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      Reform and counter-reform in Kenya's land governance Translated title: La politique de la réforme de la gouvernance du foncier au Kenya

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            ABSTRACT

            Fashioned within conquest, Kenya’s current system of land governance was designed to facilitate land expropriation for the few and powerful. Post-colonial elites never fundamentally reformed this system of concentrated legal and administrative power over land and continue to benefit from it. This article explores both recent efforts at land governance reform and the numerous ways that counter-reform resistance is occurring and currently gaining the upper hand. The authors argue that powerful networks of beneficiaries create a strong system of control and exclusion around land, producing a path dependency against reform. The challenge for reformers is to overcome these powerful forces arrayed against change with creative mobilisation strategies, leveraging not only the 2010 Constitution and the courts but also public outrage and stronger civil society organisation. Overall, an important reform struggle in Kenya is just beginning, the outcome uncertain and the stakes for the country’s future very high.

            RÉSUMÉ

            Elaboré pendant la conquête coloniale, le système actuel de gouvernance de la propriété foncière au Kenya était conçu pour faciliter les expropriations au profit d’une petite et puissante oligarchie. Les élites postcoloniales n’ont jamais réformé en profondeur ce système de concentration des pouvoirs juridique et administratif dans le domaine foncier, et continuent d’en bénéficier. Cet article explore les efforts récents de réforme de la gouvernance du foncier ainsi que les nombreuses voies empruntées par la contre-réforme pour y résister, et grâce auxquelles elle tend actuellement à prendre le dessus. Les auteurs affirment que les puissants réseaux de bénéficiaires créent un système solide de contrôle et d’exclusion de l’accès à la terre, générant une dépendance historique ou une série d’« effets de cliquet » contrecarrant la réforme. Pour les réformateurs, l’enjeu est de surmonter ces forces puissantes, arc-boutées contre le changement, en mettant en œuvre des stratégies de mobilisation créatives, faisant appel non seulement à la Constitution de 2010 et aux cours de justice, mais encore s’appuyant sur l’indignation du public et sur une meilleure organisation de la société civile. Globalement, une importante lutte pour la réforme au Kenya ne fait que commencer ; son issue est incertaine, l’avenir du pays s’y joue.

            Main article text

            Introduction

            Apprehensions of social, economic and political mischief associated with Kenyan land history were a vital factor in the dynamics of land reform. This explains the concern to institute a public entity with a land-resource mandate, independent of the head of the central government. It also explains the desire to decentralize the land management system, and to establish checks-and-balances in that regard.

            (Supreme Court Advisory Opinion Reference No. 2 of 2014)

            Fashioned within British conquest of territory, Kenya’s land governance system was never meant to be inclusionary and equitable. The conquest government largely designed it to expropriate land for a politically powerful minority and to facilitate European settlement and colonial, capitalist development. ‘Social, economic and political mischief’ around land has led to layers of problematic allocations of land. This, in turn, has generated high levels of contestation around land (Kenyan Human Rights Commission 2000; Klopp 2001; Truth Justice and Reconciliation Commission 2013), and exclusion as reflected in an increasing and large Gini coefficient1 in land access in Kenya (World Bank 2008). Given that land inequality is often associated with poverty, political disempowerment, social division, violence and impeded economic growth, this represents a profoundly serious situation (Deininger 2003; Kahl 2006; Van den Brink et al. 2006; World Bank 2006).

            Politicisation of land was part of the large-scale violence that convulsed Kenya in 2007–08 leading to mass displacement, economic disruption and over a thousand deaths (Anderson and Lochery 2008; Boone 2012; Kanyinga 2009). This violent upheaval, however, created a ‘window of opportunity’ to implement land law and policy reform. These reforms include the Sessional Paper No. 3 of 2009 on National Land Policy, new constitutional provisions (Chapter 5, Constitution of Kenya 2010) and new laws around land registration and titles, protection of public lands and urban planning. These new policies and laws and the institutions created out of them reflect an ambitious attempt by civil society and government reformers to reorganise existing land governance to disperse power and bring land issues into a more open realm of ‘public reasoning’ (Sen 1999).

            In this article, we ask: what are the politics of Kenya’s land governance reforms and do they have the possibility of being transformative? Early assessments are pessimistic. Legal scholars point to the hurried, top-down and exclusive nature of the process around writing the new land laws and the contradictions in and problems with laws that came out of such a flawed process (Manji 2014, 2015; McAuslan 2013). Concern also exists around the way these reforms manifest themselves in local politics and decentralisation replicating old patterns of dispossession and accumulation (Boone et al. 2016). Finally, some argue from a historical perspective that, given the powerful, entrenched interests in Kenya, land policy and law reform is bound to be conservative (Van Arkadie 2016). In this article we present a brief, historically grounded political institutional analysis of Kenya’s present land governance system and the current struggle over its transformation. While scholarship on Kenya’s serious land problems is voluminous, little political economy analysis of Kenya’s current land reform process exists in part because it is so new, constantly changing and often focused on disputes over laws.

