Dilemma of scramble for land by foreigners

By Pravin Bowry

Under the provisions of the existing Land Control Act, non-citizens are not permitted to own agricultural land, defined essentially as land outside the boundaries of a "municipality, a township, a market, land in the Nairobi Area or in any municipality, township or urban centre". The Act does not apply to public companies.

The Land Control Board must refuse consent in any case in which the land or share is to be disposed of by way of sale, transfer, lease, exchange or partition to a person who is not a citizen of Kenya.

The 2010 Constitution in Article 65, titled "Landholding by non-citizens" provides that "a person who is not a citizen may hold land on the basis of leasehold tenure only and any such lease, however granted, shall not exceed ninety-nine years"

Unconstitutional

And it can safely be surmised that for all intents and purposes non citizens can now own any land in the country provided it is limited to a maximum of 99 years leasehold title.

The provisions of the Land Control Act have been rendered, nugatory and unconstitutional. No one can now bar a non-citizen from purchasing any land in the Republic of Kenya.

With the knowledge and background that all land laws under the Constitution must be and are going to be revised within about 60 days, what do the new provisions augur for the future?

Western nations, and now even the emerging nations of the world such as India, China and even Bangladesh are engaged in a massive and concerted effort for land in Africa to sustain their own growing economies.

Other nations are keen to exploit the untapped African mineral wealth, including oil.

The consequences for the local and indigenous populations of the scramble for land can be disastrous.

For example in Uganda, 20,000 people were sometime back expelled from their homes by the government at the insistence of a British forestry company.

Called "land grabbing" or "scramble for Africa" or "Race of Africa" most inhumane methods of purchasing and acquiring tracts of lands for enrichment are adopted by powerful individuals and multinational bodies under various pretexts of aid, grants and loans.

It is estimated by those in the know that in one year deals involving 45 million hectares of land took place and over 70 per cent of the land involved was in Africa.

Believe it or not, in present day Kenya there are individuals and companies who own upto 20,000 acres not too far from Nairobi and there are foreigners owning up to 100,000 or 200,000 acres in prime agricultural areas when the indigenous population are surviving on one acre or five acre small holdings.

To say that land is an emotive issue is to put the matter lightly. Disputes over land are the biggest single cause of court cases in Kenya with the rich and powerful winning the cases.

The direct consequence of the new Constitution on prices of land is unbelievable.

Unrestricted, unlimited

The locals are just not able to compete with the foreigners as is evidenced at the coast.

Purchasing a beach property at the coast by a local is now near impossible and drastically out of reach for most.

Kenyans, ironically, having fought the war of independence on the basis of their land rights, may unwittingly have sold their country to foreigners by giving unrestricted, unlimited and absolute rights to foreigners to purchase lands.

The dictates of economy favour those who have access to petro-dollars.

When enacting new laws, parliamentarians and in particular the so-called experts who draft laws before seeking the parliamentary stamp – must appreciate the long-term consequences of selling our country to foreigners – all in the name of a new constitutional order endorsed by every Kenyan.

Wazungu basket

The dilemma of scramble for land by foreigners will one day haunt future generations and that is not a prediction but a stark reality as profound as the Maasai and other Treaties of the last century, vesting Kenya into the basket of the wazungus.

The bottom line is that Kenyans have given the Parliament 60 days from the 22nd of February 2012, to find an answer which has eluded Kenyans for over a century.

Consolidating land law comprised presently in over 40 Acts — is not going to be easy.

Kenyans will have to learn to compete with foreigners to own their own country...or can/will Parliamentarians see the light and protect the country from exploitation?

The writer is a lawyer. [email protected]