LANDHOLDING BY NON-CITIZENS –AND HOW SUCH LAND CAN REVERT TO THE STATE

 Article 65 sections (1) And (2) of The Constitution define the terms under which a non-citizen may hold land in the Republic of Kenya setting a maximum period of lease to 99 years. It states under section (2) that “If a provision of any agreement, deed, conveyance or document of whatever nature purports to confer on a person who is not a citizen, an interest in land greater than a ninety-nine year lease, the provision shall be regarded as conferring on the person a ninety nine year leasehold interest and no more”.

      Under section (3) a of the same article it states “a body corporate shall be regarded as a citizen only if the body corporate is wholly owned by one or more citizens; and (4) that “property held in trust shall be regarded as being held by a citizen only if all of the beneficial interest of the trust is held by persons who are citizens.

       The question that remains unclear in the minds of many Kenyans is the manner in which cases of land solely owned by non-citizens will be treated upon expiry of the 99 years which in many cases may have already expired. Will it be the case of  some new owners  quietly assuming “ownership on a willing buyer willing seller basis” without considering the interests of many other landless persons who are yearning to own a piece of land?

      There appears to be no clear policy or procedures to deal with such cases in the light of great public interest in matters of land ownership.

       Kenya with its record of fair and equitable manner of handling of many other national issues in accordance with established laws is unlikely to go the Zimbabwe way. Therefore there is every possibility that it will not in any way compromise the interests of owners who have held possession of vast tracts of agricultural land for many decades. But, if and when need arises for acquisition of any such land there is need for some clear policy on the manner and method of compensation including determining a fair price payable to the owners.

      In a recent interview on a local TV station with the Chairman of the National land commission, he elaborated about its mandate and powers it could exercise, that  appeared so extensive and would make some believe that all hell was about to break loose for any one owning land in Kenya. This may be so in the case of public land or land under the jurisdiction of Municipalities in our cities and townships that were illegally acquired in total disregard of its future use for other public purposes.

     Article 61 section (1) classifies land in three categories as (a) public (b) community and (c) private. In the case of public land section (4) sets out the manner in which such land shall be disposed of subject to terms of an act of Parliament specifying the nature and terms of that disposal or use. This new constitutional requirement is a welcome development as long as the legislators act in the greater good of the people of Kenya without considering their own vested interests or interests of other groups for whom they may act.

     Compulsory acquisition of private land for legitimate public use may not have posed any serious challenges in the past since the procedures for doing so are well defined in law and there appear to have been very few or no reported cases  of disputes in the recent past.

     A good case in point is the recent demolition of major developments along Mombasa road that were brought down to pave way for the new northern bypass including other developments along Langata road that may face a similar fate for the same purpose. It is believed that the owners of the demolished properties were paid a fair compensation that was made up of the current market value of the property plus an additional 15%.

     The recent acquisition of farmland owned by Rose Brothers in Mau Narok for the purpose of settling IDPs may perhaps be a case in which the manner of acquisition and the price paid to the owners appears to be shrouded in secrecy since the takeover did not fall within the provisions of the law relating to compulsory acquisition for public use.  There is no doubt that the transaction was concluded on a “willing buyer willing seller” basis but what remains uncertain is how the valuation was carried out and if the transaction was subjected to the requirements of the current policy relating to  Public procurement procedures. In recent months the public was informed through full page advertisements in the local print media about awards of contracts for goods and services to successful bidders, but in the case of the Mau Narok land purchase no such information appears to have been made public.

    Since most agricultural land in Kenya is classified as high, medium or low potential, the lack of any official guidelines about what may be considered a fair current market value per acre; this therefore leaves the issue of price open to the dictates of market forces, and in such a situation the rule of supply and demand comes into play favoring only those with abundant resources to benefit since any transactions can only take place on a “willing buyer willing seller” basis at a mutually agreed price. The scramble for purchase of land in Maasai land is a clear evidence of this trend. The prices demanded by sellers and accepted by buyers is unrealistically high and makes no economic sense, yet those with cash resources continue to purchase land!

     For the  ordinary Kenyan, he continues to live in the hope that the state will one day find sufficient land to settle the multitudes who aspire to own land for establishing a homestead. This is certainly an improbability if not altogether impossible since the state has very little land at its disposal for this purpose. In the recent past the term “willing buyer willing seller” in respect of land transactions seems to have been “stigmatized” but that is and will remain a reality in a free market economy.

