The European Union says it is concerned about the slow pace with which the Government is tackling corruption allegations against its officials. It said it was also troubled by the growing insecurity and the wrangles surrounding the constitution review process. Acting head of delegation Derek Fee singled out recent revelations of corruption in the National Aids Control Council (Nacc), saying: "It makes me wonder if there is any depth to which corrupt individuals will not descend."

The international development agency ActionAid's Get On Board campaign on Tuesday in Nairobi, Kenya, launched an international drive to overhaul the fight against HIV/AIDS and ensure that funding for the disease helps HIV-positive people, AFP/Yahoo! News reports. The new HIV/AIDS campaign is part of an effort to collect data about the African epidemic and deliver it to the Group of Eight meeting in Scotland in July, according to AFP/Yahoo! News.

Wildlife tourism in Kenya generates more than one third of foreign exchange revenue. The livelihoods of many rural Kenyans are connected to wildlife-related policies and businesses. How can the competing demands on Kenya's wildlife be met, while protecting both livelihoods and habitats?

Reporters sans frontières has expressed shock over the abuse of authority displayed by the wives of President Mwai Kibaki of Kenya and President Olusegun Obasanjo of Nigeria in assailing and imprisoning journalists in separate incidents on 2 May 2005, in response to critical press reports. "We are stunned that the presidents' wives went so far just to seek personal revenge. We therefore call on [Kenyan First Lady] Lucy Kibaki to apologise to the cameraman she hit, and we call on [Nigerian First Lady] Stella Obasanjo to have the 'Midwest Herald''s publisher released from prison immediately, as such meddling harms the image of their respective countries," RSF said.

Thousands of Somali refugees have been left homeless after heavy rains destroyed shelters in Dadaab camp, north-eastern Kenya. Food and relief items have been distributed amid fears of water-borne diseases and fuel shortage. The torrential rains that hit last Thursday caused the majority of shelters in Ifo camp – one of three camps in the sprawling Dadaab complex – to collapse or wash away.

In writing the above article, Mukoma Ngugi comes across as very partisan and exercising selective amnesia. He does not live out the very impartiality he expects from the people writing the Kenyan constitution to exercise. In spite of the misrule and deterioration of the economy, security and quality of life in the last 10 years of former President Moi's rule (and not the entire 24 years of his political life), there are various facts that Kenyans cannot ignore.

1. That President Moi historically will be remembered as the 2nd President of Kenya.

2. That the current FRUITS of peace in the Sudan and Somalia, not to mention the Great Lakes regions, were largely a result of Moi's efforts. The current government or any genuine historian cannot ignore this.

3. That during the course of multi-party elections, Mr Moi never lost a single election. The defeat of KANU in 2002 cannot be counted as a defeat of Moi, but a defeat of Uhuru Kenyatta and KANU. Moi ran his full term, out-foxed the entire opposition and continues to enjoy a lot of popularity in Kenya (yes, people want him to address them etc, but he has asked people to build the nation under Mr Kibaki). Mr Kibaki's acceptance speech at Uhuru park during his inauguration as Kenya's third President cannot have been said to be graceful or state manly both to the office of the presidency and to the man he served under as VP. Moi remains a true statesman. You have to differentiate Moi the man, from Moi the politician.

4. That the same people who clamoured for "no constitution no election" prior to the 2002 are the same people who are forestalling the review process. Most of these people were in KANU and some are still life members of KANU (yes, President Kibaki still has his life membership with KANU!)

5. The Kenyan press online has continued to highlight that the present NARC government has performed worse than the KANU government in just two years of its existence, in ALL of the areas surveyed, EXCEPT for free education. But free education, if you will recall, is nothing new. At independence, Kenyatta promised and implemented free education and so did Moi in 1978/9, but slowly and surely, cost-sharing is creeping in, and worse still under NARC the standards of public primary school education have plummeted! If you live in Kenya (and not in some safe sterile environment where you only hear pre-processed news, or still live on old bitter perceptions) then you will know that the morale of Kenyans is at an all time low, with respect to the NARC government's running of affairs. It is not just the in-fighting, it is the insecurity in the country, the deteriorating sense of worth, the blatant abuse of office not to mention the total distrust of the current government. Who would have thought they would even woo Biwott ? (not to say he is bad, there surely has been no proof in court, but if perception is anything to go by, what is the difference between old KANU and NARC?)

6. You imply that the KANU government got away with misrule yet enjoyed support in foreign aid. Again this is selective use of information. The KANU government earned itself 10 years of no foreign AID at least from the IMF and World Bank, and SOME Kenyans praised the Bretton Woods Institutions for that, while the bulk of the people bore the burden!! We survived ten years! We need to re-think the "foreign aid" and "foreign investor" nonsense. Read the recent comments by Dr Mukhisa Kitui (Kenya's Trade Minister, and champion against WTO "imperialism").