            We begin with a discussion of how historically produced bureaucratic and legal mechanisms have enabled and facilitated unaccountable land allocations and transactions from colonial times to the present. We then show how aspects of this historical institutional development have shaped current institutional land governance dynamics, privileging powerful networks of political brokers and beneficiaries. We argue that these networks tend to push the land governance system into a certain path dependency that does not favour reform. This is because networks that have benefited and continue to benefit from the status quo in the land governance system are in positions of power and actively work to undermine reforms that would hold them to account or reduce illegal and irregular access to land. However, by generating grievance and exclusionary material conditions, this system provokes efforts to subvert and transform the system (Onoma 2010). Pressures for change have emerged among a wide variety of societal actors who lose out in this system. We then analyse the state of current reforms produced by this political struggle and reveal the ways reformers are trying to change the rules of the game to disperse power over land and make it more accountable and how, in response, counter-reformers are using a variety of tactics to resist these changes. The outcome is far from certain but how this complex historical struggle unfolds will no doubt have wide-reaching implications for Kenya.

            Methodological note

            Studying the politics of Kenyan land governance can be challenging. Land issues are sensitive and subject to rumour (Osborn 2008). Reliable data and information are often deliberately made scarce. This situation is itself a product of the dynamics of land governance in Kenya that rely on opacity and manipulation as well as masking of information. However, Kenya’s policy and legal processes have opened up more recently in part because of legal requirements for public participation embedded in the 2010 Constitution and in part because of societal pressures for the government to do something to address land problems. This has led to investigative commissions that have generated some data and insight into the current situation (Republic of Kenya 2002, 2004). Further, parliamentary records, legal cases and the media have also generated important records.

            In this article, we draw on a number of approaches. As land reform advocates we have watched the process of land reform unfold since the late 1980s, allowing us to take an ‘extended case study approach’ (Buroway 2009). As participant observers, we have had a unique, ethnographic view of the internal workings of the reform process and have been able to interview or have off-the-record conversations with a number of key actors on different sides of the struggle. We have also reviewed the new land laws and policies, isolating changes that are areas of dispute. Following Flyvberg’s ‘phronetic social science’ (2001), we try to explain these disputes based on historical institutional analysis and political economy dynamics, taking a look at who wins and who loses, how and why.

            Historical institutional background to Kenya’s land

            State power and land are intimately connected in Kenya’s history. The British Protectorate (1895) and later the settler colony of Kenya (1920) were products of conquest. Conquest required a legal system to legitimise jurisdiction over territory and to govern land as a critical resource for state building. The Foreign Jurisdiction Act (1890) was the first law to set out the terms of land appropriation. It gave the British government control over ‘waste and unoccupied land in protectorates where there was no settled form of government and where land had not been appropriated either to local sovereign or to individuals’. Unlike the Sultan of Oman, who controlled the coastal strip, the decentralised societies of Eastern Africa with their complex and diverse land governance systems did not count as local sovereigns and hence their land became ‘waste and unoccupied’. Claiming original title to ‘waste and unoccupied’ land, the British government could declare them Crown lands and make grants of them to individuals ‘in fee or for any term’.

            The 1901 East African (Lands) Order-in-Council created the category of ‘Crown Lands’ or public lands, which were vested in the Commissioner of the Protectorate on behalf of the British Crown. Within this framework, the Commissioner had the power to dispose of land ‘on terms and conditions he might think fit’ (Okoth-Ogendo 1991). The 1902 Order-in-Council gave the Commissioner power to sell freeholds in Crown land to any purchaser in lots not exceeding 1000 acres, to lease land for periods not exceeding 99 years and to give licences for temporary occupation to non-whites. What is important in terms of institutional development of land governance is that these laws ‘had the effect of conferring enormous discretion upon administrators with respect to what land they could lawfully dispose of within the Protectorate’; further, ‘the vagueness associated with public lands left them power to determine more or less what waste and unoccupied lands were’ (Ibid., 113–114).

            The use of the undefined term ‘public lands’ ‘left the door open for massive alienation’ (Mackenzie 1998, 67). Settlers scrambled for high-value land around Nairobi and the fertile highlands, for agriculture, business, residential use and speculation. ‘Asians’ had access to land in Nairobi and other towns, but, like the Africans, were barred from the fertile White Highlands. With a policy of encouraging white settlement, the fledgling land administration was susceptible to lobbying from ‘big men’ and speculation was rife, creating problems for officials engaged in planning and government works from the very beginning. McGregor Ross, for example, argued that the ‘big men’ – colonial settlers often of aristocratic extraction – like Grogan and Delamere – opposed him when he was Director of Public Works (1905–22) because they did not approve of his interference in their ‘get rich quick’ schemes (McGregor Ross 1927; Wylie 1977). Land speculation did not always sit well with colonial officials. In 1905 W. D. Ellis of the Foreign Office was concerned about ‘grabbers’, ‘early settlers who accumulated as much land as possible on the easiest terms’ in order to speculate rather than farm (Sorrenson 1968, 89).

