“YES” votes may solve land problems

Land in Kenya has always been a political volcano about to erupt. From the moment colonialists decided to establish settlements they called “White Highlands”, land in Kenya has been the centre of political controversy that led to the Mau Mau war and racial hatred. Land in Kenya has also been a source of tribal conflict and many family disagreements. It is the hotbed of all sorts of political, social and economic disputes. There is therefore very little wonder that Chapter Five of the Proposed Constitution is among the most loathed by the big land owners who resist any political change that is likely to remove them from the privileged position they now occupy. Yet it is that same chapter that is likely to bring about permanent settlement to the land problems of Kenya.

Traditionally issues concerning land have tended to discriminate women who were treated by many African societies as mere properties of men alongside land itself. There are still a number of African societies in Kenya that don’t allow women to inherit land. The Proposed Constitution has boldly looked at that problem and suggested a solution which should make all women in Kenya support it. Article 60 (1) (f) , for example, calls for the elimination of gender discrimination in law, customs and practices related to land and property in land.

In Kenya domestic tyrants kick out their wives from matrimonial homes whenever they decide to take new wives even if the old ones contributed in buying and building the homes .The Proposed Constitution intends to make a correction to that serious injustice against women who, in my view, should all support it. In Article 68 (1) (c) (iii) , for example,it says when the “YES” votes win Parliament shall enact a legislation to regulate the recognition and protection of matrimonial property and in particular the matrimonial home during and on the termination of marriage.

Among the people making a lot of noise against Chapter Five of the Proposed Constitution is Daniel arap Moi who, as the President of this republic, used to dispose of public land by dishing it to his political supporters. The manner in which influential politicians acquired public land came close to becoming serious crimes against the landless people of Kenya. The vote “YES” for the Proposed Constitution will make illegal acquisition of public land a thing of the past for its Article 62 (4) says public land shall not be disposed of or otherwise used except in terms of an Act of Parliament specifying the nature and terms of that disposal. The Proposed Constitution makes similar protection of community land against unscrupulous people who would attempt to dispose of it for their gainful ends.

One of the most controversial aspects of land policy in Kenya concerns land ownership by non-citizens. These are foreigners who own such huge plantations that it would take hours to drive through them in high speed vehicles. They include tea plantations in Kericho and pineapple farms in Thika. To the wananchi living in Kericho and Thika the land there will never belong to them or their children and even their children’s children. To them independence never came and will never come for more than ten generations to come. The reason is simple. The foreigners who own land there have been given leasehold tenures, or to be more precise, gave themselves leasehold tenures of 999 years when Kenya was still a colony.

Fortunately the Proposed Constitution corrects that serious colonial injustice through Article 65 (1) which says a person who is not a citizen may hold land on the basis of leasehold tenure only and in such lease, however granted, shall not exceed 99 years. Article 65 (2) says if a provision of any agreement , deed, conveyance or document of whatever nature purports to confer on a person who is not a citizen an interest in land greater than 99 year lease, the provision shall be regarded as conferring on the person a 99 year leasehold interest and no more. That part of the Proposed Constitution has brought real independence to the people of Thika and Kericho. Indeed it liberates the entire country from the colonial chains which remained behind in the form of 999 year leaseholds to foreigners.

What should shock all Kenyans is the attempt on March 30, 2010 by the MP for Chepalungu, Mr. Isaac Ruto, to prevent the true liberation of Thika and Kericho . Ruto will go down in history as the African who made a spirited effort in Parliament to reject the suggestion by the Proposed Constitution to change the 999 year leaseholds to 99 years for foreigners. In fact Mr. Ruto wanted the whole Article in the Proposed Constitution on landholding by foreigners to be truck off. What led Mr. Ruto to take such a firm stand against his own people is not hard to imagine. The foreigners owning the huge tracts of land are extremely wealthy people and the manner in which they made Mr. Ruto to fight for them is also not hard to imagine.

The part of the Proposed Constitution Mr. Ruto is opposing makes it difficult for foreign owned body corporate to own huge lands in Kenya for the ridiculous periods of 999 years. It says the body corporate owning land shall be regarded as a citizen only if it is wholly owned by one or more citizens and property held in trust shall be regarded as being held by a citizen only if all the beneficial interest of the trust is held by persons who are citizens. For some very strange reasons Isaac Ruto is against these noble proposals meant to truly liberate Kenya. The “YES” votes will mean Isaac Ruto and those who think like him will be legally corrected.

The very fact that a colonial laws can still allow a foreigner to own huge tracts of land in Kenya for 999 years when there are hundreds of thousands of Kenyans who are landless means a lot of injustices on land issues are still being done against the wananchi of Kenya. The Proposed Constitution is planning to look into, and correct, the injustices through National Land Commission which, according to Article 67 (2) (e), shall initiate investigations, on its own initiative or on complaint, into present or historical land injustices, and recommend appropriate redress.

Among the most controversial suggestions made by the Proposed Constitution on land is that of limiting the acreages of ridiculously huge land tracts by some individuals who don’t even know what to do with it. It is the part of the Proposed Constitution opposed by people like the former President Daniel arap Moi and Mr. John Michuki. This is Article 68 (1) (c) which says Parliament shall enact legislation to prescribe minimum and maximum land holding acreages in respect to private land. This part of the Proposed Constitution is bound to make both the local and foreign moneyed land owners, which include the Church, gang up to oppose the wishes of the wananchi to see justice done on the land issue. As a matter of fact it is this issue, rather than the Kadhi courts and the Articles on abortion, that make the churches so much opposed to the Proposed Constitution.

When the “YES” votes win wananchi will feel safe about public land which has been systematically grabbed by corrupt politicians and the so-called private developers. Public parks and beaches have been systematically grabbed to the extent that in many urban residential areas children have nowhere to play or swim. When the Proposed Constitution goes through, that will be a thing of the past as its Article 68 (1) (c) (iii) says Parliament shall enact a legislation to protect and conserve and provide access to all public land.

On the issue of environment and natural resources Isaac Ruto is opposed to the State taking the responsibility to ensure that the processes and activities that are likely to endanger the environment are eliminated. On Tuesday March 30th 2010 he proposed an amendment in Parliament to the Proposed Constitution’s Article 69 (1) (g) which is seeking to do exactly that i.e. to ensure the State has an obligation to protect the endangered environment. Again it is not difficult to imagine why Isaac Ruto is taking such a negative stand against the protection of the environment. He obviously is among the people who see nothing wrong with the destruction of the Mau Forests. Fortunately the ball is now in the hands of the people and their many “YES” votes are bond to correct all the above mistakes that have introduced a lot of injustices on the land issue.