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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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