The National Lands Commission (NLC) has proposed new rules for the investigation of historical land injustices that would improve transparency and accountability in the proceedings and decisions by the commission.
The new proposals are part of measures to address concerns of unfairness in some previously handled cases.
The new rules will require the commission to record every detail of investigation proceedings, including the claims, responses, documentary evidence, expert reports, and the decisions, and make them public.
“The Commission shall publish every determination in the Gazette in accordance with section 15(11) of the Act,” the NLC says in proposed rules.
“The Commission may, where it considers it necessary in the public interest, publish the determination on its official website or through any other appropriate medium.”
Analysts said the NLC proposals would boost accountability and transparency in historical land injustice cases.
“The Regulations appear to respond to procedural fairness concerns that have arisen in previous litigation,” analysts at law firm, Bowmans, said in a commentary on the NLC proposals.
“In a James Finlays case, the Court set aside the Commission’s recommendations after finding that there was no evidence that affected parties had been notified of proceedings and that the Commission’s failure to notify these parties and afford them an opportunity to be heard constituted a grave violation of their right to fair administrative action, rendering the resultant decision a nullity.”
Bowmans said that the detailed hearing, notice and participation provisions contained in the Regulations might assist in reducing similar challenges in future proceedings.
The NLC regulations apply to historical land injustices that occurred between June 15, 1895, when Kenya became a British protectorate and August 27, 2010, when the current Constitution of Kenya was promulgated.
The Commission has the powers to initiate investigations on its own initiative or upon a complaint, pursuant to Article 67(2)(e) of the Constitution and section 15(1) of the NLC Act. The Commission has the mandate to investigate both present and past land injustices.
The Regulations allow any aggrieved person to lodge their claim either through the prescribed form, a letter, a memorandum or an oral submission at any place designated as a Commission office.
“Upon commencing an investigation, the Commission shall issue a notice of investigation to—(a) the claimant; (b) the respondent; (c) every person who appears to have an identifiable legal or beneficial interest in the land that is the subject of the claim; and (d) any public body whose participation the Commission considers necessary,” the NLC said.
Once a claim has been admitted, the Commission will be required to provide all parties at least 30 days’ notice of the hearing, either by mail or electronically.
“Upon completion of an investigation, the Commission shall consider the evidence and determine whether a historical land injustice has been established. In determining a claim, the Commission shall consider—(a) the evidence adduced during the investigation; (b) the applicable law; (c) the criteria set out under section 15 of the Act; and (d) any other relevant matter,” the NLC said.