            Africans were confined to ethnically delineated reserves as subjects of ‘customary law’, effectively deemed ‘tenants of the crown’ (Okoth-Ogendo 1991). By reducing ‘native’ access to land, common resources and mobility, this reserve system helped generate pressures for Africans to search for labour in settler farms, plantations or the growing towns dotting the railway lines. Like the vague idea of the ‘public’, ‘customary’ was also deliberately vague to allow political leeway in interpretation and also freedom to appropriate further as needed. As John Ainsworth suggested in 1899:

            Of course we can stretch such customs to be almost anything within their reasoning; if we say it means freehold, it means freehold, but in our interpretation of the laws and customs I think it wiser not to recognize any system of freehold, we want some control over non-native holders of land. (Cited in Sorrenson 1968, 178–179)

            The 1915 Crown Lands Ordinance took arbitrary, centralised governance over land a step further. It concentrated power over Crown lands in the hands of the Governor, who at any time could sell, lease or otherwise dispose of this land. He was now able to grant 999-year leases for agricultural land and had wide powers to create reserves (‘native land’) and manipulate their boundaries. The Governor was also given a veto over any land transaction as a way to protect segregation. This legislation would have wide-ranging impacts on the evolution of land governance in Kenya; it created the basis for institutionalising centralised state control over land access. This legal and institutional development took place under the influence of a strong settler lobby that wanted freedom to accumulate and speculate on land. While this lobby was periodically resisted by administrators, in the end officials accepted that Kenya would be a ‘“big man's” country in its formative years’ (Berman 1990, 56). They justified this by assuming that these large-scale and influential farmers, despite their speculative and hoarding tendencies and reliance on African knowledge and labour, were the productive or ‘progressive farmers’.

            This colonial land tenure system, and the legal and administrative apparatus that upheld it, served to entrench inequality of rights and access to land between ‘settlers’ and ‘natives’, which in turn generated stark economic inequalities and discontent. By 1944, the amount of land alienated to Europeans including multinational corporations was estimated to be seven million acres of which only 864,000 were actually in cultivation; the number of settlers was 2000, the number of farms 2700 and the ‘amount of undeveloped land was so extensive that the government was considering the necessity of introducing a tax on undeveloped land’ (Meek 1949, 79).

            The system also created different legal and bureaucratic mechanisms for accessing land. A powerful minority had influence over administrative, legal machinery designed to facilitate its access to land. Africans, in contrast, accessed land in the reserves via colonial appointees called ‘chiefs’ who had state-backed custodial powers over land. Chiefs maintained authority and also the dependency of their subjects through their role as ‘allocators of land’ (Chanock 1991, 64). Indigenous land governance institutions were eroded, and the ‘customary’ shaped by these power dynamics. While these institutions were not necessarily equitable especially in relation to gender and age, access to land was generally linked to negotiated use-rights, not exclusive ownership and commodification of land. Further, ensuring that the poor had temporary access to land was part of an indigenous social welfare system that was undermined by the new land governance system. Combined with the unjust land system, this erosion of local norms under land stress helped create the growing numbers of landless or what the colonial government called the ‘squatter problem’ (Meek 1949).

            Given the rapid and often speculative accumulation of land in the hands of the white minority, ‘fallow’ land was a problem. To make this land productive, white settlers hired African labourers who were often allowed to farm some of the land. In this way these ‘squatters’ put labour into land and, in a somewhat Lockean vein, understood this to mean they had legitimate rights over it (Lonsdale 1992). This bumped up against dualistic colonial land law that stripped Africans of land rights outside ‘reserves’. A series of crackdowns to enforce this unequal order, including evictions of African labourer-farmers in white reserved areas, ultimately precipitated the bloody struggle over land and freedom that would become known as ‘Mau Mau’ in the 1950s (Kanogo 1987).

            As part of a Mau Mau counter-insurgency strategy, the state initiated land reform in the native reserves that extended leasehold land rights to certain Africans. The Swynnerton Plan of 1954 extended land registration, consolidation and leasehold land to the reserves and was implemented in a way that favoured collaborators and punished supporters of Mau Mau (Clough 1998, 217–218; Coldham 1984). The plan still emphasised the role of ‘wealthy progressive’ African farmers. In political terms, these ‘progressive farmers’ – a rural conservative elite that collaborated and hence were part of the administrative state structure – had an interest in the legal and institutional framework that was their source of land and power.

            Rural conservative elites led by the first President, Jomo Kenyatta, stood to benefit from keeping the colonial land laws and administrative apparatus intact. As a Kenyan government commission noted, the colonial legacy in land was not dismantled with independence, ‘instead what happened was a general retrenchment hence continuity in colonial policies, laws and administrative infrastructure’ (Republic of Kenya 2002, 30). The explanation for this lay ‘in the process of the decolonization itself and the opportunity it accorded to new power elites to gain access to the European economy’ (Ibid., 30). A British participant in this process noted the degree to which ‘the regime which took over power at independence was quite committed to the emergence of a new unequal class structure within African society’ (Van Arkadie 2016, 66).

