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Verbatim Report of





27TH MAY 2003



Discussants: Prof. H. W. O. Okoth Ogendo

Dr. Mohammed Swazuri
Session Chairs: Mr. Wilfred Koitamet Ole Kina.

Hon. Norman Nyaga

Meeting commenced at 9.30 am.
Hon. Delegate Wilfred Ole Kina: I now call this meeting to order. I will ask Elizabeth Okeyo to lead us in prayers. Please let us all rise up for prayers, then after this we will have Shiekh Ali Shee.
Hon. Delegate Elizabeth Okeyo: Haya tunaomba. Kwa jina la Baba, na la Mwana na Roho Mtakatifu. Amina. Ewe Mola, ewe Mungu wa rehema, umetuamsha leo asubuhi, tuje hapa kutengeneza mambo ya Katiba ya Kenya. Ewe Mungu wa huruma, twakuomba uturehemu tuwe watu wanyenyekevu, tuseme kwa huruma, tuelewe mambo kwa heshima, tuwatumikie watu wa Kenya kwa wema wako Baba. Ewe Mungu twakuomba siku zote utusikilize sisi wote tulioko hapa, uwe nasi tuwe watu wenye unyenyekevu mbele ya Wakenya waliotuleta hapa. Ewe Mola twakuomba, wewe ni Mungu wa mapenzi. Unajua yale tunayoyasema yawe ya haki, yawe ya kweli, yawe ya upendo. Tuwache ukabila ambao ni dudu la kuwaua Wakenya. Tunakuomba hayo kwa ajili ya Yesu Mkombozi wetu. Amina. Kwa jina la Baba, la Mwana na la Roho Mtakatifu. Amina.
Hon. Delegate Sheikh Ali Shee: Bismilahi. Kwa jina la Mwenyezi Mungu, mwingi wa rehema, turehemu ee Mola. Utupe kila lilae ambalo ni la bora na la heri, utuondolee fitina na balaa na uchafu na ushetani wa ukabila. Uongoze Wakenya wajikomboe kwenye maradhi ya ukabila. Uwape kila moyo wa kuweza kuishi pamoja kwa amani. Mola, hatuna mtu mwingine wa kumuomba isipokuwa ni wewe. Twakuomba uwabariki Wakenya wote, uibariki nchi hii, utupe kila lile ambalo ni la bora, utuondolee maradhi, ulinde watu wetu, ulinde nchi yetu. Twakushukuru wewe kwa kutuweka katika hali hii iliyo bora mpaka sasa, na utudumishe kwenye hali hii hii bali twende katika hali bora zaidi kuliko hii tuliyo nayo. Twakuomba, hatuna mtu mwingine, utubariki. Amin.
Hon. Delegate Wilfred Ole Kina: I will now ask any Delegate who has not been sworn in to present himself or herself for the swearing in ceremony.
Prof. Yash Pal Ghai: I think you can stand there. Okay. Could I ask the Honourable Delegates who are to be sworn in today, are you all happy to have an oath or do you want affirmation as Delegates? You will all take the oath? Yes, you will all take the oath as opposed to affirmation? Okay. The way we conduct the swearing in-- Delegates please be quiet! --is that you raise your hand and then I will ask you to repeat the oath after me. That is, the first word is “ I” and then after that you mention your names and then repeat after me. So you say “I” and your names, “being appointed a Delegate to the National Constitutional Conference under the Constitution of Kenya Review Commission Act, do solemnly swear that I will faithfully and fully impartially and to the best of my ability, discharge the trust and perform the functions and exercise the powers devolving upon me by virtue of this appointment without fear, favour, bias faction, ill-will or prejudice and to that end that, in the exercise of the functions and powers as such a Delegate, I shall at all times be guided by the national interest. So help me God.” Will you please sign the oath and then I will counter-sign it later. I welcome you to the Conference. Thank you. (Clapping by the Honourable Delegates)
Honourable Delegates, I would like to take just a minute of your time to welcome the representative of the United Nations Development Programme who have very kindly donated us some equipment, which has facilitated the work of this Conference. The screen behind me that you see has been donated by them and they have agreed to give us more screens so that all of us can see each other. At the moment I am fairly cut off from the screen, and I cannot see very clearly the Delegates who are speaking. With further screens all of us will be able to watch every Delegate who is speaking. There are many other ways in which the UNDP has facilitated our work; they have funded some consultants, they have helped with the publication of our documents. As you know for this Conference we have a large number of documentation in large quantities but for their assistance we would not have been able to do so. So I want to thank the UNDP for the many favours they have done us and now I will ask the representative to formally donate us the equipment, some of which we have placed here, but there is a lot more, and I just want to welcome the Delegate and maybe she may want to say a word or two and then we can resume our normal business. Thank you.
UNDP Representative: Distinguished Delegates, may I first sincerely apologize for the resident representative of UNDP, Mr. Paul Andrew Delapore who has not been able to come and be with you at this particular time. May I also take this opportunity on behalf of the resident representative of UNDP to sincerely commend the Constitution of Kenya Review Commission for ably steering this process to this particular event. I would also like to sincerely commend all of you distinguished Delegates for the excellent work that you are so far doing.
Having said that, I would like to take this opportunity again, on behalf of UNDP, to indicate to you that we are sincerely proud to be associated with this very monumental event in the history of our beautiful country Kenya, and to be associated with the entire process of Constitutional review. I would like to assure you of UNDP’s commitments to this and other initiatives by the Government and the people of Kenya, which aims at improved governance and sustainable development. I know that you have very critical issues before you that you need to deliberate on, and therefore, I will not take much of your time, but to sincerely thank you all and to wish you the best during your deliberations. Once again, let me assure you of our commitment and continued support to this and other initiatives. Thank you very much.
Clapping by the Honourable delegate
Prof. Yash Pal Ghai: I will now pass the Chair to my colleague Ole Kina who has a couple of announcements to make and then he and Mr. Nyaga will co-chair the session on Land and Property. Thank you.
Hon. Delegate Wilfred Ole Kina: Thank you very much, Mr. Chairman. First of all there are notices of meetings. There will be a meeting of the Technical Working Group E on the Judiciary today at 1.00 o’clock. They had indicated that they wanted to meet at 12.00 pm but we advised that they should meet at 1.00 pm in Committee tent number five. Your lunch will be served in the tent. So please meet there, and deliberate in your elections as you are having your lunch. Then there will also be a meeting for Defence and Security in tent number nine at the same time. Lunch will also be served there.
