Click here to download a list of Parliament’s schedule of activities related to the implementation of the constitution.   Handy reference.

A few weeks ago, we linked to the full Akiwumi report, which provides full details about the proposals to raise MP’s salaries and benefits.

Now that the referendum dust has settled, we think it’s important to shift focus back to critical issues related to our MPs and the Akiwumi report is one of them.   This post is a focus on some key points in the report that stand out to us .

• There were only 295 oral submissions received by the commission and 70 written ones.   For a nation that has been up in arms regarding the Akiwumi Commission’s proposals, one has to wonder why not more of us voiced our opinions before the Commission when we had an opportunity to?   As we often say, political accountability also includes us as Kenyan voters (notable absence from most civil society groups, and labour unions as well)
• Some of the benefits recommended include:
  • Kshs 10,000,000 in patient cover.
  • Maternity of Kshs 500,000 per family.
  • Personal accident cover of Kshs 10,622,000 per MP
  • “decent burials” for MPs
  • Car allowance raised to Kshs 95,000 per month
  • Severance allowance of Kshs 300,000 for each year of service
• Retirement benefits for Prime Minister and VP:
  • one vehicle of their choice not exceeding 1800cc
  • one four-wheel drive of their choice not exceeding 3000cc
  • fuel allowance of Kshs 50,000 per month
  • vehicles will be maintained at govt’s cost and be replaced every 4 years.
  • full medical cover for self, spouse and children up to 18 years to include overseas treatment.
  • a PA, housekeeper, cook, gardener, two security officers, one secretary, one cleaner, and two drivers
  • diplomatic passports for them and spouses
• The Parliamentary Service Commission (PSC) which aids the MPs in their legislative work has a staff of 941.  It is connected to all provincial headquarters via the internet but only 50% of all districts.
• The PSC goes through 700 reams of paper per week and its research unit has only 10 staffers.
• The Constituency Office act allows each MP to have a constituency office, a constituency manager and other staff.   Each MP receives Kshs 2.4 million per year to support the office.
• Several presentations noted on the need to educate constituents about the roles and responsibilities of both MPs and constituents.
• Report recommends a performance index for MPs – what are they supposed to do? do they do it? are constituents aware of what they are doing / not doing?
• The tribunal found that “it would be dishonorable to monitor whether MPs have been visiting their constituencies.”
• Mileage claims submitted by MPs are currently not verified (e.g. in Australia odometers are checked weekly).
• MPs claim a sitting allowance not just for committees but also for attending Parliament (Kshs 5,000 per sitting)
• 29 MPs reflected a net salary payment  of Kshs 10,000 and below, following deductions for various loans etc.  81 MPs reflected a net payment of Kshs 100,000 and less.   Clearly some MPs are over-committed.
• Total MP salary at independence in 1963 was kshs 860, current salary including allowances kshs 851,000 per month.
• Current transport allowance of Kshs 366,000 was never legally approved.

Mzalendo will be running a series of articles called Katiba Watch, which will be focused on the role of the legislature in enacting the new constitution.

When is the new constitution “effective”?

• The effective date for the implementation is defined as either The date on which the President signs the new Constitution into law; OR 14 days after the date on which the Referendum results appear in the Kenya Gazette.

What will be the impact of the effective date?

• All local authorities continue to exist, subject to any law that will be enacted
• All new Government appointments carried out in accordance with the new Constitution – with Parliamentary approval and proceedings held in public.
• All freehold titles with foreign owners become leasehold titles with the Republic of Kenya as owner
• Land title of any foreigner holding a lease of 999 years reduces to 99 years
• All public officials who took an oath of office must immediately re-take the oath of allegiance – this time to the new Constitution. Includes the President, Cabinet, Speaker of Parliament, MPs, Judges and Senior Police.
• All cases in court continue
• All government obligations continue
• The Provincial Administration continues until it is restructured once the county governments are in place

by Samuel Marete

I write on the morning of polling day, having just cast my vote. It is just as well that I am writing my conclusions on the matter after having voted, for I am sure my conclusion has changed.

