THE FINDINGS OF THE NDUNG'U COMMISSION ON ILLEGAL/IRREGULAR LAND ALLOCATION

According to the African Centre for Global Governance (Africog 2009: 11), the Ndung'u report established that ‘illegal allocation of public land is one of the most pronounced manifestations of corruption and political patronage in our society’. On a conservative estimate, some 200,000 illegal titles were created between 1962 and 2002. Of these, 98% were issued between 1986 and 2002. The categories of public land affected include forests, settlement schemes, national parks and game reserves, civil service houses, government offices, roads and road reserves, wetlands, research farms, state corporation lands and trust lands. The report makes it clear that the illegal allocations took place either on the direct orders of the president or on the orders of prominent senior public officials and well-connected business people and politicians. Those who benefited from the illegal or irregular allocations of grabbed land included ministers, senior civil servants, politicians, business people, churches, temples and mosques.

The report distinguishes between the illegal and the irregular allocation of public land (RoK 2004: 48–9). The first category of wrongful allocation, when land is illegally issued, occurs when the legal safeguards governing the allocation of land are ignored or subverted. For instance, where a title is issued for a piece of land which is not legally available for allocation, the title acquired is illegal. The report recommended that such titles should be revoked and stipulated that in certain instances, such as where the land had been sold on to a third party or is being held by a bank as security for a loan, decisions as to revocation should be made on a case-by-case basis by a Land Title Tribunal using clear criteria such as the number and classes of people financially affected and ‘the public interest’.Footnote ² (The role of a Land Titles Tribunal is discussed below.)

The second category of wrongful allocation is irregular allocation of land. According to the Ndung'u report (RoK 2004: 136–7), this occurred when administrative procedures for dealing in land were not followed. Here, the land concerned was legally available for allocation, but the requisite legal standard was not met or the correct administrative procedure followed. For this second category of cases, the report recommended that irregular titles be rectified by following the administrative procedures that had been bypassed.

The Ndung'u report provides exhaustive details of the processes by which the wrongful allocation of public land was achieved. Although these processes have not been the subject of academic commentary or analysis to date (except Southall Reference Southall2005), they are likely to make a lasting contribution to our understanding of how land law in Kenya has been subverted (and therefore potentially of how such laws might be reformed). According to the report (RoK 2004: 54), the abuse of the powers of allocation was central to the plundering of public land. It is therefore necessary to understand the allocation process. In order to do so, the report identified three categories of land in Kenya. The first was government land, which included both alienated land (that is, land which had been leased to a private individual or company or reserved for use by a government department or corporation or institution, or which has been set aside for another public purpose), and unalienated land (that is, land that had not yet been leased or allocated). Second, trust land which was held by County Councils on behalf of local communities under African Customary Law. Once such land was registered according to any of the land registration statutes, it became private land and was then regarded as the sole property of the individual or group in whose name it is registered (RoK 2004: 45). Third, land which was registered in accordance with the land registration statutes in the name of an individual or a company was deemed to be private land.Footnote ³ This category of land could be created from either government or trust land through registration after certain procedures had been adhered to (RoK 2004: 44–5; Southall Reference Southall2005). The Ndung'u commission investigated the illegal and irregular allocation of government land and, when cases came to its notice, of trust land affected by fraudulent practices. Taken together, government land and some trust land made up the category of ‘public land’ into which the Ndung'u commission inquired.Footnote ⁴

According to the commission's findings, it was the very individuals entrusted with being custodians of public land who were involved in ‘pilfering the public’ (Klopp Reference Klopp2000). They did so by subverting or ignoring the legal safeguards in place to protect public land (RoK 2004: 53). Thus, although the president has the right to allocate unalienated government lands (and can delegate limited powers to the Commissioner of Lands), he could not exercise his powers without taking into account the public interest. The report describes how in practice the Commissioner of Lands and his officials were given responsibility for public land: under the Government Lands Act 1963 they could allow township plots on unalienated land to be sold by auction if not required for public purposes. However, neither the president nor the Commissioner of Lands has the authority to allocate alienated government land, that is, land that has been earmarked for a public purpose (such as road reservations) (RoK 2004: 51).

As well as subjecting the president and the Commissioner of Lands to these legal safeguards, the law also controlled the process of allocation itself. A formal offer of sale had to be made to an approved purchaser by the Commissioner for Lands. Known as a letter of allotment, this was only made to the person to whom it was addressed, lapsed after thirty days, and had conditions attached. Significantly, a letter of allotment cannot be legally transferred to another person (RoK 2004: 48) (the use of letters of allotment is explored in greater detail below). Similarly, land categorised as trust land could only be removed from the communal ownership of local people by a process of adjudication in which local communities are given adequate notice and the opportunity to claim their ownership in accordance with customary law (ibid.: 52).