Yesterday, one of the Delegates raised an issue of some Delegates coming into the auditorium armed and of course others are threatened by the fact that that fact since they themselves are not armed and because we want everybody to feel safe, after consultations, we have agreed that nobody should come into this auditorium armed. You are free to carry your firearms, but not into this auditorium, so that everybody here is equal, and that everybody feels free to deliberate without feeling intimidated by someone else’s arms. So I hope all of us are going to cooperate, and I think the Clerk to the National Assembly has some arrangements for the deposit of any arms that you have within this compound. So if you must carry your arm you can make arrangements for safekeeping and you can take them whenever you need them.
Having said that, we now want to get into the business of the day. We know we are going to deliberate on land and property. So I will hand over to my Co-chair, Honourable Nyaga, to invite the presenters or the Commissioners who are going to present to us that Chapter. Thank you very much.
Hon. Delegate Norman Nyaga: Thank you very much, Co- Chair. The substantive Chairman, Professor Ghai, Honourable Delegates, good morning? Good morning?
Chorus from Honourable Delegates: Good morning Sir.
Hon. Delegate Norman Nyaga: Thank you. Mine is going to be very, very simple and I do not intend to take much time, neither do I want to invent anything new. After so many weeks it has become obvious, and the first obvious thing that has been noted by us is that there are nine sections here; one, two, up to nine. The other one is that there are three major categories which you already know. I also do not want to introduce anything more than was done in the last three days, so I shall use the same method in selecting the people who are going to speak with only one amendment. If for instance we wanted to have somebody from section one speak we shall request the next section to wave their placards so that we can, in the meantime as the first person speaks, get to see who should get the opportunity to speak. It now gives me great pleasure to have to introduce the two main presenters of a very emotive subject…if we may, let us hear what your point of order is.
Hon. Delegate William Ole Yiaile: Point of order. My name is Ole Yiaile from Narok Delegate number 361. My point of order Mr. Chairman is this. Now that we are going to handle two Chapters at the same time and very complicated Chapters of Land and Natural Resources, is it not in order that we allow five minutes for each topic, because this is very important to us? Thank you Mr. Chairman.
Hon. Delegate Wilfred Ole Kina: May I make this clarification, we are not collapsing any Chapters. We are discussing Chapter by Chapter; we are not going to discuss two Chapters together. If you have a problem with that, I think your problem was that we are going to combine Chapters, but let me assure you that we are not going to combine Chapters.
Hon. Delegate William Ole Yiaile: Mr. Chairman, it is not a question of Chapters, it is a question of issues because land is a different issue and even natural resources is a different issues. With all humility, Mr. Chairman, ten minutes will be sufficient, five minutes to cover for each, because those are very intricate subjects and are of national importance and they are interconnected. Mr. Chairman, five minutes will not even be enough for introductory purposes.
Hon. Delegate Norman Nyaga: We appreciate your feelings, but I think we also need to be fair to everybody. If we were to give a person ten minutes, given the number of Delegates that we have here, then we would be talking about this subject for the next one week. I think we need to be fair and be able to come up with a salient point that we want to make in the two subjects. Let me also plead with the Honourable Delegates, the more points of order we take, the more time we are going to take. Let me put up my humble plea to all of you, that we reduce the points of order as much as we can. (Laughter from the Honourable Delegate.) Let me also say the following, let us not use the points of order as a matter of information. When you want to give any information, you only give information to a member who is standing on the floor making a contribution. Please do not inform the Chair.
The next one? Okay, let us have that one as the last one and then we get the Presenters to continue.
Hon. Delegate Mkawerweren: Point of order, Mr. Chairman. Thank you Honourable Chair, my name is Mkawerweren Chebii, a Delegate from Marakwet. Now my question is, there was a question raised yesterday by Honourable Kipng’eno Arap Ng’eny asking about the experts yesterday. Today morning we have no experts. Now I want to know from you Chair, are these experts representing regions? Are these experts representing the outside world and if it is, who are going to gather the interests of the regions?
Hon. Delegate Wilfred Koitamet Ole Kina: That is not a point of order and please don’t waste our time. That is not a point of order.
Hon. Delegate Mkawerweren: Kindly Chairman--
Hon. Delegate Wilfred Ole Kina: It is not a point of order.
Hon. Delegate Mkawerweren: Secondly, Mr. Chairman, I want to know if Professor Mutua is a Delegate.
Hon. Delegate Wilfred Ole Kina: I think that was ruled yesterday.
Hon. Delegate Mkawerweren: It is not here, Mr. Chairman, and prove to me if it is in this book.
Hon. Delegate Wilfred Ole Kina: What is in what book?
Hon. Delegate Mkawerweren: The list of the Delegates. If Prof. Mutua’s name is in the list of Delegates.
An Honourable Delegate: He is.
Hon. Delegate Mkawerweren: And if he is not, it is wrong to actually write yesterday’s statement in this Conference.
Hon. Delegate Wilfred Ole Kina: Well I think we will sort out that with the Secretariat. Please let us have the presentations now.
Hon. Delegate Mkawerweren: In fact, Mr. Chairman, we need to know these things. They are right here. There are strangers here; he is an Observer. And you are telling me “let us proceed”. What criteria are you using Mr. Chairman, can we know if Prof. Mutua is a Delegate in this Conference?
Hon. Delegate Wilfred Ole Kina: Honourable Delegate, I am authoritatively informed that Prof. Mutua is a Delegate. Uproar from Honourable Delegates. Okay let us proceed.
Hon. Delegate Mkawerweren: Mr. Chairman, can I ask if Prof Mutua is a Delegate?
Hon. Delegate Norman Nyaga: Thank you. Thank you very much indeed. Since the Chair has ruled we can only take it that that is the correct position. May I now take up this opportunity and introduce to you, Delegate number 553, Dr. Mohamed Swazuri and Delegate number 551, Professor Okoth Ogendo. The two presenters will be able to take us through this subject of Land and Property. Professor Okoth Ogendo.
Com. Okoth Ogendo: Thank you, Mr. Chairman, I am Delegate number 551. I have not spoken at this Conference and therefore I would plead with the Delegates to hear me in silence as I make my ‘maiden’ speech.