The role of the campaigns

One thing that is clear (in hindsight) is that next time such important decisions are to be made, the IIEC (or perhaps the future IEBC) should endeavour to provide as apolitical an atmosphere as possible. It is my firm belief that politicians have done more harm than good as regards the process. Just a couple of examples:

1. The Prime Minister, Hon. Raila Odinga, told people at the Coast that they will be able to elect their chiefs under the new constitution. Believe it or not, chiefs are not so much as mentioned in the entire document (chiefly because they are part of the Provincial Administration, which has no place in the new Constitution and will be phased out in 5 years, notwithstanding politicians’ assurances).
2. The Minister for Higher Education, Hon. William Ruto, told people in Kiambu that it is not right for Kiambu with a high population to have the same number of senators as another county with a lower population. Here he very conveniently forgot to mention that the other house of Parliament, the National Assembly, through the population quota system, will have precisely this manner of representation. Given that the bulk of legislative power (and I mean the bulk) resides in the National Assembly, densely populated places like Kiambu stand to benefit massively from proportionate representation under the proposed Constitution. This was a lie of magnificent omission on Hon. Ruto’s part.

These smoke-and-mirror tactics have really not been very useful in delivering the truth of the Draft to Kenyans.

Outcome

1. Tribe: At the time of writing, “Yes” looks set for victory, if the polls are to be believed. We would be lying to ourselves if we did not admit that this is in part because a good number of “tribal chiefs” have come out in support of the draft. The unity of the Kikuyu and Luo vote alone (with each supporting of the President and the Prime Minister) will prove a significant factor. Hence we find ourselves confronted with the sad truth that the Draft may pass not so much because of its merits but because our leaders – leaders we have trusted to our detriment in the very recent past – have told us to vote for it. As a nation, we have not yet discovered that what President Kibaki/Hon. Odinga/Hon. Ruto tell us is often quite irrelevant, never more so than when what they are saying is false. Not everyone found themselves able to see beyond “Kibaki/Raila is wrong” or “Ruto is wrong” or “the church is right” when deciding what would inform their vote.
2. But I believe there is another factor underpinning the poll results. The consistent lead the “Yes” camp has had over the “No” camp reflects a universal desire among the citizens of this nation: it reflects our desire for change. It is a silent admission of what every Kenyan knows: that we are not on the right track. We often differ (generally along tribal lines) as to what the right track actually is. But that we are not on it seems clear to all. The same ingredients, to a lesser extent, were present in the 2002 election. Tribal unity gave strength to the common view that fundamental change was required. And this seems to be happening again.

Implementing the document

A Yes victory is not assured, but even that victory will be merely the beginning of a long, long road. To begin with, Parliament has a great deal of supporting legislation to pass. 30 major pieces of legislation need to be passed in the two years before the 2012 elections, to begin with. The Sixth Schedule provides for a 9-member Commission for the Implementation of the Constitution whose functions will be to monitor, facilitate and oversee the development of legislation and administrative procedures required to implement the Constitution. It will report to a Parliamentary Select Committee called the Constitutional Implementation Oversight Committee . However, the volume of legislation to be passed makes me suggest that these measures may not be enough; Government should consider mini committees, staffed by subject matter experts, who should prepare this supplementary legislation and present it to respective Ministers for review and subsequent tabling in Parliament. It is my view that Government may not have sufficient capacity to deliver an implementation of the Constitution true to the spirit of the original document within the deadlines set.

A further hurdle is that some of that legislation is in direct conflict with the interests of sitting MPs (e.g. recall of MPs, minimum and maximum land acreages).

There is also the matter of the National Land Commission and the other provisions regarding land. It is all very well and good for the Constitution to mandate the NLC to investigate historical land injustices. But who are we going to appoint to this Commission? Seeing that Luis Moreno-Ocampo is having to do our dirty work for us in The Hague, does this mean that we will have to invite the Justice Krieglers of this world to staff the Commission in an effort to maintain neutrality? Are we going to be honest enough to admit that land problems in the Rift Valley stem from less-than-honest Kikuyu land purchases and unfair allocations of land to Kikuyus during Kenyatta’s regime? Will we be willing to take an honest look at land clashes in the Coast and Mt. Elgon areas?