            Most land in the immediate post-colonial period in Kenya fell under the categories of government (former Crown lands) and trust land (former ‘native reserves’). The arbitrary and highly centralised power of the Governor over these lands was now given to the President, who operated via the Commissioner of Lands and the Ministry of Lands more generally. For example, the 1915 Crown Ordinance was replaced by the Government Lands Act, which stated that ‘the President … may, subject to any other written law, make grants and dispositions of any estates, interests or rights in or over unalienated government land’. Section 15 of the 1915 Crown Ordinance granting this power was replicated in Section 12 of the Government Lands Act, ‘where the word “governor” was merely deleted and replaced by the word “President”’ (Atieno 2016, 18). In the case of former reserve land, the Trust Lands Act vested local councils with the right over this land, but this too was open to abuse both at the local level and by the central government, which appointed or had political power over lower-level politicians. Much of this trust land was under ‘customary tenure’ which was in practice secondary to property rights derived from English property law. Common property, gender and youth claims were poorly protected under both legal systems.

            Overall, this legislative framework enabled the President’s circle including politicians and bureaucrats in the Ministry to give direct grants of land on a fairly arbitrary basis, which made land a useful tool to reward political loyalty. Numerous avenues were available to manipulate formal land allocation processes to favour personal accumulation and political constituencies, as has been widely discussed in relation to the post-colonial settlement schemes (Harbeson 1973; Hunt 1984; Leo 1984). Irregular administrative process, for example avoiding critical steps in land allocation and registration, and direct violation of the law, for example through fake title deeds or altering the registry, were facilitated by the fact that the Ministry2 manages the land registries at the national and local levels with no public scrutiny or oversight. The registries are where critical records of land transfers are made that are used to protect claims to land especially in court. The Ndung’u Commission illustrates a number of mechanisms by which these problematic allocations take place (Republic of Kenya 2004) and detailed examples have been documented showing how this works (Kanyinga 2000; Kenya Human Rights Commission 2000; Klopp 2000, 2001, 2008; Republic of Kenya 2004).

            Those in a position to benefit from these processes both in terms of extracting payments – legal and illegal – for processing land transactions and directly accessing land are the ‘winners’ in this system. They are the bureaucrats, politicians, and their financers and supporters, as well as the many professionals from lawyers, surveyors and developers who assist them (Hunt 1984; Kanyinga 2000; Kenya Human Rights Commission 2000; Klopp 2000, 2001; Klopp and Sang 2011; Leo 1984; Manji 2012; Namwaya 2004; Ngau et al. 2010; Olima 1997; Onoma 2008; Republic of Kenya 2002, 2004). Another point worth mentioning is that the costs of following the land and planning laws are often exorbitant and involve so many actors (who can demand bribes) that this often leads to the ubiquity of informal processes where networks of politicians and bureaucrats in the Ministry of Lands act as gatekeepers (Musyoka 2004; Ngau et al. 2010; Onoma 2008; Republic of Kenya 2002, 2004).

            The losers, of course, are the wider public – who are deprived of the value and potentially more productive uses of land – and the ever growing numbers of the poor and landless who cannot access the legal and administrative apparatus, and in any case do not have the means to pay fees or bribe to regularise or assert their rights to land. They are the ones who are often dispossessed by irregular and illegal land acquisition, which occurs without a public debate about the best use of land. However, even middle-class property developers and manufacturers lose out in this system, which makes land expensive, artificially scarce and also liable to costly legal challenge and dispute given the large number of fraudulent transactions (Ngau et al. 2010; Republic of Kenya 2002).

            Contemporary land policy and law reform

            The cumulative effect of Kenya’s post-colonial land governance system is more contention and dispute over land. The strong link between land and power, especially Presidential power, and the opaqueness of land transactions, produce politicisation of land. Despite the clear class dimensions of land grabbing and accumulation, the political class most often ethnicises land disputes. This diverts attention away from the need for institutional reform of a system benefiting politicians who often strive to gain access to it via the ballot box or political appointment. Nevertheless, in the 1990s a freer press in Kenya allowed for much more public exposure of ‘land grabbing’ as a civic national issue. An emboldened press and civil society began to report on ‘grabbing’ of key public lands and also chronicled the numerous public protests and mobilisations against grabbing.

            In response to mounting public alarm and civil society activism, in November 1999 the government appointed a commission to look into the land law system as a way to defuse public outcry. The Commission recommended curbing Presidential powers over land, harmonising and clarifying law, and adding more public oversight to land matters, proposing a more transparent National Land Authority as ways to counteract the opaque power of the Ministry of Lands (Republic of Kenya 2002). This report reflected the concerns emerging out of countrywide consultations over constitutional review at the time. As one report on these consultations noted, ‘the majority of those interviewed complained bitterly about a repeat of what happened during the colonial period. People in positions of authority are grabbing land left, right and centre’ (Kituo Cha Katiba 2002, 24).