Mr. Chairman, what I am going to do first is to take Delegates through the terrain that has led the Commission to make the recommendations that it has made. Dr. Swazuri will present the report of the Commission and then I will discuss the Draft Bill. Let me start by reminding the Delegates, that you have a historic opportunity, and a historic responsibility. You are here to take this process through perhaps the most crucial stage that we have been so far. Therefore, you as Delegates and all of us as Delegates must ensure that the mandate which the Review Act has placed upon you, which is to discuss, debate, amend and finally adopt the Draft Bill is fully executed. It is important therefore that when this Conference adjourns on or about June 6th, this Conference must determine precisely when it is going to sit again. (Clapping from Honourable Delegates.) I think it will be important that the Commission should be guided very clearly by this Conference.
The process of Constitution making that we are engaged in, in this country is extremely unique. Constitutions are not made this way in Africa. Constitutions are not made in peace times, Constitutions are not made when there is a broad consensus across the country. Constitutions are not made in Africa when the political establishment is by and large ready for change. Therefore what we are doing is important and we must seize that moment and complete it. This far in the debate, we have been asking three questions, from April 28th up to this moment we have been asking three questions.
The first question we ask is how do we reconstitute the Kenyan State? We went through the Preamble, Chapter 1 on the sovereignty of the people. Chapter 2 on the Republic and Chapter 3 on the national values upon which the Republic will be based.
We then addressed the second question, which was how do we constitute the citizenry of this country and define and guarantee their basic rights. That took us to Chapter 4 on citizenship and Chapter 5 on the Bill of Rights.
The third question that we have been asking and which has taken us a considerable amount of time, is the question of how we define power, how we regulate power and how we exercise and share power in the new dispensation that we are bringing. That took us to Chapter 6 on Representation, Chapter 7 on the Legislature, Chapter 8 on the Executive, Chapter 9 on the Judiciary and Chapter 10 on Devolution.
That is where we are now. To complete this exercise, we will need to answer another four questions.
The first of those four questions will be: How the public resources of this country should be held, controlled and managed. That will take us to Chapter 11 on Land, Chapter 12 on the Environment and Chapter 13 on Public Finance.
The second question we are yet to answer is how will the security and the integrity of the state be protected and guaranteed, and that will take us to Chapter 14 on the Public Service, Chapter 15 on Defence and National Security, Chapter 16 on Leadership and Integrity and Chapter 17 on Constitutional Commissions.
We will then ask the third question. How shall be handle future alterations, changes or adjustments to the Constitution once we make it. That will take us to Chapter 18 on Amendments, Chapter 19 on interpretation.
The final question we must ask is that once the Constitution is enacted, how will the Constitution come into effect? That will take us to Chapter 20 on Transition and to schedule 6 and 8. When we get there, we will have been ready as a Conference to turn over the product of this meeting to Parliament.
I now want therefore to start the Debate on that group of four questions, which is on the issue of Public Resources of the State beginning with the question of Land. Mr. Chairman, let me start by drawing the attention of Delegates to the fact that in Sub-Saharan Africa, the Land question is the last colonial question, which must be resolved before Africa can be truly independent. I am calling it the last colonial question because of the history of imperial plunder that occurred in this Continent for nearly a century. In Southern Africa for example, that plunder came through war and conquest and murder by the Boers and the British colonialists in Southern Africa. In other parts of English speaking Africa, the British simply assumed that Land was ownerless. In German colonies, the German government decreed that if you did not have documentary title to land, you did not own that land. Therefore only people who had documentary title were allowed to establish ownership, and of course obviously, it was very difficult to come up with documents at that time. The French used Napoleonic laws, again to declare land in Africa ownerless. Therefore what I am saying is that throughout Africa, land was presumed to be without an owner and therefore was appropriated very quickly and totally by imperial powers.
They consolidated their power through imperial law and imperial force. You will know that in Southern Africa, the process of imperial control was so complete that as I speak to you today, a full 83% of all land in South Africa was reserved and is still controlled by the descendants of the Boers and the English. The more than 40 million Africans in Southern Africa were camped into 717% of what imperial authorities called the Bantustans or the native reserve.
In Swaziland for example, when the Boers came and asked for concessions, King Mswati thought he was entering into an agreement, a contract to provide grazing land for the Boers. When he challenged them, they told him that he had signed an agreement to transfer title to Swaziland and to the Boers. When the British took over, the British called in a surveyor and asked the surveyor to tell them how much land Mswati had given out. The surveyor brought a cartographer who drew a map of the concessions that had been made. When that map was super-imposed on Swaziland, it was found that Mswati is supposed to have ceded more than 100% of his country.
In Zimbabwe, now Rhodesia, Cecil John Rhodes applied for title, for the whole country as one single piece of land. Today, as I speak to you, 77% of Zimbabwe is owned by the descendants of Cecil John Rhodes, and the natives of Zimbabwe are cramped into native reserves in that the other 23% which they share with wildlife and game reserve.
In this country, we know the history, we have heard of the Maasai treaties and we also know that the British the first thing they did, was to declare the land from Kiu in Ukambani to Fort Tanan in Western Kenya as the White Highlands, and then started the process of export creation in this country. In the Coast, the history there indicates that the Miji-Kenda, were basically told that they did not own land. When one Miji-Kenda tried to sell land, and he was asked whom the land belonged to, and he said our land belongs to God, he was then told he could not sell that which he did not own, because the land had become part of the sovereignty of Queen Victoria. And how did that happen? We ask or they asked.
