National constitutional conference
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Laughter from the Honourable DelegatesKwa sababu, kina baba hawataki tuwe na Title Deeds. Sasa jambo ni moja tu. Ile Title Deed ya family, iwe na jina la baba na iwe na jina la mama na hata mtoto. Na baba hana ruhusa ya kwenda kuchukuwa loan na ile Title Deed bila mama kuwa hapo na family members kusema inawezekana. Kwa sababu kina mama wengi wamelia kwa kuteswa na wanaume wahalifu ama – eh. Magaidi ambao wana koroga mama. Katika Control Board, mimi nimesha jaribu kwenda kwa Control Board. Kama una bahati utakuja mwanamke mmoja ama ni wanaume watupu. Na wewe mwanamke kama utashindwa kusema, utatetemeka hapo na land utakosa. One third, lazima iwe kwa Land Board zote kutoka kijiji mpaka regional, mpaka national. Clapping by the Honourable DelegatesNa mambo ya willing-seller/willing buyer, mama lazima awe ameketi hapo na family members. Mambo ya bar na kupitisha mikataba hiyo haiwezekani. Courts za elders za land, ninaziamini kwa sababu hizo Courts ndio zinajuwa historia ya land kutoka judge. Mambo ya kuja kushtakiwa hapa Nairobi, nitafute wale ma lawyers, anauliza robo millioni alipwe ndio akusimamie haya hayata faa. Land ziwe zinakuwa judge kutoka kwa kijiji, sub-location, na zikifika kwa district, zimeisha. Clapping by Honourable Delegates Security ya loan, kina mama wanashindwa kupata security ya loans. Kwa sababu Title Deeds hazina majina yao na ninaunga mkono yule anayesema, basi kama hiyo itakuwa ni muhimu, Title Deeds, basi kina mama tutafutiwe kitu ambacho kitakuwa ni security, nipewe loan na nifanye maendeleo. After all, mama ndio anasomesha watoto, ndio anajua chakula na ndio mkulima wa shamba and yet she is a squatter. Clapping by the Honourable Delegates Slum areas, single mothers, single mothers ndio wengi. Katika hapo slum areas, popote pale, majengo, Mombasa, Kibira, wapi, Mathare, wapi? Utakuta kina mama ndio wako hapo na hana barua ya kibali ya ile plot. Jambo hilo katika Committee litatuliwe kusudi kina watu maskini, na kina mama na widows waweze kuwa na kibali cha nyumba ile amejenga. Clapping by the Honourable DelegatesMining areas, kama kule Kwale kwetu, mtu analipwa shilingi elfu tisa kwa acre. Sasa nimesikia inaweza kuwa shilingi tisaini. Kwani yule mtu mwenye shamba lake kwa nini asilipwe akawa akilipwa ale na uko wake na uko na vijuku, na kila mtu wake? Kwa nini inanunuliwa iondoke halafu yeye apelekwe mahali pengine? Kama shamba yangu ina madini, basi Mungu asifiwe. Laughter from the Honourable DelegatesKatika Commissions, nataka Commissions ziwe na hiyo one third na jina la squatter liondoke kabisa. Kule Pwani linatuudhi. Squatter itatuliwe na iishe. Asante sana Bw. Mwenyekiti. Clapping by the Honourable DelegatesHon. Delegate Norman Nyaga: Asante sana. Thank you mum. I think we have been very, very unfair. In the next block I would like to recognize somebody with disability. Do we have that category of a person? Yes. Delegate Number 411. Hon. Delegate Mary Teresia Osunga: Thank you Mr. Chairman. It is very good that at least you think about us. I am number 411, Mary Teresa Osunga from Nyanza Province, Homa Bay and I am a teacher at Ogande Girls’ High School. Okey. I want first of all to tell you the position of my people as regards how land has been abused. Firstly, the women have not been given a voice even to talk about land. If you talk about land, you are going to earn a wife beating exercise. Laughter and Noise from the Honourable DelegatesThen, the other position is that the people said, that if there is anything, then all the widows should not be denied the land after the death of their husbands and that the disabled people should not be disinherited because sometimes they do disinherit those people with disabilities. Now, as regards our exercise, right now I want us to look at Article 238. I think that this Article should have (b) and (c) in it. Article 238 (b) should be talking about other meaning of land. Okey Article 238 (a) talks about the meaning of land and that one is what has been explained here, that it means the soil, it means the sub-terrain deposits and it also means the body of water – bodies that is. Now, I also want that the Committees should put in (b) as other meaning of land, i.e. the land. Land means the types of lands in the geographical aspect and then the land means the Nation. Then (c) should be the viability of lands. That the viability of land depends on what is done on the land and it also depends on how the land is in terms of climatic conditions. Then Article 237, talks about Affirmative Action and I am now saying it in black and white that there