The commission investigated the illegal allocation of different types of land, including urban land, ministry land, national parks and museums, to mention a few. To take urban land as an illustration, the commission found evidence of widespread abuse of presidential discretion with regard to unalienated urban land. Both Presidents Kenyatta and Moi were found to have made grants to individuals without any reference to the public interest. The allocation was therefore done without following the correct legal procedure (Ndung'u 2011 int.). Furthermore, both presidents also allocated alienated land despite the fact that this is not a category of land which they have any legal power to allocate. The Ndung'u report also found that a number of Commissioners of Lands had made direct grants of government land without any authority from the president. Often, land was quickly sold by grantees at very high prices to third parties without any adherence to the conditions laid down by letters of allotment, and despite the fact that such letters only have the status of letters of offer and cannot be sold (Aronson 2011 int.; RoK 2004: 13). Far from being restrained by the principle of public purpose, the Commissioner of Lands and many local authorities completely disregarded it, and sold land reserved exclusively for public purposes such as schools, playgrounds and hospitals. Forged letters and documents were commonly used to allocate land. Records at the Ministry of Lands and Settlements were found to have been deliberately destroyed (RoK 2004: 38).

The report also provides critical details of developments in the aftermath of illegal or irregular land allocations. It showed how those allocated land would move quickly to sell it, in many cases, to state corporations at hugely inflated prices. State corporations were in effect exploited as coerced buyers of grabbed land. Pressurised into making illegal purchases of public land, they become ‘captive buyers of land from politically connected allottees’ (RoK: 92). As the report makes clear, there is a further injustice in the fact that state corporations had sometimes also been the victims and not just the conduits of land grabbing. They could ‘lose their land to grabbers for free, and then be pressured to buy other lands for millions of shillings’ (Ndung'u Reference Ndung'u2006: 5). The primary state corporation targeted to purchase land was the Kenyan workers' pension scheme, the National Social Security Fund (NSSF). It spent about Ksh30 billion (about US$400 million) between 1990 and 1995 on the purchase of illegally acquired property. The NSSF was set up in 1965 and is regulated by the Minister for Labour, to whom a tripartite Advisory Council gives advice and assistance in connection with the implementation of the National Social Security Fund Act 1965 (Mullei Reference Mullei1988: 433). This legislation stipulates that the purpose of the NSSF is to provide for contributions to the payment of benefits out of the Fund and to provide ‘some form of social protection’ (ibid.) against old age, death and incapacitating physical or mental disability. Instead, the Ndung'u commission found that the NSSF and other state corporations were simply abused as a vehicle for off-loading grabbed land: ‘State corporations were used as conduits for land grabbing schemes through which the public lost colossal amounts of money’ (RoK 2004: 87). For example, the Ndung'u report found that a former chairman of the Cooperative Bank of Kenya was illegally allocated land in Ngong Forest which he then sold on to the NSSF (ibid., Annexe 2: 673).

The human and social costs to the country of this plundering of the NSSF – ‘diverting resources away from public use’ (KNCHR & KLA 2006: 5) – have not been quantified. However, the NSSF continues to suffer losses even in the present day. As recently as September 2011, the auditors of the NSSF noted that the corporation's legal bills were in excess of Ksh76 million (approximately $US763,000), and were critical of the fact that significant amounts of money had been paid in legal fees (amounting to Ksh6 million) that had not been approved by its board (Daily Nation 25.9.2011). Most of the legal costs incurred involve disputes about the status of land that the NSSF still holds on its books. Long after the NSSF was used as a coerced buyer of land, it continues to lose money relating to activities outside its core remit to provide social security payments to Kenyans. The assets of the NSSF may also be overvalued as a result of its holding grabbed land, making it difficult to assess its financial health (Cottrell 2011 int.).

More broadly, the likely economic and social costs of widespread land corruption will be borne for many years to come. The misallocation of public land instigates a process by which land that should be available for the public good – for the building of medical clinics and schools, for public parks and public transport facilities such as railways – is transformed into private land. This privatisation deprives the public of significant social goods whilst generating large profits for the private consumption of well-connected individuals and families. Two examples of this process can be given. In one prominent case, a questionable change of use enabled 18 acres of land in a suburb of Nairobi that had been reserved to build two state schools to be sold to a diplomatic mission (Aronson 2011 int.; see more generally RoK 2004: 187). The schools were never built on this or any other site. In another case, land reserved for the development of a public medical clinic and day nursery was, again through a questionable change of use, instead given over to the building of a shopping centre in an exclusive suburb of Nairobi (Cottrell 2011 int.; The Star 9.11.09) (see below for an account of how changes of use were achieved).

