One of the biggest “historical injustices” that fuelled the post-election violence is the question of landlessness and inequalities in land distribution following the end of the Colonial Revolution that was led by the Land and Freedom Army (Mau Mau). After their betrayal and the taking over of the new government by traitors such as Jomo Kenyatta, the new Kikuyu ruling class that seized power embarked on a land-grabbing programme through dubious land-buying companies that left millions of Kenyans without possibilities of acquiring land. Thousands of Kikuyus who were being chased or killed in the Rift Valley following theft of Raila’s Presidency were paying the price of land grabbing in Central Province that forced thousands of Kikuyus to look for alternative and permanent settlements. In the process, these Kikuyus purchased land from the Kalenjin in the Rift Valley but after Raila Odinga’s Presidency was stolen by the Kikuyu ruling class, the question of land ownership, especially among the Kikuyu who had legally purchased land in the Rift Valley, became even more complicated because they were chased out of their property, their houses burned, members of their families killed as survivors were converted into IDPs. It did not matter that many of these Kikuyus had resided in the Rift Valley for decades and the sudden hatred that was witnessed between the Kalenjin and the Kikuyu after December 2007 was not just unprecedented but also out rightly shocking.
After the establishment of a coalition government, many Kikuyu IDPs were suspicious of returning to homes where they were evicted by the Kalenjin. Although the National Accord and Reconciliation Act 2008 provides for the sorting out of “historical injustices” that may have precipitated the rampant execution of thousands of Kikuyu’s, especially in the Rift Valley, a major obstacle to sorting out the land problem lies in how the hatred that was exhibited by the Kalenjin against the Kikuyu will be converted into mutual love that will guarantee security against future attacks regardless of political circumstances. Although some IDPs returned to their homes, thousands refused to return because the government had not built a strong foundation for lasting peace between the two communities in the future. This fear is reinforced by pledges among the Kalenjin that they will never accept the Kikuyu back in the Rift Valley regardless of political developments on the ground. Consequently, this position has posed the question as to how the government will be able to reconcile, in the long term, the two communities whose suspicions continue to linger long after the Grand Coalition government was put into place following the signing of the National Accord.
How will Kenyans be resettled on land owned by foreigners who are not ready to relinquidh land?
Another issue is that to sort out the problem of land redistribution, big land grabbing sharks inside and outside government will have to give up huge tracks if land is to be found to sort out the problem of landlessness in our country. The Kenyatta family, the Moi family, the Kibaki family and the Biwott family are just four family names that can be mentioned here when it comes to huge land ownership in Kenya by real or imaginary land grabbers. The Kenyatta family alone is said to own land equivalent to the size of Nyanza Province, space where more than five million
people could settle. In simpler terms, land owned by the Kenyatta family alone can be used to settle more than five million landless Kenyans across the country. This is before the thousands of acres owned by the settler community and other big landowners are brought into the picture. The unspeakable extent of individual land ownership demonstrates that the capacity to resettle the landless exists. However, the coalition government is not in a position to put in place a radical land policy to effectively sort out the “historical injustice” on the question of land because policy makers such as Uhuru Kenyatta are themselves huge stakeholders while on the other hand, Western imperialism has a duty to protect European land grabbers through a choreographed control of Kenya’s politics and economics.
A key obstacle is how the big shots will accept to give up their land without a fight and how the issue is likely to be addressed because some of the big landowners are in government where they are likely to steer policy away from nationalization as a key plunk of land redistribution. Apart from Uhuru Kenyatta who is a beneficiary of Kenyatta’s land-grabbing operations soon after flag independence in 1963 and who is a Deputy Prime Minister, Kibaki, the President, is another well-known
land grabber with vast parcels across the country. Moi, whose name features on the list of wealth and land grabbers in Kenya — ranging from the Ndungu Report to the Kroll Report, which alleges that Moi stole more than Ksh130 billion — has become a close ally of President Kibaki because they are birds of the same feather: land grabbers. Moi openly campaigned for Kibaki during the 2007 elections, probably expecting protection of his wealth. The Kroll Report is probably the most thorough documentation of what Moi stole from the Kenyan public during his twenty-four years of iron-fisted dictatorship so how does the coalition government begin to tackle the thorny issue of land that Moi may have grabbed during his twenty-four years of misrule when Kibaki, the President who appoints Commissions of Inquiries and who is himself a land grabber, is Moi’s closest buddy? Then, there is the obstacle posed by land owned by descendants of the so-called “white settlers” i.e. grandsons of former colonial masters who stole thousands of acres of land from Kenyans during the so-called “dark ages” of colonialism and who benefited from ninety-nine-year land leases soon after the betrayal of the Colonial Revolution to keep the stolen lands. Descendants of former white colonial masters are in full control of some of the most productive land in Kenya, owning plantations, huge settlement schemes and even game parks. These settlers have privatized vast chunks of national parks where they earn millions in tourist revenues, built five-star tourist hotels and made available multiple parks where game hunting by the world’s millionaires fetch millions of Kenyan shillings annually. Some of the best millionaire play grounds in Kenya are owned by sons and daughters of the settler community.
The so-called settlers have huge plantations where cash crops of choice are tea, coffee, pyrethrum and flowers, all grown for export. Earnings from these farms are routinely repatriated to Europe and America through Western-controlled horticultural industry that, nevertheless, employ Kenyan workers on starvation wages. Tourists pay these settlers directly to visit privatised game parks under settler control and the government has been well aware of this. In fact, part of concerns by British imperialism about chaos in Kenya following the stealing of Raila’s Presidency
and uncertainty about who was to take over power in Kenya hinged on fears that the equilibrium on the land question could be destabilized in a way that Kenya could become another Zimbabwe where white landowners have been chased away from farms grabbed before the outbreak of the Mugabe-led guerrilla war of liberation before the British negotiated a settlement.