should be regional representation in the Land Commission and it should be a regional one beginning from the village by the way and going up to the top because if a hole is dug, the centre space is just space and the bottom is important at the top. So, we really need that it should begin from the village and that there is a third representation of women and a third of a third of women with disability and other categories. Clapping from the Honourable DelegatesYes, now when we are talking about-- There is a place in Article 233 – I also think about it in terms of the fact that there should be this leasing of land-- It says that leases should not be 99 years but it should be less because the life span is becoming less and less each time. Generally, there was a place also where it talks about the landless people. I feel that instead of using the words ‘landless people’, we should use the ‘displaced landless’, because people used to have land but they were displaced. Clapping from the Honourable DelegatesWhen we look at Article 235, (7) and (8), yes, (7), I have already talked about the landless. Now, (8), it means there is something that is talked about here, the establishment of a land fund. As a linguist and as a language teacher we should say it like this ‘the establishment of land fund to enable Kenyans gain access to land on an equitable basis’. I am finishing. I am finishing please. Now, lastly Article 232, I feel that we are becoming so verbose. Instead of saying land is Kenya’s primary resource and the basis of livelihood for the people shall be equitable, efficient, productive and sustainable, we should say, ‘should be efficient’. Thank you. Hon. Delegate Norman Nyaga: Thank you very much indeed. Indeed, you have displayed the qualities of a teacher. You know when to begin and when to stop. Thank you, maam, thank you. In the next category I want to recognize the category of Members of Parliament and I want to recognize two Members of Parliament who have not spoken. There aretwo of them and they both come from the same region; therefore, know who you are. Between the two of you, who is older than the other? Okey. I recognize the one who has had the courage to stand, Delegate Number 071. Hon. Delegate Harrison Kombe Garama: At long last! Thank you very much, Mr. Chairman. I was just getting worried being the only Member of Parliament of Shirikisho and being sidelined. Alright I am on land policy. Hon. Delegate Norman Nyaga: What is your name and where do you come from? Hon. Delegate Harrison Kombe Garama: Do you want to get the name? I am Mwalimu Harry Kombe, MP for Magarini, Malindi North. Land Policy, that is Article 232, item 2 (b) on the security. Security of land for all land-holders that is a blunt statement. I would like to add security of land rights for all holders who acquired the land legally. I am adding who acquired the land legally because we are having at the moment people who acquired land illegally and are being protected and even looking at Kenya today, we are faced with famine and then an investor, has the guts to go and plough off maize from indigenous Kenyans who have laboured without food and here they are getting their maize being ploughed off (Clapping by the Honourable Delegates). It is very serious and I wish the Agricultural Minister, if he is around, should take note of that and take crystal line to task off ploughing off the maize plantation that was just about to be harvested. Item 233, ownership of land: Number 3, non-citizens, I wish to elaborate this further though it has been put across by many Honourable Delegates: that non citizens of Kenya may hold land or use land on the basis of lease, holding tenure only as such leases, guaranteed, shall be or shall not extend beyond 99 years. May I bring to the attention of this Honourable gathering that, the life span of human beings as defined in the Bible is 70 years so it is not realistic for us to put 99 years here. I would therefore recommend that the leases should be at least 10 years and at most 50 years. Again I would like to add item 4 from 3 we go to 4 and the addition reads; such leases shall be liable to cancellation if the investors are:
Hon. Delegate Norman Nyaga: Thank you. We are going to the next category. Hon. Delegate Ndile R. Kalembe: Mr. Chairman. May I borrow a minute? Hon. Delegate Norman Nyaga: Thank you. You will get another opportunity; let us go to the next category. We are recognizing a District Delegate. District Delegate, is that 446 District Delegate? No, 324. Hon. Delegate Koringura Hellen: Thank you, Mr. Chairman, for giving me this opportunity. I would like to make some comments on Chapter 10 as regards land. It is common knowledge that land is very important aspect in everybody’s life. My name is Koringura Hellen a Delegate from West Pokot number 324. So I would like to comment on article 232 that land will be held, used and managed in a manner which is equitably efficient productive and sustainable. I would like to suggest Mr. Chairman, that since most of the workers on land are women they should be given that opportunity that they also own land so that they can use land efficiently. On Article 234, I would like to comment on 3 © and (d); I would like to suggest that this particular Article has been drafted well since it also recognizes that grazing land belongs to the community. I would like to say from this Chapter that, since some communities are not farmers they use land for other purposes such as grazing. And therefore any land that can be used in that manner should always be recognized as peoples land and the community uses land in that particular way. Therefore I am also wondering when the Government some time decides to take peoples land and imagine that because it is pastoral land it is not anybody’s land. We have a case of Tukwel where peoples grazing lands were submerged by the dam to pave way for electricity to be generated, which is of no use even to the community. For us we see that as a white elephant project because we have never benefited from it even the proceeds of the same has never benefited the communities. So I am suggesting that in this era such people should be compensated for such loss of land because of the water, which submerged even sewages and even market places. Mr. Chairman, I would like also to add my voice to what Member of Parliament from Kajeriba said this morning about Article (3) 235 4B and sub-section 2; where is says that the Draft establishes mechanism for the review and assessment of all claims to unjust, expropriation of land in the Coast, Rift Valley. In this case I have a point here to make concerning the land question of Trans Nzoia. Mr. Chairman as you heard that land is very important to any people to survive, when the land of Trans Nzoia was taken away by the colonial Government before independence our people were compressed to some section of dry areas and therefore they were not able to get a livelihood and about 8000 of them died as you have heard in the morning. So to address this injustices I would suggest as this Article says that; it will determine how it can be justly, peacefully and equitably be resolved I propose the following. That our people should be compensated in terms of money, because this is not the first time the South African did for the Maori people in New Zealand. We also know of compensation in terms of money- by the way I want to quote when the Tas Pokot petitioned the British Government in 1997 after it tried for along time with the Kenyan government and they refused to address the case. In 1997 the Pokot petitioned the British government and this was the reply that came to the people and I quote that “it has been it has been the responsibility of the Kenyan Government since independence to settle all outstanding land claims with the indigenous tribes in Kenya and this remains the case”. Your request for some sort of compensations therefore lies today with presents Kenyan Government who are responsible for any land claims in settlement in Kenya. So I am suggesting that the Pokot be compensated in terms of money or land and we still have hopes that since most of the land in Trans Nzoia is still under the Government about 10 farms we know they can compensate us by giving us those remaining farms. Or compensate us in terms of money, because as much as the British Government had allocated some money to Kenyan Government after independent of about 100 million Dollars. They went a head to bring some communities from central and resettled in Trans Nzoia at the expense of the Pokots and also some communities from Western Kenya. I beg to raise my case and say that finally Parliament should not determine the time period of such cases to be determined on land. Finally I propose that there should be a land court to look into these injustices. Thank you. Hon. Delegate Norman Nyaga: Thank you very much indeed for you contribution. In the next block, do I hear Point of Order from somewhere? 