Land question hurdle for Kiplagat team

By Kipchumba Some

As the Truth, Justice and Reconciliation Commission (TJRC) continues with countrywide familiarisation sittings, questions abound on whether it can untangle the land question.

Experts in the land sector argue the commission does not have sufficient political goodwill to unravel land issues, which were blamed for the 2008 post-election chaos in some parts of the country.

Fears of political manipulation, possible sabotage by key witnesses in the post-election violence and ill-defined mandate are cited as some of the factors that might jeopardise the commission’s inquiry into land disputes.

"If well-handled, the commission presents us with an excellent opportunity to deal with land issues in the country," says Mr Odenda Lumumba of the Kenya National Land Alliance.

"However, I feel it has limited mandate on what it can do," he adds.

It mandate

The TJRC is mandated to inquire into abuses and violations that took place between December 12, 1963 — when the country attained independence — and February 28, 2008, when the National Accord and Reconciliation Act was signed between President Kibaki and Prime Minister Raila Odinga. The accord ended the post-election violence and gave birth to the Grand Coalition Government.

In discharging its mandate, the commission will also look into the nature, root causes or contexts that led to such violations.

As far as land is concerned, the commission is mandated to investigate historical land injustices and irregular or illegal land acquisition, especially as they relate to ethnic violence. It will also deal with community displacements, settlements and evictions.

But critics point out the commission is somewhat hamstrung in unravelling the land question since it cannot investigate the pre-independence period — a critical point which was actually the genesis of land problems bedevilling the country.

"It is rather ironical that we are trying to solve an issue which has its roots deep in the colonial era, yet we are disregarding that era," says Odenda. "Unless of course this is one of those commissions whose recommendations might never see the light of day."

Eldoret-based Centre for Human Rights and Democracy Executive Director Ken Wafula suggests a special tribunal be formed to specifically deal with the land issue from its historical perspective.

"Land issues are overwhelmingly convoluted for the TJRC to comprehensively unravel within the short time frame it has been given. We need a special body dedicated to solving the land question," he argues.

His organisation has done research on the origins and nature of land conflicts in three districts that have become the eye of ethnic-based clashes since 1992 — Uasin Gishu, Trans Nzoia and Nandi districts.

"Historical documentation clearly shows land issues in these regions are not a recent phenomenon. So if we are serious about addressing the land question, then we have to dig deep into the past to understand it," he says.

The commission’s sittings in Coast Province were dominated by land issues. It is expected the same will be the case in other regions, especially in Rift Valley, Western and Central provinces.

Despite the challenges it faces, TJRC Vice-Chairperson Betty Murungi says she is optimistic the commission has what it takes to tackle the land question.

Yet to begin Hearings

"A lot has been done on the land issue, especially by the Ndung’u Commission. We shall be drawing on their recommendations. It is too early to talk of the challenges because we are yet to begin sittings. But we are optimistic that we shall succeed," she says.

Land issues in Kenya are not homogeneous: those of the Coast Province differ significantly from those of Rift Valley and Central provinces. Hence, there is no single approach that can be used to address them all.

The other critical issue is whether the bureaucrats in the three regimes who played crucial roles in creating or perpetuating land injustices will agree to appear before the commission. Going by their opposition to the Ndung’u Report and the National Land Policy, Odenda says it will be hard convincing them to co-operate this time round. "These are the political elites who run this country. Going by the statements some of them have made concerning the work of the commission, I have little faith they will ever appear before it, let alone support it," he says.

Masinde Muliro University of Science and Technology lecturer Susan Choge says the commission’s report might never be implemented.

"You saw the way the Government was unable to implement the Ndung’u land report. Why do you think the TJRC will be any different? In my view, unless there is a bold person as the head of Government, implementing the commission’s report will just be shelved," says Choge.