THE ROLE OF THE LEGAL PROFESSION

The work of human rights lawyers in exposing abuse and opposing repression in Kenya has been well documented (Adar & Munyae Reference Adar and Munyae2001: 5; Mwangi Reference Mwangi2001; Ross Reference Ross1992; Throup & Hornsby Reference Throup and Hornsby1998; Widner Reference Widner1992). Lawyers are widely perceived as having spearheaded the democratisation movement (Kagwanja Reference Kagwanja2005: 55). Indeed, Kenya has recently appointed one such lawyer, Dr Willy Mutunga, as its new Chief Justice (Daily Nation 16.6.2011). Conversely, the role of the legal profession in bolstering authoritarian rule in Kenya has also been widely discussed (see Mwangi Reference Mwangi2001). However, away from the human rights and civil liberties spheres, the work of the legal profession since independence has rarely been the subject of detailed study (but see Ghai Reference Ghai, Dias, Luckham, Lynch and Paul1981, Reference Ghai1987). The Ndung'u report provides important information about lawyers' centrality to the plunder of public land.Footnote ⁵ Although the precise role played by lawyers was outside its terms of reference, it is alluded to throughout the report, enabling us to develop an account of how the illegal or irregular allocation of public land was achieved, usually under lawyers' professional guidance and with their collaboration.

The involvement of lawyers in land corruption can be categorised as having occurred either through omission or by commission (Lumumba 2011 int.). Lawyers often failed to advise their clients that the land transaction before them could not proceed because, for example, the land in question was not properly available for allocation (resulting in an illegal acquisition), or because correct administrative procedures had not been followed, for example where forest land was excised without have been properly gazetted (leading to an irregular allocation). At a minimum, by failing to deter their clients from becoming involved in improper land transactions lawyers failed in their professional duties of care (Dugdale & Stanton Reference Dugdale and Stanton1982).

The Ndung'u report also identified numerous instances in which lawyers actively assisted in the commission of fraud and knowingly abetted illegalities and irregularities (Lumumba 2011 int.). There are at least five important ways in which lawyers used their professional skills actively to facilitate land corruption. First, their detailed knowledge of, and extensive networks within, the infamously chaotic Ministry of Lands and Settlement enabled them to identify suitable plots of public land to be targeted for illegal allocation. Second, with the help of lawyers familiar with Kenyan company law, those involved in land corruption were able to ensure that their identities were carefully concealed. The two annexes to the Ndung'u report are filled with the names of companies clearly set up in order to shield the names of those involved in land grabbing from public scrutiny. Third, lawyers oversaw and encouraged a thriving market in letters of allotment which came to be treated as tradable land documents, although lawyers knew they did not have this status in law. Fourth, members of the legal profession used their networks in the Ministry of Lands and Settlement improperly to acquire changes of use that allowed land that had been reserved for public purposes such as schools and medical clinics, and most commonly for roads, to be sold for residential or commercial use. Finally, lawyers often advised clients how to regularise land scams after the event. These five aspects of lawyers' work will be discussed in turn.

The Ministry of Lands and Settlement is widely known as one of Kenya's most inefficiently run public services. It is cited in Transparency International's Bribery Index 2011 (TI 2011) as Kenya's fifth most corrupt institution after the police, the Ministry of Defence, Nairobi City Council and the Immigration Department.Footnote ⁶ The Ndung'u commission found that one of the main reasons for the illegal allocation of public land was the ‘chaotic record keeping system’ in the Ministry and in the district registries (RoK 2004: 188). In addition, it found that records were falsified or hidden in order to conceal the illegal allocation of land (ibid.: 188). In such an environment, the skills of lawyers accustomed to navigating their way through disorganised land records were invaluable (Mwathane 2011 int.). Lawyers also forged close links with surveyors in the Ministry (Aronson 2011 int.; Mwathane 2011 int.). Their involvement was important. The Ndung'u report found that surveyors employed by the Ministry would survey a piece of land ‘from their desk’ without ever visiting the site (RoK 2004: 80), and subsequently issue two title deeds to the same parcel of land, one under the Registered Land Act 1963, for example, and one under the Registration of Titles Act 1982: ‘as part of an elaborate scheme of land grabbing and given the multiplicity of land registration laws, different titles would be issued to the same piece of land … The double issuance of titles was meant to facilitate the illegal allocation of public land’ (RoK 2004: 80). By enabling land to be dealt with under two systems simultaneously, a mechanism was created by which extensive land grabbing took place (Mwathane 2011 int.).

