By Bill Odidi
The 2010 constitution prevents foreigners from owning land in Kenya, but as Kenyans have come to find out, implementing these provisions is complicated by the ambiguous nature of the law and deliberate moves by the landed class to frustrate the process.
When Kenya’s attorney general told the International Criminal Court in July this year that there were no records to indicate that President Uhuru Kenyatta owned any land in the country, his comments offered a reflection of the mysterious nature of landownership in Kenya.
It is well known that the family of Kenya’s first president, Jomo Kenyatta, father to the current president, owns large tracts of the most productive land, particularly in central Kenya and at the coast. Forbes Magazine placed the total land owned by Kenyatta and his family at 500,000 acres of prime land spread across the country.
A survey 2014 found that 50 percent of Kenya’s wealth is in the hands of political families, with the ownership of land providing the core of this wealth.
The skewed ownership of land is dire in a country where only 17 percent of the land is arable, with the rest mostly arid and semi-arid. The Kenya Land Alliance says that more than 65 percent of this productive land in Kenya is in the hands of only 20 percent of the population.
The chaotic nature of land records in Kenya obviously suits the political and business elite who would like to maintain secrecy over their ownership of the country’s land. In a recent audit, the Lands Ministry discovered that 1.3 million files were lost, misplaced or misfiled.
Any hope that the enactment of new laws would solve what Kenyans have come to call the ‘land question’ has been replaced by disappointment, even frustration by the lack of progress and constant finger pointing amongst those entrusted with the job of cleaning up the mess that goes back to the country’s colonial period.
Land is an emotive issue in Kenya. The fight for independence was based on the struggle to revert ownership of land from the colonialists back to the Africans. Vast arable land in the Rift Valley was designated as the White Highlands, reserved for European settlers, while the indigenous communities were moved out.
The authority to allocate Crown Land was vested in the colonial governor and he issued grants of leases for 999 years to the European settler community. It is the same allocation by direct grant that facilitated the irregular allocation of public land after Independence.
In 1963 a total of 7.5 million acres or half of the agricultural land in Kenya was in settler hands, with individual farmers like Lord Delamere reported to possess as much as 1 million acres.
The Africanization of the White Highlands, areas previously reserved for European settlement, was carried out through the Million-Acre Scheme funded by the British government and the World Bank, to facilitate the orderly transfer of ownership of farms owned by settlers who wanted to leave after independence.
The new African political class and home guards, who had made fortunes by collaborating with the colonial government, bought thousands of acres from the departing Europeans, denying the majority of Kenyans the right to own land.
The president widely abused his powers as trustee of public land to become a large landowner himself. The illegal allocation of land by the first Kenyatta and Moi governments is well documented in a report of the Commission of Inquiry into the Illegal/Irregular Allocation of Public Land popularly known as the Ndungu Report.
Lawyer Paul Ndungu, who released the report in December 2004, reveals the extent to which land was targeted as a tool for political patronage, particularly in 1990s. During this period, when the international scrutiny was focused on economic and political reform, land acquired particular significance as a bargaining tool for the political class desperate to hang on to power amid the turbulence of multiparty politics.
No land was spared during this spree of allocations of public land, which came to be known as ‘land grabbing’. Even protected lands as forests, wetlands, road reserves and even cemeteries were dished out as political reward.
On the coast, beach plots on the Indian Ocean coastline were issued in the 1970s and 80s to political and business elites from outside the region. The land grabbing by the elite has rendered millions of coastal people landless or squatters in their own land.
The 2010 constitution prevents foreigners from owning land and also reduces the period for which foreigners can lease land. But as Kenyans have come to find out, implementing these provisions are complicated by the ambiguous nature of the law and deliberate moves by the political and landed class to frustrate the process.
More than 50 years after independence, there is still a significant amount of prime land in foreign hands, especially in the coastal region, and new regulations may finally reveal just how much of this land owned by non-Kenyans.
The National Land Commission has found itself in a muddle in its attempts to regularize land ownership by demanding that all foreign landowners align their leases with the provisions of the constitution. One of the tasks of the commission is to ensure that all the 999-year leases instituted during the colonial period are converted into shorter leases of 99 years.
Establishing who a foreign landowner is remains a challenge, because many such people own property in the country jointly with Kenyans. The new law also allows dual citizenship further confusing an already murky situation.
While the new law has safeguards against the secret allocation of public land by public officials, it has created what land policy analyst Ibrahim Mwathane calls a “mongrel”. The National Land Commission has the mandate to manage public land on behalf of national and county governments, while the Minister still retains power over the registers of all public, private and community land in Kenya.
The audit of all stolen public land can only be done effectively by whoever runs the land registries, in this case, the minister.