The Institution of Surveyors of Kenya (ISK) notes with great concern the recent statement made by His Excellency President William Ruto on 21st May 2023 at a public rally in Isiolo County regarding the valuation of properties conducted by the National Land Commission (NCC) for compulsory acquisition.
ISK, as a key professional body the land sector, whose membership includes professional valuers, does appreciate the concern expressed by the President on the need for accurate and fair valuation to support his development agenda that is expected from any professional acting in whatever capacity or institution. However, as professionals in the land sector, we are troubled by the President’s intention to direct that that valuation for compulsory acquisition of land be carried out by the Ministry of Lands yet this role is constitutionally and legally mandated to the National Land Commission as confirmed by the Supreme Court Advisory opinion in 2015 under the Advisory Opinion Reference 2 of 2014.
It is worthwhile to note that during the formulation of the constitution, duly informed by the preceding land policy and practice fraught with illegal and irregular practices in management of public land by the Commissioner of Land and address the sensitive issue of public land management concurrently with protection of land rights, sought to resolve this through the creation of the National Land Commission as independent constitutional commission. The Kenyan people envisaged an independent and professional land administration devoid on executive excesses as was the norm from independence to the promulgation of the constitution in 2010. The National Land Commission was deemed a strong pillar of governance to safeguard this critical function that included the Land valuation component in question and must be empowered to realize this aspiration.
From the foregoing it is our consideration that the statement by the President reverses the gains made in land reforms, is an affront to the commission and undermines its independence and role in the discharge of its constitutional mandate. Such a direction is likely to intimidate and ridicule the commission in the eyes of the public that it serves.
Eventually, if left unchecked, it returns the country to the politicization of land management that is prone to patronage, favoritism and abuse of office in public land management. In addition, the statement undermines the independence and the collegiality in the valuation profession and practice in Kenya, where standards, integrity, competence and the Kenya Valuation standards inform the valuation practice.
It is with this background in mind that ISK calls on the President to retract the directive that is in complete disregard of our Constitution, the Land Act and the National Land Commission Act.
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On the matter of professional ethics, the Institution is ready to support the Government in handling disciplinary issues related to valuation negligence or misconduct upon receipt of any complaint. The Valuers Act established a Valuers Registration Board (VRB) that regulates the practice of Valuation including professional integrity. Furthermore, Section 25 of the NLC Act provides for professional liability of Commission staff, including valuers. The Government may utilize these available channels where there are concerns on ethical Valuation practice.
We also observe that that the Land Value Amendment Act 2019 provided for the development of the National Land Value index to assist the Government and the affected person understand the prevailing values and facilitate inquiry and just compensation during compulsory acquisition. Urgent action by the Ministry of Lands to finalize the land value indices as stipulated in Law would greatly improve objectivity and independence of valuers whether in public or private sector and in this instance aid in valuation for compensation during compulsory land acquisition.
It is important to mention that the Constitution provides for legal mechanisms for any constitutional review, the same applies to Acts of Parliament where public participation has been enshrined. Whereas the President as the executive head has the right to make such observation and seek and propose solutions, ISK calls on the Kenyan Government to uphold the provisions of the Constitution and use legal means to serve the Kenyan people.
ISK calls on the Kenyan Government to uphold the provisions of the Constitution and use legal means to execute changes in functions of its Agencies. Furthermore, all arms of Government, including the Executive, should desist from interfering with independent Commissions clearly set out in Article 249 of the Constitution but instead facilitate the execution of their Constitutional mandate. Where there are issues, such as those raised by the President, they should be handled within the available channels that foster mutual respect, collaboration and co-operation.
The Institution emphasizes that compensation for compulsorily acquired Land must be just, prompt and fair to the project affected persons. Article 40 of the Constitution focusses on just compensation, hence the need to have independence when carrying out valuation. This independence is unlikely to be achieved if the exercise is carried out by the Ministry of Lands staff who might be forced to confine values to a certain budget. We reiterate that a constitutionally independent body such as NLC will guarantee this as provided for under Article 249.
Finally, we call on the President and all Kenyans to continue on the path of entrenching the constitutionalism to provide an environment to realize our national and individual aspirations as a people.