Second, lawyers used company law to assist in concealing the identity of land grabbers. The report sets out how the commissioners encountered severe difficulties in trying to ascertain the names of individuals involved in illegal or irregular land acquisition during searches carried out at the Registry of Companies (RoK 2004: 40):

Despite the cooperation of the Registrar of Companies, the commission encountered problems in identifying the individuals behind companies that had been allocated land. In some cases, the companies holding allocated land did not exist in law. In these cases, individuals had acquired blank Certificate of Incorporation forms which they submitted to acquire public land but which were not filed or reflected in the records of the Companies Register. In others, companies that had not been fully incorporated acquired land. The Ndung'u report shows that most high-profile allocations of public land were made to companies incorporated specifically for that purpose, largely to shield the directors and shareholders of such entities from easy public view (RoK 2004: 40). Company law was carefully used to achieve this. The commission gives a list of companies which acquired land but whose individual owners are not immediately evident (ibid., Annexe I: 22–5).

The third questionable practice overseen by lawyers was the improper use of letters of allotment. Letters of allotment were widely used as land titles and changed hands quickly in sales of grabbed land, despite the fact that they cannot be properly used for this purpose. These documents confer no transferable interest or rights over land in favour of the person to whom they are addressed. Strictly, they only enable land to be allocated so long as the exact conditions set out on the face of the document are adhered to. These specify that the offer to allocate land is made only to the person named in the letter of allotment, that it expires after thirty days, and that the land allocated must be developed within a given period. Despite the fact that letters of allotment cannot function as titles, the Ndung'u commission found that lawyers widely failed to advise their clients of this, either in pursuit of the legal fees earned, in order not to threaten their retainer, or because they themselves took a proportion of the proceeds of sale from allotted land (Aronson 2011 int.). Lawyers actively participated in the abuse of letters of allotment by presiding over the transformation from letters of offer into land instruments to be transacted (Lumumba 2011 int.).

The fourth and most widespread practice involved changes of use. Legal professionals abetted improper changes of use that enabled land reserved for public purposes to be privatised and developed or sold for large profits. In practice, this amounts to an illegal allocation of land reserved for public purposes by the Commissioner of Lands ‘in total disregard of the law and the public interest for which they had been reserved’ (RoK 2004: 77). These lands were allocated following the submission of Part Development Plans prepared by lawyers and surveyors to the Commissioner of Lands, who then issued consents for changes of use under the relevant law, such as the Physical Planning Act 1996 or the Forests Act 1982. Land was often then swiftly sold on to third parties by the original allottees. The most prominent category of land allocated in this manner was land reserved for the future development of roads. Changes of use enabled this category of land to be grabbed throughout the country. In Nairobi, the City Council approved development plans for areas that were clearly set aside for construction of roads. According to the report, it was not unusual for the commission to see a development plan for a residence being prepared for land that was supposed to be reserved for a road (ibid.: 55). In addition, officials in the Ministry of Roads, Public Works and Housing and the Nairobi City Council regularly wrote letters of no objection to problematic proposed developments (ibid.: 77). However the report notes that neither the approval for change of use given by the Commissioner of Lands, nor the letters expressing no objection could properly result in valid changes of use. As a result, allocations acquired in this way are not legal (see Annexe 1 Chapter 4 for a list of affected road reserves).

It is difficult to state with certainty how many lawyers were involved in illegal and irregular allocations of land in the ways set out above. Whilst many Kenyan lawyers participated in the struggle for democratic rights (Mutua Reference Mutua2008: 68), it is clear that a significant number of them – both in private practice and public officers such as land registrars (Mwathane 2011 int.) – were at the very least complicit in land corruption (Ndung'u 2011 int.) and in some cases made themselves indispensable to its commission, reaping rich personal reward and sometimes political office as a result (Lumumba 2011 int.). For many prominent law firms it was the mainstay of their work (Lumumba 2011 int.). This is suggested by the report's estimate that over 200,000 illegal land titles have been created since independence, a figure widely thought to underestimate the scale of the problem (Mwathane 2011 int.; Ndung'u 2011 int.). So many titles could not have been created without the professional services rendered by lawyers working closely with other professionals, notably surveyors, with whom they shared ‘an incestuous relationship’ (Mwathane 2011 int.), and valuers.

