The 2010 constitution prevents foreigners from owning land in Kenya, but as
Kenyans have come to find out, implementing these provisions is complicated
by the ambiguous nature of the law and deliberate moves by the landed class
to frustrate the process.
When Kenya's attorney general told the International Criminal Court in July
this year that there were no records to indicate that President Uhuru
Kenyatta owned any land in the country, his comments offered a reflection of
the mysterious nature of landownership in Kenya.
It is well known that the family of Kenya's first president, Jomo Kenyatta,
father to the current president, owns large tracts of the most productive
land, particularly in central Kenya and at the coast. Forbes Magazine placed
the total land owned by Kenyatta and his family at 500,000 acres of prime
land spread across the country.
A survey 2014 found that 50 percent of Kenya's wealth is in the hands of
political families, with the ownership of land providing the core of this
wealth.
Secret ownership
The skewed ownership of land is dire in a country where only 17 percent of
the land is arable, with the rest mostly arid and semi-arid. The Kenya Land
Alliance says that more than 65 percent of this productive land in Kenya is
in the hands of only 20 percent of the population.
The chaotic nature of land records in Kenya obviously suits the political
and business elite who would like to maintain secrecy over their ownership
of the country's land. In a recent audit, the Lands Ministry discovered that
1.3 million files were lost, misplaced or misfiled.
Any hope that the enactment of new laws would solve what Kenyans have come
to call the 'land question' has been replaced by disappointment, even
frustration by the lack of progress and constant finger pointing amongst
those entrusted with the job of cleaning up the mess that goes back to the
country's colonial period.
White Highlands
Land is an emotive issue in Kenya. The fight for independence was based on
the struggle to revert ownership of land from the colonialists back to the
Africans. Vast arable land in the Rift Valley was designated as the White
Highlands, reserved for European settlers, while the indigenous communities
were moved out.
The authority to allocate Crown Land was vested in the colonial governor and
he issued grants of leases for 999 years to the European settler community.
It is the same allocation by direct grant that facilitated the irregular
allocation of public land after Independence.
In 1963 a total of 7.5 million acres or half of the agricultural land in
Kenya was in settler hands, with individual farmers like Lord Delamere
reported to possess as much as 1 million acres.
The Africanization of the White Highlands, areas previously reserved for
European settlement, was carried out through the Million-Acre Scheme funded
by the British government and the World Bank, to facilitate the orderly
transfer of ownership of farms owned by settlers who wanted to leave after
independence.
Land grabbing
The new African political class and home guards, who had made fortunes by
collaborating with the colonial government, bought thousands of acres from
the departing Europeans, denying the majority of Kenyans the right to own
land.
The president widely abused his powers as trustee of public land to become a
large landowner himself. The illegal allocation of land by the first
Kenyatta and Moi governments is well documented in a report of the
Commission of Inquiry into the Illegal/Irregular Allocation of Public Land
popularly known as the Ndungu Report.
Lawyer Paul Ndungu, who released the report in December 2004, reveals the
extent to which land was targeted as a tool for political patronage,
particularly in 1990s. During this period, when the international scrutiny
was focused on economic and political reform, land acquired particular
significance as a bargaining tool for the political class desperate to hang
on to power amid the turbulence of multiparty politics.
No land was spared during this spree of allocations of public land, which
came to be known as 'land grabbing'. Even protected lands as forests,
wetlands, road reserves and even cemeteries were dished out as political
reward.
On the coast, beach plots on the Indian Ocean coastline were issued in the
1970s and 80s to political and business elites from outside the region. The
land grabbing by the elite has rendered millions of coastal people landless
or squatters in their own land.
999-year leases
The 2010 constitution prevents foreigners from owning land and also reduces
the period for which foreigners can lease land. But as Kenyans have come to
find out, implementing these provisions are complicated by the ambiguous
nature of the law and deliberate moves by the political and landed class to
frustrate the process.
More than 50 years after independence, there is still a significant amount
of prime land in foreign hands, especially in the coastal region, and new
regulations may finally reveal just how much of this land owned by
non-Kenyans.
The National Land Commission has found itself in a muddle in its attempts to
regularize land ownership by demanding that all foreign landowners align
their leases with the provisions of the constitution. One of the tasks of
the commission is to ensure that all the 999-year leases instituted during
the colonial period are converted into shorter leases of 99 years.
Mongrel
Establishing who a foreign landowner is remains a challenge, because many
such people own property in the country jointly with Kenyans. The new law
also allows dual citizenship further confusing an already murky situation.
While the new law has safeguards against the secret allocation of public
land by public officials, it has created what land policy analyst Ibrahim
Mwathane calls a "mongrel". The National Land Commission has the mandate to
manage public land on behalf of national and county governments, while the
Minister still retains power over the registers of all public, private and
community land in Kenya.
The audit of all stolen public land can only be done effectively by whoever
runs the land registries, in this case, the minister.