Judge’s tough order to Kibaki

BY 
TUESDAY, 5 FEBRUARY, 2013

Judge directs Kibaki to gazette lands commission

A judge has directed President Kibaki to sanction the formal appointment of the nine- member National Land Commission (NLC) that has been pending for about six months.

High Court Judge David Majanja yesterday directed the Head of State to gazette the appointment of the chairper- son and members of the com- mission within seven days.

The Judge explained that no factual issues have been placed before the court to con- test the fact that the President has not acted in accordance with the statutes.

The law does not admit discretion by the President to gazette the chair- person and members of the commission, he said. Justice Majanja recalled that the High Court, on October 12, last year, dismissed a petition intervene to stop the process of appointment and what remains now is for the President to act in accord- ance with the law.

There is nothing to interpose the obligation of the President to act in accordance with the law. The only remedy therefore is to direct the President to act in ac- cordance with the Constitution and the law,” Justice Majanja observed.

The court allowed a petition lodged by two citizens, Amoni Tho- mas Amfry and Nagib Mohamed Shamsa, who had protested that the delay in the appointment of the commissioners had greatly preju- diced the contemplated land reforms countrywide.

He dismissed assertions by the Attorney General and the Minister for Lands that the commission’s operations were dependent on the creation of the County Land Management Boards.

Obligations The NLC members are Dr Mohamed Swazuri, Dr Tomiik Konyimbi, Dr Rose Musyoka, Samuel Tororei, Silas Kinoti Muriithi, Abigael Mbagaya, Muthoni Njogu, Clement Isaiah Lenanchuru and Abdulkadir Adan Khalif.

“I think a properly constituted commission would be in a better position to carry out its constitutional obligations, including rule- making, making necessary appointments and generally establishing its operations.

To permit a situation where third parties, including other state organs, carry out or purport to take over the mandate of the commission, ultimately undermines the authority and independence of the commission itself,” Justice Majanja said.

Justice Majanja said the Presi- dent was under constitutional responsibility to comply with the law. “I also find and hold that failure to complete the appointment of the chairperson and members of the commission undermines the value of good governance, in that the insti- tution intended to govern land laws and to prepare land policy remains in limbo for an indeterminate pe- riod,” the Judge said.

“The National Assembly has done its part in accordance with the regu- lations, the Court has declined to challenging the nomination and appointment process.

Three days later, the Attorney General, Githu Muigai, informed the Acting Head of the Civil Service, Francis Kimemia, the Permanent Secretary in the Lands Ministry, Dorothy An- gote and the NLC selection panel that the temporary sanctions had been discharged.