By Juma Kwayera

The pledge to compensate illegal settlers could prove decisive in the Mau forest controversy when an eight-year old case in the High Court that has restrained the Government from parcelling out trust land resumes next month.

President Kibaki and Prime Minister Raila Odinga, who next Wednesday will kick off the Mau forest complex re-afforestation, risk being in contempt of the court following High Court orders prohibiting the Government from de-gazetting and excising trust land, which includes the Mau forest.

Even as the culprits named in the Mau Forests Complex Taskforce Report call for compensation before they vacate, a High Court ruling dated April 22, 2002, criminalises their claims. President Kibaki is already in contempt after he defied the orders and went to issue land title deeds just before the 2005 referendum vote.

A three-judge bench consisting Justice Richard Kuloba, Justice David Rimita and Justice Joyce Aluoch in land a landmark decision in July 2003 ordered the State to provide names of individuals who own land in Mau.

The directive has not been carried out by the Attorney General’s Office.

The case has been in abeyance since Justice Kuloba and Justice Rimita were forced to step down in September 2003 in the infamous "radical surgery" in the Judiciary.

In a civil application No 421 of 2002, the Kenya Land Alliance of Resident Associations, the East African Wildlife Society and the Environment Liaison Centre, among others, had petitioned the court to restrain the Environment minister, the commissioner of lands, the chief lands registrar, the principal registrar of titles, the director of physical planning and the director of surveys.

Ethnic dimension

Representing the applicants were lawyers Stephen Mwenesi and Harun Ndubi, who separately told The Standard on Sunday the political and ethnic dimensions the controversy had taken has obscured fundamental constitutional and environmental merits of the case. The case will be heard on February 22-24.

"We had in addition to list of names of Mau forest land owners, also wanted the court to confirm whether forests are constitutionally protected. So, the planting of trees and compensation of Mau forest settlers would be in contempt of the court," Mwenesi says.

In addition, the application seeks a ruling on whether the repeal of the Forest Act in 2005 was in breach of the Constitution. The case has been in abeyance since 2003 when relevant files mysteriously disappeared from the registry.

Contacted over the new developments in the saga, head of communications in the Prime Minister’s office, Mr Dennis Onyango, said he had "heard" of the case.

"The Prime Minister has always opposed compensation for the large landowners. His position has been that excisions should never have taken place and the land was acquired illegally. But he wanted some humanitarian assistance from those who got small parcels believing the land was genuinely on sale," Onyango says. He says there was a genuine reason for Parliament to re-amend the insertions in the original taskforce’s report to seal loopholes that would be exploited by other grabbers.

Legal Issues

Mwenesi and Ndubi also acknowledge that any decisions made before the legal issues are dispensed with are fraught with serious risks. Their fears are a result of recommendations by Mau Forests Complex Taskforce Report, which provides for compensation for third party purchasers.

While Ndubi says compensation would be perceived as rewarding impunity, Mwenesi says it would trigger a flurry of demands for compensation by individuals accused of having grabbed public property.

In their ruling, the judges directed it would be contemptuous if "any decision or action by the respondents jointly or severally or any other person or officer of the Government to alienate the whole or any portions of land respectively described in the schedule to those legal notices, unless the law has been properly applied to such alienation prior to the date of this order."

Against this verdict, the Government was only allowed to engage in activities that would enhance the protection or conservation of the forests as spelt out in the application.

"If the excisions were illegal, then it follows the titles issued by former President Moi and President Kibaki were also illegal. The initial allottees were aware of what they were, which is why they transferred their parcels to third parties," says Ndubi.

Forestry and Wildlife Minister Noah Wekesa, rekindled the debate when he hinted the Government would pay for structures built on grabbed land.

The debate heated up when Agriculture Minister William Ruto said leaders from the Rift Valley would not relent in the push for compensation.

Ruto maintains, "Kalenjin MPs from the Rift Valley irrespective of their political affiliation are united and will not relent in their struggle to have the squatters and prominent people in the Mau resettled or compensated."

This militancy has come up against stiff resistance, with lawyers warning a high possibility people named in Ndung’u commission’s report on illegal land acquisitions taking the cue to demand similar treatment from the Government. Planning Minister Wycliffe Oparanya says the constant shifting of positions is motivated by a desire by some of the beneficiaries of irregular acquisitions to "sell back to the public what they grabbed".

Blanket compensation

"The people pushing for blanket compensation are the same ones named in the Ndung’u Commission’s Report and other reports as having stolen public property. They want to set precedent, which in the long run they cite to force the Government to pay them for irregularly acquired property," says Oparanya.

The commission the minister refers to documents how ministers and senior Government officials in the Moi and Kibaki administrations illegally acquired road reserves, public parks, public toilets, schools, prisons land and Agricultural Development Corporation (ADC) farms.

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