Kenya is facing the same problem of foreign landowners so how will the landless be resettled when these foreigners have shown that they are not interested in relinquishing these lands for purposes of addressing the much-touted historical injustices? The question of white landowners in Kenya or big shots with vast pieces of land across the country is almost a taboo subject in Kenya so how will the issue of land redistribution be tackled if the subject itself is too sensitive for public discourse? The British government is known to have control of Kenyan politics. Will Number 10 Downing Street allow the Grand Coalition government to change the rules in the name of fair play on the question of land ownership in Kenya, a change that may affect British landowners and other foreign beneficiaries who have taken over the Coast of Mombasa and converted Malindi into a Mafia city centre? This brings us to the obstacle posed by Raila Odinga who has been trying his best since he became Prime Minister to please the British and the Americans. Initial reactions by the US government after election rigging indicated that the United States was not very interested in a Raila Presidency because his agenda was obscure to the United States. Raila had never led a government while he is one Kenyan who has enough reason to be unpredictable because of the way British and US imperialism treated his father whom the Imperialists regarded as a communist. Now, Raila has to show the British and the Americans that he can lead Kenya without putting imperialist interests at risk.
Big obstacle
If the land issue is to be tackled adequately, land owned by white settlers have to be attached, or at least put on the map when a real solution is being drawn. One does not need to study political science to understand that as long as he will be alive, Raila will present himself as a Presidential candidate in 2012 to complete the political cycle of becoming Kenya’s President. For millions of Luos who back Raila, the son of Odinga has a historical responsibility of completing his father’s dream of rising to Kenya’s Presidency. Raila is a tactician and there is no reason to believe that he will not play his cards effectively to position himself as the winning candidate come 2012. Ethnic political blocks and voting patterns, which are unlikely to change dramatically in the next five years, are already in his favour and what he needs to do to seize the Presidency in 2012 is to consolidate the inter-ethnic support base he built in the run up to the Referendum while at the same time calming the fears of Western Imperialism whose concern is that he may be a communist under Liberal camouflage.
Whatever Raila does between the formation of the Grand Coalition and the next polls will be pure election campaigns albeit clothed in implementing government policy, supervising government ministries or coordinating the activities of these Ministries as part of his mandate as Prime Minister.
With this strategy in mind, Raila Odinga is unlikely to pursue a land policy that is hostile to imperialism and local landlords if he wants to clinch the big seat in 2012. He will try to articulate a land policy that will accommodate local and international capitalists and this kind of policy will compromise an effective and permanent solution to the land problem because land is not a commodity that could be imported from abroad to be distributed or created as a new commodity locally to sort out the land problem. It is a fixed asset that could help resettle the landless only if the big landowners are relieved of chunks of land to be distributed to their tillers with or without compensation. There is no short cut.
During the 2007 election campaign, Raila was constantly portrayed in PNU propaganda as the kind of person who will take over land belonging to the Kikuyu if he takes over power in Kenya. If Raila begins to pursue a land policy hostile to the interest of the big land grabbers in Kenya (including Kikuyu land grabbers), he will be playing against his own Presidential ambitions or engaging in partial political suicide. My view is that Raila will try to avoid the real solution to the land issue as long as possible because any radical land policy that questions the legitimacy of the big landowners or that puts huge tracts of land owned by some of his new friends like Kibaki will be incompatible with his future political agenda of rising to Kenya’s Presidency.
There is no shortcut to addressing the question of land without bringing in the element of nationalization of huge tracts of land into the picture — with or without compensation. Doing this will not just mean a shift in government policy but a radical ideological change opposed to the free market system of government that has converted land into a commodity for sale and allowed a few fat cats to own vast pieces of land when millions of Kenyans are landless. Any politician who talks about addressing the issue of land or resettling the landless without talking about nationalizing idle land owned by known land grabbers (be they local or international) is lying to the Kenyan people and should thus have his or her land policy investigated by the public. The question of nationalization of large pieces of land is probably the biggest obstacle standing in the way to a resolution of the land question in our country. Fantastic land policies could be drawn by the Minister for Lands and Settlement but if there is nothing in those policies that will end up resettling the landless at the end of implementation, such policies will remain propagandistic drafts that will postpone the solution to the land problem. The land issue in Kenya is complex and cannot be tackled here exhaustively. The purpose is to point out a few huddles on the road to addressing “historical injustices” that the coalition government that came into existence after election rigging may, in the long term, be unable to surmount under the prevailing and fragile political circumstances.
Book: Raila Odinga’s Stolen Presidency (pges 407-412) published in 2008
About the Author
why do you have so much hatred against the kikuyus,ithink we should be like our brothers from Tanzania who name themselves by Nationality,but not by tribe.When iwas growing up i didnt know the diffrence between akikuyu and a jaluo,because they were our tenants,untill 2007.let us not spread the tribalisim from generation to generation.it takes astep to change every thing,and it starts with you and me………….
Reblogged this on Brain power.
Seeds Of Tribalism In Kenya: History Has All The Evidence
The Kenyatta administration clearly did the most damage in dividing the country along tribal lines and destroying all the national unity that had been achieved in the run up to independence. The historical evidence is there for all to see.
Did you know that for instance that President Kibaki used to represent a Nairobi constituency in parliament? I believe it was what we know today as Makadara constituency.
Tom Mboya also represented a Nairobi constituency. The manner in which the Kenyatta kitchen cabinet/mafia destroyed his political base in Nairobi, along tribal lines, made many Nairobi politicians at the time very nervous and many opted for the safety of their tribal seats back in the rural area. Mwai Kibaki was just one of them.
This single factor had a major effect in ensuring that tribal politics was forever entrenched in Kenya.
It is interesting that people like Njoroge Mungai stuck to Nairobi constituencies, although his situation was unique in that Nairobi’s Dagoretti constituency is part of the greater Kiambu district where Mungai and the entire kitchen cabinet hailed from. So technically-speaking it was a rural seat and probably still is when you compare it to all the other parliamentary seats in Nairobi.
It was this kind of politics, pioneered by President Kenyatta’s inner circle that destroyed situations like what had been witnessed in 1957 when during the first elections in Kenya involving Native Africans, Tom Mboya, a Luo, beat another Kikuyu in a constituency, Nairobi, where the vast majority of voters were Kikuyu. In fact Munyua Waiyaki (the Kikuyu he beat) was not even second. Second was another Luo, Arwings Khodek, a lawyer who broke the Kenyan law then by getting married to a Briton. The penal code at that time did not allow sexual intercourse between an African and a European. Khodek “committed the offence” in Britain and had therefore to make special legal arrangements on his return to Kenya.
Interestingly the Mwai Kibaki administration has proved to be similar to the Kenyatta administration in many ways.
Guys Mzee Jomo Kenyatta started Tribalism and land grabing…From Safaripark/Kasarani to Delmonte and Ol Donyo Sabuk (14 falls) ….Nakuru town to Ngata/ Salgaa 27 kilometers….without mentioning Front all the land in Mombasa beach….. ON your way to Wundanyi, Malindi, Subukia, South Coast and Rift Valley. The guy grabbed all the Land………..
