Law Could Ease Land Rows

By The writer is deputy secretary general of the National Rainbow Coalition
Published November 23rd 2002 in The East African Standard
Nairobi -- The draft Constitution by the Constitution of Kenya Review Commission could be what Kenya needs to ease occasional conflicts over land ownership and regional identity, writes Dr Carey F. Onyango

The land question has often loomed large in Kenya's politics. Not really surprising since our economy is basically agrarian.

From 1991 we saw violent ethnic conflict in the Rift Valley, Western, Nyanza, Coast, Eastern, and North Eastern provinces. With the exception of the "Shifta" secessionist war of the 1960s in North Eastern, ethnic clashes were unprecedented since independence and almost drove the country into civil war. There was heavy loss of life and property, and internal displacement.

The strife is the result of land rights disputes, especially along ethnic lines, often coinciding with invocation of, "ancestral" rights to land.

Political inclination and affiliation tends to be mostly co-extensive with ethnicity, and with the current constitution there has been no effective constitutional mechanisms to harmoniously regulate ethnic compe- tition for power and resources.

These postulates explain why these conflicts are either "land clashes" (about land) or "ethnic clashes" (about politics).

The political dimension of the conflicts has been alluded to in the recently released report of the Justice Akiwumi judicial commission to inquire into so-called "tribal clashes."

These conflicts have tended to pit members of ethnic groups largely associated with some political parties dominated by politicians from such ethnic groups against other ethnic groups who are also largely associated with what are deemed rival political parties. However, some of the conflicts have pitted different ethnic groups who have tended to be politically inclined to the same political party.

A good example is the conflicts in Isiolo District (1999-2000) pitting the Somali (Degodia clan) against the Borana community. Both communities have been allied to Kanu. The current political terrain however is much altered following the birth of Narc.

Political rivalry and competition for resources has tended to crystallise on land, especially in the Rift Valley. The conflicts over land in the Rift Valley, Coast, and Eastern provinces often pit communities regarding themselves as "indigenes" against those regarded as "migrants". For the most part the "indigenes", especially in the first two provinces have in the past tended to be associated with Kanu against "migrants" who have for the most part have been associated with opposition parties.

There are significant exceptions however. Recent conflicts between the Marakwet and the Pokot, for example, have pitted two sub-ethnic groups of the Kalenjin communities against each other.

In the case of the feud (1994-2000) over the 40, 000 that the East African Tanning Extract Company, a Lonrho subsidiary, wanted to dispose in Uasin Gishu.

Nandi squatters teamed up with non-Kalenjin fellow squatters (Turkana, and Luhya) against some Kalenjin elite. The invocation of "ancestral" land by "indigenes" often goes with claims that they should have exclusive rights to land in those regions because they are "the rightful owners of the land"- they controlled or occupied the respective territories prior to British rule.

Such arguments are implicitly premised on the "first occupancy" theory of property rights, that is, "argument from first occupancy". In issues over who should own what, one of the questions that comes up is "who had it first?".

The argument to first occupancy is found in Immanuel Kant's (German philosopher) Metaphysics of Morals and in Georg Hegel's (German philosopher) Philosophy of Right.

The notion that being there first somehow justifies ownership rights is not unworthy. However, analysis reveals that it does not provide so sound a basis for claims of ownership.

The first occupancy principle of property rights on which "ancestral" land rights claims in Kenya have been premised is fraught with intractable conceptual difficulties, and is bound to run into historical ones too. However simply repudiating such claims hardly suffices in addressing the problems at hand.

The invocation of "ancestral" land rights since 1991, especially by the "indigenes" in the Rift Valley and Coast provinces, mostly inclined to Kanu, has tended to go with clamour by politicians from those communities for some kind of provincial autonomy, federalism or majimboism.

In 1991 the government of Kenya was forced by internal and external pressure to revert to political pluralism. Majimboism and "ancestral" land rights claims are in part counter-challenges to the advocacy for democratisation initiated by the Forum for the Restoration of Demo- cracy (Ford), and subsequently under its splinter groups and other opposition groups.

Majimboism and "ancestral" land rights claims have partly been a sort of blackmail. Ford and other opposition parties tended to be identified with numerically superior communities, principally the Kikuyu, Luhya, and the Luo who coincidentally also provide the bulk of "migrant" communities in the Rift Valley and Coast.

To that extent majimboism has carried a negative connotation of crass and bellicose hatred, and lack of empathy with "migrant" communities.

Yet, behind majimboism and the invocation of "ancestral" land claims has also been a genuine fear of being dominated by the numerically superior communities felt by the "indigenes" of especially the Rift Valley and Coast provinces, often regarded as part of the "minority communities".

This phenomenon has manifested itself, especially during critical transitory periods in Kenya's history, crystallising around land.