228 yes what is your Point of Order? Hon. Delegate Raphael Livu: Thank you, Mr. Chairman. My name is Raphael Livu Delegate number 228 from Mombasa district. Mr. Chairman I am seeking the direction of the Chair as to the terms of reference of this Commission and all deliberations. Mr. Chairman, my understanding is that we are to deliberate on the recommendations that were collected from Kenya when the Commission did go round the country to seek views. My understanding is that we have to deliberate on that document which is the Draft Bill and go by it. Mr. Chairman what I am raising here is us Delegates introducing new views, I would like the Chair to give us direction. I don’t think we are making headway. I have a feeling that you are addressing distinctions. Thank you so much. Hon. Delegate Norman Nyaga: I think it is very simple to answer this one. It is not possible to gag what Delegates may want to say, however sad it may be we should allow every single person to ventilate his views and not to go by what CKRC has done. When we get the Committee stage we would even be going deeper, but at this particular point it is basically for every Delegate to be able to ventilate his views so that they can know hear they make very very good view. Thank you. Thank you for your Point of Order. Now I did indicate that the last time we did District on this row and it is not fair we do District again. I would like to recognize another one we might do second category of people we have not recognized the whole day and that is Religious Organization. We want to have the second religious person today how many religious people in this category here? No, no that group over there. There is none at all 520. Honourable Delegate: Point of Order. Hon. Delegate Norman Nyaga: Yes. What is your Point of Order. Hon Delegate Salim Ibrahim: Mr. Chairman, my names are Salim Ibrahim from Nairobi province. With all due respect to the Chair I wonder what that list is doing in front of you because if you get to pick the same persons to speak over and over and over again then what are some of us doing here? Are we here to spectate? Hon. Delegate Norman Nyaga: It is very unfortunate you know when people clap, sometimes you clap without realizing why you are clapping. If you sit here and people are in different categories than where they are sitting, the choice that one has to make-- I have been there twice on District and I have to mix all this. Since I began chairing this meeting all the categories of people who have spoken have got exactly the number of people that have spoken. I thought you are going to come with the entry of the youth. I will recognize you as that category of District representation next time I come, that will be three people from there. Shall we have the Reverend who got the Chair’s eye? Hon Delegate James Gatiti: Thank you ,Mr. Chairman. My names are Father James Gatiti from the Religious Organizations, I am number 520. Thank you for this opportunity. I agree with those who say that land is a very sensitive issue. It is our primary resource and heritage. I recommend the provisions that the CKRC is coming up with that we have the National Land Commission. I recommend that this National Land Commission should work together with the representatives from the Elders Tribunal from our own regions, because the elders know very well about the issues of land from their own grassroot where they come from. Another question on which I would like clarification from the Commission is this. Is community land the same as Trust Land, and how do we ensure that it is not distributed unwisely or illegally? I realize that the Draft Constitution shies away from how to deal with land disputes, e.g. illegally acquired land. In order to deal with grievances of past historical injustices over land as explained by people in various fora especially at the Coast and Rift Valley Provinces, it is proposed that the Constitution can be amended to provide that; registration be passed for review of ancestral historical land claims and disputes, including those dating back to 1895, with a view to reaching a just and peaceful resolution of the same, taking into account the nature of the unsolved claim or dispute, and current needs and interests of the nation. Two, the ancestral claims and disputes shall be investigated by Ancestral Historical Land Claims Tribunal to be established by registration, and which shall sit in public and comprise the fair hearing requirements of the Constitution and the common law. That registration must be passed and all such claims and disputes investigated and resolved within two years from the date of commencement of the Constitutional amendment. Article 234 (1c), the Constitution does not address the issue of landlessness. It has been addressed very much here in this Conference. I think we should address the issue of landlessness in Kenya. Provisions on land and property is inadequate. Some certain principles need to be put in place in