Land question: The elephant in the room


NATION AGENDA: Land question: The elephant in the room

The accord brokered by Kofi Annan as well as the TJRC report placed land reform at the heart of Kenya’s political and economic stability

The ‘land question’ has peppered political battles in Kenya for decades. This explains the rush by parties to place land matters at the centre of their manifestos.

Jubilee’s 2013 land reform manifesto was anchored on a raft of planks: Reforming registration and management; repossessing illegally acquired public land; and adjudicating and titling community land. Its launch was flavoured with strong declarations by party leadership.

“Land was the basis on which the war of independence was waged...Too much blood has been shed in for that…Jubilee will ensure title deeds are given to people even in slums like Kibera where locals are sitting on land valued at more than Sh60 billion yet it is not helping them economically,” Mr Uhuru Kenyatta said.

Figures hardly lie. Once in power, Jubilee promised to title three million pieces by August 2017. Based on recent press reports, this administration isn’t far off the mark. More than 2.4 million title deeds had been issued out by July, according to Lands, Housing and Urban Development Cabinet Secretary Jacob Kaimenyi. This works out to 800,000 a year.

Between 1956 and June 2013, only 5.6 million pieces were titled countrywide — about 112,000 titles a year.

Implicitly, were Jubilee to be re-elected in August and maintain the feat, the administration would have outdone what the colonial government, Jomo Kenyatta, Daniel Moi and Mwai Kibaki regimes combined attained in regard to issuing land title deeds.

In the same breath, the government says it had by November 2016 cancelled 4,000 irregular titles.

“The law says grabbed public land titles must be revoked,” Dr Muhammad Swazuri, the National Land Commission boss said.

The countdown to the August poll is on. Deputy President William Ruto is upbeat that Jubilee’s line of attack to the land question is the right one.
“I want to say that Jubilee has land answers while the opposition will continue looking for the land question,” he said in September.

However, critics of this approach are convinced almost nothing meaningful has been achieved towards responding to the land issue, and that the administration is playing political brinkmanship, its rhetoric mere hyperbole meant to attract votes.

HISTORICAL INJUSTICES

“Jubilee cannot win votes by issuing title deeds for land that residents already occupy. It has failed to address historical injustices,” ODM leader Raila said recently.

The critics maintain that though the dishing out of titles is welcome, it nonetheless is a tactic to hoodwink reformers about the authorities’ seriousness in tackling land problems.

They say giving titles to squatters without major reforms in ownership is mere ornamental treatment to a huge problem, akin to administering a painkiller to a malignant tumour.

“Without major reforms, you’ll keep dishing out titles because the system built up since colonial times and perfected by independent regimes will keep channelling out squatters,” said an NLC member who wished to remain anonymous.

The sentiments are shared by Mr Odenda Lumumba, director Kenya Land Alliance, an NGO established to ensure secure and equitable access to land and natural resources.

“There is too much promise and rhetoric about what is being addressed when the reality is simply that the intervention by the government is flawed, slow and at best retrogressive,” he told Institute for War and Peace Reporting radio.

It is hardly difficult to understand the fault-line. Indeed, figures hardly lie. Nonetheless, they may conceal home truths.

ISSUANCE OF TITLES

According to experts, the answer to Kenya’s land problem is beyond issuance of titles to squatters and drafting a raft of legislations. A far-reaching long term approach is what will bring peace. This is because land and economic marginalisation are bedmates. The 2007 post-election violence and the secessionist rhetoric are linked to land ownership.

Said the NLC member: “The government appears deliberately shut to the truth that squatters are a result of an injustice, and they will continue being there as long as the injustice is not corrected.”

The National Accord brokered by former UN chief Kofi Annan and signed in February 2008, as well as the Truth, Justice and Reconciliation Commission report placed land reform at the heart of Kenya’s political and economic future stability. Agenda Four, a key plank in the deal, stressed lasting solutions to Kenya’s problems — including constitutional, legal, land and institutional reforms; national cohesion; and accountability, transparency and addressing impunity.

Whereas the Mwai Kibaki government delivered a Constitution in 2010, the requisite land reforms, national cohesion and addressing impunity, still are unfulfilled promises. At times, an already apathetic public feels officials are playing political ping pong with these matters.

TJRC’s key recommendation was that authorities investigate fraudulent acquisition of land, design and implement measures to revoke illegally obtained titles and restore public ease. But the popular, and perhaps the most politically-sensitive of them all, was to do with reparations for historical land injustices. In fact, TJRC gave authorities 36 months to sort out the reparations issue.

If it is implemented, top politicians — serving or retired — would find themselves in the eye of a storm, as either owners or indirect beneficiaries of fraudulently acquired land. They will resist pressure to have the allocations nullified.

