parliament, area Councillors, political operatives, and other undeserving people, at the expense of the landless and contrary to established policy and procedures, should be revoked;
The Government should prepare a policy setting out the objectives and guidelines for the establishment, allocation and management of settlement schemes in the country;
All allocations of Trust Lands to individuals and companies contrary to the provisions of the Constitution, Trust Land Act and the Land Adjudication Act should be revoked;
The entire management structure of Trust Land should be re-examined and reformed;
All excisions of forestland which were made contrary to the provisions of the Forest Act and the Government Lands Act should be cancelled, and any titles revoked; the affected forestlands should be repossessed and restored to their original purpose;
All Gazetted forest boundaries should be resurveyed for validation and rectification;
All allocations of land within and around riparian areas and other wetlands should be cancelled and titles thereto revoked without exception;
The Government should undertake the survey and protection of riparian sites and other wetlands, and consequently stop the current human activity encroaching the following areas: Lake Naivasha, Lake Olbollosat, Lake Victoria, Lake Elementaita, Omo Delta on Lake Turkana, the Tana River Delta, and Indian Ocean coastline 100 feet inland from the high water mark.
Establishment of a Land Titles Tribunal to embark upon the process of revocation and rectification of titiles in the country;
Computerization of Land Records which should be made available to the public for inspection;
Insurance of Land Titles to eliminate risk and uncertainty of dealing with forged titles;
Establishment of a Land Commission vested with powers of allocating public land and supervising the management and allocation of Trust Land, while revoking the powers of the President and Commissioner of Lands;
Inventory of Public Land, since there is no complete record or register of public land in the country;
Harmonization of Land Legislation - at present there are more than 40 different statutes dealing with aspects of land administration, ownership and use;
Upgrading Informal Settlements in urban centres by establishing decent and affordable housing schemes;
Establishment of a Land Division of the High Court which would exclusively deal with land cases.

Cost

In response to a query by Joseph Lekuton, on 16 December 2008, Orwa Ojode the Assistant Minister for Provincial Administration and Internal Security confirmed to Parliament that the Commission had cost the Kenya Government Ksh 77,812,169.^[5]

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References

↑ "A dozen reports on land later, but no remedy". Standardmedia.co.ke. Retrieved 18 October 2017.
↑ "Archived copy". Archived from the original on 2013-09-28. Retrieved 2013-01-08.
↑ Southall, Roger, in: Review of African Political Economy, 103, March 2005, pp.142-51.
↑ Government of Kenya, Report of the Commission of Inquiry into the Illegal/Irregular Allocation of Public Land, June 2004
↑ Kenya National Assembly Official Record (Hansard). 16 December 2008. p. 4107. Retrieved 8 January 2013.

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[1] "A dozen reports on land later, but no remedy". Standardmedia.co.ke. Retrieved 18 October 2017.

[2] "Archived copy". Archived from the original on 2013-09-28. Retrieved 2013-01-08.

[3] Southall, Roger, in: Review of African Political Economy, 103, March 2005, pp.142-51.

[4] Government of Kenya, Report of the Commission of Inquiry into the Illegal/Irregular Allocation of Public Land, June 2004

[Kenya_National_Assembly_Official_Record_(Hansard)-5] Kenya National Assembly Official Record (Hansard). 16 December 2008. p. 4107. Retrieved 8 January 2013.