Why are Kenyans so obsessed with owning land? Is it because of some outdated belief about disposal of their dead? In some communities the burial of their dead in public cemeteries is considered a taboo.

While many landless continue waiting and hoping for the state to find land to settle them, the landless should not lose sight of the serious challenges facing some local authorities in obtaining suitable land for public cemeteries. In recent months allegations of corruption have been reported in the media in relation to purchase of land from private sources, which suggests there is no state land available for such purpose. That being the case, how feasible is it for the state  to find, say  10 acres of land to settle a landless family when land to bury the dead ,who are far fewer, has become almost impossible?

FREE ENTERPRISE AND PROPERTY OWNERSHIP RIGHTS-THE WAY FORWARD FOR KENYA.

        In response to various recent debates on the question of land ownership by the Kenyatta family, I had penned my views on this subject and posted them to the Disqus page of a local daily to which I received some negative responses that in my view were not informed by realities pertaining to land issues after Kenya attained independence. I take this opportunity to share the same views here with other readers who may wish to have some glimpse of the situation prevailing during the period following Kenya’s independence and hope that we can have some appreciation of the opportunities and challenges that existed at that moment in time as Kenya became an independent state. The views expressed here are my personal and based entirely on my own observations and experiences as I was fortunate to have lived, worked and interacted with members of the farming community from both the pre and post independence era of Kenya including many prominent political personalities with whom I had the opportunity to work in the various senior positions I held in the Kenya Farmers’ Association spanning a long period of time from the begriming of 1958 to 1986 and as Board Chairman for a short period in 2003.

     I found it somewhat unfair for a section of the Kenyans society to put Uhuru Kenyatta on notice seeking explanation from him about his alleged ownership of land in Kenya since it is a well known fact that he may not really own much or any of the land that has been a pet subject of his many of his critics, not for lack of knowledge about the truth but simply and unfortunately to discredit him his family and the community that he belongs to.  

      Who had the money at Independence? Of course it was Kenyatta, the bureaucrats who formed the nucleus of his system of governance and those appointed to senior positions in the Provincial administration and other civil service positions at the starts of the journey to Nationhood.

For those who are familiar with the Report of the Commission of Inquiry, commonly known as the Ndegwa commission report some may be aware that what ails this country today is the result of certain recommendations that were contained in that report and allowed to take their course unchecked. If for example, the office of the Ombudsman had been established and empowered as had been recommended in that report things may have been different, but unfortunately that did not happen.

      To understand the issue of land ownership it is also equally important to understand the economics of land at the time of independence and at present before forming opinions of real time wealth of those who are now owners of large tracts of land around the country.

     The price of land per acre soon after independence was as low as KES. 300/- and to demonstrate this case to those who may not be aware of it, around the year 1968 one of the best large scale mixed farms in Molo area of Nakuru district was sold by its former white British owner to Settlement Fund Trustees on a "lock stock and barrel" basis at an agreed valuation of UK Pounds 31 per acre at a time when the exchange rate was below KES.20. During that period of our history there was more land available for sale on the market than there were buyers. There were obviously less buyers and this was simply because of the low levels of wealth possession in the hands of Kenyan people.   

     Those who were around at the time and had the money, took advantage and acquired much of the land on a "willing buyer willing seller" basis and later acquired more land in ways that now appear to many as “questionable”.

     However those who now stand accused of having allocated state land to themselves or their close political allies and supporters, had the legal authority to do so and therefore there is very little that anybody can now do to “undo” what is now perceived as acts of abuse of power. Under the old political dispensation the Heads of State wielded enormous powers and enjoyed full immunity against any kind of prosecution, both civil or criminal .Therefore any attempts to “remove skeletons from the closet”  by any state constituted commission, such as the land commission  or any investigating authority with the view and hope of redressing the “historical injustices” will be an exercise in futility.           

      Large tracts of land in Kenya are still owned by non indigenous owners who were granted titles by the former colonial administration and the same titles are still being honored by the Independent Kenyan state as a sign of respect for the rule of law and upholding the sanctity of the titles held by the owners. For anyone to expect revocation of titles granted by our own Independent Kenyan state and suggest redistribution of such land to the ever growing demands for land from the landless multitudes is to say the least an unlikely proposition, unless we are prepared to shift to some other outdated and unworkable ideological order. Such experiment miserably failed in one of our neighboring state to which we cannot subscribe.