            In December 2002, an opposition coalition won a historic election, resulting in the first change of power from the political party that had been in power since independence (Kenya African National Union). The new President, Mwai Kibaki, promised reform of the Constitution. In addition, widespread anger at land grabbing in the run-up to the election prompted the new President to appoint the Presidential Commission of Inquiry into the Illegal and/or Irregular Allocation of Public Land (Ndung’u Commission).

            Unsurprisingly, the Commission faced many challenges in terms of adequate budget and also lack of cooperation by the lands administration and provincial administration under the Office of the President. Many officials colluded in forestalling investigations and public hearings on knotty land-grab cases involving the former President, and other public officials. Clearly, these officials had an interest in holding back crucial self-incriminating information. Nevertheless, the final Commission report named many and revealed an enormous loss of public lands (at least 246,965 ha of trust and government lands) in irregular and outright illegal deals, often linked to politicians, bureaucrats and their briefcase companies registered for the purpose of acquiring land irregularly (Republic of Kenya 2004; Southall 2005; Syagga 2011). The costs to the public purse are staggering to consider.3

            In 2003, the new government, which included some reformers, slowly moved forward on a fledgling land policy reform process. Significantly, for the first time this process, led by the Ministry of Land, engaged civil society organisations. Fourteen regional consultations and other stakeholder meetings took place to review and critique emerging issues and recommend their redress in a new draft land policy, which included civil society feedback. Key to the process was the umbrella civil society group, the Kenya Land Alliance (KLA), which emerged as a way for aggrieved groups to constructively engage in the complex land problems and struggles that had intensified in the 1990s. The KLA led the effort, organising meetings and pushing the government slowly towards change.

            Still, it was only when Kenya was on the brink of civil war in 2007–08 – violence fuelled in part by politicisation of land issues – that substantial progress occurred in the reform agenda. Part of the power-sharing agreement that stopped the violence involved finally delivering on a new constitution and historical injustices. This crisis created ‘a window of opportunity’ or a ‘critical juncture’ when the usual workings of institutions were under challenge. Under such conditions, space existed for ‘policy entrepreneurs’ like the KLA to influence the reformulation of institutional rules (Ashford et al. 2006).

            The National Accord brokered by Kofi Annan and signed by the two warring sides, Mwai Kibaki (Party of National Unity) and Raila Odinga (Orange Democratic Movement), stipulated the need for constitutional change including reform of land governance, which was widely seen to play into the political violence (Commission of Inquiry on Post-Election Violence 2008). On 3 December 2009, Sessional Paper No. 3 of 2009 on National Land Policy became official policy. Many of the changes proposed in the Sessional Paper made it into Chapter 5 of the new Constitution of 2010, which was popularly seen as a way out of Kenya’s troubles. The popular pressures to pass this constitution as well as the political logics of the winning political coalition were strong enough to overcome resistance to land law policy reform during this critical juncture.

            With the new constitution, key land law reforms came into place inspired by the National Land Policy 2009 and the preceding years of constitutional struggle. These reforms aim fundamentally to decentralise unaccountable decision-making powers around land and also render them more transparent and subject to monitoring and democratic participation by attempting to remove them from the administrative realm to the policy and legal realm (Leach 2000). They also aim to redress historical injustices in order to reverse the trends towards land inequality, environmental destruction and increasingly violent contestation around land. These aims are expressed in Chapter 5 of the Constitution, which states:

            Land in Kenya shall be held, used and managed in a manner that is equitable, efficient, productive and sustainable, and in accordance with the following principles –

            a) equitable access to land;

            b) security of land rights;

            c) sustainable and productive management of land resources;

            d) transparent and cost effective administration of land;

            e) sound conservation and protection of ecologically sensitive areas;

            f) elimination of gender discrimination in law, customs and practices related to land and property in land; and

            g) encouragement of communities to settle land disputes through recognised local community initiatives consistent with this Constitution.

            Chapter 5 also spells out the duties of a new entity called the National Land Commission proposed as far back as 1999. The idea behind the National Land Commission is to move some of the opaque allocation procedures out of the hands of the Ministry of Lands and into a more open and autonomous independent entity as well as create checks and balances by giving different authorities power over different categories of land, requiring their cooperation. Key among these was the National Land Commission, created by the Constitution (and operationalised by the National Land Commission Act 2012) to:

            1. manage public land on behalf of the national and county governments;

            2. recommend a national land policy to the national government;

            3. advise the national government on a comprehensive programme for the registration of title in land throughout Kenya;

            4. conduct research related to land and the use of natural resources, and make recommendations to appropriate authorities;

            5. initiate investigations, on its own initiative or on complaint, into present or historical land injustices, and recommend appropriate redress;

            6. encourage the application of traditional dispute resolution mechanisms in land conflicts;

            7. assess tax on land and premiums on immovable property in any area designated by law; and

            8. monitor and have oversight responsibilities over land use planning throughout the country.

