As presidential candidates Raila Odinga of Azimio la Umoja One Kenya Coalition Party and Deputy President William Ruto of the United Democratic Alliance search for a winning formula in the race for State House, they have picked one of the hardest nuts to crack: Historical land problems.
With previous general elections since the first multi-party elections in 1992 triggering ethnic tensions, there are emerging pockets of trouble where unresolved issues have dogged past administrations.
Addressing the historical land problems to the satisfaction of restless communities is set to become the next president’s poser.
Title deeds for squatters
Ten years ago, the Jubilee government had hoped to issue title deeds to all the squatters and the landless but, as they leave office, the trouble hotspots remain in place.
For 50 years, three post-independence governments only issued five million title deeds. Although President Kenyatta has issued some six million titles to date, some problems remain.
Welcome to the Coast, the next flashpoint, where history has conspired against the landless.
The coastal land problem is tied to politics of the 10 mile strip (Mwambao), which was under the Sultan of Zanzibar and was governed as a protectorate by the British. With the Arabs and Swahili controlling the land, thanks to the flourishing slave trade, the colonial British government only allowed the Sultan’s subjects to own land at the coast.
This left the indigenous populations without land. They were converted to squatters through various legislations that only recognised Arabs, Swahili and White settlers.
Ever since, land ownership at the coast has been skewed against the locals and no political solution has been forthcoming.
Some 110 years ago, descendants of former Omani Arab slave dealers signed an agreement with the British government over the land they held at the coast, then measuring some 10,000 acres. In these lands, the Mazrui family, which once controlled Pemba and Mombasa, had subjected the locals to slavery as the trade flourished in the Indian Ocean. Under the 1912 pact, the “Mazrui people” were to get lawful ownership of all the land they held in Takaungu, Watamu, and Mtundia, to where they had retreated after they lost Fort Jesus.
In order to protect them in return for their loyalty, the colonial government allowed them to occupy vast swathes of coastal land, and which would later be protected from 1930s under the Mazrui Trust Land Act.
As such, the Mazrui became the only family whose land, now reduced to 3,000 acres, was protected by an Act of Parliament and was beyond the reach of subsequent administrations.
On these “Mazrui lands” are thousands of locals who have for ages lived as squatters and, for the government to settle the indigenous populations and give them title deeds, they have to negotiate and extinguish the titles held by the Mazrui, who are now a minority.
In 1965, the House of Representatives had agreed to repeal the Mazrui law but it seems that nothing happened until 1989 when the Mazrui Lands Trust (Repeal) Act was passed.
The High Court held on July 19, 2012 that the repeal was “unconstitutional, null and void” and that “all other lands vested” to the Mazrui was “to the exclusion of all other persons.”
Thus, the government could only buy the land and reallocate it to the squatters, but it will be seen as fighting a tiny minority group whereas much of the land is under some British expatriates and various local barons.
The Mazrui land saga is one of the many challenges that have faced successive governments on what to do with hundreds of thousands of squatters—and the absentee landlords who own thousands of acres at the coast of Kenya—and which has become a flashpoint as indigenous communities get jittery.
At independence, the government allowed politicians and politically-connected individuals to take over land that would have been used to settle the Mijikenda tribes.
This not only exacerbated the land problem in the former Coast Province but has also morphed into a full-blown crisis as the squatter problem continues.
It has, moreover, generated new types of disputes over ownership and new political demands from separatist groups including the Mombasa Republican Council.
Mr Odinga says that, if he wins, he will appoint Mombasa Governor Ali Hassan Joho as his Lands Cabinet Secretary in the hope that he can solve the puzzle. DP Ruto says he will buy one million acres of private land and allocate it to squatters, the way Mwai Kibaki did with the controversial Waitiki land .
Other hotspots are in Laikipia County, where unresolved water and pasture rights have become a new frontier of trouble.
As the last frontier of colonial Kenya, Laikipia still retains the settlement mannerism of white highlands where about 40 individuals own about 40 per cent of the area and control the best grazing lands, rivers and streams, which are now in private properties.
During drought, the pastoralists—remnants of indigenous communities who lost the land to White settlers—are always at loggerheads with the landowners, which is a clash between indigenous land rights and private ownership.
Commercial ranches or conservancies are fenced off and rarely provide migration routes for herders, who are confined to 13 group ranches that account for only 7.45 per cent of the land and in the drier northern parts of the county.
Demography significantly changed
Laikipia’s demography has significantly changed over the years but as large tracts of land remain in private hands—politicos either eager to get a piece of ranches or to do some gerrymandering—have also schemed some of the violent clashes witnessed in Laikipia.
However, the main problem has been that large-scale ranches, agriculture and protected areas have taken away or blocked access to remaining historical grazing lands and water points.
Of late, the conflict in Laikipia has turned lethal and armed bandits had last year fought back attempts by the General Service Unit to drive them out of the expansive 100,000 acre Laikipia Nature Conservancy, which is owned by an expatriate, Kuki Gallman .
In the Rift Valley, the fate of tea farms owned by multinationals in Kericho, Nandi and Bomet counties (and Nyamira in Nyanza) have been under political pressure to sell their shareholding to locals or have the land returned to the communities.
The farms, owned by James Finlay, Unilever, George Williamson and Sotik Highlands, are some of the largest tea estates in the country and had their leases converted to 99 years in line with The Constitution of Kenya, 2010.
Unilever has, according to Financial Times, sold its Kericho farms last year to Luxembourg’s CVC Capital Partners for €4.5 billion (Sh557.729 billion). This was after the other bidders pulled out “concerned that violence could flare up... after the country’s General Election which is set for August...”
This region was hit by post-election violence in 2007/2008, which was partly triggered by long-held animosity over land ownership in the Rift Valley.
There have been border rows between Muhoroni and Tinderet over land occupied by tea and sugarcane firms, and which was pre-colonial Nandi property.
A few years ago, local MP John Sambu remarked that, “robbery remains robbery unless corrected by law. The law should prevail so that the Nandi get back their land, which was given to the British under the 1902 Ordinance Act...we are asking this government to compensate the Nandi for the land around Tinderet which was snatched from Nandi.”
Over the years, discourse on land in Kenya has mainly involved the illegal and irregular allocation of public land especially in 1980s and 90s and the quest to address historical land injustices.
While two commissions of inquiry were formed to specifically look into land issues, neither the Njonjo Report nor the Ndung’u one have been acted upon.
The Ndung’u Report, for instance, found hundreds of cases in which public land was turned to private ownership. It estimated that some 200,000 illegal titles were created between 1962 and 2002, close to 98 per cent of them issued between 1986 and 2002.
While recovery of public land, as proposed in Ndung’u Report is possible, the same cannot be said of the lands that were sold either under the settlement programmes of the 1960s and 1970s, or via the land-buying schemes.
Still, these have caused tensions in the Rift Valley resulting in clashes between Kikuyu, Maasai, Kisii and Kalenjin communities.
DP Ruto has also threatened to carry out compulsory acquisition of the 75,000-acre Kedong Ranch and Rose Farm and revert their ownership to the Maasai community. Kedong Ranch—some 75,000 acres—has acquired renewed interest ever since relatives of President Kenyatta were named as some of the beneficiaries of the expansive land where the government intends to put up an industrial park and the base of the inland container depot.
In Nairobi, informal settlements on private lands have also become a new flashpoint, coupled with the troubled double allocations and corrupted schemes in Eastlands. The most significant of these is the expansive Embakasi Ranching land, which has become a nightmare for Lands officers. As politicians make their promises, the post-election focus will be on these flashpoints.