On December 13, 1899, the Attorney General and Solicitor General of the United Kingdom delivered a judgement that declared that in the East African Protectorate now called the Mainland Kenya, all land was ownerless and had therefore by way of conquest and plunder, been vested in the British Government. The result was not only that land was reserved as an estate for Her Majesty, but also that indigenous people lost all title to land. That was the case in the Coastal strip, it was the case in Central Kenya. I might inform you that there was one Wainaina wa Gathomo with his brother, Muritu Waindagara who went to court over land where Kabete now stands. When they went to court the Attorney General of the Protectorate intervened on grounds that these two indigenous people did not in fact own that land and the land belonged to Queen Victoria. The judgement of the court, which was delivered by the Chief Justice then, said that because Her Imperial Majesty had authorized the Commissioner to pass a Crown Land Ordinance in 1915, from that point onwards, no native in Kenya held title to land. The 1915 Crown Lands Ordinance is still in our books as the Government Land’s Act.
In Nandi, we are aware of the story of Koitalel arap Samoei and the plunder of land in that area. We are aware of the restriction of land west of the Nandi and indeed when the Carter Commission went to Nyanza, they told the people there, that their land belonged to Her Majesty. And one old man asked Carter, this Majesty that you say owns land, whose son is he? Where is his village so that we can establish whether or not he owns land? Carter wrote in his report, that the Luos do not understand the distinction between politics and property. (Laugher from the Hon. Delegates).
The Maasais story is perhaps one of the saddest, but it is also a story that has been replicated in other parts of Africa. The Maasai signed a treaty in 1904; they signed another one in 1911. When the terms of that treaty were violated, the Maasai went to court; the English court said firstly, that no native could sue the King of England in his own court. Secondly, that the Maasai were not as sovereign and therefore could not sign any treaties. Then the Maasai said, but it was a contract, which required a gentleman’s agreement, it was an MOU if you like. And they said Her Majesty does not deal with MOUs and they dismissed the case out of hand. That had happened to Lobengula in Zimbabwe, it had happened to Suboza in Swaziland, it had happened elsewhere. In other words the coloncial courts were used to enforce Imperial plunder. We know of the closed Districts of NFB now North Eastern Province and Turkana and so on, and of course we are aware of the dislocation of the Ogiek, the Sengwer etc.
What I am saying this far, is that the land in question for this country is one that has touched all communities and therefore is one that has to be dealt with, decisively and properly. The result of course is that the law of this country now says that land belongs to the State and not to the people. We have a multiplicity of land laws, so complex that even the best Lawyer, will find himself or herself lost in it. We have refused to recognize communities as juridical persons. In fact the British always argued that natives could never own land because they are not juridical persons that is why the British invented the so-called, the Trust Land Board and later in 1963, handed over that land to County Councils, because they could not accept that indigenous people were juridical entities that could hold land directly. That has left us with a problem, which I think this conference will be required to deal with. When independence came in 1963, the first thing that the British did in the Independence Act and Section 202 of the Independence Constitution which you have, was to confirm all titles granted by the British Government up to the 1st of June, 1963. And therefore, what we have lived with for the last 40 years was basically a Constitution that said, that it does not matter whether the British were right or wrong, the titles that they had given are good and must continue.
In Zimbabwe for example, the British had the same cross, but there they went further and said you may not change the Constitution for another 10 years. So, in 1990 when Robert Mugabe tried to change the Constitution the matter exploded and you know what the consequences in Zimbabwe have been. In Tanzania, the same colonial laws continue. Therefore, up to this point we are saying that the land question has never really been resolved because the constitutional framework we have had has maintained the colonial status quo. It is for this reason that in Africa, the two most important matters in the political agenda are Constitutional Reform and Land Reform. There is not a single country in this region that has not gone through the process of Land Reform, South Africa, Uganda, Tanzania, Zambia, Rwanda, Malawi, Zimbabwe and all of them, are asking the question, how does the Constitution deal with the issue of land, land being the fundamental resource for all people? The fact that therefore, all colonial wrongs, if there were any, need to be corrected in the Constitution, is the question that I think we must as Delegates address within the constitutional framework.
I therefore want to hand over to Delegate number 553 my colleague, Dr. Swazuri, to take you through the manner in which the Commission has dealt with this issue in this report. Thank you Mr. Chairman.
Clapping from Honourable Delegates
Com. Mohamed Swazuri: Thank you Delegate 551. Thank you Mr. Chairman, fellow delegates, observers and other invited guests. I think Professor Ogendo has eloquently and very briefly given us the history of the land problem in Africa and in Kenya. I will briefly take you through the report, if you have it, it is starting on page 311, not necessarily in the order in which it has been written, but I will try to cover all the aspects of the report.
First of all I would like to agree with what Professor Ogendo has said, and concentrate on the effects of all those injustices that were done by the colonial rulers. One of them of course is the existence of many laws on land-some of which are incompatible, others which are antagonistic. We also have marginalisation of the indigenous and customary land management systems. Out of all that, we find some kind of confusion in the administration of land, given that we have never understood the implications of the so-called modern land laws that were brought in by foreign colonialists.