            The Constitution reclassified land into private, public (Former Crown then government land) and community land (roughly, native and then trust land) and required parliament to ‘change, revise, consolidate and rationalise existing land laws’.

            Overall, key elements of existing land law reform at the national level include rewriting and harmonising fragmented and overlapping land laws, bringing land-use planning closer to the people, digitising and rendering land records transparent and accessible to the public and creating instruments to disincentivise hoarding and irregularly acquiring land (better records and taxation, land ceilings, oversight, democratic input). The Constitution also required parliament to establish a court with the status of the High Court to hear and determine disputes relating to the environment and the use and occupation of, and title to, land (Chapter 10, article 162). In 2011, this gave birth to the Environment and Land Court, which is now in operation in 16 counties (LDGI 2014).4 The Constitution also created a new devolved form of government called counties with critical land governance and planning functions. Under the County Governments Act 2012, Kenya’s counties are responsible for local land use and spatial planning in accordance with the principles of the Constitution and in collaboration with the National Land Commission and Ministry of Lands. Overall, the majority’s wish for decentralising the power of President, including the highly abused allocation powers over land, was given some expression in this new constitutional arrangement.

            Besides creating a whole new court to help address the large backlog of land and environmental disputes, the Constitution has also set in motion an ambitious, complex and contested rewriting of all existing land laws to make them compliant with the new principles and clauses in the Constitution. In 2012 key land laws were repealed or partially repealed and replaced by three new Land Acts (The Land Act 2012, The National Land Commission Act 2012, The Land Registration Act 2012). The key piece of legislation to manage ‘community lands’ including former trust lands known as the Community Land Bill was particularly contentious because of the difficulty in defining ‘community’ (Kameri-Mbote et al. 2013) and because the rise of oil exploration and discoveries of minerals on ‘community land’ raised the stakes. In 2016, after much debate, the Community Land Act 2016 was finally enacted.

            Reform and counter-reform

            As Charles Tilly notes in his study of durable inequality, groups that control access to value-producing resources like land most naturally ‘set up systems of social closure, exclusion and control’ (Tilly 1998, 8). It is critically important to interrogate how this closure is constructed and maintained politically in Kenya, especially as reformers attempt to undermine or loosen this control by bringing in new rules and systems of inclusion. In response, beneficiaries of the current system are using concentrated wealth and a variety of tactics and strategies to buy support and distort democratic constitutional political processes. They are fighting back through allies in parliament and society, and this creates a very steep barrier to political reform.

            Kenya’s presidents have typically been very large landowners who have used the state to access and hoard this land wealth as a political resource. The Ministry of Lands, headed by a Presidential appointee, strives to retain control of the land registries, a critical political and material resource and the bureaucratic locus of illegal and irregular transactions (Republic of Kenya 2002, 2004). Many, including at the highest levels of government who have gained land through irregular, informal transactions involving these offices, support continued opacity. Thus, while reformers make progress on the policy and legal front, counter-reformers – a wide network of beneficiaries straddling government and society – actively move to undermine realisation of deeper change to the land governance system.

            Some of the more clearly observed counter-reform resistance tactics include: deliberate slowing down of land law implementation; outright violation of the Constitution triggering legal battles; bureaucratic power grabs and infighting; scuttling or amending legislation to recentralise power in the Ministry; creating overlapping jurisdictions to create loopholes or obfuscation; sometimes deliberately creating confusion, misinformation and litigation; and, finally, attempting to compromise members of the new institutions and hence, undermining public confidence in them. With its new powers and mandate, the National Land Commission is a particular threat as it has the potential to challenge the arbitrary and opaque powers of the Ministry over coveted public lands and to open up thorny questions of historical injustice.

            Resistance emerged early on against the National Land Commission. For example, the National Land Commission Act (2012) stipulates that the President should appoint the Commissioners in seven days after receiving their names. Instead, he delayed in appointing the Commissioners vetted by parliament. It was only after the KLA and its members took the President to court and got a ruling in its favour that the President formally gazetted the Commissioners. The government also delayed the initial budget for the Commission and, when it came, it was far too little. The Commission relies on parliament for the bulk of its budget but parliament consists of many of the ‘old elites linked to irregularities and illegalities’, a potential problem for the autonomy and functioning of the Commission (Atieno 2016, 43). Defunding is a persisting problem raised by the Commission (interview with Chairman Swazuri, April 15, 2016). The Ministry also pushed early on to have many compromised bureaucrats seconded as Commission staff, making the new institution generally dependent on the Ministry.

            Land law review with its complexities also created an opportunity for counter-reform. The Land Law Amendment Act 2016 was pushed to recentralise power in the Ministry, diminishing powers of the National Land Commission especially in relation to the coveted land registries. The Constitution and National Land Commission Act 2012 give the Commission the role of advising the national government on a comprehensive programme for the registration of title in land throughout Kenya. Logically, this means that the National Land Commission should have access to and a say over the land registries (as should the public), and this intent appears in the Land Registration Act 2012. However, the Land Law Amendment Act 2016 replaces the word ‘Commission’ with the word ‘Cabinet Secretary’, which takes away the National Land Commission’s role in land registration, preserving the status quo.