A case in point is the Coast. A workshop convened by NLC in 2015 was treated to grim facts about land: Sixty-four per cent is owned by either the State or influential individuals. Only 34 per cent is community land and is hardly adjudicated.

According to TJRC, land injustices started during the colonisation of the Coast by Arabs and later the British. Post-independence government regimes failed to address these injustices.
“The government says that 600,000 titles have been issued at the Coast. The problem of the Miji Kenda was not titles but recovery of chunks of their land grabbed during the Jomo Kenyatta regime,” Mr Odinga said during a recent rally at the Coast.

Yet authorities continue to sneer at the TJRC findings. Soon the committee’s recommendations will be at the centre of political campaign battles. And the issue will be buried after the elections.
There doesn’t appear any goodwill to reform land. In fact, some actions betray the intention of the government.

Critics believe laws have been used to subvert reforms.

“We need good laws to engender good governance but that will only materialise if we do it with good practices and approaches,” Mr Lumumba said.

In a paper he co-authored with Ms Jacqueline M Klopp of Columbia University presented at a World Bank meeting last march, he argued that when networks of powerful actors who have benefited from irregular land ownership are confronted with change, they resist it using a variety of tactics.

These include “deliberate slowing down of implementation, violation of the Constitution, triggering bureaucratic power grabs and infighting, scuttling or amending legislation or introducing new legislation that recentralises power or creates overlapping jurisdictions which tends to create loopholes or obfuscation.

Take the case of Land Laws (Amendment) Act 2016. It places into the hands of the Executive some powers — including policy direction, developing and implementing the national land Information system, and administering and registration of private land interests — that hitherto solely belonged to the NLC.

The answer to the land problem has to be based on fairness, equity and justice. Without this, meaningful reform will remain a pipe dream, whatever the political construct that ascends to power.

During parliamentary debate ahead of its assent in September, opposition lawmakers complained that the proposed law threatened the independence of NLC, the sole agency created by the Constitution to deal with land matters in the country.

Now, given the existing circumstances, it is very difficult to place the Commission in the country’s land reform. It’s either at war with parent ministry or has surrendered its role to political brinkmanship.

Yet even as the government rushes to issue out titles, reports indicate the existence of a cartel – drawing corrupt public servants, crooked lawyers, criminal judicial officers and ravenous land speculators – at Ardhi House, the headquarters of Land’s Ministry, that is tormenting those seeking to renew leases. Last December, two families were evicted after the cartels managed to swindle them of their leases.

This cartel has become more lethal recently, to cash in on the rush by property owners to renew leases granted by colonialists at the beginning of the last Century. Most of the leases had a span of 99 years.
The Land Ministry itself has admitted that it “transferred” nine staff accused of corruption.

CRADDLE OF CORRUPTION

And the rot happens at two places: Lands registry and companies’ registry. The two institutions are the cradle of corruption: Files disappear and/or altered at the speed of light. The inability of authorities to clampdown on corruption here could perhaps explain the lukewarm public reception to reports to the effect that the Lands registry was being “digitised”.

To many people, the exercise at Ardhi House is merely business as usual – another round of official deceit aimed at hoodwinking a public fed up with corruption in the land registration process. The development comes barely three years since the then Land’s Cabinet Secretary Charity Ngilu incongruously discarded her official decency and instead adorned a clerical mien in the excuse of cleansing the registry of corruption.
She closed Ardhi to the public, shut out part of her staff and barricaded herself from scrutiny and performed a ritual whose result is best known to herself – or is yet to be revealed to an already cynical public that’s convinced the process was aimed at hiding or altering files that betray the selfish and unequal land ownership in the country.

The larger feeling was that she did somebody’s bidding.

Ngilu’s and her successor Kaimenyi are attempting something akin to the naughty ‘wealth declaration by public servants” introduced by the Mwai Kibaki regime after it rode to power in Dec 2002. That exercise appears to have fizzled out under the weight of politics. It was a charade. Nobody knows whether public servants, from the level of Head-of-Sate, declared their wealth since nothing was ever made public.

To critics, authorities’ focus has been on ad hoc responses rather than long term justice. Nor an attempt to inter-connect law and justice, as London-based Africa Research Institute’s Ambreena Manji once said in a report, Whose Land is it Anyway? The Failure of Land Law Reform in Kenya thus, “When law is the favoured means to improve land governance, reform has tended to focus on land law at the expense of other legislation”.

The answer to Kenya’s land problem has to be based on “fairness, equity, and justice” as provided for in the Constitution ad as recommended by the TJRC. Without this, meaningful reform will remain a pipe dream, whatever the political construct that ascends to power.