On 2 October 2015, ARI hosted the launch of “Whose land is it anyway? The failure of land law reform in Kenya” by Ambreena Manji, Professor of Land Law and Development at Cardiff Law School. This Counterpoint draws on Manji’s experience while Director of the British Institute in Eastern Africa between 2010 and 2014, when she served as a member of a consortium convened by the Katiba Institute. The respondent was Professor Yash Ghai, a Kenyan academic in constitutional law. He was the Sir Y K Pao Professor of Public Law at the University of Hong Kong from 1989 to 2006. From 2000 to 2004, he chaired the Constitution of Kenya Review Commission and in 2011 co-founded the Katiba Institute to promote understanding of constitutionalism and to facilitate the implementation of Kenya’s new constitution.
Professor Ambreena Manji
- High hopes: Sustained political debate across Kenya culminated in the agreement of a new National Land Policy in 2009, and a progressive 2010 constitution – or katiba. The need for land reform had been widely acknowledged in the Report of the Commission of Inquiry into the Illegal/Irregular Allocation of Public Land, known after its chairman, Paul Ndung’u, and the Report of the Commission of Inquiry into Post-Election Violence, compiled by Judge Philip Waki. The adoption in April 2012 of the Land Registration Act, the Land Act, and National Land Commission Act should have marked the end of a process of activism; instead it heralded a new era of debate over accountability and impunity.
- Curious consensus: The drafting of these three bills provided citizens with little meaningful opportunity to express their views of impending changes. A consortium was established to promote debate on the contents of the draft bills, and provide a detailed commentary on legal issues, including the degree to which they were compatible with 2010 constitution. However, their passage through parliament was characterised by little debate or disagreement among legislators. This passivity amongst MPs was a disappointing outcome after a decade struggle over land policy.
- Rush to the finish: Kenya’s 2010 katiba required parliament to enact new land laws within 18 months of promulgation, which set 27 February 2012 as an artificial deadline. Only on 15 February 2012 did the National Assembly hear the first reading of the bills. The government printer only released drafts in time for consultation on 22 February. Neither the parliamentary committee nor civil society had the benefit of reading these documents before the meeting. On 9 March 2012, the National Assembly voted by two-thirds majority to delay the vote by 60 days.
- Complexities and contradictions: The draft bills failed to enact provisions of the Land and Environment chapter of the 2010 constitution; nor were they faithful to the National Land Policy. Many commentators questioned whether they met the test of constitutionality; others argued that the bills should be withdrawn and time allowed for their revision. As Yash Ghai noted at the time, the bills were “for the most part badly drafted, often copied from laws of other countries, often with internal inconsistencies or inconsistencies with other legislation… It is impossible for most Kenyans (including lawyers, other experts, ministers and parliamentarians) to understand the content of the bills (especially since, unlike the constitution, the drafting style is complex, convoluted, old fashioned). This effectively prevents the participation of the people in law making required by the constitution.”
- Flawed process: The decision to adhere to narrow timeframes led MPs to foreshorten debate, whether by accident or design. Space for deliberation was limited. Ironically, one part of the constitution was used to defeat another containing important principles about popular participation in law making. When the texts re-emerged on 16 April, only brief amendments were visible, rather than fundamental revision or redrafting. Nevertheless, all three bills reached committee stage and were approved.
- Civil society: Although the achievement of the National Land Policy and the Land and Environment of 2010 constitution were thanks to the efforts of civil society, activists were also partly responsible for the failure to translate these principles into new land laws. Kenyan civil society organisations attempted to position themselves as mediators between people and law, rather than wrest control of the debate from bureaucrats, recognise the political nature of the debate, and help realise the promise of popular participation in major policy changes.
- Predatory elites: The distrust of bureaucratic power over land is widespread among Kenyans. Successive presidents, and their land commissioners, have long exercised the allocation of public land in pursuit of political patronage and personal accumulation. New land legislation should have provided an opportunity to redress Kenya’s grossly skewed structure of land management and to curtail predatory land practices by the state. Regrettably, it culminated only in shallow redistribution of land, challenging bureaucratic power rather than the structure of land holding.
- The future: Land reform and constitutional promises have become intertwined in the minds of the Kenyan people. This has raised the stakes, and with it the risk that popular disillusionment with the new land laws becomes equated with the failure of the katiba itself to transform Kenya as promised.
Prof. Yash Ghai CBE FBA
- Ministry of Lands: Not many countries have such a ministry given how many land issues relate also to planning, infrastructure and agriculture; but in Kenya, this is the most coveted government department for those seeking enrichment. The current minister is suspended from office due to corruption allegations. The relationship between the Ministry of Lands and the National Land Commission remains poor.
- Community lands: Communal land rights remain contested, with the division of responsibility between national government and county governments unresolved. Where land ownership is based on traditional understandings of land rights, the whole community should be given a say over its alienation. Communal land rights were constitutionalised to prevent them from being grabbed; yet the national government appears determined to undermine efforts by the counties to reinforce such rights.
- Forest communities: Kenya still has a few forests, part of its environmental heritage. These are viewed as the next big target for land grabbing and illegal logging. Although the constitution assures forest communities that they can maintain their lifestyle, a tension exists between those living in traditional forest homelands and others seeking to preserve forests.
- Confiscation by government: Major infrastructure projects are taking place right across Kenya. Many involve the appropriation of land from local communities. This has not been sufficiently acknowledged by the government or in the media.
- Legacy of the struggle: On 12 September 2015, a moving ceremony was held in Nairobi where the British High Commissioner acknowledged the wrongs done to Mau Mau veterans. Litigation in the English courts was withdrawn in return for a financial settlement with the affected families and a memorial to those who died in the cause of freedom. Many of the 25,000 or more who joined Mau Mau fought for land only to find it confiscated while they were incarcerated. Veterans and their descendants remain landless.
- Kenya’s katiba: Despite a detailed programme for implementation, Kenya’s constitution has yet to deliver on all of its promises. The Commission for the Implementation of the Constitution was established with less authority than we recommended, but after only five years it remains too soon to tell whether it will achieve its objectives. Progress to date has been slow; however, the judiciary has improved despite pressure from the government.
Among the many interesting questions and points raised by a large audience, were those by Professor Catherine Boone (on community land legislation in the context of devolution, and the respective mandates of National Land Commission, the Ministry of Lands, and the Counties ); Sir Edward Clay, former British High Commissioner (on the desire to localise land allocations); Dr Richard Baines, (on the lessons which might be applied from devolution of the land registry in Mozambique); and Dr Pilar Domingo (on the role, capability and credibility of Kenyan courts to adjudicate disputes). Watch the video and listen to the audio to hear more.