On September 17, 1997, a rather comical spectacle unfolded on the floor of Parliament which would shed light on some of the problems bedevilling land administration in the country.
Members of Parliament were protesting against the allocation of land belonging to Bungoma County Council to a private developer.
Quite helplessly, Mr Lotodo said: “We shall do what the gracious lady is saying, but she should know that we are dealing with a different ‘animal’ called the Commissioner of Lands, Mr Wilson Gachanja. He will not listen to anyone in this country!”
Well, Gachanja will perhaps go down as the most influential commissioner of lands Kenya has seen.
Everyone, with the possible exception of the President, was at his mercy, as far as land matters were concerned.
But, in a larger perspective, Mr Lotodo’s observation on Gachanja could as well have been an accurate summary of the powers of one of the most powerful offices in the land.
Following the ongoing demolitions of buildings next to vital government installations, the Sunday Nation sought the current Commissioner of Lands, Mr Zablon Mabea, in a bid to understand the role of his office in problems associated with land administration.
The 53-year-old commissioner is a soft spoken man, a fact that belies the powers his office wields.
Indeed, the commissioner and the President are the only two people allowed by law to give out land in the country.
In fact, the commissioner wields more clout than the Lands minister and the permanent secretary, who is the chief executive officer.
Under the old constitution, the commissioner had power to have portions of land in any town which are not required for public use to be subdivided into plots for residential or commercial purposes.
Critics note that the blatant misuse of these powers by the commissioner and the President are largely to blame for the mess that the country finds itself in in terms of land administration. Mr Mabea concedes to this fact.
“Some of my predecessors did not use the powers they had prudently for the public good. And, yes, some of the problems are traced back to their times,” he said.
But it would be erroneous to reduce the challenges facing the lands sector to individuals. Analysts agree that the problem lies more in the structures than the persons at the helm.
“The problems we are witnessing today are more of a failure of the institutions in place rather than the ill-will of those occupying the offices,” says Mr Ibrahim Mwathane, a director at the Land Development and Governance Institute.
For example, the law governing land issues is a colonial relic that has changed little.
Known as the Crown Land Ordinance, the laws were first crafted in 1902 and subsequently modified in 1915 and lastly in 1940s for the express aim of advancing the colonial economic enterprise.
The colonial governor had sole rights to grant plots in urban areas, in this case Nairobi, and agricultural areas to whoever he deemed fit on behalf of the king or queen of England.
But, despite the overriding powers of the governors, the colonial government maintained some form of transparency in land disposal and allocation.
Settlers acquired land through public auction. The government would advertise the sale of a particular piece of land and the highest bidder was awarded the land subject to certain conditions contained in the title deed.
But this system proved unpopular since the more affluent settlers formed cartels and won most of the land at the auctions.
In the 1940s, a new system came into being where land would be allocated through direct grants. The governor and commissioner of lands had direct say on who got the land.
A few cosmetic changes were made to the law, the most significant being replacing “governor” with “president.”
The rationale for giving the President such sweeping powers over land was a noble one in the beginning: it was to give him more legroom where direct allocation was in the public interest and where the normal procedures would have been cumbersome.
However, this objective gradually lost its relevance and was overtaken by the political expediency.
The power of the President to allocate land now “extended to every single plot in the country,” notes the Ndung’u Report commissioned by the Narc government in 2003 to look in to land malpractices.
“Land was no longer viewed as belonging to the people of Kenya in the sovereign and corporate entity; but as public space to be dished out to the ‘politically correct’ individuals for their personal enrichment,” the report states.
Once it became a tool of political rewards, cartels entered the fray. Open spaces became the target of anyone with ambition and who could flaunt the most tenuous links to State House.
Forgery became commonplace. When the President was not dishing out land to senior military officers, for example, crooks were forging his signature and that of other government officials to allocate themselves land.
According to those in the know, hi-tech machines were bought to create fictitious title deeds and other documents necessary for land processing. In short, a parallel system of land allocation came into being.
“It is quite possible today for people to subdivide land on paper, create title deeds and proceed to sell them without going to the ministry of lands,” says Mr Mwathane.
Thousands were duped into making illegal purchases of land, like that in Syokimau. There were multiple allocations of land.
The were suspended in regards to allocations. Speculators and agents became more powerful than the official system. And herein lies the problem.
“A good number of the documents that have purportedly come out of our offices through these cartels are actually forgeries,” Mr Mabea told the Sunday Nation.
To illustrate this point, he cites the case of a senior banker who recently lost millions of shillings trying to acquire prime land in downtown Nairobi.
The official was approached by well known land racketeers and offered a “good deal” to buy a plot in the city, a phrase that has become synonymous with short-cuts in land dealings.
“I advised him to be very cautious before committing any money and demand documents for us to verify for him,” the commissioner said.
A few weeks ago the official was back at Ardhi House with a title deed. Predictably, it was fake. But by that time, the official had paid Sh40 million of Sh240 million they had agreed on. And the racketeers vanished into thin air.
“The important thing about it is that the caution came from me, the commissioner. Now, if people cannot accept caution from me, then I honestly do not know who else they can get it from,” he said.
Mr Mabea says this particular story is emblematic of the problems that bedevil the land sector in the country: raw greed, an ignorant and gullible public and ruthless racketeers.
Although the law appears to lack checks on how the President may exercise his authority in regards to allocation of land, it is not entirely true.
The colonial system was based on the principle of “public interest”. The principle stipulates that whatever allocations the President makes are in the interest of the public. They are not meant to advance the economic gains of individuals.
And, although the current Act makes it mandatory for the commissioner to advertise public plots for sale in towns, the Ndung’u report found that this has not occurred in more than 50 years.
Worse still, government officials who had no powers to give out land purportedly allocated them to their friends.
“The district and provincial plot allocation committees became powers unto themselves, exercising powers to allocate public land on behalf of the President without regard to public interest. They were supposed to allocate land which had been advertised by the commissioner of lands in accordance with the relevant provisions of Government Lands Act,” states the Ndung’u report.
The upshot of this, it notes, is that “with the entry of these personalities in the allocation process, impunity thus set in complicating the problem further.”
And a new phrase and phenomenon, “land grabbing,” became the order of the day.
“The phrase signified the total breakdown of law and order in regard to land administration,” notes Mr Mwathane.
