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Land
question generates more heat than light
Story by ERIC SHIMOLI
NATION,
Nairobi
Publication
Date: 10/3/2005
The sensitive issue of land
ownership and usage has emerged as one of the most hotly contested
in the debate for the proposed new Constitution.
Controversy has centred around
clauses stipulating how land owned communally by pastoralists such
as game reserves and communal ranches will be owned and managed.
The other sticking point has been
the provision outlawing gender discrimination in inheritance,
which has been interpreted in some sections to mean that women and
men will have equal rights to inherit ancestral land, previously a
male preserve.
Both the Yes and No sides agree
that the proposed Constitution contains provisions on land use and
ownership adopted during the Bomas conference.
The differences occur when they
start arguing how the new law will be applied.
While those supporting the proposed
law argue that it gives communities greater say in the running of
their ranches, those opposed to the Draft say it has taken away
such benefits and transferred them to the envisaged National Land
Commission.
Even President Kibaki, who promised
to follow government programmes and policies to the letter,
appears to have learnt the art of real politik.
Faced with a massive rebellion,
which would have made it difficult for the Yes campaigners to sell
the Draft constitution in Maasai dominated areas, the President
met with MPs from the region to assure them that they would still
retain control of national reserves such as Maasai Mara and
Samburu even if the new law comes into force.
"The responsibility of the
Government is to ensure that those natural resources are
sustainably developed and managed for the benefit of Kenya as a
whole and for the benefit of the inhabitants of the region where
those resources occur," Civil Service head Francis Muthaura
announced in a statement after the meeting.
He added: "The emphasis in
this regard is on the assurance that communities in which these
resources are located should be main beneficiaries.
"Secondly, national reserves
such as Maasai Mara, Samburu and others do not come under the
article and they do not, therefore, fall under the mandate of the
national government."
Maasai Mara and Samburu will
continue to be classified as Trust land even if the new law is
enacted. As such they will be held by District Governments on
behalf of the communities.
The same announcement saw the
conversion of Amboseli National Park to a national reserve and its
administration handed over to the Olkejuado County Council, which
will hold it in trust and for the benefit of the people of the
area. It will be managed by the Kenya Wildlife Service in
conjunction with the council.
The Government also revoked an
earlier order outlawing subdivision of agricultural land below 2.5
acres (one hectare).
The ban, while logical because
sub-division of agricultural land in Kenya is reaching alarming
proportions and the country is in danger of having its most
productive agricultural land split to uneconomical portions, was
politically naive because of the high premium placed on land.
It is one of the reasons an
otherwise sympathetic Kerio South MP Nicholas Biwott has been
unable to actively participate in the Yes campaign. This directive
was unpopular with his constituents.
An uproar, especially from
residents of densely populated areas, greeted the order. They
complained that the decree would deny children from inheriting
ancestral land. This, they said, would deny them the chance to
acquire title deeds for use as collateral to borrow money from
banks.
It is the tradition in many
societies in Kenya that male children inherit parent's land,
regardless of the size of the family. This leads to sub-division
into units, some smaller than one hectare.
While rescinding the order putting
a cap on the size of land one could sub-divide, Lands minister
Amos Kimunya said the "mood" was not right for the
proposed land reforms.
Energy Minister Simeon Nyachae, who
chaired the last Parliamentary Select Committee on law review,
described as insincere those opposing the draft because of land
ownership and usage.
"Land was never a contentious
issue and the proposed Constitution borrowed what Bomas had
recommended," Mr Nyachae said.
Cabinet minister William ole
Ntimama had said that the Maasai would campaign for the No vote
allegedly because the law would take from them control of game
reserves and sanctuaries on which the Maasai and Samburu
communities depend for survival.
The section banning foreigners from
owning freehold land is impractical because it is easy to evade.
The draft stops foreigners from
owning freehold land in Kenya.
One observer said: "Though it
is easy to see the politics of this, legally it is a completely
unnecessary rule. Private companies incorporated in Kenya are
citizens. In the law, a company is a different person from its
owners. If a foreigner wishes to own freehold land in Kenya, she
could simply buy the land through a Kenyan private company. In
law, such land will be the company’s, a Kenyan citizen, but the
beneficiary of its fruits will be the foreigner."
Patrick Odenda of Kenya Land
Alliance observed that land ownership would never be the same if
the Bill is passed. "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," he was quoted as saying.
Land is an emotive subject in the
country and it is one of the reasons Kenyans took up arms to fight
for independence against British colonial rulers who had taken
over some of the country's most agriculturally productive areas.
It was also one of the reasons for
the ethnic violence in parts of the Rift Valley, Western, and
Nyanza provinces in the early and mid 1990s.
Both sides to the constitution
debate have targeted the expansive Rift Valley Province with its
huge voting blocks in their campaigns.
Education minister George Saitoti
is leading the Yes campaign in the South Rift while his Office of
the President counterpart William ole Ntimama has joined the No
bandwagon though he has not yet joined the mainly Kanu and Liberal
Democratic Party MPs and leaders at their public rallies.
The Yes and No campaigns have been
interpreting differently provisions on land ownership and how this
will affect squatters and pastoralists, especially in community
ranches owned by the Maasai and Samburu communities.
Among the allegations are that it
violates the rights of the Maasai to their land, their natural
resources and cultural heritage.
Those opposed to the provisions
claim that the Draft does not provide for the development of
pastoralism and pastoral land areas; it takes away from the Maasai
their game reserves, forests and water catchment areas, animal
sanctuaries and private wildlife protection areas; it converts
group ranches into public land to be administered by the National
Land Commission. It is also claimed that the proposals will impose
a tax on land, limit the maximum acreage, enable the landless and
squatters to be settled in group ranches and other communal lands.
Other allegations are that the new
Constitution gives too much power to the National Land Commission
and centralised power to administer land, while its composition is
determined by the President alone and that it does not provide for
redress of historical land injustices.
The counter argument is that the
Constitution eliminates disparities in development between various
parts of the country by setting this as one of the national goals
and values.
That the requirement on the
Government to promote use of traditional farming systems and
traditional foods and drinks implies that pastoralism has been
recognised as a way of life.
"The state and the National
Land Commission are required to encourage communities to settle
land disputes and conflicts through traditionally accepted systems
of dispute resolution," reads a document distributed during a
Yes rally in Kajiado.
Regarding trust land, the
document reads: "All lands that are presently categorised as
trust land and held by county councils on behalf of the local
communities will under the new Constitution be re-categorised as
community land."
Such land will vest in and be held
by communities on the basis of their ethnicity, culture and
community interest. If such land is unregistered, it will be held
by the district governments in trust on behalf of local
communities.
The authors argue that unregistered
land includes the Maasai Mara and the Samburu national reserves
while those falling under trust land include the Maasai Mau,
Namina Enkiyo, Ngong Hills, Oldonyio Orok and other shrines and
community grazing areas.
The new Constitution states that
land is Kenya's primary resource and the basis of livelihood of a
lot of people. It adds that land will be held, used and managed
equitably, efficiently, productively and sustainably. It binds the
Government to ensure security of land rights for all land holders,
users and occupiers.
It calls for elimination of gender
discrimination in laws, regulations, customs and practices related
to land and property.
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