Mzee Jomo Kenyatta planted the first seeds of Tribalism in Kenya. He not only grabbed land but also made Kikuyus have the feeling that they were entitled to the leadership and resources of this country. This feeling has persisted and was a major cause of the 2007 electoral theft. There was a feeling among the Kikuyu elite that they could not just hand over power like that. Jomo Kenyatta also caused animosity among the Kenyan tribes by trashing them, by rediculing them and by killing their leaders. Today the death of Tom Mboya, Pio Gama Pinto and many others are associated with state assasinations orchestrated by the Kenyatta Administration.
The Kenyatta family today own land that is EQUAL TO NYANZA PROVINCE, where almost 500,000 people live and the annoying fact is that NO POLITICIAN wants to talk about this and one UHURU KENYATTA has totally refused to admit that of their lands were grabbed from Kenyans and still go on national platform to campaign to be elected the President of this country and get support from his community, while many Kikuyus are squatters in the country. Kenyatta did not even give any land to the so called War Veterans. He trashed them and told them that there was nothing for free.
Actually when we stay with the truth-Kenyatta betrayed the cause of UHURU. He is the main cause the Land chaos in Riftvalley. He transfered many Kikuyus into Riftvalley, settled them there many of them free of charge at the chagrin of many Kalenjins. Land Reform therefore is a major plank in the development of this country but also for peaceful co-existence of our people. Watch the Making of a Nation and you will see how Kenyatta ruled this country with an iron fist and dished all lucrative jobs and appointments to his fellow Kikuyus. The development of central province is not about hardwork..Its about State supported development both through infrastructure and dishing of major public procurements but also loans that made the people able to start Businesses as early as Kenyatta’s days. Many of them too were sponsored by the state to study abroad. This is the truth that many would never want to talk about. The skewed development in kenya has always been POLITICAL and TRIBAL..Nothing like someone is more hardworking than the other….
A PUBLICLY FUNDED MONUMENT TO CORRUPTION?
The late Paul Ngei Mausoleum that was officially
opened by the Minister of State in the Office of
the President Mr Suleiman Shakombo
Paul Joseph Ngei was one of the six leaders known to Kenyans in the Fifties as the “Magnificent Six”, who were arrested in 1952 and imprisoned by the British for their leadership of, and role in the Mau Mau revolt.
He was a notably colourful, tough and – in the many government ministries he occupied – classically corrupt Kenyan politician. He used to boast that he had 30 Savile Row suits, several wives and a mistress in every capital city he had ever visited.
In 1971, at the height of his powers as a member of President Jomo Kenyatta’s ruthless KANU government, Ngei went to a car showroom and failed to return a Mercedes he took for a test drive. The company decided it was best not to invoice him, and the car was still parked at his home when he died more than 30 years later.
Kenyan newspapers that never dared report the spectacular corruption of the Kenyatta era for fear of their lives have been recalling how Ngei would raise a storm if ever waiters in Nairobi’s leading hotels asked him to settle drinks and meal bills for himself and his friends. He would dress down the waiters and tell them to send the bills to President Kenyatta. Cowed and shaken, the waiters would hurriedly take the bills away and the hotel absorbed the costs because no-one dared ask State House to pay.
Ngei served for 27 years as a minister in charge of marketing, housing, social services, environment and lands and settlement in both Kenyatta’s and the former president Daniel arap Moi’s administrations.
Kenyatta looked after his fellow freedom-fighters and detainees carefully. After being found guilty by the courts of election fraud, Ngei called on Kenyatta for help, arguing that he had been convicted under “archaic” and “oppressive” colonial laws. The president summoned the attorney general, Charles Njonjo, and asked: “Is this law barring Ngei from contesting for years in the books?” Told that it was, he ordered Njonjo: “Go make a law that will give me the power to pardon Ngei.” A few days later, legislation giving the president powers to pardon election offenders went through parliament. Ngei was pardoned and he went ahead to contest and win a subsequent by- election in his home constituency of Kangundo.
With the exception of Bildad Kaggia, the “Magnificent Six” became immensely rich. Once, when he was minister of lands, Ngei called on his old friend, living in a Nairobi slum, and told him to “help yourself” to a pineapple farm owned by the Del Monte company. Ngei publicly told Kaggia: “Why do you live in poverty when you fought for freedom in this country? Today I give you permission to get into this farm here (the Del Monte estate). Allocate yourself as many acres as you want. If anybody asks you a question, tell them to go and see Ngei at Ardhi House. I will sort them out for you.”
Kaggia has continued to live in dire poverty, leading the acclaimed radical Kenyan writer Ngugi wa Thiong’o to comment: “It is as if independence for Kenya had meant a chance for individual accumulation of wealth. If you did not grab property like Kaggia, then you were lazy.”
Ngei accumulated a handsome Nairobi property, a 3,000-hectare ranch and an Indian Ocean property at Malindi. He was a notorious womaniser, and when he was subpoenaed to give evidence in the trial of a cabinet minister’s daughter who was murdered after he had spent the evening with her, he told the trial judge who asked him to explain the reason: “That is a silly question. You should not ask a man why he was in the company of a beautiful woman. Every normal man likes a nice-looking woman around.”
Ngei squandered his wealth in high living, but hedged a good chunk of it in the Paul Ngei Trust Fund which was administered by his lawyer Mutula Kilonzo, Beth Mugo as deputy and his wife Flora as Tresurer.
Mr. Ngei excluded from parliament in 1991 when he filed for bankruptcy. The bankruptcy was discharged in 1997 because he had a lot of property. He later lost his KSh 150 million Garden Estate property in Nairobi for failing to repay a KSh700,070 loan he obtained from Continental Finance Company, using the estate as security.
He spent the sunset of his tumultuous life in a wheelchair after his legs were amputated because of diabetes. The legs were preserved at MP Shah Hospital and Mater Hospital, and were reunited and buried with him at after his death. His burial has been delayed as a result of cases brought against his family by women who are demanding the return of large sums of money they collected for charity and had entrusted to him, that he later embezzled.
Paul Joseph Ngei died on the 15th August 2004 and his body rests buried at his country home in Mbilini and his 27 years constituency of Kangundo. He was given a guality funeral befitting a King, a mausoleum has been build by the Kenya government in his honour.
