Land Reform Centre-Stage in Kenyan Election
Delays in enacting legislation to address longstanding grievances make land as potent an election issue as ever.
By Robert Wanjala - International Justice - ICC
ACR Issue 341, 1 Mar 13
Last August, the Kenyan parliament approved nine members of a National Land Commission. Their job will be to implement provisions of the 2010 constitution intended to guarantee equal access to land, ensure that land benefits local communities, and prevents public lands being carved up by those in positions of power. The commission will also examine past injustices over ownership and advise on a new programme for registering land titles.
Grievances over land ownership in Kenya date back to colonial times and to the post-independence period. Unequal access to property rights, coupled with allegations of mismanagement and illegal allocation of public land, have led to long-running disputes.
From large tracts of farmland and pasture in the Rift Valley to the packed slums of Nairobi, these issues are a particular focus of tensions during election periods.
After months of bloodshed left over 1,100 Kenyans dead following the disputed presidential election of December 2007, the Waki Commission, set up to investigate the causes of the violence, reported that one of the major factors was the failure of past administrations to address land disputes.
Later in 2008, President Mwai Kibaki and Prime Minister Raila Odinga signed an agreement committing the coalition government to work on land reforms as a key way of avoiding any recurrence of mass violence.
However, since the new constitution of 2010 and a National Land Policy passed a year earlier, little further progress has been made. Real change will come when the Land Commission starts functioning. It will manage public land on behalf of both central and county government, and will make recommendations to the authorities on strategies for resolving disputes.
Following a high court order, President Kibaki finally gave his formal assent to parliament’s choices on February 20 thus giving the commission the green light to go ahead with reforms. But the delay in authorising the commission to start its work has once again made land a highly-charged political issue in the election campaign.
"We have witnessed and observed disturbing comments on land by politicians in the recent weeks,” Collins Kowuor, chairman of the Institution of Surveyors of Kenya, said. “What is of concern to all Kenyans is the equitable access to land and how these [presidential candidates] will address historical injustices around land."
David Kimaiyo, the inspector general of police who was appointed in December, has warned candidates against discussing potentially divisive land issues during campaigning.
Land experts, too, warn that sensationalising the issue could inflame tensions between different communities.
Ibrahim Mwathane, chairman of the Land Development and Governance Institute, LDGI, an advocacy group in Nairobi, told IWPR that the candidates should “undertake to implement land reforms as provided in the National Land Policy, the constitution, and the new land laws once they form government.”
ROOTS OF VIOLENCE
The failure to reform land laws is seen as an obstacle to containing inter-communal strife. As the election approaches, there are fears that unresolved disputes over ownership and boundaries could lead to a resurgence in violence.
“Historical land injustices have not been tackled, and therefore national healing is yet to be realised,” Mzalendo Kibunjia, chairman of the National Cohesion and Integration Commission, told a conference on election preparations in Mombasa in January.
Many Kenyans are still struggling to win rights to lands in which they have lived for decades.
In the Rift Valley, the location of some of the worst fighting of 2007-08, Onesmus Opande, 65, has lost his claim to an area he has lived on for the last 20 years.
He says that despite promises made to him, the local authorities in the Uasin Gishu county have sold the property.
“I worked hard on my piece of land and made sure my family was well-fed, clothed and educated, only to be told the land had been sold and I must leave immediately,” Opande said. “This is a double tragedy. I lost everything during post-election violence in 2007, and now the piece of land I had come to call mine has been taken.”
Opande, a father of eight, said he was encouraged when the new constitution was passed because he thought the government would address land issues swiftly, and allow him and over 250 other families in the same area to claim the patches of land they have occupied since 1990.
His neighbour, 30-year-old Margret Songok, believes the government has reneged on past promises.
“The government told our parents that they will be given title deeds to own this land,” Songok said. “It’s shameful for the government to drag its feet on this matter, and now we have been told to leave because the land has been sold to a private developer.”
Two of the presidential candidates, Prime Minister Odinga and Musalia Mudavadi, are each promising voters that if they win, they will address land questions once and for all.
Odinga, who is standing for the Coalition for Reforms and Democracy, CORD, has published a programme that promises to address injustices “including, but not limited to, squatters’ problems, displacement of indigenous communities, and involuntary resettlement of populations”.
When Mudavadi launched his election manifesto earlier this month, he pledged to provide proper funding for county land boards and other institutions in order to accelerate reforms.
“We want people to live in peace, because it is with peace that we can succeed in uniting all Kenyans,” he told a rally in the Rift Valley in January.
REGULATIONS ALREADY IN PLACE
In a report last year, the LDGI outlined how two existing laws could help people access their rights to land. The Environment and Land Court Act of 2011, once it is implemented in full, should help tackle the huge backlog of land-related cases with new county-level courts set up to deal with them.
Meanwhile, the 2012 National Land Commission Act would remove responsibility for managing publicly-owned land from a lone commissioner appointed by the president – a system that the LDGI report said had “resulted in irregular allocation”. Such lands would instead be managed by the Land Commission.
The same law also allows for land transactions to be reviewed, and opens the way for further legislation that would address dispute resolution, improve transaction methods, and reduce the number of duplicate land titles.
Supporters of land reform say the best way of implementing the terms of the constitution, the National Land Policy, and the two laws is locally, at county level.
“We want the establishment of key institutions recommended in each of the documents under the devolved system, then [for county administrations to] implement key land-reform recommendations systematically,” Mwathane said.
Funding all these mechanisms could be a problem. Kenya’s minister for land, James Orengo, has repeatedly complained that the treasury has not provided enough money to fast-track the reform process.
LDGI executive director Mwenda Makathimo acknowledges that substantial funding will be needed to get things moving at first.
“In a country where education, health and infrastructural development are considered basic needs, any government will need to fully understand the trickle-down advantages of land reforms [in order] to boldly provide sufficient funds to sustain the implementation in the land sector.”
RESISTANCE TO REFORMS
One of the main obstacles to action, experts say, is that some members of Kenya’s ruling elite have a vested interest in the status quo.
“In Kenya, land reforms are about reshaping wealth and power relations, and therefore the reforms attract influential and powerful opponents,” Mwathane explained.
Philip Barno, who works on causes of conflict with the Rural Women Peace Link group in the Rift Valley, has accused both of the factions that make up the current ruling coalition government of having “land skeletons in their closet”.
“Therefore, it would be difficult for either of them to transform the land sector in the country due to their proximity to the whole issue,” he said.
One leading candidate, Uhuru Kenyatta of the Jubilee Alliance, has publicly rejected allegations that his personal landholdings might make him reluctant to move on reforms if he were to win.
Addressing claims that the property left him by his father, Jomo Kenyatta – Kenya’s first president – included state-owned lands, he told Citizen Television, “If any person has any evidence regarding me or my father [and] claims of land-grabbing, let him table it before the public and prosecute me.”
Robert Wanjala is a freelance reporter in Eldoret, in Kenya’s Rift Valley region.
This article was produced as part of a media development programme by IWPR and Wayamo Communication Foundation.