7. The judiciary is still largely corrupt and sympathetic to the powers of the day. There are no systems and of course no one wants such things. There is no genuine desire to bring surgical and radical change!! The thinking of Kenyans and politicians is still the same as it was in 1972.

8. I put it that there was no "debate" on health: the president simply did not SIGN the bill that was PASSED BY PARLIAMENT. There was pressure to re-discuss the bill in parliament, and of course you know that the members of the house were treated to a "holiday" in Mombasa before they could warm up to this. While President Kibaki rightly exercised his powers in not signing the health bill, you should recollect the facts more accurately. It is your responsibility to paint the country in balanced light, and not be bogged down by your own idiosyncrasies.

Finally, the problems Kanya is facing are POLITICAL. Initially people were driven by a preoccupation to "REMOVING MOI". The constitutional changes suggested before the 2002 elections were all geared towards "containing" Moi, reducing his powers etc etc, even when it was clear to all, that he was NOT going to run for elections. The problems of Kenyan politics is the selective amnesia on the ills of the Kenyatta government. The rot in Kenya begun at Independence. We must re-examine our journey from back there.

In January 2003, Kenyans were a united nation, under NARC, having removed KANU from government. Change was needed then and the politicians provided a united front that had been elusive all along. Kenyans did not elect a Kikuyu, or Luo, or Luhya or....(fill in whatever tribe). They wanted change and progress. A very optimistic people bequeathed the NARC government a lot of good will and grace. They were patient when the NARC government begun reneging on its election promises, saying that they needed time to understand the "rot" that had accumulated. Rightfully, there was a lot of rot after 24 years of one party. Well and good. But soon, people begun to realize that the country was going back to the situation that it was in the late sixties and early seventies. The issue of tribes begun to surface again!! Right now there is a lot of bitterness and distrust towards the "Mt Kenya community". The PEOPLE of Kenya have themselves to blame. They complain a lot and don’t do anything about the situation. Kenyans, and NOT politicians will save their own country.

Thank you.

MUKOMA NGUGI responds:

It seems to me that Jinha's response is largely caught up in a nowhere place. Used to the certainty of the Moi dictatorship, Jinha is unable to deal with the uncertainty of the movement towards democracy. So in a lot of ways, Jinha wants to vindicate Moi since even though his rule has been thoroughly discredited, it was certain and predictable. We know that a lot of people during Kenyatta's dictatorship would sigh for the days of colonialism. But did they mean it? Or should such statements have been read as an indictment of the Kenyatta government?

But it is this uncertainty, an uncertainty at once positive and yet negative to the extent that NARC is still caught up in the legacies of the Moi’s misrule that I was seeking to address in my article. In short, if our project is liberation, then we simply must find the space to make nuanced arguments in uncertain times and time of change – otherwise, we end up with a dictatorship of views and broad generalizations that deny the truth of both the past and the present and are hence of no use when it comes to constructing a future.

I really do not want to take up much time attending to Jinha’s defense of Moi. But nevertheless, Pambazuka Editor, let me address the concerns raised point by point. I do this with the hope that I will not disappoint or even insult those who have spent their entire lives opposed to both the Kenyatta and Moi governments; who understand the full magnitude of what it is to live under a dictatorship and why we must seize the moment and once and for all put Kenya on a road towards irreversible change (to use terms from the anti-apartheid struggle).

For Ngugi's full response, please click on the link below.

Outgoing British high commissioner Edward Clay says he has no regrets of his spats with the Government over corruption. He spoke as Swedish ambassador Bo Goransson, speaking separately, asked leaders to make their wealth public with or without a law requiring them to do so. Although he has been criticised for taking on the Government in the last months of his tour of duty, Sir Edward insisted that his move to expose corruption had rallied the country against the vice and led to good governance.

A recent Reuters article examines the many abortions performed each year in Kenya, where the procedure is illegal except when necessary to protect the health or life of a pregnant woman. Under Kenyan law, a woman found guilty of having an abortion in the country faces seven years in prison and anyone performing an abortion procedure on a woman could be sentenced to up to 14 years in prison. Approximately 2,000 women in Kenya die each year because of complications from illegal abortions, and 20 to 30 times that number experience permanent damage to their uterus, cervix, fallopian tubes, intestines or bladder because of illegal abortions.

