HAS MOI FOUND A CLIFF-HANGER IN THE PROPOSED CONSTITUTION?

By Miguna Miguna

APRIL 12, 2010

You have by now heard the rallying cry from the two musketeers; former President Daniel arap Moi and his underling William Ruto. Since Parliament’s unanimous passage of the Proposed Constitution, without amendment, both single-party dictatorship champions have thrust themselves onto the unenviable position of leading the “no” campaign. Apart from shouting themselves hoarse and exhibiting unusual excitement, the two Kanu diehards have been visiting churches, funerals and cattle dips crying wolf over the land provisions in the draft constitution. In order to seek relevance, they have turned to cheap propaganda; calling the land chapter socialist. They have claimed that if passed, the new Constitution will lead to the nationalization of all private land and invalidation of all title deeds. That is empty rhetoric intended to cause unnecessary fear and despondency. The “no” proponents should use facts rather than emotion in their search for the elusive victory at the forthcoming referendum.

Land grabbing, theft and inequitable land ownership in Kenya are systemic problems that the country has not grappled with for generations. For decades, the country has failed to enact laws that could effectively address these problems. Yet land, as the primary means of production, is essential for equitable development and eradication of poverty. Kenyans know that only about five families control more than two thirds of the most productive land in the country. The Mois, Rutos, Joshua Kuleis, Kenyattas, Biwotts and Delameres do not just own or control most of the Rift Valley; they also control most of the Central and Coast provinces. Traveling through the North Rift last week, I was shown rolling hills and entire mountains “belonging” to these land oligarchs. As we drove for hundreds of miles, I saw only wild animals, birds, grass, trees and swamps. The hundreds of thousands of hectares are not in productive use. Virtually all of that land was grabbed from the public by those who were supposed to be custodians of the public interests.

Currently, section 3 of the Government Land Act authorizes the President and to make grants or dispositions of any estates, interests or rights in or over un-alienated Government land. Such power may be delegated to the Commissioner for Lands by the President. Over the years, those entrusted with the power to control landholding in Kenya have abused their power to reward themselves and their cronies with public land. As a corrective mechanism, Article 68 (c) (i) of the Proposed Constitution of Kenya has empowered Parliament to enact legislation that prescribes the minimum and maximum land holding in Kenya.

Unlike now when only the President and the Commissioner for Lands have authority to deal with land; the new Constitution will create a National Land Commission, whose members shall represent all the Counties. Those with more than 10,000 hectares of land that is not in productive use are the only ones who will be affected. If Moi, Ruto and other “no” campaigners have more than 10,000 hectares of unproductive public land, they will be required either to pay land rates on them or give up the unproductive land back to the public. Fortunately, more than 99% of Kenyans don’t have that kind of land, and therefore have nothing to fear from the Proposed Constitution.

Intriguingly, both William Ruto and Isaac Ruto are members of the Parliamentary Select Committee. William Ruto was present at the Cabinet sub-committee that approved the Draft Land Policy. He was present at the Cabinet meeting that approved the policy. Both Rutos were in Parliament when it unanimously adopted the policy. They were at the PSC retreat in Naivasha where the chapter on land was retained intact. They later attended the KIA retreat where the same happened. They were present in Parliament and voted “yes” with the rest of their colleagues for the land chapter.

What happened after Parliament’s unanimous adoption of the Proposed Constitution? Did the two Rutos and Moi suddenly discover something in the land chapter that they couldn’t see all those months? The answer is “no.” I believe that the Rutos are only interested in cheap parochial politics of survival. Once the Rift Valley residents discovered that the two amigos betrayed them at Naivasha, the two had to resort to desperate measures in order to recover the little support they had squandered to “deal-making”. As for Moi, he is only motivated by self-interest. The old man has public land coming off his ears and he doesn’t know what to do now that Kenyans, will, for once, be in charge of managing their own land.

Limitation on quantum of landholding is a foundation for the implementation of development programs and attempt to accelerate economic recovery focused on poverty eradication, equitable development and environmental preservation. The limitation is premised on the basis that all sections of our society should be able to fully of participate in land holding and attendant productivity. It is also intended to bring into practical reality good and just governance in land management. It will allow just access for all people, especially the poor, to secure land tenure and land ownership as the source of their livelihood. It connects land reform activities to other developmental activities as an effort to address the issue of poverty in both rural as well as urban areas.

Setting the threshold for land ownership is not unique to Kenya. The Philippine Constitution provides that a natural-born citizen of the Philippines may be a transferee of private lands subject to limitations provided by law.

But I can say this with confidence: the “no” musketeers are going nowhere with their stillborn campaign. Kenyans have made up their mind; they are voting “yes.”