            The recent Land Law Amendment Act 2016 also makes other changes that reduce public accountability and the role of the National Land Commission. First, the amendments delete the paragraph of the National Land Commission Act which sets out the procedures for a multi-stakeholder panel to select Commissioners. Instead, counter-reforms replace the panel with the Public Service, which has a history of being partial to the party in power and making selective appointments based on political, ethnic or nepotistic criteria (Aluoka 2016).

            Second, the Commission has the constitutional mandate to initiate investigations into present or historical land injustices and to recommend appropriate redress. The National Land Commission Act directs the Commission to recommend to parliament appropriate legislation around investigations and adjudication of claims arising out of historical land injustices. A taskforce constituted by the Commission developed a draft bill as required (Investigation and Adjudication of Historical Land Injustices Bill 2015) and in July 2015 forwarded it to the Commission for Implementation of the Constitution. Ignoring this work, the Land Law Amendment Act 2016 deletes this responsibility from the National Land Commission Act. The new law states that: ‘The Commission shall receive, admit and investigate historical land injustices and recommend appropriate redress’.

            Third, County Land Management Boards gave the National Land Commission a presence at the local level. The Boards’ functions included processing applications for allocation of land, change and extension of user, subdivision of public land, and renewal of leases and any functions assigned by the Commission or written law. The Land Law Amendments abolished the County Land Management Boards before they were ever properly set up. Indeed, they were also underfunded and under capacity and some counties resisted them altogether (Boone et al. 2016). This move clearly reduced the reach and powers of the National Land Commission.

            Fourth, the National Land Commission has the role of allocating public land, setting aside land for investments, and placing care and control of public land under different state agencies under its coordinated management. Recent amendments deprive the Commission of the independence and autonomy to undertake those functions. For instance, the section of the Land Act which reads, ‘The Commission may on behalf of the national or county government allocate public land’, now says,

            Whenever the national or county government is satisfied that it may be necessary to allocate or alienate the whole or part of a specific public land, the Cabinet Secretary or the County Executive Committee member shall submit a request to the Commission.

            Once again the Commission is given a secondary role.

            Fifth, the Commission has the role of administering historically contentious settlement programmes which are usually created out of public land (purchased or in government possession). The amendments however assign administration of settlement programmes to the Cabinet Secretary in the Ministry of Lands, who then appoints a sub-county select committee to carry out the identification and selection of beneficiaries. Settlement programmes have historically been a means to allocate land for patronage, as well as influence future election results. These amendments keep the leeway to use land allocation as Presidential patronage intact.

            Finally, without resources and full Ministry cooperation, the National Land Commission appears to be failing in its duties. Land grabbing has continued apace with one of the more shocking incidents being the very public attempted appropriation of Langata Rd. Primary School’s playground in Nairobi by the Deputy President (Africa Centre for Open Governance 2009; Atieno 2016; Society for International Development 2016). However, despite these failures, the National Land Commission has been typically associated with reform and the Ministry as the problem. This is clearly depicted in the cartoon by Gado, a popular cartoonist, which shows the then suspended and dismissed Cabinet Secretary unfavourably compared to the National Land Commission Chairman (see Figure 1).

            Figure 1

            The struggle between the Ministry of Lands and the National Land Commission as seen by popular cartoonist Gado, 20 March 2014. Reproduced with permission.

            The National Land Commission took its case to the media, the public and the Supreme Court. Given that the struggle over change is at this point heavily concentrated in the legal realm, the courts will most likely become an increasingly important venue for this struggle. Further, many of the amendments in the Land Amendment Act 2016 are clearly open to challenge on constitutional grounds. Indeed, the struggle between the Commission and the Ministry over responsibilities and jurisdictions eventually ended up before the Supreme Court, which issued an advisory opinion (Supreme Court Advisory Opinion Reference No. 2 of 2014 [2015] eKLR). The Ministry argued that the National Land Commission was an ‘advisory body’, clearly trying to reduce its powers. While the Supreme Court did not agree with the extent of the powers the National Land Commission was arguing for, it did not accept the government’s argument and reaffirmed the Commission’s important constitutional mandate, the importance of its autonomy and the urgency of checks and balances and decentralisation in land governance.

            Recently, the High Court of Kenya at Nairobi (Constitutional and Human Rights Division) ruled in relation to Petition No. 54 of 2015 that the three million titles issued by the government since 2013 were in contravention of the Land Registration Act 2012. The High Court informed the government that if it wishes the new land titles to be valid, it has a year to consult with the public, seek National Land Commission input and get parliamentary approval although, as Manji and Ghai (2017) point out, what this means in practice and the implications remain unclear. The court ruling reinforces the idea that if the government wishes its public creation of private property rights to be respected, the spirit and laws derived from the Constitution must be upheld. However, after some consultations the government was busily issuing land titles before the August 2017 election. In addition, with one year left to their mandate, a number of Commissioners of the National Land Commission including the Chairperson have been embroiled in corruption scandals, seriously weakening the functioning and legitimacy of the body designed to create some ‘checks and balances’ to Kenya’s deeply entrenched ‘mischief’ around land.