The people of Kenya should demand a constitution that recognizes inequality and poverty, that is committed to the liberation of women, that sees health and education as human rights, and that addresses land redistribution. Politicians, writes Mukoma Ngugi, should hold the interest of their people above crass political ambition in negotiating Kenya’s future.

When the architects of our republic wrote the magnificent words of the Constitution and the Declaration of Independence, they were signing a promissory note to which every American was to fall heir – "I Have A Dream" - Martin Luther King Jr.

Background

A constitution serves the simultaneous roles of laying the framework that will govern a society and laying in law the promise - the dream - that the society has for itself. It protects gained freedoms and guides and nurtures expansions of freedom. For a government to oversee the creation of a constitution that is both a foundation and a dream, and that is also in the interest of justice served not only for the now but for the future, it must be willing to commit political suicide. It must be willing to write itself out of office when its usefulness has ended. It, within its very own conscience, has to understand the people as the makers of their own destiny and consequently the true makers of history.

The NARC (1) coalition government does not see its role as the bridge to a new Kenya. It sees itself as the new Kenya. Instead of fighting for a constitution that binds future governments to the welfare of Kenyans, it is fighting within itself to safeguard the political fortunes of its constituent members. And KANU, the party that can single handedly claim to have ruined Kenya, is waiting, watching the fissures grow. It may soon find an opportunity to pounce.

If the NARC coalition government could find within itself the ability to rise to the challenge of developing a constitution that sweeps away the legacies of Moi's tyranny and that at the same time holds future governments accountable to the dreams of the people, it would have done enough. And if it can do more in creating the conditions in which the dreams can be achieved, all the better.

But as things stand - and this should be stated boldly and without mincing words - the NARC coalition is on the brink of failing Kenya. It will not be because it shall have done any worse than Moi (the last two years have done more for Kenya than Moi's 24), but because in place of putting Kenya first, it put its own political survival. NARC has become the space in which political egos are vying for power and somewhere, between getting rid of KANU and the elections of 2007, the idea of Kenya has been lost.

Alliance or Individual political Interests?

Perhaps this is the nature of coalition governments. In Kenya, a fractured opposition was unable to get rid of the Moi dictatorship first in 1992 and then in 1997. But it learned that there was not only safety but strength in numbers, and coalesced into NARC. Under the umbrella of NARC one found revolutionaries, liberals, disgruntled Moi-lets, power sycophants, etc, all with the single goal of ridding Kenya and themselves of the Moi government. In December of 2002 they succeeded. Instead of seeing this as the beginning, at the dinner table, they began their war over who was to get the choicest pieces of the nation - the presidency, the post of prime-minister, cabinet posts, parliamentary seats, etc. What of the Nation's future? It remained all but forgotten.

But let us be fair in our criticism – freedom of speech is a foundational right, a platform from which other rights can be demanded - and it exists in Kenya now. Free primary education, even though fraught with fits and starts, is an achievement. AIDS is in the national agenda. There is a debate over universal health: Those in favor of a gradual introduction won, but the debate (2) was there nevertheless. There is a debate over the rights of women. NARC government cleaned out the corrupt judiciary - a move that showed that the political will to do right by Kenya was there. Corruption, even though new and old scandals keep erupting, is at the very least being debated.

In good neighborliness, Kenya has been instrumental in facilitating peace in Somalia and Sudan. Internationally, the NARC government has refused to join Bush's pre-emptive wars. For distancing itself from the Bush government, NARC is facing threats of what amounts to undeclared sanctions. The withdrawal of 200 million shillings intended to aid in the anti-corruption drive, or the tourism advisories or terror alerts that warn Americans against traveling to Kenya, point to reluctance by the American government to support a Kenya that is not in toe with its agenda. Certainly the KANU leadership, with much less commitment to fighting corruption than NARC, got away with a lot more. And here, there are two things that need to be pointed out, the hypocrisy of the West that has never had qualms in supporting dictatorships throughout Africa and Latin America, but more importantly, the dependency of African countries to the West – a dependency so great that cleaning out corrupt officials from the government cannot be done without calling to the West.

These, nevertheless, are not small achievements. But for each of them, one can point to much more work that remains to be done. NARC did not inherit a floundering democracy with a flourishing middle class where liberal policies can hold the seams together – all avenues of hope and recourse had been gutted by the Moi government. NARC inherited a country wedded to neocolonialism and beholden to the IMF and World Bank, that flouted good neighborliness, where a human life could be lost at the whim of the government, and corruption and exploitation were the norm. Poverty is itself disenfranchising, and one needs only to travel from Dandora slums to Muthaiga Estate or walk from Mountain View Estate to the neighbouring slum of Kangemi to understand that the disparity between the rich and the poor will not be cured by free primary education.

