Land And The Criminalised State

Cross Posted from the Star Newspaper. By Prof Yash Pal Ghai

As the country is struggling to implement the Constitution, land is a critical area where the Constitution is flouted every day, hundreds of time, by retired presidents down to petty bureaucrats and their sordid friends. Newspapers are full of stories of land grabbing, and evictions of people from land which they or their grandparents have occupied, sometimes, for upwards of 100 years. These illegal takings over of land or other transactions occur with the connivance and sometimes the active involvement of the officials of the Ministry of Lands. It is hard to imagine a more grievous violation of the Constitution, both of its text and spirit.

In each of these cases numerous human and group rights are trampled upon. In 2009 a comprehensive National Land Policy was taken to the Cabinet and the National Assembly by the current minister, successfully, for their approval. At that time the minister said that the policy had the support of all the stakeholders, stating, “It is a hall mark of the rare sense of dialogue and collaboration between the Government and the Citizenry in tackling, arguably, the most emotive and culturally sensitive issue in Kenya.

In this respect, therefore the [Policy] will form the foundation upon which the administrative and legislative framework will be built. This is the framework that will drive the critically required land reforms in this country”. The Policy was endorsed by the Constitution, but, alas, more than two years down the line, is routinely disregarded, to the unimaginable suffering of literally millions of Kenyans.

The Minister and the PS do not deny this state of affairs, but plead that they are helpless, quite out of control of their ministry: such is the hold of the bureaucracy and their corrupt collaborators over the regime governing land. Fake titles abound, sometimes endorsed by a court; the powerful are assisted to grab land illegally by the provincial administration, land officials, police, local authority officials, and other agencies of the state.

The constitutional responsibility of the state to protect human security and property is replaced in practice by the state’s complicity in illegal land transactions, supporting former and current politicians, bureaucrats and developers. This criminalization of the Kenyan state is at one with the frightening but not surprising findings of the International Peace Institute in its publication Termites at Work. The findings are that ministers, parliamentarians and bureaucrats are in cohoots with crooks and criminals, international as well as local, to plunder the resources of the people, and facilitate trade in human beings, arms, and drugs. They are both practically and physically assisted in and shielded from the consequences of their criminal activities by impunity granted by the state.

Oddly enough the report on the rottenness of the state was launched by no less a person than the prime minister who co-presides over it! Hopefully it a sign that Raila wants to reform the state (there are ample recommendations in the report to guide him) and is not merely indulging in the usual practice of presidents and ministers to denounce publicly what they practice in private.

To return to land, a major problem is precisely the criminalization of the state. Some politicians are busy grapping land; a few senior ministers have bought hundreds of acres in Lamu, with inside information of plans for the port there. Sometimes the same people who improperly appropriated land in the past are “laundering” it by selling it to the state at high prices for the “settlement” of IDPs. Others are conspiring with developers, often foreigners, to evict people from their traditional land, to create the so-called “conservation” areas, today a major cause of illegalities and the suffering of the people.

Wednesday’s Star had several stories about the land “problems” of the well connected families—Kibaki, Koinange, and Moi. Let me just recount those of Moi, the size of whose land holding is as amazing as those of the Kenyattas. He is currently involved in a dispute with the well connected businessman and his former friend, Sajjad, over a beach plot which he allegedly sold to him in 1992, but is now demanding more money, with threats of arrest and imprisonment.

Moi is himself being sued in the High Court at Nyeri for illegal acquisition of hundreds of acres from where, it is alleged, he threw out a large Samburu community, who are now without any kind of shelter or means of survival. The interesting thing about these cases is Moi’s ability to mobilize, in completely unconstitutional and improper ways, the police, land ministry, provincial administration, KWS, and other state agencies in support of his claims—as if he were still president.

No legal redress seems possible against these arbitrary acts of harassment, brutal use of force, denying people their rights, shelter and livelihood—when, if Kenyan state had not been criminalized, we should have set up a commission to investigate how our presidents and their allies amassed such great fortunes from nothing, and became among the world’s richest people, in no time at all.

The author is a retired academic.