     For the present and any future leadership of the Republic of Kenya it will not only be undesirable but an impossible task to initiate radical reforms to our land laws that may be expected to address and resolve any “alleged or real historical injustices” as have been and continue to be articulated by those opposed to land ownership policy of this country. Expecting any radical change is perhaps, like wishing the sun to rise from the West to East. Socialism as practiced in some communist states including the so called ‘Islamic Socialism” invented and championed by leaders such as Bhutto of Pakistan and Gaddafi of Libya had promised great hopes of equitable distribution of resources to all, have remained ideals that never translated into realism and remain buried in the past.

     Fair access to resources, equal opportunities and free enterprise with the elimination of the greatest vices in the form of corruption, ethnicity and marginalization of disadvantaged groups is the only sure way forward for a prosperous and peaceful Kenyan nation.

     Whereas the letter and spirit of the new constitution hold out great promise for the future of Kenya and its people, its full implementation and respect for the rule of law remain the greatest challenges for many Kenyans. The events witnessed in recent weeks with several leadership squabbles and greed for money in the first 100 days of President Uhuru Kenyatta’s leadership are to say the least greatly disappointing. The plight of the critical mass of the ordinary Kenyans appears to have been placed on the back burner for now, a sad development indeed.

  

IS LAND OWNERSHIP A RIGHT OR A PRIVILEDGE?

In a recently published article in the local Kenyan print media, a political commentator likened the Kenyatta family’s land ownership and their status in National politics with the Bhutto family of Pakistan. I am of the view there can be no comparison between Jomo Kenyatta and Sir Shah Nawaz Bhutto for reasons that I shall attempt to present in this article.

Shah Nawaz Bhutto was a close ally of the former colonial masters and his being decorated with knighthood   is a clear testimony of his loyalty and for “exemplary” services he rendered to the British colonial government. In the same article the writer quoted from a book titled “Songs of Blood and Sword” authored by  none other than the granddaughter of Zulfikar Ali Bhutto about how the Bhutto family acquired large tracts of land in the distant past. She wrote that “they battled…until the Bhuttos secured themselves land that stretched fifty to eighty miles”. “During colonial rule, because the Bhuttos were in good books of the Government, they received land gifts from the Government, adding to what their ancestors had already acquired”. Like the Bhuttos, many other feudal lords of Sindh and other Provinces also acquired vast tracts of land ranging between five to fifteen thousand acres.

 Pir Pagara, Mustafa Jatoi, the Lagharis, Makhdooms, Jamalis are just a few who were and continue to remain a part of a feudal agricultural establishment in independent Pakistan. These individuals and their families derive their power base from small farmers and tenants, commonly referred to as Mazaras especially in the interior of Sindh Province. The tenancy system continues on a large scale; one third of Pakistan’s farmers are tenant farmers, including almost one-half of the farmers in Sindh, the home Province of the Bhuttos. Tenant farmers have been victims of exploitation by the feudal landlords who typically collect 50% of what they produce from the land on which they have remained tenants for decades.

In 1959, accepting the recommendations of a special commission on the subject of land ownership, General  Mohammed Ayub Khan’s government issued new land reform regulations that aimed to boost agricultural output, promote social justice, and ensure security of tenure. A ceiling of 200 hectares of irrigated land and 400 hectares of non-irrigated land was placed on individual ownership. However these reforms made no serious attempts to break up large estates or to lessen the power or privileges of the elites who were owners of such large estates. Part of the reforms also attempted to provide security of tenure to tenants, consolidate existing holdings and prevent fragmentation of farm plots. An average holding of about five hectares was considered necessary for a family’s subsistence and a holding of about twenty five hectares was pronounced as a desirable ‘economic’ unit.

Zulfikar Bhutto who pursued a socialist ideology and branded his socialism as ‘Islamic Socialism’ as did other likeminded leaders in the Arab world at the time, was part of the land reforms introduced by Ayub Khan under whom he had served for many years before he engineered his exit from power. The land reforms that Bhutto is said to have introduced during his tenure cannot be said with absolute certainty were in any way successful. Did Zulfikar Ali Bhutto ever redistribute part of his family’s land to the landless? There is no evidence that he did so. Why should Uhuru Kenyatta be expected to do so ?