Now, one of the ways that a government recognizes the enormity of the task ahead is by entrusting the burden of fulfillment to the people. It does this by facilitating the creation of a constitution which safeguards them against governmental excesses and at the same time holds the government accountable for the welfare of the people. Thus the government becomes accountable not only for the injury it might cause the people, but also for the injury its inaction causes.

Memorandum of Understanding

Yet it seems to me that the search for a new constitution was undermined by NARC even before it came into power. The Memorandum of Understanding (MoU), which was signed behind closed doors and gave Kibaki the presidency and Raila (Odinga) the yet-to-be-created post of Prime Minister, should be considered as not legally binding to the Kenyan people. The MoU was a negotiated (3) settlement between several opposition parties before they were in power, and is not therefore representative of Kenyans. It was, as it were, an example of the carelessness with which the power elite holds Kenyans - that matters that affect the future of a whole nation can be negotiated behind closed doors. And no matter whether one finds merit with Raila or Kibaki, the future of Kenya should not be beholden to promises between two politicians. If Kenya has to have a Prime Minister, first let it be discussed and then justified by the Kenyan people. And if the Prime Minister is to have more powers than the President, then let the Prime Minister be elected by the people and not by the President, as the Bomas draft constitution (4) declares. Why should we practice a democracy twice removed? Elect a President who in turn elects a Prime Minister who is more powerful than the President? Simply put, who ever wields the most power should face the electoral public.

Again we are seeing these back-door negotiations that will produce more MoUs. The one/two-person mini-coalitions within NARC that are emerging give credence to the maxim that politics makes strange bedfellows. Who would have thought Charity Ngilu (5) and Raila (6) would play in the same team in this power game? Thus we have Ngilu and Raila on one side, and on the other, Kibaki supporters, all with one goal in mind - getting the most powerful seat in the nation.

And what of the party registration drive? Again, there are hidden hands with hidden agendas. NARC wants to conduct a registration drive that recruits individual members as opposed to registration through party affiliation. Once people register as NARC and not as members of the constituent political parties, then NARC becomes a single political party under a single leadership. The coalition thus coalesces into NARC. This in turn heavily favors Kibaki since he is in control of the party machinery, thus paving the way for his second term as president (never mind an MoU that gave the understanding that he was going to pull a Mandela and not run again). Or if the search for Kibaki's posterity prevails, his chosen successor is favoured.

With the same move, the Kibaki government is trying to undermine Charity Ngilu and wrest the position of party chair from her. Under the current NARC constitution, the sitting chair in the next general election is automatically nominated. This means that unless Ngilu is edged away from the NARC party chair, Kibaki would have to pit himself against her if he is to run under a NARC ticket in 2007. This is a move that would be very much welcomed by KANU which, without Moi's stick, will encourage a NARC implosion. Ngilu and Raila are definitely for a recruitment drive on individual party tickets. By maintaining party independence, they are setting the stage for other party coalitions outside of NARC to be formed. The scenario whereby either NARC implodes and spawns other coalitions or coalesces into one party under one leadership has been set. Under these circumstances of continuous political machinations, it is imperative that we the people refuse to honor any secret MoU's that bind a whole nation to the political goals of a few politicians.

The Constitution in Balance

Under this whirlwind of MoUs, alliances, and counter alliances within NARC, it is not surprising that the struggle for a new constitution also reflects the goals of political survival. Hence Kibaki passed a bill that allows for the Bomas Draft to be amended by a simple majority. Certainly the first clause to be modified if not all together deleted will be the one calling for a powerful Prime-Minister position. Kibaki, or at least his supporters, have no desire to see him essentially write himself out of office by curtailing his powers following his re-election in 2007. But with Kibaki running or not, there are those who do not want to see the powers of the presidency reduced.

Raila on the other hand will fight such a modification for with it go his chances of becoming the most powerful person in Kenya as a Prime-Minister elected by the President-elect in 2007. He does not command enough support to win the presidency on his own ticket but he does have enough support to throw a wrench into the NARC machinery. Because he cannot win alone, he will try to short-circuit his way into power by becoming the Prime Minister. And in this quest for personal power at the expense of the nation, the creation and implementation of a new constitution is in the balance.

Since the quest for a new constitution has become caught up in the politics of the day, since instead of the Nation's longevity and welfare our politicians are protecting their own longevity, it is imperative that we, the Kenyan people, first oppose MoUs made outside our consent and remain vigilant against other MoUs being signed with an eye on 2007 elections.

It is imperative that we demand a constitution that is cognizant of the vast inequality and debilitating poverty, that is committed to the liberation of women, sees universal health and education as human rights not as a privilege, and that addresses land redistribution.

