By John Oywa
Landowners opposed to the Proposed Constitution cite articles 65, 66 and 67, which addresses land holding by non-citizens, regulation of land use and property, and the proposed National Land Commission.
The draft says a person who is not a citizen may own land on the basis of a leasehold tenure only, and that any such leases granted shall not exceed 99 years.
This means that as soon as the new draft become effective, all that land on 999-year lease will automatically revert to 99 years.
A member of the Committee of Experts Otiende Amollo, however, explains the article is not punitive, as the law will allow for renewal of the leases.
"I know it has not been difficult to renew land leases. Large-scale farmers or investors need not worry because the 99-year lease is renewable," he says.
He notes articles 39 and 40 effectively address the fears of large foreign landowners. These deal with the freedom of movement, residence, and the protection of right to property.
In Article 66, the draft states: "The State may regulate the use of any land or any interest in or right over any land, in the interest of the defence, public safety, pubic order, public morality, public health or land use planning.
The landowners are also worried over provisions in the draft that state Parliament will form a legislation to determine the minimum and maximum size of private land one can own.
But Amolo says politicians using the land clauses to oppose the draft are not sincere since these have not been contentious, even in previous drafts.
"I’m surprised that the issue has become explosive all of a sudden," he says.
The National Land Policy recently approved by Cabinet, they say, is unfriendly to large-scale investors.
The policy introduces far-reaching reforms that will pave way for resolution of perennial land problems, and redress historical injustices inherited from the colonial administration.
new policy
Major highlights of the new policy include barring non-citizens from absolute ownership of land and subjecting them to a leasehold system.
Lands Minister James Orengo says the policy gives the Government powers to reclaim grabbed public land, tax idle land, and reduce all leaseholds to 99 years.
Land economics scholar Paul Maurice Syagga says land ownership and use in Africa has been influenced by European settlement that dictated patterns of economic development and types of crops.
"The problem of taking away land from indigenous Kenyans dates back to 1888, when the Imperial British East Africa Company signed an agreement with the Sultan of Zanzibar in which ‘all rights to land in his territory except private lands’ were ceded to the company," says Prof Syagga.
coastal strip
This affected the 10-mile coastal strip running from Tanzania to the Somalia border. But massive land dispossession came with the declaration of Kenya as a British East Africa Protectorate in 1895, and the construction of the Kenya-Uganda Railway from Mombasa to Lake Victoria, and the need to settle Europeans.
In 1902, the Crown Lands Ordinance was enacted and provided that empty land or any land vacated by a native could be sold or rented to Europeans. It also stated that land had to be developed or else forfeited.
Accordingly, 1904 saw massive land dispossession through surveying and alienation of unoccupied land in the southern parts of Kikuyuland.
During the same year, the first Maasai Agreement was signed between Lenana, the Maasai traditional leader, and the British Government. It forced the Maasai to vacate their lands in Suswa, Naivasha, Ol-Joro-Orok, and Ol-Kalau areas to southern Ngong and Laikipia reserves "to be used by the Government for purposes of European settlement".
"In 1905, the Nandi, who had resisted the British since 1895, were finally subdued and gave in to annexation of their land for European settlement under the 1902 ordinance," says Syagga.
In a report, Land Ownership in Kenya, Policy Prescriptions from an Inequality Perspective, he says in 1911, the Maasai were made to sign a second agreement, which led to their eviction from Laikipia to southern Ngong reserves, and incurring heavy losses in human life and livestock.
He estimates that by 1914, nearly five million acres of land had been taken away from indigenous Kenyans.
This increased to 7.2 million acres by 1924 and by the time of independence in 1962, 7.4 million acres or half the agricultural land had been alienated, particularly from the Kikuyu, Nandi and Maasai.
But Orengo assures foreigners that the land policy does not discriminate against them.
"Their rights are protected by the law," he says.