Ndungu report summary
By Roger Southall Published in: Review of African Political Economy, 103, March 2005, pp.142-51.
The following summary of the Report of the Ndungu Commission on Illegal and Irregular allocation of public land provides an insight into a critical, recent episode in the struggles over ‘land’ and ‘graft’ in Kenya. To put it in the latest context, it is first worth noting that on the ‘graft’ front, the Commission can chalk up one partial victory in that its exposures have lead to the return of tracts of land to public action by politicians, including former President Moi. However, the limits of the larger fight against corruption was underlined when John Githong’o resigned his government position as Commissioner against Corruption. But the story the Ndungu Commission unfolded is also a chapter in another very broad issue in Kenya’s political economy – land.
One of the few African countries to enact individual tenure of indigenous land, along with redistribution of chunks of the former ‘white highlands’, Kenya is faced with landlessness on a large scale and with recurrent land disputes among individuals and between communities. Government has just set in train a National Land Policy Formulation Process to try and sort out these underlying problems, including those thrown up by the Commission.
According to Transparency International (TI), things in contemporary Kenya have recently got better: corruption has improved from ‘highly acute’ to merely ‘rampant’! Yet in commenting upon this, The Economist (18 December 2004) notes that Kenya remains one of the most corrupt countries in the world, and opines that following the example of former President Moi’s cronies,
too many of the new ruling elite are out to get rich, rather than govern. Members of Parliament, in a country where the average annual income per head is a modest US $400 a year, have awarded themselves an annual salary and allowances of $169,625 and ‘new patronage networks are replacing the old ones, as the well-connected appoint their chums and relatives to plum public posts.
To be sure, The Economist continues, Kenya is probably somewhat better off than it was under Moi, but President Kibaki’s economic and political reforms have stuttered, with progress towards a new constitution which would reduce the powers of the presidency and enhance democratic accountability presently on hold. Meanwhile, although the new government has promised an end to the culture of impunity for the powerful that developed under Moi, several ministers involved in corruption scandals both new and old are going unpunished. Whilst Moi’s Kenya African National Union (KANU) was roundly trounced in the general election of December 2002, the new government of the National Rainbow Coalition (NARC) includes powerful figures who – like Kibaki himself – formerly served under Moi and who jumped ship when it was clear that the latter’s craft was sinking, and landed squarely on their feet in the new cabinet. For all that the government has established various investigations into abuses committed by former KANU politicians who are still in office (having established, notably, hearings into the Goldenberg scandal of the early 1990s in which former Vice-President and current Minister of Education, George Saitoti, is heavily implicated), it is the decision to give Moi himself immunity from corruption charges, on the grounds that ultimately he opted to leave office peacefully, which seems more likely to set the key precedent (Brown, 2004:335).
Even if, as many observers suggest, the NARC government’s commitment to a cleansing of the Augean stables is likely to be more rhetorical than real, its eagerness to convince both the international investment and creditor community, as well as its own (increasingly skeptical) supporters, that it is doing something is likely to prove more than a little interesting. This is demonstrated by the recent release (December, 2004) of the Report of the Commission of Inquiry into the Illegal/Irregular Allocation of Public Land (Government Printer, Nairobi), chaired by Paul Ndungu, presented to Kibaki six months previously, in which, inter alia, details are given concerning illegal land awards made to both the Kenyatta and Moi families, as well as to a raft of former ministers, MPs, judges, civil servants and military officers, with recommendations that the large majority of such awards should be revoked. However, whilst it is such juicy findings which have gained the headlines, it is the chapter and verse which the Report gives concerning the systematic way in which established procedures, designed to protect the public interest, were perverted to serve private and political ends which may well prove to be its most long lasting value.
The present brief piece seeks merely to highlight some of the Ndungu Report’s findings. Such a review can only be preliminary, for at 244 pages with two annexures running to 976 (Appendix I) and 797 (Appendix II) pages, the prospect of analysing the mass of detailed evidence is as daunting as it could be illuminating. Nonetheless, even a cursory analysis serves to confirm earlier analyses that corruption and patronage have become thoroughly embedded in Kenya’s politics. Land & Demography in Kenya
The Ndungu Commission, which was composed of 20 prominent citizens, lawyers and civil servants (drawn from ministries particularly concerned with the land issue) was appointed by President Kibaki in June 2003, and was charged with inquiring into the unlawful allocation of public lands, ascertaining the beneficiaries, identifying public officials involved in illegal allocations, and making recommendations for appropriate measures for the restoration of illegally allocated lands to their proper purpose, for prevention of future illegal allocations, and for appropriate criminal prosecutions. It was but one of a series of measures designed to tackle the issue of corruption and to realise the fruits of a newly democratic era. Yet it was perhaps one of the most emotive of the reform initiatives taken by the NARC government, for as noted by the Commission (p.xvii):
land retains a focal point in Kenya’s history. It was the basis upon which the struggle for independence was waged. It has traditionally dictated the pulse of our nationhood. It continues to command a pivotal position in the country’s social, economic, political and legal relations.
Fundamental to the present importance of the land issue is the rapid growth in population. At the turn of the previous century, the colonial administration could justify its allocation of lands to European settlers by arguing that, with an African population of just some 4 million, there was plenty of space for all. By independence, the total population had grown to 8.2 million, and with one of the highest population growth rates in the world (around 2.9% per annum), reached some 30.7 million by 2001, of whom only around 1% were non-African (‘Europeans’, ‘Indians’ and ‘Arabs’). Given the concentrations of population in the high rainfall areas of the Central Highlands and western Kenya (20% of Kenya’s population lives in the drier 80% of the land in the north and east), the pressure upon land (not to mention the remaining wildlife) is increasingly evident, not least because of the scarcity of formal employment and the dependence of the overwhelming majority of the population upon peasant agriculture (which contributes some 50% of total agricultural production). In this context, access to land becomes critical to popular well-being, and the illegal appropriation of public land a peculiarly visible crime that has come to excite huge passion, not least because, as the Commission Report asserts, the practice of illegal allocations of land increased dramatically during the late 1980s and throughout the 1990s:
Land was no longer allocated for development purposes but as political reward and for speculation purposes … ‘land grabbing’ became part and parcel of official grand corruption through which land meant for public purposes … has been acquired by individuals and corporations (p.8). The Law Relating to the Allocation of Land
The Commission’s review of the land system as it developed under colonialism (based upon the Crown Lands Ordinance of 1915), stresses how the authority to allocate Crown lands (as distinct from lands reserved for African Customary Tenure) was vested in the Governor, and under him, the Commissioner of Lands. Under their prerogative, grants of agricultural leases (initially for 99, later for 999 years) were made to settlers, whilst commercial plots in townships and urban centres were initially allocated through a system of public auction while residential plots within municipalities were allocated through public tender. However, by the 1940s, the system of public auction – which had become dominated by wealthy cartels – had fallen out of favour, resulting in a change whereby commercial plots would be allocated by means of direct grant by the Commissioner with the assistance of a local committee, a system which had already informally replaced the public tender system with regard to residential land.
