Radical proposals on land
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
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
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
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?"
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
"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
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.