If the draft passes, we will need to have the attitude that we have merely arrived at the foot of the mountain, and that its peak, though now in sight, is still some way off.

Finally

I will confess that at the polling station this morning, I was yet undecided. The advantages of Yes were clear, but two issues were in stark relief in my mind:

1. The massive burden that the new Government structure will place upon the taxpayer, and
2. The ambiguities of the abortion clause.

While I stood there conversing with a close friend, a man came and asked us if we knew where he could cast his vote. We didn’t know, but we directed him to the clerks. I took a closer look at the man. His clothes were far from new. He had no doubt walked many a tired mile in his shoes, judging from the look of them. He himself seemed – not frail – just in less than robust health. His face showed little in the way of hope, to the extent that I wondered quite why it mattered so much to him that he should cast his vote. When the time came for a decision, I remembered him again, and I asked myself some questions. Which vote, “Yes” or “No”, would give that man and millions like him a fighting chance at better representation, at holding his leaders accountable for their actions, and at more efficient delivery of government services? Under which system, present or proposed future, would he and I be better able to fight against injustices perpetrated by a seemingly untouchable ruling elite? When I looked at it that way, things seemed clearer.

And so I voted Yes. A reluctant Yes. A Yes that struggled, and still struggles to believe; a Yes voted more in faith that a better future beckons than in sure knowledge that this will indeed be the case.

A Yes dragged out of me by hope that has precious little foundation in fact.

But a Yes, nonetheless.

A report by KHRC detailing the high and low points of the referendum campaign period, with a focus on the extent to which human rights and fundamental freedoms were respected and protected.

by Samuel Marete

In this article, we consider the following Commissions:

1. Kenya National Human Rights and Equality Commission
2. Independent Electoral and Boundaries Commission
3. Judicial Service Commission
4. National Police Service Commission
5. Parliamentary Service Commission
6. Public Service Commission
7. Salaries and Remuneration

The Kenya National Human Rights and Equality Commission (Article 59)

The functions of the KNHREC will be as follows:

1. To promote respect for human rights and develop a culture of human rights in the Republic;
2. To promote gender equality and equity generally and to coordinate and facilitate gender mainstreaming in national development;
3. To promote the protection, and observance of human rights in public and private institutions;
4. To monitor, investigate and report on the observance of human rights in all spheres of life in the Republic, including observance by the national security organs;
5. To receive and investigate complaints about alleged abuses of human rights and take steps to secure appropriate redress where human rights have been violated;
6. On its own initiative or on the basis of complaints, to investigate or research a matter in respect of human rights, and make recommendations to improve the functioning of State organs;
7. To act as the principal organ of the State in ensuring compliance with obligations under treaties and conventions relating to human rights;
8. To investigate any conduct in state affairs, or any act or omission in public administration in any sphere of government, that is alleged or suspected to be prejudicial or improper or to result in any impropriety or prejudice;
9. To investigate complaints of abuse of power, unfair treatment, manifest injustice or unlawful, oppressive, unfair or unresponsive official conduct;
10. To report on complaints investigated under paragraphs (8) and (9) and take remedial action; and
11. To perform any other functions prescribed by legislation.

By including the KNHREC in the Constitution, the COE hoped to entrench it in the country’s laws and provide civil society an avenue through which human rights abuses could be reported and investigated. However, the COE does not include the members and/or structure and function of the KENHREC in its provisions. This, presumably, will be done by supplementary Acts of Parliament.

The Independent Electoral and Boundaries Commission (Article 88)

To begin with, a person is not eligible for appointment as a member of the Commission if they:

1. Have, at any time within the preceding five years, held office, or stood for election as—
   1. a member of Parliament or of a county assembly; or
   2. a member of the governing body of a political party; or
   3. Hold any State office.

