News 2004

Big step towards new land laws

Story by JOHN MBARIA 
DAILY NEWS 
Publication Date: 10/06/2004 


For the first time in Kenya's history, the Government has started a process that might finally settle the "land question." 

It goes beyond all previous attempts, most of which have at best, amounted to "fire-fighting" commissions established to investigate critical developments in the land sector. 

Although the process of enacting an all-embracing National Land Policy began late last year, experts are upbeat that the Government is serious in seeking a final solution this time round. 

"At the beginning, we, members of the civil society, were apprehensive that the Government would go it alone and present Kenyans with a policy in which they did not have an input during preparation," said Mr Bosire Ogero, the chairman of the Kenya Institute of Planners. These fears were allayed last year following the release of the Njonjo Land Report. 

"When the minister for Lands invited us to discuss the report, we suggested an all-inclusive and participatory land policy process, which he has taken seriously." 

On the Government's seriousness at seeing the process through, Lands minister Amos Kimunya says: "We started the process because we were serious on it. And we did not start it when we formed the Government; it is something we had stated in the Narc manifesto. We are basically bringing into fruition what we have been yearning for before we got into the government." 

Many stakeholders have been brought on board and there is optimism that Kenyans might finally come to grips with what experts see as the mess in the land sector. 

Following closely after the initial agreement with a diverse group of stakeholders was a draft concept paper prepared by an inter-departmental team from the ministry of Lands. 

The draft was then discussed during the initial stakeholders meeting on February 10, which brought together the Kenya Association of Manufacturers, Nairobi Central Business District Association, Central Organisation of Trade Unions, Kenya Farmers Union, Government functionaries and representatives of civil society. 

However, participants feel that the serious process began during the preparatory workshop organised by the steering committee on August 4 at the Kenya School of Monetary Studies in Nairobi. 

During the workshop, the general view was that if the process was sincere and embraced the views, needs and aspirations of the majority of Kenyans it could actually result in the final settlement of the so-called "colonial question.". 

Land law professor Okoth Ogendo urged the national steering committee not to shy away from contentious issues but address them "in all their nakedness." 

Financing the process are a consortium of donors – DfID, USAid, SIDA and the Irish Government. The Kenya Government has sunk in Sh20 million. 

Evidence of the "colonial question" recently came to the fore when members of the Maasai community staged street demonstrations, demanding restoration of land they ceded to the British colonial government under the Anglo-Maasai treaties of 1904 and 1911. 

And though many Kenyans are not sensitised on the implication of the process, most are likely to be full of expectations immediately the organising committee starts collecting views. 

Commentators have argued that if previous efforts at coming to terms with critical aspects of the land sector – Njonjo Commission, Ndung'u Commission and, to a lesser extent, the Constitution of Kenya Review Commission – are anything to go by, then the process is likely to ignite widespread emotive reactions. 

A short glimpse of this was evidenced during the opening session of the August 4 conference when about 100 members of the pastoralist and hunter/gatherers communities demonstrated outside the meeting hall demanding inclusion in the process. The impasse was resolved after the organisers allowed seven of their representatives to take part in the discussions. 

Though some members of the civil society are supportive of the Government's efforts, the land policy-making process comes at a time when Kenyans have openly criticised the Government for the way it handled the Maasai who sought restitution for what they say are historical injustices committed by the colonial government. 

That the Government went out of its way to violently disperse the demonstration during which one person was killed by the police, has not gone well with many Kenyans. 

Kenyans are also suspicious of the Government's seriousness in addressing the land issues, following its failure to release the Ndung'u Report, which is widely believed to have implicated many sitting and past Cabinet ministers, who are afraid of the public backlash once it is released. 

The national steering committee headed by the deputy director of physical planning department, Mrs Rosemary Wachira, has organised participants into six thematic groupings as stipulated in the National Land Policy Formulation Process Concept Paper prepared in March.

The paper spells out the objectives of the process, the expected outcome and the scope of inquiry. 

At its onset, it states that Kenya does not have a clearly defined or codified land policy and as a result, "important issues such as land administration, access to land, land use planning, restitution of historical injustices, environmental concerns, plot allocations ...are inadequately addressed." 