Despite the scale of the problem, the complicity of lawyers in the illegal or irregular allocation of land in the ways set out above has been largely overlooked. Indeed, the Law Society of Kenya has recently played a prominent role in campaigning against corruption at the Ministry of Lands and Settlement, joining hands with the Kenya Anti-Corruption Commission in a high-profile demonstration outside the Ministry demanding that corrupt lands officials be named and prosecuted (The Standard 28.6.11). There is blatant bad faith by the legal profession in choosing to ignore the conduct of its members in ‘solemnising’ land corruption (Capital FM 14.07.11).

The Law Society of Kenya's objectives, as enshrined in its constitution, are to maintain and promote the rule of law in Kenya by ensuring that an independent and efficient legal profession serves the people of Kenya (Law Society of Kenya 2012). In asserting this, the Law Society is echoing the language of international rule of law programmes which hold legal professionals to be a bulwark against rule of law failures, and central to the promotion of good governance in the third world (World Justice Project 2011). However, the involvement of lawyers in land grabbing in the post-colonial era, and their failure to confront the extent of the profession's complicity in graft, call into doubt the policy attention and funding being directed to rule-of-law training. International programmes to promote the rule of law present the legal profession as standing apart from the murky business of day-to-day politics as custodians of good governance. Rule of law programmes function through a strict distinction between professionalism and politics. The Kenyan experience of lawyers' role in land corruption casts doubt on this distinction. Lawyers and politics have been intricately and dangerously connected for personal, political and electoral gain.

IMPLEMENTING THE NDUNG'U REPORT

The Ndung'u report was met with enormous interest by the media and by civil society on its release in July 2005. For many, it confirmed much that had been known about land crimes and constituted an official record of widespread dispossession. Amidst rumours that the report had been doctored before its release to protect the names of prominent individuals (The Standard 14.12.2004), a claim denied by the commission's chairperson (Daily Nation 23.12.2007), the press reported extensively on those who had been involved in land grabbing and the land that they had acquired (ibid. 12.12.04).

Recognition of the difficulties of implementing the Ndung'u report's recommendations quickly followed the euphoria of its release. An early attempt to force implementation through the courts came in 2006 in the case of Mureithi v Attorney General (Kenya Law Reports 2006). The applicants, the Mbari ya Murathimi clan from Nyeri, brought an action for judicial review, arguing that the recommendations of the Ngung'u commission should be implemented in so far as they related to their land. They applied for orders of mandamus against the Attorney-General, the Minister for Lands and Settlement, the Commissioner for Lands, the Nyeri District Land Registrar, the Catholic Archdiocese of Nyeri and the Archbishop to implement the recommendations of the Ndung'u report in so far as it touched on Land Parcels LR 1356, 9464 Nyeri Municipality. The report identified the land as having been illegally acquired and recommended revocation of title. Rejecting the request, the Nairobi High Court agreed with the respondents that it was not under a statutory duty to implement the recommendations. Nyamu J. pointed out that it is a fundamental weakness of the Commission of Inquiry Act 1962 that once the president is presented with the report of a commission he has complete discretion on further action and is not under any obligation to respond to the findings. In dismissing the application, the court held that it is not its role but that of the executive and parliament to implement policy. As well as defeating an early attempt to implement the Ndung'u report, this finding has important implications for the findings of future commissions of inquiry (Africog 2008; see more generally Ashforth Reference Ashforth1990).

Given the period over which the illegal allocation of public land had taken place, many of the land titles investigated by the Ndung'u commission were held by third parties who were not involved in the original transactions, many of whom had not committed any legal wrong: they might have been offered and bought the land from the original allottee, been offered the title to land as security for a loan, have inherited the land from a deceased friend or relative, or received it as a gift. When considering the legal position of third parties the commission argued that such rights are extinguished since they were illegal from their inception. Third parties could be interpreted as being in the same position as the original allottee. However, it recognised the difficulties entailed in dealing with third parties who had acted innocently in acquiring land interests. They noted in particular the potential hardships endured by third parties who had made substantial developments, by state corporations which were coerced into buying land, and commercial lenders who had acquired the titles as security against loans. Although it was generally recommended that illegally issued titles that had been passed on to third parties should be revoked and the land repossessed, the commission recognised that where the land had been developed ‘consideration should be given to all the circumstances of the case including the cost incurred in developing the land’, the number of people involved financially, the economic value and the public interest (Africog 2009: 23).