Further, a member of the Commission shall not hold another public office.

The Commission is responsible for conducting or supervising referenda and elections to any elective body or office established by this Constitution, and any other elections as prescribed by an Act of Parliament and, in particular, for—

1. The continuous registration of citizens as voters;
2. The regular revision of the voters’ roll;
3. The delimitation of constituencies and wards;
4. The regulation of the process by which parties nominate candidates for elections;
5. The settlement of electoral disputes, including disputes relating to or arising from nominations but excluding election petitions and disputes subsequent to the declaration of election results;
6. The registration of candidates for election;
7. Voter education;
8. The facilitation of the observation, monitoring and evaluation of elections;
9. The regulation of the amount of money that may be spent by or on behalf of a candidate or party in respect of any election;
10. The development of a code of conduct for candidates and parties contesting elections; and
11. The monitoring of compliance with legislation relating to nomination of candidates by parties.

Here at least, the COE saw fit to try and ensure that members of this Commission are independent. The role of the IEBC is even more crucial than it was in the previous elections. In addition to its already critical task of midwifing the electoral process, the task of drawing electoral boundaries (as we saw in the first article on the Legislature) now also falls under its ambit. Interestingly the IEBC is also meant to monitor the amount of money used by or on behalf of a candidate or party in respect of any election. Since we will expect fairness and objectivity from this Commission it is just as well that its members will (hopefully) be independent.

The Judicial Service Commission (Articles 168, 171, 172)

As we have already seen, all judges that the President appoints are appointed on the recommendations of the Judicial Service Commission. The members of this Commission are:

In addition to these duties, the JSC also serves the following purposes:

1. To initiate the removal of a judge either acting on its own motion, or on the petition of any person to the Judicial Service Commission;
2. To review and make recommendations on the conditions of service of—
   1. Judges and judicial officers, other than their remuneration; and
   2. The staff of the Judiciary;
   3. Appoint, receive complaints against, investigate and remove from office or otherwise discipline registrars, magistrates, other judicial officers and other staff of the Judiciary, in the manner prescribed by an Act of Parliament;
   4. Prepare and implement programmes for the continuing education and training of judges and judicial officers; and
   5. Advise the national government on improving the efficiency of the administration of justice.

The Commission is to consist of:

1. The Chief Justice, who shall be the chairperson of the Commission;
2. One Supreme Court judge elected by the judges of the Supreme Court;
3. One Court of Appeal judge elected by the judges of the Court of Appeal;
4. One High Court judge and one magistrate, one a woman and one a man, elected by the members of the association of judges and magistrates;
5. The Attorney-General;
6. Two advocates, one a woman and one a man, each of whom has at least fifteen years’ experience, elected by the members of the statutory body responsible for the professional regulation of advocates;
7. One person nominated by the Public Service Commission; and
8. One woman and one man to represent the public, not being lawyers, appointed by the President with the approval of the National Assembly.

These members, apart from the Chief Justice and the Attorney-General shall hold office for 5 years and be eligible to be nominated for one further term of 5 years.

It may be noted that the Commission consists of 5 judges, the Attorney-General, one person from the Public Service Commission and two members of the public. Being heavy with judges, the independence of the JSC when it comes to recommendations of the terms of service for judges may come into question in the future.

The National Police Service Commission (Articles 245, 246)

The Commission is to consist of:

1. The following persons, each appointed by the President—
   1. A person who is qualified to be appointed as a High Court Judge;
   2. Two retired senior police officers; and
   3. Three persons of integrity who have served the public with distinction;
   4. The Inspector-General of the National Police Service; and
   5. Both Deputy Inspectors-General of the National Police Service.

The Kenya Police Service and the Administration Police Service will each be headed by a Deputy Inspector-General, both of whom are to be appointed by the President in accordance with the recommendation of the National Police Service Commission. The other functions of the National Police Service Commission are:

1. To recruit and appoint persons to hold or act in offices in the service, confirm appointments, and determine promotions and transfers within the National Police Service;
2. Observing due process, to exercise disciplinary control over and remove persons holding or acting in offices within the Service; and
3. To perform any other functions prescribed by national legislation.

