NEWS 2005

 

Radical proposals on land ownership

The Standard
Sunday September 4, 2005

By John Kamau

The problem of landlessness is worse than many Kenyans think — something that will complicate the implementation of the Wako Draft Constitution.

The Sunday Standard has established that hundreds of thousands of Kenyans, holding decent jobs and leading modern lifestyles, don’t own land.

Majority of land title deeds are in the names of their pre-Uhuru generation parents most of whom are now aging.

The Wako Draft proposes to "resettle the landless and squatters" among other radical proposals that if adopted will revolutionise land ownership in Kenya.

"Land ownership will never be the same again if the proposed Wako Draft is passed," said Lumumba Odenda, the coordinator of Kenya Land Alliance. "It is the most radical move on land since independence and I would say that 95 per cent of the document on land has captured the entire Bomas spirit on land issues."

Other than promising to resettle the landless, the Constitution would give the government powers to review all land ownership agreements of the past and "redress" any injustices.

The implications of this are unimaginable as, among other things, for the first time Kenya would be released from the constraints of the Lancaster House Agreement of 1962.

Parliament will now have powers to come up with radical measures that may include compulsory acquisition of land for redistribution and resettlement and nationalisation of private land.

"The document is radical in that it is open-ended. It has given parliament lots of powers to do many things," says Wachira Maina, a constitutional lawyer.

Parliament will have new powers to remedy historical land injustices and to come up with a new legislation to help settle squatters and the landless and limit the acreage of land an individual can own.

Land is a sensitive issue in Kenya, which though relatively peaceful since Independence, has had land clashes resulting in thousands of deaths.

At the same time, documents unearthed by The Sunday Standard show how Kenyans were conned of their land in a plot hatched by the British Government and the then new Kenyatta Government (Separate stories available in the Digital Edition).

They also show that the handing over of farms to a new African elite was a deliberate effort by Britain to buy the safety of settlers.

The proposed constitution borrowed heavily from lobby groups in Bomas which advocated a total change on land policy and challenged the Bomas parley to vest the land on the "People of Kenya".

The task of remedying colonial, Kenyatta and Moi era mistakes will be vested in a new body, a National Land Commission, whose task among other duties, is to "initiate investigations… on land injustices both present and historical and ensure appropriate redress".

"It will lead to a radical transformation on the way we look at land," said Odenda. "This was one of the demands at Bomas and people were passionate about it."

The Draft also proposes the formation of a land purchase scheme and establishment of a Land Fund to enable people acquire land and settle the landless indigenous people.

Whether this will finally resolve the land question is still in doubt but it will trigger controversy and affect big landowners in the country who may face investigations on how they acquired their land.

Complications

There are complications attendant to the implementation of the Draft proposals on land.

"If Wako is proposing to settle the landless, who are the landless? They have to define the landless because anybody can claim to be landless in order to be given land," said Josephine Wanja, a beautician in Nairobi.

"My husband has land but I don’t have land. Does that make me landless? And yet can I really claim to own any land? There must be a foolproof way to establish who is landless and who isn’t," Wanja adds.

But for Elius Mogere, from Kisii, his problem is different. "My father has three acres of land which he has to divide between the four of us. If the new Constitution is adopted, that will be between the seven of us as it requires that sons and daughters alike get a share of the family land. Otherwise, it would be gender discrimination."

Mogere says this will both reduce his share of the land as well as put him at a disadvantage when compared to the completely landless.

"A person who is landless now could be resettled on a 10-acre piece of land as I literally squat on my less than an acre inherited from my father," he says and then shakes his head.

According to Odenda, the radical nature of the proposal is such that: "For the first time land unlawfully acquired will no longer be protected."

But experts say that the document has fallen shy of seizing land owned by absent landlords although it has denied foreigners the right to own freehold land.

"The only problem with that Section 83 is that foreigners can incorporate a company locally and that way own the land," said Maina.

Odenda agrees that Section 83 of the proposed constitution will need a clear law. "Suppose locals own 75 per cent of the company and the rest are by foreigners. What will happen?" asks Odenda.

Also for the first time parliament will have a greater say on land than even envisaged in the Independence Constitution which gave the President immense powers on land allocation something both Kenyatta and Moi used for political mileage.

As in the Bomas Draft the Wako Draft will stop any further land grabbing of public land and has vested ownership and administration of the land to district governments and the National Land Commission "in trust for the people of Kenya" and "residents in the relevant districts".

The most radical move that the Lancaster constitution failed to do is the recognition that "all land in Kenya belongs to the people of Kenya collectively as a nation, as communities and as individuals."

The proposed constitution also recognises community land. The draft constitution has, as in the Bomas Draft, defined community on the basis of ethnicity, culture or community of interests.

For the first time the Draft has recognised land occupied by hunter-gatherers who put an epic battle at Bomas to have their ancestral lands protected.

"We are very happy with that clause because it will help us recover our lost land," says Kimaiyo Towett of the Ogiek Welfare Council.

The Ogiek and Sengwer communities have lost most of their traditional lands to grabbers and have always faced eviction threats.

"The only problem with the case of Ogiek is that they also occupy areas recognised as government forests. There might arise a conflict on what land they will occupy and who will administrate it since community land is vested in district governments while forests are under the Central Government," says Odenda.

If the new constitution is passed the huge Mau Forest occupied by the Ogiek will cease to be public land as defined in section 80(1)g and become community land.

Also, Parliament will now have powers to prescribe minimum and maximum land holding acreage in arable areas to ensure that land is distributed "on an equitable basis."

Such legislation once enacted might see big landowners lose part of their land in the bid to settle the landless and squatters. The Njonjo Commission on Land had proposed that idle land — unoccupied, mismanaged or undeveloped — should be repossessed "through appropriate constitutional amendments".

The major impact of the land purchase scheme will be felt in the Coast province where the Mazrui family and other absentee landlords own huge chunks of land.

In the Wako Draft any land whose lease is of over 99 years will automatically revert to the State "and the state shall grant to the person who held such a greater interest a ninety-nine year lease".

Whether the government will automatically give the grant is open for debate because it has powers to give the land to resettle the landless.

To be affected are white-land owners whose land leases are nearing lapse after the 99-year lease. The last Land Bank, the predecessor to Agriculture Finance Corporation, was abused in 1960’s and 70’s when only a few elite managed to get the loans.

The new constitution says the fund will enable Kenyans gain access to land equitably.

"The only thing I see wrong with the proposal is that there may be clashes between the Central Government and District Governments if the latter rebels," says Odenda.

Another major transformation is that women will now have a constitutional right to inherit property.

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