High Court declares Parliament cannot impose timelines on NLC

The High Court has declared that Parliament cannot impose timelines on the National Land Commission (NLC) in the execution of its mandate to investigate and recommend redress for historical land injustices.

In a petition filed by activist and Busia Senator Okiya Omtatah, the court found that the National Land Commission (Amendment) which sought to restrict the State body’s determinations to one year and the implementation of remedies to three years is unconstitutional.

"It was not for Parliament to limit the period. This is to undermine the mandate of a constitutional body when the Constitution itself does not set timelines," court ruled.

Omtatah argued that the timelines were designed to shut out victims of historical land injustices from seeking compensation, especially considering the Commission’s chronic underfunding and the large backlog of unresolved claims.

He also challenged similar restrictive provisions imposed earlier, including a 10-year limit.

Delivering the judgment, Justice Chacha Mwita ruled that the Constitution is a living document and its provisions must be interpreted harmoniously “to interpret but not to destroy each other.”

The judge noted that Section 14(9) of the impugned Act is unconstitutional because the NLC’s review and redress functions are not tied to any timeframe under the Constitution.

Further, the court observed that Section 15, which deals with historical land injustices from 1895 to August 2010, does not impose any deadline for the processing of such claims.

Parliament, the court added, does not have powers under Article 67(e) to enact legislation that donates or restricts constitutional mandates of the commission.

The court therefore ruled that Parliament’s attempt to limit the admission and processing of historical land injustice claims to five years - or any fixed period - is inconsistent with the Constitution.

As a result, the High Court declared the Amendment Act unconstitutional to the extent that it sought to curtail the NLC’s longstanding mandate.