6 - Land Governance Before the Supreme Court

Summary

The making of Kenya's Constitution of 2010 is a story of ordinary citizens striving to overthrow, and succeeding in overthrowing the existing social order, and then defining a new social, economic, political, and cultural order for themselves. (Chief Justice and President Willy Mutunga Supreme Court Advisory Opinion No. 2 of 2015: para. 320)

Introduction

In this chapter, I discuss in further detail the politics of the National Land Commission. In particular, I explore what happened when this politics was played out in a court of law. I showed in Chapters 4 and 5 how institutional change in the land arena was a key aim of the new Constitution when it was inaugurated in 2010. It was hoped that a new architecture of land governance would ameliorate Kenya's longstanding land problems. A set of new land laws was enacted in 2012. Amongst other things, these laws set up a new National Land Commission. Envisaged as an independent constitutional commission, it was anticipated that this body would stand apart from existing institutions which were closely associated with facilitating a multitude of wrongs, including corruption and the irregular and illegal use of land as a patronage resource as detailed in Chapter 3. The path to the creation of the National Land Commission was by no means easy. Although there was powerful advocacy for it at the start of the constitutional review process it also encountered its opponents. At one point, the proposal to create this Commission was deleted from constitutional drafts. Reinstated at a later stage after concerted work by civil society groups, it was hoped that creating a strong land commission undergirded by constitutional guarantees of its independence would mark the beginning of a new land order for Kenya (Mwathane 2018a). It would put into effect Chapter 5 of the Constitution which emphasised the importance of land being ‘held, used and managed in a manner that is equitable, efficient, productive and sustainable’; and it would be guided by the principles of land policy inscribed in the new Constitution and by its national values, including those of participation, consultation and transparency, all of which had entered the Constitution after concerted debate and struggle.