the Constitution. Matrimonial property should be for both spouses, i.e., husband and wife, to make sure that when one spouse dies, the property automatically belongs to the other spouse. One should ensure accessibility to the organs of justice. Non-Kenyans should never be allowed to buy land in Kenya. Details on leasing community land are not clear, so some more details need to be added. The new Constitution needs to establish a new legal regime that will regulate and manage grazing rights for pastrolists and rights of access to water and pasture, livestock and marketing and carrying capacity monitoring and regulation. I also recommend that unutilised land should be taxed. Thank you very much Chairman. Hon. Delegate Norman Nyaga: Thank you very much indeed the Honourable Delegate. I move on to the last one. It will be very, very clear to all the Delegates, a point of order that has been raised by the Honourable Delegate from Nairobi is, what is that list doing in front of you? I want to answer what that list is doing in front of me. How many of you in this section here have not spoken? I recognize number 326 because I can tell all of you, that all the others have spoken, but Delegate number 326 has not spoken. He is a District Delegate. “Can you kindly give us your name and number?” Hon. Delegate Rev. Simon Alew: Honourable Chairman, I am a District Delegate, Rev. Simon Alew and my number is 326. I represent West Pokot District in Kacheliba Constituency. I am going to give my views on Land. My colleagues have spoken, but that one cannot prevent me from giving my own points. Mr. Chairman, I am here to support the issue of land to be returned to the communities because there are some communities who lost their land during the colonial times. These are the lands we are claiming and it is our time that we have come here so that we can discuss and see how those lands can be returned to their owners. Mr. Chairman, this issue of land has created insecurity along all these boundaries. The reason is that even since colonial times, I remember in books where somebody mentioned this morning that there are some levels of books which show certain years like 1932. 1917 is the year when the Pokot people were chased away from Trans Nzoia. The issue of insecurity along these borders has been created as a result of people trying to present their views to the Government. That is the last Government since Kenyatta’s time and even Moi’s times, the boundaries between Turkana, the Karamojong on the other side of Uganda and even Trans Nzoia and part of the Marakwets. This issue has created insecurity because there is nobody listening to these communities. The Maasais and Ogiek have the same problem. This is our time. We have come to this Conference so that we can solve our problems here. On this issue of land, if this Conference is not going to take it as a matter of urgency, the issue of these fights along the borders is not going to stop Mr. Chairman. I am therefore going to read our recommendations as the Pokots: We believe that the Constitutional Conference of this year, 2003 must determine the cut-off debt for dealing with community’s claims to unjust expiration of land. This should not be left to Parliament as per Chapter 11 of the Draft, section 235, sub-section 4(b), (i) and (ii). We propose that the cut off debts be 1913. We have no wish to invade the farms of legitimated owners in Trans Nzoia. We do not seek revenge, but justice. There are 40,000 acres of ADC, which my Member of Parliament mentioned. The Kenya Seeds Farms that border the District of Trans Nzoia and West Pokot will therefore, - and I wish to recommend in this Conference that the Government grants these farms to poor communities, who are landless, like the Pokot people. Beyond this Mr. Chairman, the new Constitution needs to set modalities and principles for compensating communities, for the expiration of their land by the colonialists and for being neglected by the independence government. The new Constitution needs to establish an Affirmative Action programme for the minorities like the Pokot, who have not shared in the fruits of independence. This programme needs to centre on education facilities and infrastructure, to bring the forgotten people into line with the privileged communities and to give them a share in the National Social economic life. Finally Mr. Chairman, in line with other pastoral areas, the new Constitution needs to establish a new legal regime that will regulate and manage grazing rights and rights of access to water, pasture, livestock, marketing and carrying rules and regulations for the minority. Thank you Mr. Chairman. |