The opposition generally have done little to acknowledge genuine concerns of Kalenjin and other Nilotic communities in the Rift Valley, pastoral communities, the Miji Kenda, Pokomo, Taita, Taveta, and other coastal communities.

The majority of these communities have suffered the worst forms of dispossession under the Kenyatta and Moi governments. Genuine clamour for federalism has often been linked to the pejorative sense of maji- mboism and dismissed off hand by the opposition. Genuine clamour for demo- cratisation has been dismissed off hand by Kanu, often using state apparatus to stifle dissent.

Federalism has tended to be regarded as not even an option for consideration in the on-going constitutional reform process.

The wheat should be separated from the chaff. There is need to acknowledge the genuine fears we mention above, and for constitutional arrangements that will address such fears as well as protect the rights of "migrants". That is why the draft constitution of the ProfPal Yash Ghai led CKRC is important.

Behind invocation of "ancestral" land rights and majimbo recurring at critical transitory periods since independence, is also a yearning for democracy and constitutional structures that will accord protection to the rights of "minority" communities and "indigenes" of the Rift Valley and Coast.

The advocates of majimbo must also empathise with the rights the genuine fears of migrants, and must be ready for compromises that can grant autonomy without federalism.

The draft constitution goes along way in seeking to resolve matters by proposing substantive devolution of power within a unitary state. That is as it should be.

This is Kenya's most significant perennial problem, and central to it is the issue of segmental autonomy about which there is need for a compromise.

It is hardly surprising that Prof Ghai pointed out last year that of all the issues for constitutional review, devolution, or majimboism, has attracted the most attention.

There is wide consensus though, and Ghai did point out that for purposes of wide participation of people in public affairs, respect for regional identity, good governance, and accountability of public authorities, consideration ought to be given to some form of devolution. The draft constitution does just that.

Executive authoritarianism, inherited almost intact from the colonial state must be addressed. There is need for constitutional structures, through which all Kenyans can be accorded effective representation at all levels of government.

The draft constitution seeks to do just that through consensus, proportional representation, and segmental autonomy or devolution. It terms of consensual decision making the draft constitution creates the possibility for the spreading of and sharing of power between political parties and where all parties are in principle equal.

That is in first by proposing the splitting of executive powers between a president assisted by a vice-president and a prime minister assisted by two deputies. That could serve to reduce tensions caused by anxiety of the possibility of losing out in elections as in the "winner-take-all" system of the current constitution.

Parties can be represented in the Executive in proportion to their legislative strength. Parties who are otherwise suspicious of each other could get to work better with each other in view of the prospects of sharing in governance.

The proposal for proportional representation in the draft constitution has either been grossly misrepresented or misunderstood. The draft proposes that the National Assembly be based on a Mixed Member Proportional System in which 210 members shall be elected on the basis of single member constituencies, in addition to 90 members elected on the basis of lists of candidates submitted by political parties contesting the election.

The 90 members are quite different from nominated MPs as in the current constitution. In the proposed case the lists would be submitted by parties prior to voting and who in that list actually goes to the National Assembly would in the final analysis be determined by voters.

In the current constitution nominated MPs are on the contrary actually simply hand-picked by parties with no lists submitted to the voters to decide.

In the proposed system parties would share out the 90 slots depending on the votes they get countrywide. The more votes a party has the more MPs it would have. That is what proportional representation means.

The rationale is that our current 210 single member constituency based way of electing legislators is skewed, that is the combined opposition got more votes than Kanu in the 1997 General Election, but paradoxically Kanu had a majority of seats in Parliament.

Some countries like Austria and Israel chose legislators to their National Assembly entirely on the proportional representation system where the whole country is actually one constituency with parties submitting lists prior to the election.

The party that garners most votes countrywide gets the largest number of legislators in Parliament. Segmental autonomy or the devolution of power to some regional or geo-political identities has within the last decade stirred political passions.

The state structure in Kenya is overly centralised. The arguments have however often been put in the simplistic terms of federalism Vs unitary state.

Federalism is just but one way in which segmental autonomy can be implemented, and thus requisite devolution can be attained in a unitary state.

The draft constitution proposes devolution in a unitary state in a manner that should satisfy both those for and against federalism. It does that in two ways: Proposing village, locational and district govern- ment; the proposed second chamber of Parliament, with legislators representing the districts is a way of according respect for regional identity. It has been argued that the proposed second chamber be proscribed because it would be expensive.

Yet it seems that if we are to bury anxieties around the majimbo issue, the land question, and concomitant ethnic tensions and conflicts, then money should not be the issue.

There should not be a monetary price that is too high for democracy. It is crystal clear that the main stumbling block to democracy in Kenya is our overly centralised system of governance.