However, the importance of land as a national resource keeps on increasing as the population keeps on increasing also. Therefore, we find that land has become an explosive issue because all land users are competing for the same resource, which can never be increased, it can only be re-distributed. Now, the history of land in Kenya as it has already been said, is one of injustice, one where the customary land laws and the issue of indigenous management systems of land was disregarded or marginalized. When we went through the country to receive the views of Kenyans on the issue of land, we found quite a bagful of such problems, many of which were the results or implications of what Professor Ogendo has just said.
If you look at page 318, that is where we have listed some of the problems of land in this country, starting from dispossession of communities by modern law, and this one is all over the country, and Professor Ogendo has mentioned the Nandi, the Maasai and the Coast people. We have also similar problems even in the North Eastern Province. We have a problem of allocation of land from above. When we got independence, land laws were put in place most of which borrowed from what was already there and the political elite or the rich of that era now took over the distribution of land and we have this concept of allocation of land from higher powers. Then we have the problem of double allocation of land, many people complained of double titles to the same piece of land, therefore leading to even further conflict in a situation where there already exist land conflicts.
Many people complained of double title deed to the same piece of land, therefore leading to even further conflict in a situation where there are already these land conflicts There is a problem of misuse of Political powers, Administrative powers to further political interest, ethnic interest and the so called land grabbing problems. It is a problem that is affecting all parts of the country and all systems or types of land under this country.
There was also a problem of corruption in the mechanisms of allocation, distribution and management of land. Corruption stemming from officers to the purchasers, to the sellers, to the surveyors and to every other person who is involved in those processes. And people complained of marginalisation of the poor, those ones who do not have a muscle to stand up for their right in land especially in the rural areas and in the urban slums of this country.
That resulted in concentration of land in only a few hands with the majority of people especially in urban areas not having access to land.
We also were told of increasing privatization of land, individualization of tenure because of the theory that was advanced to that communities who own land but may not be able to develop that land, but individuals of those communities once given title to land can develop, because they can get loans and so on and so forth. Evidence from all of Africa have shown that theory does not work as envisaged.
Then we have communities or individuals in communities who have been made poor because of land disposition and they have no other way of dealing with the issue and therefore have become squatters.
We are also told of environmental degradation of land. We have also learnt that most of the land in this country over 70% in what we can call marginal land, but even the land the 30% or so which is supposed to be fertile land is now under threat either because of poor systems of land management or because of over use.
We were also told of catchments areas or land that have forests, which are very important for the generation of rain in this country being degazzetted and being allocated to individuals at the expense of the communities. These have been a big problem and it is still going on.
Then we have the question of as Prof. Ogendo has mentioned multiplicity of regulations, laws and procedures for allocating, distributing and managing land. Most of which are not understood, most of which are incomplete. If you are trying to attend to follow those regulations or laws, there is the element of cost, which comes in. It is very, very expensive to start a process of land alienation or distribution from the time you start up to the end, you must have resources.
Followed by that is the element of time, people complain that getting access to documents pertaining to land takes a long time, a very long time. And those offices that deal with land problems are located far from the people. The people want these offices to be near them so that they can cut on cost.
Followed by that is the question of conflict that arises out of all these processes of land management, distribution and alienation. That when there are disputes over land, the disputes takes a very, very long time without being sorted out. It is common to have problems of land in a Court of Law for more than ten years, for more than twenty years and once the Principal Litigant dies the problem is still further compounded by the people who inherit that problem.
We were also told of lack of proper State machinery or organs to deal with these land problems. And the Commissioner of Land, the office of the Commissioner of Land which is supposed to be at the forefront of spearheading these reforms has been accused of being the main perpetrator of these problem.
Then we have the question of unplanned land is or unplanned uses over land. Whether those areas were planned or were not planned, there is a tendency to misuse or to impose uses which were not planned for in those areas and therefore we now have a lot of incompatible land uses both in urban and rural areas.
Then we have the question of Foreigners, many people complained that while many Kenyans are unable to gain access to land, there are quite a number of Foreigners who own large amount of land. This is a problem which everybody or many people complained of and therefore they complained of being denied room to develop in this country.
Then, we also have a problem of absentee landlords, just to follow up the issue of Foreigners. We have a question of absentee landlords, people who own a vast amount of land which are not utilized, or under utilized, they do not reside here, they are not here. The lands are just there and anybody who settles on those lands is branded as squatter.
Finally, we were also told of the existence of large chunks of land, correctly owned by Kenyans but which are being under utilized or not used at all. Yet there are other people who do not even have enough land for them to develop. Therefore out of these, that is why people were telling us they need a sealing on the amount of land to be owned or tax on under utilized land.
These are just a few of the issues that we received from the people, in addition to the question of inheritance of land rights, as far as spouses are concerned especially as far as women are concerned. In some areas it was even taboo to talk about inheriting land. In other areas people were acceptable to that idea but it is still a major problem that needs to be sorted which our Laws have not managed to sort out properly.
Then we have issue of pastoral communities, where large amount of land used communally but not owned by anybody are seen to be ownerless, as Prof. Ogendo had said.

