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"id": 1412231,
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"content": "( Moved by Hon. Owen Baya on 16.4.2024)"
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"content": "(Resumption of debate interrupted on 17.4.2024 – Afternoon Sitting"
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"id": 1412234,
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"speaker_name": "The Temporary Speaker",
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"content": "(Hon. (Dr) Rachael Nyamai): This is resumption of debate that had a balance of three hours. The Member who was on her feet is not in. The Bill is now open for debate. I will give the first opportunity to the Leader of the Minority Party."
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{
"id": 1412235,
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"type": "speech",
"speaker_name": "Ugunja, ODM",
"speaker_title": "Hon. Opiyo Wandayi",
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"content": " Thank you, Hon. Temporary Speaker, for giving me this opportunity to contribute to this Bill. I suppose I have 10 minutes or more. I am not sure. I seek your advice on the number of minutes that I have to contribute to this Bill. Let me proceed. At the outset, I declare that I totally support this Bill which was sponsored by Hon. Owen Baya, Deputy Leader of the Majority Party, as a matter of principle. I looked at the section of the Act which is being amended. I can say, without fear of contradiction, that both Sections 14(1) and 15 of the Act were, in my considered view, unconstitutional initially. Why do I say so? I hope the Leader of the Majority Party will listen to me because I am raising very fundamental issues here that may be of interest to him, going forward. For his benefit, I repeat that I support this Bill, as a matter of principle. As I have said, I have looked at the sections of the National Land Commission Act that Hon. Owen Baya is proposing to amend. I can say, without fear of contradiction, in my considered view or opinion, they were unconstitutional initially. Why do I say so? Whenever Parliament is called upon to enact laws or give effect to particular provisions of the Constitution, it cannot be that same law becomes a limitation or hindrance to the very provisions of the Constitution that it seeks to effect. Article 67 of the Constitution focuses on the powers and functions of the National Land Commission (NLC). Article 67(2)(e) of the Constitution states that the function of NLC is to initiate investigations, on its own initiative or on a complaint, into present or historical land injustices, and recommend appropriate redress. These are powers that were given to the NLC by the Constitution. The drafters of the Constitution and Kenyans generally gave these powers to the National Land Commission through this Constitution. However, in the National Land The electronic version of the Official Hansard Report is for information purposesonly. A certified version of this Report can be obtained from the Hansard Editor"
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"id": 1412236,
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"speaker_name": "Ugunja, ODM",
"speaker_title": "Hon. Opiyo Wandayi",
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"content": "Commission Act, you find very glaring attempts to change the Constitution. If the drafters had intended that this function would only be performed within a specified period of time, then nothing stopped them from specifying so in the Constitution."
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"id": 1412237,
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"speaker_name": "Ugunja, ODM",
"speaker_title": "Hon. Opiyo Wandayi",
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"content": "In Section 14(1), the Act goes ahead to suggest that the Commission shall within five years of the commencement of this Act, on its own motion or upon a complaint…and so on and so forth, undertake the function contemplated under Article 67(2)(e) of the Constitution. Whereas the Constitution has left it open, an ordinary Act of Parliament purports to enforce a time limitation. What was the wisdom of the House when it enacted this legislation? What was in the mind of the House? Was the House of the view that these historical land injustices would have been dealt with conclusively within five years? That the Commission would have dealt with all historical land injustices within five years? Was that the thinking of Parliament when it enacted this statute law?"
},
{
"id": 1412238,
"url": "http://info.mzalendo.com/api/v0.1/hansard/entries/1412238/?format=api",
"text_counter": 222,
"type": "speech",
"speaker_name": "Ugunja, ODM",
"speaker_title": "Hon. Opiyo Wandayi",
"speaker": null,
"content": "My submission is that the House erred. It made a great error in purporting to limit the timeframe within which historical land injustices would be addressed by the National Land Commission. Therefore, the only limit that is available… We are lucky that the courts have not been moved to declare this section of the Act unconstitutional. Therefore, Hon. Baya has given us and Kenyans in general, a golden opportunity to right the wrong that was occasioned through the enactment of this statute law. The only remedy for this ambiguity, illegality and unconstitutionality is to adopt the amendment being proposed by Hon. Owen Baya. We should allow the National Land Commission to undertake and execute its mandate and perform its functions as clearly contemplated under Article 67(2) of the Constitution. Otherwise, if we were to go with the provisions of this Act that no more historical land injustices cases will be dealt with by the Commission, how would we want Kenyans to deal with them? If by this limitation under the Act, the National Land Commission would no longer undertake its function under Article 67(2)(e), then who would perform that function? If the National Land Commission is barred from performing that function by dint of the provisions of the National Land Commission Act, who would be called upon to perform that function? That is the question we should be asking as a House. Who shall we now go back to? Because in the current Constitution, no other authority has that function. No other authority or person can perform that function under Article 67(2)(e) other than the National Land Commission. Not the President, the Cabinet Secretary for Lands, Housing and Urban Development or anybody else. Do you want Kenyans to now go back to the rule of the jungle and square out their issues physically? For instance, if I feel that a land injustice was occasioned on me and the body mandated by the Constitution to address it is unable to do it, what do I do? Do I square it out with the person whom I feel has caused me the injustice? It is only logical that the amendments being proposed by Hon. Owen Baya are endorsed and approved in totality by this House. In fact, this process should be expedited. As we speak, I know that there are cases pending before the National Land Commission. They might be cases which have come from elsewhere or which they have initiated on their own volution. I know my friend Hon. Caroli Omondi is itching to speak to this. I will plead that we give him time to say something after this. To get to know what is in mind about this particular matter. Hon. Temporary Speaker, from where I sit, I do not think we have any other route to cure this problem. I, therefore, plead with you Hon. Members and colleagues to expedite this Bill. Let us just adopt it like yesterday and have it assented to, for us to go back to where we should have been from the very beginning. We must allow the National Land Commission to perform its functions. With those very many remarks, I support. Thank you."
