Panacea or predicament?: Kenya’s constitution and land rights

Kenya’s new constitution ushers in a new era in land management, but human rights activists say there is still a lot of work left to do. The constitution’s newly guaranteed land rights are still poorly understood, they say, by both the public and some politicians. Civic education is needed to help the public understand the new provisions, and pressure must be placed on the parliament to ensure land rights expertise is present in the make-up of the constitutional implementation committee.

CIVIC EDUCATION

‘There [were] a lot of outright lies about the chapters,’ says Odenda Lumumba, coordinator of the Kenya Land Alliance (KLA), referring to the debates and discussions about the constitution in the run-up to the 4 August 2010 referendum.

This is why awareness of the new constitution’s contents is still grey, he says, on the phone from KLA headquarters in Nakuru, north of Nairobi. Over the next months, what is needed is more civic education to help Kenyans understand the chapters pertaining to land rights and ownership.

For example, in the run-up to the referendum, some sections of the public wrongly thought the constitution prescribed a minimum amount of acres required to own land, Lumumba explains. This meant owners of small parcels of land thought (and still think) that their land would be expropriated if the constitution was adopted.

In fact, the new constitution stipulates that parliament must determine the minimum and maximum acreages that can legally be held privately. As it stands, no minimums have been set. In fact, most of the nuts and bolts of land laws have yet to be drafted by parliament. The constitution gives between 18 months and five years to draft policy on matters such as minimum and maximum acreages, how to protect spouses of deceased landholders and centralising zoning and re-zoning processes.

Civic education doesn’t just target everyday people, Lumumba adds. Some MPs are very poorly versed in the new document as well.

‘There is a need for a lot of education,’ says Akinyi Nzioki, director of the Centre for Land, Economy and Rights of Women (CLEAR) in Nairobi. CLEAR is already hosting civic education forums (most recently in the Rift Valley, the site of much opposition to the new constitution) around Kenya to educate women about their new rights to land.

‘The whole constitution talks about gender equality,’ she says. But even though it states that traditions and cultural practices surrounding land will be eliminated, Nzioki says, it does not mean they will be eliminated in practice.

‘You can have property laws but that does not mean the culture will change immediately. So the challenge is to begin to change those attitudes which are very entrenched.’

For instance, under the old constitution (informed by British law), widows could not inherit land from their husbands. Women who owned land would have to buy it, while men and boys had a ‘head-start’ because they could inherit land from their fathers.

The irony is that the majority of Kenya’s women live in rural areas and use land as their only means of livelihood, she explains.

Now, widows will be more protected when it comes to inheriting land, Nzioki says, but women must learn about these new rights so that they can exercise them. Much of CLEAR’s civic education focuses on putting the constitution into plain language, as well as sensitising Kenyans to progressive thinking when it comes to women and the right to own land.

MISSING EXPERTS

Much of the Kenyan public’s and the media’s attention after the constitutional referendum has focused on the make-up of the committee that will oversee the implementation of the constitution. The 27-member committee will be formed by members of parliament, split 14–13 between Raila Odinga’s Orange Democratic Movement (ODM) and Mwai Kibaki’s Party of National Unity (PNU). A third of these must be women.

In early October, parliament finally approved the list of MPs to make up the CIOC (Constitution Implementation Oversight Committee) after delays and protests from backbench MPs. ‘It very clearly points out that we have not changed our mindset,’ Lumumba says, referring to the haggling that surrounded the proposed list.

This has taken attention away from the make-up of the commission for the implementation of the constitution (which is not the same thing as the CIOC). The bill that calls for the creation of the commission mentions several areas of expertise that must be present on the committee (for example, public sector management, gender relations or human rights), but land is not mentioned, Lumumba says. The implementing committee must ‘realize land issues,’ he says. Otherwise, the members cannot appreciate how important it is to make the National Land Commission a priority. ‘These are things which worry us,’ he says.

Aside from the power distribution in government, land rights were the next ‘big issue’ that the new constitution is meant to address. The lack of land rights representation is a problem, Lumumba says, because it was the land sector that caused the most confusion in debates around the new constitution.

The CIOC and the commission ‘might not be in a hurry’, Lumumba says, to constitute the National Land Commission, even though people’s expectations are very high when it comes to land. ‘Dilly-dallying in matters of land could set us in a predicament,’ he says.

SOMETHING STILL UNSOLVED

Beyond helping Kenyans understand their right to access land, historical injustices remain. ‘The constitution is good but … there are potential areas of conflict,’ Nzioki says. When it comes to land, something is still not solved. For example, at the turn of the century in the Rift Valley, the Maasai were evicted from their lands to make room for white settlers. The issue was not revisited by President Jomo Kenyatta at independence, and this has become a sore spot for people in the Rift Valley.

The new constitution presents an opportunity to deal with these left-over land issues. The government should create special programmes to promote integration, Nzioki says. ‘The constitution says Kenyans can settle anywhere but … I think these issues [of ethnicity] have to be addressed… People internally are still annoyed.’

CONCLUSION

Despite these shortcomings, Lumumba says, ‘The constitution is far better than any other dispensation on land.’ The KLA is urging parliament to establish the National Land Commission as soon as possible, so that land matters can be resolved before 2012. But the answer to righting land wrongs in Kenya doesn’t just lie with enacting the constitution. ‘[It] is just an element of the reform the country is hungering for,’ Lumumba says.

LAND RIGHTS IN THE NEW CONSTITUTION

Kenya signed the new constitution into law on 27 August 2010 with close to 70 per cent of support from voters. The previous constitution dated back to 1963 and was widely seen as concentrating too much power in the hands of the presidency.

The violence that followed the 2007 election is considered the catalyst that set the new constitutional process in motion. Along with the distribution of power, the new constitution is meant to address land distribution issues.

Section five of the constitution deals specifically with land, resources and the environment. Among the provisions are:

- equitable access to land for all Kenyans
- security of land rights
- sustainable management of land, as well as conservation and protection
- elimination of gender discrimination in law, as well as customs related to land and property (this also includes protecting dependants of deceased landholders, including spouses)
- to encourage land disputes to be settled through community initiatives
- the creation of a National Land Commission.

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* Beatrice Fantoni recently graduated with a master’s degree in journalism from Carleton University. She has reported for the Montreal Gazette and the Globe and Mail.
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