In the Bomas draft, there is a Bill of Rights that recognizes the marginalized, the principle of devolution and the democratization of power, equality regardless of gender and many more. It is these aspects of the Bomas Draft that reflect our refusal to go back to where we have been and that nurture an egalitarian democracy that we must demand be kept above the fray of personal political ambition.

* Mukoma Wa Ngugi is the author of 'Conversing with Africa: Politics of Change' and Coordinator of the Africa without Borders Conference to be held in Durban, 2006. This article first appeared at

* Please send comments to [email protected]

Notes
1. After having attempted to defeat the Moi party, KANU as separate parties in 1992 and 1997, in 2002, the Liberal Democratic Party and National Alliance Party of Kenya came together to form National Rainbow Coalition (NARC). As a united front, they were able to defeat the Moi government with NARC getting 63% of the vote and KANU's candidate, Uhuru Kenyatta getting 30%.
2. See the article, Kibaki: We Cannot Afford Ngilu Plan by David Mugonyi. Daily Nation, April 7th, 2005.
3. For a good summary of how the MoU was negotiated, see Joseph Ojwang's article, Wrangles in Kenyan Government at www.change-links.org/MoU12.htm
4. For a complete history of the Kenyan constitution review process, visit http://www.kenyaconstitution.org/enter.htm
5. Charity Ngilu is currently the Minister of Health and the NARC Party Chair. In 1997 she ran against Moi for the presidency and finished 5th overall. As leader of the National Party of Kenya, in 2002 she allied with Mwai Kibaki to defeat Moi's candidate.
6. Raila Odinga allied with Kibaki and Ngilu in the 2002 elections. Before that, he had allied with the Moi government but left when Moi chose Uhuru Kenyatta as the KANU candidate. He had also been imprisoned by the Moi government for eight years. Until recently, the relationship between Raila and Charity Ngilu had always been rocky at best.

The World Trade Organisation was imperialistic and meant to enrich developed nations, a minister said in Parliament. The trade body would do nothing to reduce poverty in the country, Trade and Industry minister Mukhisa Kituyi said, putting WTO in the same league as the International Monetary Fund (IMF). "The WTO is not a development vehicle to deal with poverty. It is a tool of imperialism, which has overtaken IMF," he said.

A coalition of Kenyan organisations submitted alternative reports on the human rights situation in Kenya, for the 83rd session of the Human Rights Committee (HRC) from March 14th to April 1st 2005 in New York. During this session, the HRC considered Kenya's second periodic report on the implementation of the rights contained in the International covenant on civil and political rights (ICCPR), more than 18 years late. Subsequently, the coalition has welcomed the recommendations adopted by the HRC and urges Kenya to "take appropriate measures to incorporate the ICCPR into domestic law" and "allow its rights to be invoked in domestic courts".

Some 1.7 million children are still out of school despite the free primary education programme, a workshop was told this week. Out of these are some 200,000, who dropped out after enrolling under the programme, which was introduced by the Narc Government.

As the Government dithers and over housing the urban poor, residents of an informal settlement in Nairobi are showing the way things ought to be done. Up to the year 2003, the residents of Kambi Moto slum village in Huruma, Starehe Division, Nairobi, lived like any other slum dwellers do — in crowded, poorly built shacks, made of any material they could find. Today, all that has changed. Thirty-four residents live in permanent, well-ventilated houses, provided with flush toilets, kitchen, living area and bedroom. And it is expected that in another year or so, 270 more units will have been completed to accommodate residents of Kambi Moto.

The successful applicant will be responsible for overseeing Crisis Group projects and leading research in the Great Lakes region. S/he will head a team of researchers and analysts, and will supervise the work of a small team of specialists responsible for producing high quality research, analysis and reporting.
Contact [email protected]

The Government rejected a move by a Parliamentary committee to have Dr Julius Rotich appointed as a director of the Kenya Anti Corruption Commission (KACC). Justice and Constitutional Affairs minister Kiraitu Murungi said a 2004 report by the Inspector General of Corporations implicated and indicted Rotich for serious financial irregularity.

Leaders of civil society and two MPs have criticised the forced resignation of Transparency International executive director Gladwell Otieno. Reacting to the resignation at the weekend, Kenya Human Rights Commission chairman Prof Makau Mutua described Ms Otieno's resignation as a shocking development saying it "opens a new chapter by the Narc government in its war against those civil society organisations that dare to be critical of it."

