IN THE MATTER OF CONSIDERATION BY THE NATIONAL ASSEMBLY OF THE LAND REGISTRATION (AMENDMENT) BILL, 2020
The former British Prime Minister Margaret Thatcher once said (in reference to her eponymous economic and political ideals, Thatcherism) that:-
“One of the great debates of our time is about how much of your money should be spent by the State and how much you should keep to spend on your family. Let us never forget this fundamental truth: the State has no source of money other than money which people earn themselves. If the State wishes to spend more it can do so only by borrowing your savings or by taxing you more. It is no good thinking that someone else will pay—that “someone else” is you. There is no such thing as public money; there is only taxpayers’ money. Prosperity will not come by inventing more and more lavish public expenditure programmes. You do not grow richer by ordering another cheque-book from the Bank. No nation ever grew more prosperous by taxing its citizens beyond their capacity to pay. We have a duty to make sure that every penny piece we raise in taxation is spent wisely and well.”

Indeed, for any nation and any government, that duty to “spend every penny piece raised in taxation wisely and well always weighs heavy. This is especially the case in developing democracies such as ours, Kenya, which such duty has been and is notoriously elusive.

Recently, vide a bill dated 13th March, 2020 i.e. the Land Registration (Amendment) Bill, 2020 introduced by the leader of majority Hon. Adan Duale seeks to establish the office of the Complaints Receiver within the Ministry of Lands.

The Bill is problematic in two ways. First, the Bill will occasion unnecessary and further taxation on the already burdened tax payer and secondly, there is need to leverage on cooperation considering there exists other bodies capable of performing the role contemplated by the Bill with minimal cost to the tax payer. These two grounds which lays our grounds of opposition against the enactment of the Bill in its current form are as follows:-

The Proposed Office of the Complaints Receiver is a Duplication of Roles due to the existence of another Office that can handle Complaints

The Bill seeks to establish the office of the Complaints Receiver within the Ministry of Lands. The proposed office is purely an administrative office for handling internal complaints after all mechanisms within the lands ministry have been exhausted. The powers of the Official Complaints Receiver are administrative and advisory and do not extend to inquiring into the merits of a decision complained. In essence, the recommendations are not binding and he has no concrete powers to enforce a decision made. It is a position for checks and balances and for processing complaints.

The existence of a constitutionally established and competent body is a ground for empowering that body as opposed to creating another layer of bureaucracy and further burdening the tax payer. The office of the Ombudsman (Commission on Administrative Justice) established pursuant to Article 59 (4) performs most of the functions contemplated under the amendment. The Commission is capable of subsuming and performing most of the functions contemplated to be performed by the Complaints Receiver.

The functions of the Commission on Administrative Justice are stipulated under Section 8 of the Commission on Administrative Justice Act, No. 23 of 2011. The mandate is two-fold, and extends to both national and county governments. The Ombudsman has the mandate of tackling maladministration and other administrative concerns in the public sector (including the Ministry of Lands). To achieve that, the commission is empowered to, investigate complaints of delay, abuse of power, unfair treatment, manifest injustice or discourtesy. The Commission also has the mandate of overseeing and enforcing the implementation of the Access to Information Act, No. 31 of 2016.

Need for Cooperation with the Ombudsman rather than Creation of another Layer of Bureaucracy

Taking into account the above basis as the grounds against the creation of another layer of bureaucracy to the detriment of the tax payer, the solution lies in cooperation. Considering that the proposed functions of the proposed Complaints Receiver are a duplication of the roles of the office of the Ombudsman, the proposed amendment takes shape as an unnecessary bureaucracy.

We therefore propose that the Ministry of Lands cooperates with the office of the Ombudsman to enable an office be set up and housed at the Ministry of Lands for handling the complaints. In doing so, the Ministry will not only have saved the tax payer an extra burden but will take advantage of the binding effect of the decisions of the Ombudsman. The Court of Appeal in the case of Commission on Administrative Justice v Kenya Vision 2030 Delivery Board & 2 others [2019] eKLR held that:-

“Our take on the construction of the above provisions of both regimes of law is that Article 254 relates to the exercise of mandate by the appellant for the year in respect of which the report is being made. It is our view that these fall into what have come to be known as accountability reports required of public entities in the discharge of their constitutional and statutory mandates as provided for in both regimes of the law. In our view, it has nothing to do with the reporting of each and every investigative report undertaken by the appellant in the discharge of its mandate under the regimes in any given year. We therefore find nothing in the above Article to suggest that the only remedy available to a beneficiary of the appellant’s recommendations for redress to a public entity in the discharge of its undoubted public investigative and oversight mandate is limited to reporting of such findings to the National Assembly. Neither do we find anything in the said Article to suggest that such recommendations have no force of law and are therefore not amenable to enforcement by a court of law.”

That being the case, we propose that in order to streamline the public complaints mechanisms and at the same time take advantage of the powers and the role of the office of the ombudsman, we oppose the idea of establishing the office of the Complaints Receiver. We propose that you consider an amendment in the following terms:-

PART VIIIA – COMPLAINTS MECHANISM

90A. The Cabinet Secretary shall cooperate with the Commission on Administrative Justice in the handling of complaints, investigations and redress of complaints by the public arising from the Lands Registry and the Survey of Kenya.

90B. The Cabinet Secretary and the Commission on Administrative Justice shall cooperate on the setting up of a liaison office at the Ministry of Lands for handling such public complaints.

90C. The decisions and recommendations of the Commission shall be binding on the Ministry of Lands, Survey of Kenya and its officials.

We strongly oppose the establishment of the office of the Complaints Receiver as the same would be unnecessary duplication of roles and further bureaucracy. It would further burden the tax payer as indicated in the Memorandum of Objects and Reasons would occasion additional expenditure of public funds. Our position is guided by the principles of Public Finance as articulated in Article 201 of the Constitution of Kenya, 2010 (See Article 201 (d) which provides that “public money shall be used in a prudent and responsible way.”) We opine that the Commission on Administrative justice would be better suited to handle, process and give binding decisions on the complaints. Cooperation between the two offices would offer a better solution and at a minimal cost to the tax payer whilst cutting down on administrative bureaucracy by utilising available mechanisms.

 For more information on legislative drafting, contact us on:

BP2O3053(1)
STEPHEN KIPKENDA KIPLAGAT
Senior and Founding Partner, Advocate of the High Court of Kenya
IMG-20200130-WA0016
IAN TUM
Associate, Advocate of the High Court of Kenya

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