THE BIG DEBATE. Demystifying the much-acclaimed TJRC report

Land in Kenya remains a tinderbox ready to explode despite a decade of normative and institutional reforms. It is unsurprising therefore that just as in 2007, Raila Odinga, has again chosen to mobilise his political bastion around land grievances.

Odinga’s major premise is that the Maa and similarly situated communities have lost out to outsiders in the unregulated and open land market. His minor premise is that the alleged loss of land could have been averted if President Kenyatta’s government had implemented the TJRC report and Chapter 5 of the Constitution. These premises are questionable.

It is trite that the entire property in land system in Kenya is constructed on the edifice of colonial and post- colonial entitlements. This means that Nairobi or any other major settlement in the so-called White Highlands, including white or black owned ranches in Laikipia-to the extent that they were ‘crown lands’ or government land- are founded upon a series of land grants first issued by the colonial Sovereign, a power later inherited by the immediate post-colonial government, and specifically, the President.

Notwithstanding this otherwise less than perfect progeny of land ownership, Kenya in its wisdom, at independence, chose to grant sanctity to these titles. This order of things in which the sovereign handed down original land entitlements sometimes to deserving-but often less than worthy individuals and entities- was only disrupted by the adoption of the new Constitution in 2010. Articles 40 in conjunction with chapter five of the constitution speaks to this issue.

First, it grants the right to any person to own property of any description in any part of the country thereby limiting the possibility that some geographies in the country be it Kajiado, Pwani, Nyeri or Eldoret, would be zoned off on the basis of ethnic or religious belonging.

Second, Article 65 of the Katiba limits all land owned by non-citizens to 99-year leaseholds, making it plausible for large swathes of freeholds in the hands of non-nationals to be redistributed to Kenyans but only upon expiry of such leases.

Thirdly, Article 40(6) precludes from the protection of the constitution a genre of land “that has been found to have been unlawfully acquired.”

A plain reading of Article 40(6) reveals that title revocation must first be preceded by a finding that the basis of ownership of a given land was unlawful. The reasoning here is obvious. To require that mere perception or clamour by political actors or other interest groups would suffice as ground for forced takeover of private property opens up our entire property system to serious instability. And given the emotional attachment to land, such an action would not only be arbitrary but also create conditions for conflict.

By dint of Article 67(2)(e), the National Land Commission-the independent Commission charged with the mandate of administering public land on behalf of national and county governments- is required to “ initiate investigations, on its own initiative or on a complaint, into present or historical land injustices, and recommend appropriate redress.”

Clearly, then the issue of determining what happens to irregularly acquired land may be initiated by but does not end with the NLC. Section 14 of the NLC Act which is the law contemplated by article 68 (v) provides that in reviewing the regularity of grants or dispositions, “Where the Commission finds that the title was acquired in an unlawful manner, the Commission shall, direct the Registrar to revoke the title.”

Assuming, for arguments sake, that this provision of the NLC Act is constitutional, any such determination of the NLC will still be amenable to judicial review by the High court.

It is unclear therefore from the review of the law, what President Kenyatta ought to have done to respond to the land challenge proposed by Mr Odinga. I think it would be improper for the President to direct an independent body in the discharge of its functions.

It is also unclear how implementing the TJRC Commission Report, the other magic antidote to land invasion by outsiders in the view of Mr Odinga, could be helpful.

While the Report in an entire chapter chronicles in detail various land grievances across the country, it fails to move forward the conversation on land beyond deferring to existing structures. Indeed, so open unhelpful is its recommendation that the TJRC Commission calls for the Ndung’u Commission’s report to be carefully evaluated, “together with this report, by the National Land Commission and other government agencies that will have the responsibility to address all cases of land-related injustices to provide permanent solutions.”

Effectively, TJRC provides a record of land wrongs but fails to provide a comprehensive land answer.
So what political utility is served by Mr Odinga’s land advocacy? I think it is fair to suggest that there will always be a sizeable number of people, especially the most vulnerable, who will repose hope in the messianic dreams of the feasibility of land redistribution rather than grapple with the reality of the near inviolability of first equities in land in Kenya.

Mr Sing’oei is a Legal Advisor at the Deputy President’s Office. (These are his personal comments)