The managing editor of the Nairobi-based East African Standard's Sunday edition has been acquitted of criminal charges. The charges against David Makali, pending since 2003, stemmed from an investigative article about the alleged murder of Dr. Crispin Odhiambo Mbai, a key player in Kenya's constitutional reform process. Nairobi Chief Magistrate Aggrey Muchelule stated in his judgment that the case against Makali and John Chemweno, a police officer who was also charged, had not been established by the prosecution, according to an article in the East African Standard.

FEMNET is currently seeking applications for the following positions: Programme Manager; Advocacy Officer; and Translator. Please see job descriptions available through the link below. Applications are particularly invited from African women based on the continent. All three positions are regional positions and are remunerated accordingly. All three positions require (re-)location to FEMNET's Regional Secretariat in Nairobi, Kenya.

Zimbabwe is not the only country in Africa where the issue of land is of crucial importance. Across Africa, conflicts over land have been at the heart of centuries-old political struggles. In Kenya, resistance against colonial rule was crystallised through struggles over land, writes Odenda Lumumba. The Giriama, the Maasai, the Kikuyu, the Nandi and the Luhya and Pokot reacted violently to colonial land dispossessions and the struggle over land continues to this day.

The manner in which individuals or groups in Kenya hold, use, occupy, possess or have access to land since colonial rule to the present is a history of how land lies at the heart of many potential and violent conflicts. This assertion is based on the fact that the word conflict as used in this paper is very fluid: referring to debate, contest, disagreement, argument, dispute or quarrel; a struggle, battle or confrontation; a state of unrest, turmoil or chaos over land. Going by this definition I submit that land related conflicts in Kenya are a common, everyday occurrence. Indeed, land-related conflicts in Kenya stem from colonialism, which not only imposed alien land tenure relations in Kenya, but also introduced conceptual, legal and sociological confusion in the traditional tenure systems then prevailing in traditional Kenyan society before the advent of colonialism.

The colonial regime in Kenya proceeded from a land-related conflict assumption that customary land tenure systems were inimical to modern imperatives of agricultural development or indeed to the then colonial settler economy. Henceforth, colonialism embarked on three events i.e. expropriation of land through a process of alienating large tracts of land and dispossessing indigenous people of their land, imposition of English common property law and transformation of customary land law and tenure. These three processes are the beginning of the land-related conflicts that Kenya has experienced to date.

Precisely, the land-related conflicts became prominent when Kenyans of African origin were crammed into native reserves from 1926 and were exacerbated when the process of individualization of tenure in the reserves in the mid-1950s started with a deliberate aim to completely transform African communal tenure relations into individualized land holdings. When the colonial regime realized that individualization alone could not solve the land-related conflicts, it enacted the Registered Lands Act, whose purpose was to provide the legal framework for the extinction of claims to individualized land based on African customary land law. The land-related conflicts in Kenya continue to be pronounced because both the economic and legal frameworks upon which the relegation or intended extinction of customary land rights was based have failed the test of time. Land relations in many parts of the country are still actualized on the basis of customary law, even where such land is registered under Registered Land Act. Communal tenure systems are still very much part and parcel of the social and economic fabric between and within ethnic societies in Kenya.

Thus, the land-related conflicts are prevalent due to the fact that the instrumentality of English/Common law has failed to socially engineer an irreversible movement from communal tenure to individual tenure. Neither has the jurisprudence developed by the courts of law succeeded in extinguishing customary land rights. The bottom line, therefore, is that land-related conflicts in Kenya are a persistent issue that must be comprehensively addressed by the ongoing National Land Policy Formulation Process. For there are many problematic aspects to it that require clear discussion from a policy point of view. The land policy will, however need to address practical aspects of the nature and effects of land-related conflicts as opposed to purely theoretical or academic perspectives.

The land policy shall have to clarify the many legal questions that have gone begging in this regard. And in so doing the wide structural inequities between the 'land-haves' and the 'land-have-nots' as a major cause of land-related conflicts shall have to be addressed. This aspect is paramount as long as agriculture remains Kenya's economic mainstay. Especially remembering that, of the total land area of 587,900 square kilometres that comprise Kenya's landmass, 17.2 per cent is of high and medium potential while the remaining over 80 per cent is arid and semi-arid.

Land and conflict: actors and processes involved

The land developments discussed above were to have far-reaching implications for the African natives in Kenya. Land being at the centre of Africans' survival and a major force of production to white colonial settler economy, it sparked off sharp social, economic and political inequalities, which in turn led to numerous land-related conflicts, of which the Mau Mau independence struggle was the main one.

