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The East African Standard
November 23,
2002
Summary:
The author
makes the case for the proposed
draft Constitution in Kenya, which includes regional devolution of
powers within a unitary state, bicameralism, and a mixed member
system of full representation (proportional representation). He explains why
this is needed to help resolve tension between different minority
and majority groups within Kenya.
http://allafrica.com/sustainable/stories/200211240093.html
Law Could Ease Land Rows
OPINION
The writer is deputy secretary general of the National Rainbow
Coalition
November 23, 2002 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. |