The difficult questions raised by the widespread presence of illegally and irregularly held titles in Kenya are unlikely to be resolved for many years (Ndung'u 2011 int.). Following the release of the Ndung'u report, the KACC, itself mired in political difficulties (The Standard 29.8.11), has engaged in sporadic and high-profile repossessions of land, taking an approach very different from that recommended by Ndung'u: that a Land Titles Tribunal be created systematically and transparently to review land titles (RoK 2004: 188; Lamba 2011 int.). Indeed, the sporadic repossession of grabbed land has arguably distracted attention from the problems that continue to characterise the Ministry of Lands and Settlement (Ndung'u 2011 int.). Here the same administrators who facilitated years of land grabbing remain in office (Mwathane 2011 int.). Recently, following demonstrations by civil society groups such as the Kenya Non-State Actors Alliance, the Permanent Secretary in the ministry has undertaken to deal with corruption in it, and to prosecute corrupt officials (Standard 6.7.11; Lumumba 2011 int.). This leaves the very individuals known to have collaborated in land grabbing in charge of dealing with corruption (Mwathane 2011 int.).

Fundamental to the problems rehearsed in the Ndung'u report is the fact that the administration of land is intricately tied up with politics rather than sheltered from political interference (Lumumba 2011 int.; Ndung'u 2011 int.). The Njonjo commission sought to address this critical issue in 2002 when it recommended the creation of an independent National Land Commission (NLC). This recommendation, which would have stemmed the land grabbing reported by the Ndung'u commission, was never acted upon and was restated in the Ndung'u report (Aronson 2011 int.). A National Land Commission Bill 2012 was given its first reading in parliament on 9 February 2012. The bill which, together with the Land Bill 2012 and the Land Registration Bill 2012, is constitutionally mandated (RoK 2010, Chapter 5), is widely agreed to be poorly drafted and to fail to address the land issues facing Kenya. As a result of pressure from civil society groups, on 23 February parliament voted by the required two-thirds majority (ibid., Article 261(2)) to extend the constitutional deadline of eighteen months for approval of the legislation (Fifth Schedule, RoK 2010), to allow for wider consultation and for thorough redrafting. Fresh drafts were expected at the time of writing. The failure of the drafts of the National Land Commission Bill seen so far explicitly to distribute powers of land allocation and management between the NLC and the Ministry of Lands and Settlement is a major concern (see Kituo cha Sheria et al. Reference Kituo2012). It constitutes an important sign of the difficulties of wresting control over land from those long accustomed to using it as a ‘patronage resource’ (Klopp Reference Klopp2000: 7; Ndung'u 2011 int.). Problems at the Ministry of Lands and Settlement include on-going corruption of its officials, the forging of titles, and the presence in files of invalid documents such as letters of allotment that have been treated as titles (Mwathane 2011 int.). These cannot be resolved simply by taking remedial actions such as funding the computerisation of land records, a process that is almost complete in Uganda and has been widely mooted in Kenya (Daily Nation 11.9.2009), ‘the computerisation of corruption’ as one commentator described it (Capital FM 14.7.2011). As Kenya reviews the legal framework governing land, the test to be applied should be whether the proposed changes would have prevented the illegal and irregular allocations of public land on the vast scale identified by the Ndung'u commission.

Two unintended outcomes of the Ndung'u report demonstrate that, despite the failure to implement its findings, it is of on-going political and economic relevance. First, the report has emerged as an important source of information during the vetting processes for public office underway in Kenya since the inauguration of the new constitution in 2010. Two examples of the way in which the report has recently been cited illustrate its on-going relevance. During the vetting of the prospective Director of Public Prosecutions (DPP), Keriako Tobiko, by the Constitution Implementation Oversight Committee, his failure to prosecute individuals involved in land grabbing was raised (KHRC 2010). Despite protestations, Tobiko was confirmed as DPP on 15 June 2011 and, significantly for this paper, is widely expected to continue his previous stance of taking no action in relation to the Ndung'u report.Footnote ⁷ The question of complicity in land grabbing as recorded by the Ndung'u commission was also raised against Bethuel Kiplagat, the chairman of Kenya's Truth, Justice and Reconciliation Commission (TJRC). Kiplagat was cited in the Ndung'u report as having acquired a number of government houses through illegal or irregular land awards (Africa Confidential 2010). References to the Ndung'u report in the process of assessing suitability for public office demonstrates that the commission's findings continue to be relevant to Kenyan politics, although their use in vetting candidates could not have been foreseen by the commissioners (Lamba 2011 int.).

Second, as well as functioning today as a detailed official record of the elaborate practices of land grabbing that have taken place in Kenya, the Ndung'u report has also become an important source of legal information on affected parcels of land. If the findings of the Ndung'u commission remain unheeded by the political system, they have been enthusiastically taken up by the financial and legal systems: bankers and lawyers regularly refer to the report to ascertain if particular parcels of land have appeared in it, for example as being recommended for title revocation (Wanguhu 2011 int.; Ubhi 2011 int.).