Most of these lands are potential lands but people have no resources of making maximum use of them. We need to come up with policies that will enable us to improve the quality of that land.

When we come to land administration, our major problem there or the issue that we saw of significance there is the lack of transparent and effective institutions to deal with Public and Customary land.
Many of the institutions, which are there, have a lot of problems which if the people complained of and many suggested that they either have to be reformed or done away with altogether.
Out of these problems and where we started this land problem as Prof. Ogendo has said is a problem that cannot be sorted be in one day, because it is a problem that involves everybody, everybody has a stake and in fact one of the problems that makes it difficult to solve the land issue is because everybody believes he or she is an expert on land matters, because everybody uses land, everybody is on land anyway.
Therefore we have come up with principle, which the people told us about and these principles are the ones that now have led us to drafting of the bill as it is.
The first principle that we agreed to put down is that, land should be accessible to all the Peoples of Kenya. That the State should have land, should own land, manage land but the people of Kenya however defined, should be a principle focus of distribution of land.
We also agreed with the principle that we have to divide land systems into three; State lands, Private land and Public or Community land.
We also agreed that we need a new land policy for our country and that has led to the insistence on creation of a permanent land Commission.
We have also come up with a principle that land which has been correctly acquired should be protected. And that public land will be governed by all Communities as defined by legislation.
We have also agreed with the principle that, the State shall have a right to compulsorily acquire land where there is basic need. There has been a complain that sometimes land is compulsorily acquired for a reason given but that reason is not actually beneficial to the country or to the people on the ground.
We have also come with a principle that we should study all the past land injustices and find out how to either compensate or to resolve those land issues so that these problems can be sorted out once and for all. Even if it is not now, but can be sorted out even in the near future so that people do not keep on pointing fingers at others.
At the moment the current Constitution has only one or two provisions to deal with land and therefore we are now proposing that this issue be dealt with very firmly and that is why we have given a lot of articles on the land problem.
I conclude by saying that, it is our prayer that we may not be able to solve this problem today because the nature of land, is such that its solution or processes of dealing with land takes a long time. But we believe that as Delegates we shall lay a foundation to resolve this land problem in the near future. Thank you very much.
Com. Prof. Okoth Ogendo: Chairman, let me now take the Delegates through the specific Provisions in the Draft Constitution relating to Land but let us start by indicating to Delegates the present Constitution says very little about land. The copy of the Independent Constitution, which you have, has a Chapter 12, which was a very comprehensive Chapter on the question of land. That Chapter 12 was repealed with a result that what you now have is section 75 of the present Constitution which basically protect property of any description. It treats land, in the same way as you treat your necktie or your headgear. It is a property that is all and it says basically that property however acquired, whether you got it by plunder, fraud or whatever, once it is defined in the law as property, it will be protected.
There is Chapter (9) in the Constitution, which is on Trust Land, but let me remind you that Trust Land is a category, which the Constitution think will disappear. It will disappear through the process of adjudication, consolidation, and registration and therefore Chapter (9), does not protect Trust Land. It basically curves it out for purposes of annihilation and therefore, the present Constitution is Anti Land Document. What we have done in the Draft and we had a lot of debate on this matter, was to agree on what it is that ought to go into the Constitution and what should not go into the Constitution.
We are also aware as a Commission, that there was a Commission of enquiry into the Land Laws System of Kenya, which was chaired by Honourable Charles Njonjo which was given extremely comprehensive terms of reference including looking at the Constitutional implication of the Land question. What we did therefore, was to present in the Draft a design, which is confirmed primarily, with the need to entrench general principles and values in the Constitution and the need to leave many specific aspects of the Land question to Acts of Parliament and also to deal with transitional issues that arises from the history of Land expropriation in this country.
The original Draft of the Constitution/the zero Draft of the Constitution had a much longer Chapter and there were a lot of details in there. Eventually the Commission, decided that we wanted to stay at the level of general principles, and what we have done therefore, is to provide first of all in Article 232 of the Draft, for firstly, the need for the definition and periodical review of Land Policy. We think that the State, should be under an obligation, to define and to refine and review a Land Policy for the country and that Policy, will deal among other things with issues of equitable access to land, security of land rights, and sustainable and productive management of land. Transparent and cost effective administration of land, soil conversation and protection of ecologically sensitive areas and socially acceptable management and resolution of land disputes. There of course a lot of questions that a Land Policy might deal with and let me add that in this regions alone, virtually every country except Uganda now, has a Land Policy and Njonjo report has devoted 90% of what it has reported on the question of Land Policy.
Article 233, deals with the question of ownership and we have put in there a fundamental departure to the present Legal System. At the moment land in this country either belongs to the Government or to the County Council. Let me explain that there are many of us, who think that there are free holders, but the free Hold title you have, is Title granted by the Government and the respect of it is that the Government has the refectionary Title. If you try to surrender you Free hold Title, the Commissioner of Lands will tell you that you can only get a leasehold interest. That Land belongs to the Government in precisely the same way as an earlier allotted Government Plan.
The rest of the land, is what used to be called the Native Reserves which are now vested in the County Council, and therefore we are saying in Article 233, that all land in Kenya belong to the people of Kenya, and the people of Kenya may hold it as Communities collectively or as individuals and therefore we are saying that a radical Title to land, should no longer vest in the Government but should vest directly in the people of this country, and we are saying that subject to what follows next, no person other than a citizen of Kenya, should have the right to acquire any interest in land in this country.
People think that when we do that, we are going to be scaring investors who will need Titled Land but let me remind you that throughout this region now, that is the position. If you are not a citizen, you can only have Leasehold Title. The Uganda Constitution of 1995 makes it clear that only a Ugandan citizen, can hold Title that goes beyond the Leasehold interest. In Tanzania, nobody has ever had the rights to hold more than a 99-year right of occupancy and throughout the region the tendency now is to say Land belongs to the people and the people are the citizens of that country not just anybody who comes to acquire Title to Land.
In Article 234, we are talking about classification of land and we are saying that because land belongs to the people and may be held by communities, individuals, or collectively there will be three categories of land the first being Public Land, and we are saying Public Land because at the moment, what we are calling Government Land is not in law Public Land. It is Land which is Private to the Government and as we quarrel about land grabbing, let us remember that the law makes it legal to grab land through the Commissioner of Lands process because that land is Land Private to the Government rather than Public Land and we want to make it clear in this particular Provision that such land will henceforth be designated as Public Land, not land which the Government can use and dispose off as it wishes.
We are also saying that land, which we are now calling Trust Land, is Community Land and should be held directly by Community and Provision would be made for the modalities through which Communities can hold Land.
Then finally, we are saying that Private Land should remain Private Land and we have defined the categories of land that are to be designated as Private Land and they will be protected.
Article 235, is talking about tenure, the modalities through which land is to be held and it is providing that Public Land, is the collective property of the present and the future generations of Kenyans and must vest in and be held by the National Land Commission in Trust for the people. Now, we have found that if you simply say that Public Land is held in trust for the people, the Trustee very easily become the beneficiary and again we have found an abuse of the trust every where. In Malawi for example, the Land Law says that all land belongs to the people of Malawi but is held by the President of Malawi in trust for the people of Malawi.
Now, I have worked in Malawi and I know that what the President of Malawi, the former President did, was to use his positions of trust to allocate large part of land for people who wanted to grow tobacco and therefore, people lost land through the trusteeship system. We are saying that a Law must be in place that certifies exactly how the Land Commission will hold and exercise that trust on behalf of the people. Community Land, we are saying must vest in and be held by communities which will be identified on the basis of ethnicity, culture, or community interest and again they are precedents in Africa, on how communities can define themselves and be converted into juridical persons for first process of holding land.
We are now saying that nobody should ever say for example, that the Sengwer cannot hold land directly as a community. There will be mechanism for enabling that to happen and community land therefore, shall not be disposed off otherwise that in accordance with terms of law defining the rights and responsibilities of those communities. We are also saying that Private Land must vest in and be held by individuals or other legal persons defined by law and in accordance with

