To assess the role of the National Land Commission to resolve the problem of historical land injustices in Kenya
Kabue, Sharon Wamucii
Land matters are commonly dealt with by way of litigation. Historical Land injustices however, are complex because of the web of interests and rights involved; as such they cannot properly be resolved through litigation. Furthermore, Kenya's litigation process is adversarial whereas to adequately resolve these injustices a process that ensures a win-win solution is desired. This study, investigated: the use of Alternative Dispute Resolution pursuant to Article 252 (l) of the Constitution of Kenya to resolve historical land injustices; that is the power of the National Land Commission to utilize mediation, conciliation, and negotiation in addition to traditional dispute resolution mechanisms. The study anal ysed the Commission's powers as well as the inherent limitations of alternative dispute resolution in resolving land matters. A qualitative approach was taken in examining research on Alternative Dispute Resolution and the history of Historical Land injustices. It established that one of the benefits of ADR that makes it a suitable option in resolving historical land injustices is that it looks at each dispute on a case by case basis; and the parties curve out the process to best meet their needs. The history of historical land injustices dates to Kenya as a British Protectorate and the laws enacted some of which were still in place after Kenya attained independence. Kenya's' history showcases that various commissions were established which made recommendations on how historical land injustices would be resolved ranging from a change in laws to the establishment of a commission to specifically investigate claims. The National Land Commission is mandated to carry out investigations into complaints after which its recommendations are furnished to the relevant authorities. Moreover, they have the duty to encourage parties to utilize Alternative Dispute Resolution. The procedure utilized to Investigate claims was analysed in addition to the effect of the recommendations issued by the Commission. The Commission has no enforcement powers and relies on the relevant authorities to implement its recommendations. History however, showcases that when enforcement is left to other parties ' enforcement rarely takes place. The study thus recommends that the mandate of the National Land Commission as pertaining to historical land injustices is that it be established as a quasi-judicial body and as such will have the power to enforce its recommendations but under supervision of the High Court.