Jubilee government should leave commission to handle land reforms

By Anyang’ Nyong’o

On the surface, the decision by President Uhuru Kenyatta to issue title deeds to residents of the Coast should be commended as an act of magnanimity that aims to stem a problem that has lived with us for half a century now. But on close scrutiny, it is not.

Firstly, the effort by the Jubilee government to dish out title deeds at the Coast Province is really not its effort, nor is it the duty of the President nor the Minister for Lands to do so. The law establishing the National Land Commission (NLC) was based on the premise that the Executive should not, in any way, meddle in the administration of land, most of all in matters to do with entitlement to land. It was as a result of the abuse of the Executive prerogative under Moi that the grabbing of land spread like wild fire in Kenya. Let not this new populism of the President running around with a wheel burrow dishing out title deeds lead us to yet another crisis when the debate on the actual legitimate owners of land is foreclosed once titles are distributed by the highest office in the land.

The process of solving the squatter problem at the coast is not a jubilee initiative. These are processes that started as far back as 2002 under the Narc government. All that the Jubilee government has done is to move title deeds from the strong room and distribute them to the beneficiaries.

The problem with this predatory tactic is that Jubilee has not initiated or implemented  programmes on land reform that are really needed in Kenya today in line with what had been done before Jubilee assumed state power. It would be fine for a new government to take over from where the last left. Today we have a new Constitution that spells out the whole procedure on land reforms. NLC is perfectly placed to handle its mandate as an independent constitutional commission. Jubilee is actually taking Kenya backwards to an era when good things could only happen because of the subjective inclinations of a President and not because of the objective functioning of existing public institutions.

At the centre of land reform in Kenya as envisaged in the Constitution is the addressing of historical injustices. How the Kenyatta family, for example, came to own up to one quarter of Kenya’s land is one of those injustices, and nowhere is it more prominent than at the Coast and Taita- Taveta in particular. Without adherence to constitutional stipulations, the President’s effort is clearly an attempt to hoodwink Kenyans into believing that land reform has started without the government having to deal with the real issues.

The President’s effort is clearly an attempt by the Jubilee government to pull the wool over the eyes of Kenyans so that they forget the real objectives of land reform. When the President says that land titles should be investigated, this investigation cannot be for the crimes of a few years back and must extend to the days after independence where the root of these land crimes lie. And the Constitution is clear that this investigation, just like the addressing of historical land injustices, is to be conducted by NLC, not the Executive or the presidency. Supposing the Executive had been at liberty to investigate and adjudicate on the issue between the Deputy President and an IDP whose land he had irregularly acquired, what would have been the outcome of this case? Your guess is as good as mine.

Likewise, by taking over the process of investigating title deeds nationally, the President and his deputy want to determine what gets investigated and what does not. That leaves the Kenyatta family’s land intact. And of course those who have been in the inner circles of power since independence will be protected as the failure to implement the Ndung’u Report has shown.

It is gravely critical given that even the President’s deputy has a number of questions hanging over his head regarding land. Only recently, the Deputy President was forced to hand back land he had taken from an internally displaced Kenyan. The same DP had a long running case regarding public land acquired under questionable circumstances in Nairobi.

We fear that the two leaders want to hijack the process of addressing land injustice, keep the Land Commission away so that Kenyans cool down feeling reforms have begun while the two are merely shielding their ill-gotten tracts of land. The truth is that after days of dishing out title deeds, only those who had land have titles. Those who squatted on land owned by Kenyatta and Criticos will continue to be squatters. The Constitution and the current Land Reform Policy requires that the issue of land be dealt with INSTITUTIONALLY through the NLC and that the various categories of land ownership be respected.

The problem with seeing the solution of the land issue as simply a title deed problem handled by the Executive is that it can easily ignite land related conflicts in many parts of Kenya. Already such conflicts have erupted in Trans Mara and Tana River where issuing titles to a few without dealing with the wider issue of the land ownership regime has simply sewn the seeds of conflict. It would be preferable to give the Commission time to come out with a clear road map for implementing the National Land Policy than for the Executive to jump into the fray and once more stir the hornet’s nest.

If the Jubilee government is being honest about land reform, let them uphold the Constitution of Kenya and leave the matter to the institutions and agencies created by the Constitution for this purpose. Otherwise, the Jubilee government will only be subverting the Constitution so as to protect the vested interests that are likely to lose privileges they they have enjoyed for a long time from a genuine land reform process. Let an independent organisation carry out land reforms. That organisation is the National Land Commission.