On the other hand Jomo Kenyatta was a Nationalist and a freedom fighter who suffered at the hands of the British colonial Government by being detained for nearly eleven years. Upon taking up leadership of an independent Kenyan nation he acted wisely for the interest of the Kenyan people and entered into an agreement with the British government that witnessed an orderly transfer of land from the white British settlers to the Kenyan state. The establishment of the Settlement Fund Trustees facilitated provision of funding by Britain for purchase of land from its nationals. This scheme proved beneficial for   many who did not wish remain in Kenya after it attained independence in 1963. Those willing to sell their farms at a valuation acceptable to both parties did so and migrated elsewhere. However, a section of Kenyans have some misgivings about that land buy out scheme, for reasons that are unjustifiable.

 Kenyatta was able to settle many landless people including some freedom fighters on the land purchased through the British funded buy out scheme administered by the Settlement Fund Trustees. Critics are often quick to blame Kenyatta for what they claim to be selective ‘dishing out of land’ to the Kikuyu people from central province only. Many Kenyans, due to either lack of knowledge or out of sheer ignorance, are unwilling to acknowledge that the largest group of people who suffered displacement was the Kikuyu ethnic community who were dispossessed of their prime land in areas spanning from Gigiri on the outskirts of Nairobi to Mweiga and other parts of the province that lie between Kinangop and Thomson’s falls. All that land was allocated to British soldier farmers and the Boers who were invited to come to Kenya by the British colonial administration. Many of the displaced people spent long years in villages established on the edges of Castle forest and were only allowed to plant certain approved crops between the rows of planted trees. Others were relocated to Mwea in Eastern Province and Marigat in Baringo district where they worked as menial laborers on the irrigation schemes that were established in those regions.

There may be no doubt that Jomo Kenyatta purchased a number of farms through negotiations on a ‘willing buyer willing seller’ basis and may have also acquired some public land by way of direct allocation, to which no individual or groups of people ever raised objections during his Presidency or in the years that followed after the end of his rule. Whatever he left behind has been lawfully inherited by his family members and unlike in the case of many other wealthy individuals who passed on in recent times, no disputes of any sorts have arisen about Kenyatta’s estate. Also in the matter of Kenyatta’s liabilities, many Kenyans may not be aware that his family settled most of his liabilities that were well documented and not subject of any dispute. I am privy to one case which I personally handled where full settlement of a debt of over KES.4 million was settled a few years after his demise.

Kenyans will continue to engage in debates about historical injustices for a long time to come but such debates and rhetoric by politicians are not likely to yield any meaningful results in the foreseeable future. The “radical land reforms” that many are advocating for seem to suggest a possible end to free enterprise and private ownership of economically viable land units. However, in the case of Pakistan, all the successive governments that followed Zulfikar Ali Bhutto after he was sentenced to death by the military ruler General Zia ul Haq, failed to implement the land reform policies that Bhutto and his predecessor attempted to introduce.

Fifty years after Kenya attained independence, large tracts of land in certain parts of Kenya that were allocated to white settlers by the British Colonial Government still remain in their possession. They still hold the original land titles. Nearly 80% of Kenya’s most productive land as well as large scale ranching farms in Laikipia district have remained in the hands of the original settlers or their descendants. Same is the case with Naivasha area where one individual recently inherited thirty thousand acres of land from his deceased father, not forgetting the large acreage owned by the Delamere family in the same region. The sanctity of those land titles have so far been respected by Kenyan leadership without engaging in any drastic acts similar to the ones witnessed in Zimbabwe.

 For some Kenyans, ownership of land by non blacks as well as any land acquired by local Kenyans after independence constitutes historical injustices for which they continually call for redress.

The only priority for the proponents of “reform agenda”, appears to be the repossession of land they claim was “acquired illegally” by Jomo Kenyatta, Daniel arap Moi and some of their close associates and family members. This seems a far-fetched idea in a country that has embraced democracy and respect for the rule of law as enshrined in the new constitution. The establishment of the National Land Commission which is mandated to deal with all land issues in the country in accordance with the letter and spirit of Sessional Paper No.3 of 2009 on National Land Policy is in its infancy and once fully operational is expected to address and offer solutions to most, if not all of the issues related to land in this country.