legislation dealing with that matter, and we have indicated that within two years of the coming into force of this Constitution, Parliament will enact legislation and will certify what that legislation will contain to ensure, that the Kenya Provisions of the Draft are indeed implemented.

We are saying in Article 236, that property lawfully acquired, will remain protected under the Constitution and therefore we are putting to rest the argument that says that you can steal property and it will be protected by the Constitution, we are saying that only property which is lawfully acquired will hence forth be protected by the Constitution.
Article 237, establishes a National Land Commission, the responsibility of the Commission is first of all to hold and administer Public Land and secondly, to provide a mechanism for the general administrator of land in the country and therefore, we are going away from the situation where the Government directly administers land and putting it in an autonomous Commission that will exercise that power.
We have said in Article 238, that when we talk about land, we are not just talking about the soil but we are also talking about subterranean wealth below the soil. In other words, the Provision of this Chapter, apply to mineral as well that of course is an issue which will need further debate as to whether the communities that own land in the areas where the Tiomin mining is about to start, should not be regarded as the owner of that mineral rather then the state because the position at the moment is that you own the soil, the state owns subterranean wealth and the air space.

Now there are a number of issues which I think will remain unresolved and which I want to pass on to you for debate and those issues include firstly:

  • Whether and how past land grievances should be addressed.

  • The issues of ownership of mineral even though we have provided that minerals become part of the land that is an issue, which will require further debate.

  • The scope of the regular trade power of the state and local authority particularly in the control and sustainable management of land.

  • The relationship between the proposed Land Commission and the unit of Devolution of Power is one again that will require further debate.

  • Security of tenure for non-citizens may be an issue that you may further want to discuss but as I have indicated the trend throughout the region, is that non-citizens can only obtain Leasehold rather Freehold Titles.

  • Finally the modalities, through which communities may be recognized as juridical entities, will require further debate, and as I have indicated there are numerous precedents in Africa on how communities can become legal persona for purposes of holding land directly.

That, fellow Delegates is what the Commission offers you for debate. Thank you very much.

Clapping by the Honourable Delegates.
Hon. Delegate Norman Nyaga: To the two Presenters thank you very much indeed for the beautiful presentation that you have made to us. Now time has come for us to think about the presentations that have been given to us by the two Honourable Commissioners who have been very able to take us through and we will take a 20 minute break in which we will have some food for thought as we come back at ten past eleven O’clock. Let us be here sharp at ten past, so that we can go to this subject. Thank you.
Hon. Delegate Ole Kina: Now I ask my Co-chair Honourable Nyaga to begin this session.
Hon. Delegate Norman Nyaga: Welcome back to the session and as we had agreed earlier on, we would like to follow the same procedure that had been followed before. The only deference we said we were going to do this morning was that, when we get the first person to speak, we shall ask the next section to lift their cards so that we are able to check that against our records that we have so that we are able to move faster.
We shall begin off with this side, and we want to begin off with a person representing the professional Group, and I shall call upon 483. But before doing so, I recognize a Point of Order from Honourable Delegate number 538.
Hon. Delegate Samuel Arap Nge’ny: Point of order, Mr. Chairman.
Hon. Delegate Norman Nyaga: Would you hold on please? We are waiting for a Point of Order from there.
Hon. Delegate Samuel K. Arap Nge’ny: Thank you, Mr. Chairman. Very reluctantly my number is 538 Samuel Arap Nge’ny. I have arose on a Point of Order which affects me because you will recall yesterday I rose on a Point of Order and this morning some Honourable Delegate from Marakwet referred to me. But I want to disclaim the name that he used to refer to me i.e Kipng’eno and to tell the whole world my full names are Samuel Kipyebey Arap Nge’ny not the other one, because the other one has a bad history.
Laugther from Honourable Delegates
Hon. Delegate Norman Nyaga: Thank you. Thank you very much indeed and the former speaker. Can we now have Delegate number 483.
Hon. Delegate Saleh Faad Yahya: Thank you very much for giving me this opportunity.
Hon. Delegate Norman Nyaga: Order please, Order please. Shall we give Honourable Delegate 483 time to be heard and in the mean time as he makes his contribution let us have placards out for the next row.
Hon. Delegate Saleh Faad Yahya: My name is Saleh Faad Yahya Honourable Delegate 483 I am representing the professionals. I would like to start by thanking and congratulating the two Commissioners, Commissioner Okoth Ogendo and Commissioner Swazuri the leading scholars when it comes to land in this country, and we are very fortunate to have them with us. We should take full advantage of their wisdom and their experience.
Having said that, I think we have been given by the Commission adequate guidance and framework for further action. So, generally as professionals we support the basic principles and direction that we have been given. But I do look forward to the debate we are going to have at the committee stage because that is where we can go into specifics and really analyse each section. In the mean time, there are some issues to be resolved for instance, number one, how do we go about the process of restitution? A lot of people have been dispossessed, they have been robbed of their lands. For example in Coast Province a whole village can wake up one morning and find somebody coming in and saying, “get out this is my land. I have the title deed from Nairobi”. Now that process has occurred not only in the Coast Province but also in the Rift Valley and other places and it is a very difficult processes that we need to look into.
Secondly, how are we going to defend our lands from the process of globalization? The WTO has ruled that anybody can invest anywhere in the world, which means poor the people will be dispossessed and impoverished by investors sitting in London, Washington and Berlin. There is multilateral agreement to invest which is coming into force very, very soon and that will open up our market. In fact we are deluding ourselves that we are making our policies here, the policies will be made in Washington, in London and elsewhere - that is the process that is going on through out the world.
Thirdly, the question of policy formation and legislation, the document proposes two years. Now is two years not too long? This process is (inaudible), people are restless they want change tomorrow; it must be done within six months and that is the timetable we would like to see. Now the Land Commission, how will it work? The Land Commissions before in other countries - Ghana had a Land Commission in 1980’s it worked moderately well. In our case we have to make sure that it is adequately staffed, it is representative; it does its work properly.
When it comes to planning, we have lost the planning ethos. The Kenya Institute of Planners are very worried that planning as a culture has been lost altogether. It is mentioned peripherally in the document, but I think we need to look into it in great detail.
Finally Mr. Chairman, the land market is almost collapsed because of dual titles. The courts have colluded with landlords and therefore the banks can’t recover their money and so on and so forth. We must find ways of reviving land markets because it is through the land markets that the whole financial market in this country works. Thank you very much Mr. Chairman.
Hon. Delegate Norman Nyaga: Thank you very much indeed Honourable Delegate. I now recognize a person who has never spoken before and has his placard up 597, representing Political Parties.
Hon. Delegate Moses M. Wekesa: Thank you Chairman for this golden opportunity, to speak on this important matter of our Constitution. My name is Moses M. Wekesa; I am representing the Political Parties.