The principles which decided such allocations included notions of the public interest, as well as the ability of selected allottees to pay for land (sold at 20% of its estimated value to encourage development) within 30 days and to carry out intended developments within a prescribed time limit. As the Committee notes, for all that such procedures may have worked to restrict African opportunities to purchase land in ‘white’ areas, they served to control the ‘mischief of land speculation’. However, in what is one of the
greatest ironies in the history of land allocation in Kenya, what appears to have succeeded in the colonial period (i.e. allocation by direct grant) is what later facilitated the massive illegal and irregular abandonment of public land by the Government after independence,
for it was to be the very officials and institutions charged with being the custodians of public land who were to become the facilitators of illegal allocations (pp.6-7). The colonial Doctrine of Public Trust, whereby Kenya’s rulers administer land in trust for the people of Kenya, dissolved under independence, and land was to become granted for political reasons, or simply subject to ‘outright plunder’ by ‘a few people at the great expense … of the public’ (pp.9-10).
What land has been involved? According to the Commission, all types. In Kenya, it explains, land is divided into the three categories of government land, trust land and private land. Government land comprises two sub-categories, unalienated (land which has not been leased or allocated) and alienated (land which has been leased to a private individual or body corporate, or which has been reserved for the use of a government department or corporation or institution, or which has been set aside for another public purpose). Trust land is held by County Councils on behalf of local communities, groups, families and individuals in accordance with applicable African Customary Law until it is registered under any land registration statutes, following which it is transformed into private land and becomes the sole property of the individual or group in favour of whom it is registered. Finally, private land is land which is registered in accordance with laws that provide for registration of title, and is registered in the name of an individual or a company, and may be created from either government land or trust land through registration after all legal procedures have been strictly followed (pp.44-45). According to these definitions, it is only government land which is public land, for trust land belongs to local communities. However, because trust land has long become victim to land grabbing, the Commission opted to regard all trust lands which had been illegally allocated as public land for its own investigative purposes (p. 46).
Under the law, it is only the President who has the right to allocate unalienated government lands, although he can delegate limited powers to the Commissioner of Lands. Yet even the President cannot exercise his powers without paying regard to the public interest. In practice, however, key responsibility falls upon the Commissioner of Lands and his officials, who under the Government Lands Act may cause township plots on unalienated land to be sold by auction (unless the President prescribes otherwise) for business or residential purposes (but only if it is not required for public purposes), whilst not even the President has the authority to allocate alienated government lands which have been set aside for a public purpose such as nature conservation, forests, play areas or by-passes.
In any process of allocation, a formal offer of sale is made to an approved purchaser by the Commissioner for Lands. Such a letter of allotment is only made to the person to whom it is addressed, lapses after 30 days, and has various conditions attached, and as such cannot be legally transferred to another person. Meanwhile, trust land can only be removed from the communal ownership of local people through legally prescribed adjudication processes, whereby local communities are given ample notice and opportunity to claim their ownership in accordance with their customary law. However, despite all these legally strict safeguards, ‘it is in the allocation process that most of the corruption and fraudulent practices relating to land have occurred’ (p.54). The Commission’s Findings
Upon the basis of detailed review of all laws relating to land, official reports concerning the land issue by government and non-government bodies, documents and records submitted by ministries and public bodies, and reports and memoranda by professional associations and members of the public, the Commission categorised its findings according to three broad types of public land: Urban, State Corporations’ and Ministries’ Lands; Settlement Schemes and Trust Land; and Forestlands, National Parks, Game Reserves, Wetlands, Riparian Reserves, Protected Areas, Museums and Historical Monuments.
I. Urban, State & Ministries’ Land: The Commission indicated that numerous methods were used to grab land falling under this category.
There was found to have been widespread abuse of presidential discretion with regard to unalienated urban land, with ‘in many instances’ (both) Presidents Kenyatta and Moi making grants to land to individuals without any consideration to the public interest, for political reasons, and without proper pursuit of legal procedures, whilst there was also extensive illegal allocation by the presidents of alienated land (viz, land which they did not have legal power to allocate). Various Commissioners of Lands had made direct grants of government land without any authority from the President. Forged letters and documents were used to allocate land in numerous instances, with many records at the Ministry of Lands and Settlements having been deliberately destroyed. Often, land was sold by grantees without any adherence to the conditions laid down by letters of allotment, and many illegal titles to public land were transferred to third parties, often State Corporations, for massive sums of money. Land compulsorily acquired, like that for the proposed Nairobi by-pass, was illegally allocated to individuals and companies, and then often sold on to third parties, whilst land reserved for public purposes such as schools, playgrounds, and hospitals etc had been sold off in blatant disregard of the law by both the Commissioner of Lands and numerous local authorities. In broad summary, the Commission found that the powers vested in the President had been grossly abused by both the President and successive Commissioners of Lands and their deputies over the years, under both previous regimes; there had been ‘unbridled plunder’ (Commission: p.81) of public land by local councillors and officials; illegal transactions were hugely facilitated by the extensive complicity of professionals (lawyers, surveyors, valuers, physical planners, engineers, architects, land registrars, estate agents and bankers) in the land and property market; and most high profile allocations of public land were made to companies incorporated specifically for that purpose, largely to shield the directors and shareholders of such entities from easy public view. Finally, and interestingly, the Commission found that ‘most illegal allocations of public land took place before or soon after the multiparty general elections of 1992, 1997 and 2002’, reinforcing its view that public land was allocated ‘as political reward or patronage’ (p.83).
