Don’t spare Mavoko sellers, buyers

A person who knowingly participates in an illegal act cannot then turn around ask and for holy water when caught in the meat-grinder of the law.

This applies equally to those who should’ve known of the illegality before partaking in the crime. There’s another age-old rule in law – those with dirty hands can’t come to equity for relief. A criminal must be sanctioned no matter their station in life.

The Mavoko land saga has a simple story line. That story line is as old as the oldest profession. It’s a story of greed and love for money, which as the Bible tells us, is the root of all evil. The Mavoko land in question is owned by the Portland Cement Company.

But unscrupulous cartels in the government Lands office working in cahoots with landgrabbers and greedy, stupid, and reckless buyers conspired to sell and buy land that didn’t belong to them.

Co-conspirators

They did so in the face of huge billboards warning everyone not to do so because the land belonged to Portland Cement. Acting with impunity and arrogance, they went ahead to commit acts of brazen theft.

Another age-old rule of law is that a thief can’t pass a good title to a buyer. In the event of a reckoning, both will suffer the sanction of the law to restore the rightful owner to status quo ante.

That’s to say, the fraudulent seller faces criminal sanction while the greedy buyer goes home empty handed. This notwithstanding the investment the buyer has put in the property. That’s what has happened.

After the buyers built multi-shilling structures, including expensive homes on the Mavoko land. They were all demolished as they looked on. Up in smoke. Many tears and stories of “innocence” abound. I watched the drama from a safe distance. It was time for their comeuppance.

There’s perhaps no sordid sector of the economy than the selling and buying of land in Kenya. It all started with White settler land grabbers who took Kenya with impunity. Upon flag independence, Mzee Jomo Kenyatta led the new black elite in a spree of land-grabbing.

I once heard from a prominent lawyer how the Burning Spear himself led by example. Mzee Kenyatta would be on one of his tours around the country. Suddenly Old Jomo would see a succulent piece of land. Mouth watering, he would order the entourage to stop. He would alight and pointing to the expanse of the land before him, “order” the late Charles Njonjo, his AG, to title the land to him, damn the owner.

Another story is told of how Mzee chastised Bildad Kaggia, his fellow Kapenguria detainee, for “doing nothing” for himself. He reportedly asked Mr Kaggia, the Mau Mau advocate and left-leaning freedom fighter, “what have you done for yourself?”

He contrasted Mr Kaggia with Paul Ngei, also a fellow Kapenguria 7 Mau Mau detainee, who had reportedly “done very well” for himself after they formed the first black government. Stealing wasn’t the issue, Mzee reportedly said, just don’t get caught. This morality, nay, immorality of the First Republic has defined Kenya to date.

Mzee’s successor, Daniel arap Moi and the Kanu-state elite, took land grabbing to new heights. Mavoko is the result of that despicable legacy. But it’s the tip of a huge iceberg.

Kenya is the land of impunity. Officially sanctioned impunity. I was shocked to hear and read comments from senior leaders about the Mavoko saga. Some leaders from the region immediately “tribalised” the demolitions. Why are you “finishing Kambas” they cried, although it wasn’t clear the buyers and sellers were mostly from that community. This is why fighting corruption is a losing battle unless the government charts a new course.

Every time a criminal is caught – even in broad daylight – they rush to hide under the tribe’s skirt. And the “tribal” elite sing in unison as though they are all thieves, that their sons and daughters shouldn’t be targeted. This cynicism has incubated a culture of corruption that runs deeply in the bone marrow of the people.

Let me be clear. The war on corruption can be weaponised against opponents. But that doesn’t mean that we should never go after corruption suspects and their cartels. The government – both country and central – are the head of the land multi-headed hydra cartels. But in Mavoko, as in virtually all cases, the buyers and the sellers are part and parcel of the cartel ecosystem. Virtually, none is innocent.

Buyers should know that if a deal is too good to be true, then it usually is. Spare none in Mavoko or elsewhere.

- Makau Mutua is SUNY Distinguished Professor and Margaret W. Wong Professor at Buffalo Law School, The State University of New York. @makaumutua.