The Parliamentary Service Commission (Article 127)

The Parliamentary Service Commissions is to consist of:

1. The Speaker of the National Assembly, as chairperson;
2. A vice-chairperson elected by the Commission from the members appointed under paragraph (3) below;
3. Seven members appointed by Parliament from among its members of whom—
   1. Four shall be nominated equally from both Houses by the party or coalition of parties forming the national government, of whom at least two shall be women; and
   2. Three shall be nominated by the parties not forming the national government, at least one of whom shall be nominated from each House and at least one of whom shall be a woman; and
   3. One man and one woman appointed by Parliament from among persons who are experienced in public affairs, but are not members of Parliament.

The Parliamentary Service Commission shall be responsible for:

1. Providing services and facilities to ensure the efficient and effective functioning of Parliament;
2. Constituting offices in the parliamentary service, and appointing and supervising office holders;
3. Preparing annual estimates of expenditure of the parliamentary service and submitting them to the National Assembly for approval, and exercising budgetary control over the service;
4. Undertaking, singly or jointly with other relevant organisations, programmes to promote the ideals of parliamentary democracy; and
5. Performing other functions—
   1. Necessary for the well-being of the members and staff of Parliament; or
   2. Prescribed by national legislation.

Happily, the Parliamentary Service Commission will not be involved in deciding the terms of service for MPs. This task falls to the Salaries and Remuneration Commission (below). Further, if the PSC takes its role No. 4 seriously, it can provide a check within Parliament against political excesses for which Parliament is currently so famous.

Public Service Commission (Articles 233 -234)

The Public Service Commission is to consist of a chairperson, a vice chairperson and seven other members appointed by the President with the approval of the National Assembly. Further, the Commission shall have a secretary, who is the chief executive of the Commission, shall be appointed by the Commission itself for a 5-year term. The secretary is eligible for re-appointment once.

A person is not eligible for appointment as a member of the Commission if the person:

1. Has, at any time within the preceding five years, held office, or stood for election as—
   1. A member of Parliament or of a county assembly; or
   2. A member of the governing body of a political party; or
   3. Holds any State office;
   4. Is, or has at any time been, a candidate for election as a member of Parliament or of a county assembly; or
   5. Is, or has at any time been, the holder of an office in any political organisation that sponsors or otherwise supports, or has at any time sponsored or otherwise supported, a candidate for election as a Member of Parliament or of a county assembly.

However, if two general elections for Parliament have been held since the person ceased to be such a candidate or office holder, (3) and (4) above will not hold.

The Commission is to:

1. Subject to this Constitution and legislation––
   1. Establish and abolish offices in the public service; and
   2. Appoint persons to hold or act in those offices, and to confirm appointments;
   3. Exercise disciplinary control over and remove persons holding or acting in those offices;
   4. Promote the values and principles referred to in Articles 10 (national values and principles)and 232 (values and principles of public service) throughout the public service;
   5. Investigate, monitor and evaluate the organisation, administration and personnel practices of the public service;
   6. Ensure that the public service is efficient and effective;
   7. Develop human resources in the public service;
   8. Review and make recommendations to the national government in respect of conditions of service, code of conduct and qualifications of officers in the public service;
   9. Evaluate and report to the President and Parliament on the extent to which the national values and principles referred to in Articles 10 (national values and principles) and 232 (values and principles of public service) are complied with in the public service;
   10. Hear and determine appeals in respect of county governments’ public service; and
   11. Perform any other functions and exercise any other powers conferred by national legislation.

The powerful role of establishing and abolishing offices in the public service does not extend to:

1. State offices;
2. An office of high commissioner, ambassador or other diplomatic or consular representative of the Republic;
3. An office or position subject to:
   1. The Parliamentary Service Commission;
   2. The Judicial Service Commission;
   3. The Teachers Service Commission;
   4. The National Police Service Commission; or
   5. An office in the service of a county government, except as contemplated in function (9) above.