Hon. Delegate Norman Nyaga: Just before you speak Honourable Delegate may I ask the next section to lift up their placards so that we can this section here, section 07. Whenever we have a person talking we would like the next section to lift up their placards so that we are able to check it off against our list. Honourable Delegate you can continue.
Hon. Delegate Moses M. Wekesa: I will go directly to my point which is protection of property in land. That is Article 236 (2) where it says, “subject to this Constitution, the state has the power to take possession of or acquire any right or interest in land where the following conditions are satisfied –
“(C) Provision is made by a law applicable to that acquisition or taking of the possession for the prompt payment of full compensation prior to occupation of such land”. I am talking as a victim of this particular clause: in a situation where by one good morning we were waken up by a bulldozer and then we were told, “you are being given two hours to evacuate your property since your part of land has to be used for the construction of a bus park and a market”.
I feel just saying “prompt payment of full compensation prior to occupation of private land by the state or local government” is not enough it is too flat. Personally being a victim of this particular clause, I feel we have to be specific and particular so that some people don’t take advantage of others. It were better if it read “provision is made by a law applicable to that acquisition or taking of possession for the prompt payment of full compensation of exact market value of land and developments there in at the exact evaluation by an approved valuer, if need be, at that particular time”. Thank you.
Hon. Delegate Norman Nyaga: Thank you Honourable Delegate. Row number 07 we are looking for a representative from District Representation. Let me also take this opportunity to assure those who did not give me an opportunity as I sat here that, it shall not be an eye for an eye. But I do recognize Honourable Delegate number 332, who has never spoken.
Hon. Delegate Nathaniel K. Tum: Thank you, Mr. Chairman. I think you are a good neighbour and I must say that it was very difficult to catch of your brother but now I am sure I have an opportunity. Mr. Chairman, I recognize and appreciate the fact that land ownership has been divided into three; Public land, Community land and Private land. My name is Doctor Tum a District Delegate from Transnzoia number 332.
These divisions or classification into three is a little clear indication of where we are heading. It is easier to classify those lands that come under Public Land. I think a definition and a clear indication of what comes under Public Land is very necessary so that peace and harmony can be brought about in this country. Because encroachment of Public Land affects all the other people that live within that area.
Community land, in my view needs a little bit more scrutiny because communities like Ogiek Segwer and others who have not been named have already lost their land or are in the process of losing their land. What happens to those lands, which have already been lost? Mr. Chairman this people still need to survive however few they are, and at least recognition of their existence and the need for them to have land is very, very important. When it comes to Private Land Mr. Chairman, it is very important to recognize and protect Private Land, because that is the engine of development that is where entrepreneurship in this country starts.
Any development by any person, who wants to invest, can only be done if he is guaranteed of long-term ownership without interruption. Mr. Chairman, this is cardinal and it is even cultural in us, it is inherent in our African culture to feel that you own certain property and nobody can “tunya” you at one time in whatever name.
Mr. Chairman, to be able to do this, I think it is difficult for us to entertain a lot of verbiage in defining Private Land. Of late we have been treated with a lot of verbiage, which really threatens those who genuinely own Private Land, and in these way it can discourage entrepreneurship it can discourage development in these lands. Kenya has come a long way with the old Constitution. I think it is important to recognize the fact that under the old Constitution and the laws that are in existence even as we speak now, those who have private ownership of land should be probably recognized and even as we go into the next stage that recognition should continue.
Mr. Chairman since we believe in devolution it is dangerous to put all the powers pertaining to policy making and allocation of land in the National Land Commission. That will be centralizing the issues of land again and giving power to a group of people nationally, whose intentions, whose narrowness we do not know, because we do not know who they will be. But human beings when they are given too much power they could abuse it.
Mr. Chairman, the interest of devolution which starts from sharing of power at the Presidential level, Prime minister level and bicameral level, I believe that we can create a Regional Land Commission. This Regional Land Commission will understand local regional land problems, they will know who a Segwer is, who Sabaot is, who a Pokomo is, at the local level and they will know the local problems of the people at that level. I say regional because Mr. Chairman, having listened to everybody talking in the last few weeks without having a chance to talk myself, I come to a quiet conclusion – thanks for your not giving me a chance to speak - that, it is viable to have regions rather than districts, because in terms of economics, in terms of management, a region is easier to manage.
The span of control by the central government of districts is too wide, it is uncontrollable. I still believe in Mai Weber’s theory of hierachical management. Believing in that, it is good to look at a country like Kenya as a unit, which is manageable, which is harmonious, which can flow in terms of legal, executive and judicial management. Mr. Chairman, That is my contribution for now I will honor the bell. Thank you.
Hon. Delegate Norman Nyaga: Thank you Hounourable Delegate 332, in the next row we are looking for a Member of Parliament. In this row and I recognize delegate number 147.

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