NLC chairman Muhammad Swazuri's letter to Head of Public Service Joseph Kinyua

1. ​Date​: 14​th​
August 2018
Head of Public Service
Executive Office of the President
State House
P.O Box 40530-00100
NAIROBI
Attn: Mr​. Joseph Kinyua CBS, EGH
Dear Sir,
RE: INFRINGEMENT OF FUNDAMENTAL AND CONSTITUTIONAL
RIGHTS DURING ARREST BY EACC OFFICERS AND SUBSEQUENT
BREACH OF CONSTITUTIONAL PROVISIONS ON THE PURPORTED
APPOINTMENT OF ACTING CHAIRPERSON – NATIONAL LAND
COMMISSION
I wish to refer to the above subject matter and respectfully address you as hereunder.
As you are now well aware, I am the subject of charges presently in court in respect
to compensations the National Land Commission approved in respect to the SGR
project. I am looking forward to having my day in court and vindicating my name
and that of the office I hold and respect when we face our accusers.
However, in the meantime, I wish to bring to the attention of your office certain
egregious infringements of my human rights and dignity as a senior public official
and a citizen of this country.
1. My house was raided and I was arrested at 5:05 am on Saturday 11​th
August
2018. The arresting officer, a certain Abdi or Hassan told me there an then
that I was under arrest and would be arraigned in court on Monday 13​th
August 2018. This statement betrays the existence of prior instructions to
detain in custody me until appearance in court.
2. Indeed, I asked to be shown the warrant they were acting on but the more
than 21 officers who came to arrest me blatantly refused.
3. I also asked for the reason(s) for my arrest but I was not informed of any but
the officers insisted I was under arrest and I was whisked away in a convoy
of cars. The charges against me were only revealed to me at 5pm on Saturday,
almost ten hours after arrest. Article 49 (1) (a) provides that an arrested
person ought to be p​romptly informed in a language that they understand of
the reason of their arrest.
4. It is noteworthy that the first thing the arresting officer did when they entered
my home was to confiscate my mobile phones and those of my wife also. As a
result, I could not seek help from anybody including my lawyers. The phones
were later returned to me at 8pm on that fateful Saturday.

2. 5. At the EACC integrity centre police station my advocates requested on
several occasions for me to be released on favourable bond terms. The officers
categorically refused and said that they had strict instructions “from above”
to detain me for the weekend. It is informative that other suspects were
successfully released on bond after arrest that same morning.
6. Once I together with six others including Mr. Atanas Maina, the Managing
Director of Kenya Railways were in the cells that the EACC announced that
the remaining suspects could report to EACC offices on Monday morning,
which they all did. They were promptly processed and we managed to go to
court together. This begs the question, what was the point of detaining me for
50 hours from Saturday?
7. The actions detailed in the paragraphs above are in my view illegal, malicious
and a violation of my fundamental rights as expressly provided in Article 49
of the Constitution of Kenya.
8. It is noteworthy that my arrest and subsequent charge in court came against
the backdrop of at least two incidences:
a. Sometime in 2017 before the alleged fraudulent payment for
compulsory acquisition was made by the Commission for the subject
parcels in Embakasi i.e. LR No. 9084, 9085, 9086, 9087 and 9088 the
EACC had written to us to pay for a certain number of parcels
allegedly belonging to Halake Waqo the CEO of EACC together with
four other EACC officers. Upon verification of the titles we found
them to be forgeries and hence rejected payment to the named
owners. We upheld payment to the properties the subject of the
current charges yet these two sets o properties were next to each other.
That is when the witch hunt started by Mr. Waqo.
b. Sometime in September 2013, the management of Nakuru Boys High
School complained to us that 3.65 acres of their land had been
grabbed. On this grabbed land, the grabbers had leased the land to
three petrol dealers, Shell, Total and National Oil. Due to lack of
documents, NLC was unable to prosecute the grabbing until last week
when we obtained the necessary documentation. That information
indicated that one of the school land grabbers is Hon. Mohammed
Yusuf Haji, Senator for Garissa and father to Mr. Noordin Haji, the
new Director of Public Prosecution.
c. On Friday 10​th
August 2018, I travelled to Nakuru and visited both the
grabbed school land and a certain parcel at Shabab Dispensary
opposite Mama Ngina Primary School. As the law provides I
promised to revoke these parcels in order to recover them for public
interest. That same evening, Mr. Noordin Haji gave orders for my
immediate arrest that led to EACC officers to arrest me in the early
hours of Saturday morning.
9. Both acts go against Article 250 (9) of the Constitution of Kenya which
provides that public officers cannot be paralyzed or punished in the course of
their work if their actions are done in good faith.