The independence of the Public Service Commission will prove crucial to the proper functioning of Government.

The Salaries and Remuneration Commission (Article 230)

Members of the Salaries and Remuneration Commission will be appointed by the President. They include:

1. A chairperson
2. One person each nominated by the following bodies from among persons who are not members or employees of those bodies—
   1. The Parliamentary Service Commission;
   2. The Public Service Commission;
   3. The Judicial Service Commission;
   4. The Teachers Service Commission;
   5. The National Police Service Commission;
   6. The Defence Council; and
   7. The Senate, on behalf of the county governments;
   8. One person each nominated by:
      1. An umbrella body representing trade unions;
      2. An umbrella body representing employers; and
      3. A joint forum of professional bodies as provided by legislation;
      4. One person each nominated by—
         1. The Cabinet Secretary responsible for finance; and
         2. The Attorney-General; and
         3. One person who has experience in the management of human resources in the public service, nominated by the Cabinet Secretary responsible for public service.

Commissioners under (4) and (5) will not have a vote.

The task of the Salaries and Remuneration Commission is very simple. It is to set and regularly review the remuneration and benefits of all State officers and to advise the national and county governments on the remuneration and benefits of all other public officers.

Constitutionally the Salaries and Remuneration is required to take the following principles into account when setting salaries:

1. The need to ensure that the total public compensation bill is fiscally sustainable;
2. The need to ensure that the public services are able to attract and retain the skills required to execute their functions;
3. The need to recognise productivity and performance; and
4. Transparency and fairness.

It is highly commendable that although each body whose salaries are to be set has a representative in the Commission, that representative is not a member of that Commission. The further addition of a representative chosen by the Teachers’ Service C omission, the Police Service Commission, trade union and employer representatives adds further independence to this body. I believe this is a well-constructed Commission and it should be able to do a better job than the now infamous Akiwumi Commission.

Next: Conclusion

by Samuel Marete

Land is one of the most emotive issues in Kenya at this time. We are obsessed (dangerously) with “who can live where”. The proposed Constitution recognizes this and has proposed several measures for the proper management of land as a resource in the country.

The protection of the right to own property (Article 40)

As we saw earlier, Article 40 allows any citizen to own property anywhere in Kenya. It further says that Parliament cannot enact a law to arbitrarily deprive a person of property. The State cannot deprive a person of property of any description unless that property has been legally acquired (by the State), or the deprivation is for a public purpose or in the public interest. Where the latter is the case, the person so deprived of property must be promptly and justly compensated in full, and the person so deprived is allowed to contest the deprivation in a court of law.

However, the right to own property in general, and the specific right to be entitled to the protection of that right by the State (and, by extension, compensation in the event of deprivation of property) does not extend to any property found to have been unlawfully acquired (Article 40 (6)).

This clause allows the State to be involved repossess illegally acquired land without compensating the owners of that land, although there is a caveat under Article 40 (4), which states that “Provision may be made for compensation to be paid to occupants in good faith of land acquired under clause (3) who may not hold title to the land.” This rather grey area will probably result in many cases being submitted to the Environment and Lands Court (see previous article).

Principles of land policy (Article 60)

Article 60 says that the principles listed below are to be implemented through a national land policy developed and reviewed regularly by the national government and through legislation.

1. Equitable access to land;
2. Security of land rights;
3. Sustainable and productive management of land resources;
4. Transparent and cost effective administration of land;
5. Sound conservation and protection of ecologically sensitive areas;
6. Elimination of gender discrimination in law, customs and practices related to land and property in land; and
7. Encouragement of communities to settle land disputes through recognised local community initiatives consistent with this Constitution.