Since the publication of the Ndung'u report, it has become clear that undoing many years of illegal and irregular allocations of land will be both complex and costly. The commission itself cost Ksh75,399,768 (US$839,030), and subsequent work by the Kenya Anti-Corruption Commission on land issues (including investigating cases, issuing revocation orders and bringing legal actions) has not been quantified. As well as the vast expense incurred in unravelling the mess in which Kenya's land system finds itself, the complex legal problems thrown up by Ndung'u commission's findings may mean that the recommendations for correcting the injustices of land grabbing will never be thoroughly implemented. In addition to widespread cynicism amongst members of the public about the ‘eating’ of land (Harrington & Manji Reference Harrington and Manji2011), there has also been a critical effect on the economy and on politics (Berry Reference Berry2004) from the lack of certainty in land matters (SID 2010).

THE GRABBED STATE

In a paper published before Kenya's change of government in 2002 and the commissioning of the Ndung'u report, Klopp (Reference Klopp2000: 7) provided a perceptive account of the ‘pilfering’ of public land, focusing on the 1990s and the illegal allocations of public land that took place under the Moi regime. Her account of ‘the irregular privatisation of public land’ remains one of the few academic analyses to take seriously local or internal land grabbing. Of course, the extent and details of land grabbing were widely known amongst members of the public and civil society groups (Lamba 2011 int.). Many communities became victims of the predatory actions of land grabbers (Klopp Reference Klopp2001), and the land grabbing stories that regularly circulated in Kenya ensured that few people were ignorant of the scale of misallocation of public land. Indeed, a number of organisations vigorously resisted land grabbing, including through the courts, notably Kituo cha Sheria (Centre for Justice) (Weru 2012 int.). In October 1998, at the height of attempted land grabbing in Karura Forest, the Architectural Association of Kenya announced that it would take disciplinary action against any member found to be working with improperly acquired properties (Githongo Reference Githongo2000). Much of the analysis presented by Klopp is confirmed by the Ndung'u commission. Klopp (Reference Klopp2000: 7) argued that as Kenya's powerful political elite confronted the reality of declining ‘patronage resources’, it sought alternative ways to finance its patrimonial control. She sees the growth in the illegal allocation of public land of the 1990s as a ‘creative counter-strategy to change’ (ibid.). These threats to patronage resources included the decline in aid as a source of patronage, the greater scrutiny of some forms of corruption by the international community and, in the context of the introduction of multi-party elections, the increased political contests they faced (ibid.: 8). Public land, less visible to international donors and therefore escaping their scrutiny, was transformed into a valuable ‘patronage asset’ (ibid.). Kenya's ‘land grabbing mania’ is for Klopp an unintended consequence of donors' periodic withdrawals of aid in the 1990s. The accuracy of this claim has subsequently been confirmed by the Ngung'u commission's finding that illegal and irregular allocations of land peaked at election times (RoK 2004: 2; Southall Reference Southall2005: 146).

Klopp also argues that with the increased competition entailed in the liberalisation of the political system, administrative officials feared for the continued access to land that they exercised, and sought quickly to maximise the rent they extracted from its (mis)allocation, as well as adding to their personal stocks of land resources. Key to this was the allocation of land to property developers. For Klopp (Reference Klopp2000: 8), ‘the intensification of irregular allocations of public land to well-connected individuals and land-buying companies … is a particularly revealing and underscrutinised case of deepening corruption’ which, despite being both widely discussed and resisted within Kenya, had ‘largely failed to attract commensurate attention on the part of scholars’. Writers on developments in Kenya's political system in the 1990s and subsequent years privileged formal political practice over ‘informal manoeuvring’ (ibid.: 8). Citing the work of NGOs including Kituo cha Sheria and the KHRC Land Rights Programme in running Operation Firimbi (‘whistle’ in Kiswahili), which sought to document instances of land grabbing and to organise local resistance to these actions (Lamba 2011 int.), Klopp (Reference Klopp2000: 23) argued that such work created a ‘realm of public scrutiny’.Footnote ⁸ Since Klopp's paper, the Ndung'u report, by creating a permanent official record of the phenomenon, has made a lasting contribution to this scrutiny.