With regard to the over 140 state corporations (inclusive of such institutions as universities and the Central Bank) and the 113 odd companies in which the government holds shares, the Commission noted that although the purchase and disposition of land is incidental to their business, many such entities have acted as if they were set up to deal in land and have participated in land grabbing schemes through which the public has lost ‘colossal amounts of money’ (p.87). Land allocated to state corporations is ‘alienated land’, but has been illegally allocated to individuals or companies in total disregard of the law. Such land was customarily sold at less than market value to allottees, who often proceeded to sell it other state corporations at amounts far in excess of market value (p. 89). A usual procedure would be for the senior management of the corporations to address a letter of surrender of land to the Commissioner of Lands, who would in short order receive an application for purchase of the same land from an individual or company. At other times, corporation land might be allocated by the Commissioner of Land to individuals without any reference to corporate management whatsoever. Through such methods, ‘a civil servant, a politician, a political operative etc would transform from an ordinary Kenyan … into a multi-millionaire’ (p. 90).
Corporations which have lost large areas of land under such dubious circumstances include Kenya Railways, Kenya Agricultural Research Institute, the Power & Lighting Company, Kenya Airports Authority, and Kenya Industrial Estates, whilst other bodies such as the Kenya Food and Chemical Corporation which ended up in liquidation following mismanagement nonetheless proceeded to sell off their remaining assets, including land, at throw away prices (p.90). One such transaction can be cited by way of example. In January 1994, the Numerical Machining Complex Limited (owned wholly by Kenya Railways and the University of Nairobi (sic)) was allocated 840 hectares of land belonging to the Kenya Meat Commission for ‘industrial purposes’. Within a few weeks, the then Head of the Public Service, Professor Philip Mbithi, who was a Director of the Company, wrote to the head of the National Social Security Fund (NSSF) informing him that the president had suggested that the NSSF purchase the land at market value. In February 1995, the NSSF proceeded to purchase 136 hectares of land at a cost of 268 million shillings, which was fully 8.5 times more than the professionally assessed value! Today, the land purchased by the NSSF remains largely undeveloped, as does that remaining with Numerical Machining Complex (pp. 91-92).
This is illustrative of the further scam whereby state corporations were pressurised into making illegal purchases of public land, becoming ‘captive buyers of land from politically connected allottees’ (p. 92), the most abused corporation in this regard being the NSSF, which between 1990 and 1995 spent some 30 billion (n.b., not million!) shillings in buying both developed and undeveloped plots throughout the country. The Commission gives a full list of the transactions involved, many of the vendors being companies whose individual owners are not immediately evident.
The Commission made similar findings with regard to various government ministries which own large tracts of land, despite the fact that most of them claimed not to have lost land through illegal allocations. Again, loss of land might be triggered by a letter from an official of a ministry addressed to the Commissioner of Lands indicating that the ministry no longer required a certain tract of land, and the latter would in turn allot it to an applicant purchaser in excess of his authority. Prime offenders included the Ministry of Livestock and Fisheries Development which claimed only to have lost small fisheries land, while information provided by the public indicated that it has lost large tracts of its livestock holding grounds. Similarly, the National Youth Service is said to have lost thousands of acres of land in allocations to prominent politicians. Then, of course, there is the Kenyatta International Conference Centre (KICC). This was funded by the Ministry of Roads and Public Works between 1967 and 1974 for 79.7 million Kenya Shillings and subsequently managed by the Ministry of Tourism. In 1985, this was sold to KANU via a 99 year lease for just 1,680 shillings and a pepper corn rent, with the title being made out in favour of President Moi and Peter Oloo Aringo. Subsequently KANU took over the Centre, and assumed the role of landlord by collecting rent from tenants until February, 2003, when the new NARC administration took over the KICC on behalf of government. KICC now constitutes the subject of a court case concerning ownership between KANU and the government (pp.112-3).
Meanwhile, at a less exalted although far more pervasive level, the Commission found that many thousands of government houses and properties were illegally allocated to individuals and companies.
II. Settlement Schemes & Trust Lands: Trust land, including settlement scheme land purchased by government with international loans from European settlers for settlement by African smallholders or carved out of Trust land, has been similarly abused. The Commission found that, overall, whilst the establishment of settlement schemes and their subsequent allocation in the early years of independence generally conformed to the original objectives, in latter years there was extensive deviation, with much land having been allocated for purposes other than settlement and agricultural production.
Allocation of plots, formally conducted under Settlement Fund Trustees, devolves in practice upon District Plot Allocation Committees composed of the District Commissioner, District Settlement Officer, District Agricultural Officer, the area MP, the Chairman of the relevant County Council and the Clerk to Council. Settlement Fund Trustees appear to lack any supervisory powers over these committees, with the result that the local committees have been almost wholly unaccountable. The result has been predictable, with the interests of the landless having been ignored in favour of those of ‘District officials, their relatives, members of parliament, councillors and prominent politicians from the area, Ministry of Lands and Settlement officials, other civil servants and … so called ‘politically correct’ individuals’ (p.127). And whilst the majority of deserving allottees received smaller plots, the undeserving often received large ones. Meanwhile farms belonging to the Agricultural Development Corporation, designed to provide an the needs of the agricultural industry by developing high quality seeds or livestock or undertaking research etc, have been illegally established as settlement schemes and subsequently illegally allocated to individuals and companies, often as political reward or patronage (Commission: pp. 134-5).
In addition to the above, extensive tracts of Trust Land have been illegally allocated, with county councillors having been the main beneficiaries. Whilst the Commission was able to provide some glaring examples of such abuse, it was hampered in its work by the failure or refusal of councils to submit relevant information (p.140). It concludes:
Instead of playing their role as custodians of public resources including land, county and municipal councils have posed the greatest danger to these resources … the most pronounced land grabbers in these areas were the councillors them-selves…The corruption within central government has been replicated at the local level through the activities and omissions of county and municipal councillors (Commission: p.147).
