RIGHTS-KENYA: The First Land Policy – But Perhaps Not the Best Land Policy

By IPS Correspondents Reprint | | Print |

Joyce Mulama

NAIROBI, Nov 24 2006 (IPS) - Historical injustices that have resulted in landlessness amongst Kenyans have been the focus of recent public discussions on a land policy – the first to be drawn up in the East African country.

Previously, Kenya has had no clearly defined laws on how to manage land, leading to a breakdown in land administration. Disparities in land ownership, tenure insecurity and squatting have occurred, often resulting in conflict. The absence of a land policy has also opened the door to environmental degradation.

The Draft National Land Policy of October 2006, drawn up by government, seeks to address issues of land administration such as access to land, land use and restitution – and the proliferation of slums. However, activists have severely criticised the new initiative.

They claim the document fails to spell out practical solutions to land problems in Kenya, particularly concerning the historical injustices that deprived Kenyans of land. While the policy notes, in the matter of restitution and other issues, that “government shall develop a legal and institutional framework” for handling such matters, this statement has been seen by many as vague and non-committal.

With this in mind, civil society organisations gathered the public this week (Nov. 22) in the capital of Nairobi to collect views on how to fine-tune the draft land policy – and come up with concrete proposals on how land problems might be settled.

These recommendations are to be forwarded to the government early next month, with the aim of having them included in the final version of the land policy. This is expected to be adopted by parliament by April 2007, thereafter becoming the instrument governing land use in Kenya.

At this week’s public consultations, displeasure was expressed over how those who fought for independence under the auspices of the Mau Mau have been ignored by authorities, which have failed to resettle fighters stripped of their land by colonists.

Formed in the 1950s, the Mau Mau was a militant nationalist movement that bound its members by oath to end British rule and expel white settlers. Mau Mau activity led to Kenya’s independence in 1963.

“The ex-freedom fighters have been treated in a very dismissive and perfunctory manner by past governments…Yet the group fought for freedom and land,” Davis Malombe of the Kenya Human Rights Commission, a non-governmental rights watchdog present at the public land forum, said in an interview IPS.

Former Mau Mau combatant John Kiboko is one who experienced this neglect.

“My land in Kirinyaga (central Kenya) was taken away after I and other fighters ran to hide in the bush, rejecting arrest by British soldiers in 1953,” he told IPS of the five-acre plot that was confiscated in 1955 by colonial rulers.

“I now live in Nyandarua (another area in central Kenya) like a squatter, hopping from one settlement to another. We fought for freedom and land. Yes, we got freedom, but where is our land?” the 70-year-old asked, as he hobbled along with the aid of a walking stick. He got the limp after being shot in the left leg while defying arrest orders.

Seventy-six year old Waguchu Mwambura, another fighter, lost four acres of land.

“My land in Murang’a (central Kenya) was taken away after I went into hiding for fear of being arrested by the mzungu. I now live in Naivasha town (in the eastern Rift Valley), as if I never had a place of my own,” he said.

“My question to the government is: ‘Did the mzungu go with the land after independence or he left it here? If he left it here, why has it not been returned to us?'” (“Mzungu” is the Swahili word for “white man”.)

Human rights bodies say more than 1,000 former freedom fighters had their land confiscated. Many have since died. The land was seized under the Native Land Rights Confiscation Order of the 1955 Kenya Proclamations Rules and Regulations.

Banned by the colonial regime, the Mau Mau remained a proscribed movement during the first post-colonial government of the late Jomo Kenyatta, and even during the second administration – led by former president Daniel arap Moi. This made it difficult for the rights of Mau Mau members to be addressed.

The current government of Mwai Kibaki lifted the ban in 2003, allowing former fighters to register the Mau Mau War Veterans Association, which has begun pushing for the rights of its members – including those pertaining to land.

Odenda Lumumba, coordinator of the Kenya Land Alliance, says private ownership should not be allowed to stand in the way of restoring land to its rightful proprietors.

“There is a need for the current constitution to be changed to say that in the event of illegally acquired land, the government has an upper hand to take it back and redistribute it,” he told IPS.

“If not, the government should seek land reparation for those claiming to have been hurt by historical injustices.”

It is not only former Mau Mau fighters who are asking for land to be returned. The Maasai ethnic group is also demanding over a million acres of its ancestral land that was signed away by an illiterate chief to the British over a century ago.

Under the Anglo-Maasai agreement of 1904, the British were to have the land on a lease that would expire a century later. In August 2004 the Maasai duly held a protest demanding the return of their land, only to be dispersed by police.