Land is a “key fault line” in Kenya, writes Professor Ambreena Manji, whose publication Whose Land is it Anyway? was launched at the Africa Research Institute, London, on 2 October. A short booklet in the Institute’s free Counterpoints series, it examines the failure of land law reform in Kenya. Eminent constitutional lawyer Yash Pal Ghai also spoke, and there was a wide-ranging discussion afterwards.
Land has been at the root of conflict right through the colonial and post-independence eras. Prof. Manji didn’t mention this, but Kenya’s Truth, Reconciliation and Justice Commission said in its final (2013) report that land disputes are the major factor in inter- and intra-community conflicts in Kenya.
Understandably, then, Kenyans placed a great deal of hope in new land laws, enacted in 2012. It is the most recent African country to have introduced such laws. But in reality land reform has been about land law reform, Prof. Manji argues – not change on the ground. Taking a legalistic approach to land reform meant that public debates about redistribution were shut down, with the government able to evade difficult questions about who controls access to land, and how land could be more fairly distributed. Citizens and civil society groups were given very few opportunities to express their views; for example, Draft Bills were only printed and made public the day consultation was due to take place. The very technical nature of the Bills’ language meant “it was impossible for most Kenyans, including lawyers, to understand their content.” This effectively prevented people from participating in the process of law reform, as they were meant to do under the terms of the new (2010) constitution.
The new laws have therefore resulted from a “very flawed process”. On the ground, it is still business as usual – fraudulent land deals on a massive scale, inefficient and corrupt administration (highlighted long ago in the Ndung’u and Njonjo Inquiry Commission Reports) and so on. “It’s a story of how not to do land law reform.” Prof. Ghai said he (and colleagues in the Katiba Institute he founded) found it “quite strange” Kenya has a Ministry of Lands at all, most other countries don’t have one – “It is the most coveted Ministry [in Kenya] because of the money to be made. So much so that the Minister has been suspended for nearly six months on suspicion of corruption.”
Prof. Manji admits that Kenya’s land issues are not unique. But the attempt at land reform is “a real test of the hard-won 2010 constitution”. The danger is that, if the new laws fail to bring change, and historical land injustices are not addressed by the new National Land Commission, Kenyan citizens will see this as “a failure of the constitution itself”. And that would be disastrous; disillusionment is already widespread. “Land promises and constitutional promises have become intertwined in the minds of the people.” We are seeing evidence of this in our own research.
Ambreena Manji is Professor of Land Law and Development at Cardiff Law School. She was previously Director of the British Institute in Eastern Africa (BIEA), Nairobi, to which our research project is informally affiliated.