In the last one month Kenyans have been treated to endless political drama over the inheritance law which supposedly exempted founding fathers of the Republic from paying taxes.
Despite the political posturing, it now turns out that all the acrimony was a lot of hot air because the inheritance law was repealed in 1982.
While one hopes we have heard the last of the inheritance law, an equally repugnant law that demands the full attention of civic-minded Kenyans is the adverse possession law. Essentially, the law states that squatters can take possession of land where they have lived continuously for 12 years if the landowner has not tried to evict them. Not only has the law facilitated dispossession of many property owners by land grabbers, it rewards squatters who trespass on private land.
Historically, adverse possession laws trace back to 1700 BC in Hammurabic Codes which governed use of land at a time farming was the primary mainstay of the people. In line with the agricultural economic imperatives of the time, the Codes of Hammurabi allowed squatters to claim underutilised land while sanctioning reallocation of land that was poorly utilised by the owner. These laws are also discernible in feudal England where they served the gentry to take possession of land taken from the poor.
Given its English roots, the law found its way to Kenyan statutes during the colonial times to sanitise dispossession of African land by colonialist. Either out of ignorance, oversight or greed, the post-independence political elite left the adverse possession law intact despite being inconsistent with the norms of our liberal democracy. While we can forgive the sins our founding fathers, the question that begs is how a law that is so blatantly unfair is still in the statutes of a country where land is a valued asset.
One can understand that, when agriculture was the only livelihood for a community the opportunity cost of leaving land idle would have been unacceptably high and injudicious. However, in an economy where many citizens constantly invest in land for speculative purposes, a law that justifies dispossessing a landowner for leaving their land idle is out of touch with the times.
Moreover, even if we concede that 80 per cent of Kenyans derive their livelihood from agriculture, ours is a liberal democracy where the Constitution protects the rights of citizens to choose. Any law that purports to punish citizens for making such personal investment decisions would therefore be inconsistent with our democratic norms. The same can be said of the proposed bill to put a limit to how much land a Kenyan can hold.
Besides being inconsistent with the liberal values that underpin our democracy, the adverse possession law is also at variance with some of the laws in our statutes. Specifically, article 40(2(a) of the Constitution prohibits Parliament from enacting a law that allows the State or any individual to dispossess any citizen of their land. Additionally, section 3(1) of the Trespass Act deems it illegal for anyone to enter private land without permission. Not only is the law of adverse possession in conflict with our laws, it effectively allows criminals to profit from crime while punishing an aggrieved landowner for not defending himself.
Going by numerous newspaper reports, the law of adverse possession has facilitated dispossession of many landowners in many parts of the country, especially at the coast. In a typical land scam, conmen working with land officers identify unoccupied land, put up some makeshift structure and then file for adverse possession.
The most celebrated Kenyan case was the Waitiki land saga where squatters invaded land during Likoni land clashes. Although the government interceded, the squatters quickly took over adjacent Pungu Fuel area where they have lived ever since. Unless the government intercedes again, the squatters can easily file for adverse possession.
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In Britain, an amendment is now in place that requires the government to notify the landowner of an adverse possession application. Similarly, in a landmark ruling, the Indian Supreme Court declared the adverse possession law illogical and deserving urgent review.
Given the misuse and unconstitutionality of our adverse possession law, Kenya must urgently use the precedent set in these commonwealth countries to repeal this blatantly unconstitutional law.
-Mr Githieya is a political and economic Analyst. [email protected]