III. Forestlands, National Parks, Game Reserves, Wetlands, Riparian Reserves & Protected Areas: After examination of the official reports and the ‘scanty records’ of responsible government departments and agencies (p.148), the Commission found that only 1.7% of the 3% of the country which was covered by gazetted forests at independence remains, most of the reduction having come about as a result of illegal and irregular excisions, usually made without any reference to scientific considerations or under the guise of settlement schemes. The beneficiaries of such excisions include (often private) schools, government institutions, and religious bodies as well as private individuals and companies. Similarly, many illegal allocations of land around riparian sites have been illegally allocated by the Kenya Wildlife Service, with many such allocations – such as those made since 1995 to some 14 beneficiaries around Lake Naivasha – being known to have severely affected the ecosystem. Fortunately, the Commission finds that the National Parks and Reserves have been more effectively protected, yet nonetheless it provides some ten cases of illegal allocations within KWS protected areas, and 15 cases in KWS alienated plots beside them. Furthermore, the Commission also records 26 instances of illegal allocations of land from Nature Reserves falling under the domain of local authorities, whilst there are some 8 known cases of land set aside for national museums and monuments having been illegally allocated to private individuals. The latter include the allocation of Kongo Mosque site at Kwale to former President Moi in 1986 (p. 169). It comes as no surprise that land belonging to the military, and even land portions belonging to State Houses and lodges, have also been sold off.
Against this catalogue of corruption, it is not surprising that the Commission concludes that their has been systematic and widespread abuse of public trust by public officials, to the extent that many officials now fail to see anything morally wrong with their allocating land illegally. There were many centres of power which were responsible for the illegal allocation of land, yet the Commission makes it clear that the lead in public plunder has consistently been given from the top. Kenya, it concludes, has fallen into a state of ‘moral decadence’, this epitomised no more clearly than by the extensive participation in land grabbing by churches, mosques, temples and other faith institutions, these including such venerable institutions as the Catholic Archdiocese of Nairobi, the Church Commission of Kenya, and the Anglican Church (pp.182-3). The Commission’s Recommendations
Whilst making a series of sensible recommendations concerning, inter alia, the need for an inventory of public land and the computerisation of land records, as well as for a comprehensive land policy, the Commission also urges the establishment of a Land Titles Tribunal charged with reviewing each and every case of suspected illegal or irregular allocation of land, and hence embarking upon the process of revocation and rectification of such titles.
Reference to the weighty Annexes indicate that revocation would be a formidable task. Its specific recommendations, by way of example, include the following: revocation of 105 plots allocated from land reserved for the Nairobi bypass (Annex 3); of 551 allocations made by the Nairobi City Council (Annex 5); 86 allocations by Meru, 449 by Nakuru, 270 by Eldoret, 100 by Nyeri, 186 by Kisumu, 407 by Mombasa, 56 by Nyahururu, 67 by Kiambu, 30 by Kisii, 17 by Kapsabet, 187 by Kerugoya/Kutus and 118 by Kitale Councils, with further dubious allocations by all these councils also to be investigated (Annexes 7-23). Numerous improperly documented allocations of land by Kenya Railways should also be examined, whilst 229 allocations made by the Kenya Agricultural Research Institute, 31 by Kenya Pipelines, 572 made by Kenya Industrial Estates, and 178 by the prison authorities should be revoked, as well as smaller numbers of plots illegally allocated by other state corporations. There should also be revocation of titles of some 7 illegal allocations made by the judiciary (!), 57 by the Ministry of Cooperative Development and Marketing, 47 by the Ministry of Agriculture, 289 by the Ministry of Education, 73 by the Ministry of Labour and 22 by the Ministry of Energy (Annexes 41-49). The Commission also provides lists of thousads of houses which have been illegally allocated throughout the country, implying that title to these, too, should be revoked, as should those to hundreds of allocations of land made to individuals and companies from forests, game parks and reserves etc which are listed in Volume II of the Annexes. Commentary
Some time ago, following Ajulu (1997) and Himbara (1994), I characterised Kenya as a kleptocracy characterised by a drive for primitive accumulation by those who controlled the post-colonial state, alongside the failure of an African business class to promote industrialisation and development. However, my primary emphasis was upon financial and commercial corruption, and whilst I recognised land-grabbing (especially by local councillors) as a phenomenon, I failed to appreciate how enormously extensive the illegal appropriation of public land was to the formation and consolidation of Kenya’s political elite. In this regard, although less blinkered observers such as Jacqueline Klopp (2000) have written upon the issue, enormous credit is due to the Ndungu Commission for the compilation of a truly formidable body of documentation concerning land-grabbing. Yet what is lacking from its analysis, even if – strictly speaking – it may have gone beyond its terms of reference, is some assessment of what land grabbing may have had upon the economy, and whether, in particular, land which was illegally appropriated has been put to productive use. In this regard, no overall summary or analysis has been provided, even though, with regard to the majority of allocations, the Commission offers two columns which list, first, the officially intended use of the land, and in the second, its current use. Even so, even an unsystematic thumbing through the pages of the annexures suggests that the overwhelming majority of allocations have been utilised for residential, commercial, industrial or building purposes, even if the majority of the sites grabbed from the Kenya Agricultural Research Institute, whose present use is listed as ‘private’, may well have been transformed into private farms.
In this regard, the report has little to tell us about ‘the land issue’ in the sense of our acquiring greater knowledge about the overall distribution of land between government, ethnic groups, classes, and corporations, let alone the extent to which it has contributed to the eating away of Kenya’s already diminishing supply of arable farming land. Furthermore, only more detailed analysis will be able to tell us how much land-grabbing has contributed to the unregulated and under-serviced peri-urban sprawl which is today such a visible feature of Kenya’s unfortunate development path.
I have two further concerns. One is that, perhaps through lack of time (the report was compiled in just eighteen months), the Commission has left the slog of identifying the vast bulk of individual political beneficiaries to other analysts. Yes, it makes mention at times of particular allocations to key figures such as Moi and the Kenyattas, and it provides the names of individual and corporate beneficiaries in its detailed charts of allocations, whether by councils, corporations or other bodies. Of course, this offers a host of raw material for researchers to pursue, enabling them to identify, through detailed cross-referencing to known occupancies of political office, how particular MPs, councillors and civil servants have benefited. Yet an uneasy suspicion remains that the Commission may well have pulled its punches in this regard, and that it could have caused considerably greater embarrassment to present political incumbents than it has done.
The second worry, of course, is that little will come of the Commission’s hard work. Even though the Commission has made recommendations that many hundreds of land allocations should be revoked and investigated, there are not so many that a Land Commission with the right political backing could not sit in judgement over process and appeals. However, given that NARC has absorbed so many members of the former KANU regime, it seems unlikely in the extreme that Kenya’s avaricious politicians, however much formally committed to democracy, will be prepared to unscramble the egg. More probably – save perhaps for a few show case revocations – they will want to draw a line under the past, and simply ordain that no further transgressions should be permitted, although even that aspiration seems unlikely to be realised given the continuing nature of Kenyan politics as ethnically manipulated and patronage based, especially if the Commission is correct in identifying illegal land allocations as regularly increasing around the time of competitive elections.