Types of land (Article 61)

The proposed Constitution recognizes 3 types of land:

1. Public land
2. Community land
3. Private land

Public land (Article 62)

Public land is to be held in trust for the people of Kenya by either the national government or by counties, as follows:

From this it can be seen that the bulk of public land will fall to counties. All public land however, whether held in trust by the national government or by counties, is to be administered by the National Land Commission on behalf of either the national government or by the particular county in question.

Community land (Article 63)

Community land is to be held by communities identified on the basis of ethnicity, culture or similar community of interest. Community land is not to be disposed of or otherwise used except in terms of legislation specifying the nature and extent of the rights of members of each community individually and collectively (most likely as specified by an Act of Parliament). It consists of:

1. Land lawfully registered in the name of group representatives under the provisions of any law;
2. Land lawfully transferred to a specific community by any process of law;
3. Any other land declared to be community land by an Act of Parliament; and
4. Land that is—
   1. Lawfully held, managed or used by specific communities as community forests, grazing areas or shrines;
   2. Ancestral lands and lands traditionally occupied by hunter-gatherer communities; or
   3. Lawfully held as trust land by the county governments,

Private land (Article 64)

Private land consists of —

1. Registered land held by any person under any freehold tenure;
2. Land held by any person under leasehold tenure; and
3. Any other land declared private land under an Act of Parliament.

Holding of land by non-citizens (Article 65)

A person who is not a citizen may hold land on the basis of leasehold tenure only of a maximum tenure of 99. Any existing leases providing tenures exceeding 99 years are to be regarded as conferring 99 year leasehold interests only.

With respect to companies, companies are to be regarded as citizens only if that company is wholly owned by one or more citizens.

Any property held in trust is to be regarded as being held by a citizen only if all of the beneficial interest of that trust is held by persons who are citizens.

The National Land Commission (Article 67)

The functions of the National Land Commission are:

1. To manage public land on behalf of the national and county governments;
2. To recommend a national land policy to the national government;
3. To advise the national government on a comprehensive programme for the registration of title in land throughout Kenya;
4. To conduct research related to land and the use of natural resources, and make recommendations to appropriate authorities;
5. To initiate investigations, on its own initiative or on a complaint, into present or historical land injustices, and recommend appropriate redress;
6. To encourage the application of traditional dispute resolution mechanisms in land conflicts;
7. To assess tax on land and premiums on immovable property in any area designated by law;
8. To monitor and have oversight responsibilities over land use planning throughout the country; and
9. Any other functions prescribed by national legislation.

Additional legislation (Article 68)

Parliament is to:

1. Revise, consolidate and rationalise existing land laws
2. Revise sectoral land use laws in accordance with the principles set out above;
3. Enact legislation—
   1. To prescribe minimum and maximum land holding acreages in respect of private land (presumably the minimum is to prevent over-fragmentation of land, and the maximum is to prevent large, arable tracts of land lying idle);
   2. To regulate the manner in which any land may be converted from one category to another;
   3. To regulate the recognition and protection of matrimonial property and in particular the matrimonial home during and on the termination of marriage;
   4. To protect, conserve and provide access to all public land;
   5. To enable the review of all grants or dispositions of public land to establish their propriety or legality;
   6. To protect the dependants of deceased persons holding interests in any land, including the interests of spouses in actual occupation of land; and
   7. To provide for any other matter necessary to give effect to the provisions of this Chapter.

Conclusion

The Committee of Experts (COE) had the right idea in mind when it placed  matters concerning land under the care of bodies that would (hopefully) be inured from political interference, particularly the National Land Commission and the “Environmental and Lands Court” as I call it. However, to the COE’s eternal shame, there are at least two major problems with the provisions concerning the National Land Commission as it stands now:

1. The issue of who may be appointed to this very important Commission, and the manner of their appointment, is also left to the Public Service Commission.
2. The structure of the National Land Commission, which must administer land in each of the 47 counties nationwide, as well as land held by the national government, is left to the Public Service Commission.

It is to be hoped that the Public Service Commission will do a responsible job of putting the right structures and the right individuals within said structures to ensure the National Lands Commission functions as envisaged when the Constitution was drafted.

Next: Independent Commissions