Many Kenyan communities starting with the Giriama at the Coast, the Maasai in the sprawling savanna land of Kenya, the Kikuyu in the Central highlands, the Nandi in the Nandi escarpment and the Luhya and Pokot in the western highlands reacted violently to the colonial land dispossessions. Underlying alienation of land was a policy of exploitation and oppression against the colonized communities who were 'herded' in reserves to create room for intensification of agriculture by the settlers using forced native labour. These policies generated land-related conflicts that have an indelible mark on the future of Kenya.

The result of 'herding' African communities in the reserves was massive landlessness, especially in those parts of the country that were in settler agricultural and other allied economic activities. Landlessness, quite understandably, led to poverty, discontent and eventually open land-related conflict. That is how organized political dissent by Africans against whites and white rule started to loom. The essence of this dissension was the deterioration of life due to mounting land pressure, overstocking and soil degradation in the reserves, which spurred the whole country into the liberation struggle (the land and freedom struggle).

At independence, the government was faced with the land-related conflict of how to settle the landless and displaced people. Obviously, people wanted the land for which they fought; yet the government was faced with the need to sustain the economic development then, which was a predominantly settler economy. The conflict situation was exacerbated by the fact that the government did not abrogate the colonial legacy but instead retained policies and laws inherited from the colonial regime with regard to land ownership and use. The land settlement schemes further generated land related conflicts in Kenya because most communities did not get back their land, given that in granting independence, the British government made sure that the rights and interests of the settlers who opted to stay in Kenya were safeguarded.

Secondly, even the lands that were availed for redistribution to the landless Africans were at the market place under the policy of "willing buyer, willing seller." This arrangement only aggravated land-related conflicts because those communities who lost their land under the then communal/customary tenure further witnessed their customary land at independence being individualized to those who could afford it at the market place. This was a further entrenchment of land-related conflicts which forty years after independence still manifest in the form of land clashes of 1990s and the current simmering land-related conflicts in form of historical land claims throughout the country.

Resettling the landless through settlement schemes or process has further generated land-related conflicts because since the 1970s the government reverted to a system of Settlement Fund Trustees, which due to corruption and mismanagement has generated further conflicts in settlement schemes where the squatter problem has been used to settle the politically correct individuals leaving squatters conflicting over the very lands that was meant for their settlement. Since the settlement schemes were not sufficiently addressing the landless problem the government encouraged purchase of land through the land-buying companies and farming cooperatives by the landless pooling resources together. The land-buying companies and farming cooperatives have increasingly contributed to land-related conflicts because they have been badly abused by politicians as a means of swindling land-hungry peasants. This process was supposed to facilitate the subdivision of the purchased land among the members in accordance with their respective shares. But more often than not the contributors towards the intended purchase have been cheated out of their money, hence massive land-related conflicts. The government intervention to cause subdivision of land among members and the issuance of title deeds has dragged on, leading to further land conflicts.

The land-related conflicts have involved all manner of actors at different times, at around independence and immediately after independence in the 1960s the land issues activated the ethno-regional conflicts that saw the polarization of politics between Kenya African National Union (KANU) and Kenya African Democratic Union (KADU) and later Kenya Peoples Union (KPU). These land-related conflicts reemerged in the early 1990s as Kenyans pushed for multi-partyism and continue to simmer during the constitutional debate. Indeed land-related conflicts and the stalemate over concluding the constitutional review process is a conspicuous feature of the country's failure to address the land question, which lingers on in the executive and devolution provisions in the new draft constitution.

The other important link to land-related conflicts is the mortgage institution and how it relates to rights of access to land. In Kenya individualization of land was and is meant to enable the registered proprietor to offer his title to a financial institution in return for credit. Thus, lenders stretching from banks, finance houses, and building societies have been forced into land-related conflicts with defaulters in the effort of realizing their security upon default. The rural people are engaged in protracted land related conflicts with financial institutions resisting being disinherited because they argue that the policy of the mortgage institutions was ill-conceived from the very outset in that the peasants whose land was offered as security did not have any entrepreneurial skills or experience in credit management to guarantee the possibility of the mortgage institution realizing their security upon default. So serious is the land-related conflicts out of the land mortgages that the state has been forced to intervene to stem the obvious effects on social order, but up to now the state legislative and administrative actions have failed to resolve the problem.

The other land-related conflicts in Kenya manifest themselves through what is commonly known as the human-wildlife conflicts. Kenya adopted an ambitious wildlife management and conservation arrangement through gazettement of large tracts of community lands as national parks, national game reserves and conservancy sanctuaries. In the process. communities are excluded from such lands, which are managed as public trust lands under the Kenya Wildlife Service (KWS). But given that most of these lands have eaten into grazing rangelands of pastoralist communities and agricultural lands of crop agricultural communities, permanent and potential land related conflicts occur between communities contingent to wildlife areas and the KWS as an agent and directly between human beings and wildlife. The use of ecologically sensitive areas such as forests and riparian reserves is emerging as another major cause of land-related conflicts between conservationists and beneficiaries of illegal and irregular allocation of such lands for political patronage.

