I find generalised and populist discussions on Kenya’s land issue very unnerving. And when the discussion is slanted through self-serving political sieves, it makes recipe for quick emotions and conflict. The problem is that land related conflicts could end up displacing people, destroying property, distorting the land market hence undermining our economy. So every time I hear references to the Mau Mau occasioned displacements, the 2002 Njonjo and 2004 Ndung’u along with the 2013 Truth, Justice and Reconciliation Commission (TJRC) reports, I pay close attention. Because if one wants to dwell on one, without looking at the holistic picture, analyzing the respective recommendations and looking through the legal frameworks enacted to enable appropriate responses, then they can only scratch the surface. And the most abused area relates to the matter of historical land injustices. Let’s see what we have on this sensitive matter.

Recommendations on historical injustices incorporated in land policy and constitution

The Njonjo report documented the major gaps in our policy and laws, along with the institutional framework. The Ndung’u report followed, documenting available information on public land which was regarded to have been irregularly allocated. Discussions leading up to the review of the constitution and the failed 2005 referendum also generated very useful information on our land question and possible solutions. Reports from these national processes were then incorporated in our national land policy, articulated and finalized between 2002 and 2009. This policy clearly sets out the broad land question and provides policy responses to the respective areas on land tenure and land use management systems. It also spells policy measures to respond to special issues like historical land injustices and proposes some institutional and implementation framework. To ensure that the key policy principles and recommendations weren’t left to the library, they were anchored in our 2010 constitution. Among other recommendations was the need to establish a national land commission which would, among other things, address the matter of historical land injustices.

The TJRC work commenced in 2008, and the report was handed over in 2013. By this time, a lot of Kenya’s land history and problems had been well documented and articulated through the policy process. So it was smart of the TJRC report to have recommended that historical land injustices, and any reparations applicable, be implemented by the national land commission, which had by then been put in place based on the 2010 constitution and the 2009 land policy. So what then after the TJRC recommendation on land injustices?

Land Commission has powers to resolve land injustices within 10 years from 2016

In trying to provide frameworks to enable implementation, parliament provided for the investigation and adjudication of claims arising out of historical land injustices by the land commission in the National Land Commission Act of 2012. The applicable section 15 was to be later amended through section 38 of the Land Laws (Amendment) Act of 2016. But do Kenyans know? Do they even know what’s expected of them under the provision and the timelines provided? I suspect very few. The pertinent section gives the land commission powers to receive, admit, investigate and make recommendations for the redress of the claims tabled in regard to historical land injustices. The section defines historical injustices and stipulates the acceptable ones, and also sets the procedures through which public notices would be given, support documents obtained, the remedy options available and the repeal mechanism.

Kenyans, particularly those who hold grievances that call for redress, need to beware that under the applicable law, a historical claim may only be admitted, registered and processed by the land commission only if it’s lodged within five years from the date of commencement of the Act. Given that the law commenced in September 2016, this takes us to September 2021, unless other interventionist measures are put in place. Furthermore, the provisions of the enabling section will stand repealed in September 2026, ten years after commencement of the Act. So those keen on filing claims should be accordingly sensitised and should seek specific guidance from the land commission before their claims get time barred.

Admissible grievances

And for those interested, the admissible grievances must have occurred between 15^th June 1895 when we acquired the status of Protectorate and 27^th August 2010 when our new constitution was promulgated. It also must have resulted from displacement from ones habitual place of residence. The claim must also not have been, or be capable of, getting addressed through the ordinary court system on the basis that it either contradicts a law that was in force at the time the injustice began or that the claim was debarred under the law on limitation of actions. One must also have owned or occupied the land in question.

From media reports, the land commission already began hearings on some of the claims from places in Central, Rift Valley and the coastal region. It is hoped that the redress provided will help to maintain our peace and unity, and also the stability of our economy. So let’s refrain from generalised narratives and discussions on anticipatory historical claims but instead advise those with actionable grievances to table them within the provided legal mechanism.

Dated: 26th January, 2019