The term ‘land grabbing’ is now widely used in the media and in academic writing, as well as by pressure groups. However, by far the greatest attention is paid to grabbing carried out by private companies and foreign buyers, intent on acquiring land as a way to guard against future fuel and food shortages (Akam Reference Akam2010). The term is therefore associated primarily with the acquisition of land for the cultivation of biofuels, sugar, rice and other foods such as in the Tana Delta (Borras et al. Reference Borras, McMichael and Scoones2010; Matondi et al. Reference Matondi, Havnevik and Beyene2011). Much less attention has been paid to what might be called, echoing recent formulations such as the ‘failed state’ (Bates Reference Bates2008) and the ‘narco-state’ (Kohnert Reference Kohnert2010), ‘the grabbed state’. In this scenario, well-connected politicians, their families and associates allocate state land to themselves in what amounts to widespread in-country land grabbing by the state's own nationals. As the Ndung'u report shows, the local land grabbing which was inaugurated by colonialism (Okoth-Ogendo Reference Okoth-Ogendo1991) and continues in the present day, has a much longer history than the global land grabbing of foreign investors (Cottrell 2011 int.). Indeed, this process of ‘local land grabbing’ is often intricately tied up with the more widely analysed global process: public land illegally or irregularly allocated to individual politicians, for example, may enable them to enter profitable agreements with foreign investors, as recent legal action in the High Court at Nyeri for recovery of land grabbed by President Moi from the Samburu in Laikipia demonstrates (The Star 12.5.2011). In addition, widespread land grabbing and dispossession is sometimes associated with failed states: on this analysis, Somalia is both a grabbed and a failed state (Casanelli Reference Casanelli1995; Cottrell 2011 int.; De Waal Reference De Waal1995).Footnote ⁹

While some writers have recognised that governments have become key actors in the global land grab, they have tended to view them primarily as facilitators of land deals rather than as the principal party to such actions: as German et al. (Reference German, Schoneveld and Mwangi2011: 29) put it:

While this analysis recognises that a complex network of actors is involved in land grabbing, it presents governments and individuals within them as acting qua government: a well-known scenario entails members of local government dispossessing local people of land behind a thin veneer of consultation (Alden Wily Reference Alden Wily2011). I would go further than this in describing the process of local land grabbing in Kenya: here, a political elite has used its connections to acquire land and to amass huge private wealth by dealing in this land, whether by developing, selling or leasing it (Ghai Reference Ghai2011). They have acted in their individual rather than their official capacities, although of course their political and economic connections underpin their activities.

Writing recently of international land grabbing, Hall (Reference Hall2011: 2) has critiqued the language used to describe the phenomenon. She has argued that ‘the popular term “land grabbing”, while effective as activist terminology, obscures vast differences in the legality, structure and outcomes of commercial land deals and deflects attention from the roles of domestic elites and governments as partners, intermediaries and beneficiaries'. Her response has been to develop a typology of land grabbing, and to explore the ‘variegated and complex processes of agrarian change, some of which reflect historical continuity, while others may involve qualitative redirections in processes of agrarian change or the intensification or speeding up of such processes – but may also involve countervailing trends’ (ibid.: 4). I share her concerns: that an oversimplification is taking place which obscures in particular the local workings of land grabbing. I suggest that recent developments in the governance of land grabbing, as evidenced by the World Bank's attempts to develop a code of conduct for land deals which asserts the need, among other things, to respect existing land rights, the rule of law, and environmental sustainability and not to jeopardise food security,Footnote ¹⁰ obscure the complex personal networks that undergird the practice. What is eliminated by the metaphor of land grabbing is the role of accomplices and the complex networks entailed in these transactions. The term ‘land grabbing’ as currently deployed may prevent us from thinking about the mechanisms by which the misallocation of public land takes place, transforming land reserved for the public good into private land. As the foregoing discussion shows, it is important to investigate how professional knowledge and skills are used to pervert the mechanisms of land law and administration.

More than six years after its publication, the Ndung'u report continues to provide important insights into the politics of land in Kenya. Whilst the findings of the Ndung'u commission and public awareness campaigns such as Operation Firimbi may have made it more difficult to act with outright impunity over land, the failure to implement its recommendations has ensured that land grabbing in Kenya continues to take place. Undeterred by disciplinary or criminal action brought against them, members of the legal profession continue to involve themselves in illegal or irregular activities relating to public land. The complex networks of personal and professional relationships that underpin and facilitate the grabbing of public land remain firmly in place (Ndung'u 2011 int.). Indeed the Permanent Secretary in the Ministry of Lands, Dorothy Angote, recently admitted at a press conference that two high-ranking ministry officials had gone missing after they were alleged to have been found working with a lawyer to forge land documents (The Standard 6.7.2011). The knowledge that corrupt professionals have been spared the legal and professional consequences of their actions – and in some cases actually rewarded for their complicityFootnote ¹¹ – functions only to deepen Kenyans' abiding distrust of administrative authorities and professionals, with far-reaching implications for the rule of law and access to justice.