Those in the know say that this is a gross understatement of the quagmire created by lack of a land policy. 

"The situation is precarious and needs to be handled with utmost care," said Mr Bosire, adding that since the British set foot on Kenyan soil and alienated huge tracts of lands for themselves, there has only been, at best, piecemeal, fire-fighting attempts at addressing the land question. "But what is evident is that there has not been any land policy." 

This had resulted in what has come to be known as a "land crisis." 

Despite commissions set up at the whims of the country's past and present chief executives, very little has been done to harmonise ownership, use, administration or even plot allocations. 

As a result, land holding today is highly skewed with a small percentage of mostly business-cum-political elite sitting on the big percentage of the best arable lands. 

Some of these people are said to hold on to land for purely sentimental and speculative purposes. 

There has never been attempts at addressing historical injustices, so that communities displaced by pre-independence pacts with the British are still locked out of the land. Anybody anywhere can literary do whatever they want with their land as long as they possess the necessary ownership documents. 

Owing to a lack of capacity, the country’s planners have been unable to guide Kenyans on how to utilise lands in different eco-geographical regions; a thing that has consequently resulted in serious environmental degradation and particularly the destruction of resources critical to the survival of entire sections of the population and the country’s economy. 

Today, forests, surface and subterranean water resources, the top fertile layer of the soil, wildlife diversity and fresh air are all under increasing threat owing to lack of land use plans. 

Talk is rife however that the Government is seriously considering setting up a national planning authority, likely to be mandated with regional planning and empowered to outsource for expertise and resources to make and implement plans. 

Experts say that for continued peace and harmonious living in the country, it is most critical that the National Land Policy-making process spells out a land ownership system agreeable to most Kenyans. 

While land demarcation started in the 1950s and is nearly complete in many parts of Eastern and Nyanza provinces, most other parts of Kenya are yet to be demarcated, a situation that has given rise to what experts term a "confused hybrid" of communal, private and public ownership. 

Besides, many pastoral communities were driven out of lands that once supported their economic activities to set up the country's 55 national parks and reserves. 

In some instances such as in the Sibiloi National Park in Marsabit, communities such as the Rendille, Danasach and the Gabras have not fully accepted the loss of what they consider to be part of their dry season grazing area and have been at loggerheads with the Kenya Wildlife Service. 

According to the director of Community Museums of Kenya, Mr Eustace Gitonga, the park was previously a strategic grazing land before being gazetted in the early 1970s. 

The potentially explosive issue of the ownership of the 12-mile coastal strip is yet to be resolved and there have been on-and-off claims that the land is in the hands of the Mazrui family. 

In addition, a more interesting ownership issue is that the law gives the State rights over all the land beyond a certain depth from the ground-level and to unequivocally acquire any land for purposes of State security and promotion of public good, this justification is likely to be challenged as Kenyans embark on the clamour for devolution of powers, responsibilities and State resources. 

According to Mrs Wachira, these are some of the sensitive issues that the National Land Policy will be addressing. 

The national steering committee has put together six thematic groups with each addressing particular land issues. 

Headed by experts on different land-related fields, the teams have over the better part of August and September been working on land issues submitted to both the Njonjo Commission and the CKRC. 

The ministry has also been calling on Kenyans who did not get a chance to present their views to these two commissions to make their memoranda available. 

"By October, we should go full blast with the process," Mrs Wachira said, adding that the teams would be visiting different parts of the country to familiarise themselves with the land situation. 

Trips are also planned in a number of other countries for a different perspective on how to handled the exercise. 

Mr Kimunya said that by June next year, Kenyans were likely to have a new land policy depending on how soon a national consensus is arrived at on contentious issues. 

Experts believe that unless Kenyans approach the process in a spirit of give and take, it would be a failure. 

"What is important is for Kenyans to realise that enacting a land policy does not mean changing things overnight. The all-important process of implementing the policy will definitely be a slow and laborious process," said Mrs Wachira, adding that it might take years before Kenyans see positive results once implementation starts.

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