3.
10. To support the above assertions, I have looked at the charges and I note that
the charges against me have been broken down to several counts to make
them appear more onerous than the rest of the accused persons and yet the
charges are exactly similar in nature and content. This is a blatant attempt by
the EACC and the ODPP to sensationally make the charge sheet appear as if I
was the key mastermind in this alleged crime with most charges being
levelled against me. Consequently, the Magistrate preferred higher bond
terms against me than my other co-accused for this specific reason. Further, I
have been essentially been removed from office by order of the court as I need
to make prior arrangements with the “the new management” if I am to access
my office.
11. Sir you must also be aware of the activities happening at the NLC as from
Tuesday 14​th
August 2018, a day after my release on bail. The magistrate
ordered that I should not go to my office unless accompanied by a police
officer and after consulting with the “new management”. That order has
apparently been translated by the Vice Chairperson to mean I have been
suspended or interdicted. She has subsequently done the following:
a. Convened a Commission meeting attended by only 3 commissioners
where they ostensibly replaced the CEO, Director of Valuation and
Director of Finance.
b. Issued a press release on Wednesday 15​th
August 2018 where the Vice
Chair stated ​“…that the Commission is fully constituted with the
Vice Chair, Abigael Mbagaya Mukolwe performing the duties of the
office of the chairperson as has always been the case when the
incumbent is out of office.” No provision in the Constitution and the
NLC Act makes provision for such an eventuality.
c. On 16​th
August 2018 the Vice Chair issued an internal memo which
resolved that ​“…in the time being, the vice chair, Abigail Mbagaya
Mukolwe, will perform the functions of the Chair as she would
ordinarily perform in the absence of the Chairman.”
12. Article 250 and 251 is clear on the process of appointment and
removal/vacancy of the office of Chairperson. Section 10, 11 and the First
Schedule of the National Land Commission Act also make explicit provisions
in respect to this procedure. The fact that the person reportedly taking over as
Chairperson of the NLC not only orchestrated my arrest but we have
evidence of her corrupt acts as Vice Chair make it untenable to allow this
state of affairs to continue.
All these are clear indications that the main aim of the pending court case was to
replace me through the backdoor outside constitutional and statutory provisions. We
are also alive to the fact that all the machinations on this matter were perpetrated by
one of the commissioners who has persistently been pursuing a negative agenda
against the Commission and myself.
All the above activities coupled with a sustained media campaign are meant to
intimidate myself and the work of the Commission with the overall aim of derailing
government projects that involved compulsory acquisition. From the time these
investigations started in January 2018, Commissioners and Officers are scared of

4. committing themselves to any work involving compulsory acquisition. I have single
handedly tried to implement compulsory acquisitions works and that is why I am
being accused of being a lone ranger. Government projects must go on irrespective of
fear and threats. The Land Acquisition Committee has only met twice since January
2018 to approve acquisitions for more than 24 government projects and even that was
after my instigation. The country stands to lose billions of shillings from stalled
projects such as SGR, Karimenu Dam, Mwache Dam, Lower Nzoia Dam and several
projects linked to the ‘Big Four Agenda’.
From all the foregoing my fervent request is that you urgently intervene in this
matter in seeking answers to the reasons for the infringement of my constitutional
rights by the EACC officers as well as assist in addressing the issue of my ostensible
removal from office. Your assistance will be highly esteemed.
Yours Faithfully,
Prof. Mohammed A. Swazuri, PhD, OGW
Chairman
National Land Commission &
Associate Professor in Land Economics