Mapping communal land claims will be complex

The Land Commission has been in office for half a year now. Yet within its short tenure of office, one can’t fail to note the pressure it faces to address issues relating to historical land injustices particularly for the Coast region. The Commission had better be forewarned that this will be treacherous. Why? Many Kenyans in influential positions of leadership today have hardly any idea what historical land injustices are all about. They were born, bred, schooled and have worked in post independent Kenya. Some therefore don’t quite understand how anyone can stake communal claim to modern Nairobi, Mombasa, Nakuru or Eldoret. We will also have to contend with the realities that urban and rural investments which drive our economy have happened without regard to outstanding claims of unjustly acquired land in various parts of Kenya. History also reveals that almost all indigenous Kenyan communities stake a historical claim to land they consider originally theirs. Mapping these claims will be quite complex. This can greatly complicate solution seeking to this matter.

What constitutes historical land injustices?

But what constitutes these injustices? According to our land policy, these are accumulated grievances which stretch back to Kenya’s colonial land administration from 1895 when Kenya became a protectorate under the British East Africa Protectorate with the power to make policies and laws under the Crown. These policies, laws and resultant practices formed the genesis of mass disinheritance of communities of their land. The treaties and agreements made between the colonial authorities and communities, the various adjudication processes conducted to determine individual land claims and the laws used to register the adjudicated claims helped to embed the disinheritance and injustices.

Unfortunately, the successive post-independence governments have never addressed this matter in a holistic manner. But the commitment to address historical land injustices is now anchored in the constitution and the law. It’s however instructive to note that the Jubilee government, which has the onus to oversee the exercise, hasn’t addressed this in its manifesto. While explicit on the commitment to repossess illegally occupied public land and prosecuting land grabbers, the manifesto mentions nothing regarding the resolution of historical injustices. This perhaps in appreciation about the obvious complexity!

The legal position

What’s the position under the law? The constitution requires the Land Commission to initiate investigations into present and historical land injustices and make appropriate recommendations. The National Land Commission Act goes further to prescribe that the Commission must within two years of its appointment recommend appropriate legislation to Parliament to provide for the investigation and adjudication of claims arising out of historical land injustices. Given its calendar, the Commission has only one and half years left to develop and forward the required legislation to Parliament. But scholars of law and land development must note that neither the law nor the constitution obliges Parliament to pass the recommended legislation within a specific timeline. Efforts by stakeholders to call for a timeline during the enactment process were unsuccessful. This leeway can be exploited to delay the enactment of the required legislation.

Mind national unity and economy

But even if we had the best of legislation and road maps to guide this matter, it behooves us to appreciate that the resolution of historical land injustices a century into our history, while quite noble, has the potential to unlock dynamics capable of undermining our economic and national stability. When the moment comes, the Lands Ministry and the Land Commission would be best advised to treat this matter with great care and introspection to ensure that any pertinent grievances are addressed without compromising our unity and the social-economic gains made hitherto. Good public consultation on this will be most essential.