},
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"speaker_name": "The Temporary Speaker",
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"speaker": null,
"content": "(Hon. (Dr) Rachael Nyamai): Leader of the Majority Party. The electronic version of the Official Hansard Report is for information purposesonly. A certified version of this Report can be obtained from the Hansard Editor"
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"type": "speech",
"speaker_name": "Kikuyu, UDA",
"speaker_title": "Hon. Kimani Ichung’wah",
"speaker": null,
"content": " Thank you, Hon. Temporary Speaker. I also rise to support this Bill by the Deputy Leader of the Majority Party, the very good Member for Kilifi North Constituency, and my very good friend. This Bill, as the Leader of the Minority Party has said, is quite progressive. I agree with him that in the first instance, particular provisions in the law as it were, were indeed unconstitutional. You cannot limit what is expressly provided for in the Constitution through a statute. That is what Parliament had done. I believe in hindsight now because the Leader of the Minority Party and myself were in that House of the 11th Parliament. That was erroneous. It is said that it is only fools who do not change their minds. Since we are not fools, as a House, we ought to change our minds and align the statutes to the Constitution. There are many land issues in this country, and not just historical land injustices. I know there are those who are in fear that this provision may give the National Land Commission an opportunity to look into private land matters and all that. But what is of greater importance to me is the disposition of public land. Hon. Temporary Speaker, it is good that you are sitting as the Temporary Speaker today because you were the Chairperson of the Departmental Committee on Lands in this House in the last Parliament. You therefore know the number of land parcels around the country that have been taken up by the cartels. Those cartels are now taking advantage of the absence of this provision in the law to take up public land and subdivide it and corruptly process titles through the Ministry of Lands, Housing and Urban Development. They are now taking up land that is otherwise public land. There are many instances across the country, including in my own constituency where cartels have taken a chunk of over 100 acres of land that formerly belonged to the Kenya Forest Service. They have subdivided it and over the years, they have been trying to sell that land to innocent third party buyers. You can imagine the tragedy that befalls people when they buy land that has a title, having searched and found it to be clean only to learn later that the people who sold to them were illegitimate owners. It is only an independent commission that can fix some of these issues. This is the rot that has bedevilled the Ministry of Lands over the years. This is not something that can be fixed by the Ministry itself; they need a third eye which is the National Land Commission (NLC). The drafters of our 2010 Constitution had every reason not to trust the Ministry alone. They created another independent arm, NLC to oversee what is being done in matters public land. I restrict myself to the issue of public land because that is where the rubber meets the road on matters theft of land. When Sections 14 and 15 of NLC became redundant or lapsed within the five years after the commencement of the Act, NLC was left as an impotent body. Today, they would see Hon. Kimani Ichung’wah grabbing public land but because I am in a position of influence, I will get my way through the Ministry of Lands, process titles, subdivide it, dispose of it, and NLC would absolutely do nothing. This is what we want to correct. I commend the Member for Kilifi for having this Bill done. I had a similar Amendment Bill last year which I had done as a Private Members Bill. The Ministry of Lands prevailed upon me to drop that particular amendment and they would incorporate it into a bigger Lands Amendment Bill that they were processing. I was shocked when the bigger Lands Amendment Bill came as these particular provisions were not provided for. And that is why I support Hon Owen Baya today as he has replicated exactly what I had done in my Amendment Bill that the Ministry of Lands prevailed me to drop in pretext that it was going to bring it together with the bigger Bill which is before the House. Without pre- empting debate, it is listed as Order 13. Order 13, Sections 14 and 15 of the National Lands Commission Act were left out. I am obligated because it was originally my Bill. I support the Bill sponsored by my deputy because it captures the spirit of what the country wants. The electronic version of the Official Hansard Report is for information purposesonly. A certified version of this Report can be obtained from the Hansard Editor"
}
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}