Professor Wangari Maathai was recently awarded the Nobel Peace Prize for her contribution to sustainable development and democracy, notably out of respect for her work in mobilising local communities to defend Kenya’s rapidly diminishing forests and to planting trees. The Ndungu Commission’s demonstration of the extent to which illegal land allocation is entangled with political office indicates that, without a doubt, the prime responsibility for defending remaining public land will continue to fall, willy nilly, upon the shoulders of civil society.
Roger Southall, Democracy and Governance, Human Sciences Research Council, South Africa.
THE ARISTOCRAT
Peter Wellingham
11/18/2005
A carnival mood has gripped residents of East Africa’s largest economy as they head towards historic polls on Monday that will decide whether Kenya will receive a new constitution or not. The Kenyan constitution has not been fundamentally changed since the Lancaster independence constitution of 1963.
A recent poll put the team campaigning against the constitution 10 points ahead of the pro-constitution group of which President Mwai Kibaki is a part. In the capital city of Nairobi a carnival mood seems to have gripped residents with most citizens seeming to support scrapping of the proposed constitution because it increases the power of the presidency.
Solomon Kimani, a vegetable hawker at City Market in dusty downtown Nairobi quipped, “Kibaki has done nothing for us except create problems and isolate the Kikuyu community from the rest of Kenyans.” As he spoke, he brandished several oranges – the symbol of the anti-constitution group – in his hands with a beaming, toothy smile on pasted across his face. The Kikuyu community from which Kibaki hails, are Kenya’s largest and most prosperous, but that prosperity has been linked to colonial favour, corruption and brigandry from members of the Kikuyu political elite. Jomo Kenyatta, Kenya’s frist president and a bloodthirsty land grabber who amassed one of Africa’s single largest personal fortunes was the most notable of the bunch.
Kibaki is a fabulously wealthy man with many financial companies, manufacturing firms, and expansive farms in Nakuru and Nyeri, largely known to have been grabbed during his tenure as minister in both the Moi and Kibaki regimes. As Finance minister he was accused of being a diffident man who would never attend a fund raiser outside of his Othaya parliamentary constituency.
Beatrice Musau, a city council worker said, “This constitution is not what we asked for, Kibaki promised us so many things but now he has changed and become a dictator.” She lives in Mathare, a stench-infested slum of over 300,000 only a few miles away from president Kibaki’s Beverly Hills-like ambassadorial digs in the affluent, leafy Muthaiga suburb where former corrupt strongman Charles Njonjo also resides.
The general consensus amongst majority of Kenyans is that a small Kikuyu clique in the Kibaki government hijacked a people-driven process, recrafted the constitution behind closed doors using their minions and are now trying to impose it on the Kenyan people. Entire swathes of provinces like the expansive Rift Valley, the populous enclaves of Nyanza and Western, Eastern, Coast, North Eastern and Nairobi are said to be fanatical in opposition to the consititution.
In a campaign that has been both chaotic and belligerent, Kibaki’s government is already issuing sack threats to cabinet ministers that oppose the constitution, signalling a return to autocracy and intolerance to dissent that similarly characterized the regime of former president Moi.
A government minister in the pro-constitution group who would only speak under conditions of anonymity admitted that the real fear amongst the political elite is that cabinet minister Raila Odinga will ascend to power should Kibaki step down after his term ends in 2007. “If Raila Odinga ascends to the presidency a lot of the wealthy power barons who have acquired their massive wealth in not so flattering ways fear they may be corralled before corruption courts. He is known not to tolerate any form of corruption whatsoever and this scares the Kikuyu elite.” This line of thinking is also apparently the fuel behind the recent calls to have Mr. Odinga pushed out of government so the real looting can proceed unfettered.
In various live debates aired on television and radio, the pro-constitution group has been seen as economical with the truth, blustering, evasive and obscurantist, leading many to believe sinister motives of creating a Kikuyu permanent hegemony behind their rabid support for it.
The government has also been seen to be engaging in sophisticated corruption with even the president camping at various state houses and lodges around the nation dishing out everything from districts to wildlife, jobs, relief food, roads and universites to woo various communities to support the draft.
Kibaki has threatened to jail any person that protests against the constitution should his faction carry the day. “Nobody should assume they are too big to be arrested,” he recently blustered, angry, quivering and suspiciously sounding like former president Moi in his heydays. All pretences have been lost as he is now a pale shadow of the charming, genteel president Kenyans came to adore when he was overwhelmingly voted in by majority of the residents of this East African nation in 2002.
Massive Corruption Rocks Kisumu Lands Office
By Jeff Otieno 18 June 2010
Kisumu lands office is engulfed in corruption with notorious fraudsters operating as land agents becoming millionaires overnight, thanks to the prevailing conspiracy and bad blood among the top hierarchy.
It’s the only office in the land where hardly a receipt is given when you pay for stamp duty during land transaction.
For instance a land which attracts a duty of 4% on a value of Kshs 400,000 will generate 16,000 Kshs is allegedly shared without the government getting a penny.
Three weeks ago the said notorious lands office was completely paralyzed for several days when one of the officials flew to Nairobi on official duty and locked the seal in his drawer in a desperate bid to ensure that no Title Deed is issued in his absence.
The enraged officer had confided to one of his juniors that his immediate deputy had formed a habit of entertaining a cartel of agents who hardly pay stamp duty to the exchequer and therefore that was the only option.
Agents said to be enjoying good rapport from the said notorious lady who hardly sits in the office but prefers exclusive joints negotiating for kickbacks, reacted with fury and have threatened one of the officials known for his stringent management with transfer.
Transfer of lands requires that consent be sought from Land Control Board and a fee of Kshs 1000 is paid. The Board normally sits once a month or at least elapse of six weeks and those with urgent cases pay a special Land Board Fee of Kshs 5000 which is never receipted and goes directly to the pockets of the entrenched cartel which has been operating with glee.
On average there are about fifteen to twenty applicants and the money should be paid to the secretary to the Lands Board.
Kisumu Lands Office has become notorious for effecting dubious Land dealings. Recently a well known wealthy Asian was conned over 18 M for a land next to the airport only to realize it was a police post which was destroyed during Post Election Violence.