            Conclusions

            Reformers in Kenya seek to transform a profoundly flawed and entrenched land governance system. The numbers of people losing out from the system and land inequality are growing with politically destabilising effects. Despite the power of numbers among the aggrieved and the general awareness of suffering and injustice around land in Kenya, reformers are finding that challenging the ‘social closure, exclusion and control’ (Tilly 1998, 8) over land is a profoundly difficult task. Losers in the system tend to be disparate, often poor and dispossessed and more easily pitted against each other, constituting a serious collective action problem. In addition, middle-class Kenyans invest heavily in land and do not necessarily want to risk any disruption of the system even as they too often suffer adverse consequences. Reformers also do not constitute a coherent movement that has captured the imaginations of everyday people and are battling an entrenched administrative legal order that, as we have shown, has the power to stymie implementation of new rules and overturn laws. Finally, little global support exists for land reform in this current moment.

            Given the high stakes and path-dependent dynamics, transformative reform was never going to be an easy or simple task, and de-politicisation of land through policy reform was never a likely scenario (Boone 2012; Boone et al. 2016). In fact, most substantive changes in Kenyan land governance have historically come out of violence. Still, the changes that have emerged through a difficult process of constitutional reform do create an opportunity for a more peaceful, incremental transformation. The challenge for reformers is to overcome the powerful forces arrayed against change with creative mobilisation strategies, leveraging not only the 2010 Constitution and the courts but also public outrage and stronger civil society organisation. Such organisation must work harder to stitch together a coalition of the diverse groups losing out in the current system. The reform struggle in Kenya is in many ways just beginning and the outcome uncertain. However, if Kenya wishes to avert a future much like its past, full of turmoil, violence, inequality and injustice around land, transformative reform, however difficult to achieve, is the only way forward.

            Notes

            1.

            The Gini coefficient in land measures the extent to which the distribution of land among individuals or households within an economy deviates from a perfectly equal distribution. A Gini index of 0 represents perfect equality, while an index of 1 implies perfect inequality.

            2.

            Now the Ministry of Lands and Physical Planning, but for simplicity we will continue to use Ministry of Lands.

            3.

            For one calculation of some of the monetary losses linked to lost forest, see Kenya National Commission on Human Rights and Kenya Land Alliance (2006). Note that the many recommendations from this Commission have not yet been adopted.

            4.

            The Environment and Land Court Act 2011 was passed without major problems. The lack of resistance to these new courts might be explained by the fact that they create a new venue to argue and struggle over land and environmental issues and do not directly challenge existing land governance systems.

            Acknowledgements

            We would like to thank the many people who have shared their ideas and critical thoughts on land governance reform, including the anonymous reviewers for this journal who provided very helpful feedback on this article. Thanks also to Gado for allowing us to use his always brilliant cartoons.

            Disclosure statement

            No potential conflict of interest was reported by the authors.

            Notes on contributors

            Jacqueline M. Klopp is an associate research scholar at the Earth Institute, Columbia University and has been a research associate at the University of Nairobi. She has written extensively about land politics in Kenya in numerous academic journals and the popular press. She holds a BA from Harvard and a PhD in Political Science from McGill University.

            Odenda Lumumba is a land rights activist and a founder co-ordinator of the Kenya Land Alliance, a Policy, Land Laws and Institutional Reforms Advocacy Network. He is enrolled for a PhD in Land and Agrarian Studies, and holds a Masters of Philosophy in same field from the University of the Western Cape. He has co-authored book chapters in Land and Sustainable Development in Africa (edited by K. S. Amanor and S. Moyo, Zed Books, 2008) and The Global Land Grab: Beyond the Hype (edited by M. M. A. Kaag and E. B. Zoomers, Zed Books, 2014).

            ORCID

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            Author and article information

            Contributors
            URI : http://orcid.org/0000-0002-3284-1715
            Journal
            CREA
            crea20
            Review of African Political Economy
            Review of African Political Economy
            0305-6244
            1740-1720
            December 2017
            : 44
            : 154
            : 577-594
            Affiliations
            [ a ] Earth Institute, Columbia University , New York, NY, USA
            [ b ] Kenya Land Alliance , Nakuru, Kenya
            Author notes
            [CONTACT ] Jacqueline M. Klopp jk2002@ 123456columbia.edu
            Article
            1367919
            10.1080/03056244.2017.1367919
            b09fba2d-f66b-4ba0-95d6-812cde8acd20

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            Figures: 1, Tables: 0, Equations: 0, References: 63, Pages: 18
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            Articles

            Sociology,Economic development,Political science,Labor & Demographic economics,Political economics,Africa
            Kenya,transformation,société civile,résistance,gouvernance du foncier,contre-réforme,réforme foncière,transformative change,civil society,resistance,land governance,counter-reform,land reform

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