The other land-related conflicts arise and concern the extraction and mining of mineral resources in varied areas of the country the major ones being experienced are from the coast - the salt mining, titanium mining, ruby mining and further inland the gold mining, sapphire mining, fluorspar mining, and limestone mining up in the hinterland. The conflicts are mainly because the government has excluded legislatively mineral resources from land rights of communities contingent to mining areas. This deplorable scenario does not answer the concerns of sharing of benefits from mining and mineral resources.

Away from natural resource utilization and benefit sharing land-related conflicts there are also numerous land-related conflicts arising from land dispute resolution mechanisms. In Kenya our courts are clogged by land conflict related cases, which have held back development endeavours. Land Dispute Tribunals are also clogged up with land-related conflicts, which are waiting arbitration.

The latest land-related conflicts arise from the Presidential Commission of Inquiry into Illegal and Irregular Allocation of Public Land ('Ndung'u Commission'). The commission in question was set up to inquire into corruption surrounding public land dealings from I962 as a cut-off date selected by the Commission up to December 31, 2002 when the appointing NARC government came to power. The Commission, which took nine months to investigate into the scams, inquired into protected lands for environmental, conservancy and security reasons i.e. covering forestlands, national parks, national game reserves, sanctuaries, wetlands, marine parks, protect security lands for police, prison, military and state houses and lodges; public lands for settlement schemes; public lands in townships, municipalities and cities; and public lands held and set aside for use and carrying out the mandates of State Statutory Bodies (Parastatals) ranging from provision of all manner of infrastructure, research and development public purposes. The land-related conflicts arising from the exercise of this Commission are first and foremost the government's belated release of the Commission report under suspicion of an effort to doctor the report.

In a nutshell the actors in the land-related conflicts in Kenya are the public sector, private sector, civil society and the community sector. Thus in a number of highlighted land-related conflicts all interface as victims and perpetrators. In terms of processes they range from legal, policy and institutional frameworks put in place for economic, political and social development, which appear to have failed the test of time.

The conclusion flowing from this discussion of land and conflicts in Kenya are that:
- The land tenure regimes inherited from colonial rule are still a major source of land-related conflicts which need to be revisited in order to address cases of historical injustices that manifest themselves in the form of squatters, absentee landlordism, land clashes and all manner of lingering land claims.
- Building capitalism on the basis of disputed land rights in Kenya is a major drawback because while we have succeeded in integrating 10% of Kenya economic and political elites into western type of ownership of property we have failed to address the plight of the majority Kenyans who live below poverty in an assumed pool of labour, both actual and reserve labour. The Kenyan example of going through land conflicts occasioned by individualization of land ownership is a pointer to other African countries that individualization of tenure per se does not produce miracles to development and eradication of poverty. So much reflection is required to overcome this quandary of spurring economic growth and development.
- Vesting land rights through the law does not resolve land-related conflicts or historical injustices and obstacles to development simply because the law is in place to protect what was unfairly and illegally taken away from Africans by colonialists and even fellow Africans at independence.
- Customary land rights cannot be transformed into individual land rights successfully by simple adjudication of land rights as a legal and political process without appraisal of ecological and traditional land use system in varied areas of the country.
- New land dispute resolution mechanisms need to be thought-out to address too many land disputes to ameliorate future land-related conflicts, without resorting to multiplicity of land law systems that are in themselves an obstacle to development.

* Odenda Lumumba is National Co-ordinator for the Kenya Land Alliance (KLA)

* This is an extract from a paper 'Land-related conflicts in Kenya: policy and legal implications', presented at a conference in December 2004. The African Centre for Technology Studies (ACTS) has just released proceedings of the conference on "Land Tenure & Conflict in Africa: Prevention, Mitigation, and Reconstruction", held in December 2004 which is available on the web at It includes papers on Burundi, Democratic Republic of Congo, Kenya, Rwanda, Somalia, Sudan, and Zimbabwe, as well as overview papers on customary land tenure, Oxfam GB's work on land rights in Africa, human security-centred approaches, and the work of UN-Habitat and UNEP.

If civil society groups have their way, a guideline drafted by the Kenya National Commission on Human Rights should hold cabinet ministers accountable for their actions while in office. Maina Kiai, chairman of the Kenya National Commission on Human Rights (KNCHR), says they are planning a series of public meetings to create awareness on how to hold civil servants accountable, and demand for their resignation in case of any wrongdoings.