You may have noticed some recent news items about tea companies, the National Land Commission and the courts. This reminds us of the very central position that land plays in the constitution, and did in the constitution-making process.
Land in the Constitution
It is easy to think that the constitution is about who gets into government, how they can be removed, their powers, and so on. But land issues were very much at the forefront in debates on the Kenyan constitution.
An early draft of the Kenya Land Alliance’s National Land Policy was available to the Constitution of Kenya Review Commission, and had considerable impact on the commission’s constitution draft. John Harbeson commented that the interests of ordinary Kenyans were “inserted into this constitutional moment”.
Chapter Five focusses on land (and environment), and land crops up at various other points. One set of issues relates to gender and land. One principle of land policy is “elimination of gender discrimination in law, customs and practices related to land and property in land.” Parliament must pass laws protecting the interests of spouses when landowners die, or marriages end more likely to benefit women.
Although, rather strangely, a provision in early draft constitutions that “Women and men have an equal right to inherit, have access to and manage property” disappeared in the Committee of Experts’ drafts, Kenyan courts have insisted on equality based on the general constitutional provisions about equality, including of men and women.
Access to land
Another major concern was access to land, including problems arising from the injustices of the colonial period, and later, including land grabbing. This is where less progress has been made.
I mentioned the slow progress on setting land ceilings a few weeks ago. Another provision connected to this aim of broader access to land is: “A person who is not a citizen may hold land on the basis of leasehold tenure only, and any such lease, however granted, shall not exceed ninety-nine years.”
Much private land under non-customary systems of law is held on leases of up to 99 years. But, ever since the colonial period, certain plots or tracts of land have been owned either in perpetuity or on 999-year leases (almost the same thing). The 999-year leases are usually of agricultural land.
And a third provision says that one of the functions of the NLC is “to initiate investigations into present or historical land injustices, and recommend appropriate redress.”
The last two provisions (maximum of 99-year leases for non-citizens and land injustices) came up in that recent case. This — before the Environment and Land Court — concerned land held by tea estates in Kericho and Bomet counties.
The counties had brought a claim to the NLC on behalf of communities. And the commission had made what appears to be recommendations. These included a survey of the land to see if there were spare bits that could be returned to the communities, and that rates on the land should be increased so that the counties get more benefit from the leases (land rates being one of the few taxes that counties can raise themselves under the constitution).
The Gazette notice containing the decisions of the commission also said, “The commission orders that all 999-year leases should be converted to the constitutional requirement of 99 years.” This sounds like more than a recommendation.
The case came before the court because tea estates did not, naturally, like the decisions of the NLC and objected to the way they were made –including that they had not been given proper notice. And that the proceedings had been contrary to the constitution’s unconstitutional promises of fair administrative action and fair procedures for deciding disputes.
The judge stopped the implementation of the recommendations of the commission on the basis that the decisions should have been made by other bodies not the commission. I do not wish to disagree with the judge, just make this the starting point for making a few points.
The long lease issue is particularly important in the case of companies – like the tea estate owners. Human owners will perhaps leave the country, or sell to someone else – a Kenyan or a non-Kenyan. They might become Kenyan themselves.
If they pass the land on to a non-Kenyan, whatever the new document on that transaction says it will be (or should be) treated as giving a 99-year interest (Article 65(2)). But companies do not die. They can in theory go on indefinitely.
And are the tea estate companies in fact legally non-Kenyans? Yes if even one owner (shareholder) is non-Kenyan (Article 65(3)).
What should have happened by now?
We must admit that many countries have let historical injustice fester for many years. But Kenyans wrote this issue into our Constitution in 2010. Kenya even had an independence movement called the “Land and Freedom Movement”. Shouldn’t we have done better?
On historical land injustices: the NLC’s original Act of Parliament said that the agency, within two years of its appointment, must recommend to Parliament suitable legislation for dealing with historical land injustices. Basically nothing happened.
In 2016 the Act was changed to give the role of dealing with these injustices to the commission itself. But a 10-year period was given to complete the process (a ludicrously short time for such a massive problem).
Regulations were made in 2017, but nullified by Parliament in 2018. Courts have held that this does not prevent the commission from dealing with cases – but does their failure to replace the regulations indicate seriousness in setting up a good procedure?
And the 999-year leases? The constitution says (in Schedule Six on transition) that on the day the constitution came into effect (27 August 2010) all perpetual ownerships belonging to non-citizens reverted to the state, which must then issue them with a 99-year lease essentially rent free.
And any other right more than 99 years (like a 999-year lease) “shall be converted to a ninety-nine year lease”. This is problematic and defective. “Shall be converted” – by whom? And what happens if they are not converted?
Then it does not say when the new 99 years begin. When the original lease was given, regardless of to whom – or in 2010? Or when this converted lease was given? This could have very different effects for different people. Some people could immediately lose their entire land without compensation.
In 2017, regulations were finally made (seven years on). They set procedures for changing interests more than 99 years to 99 years from August 27, 2010. (I think this was the right approach - it is what Ghana did in 1969 when its constitution provided that any interest in land over 50 years was reduced to 50 years with effect from the date that Constitution came into effect.)
This process was to be completed within five years, and done by the NLC. But in 2020 the regulations were changed to give the task to the Cabinet Secretary (an example of the wrangling between the NLC and the Lands ministry?)
Conclusion
All these important constitutional changes about land have been much delayed in the implementation. The constitution was less than clear on some points. On the historical injustices, the amount of vested interest on the part of very important or well-connected people in leaving things as they are has no doubt been a major factor. The same is true of the requirement to pass law setting a maximum to the amount anyone may own.
On the issue of lease terms for foreigners powerful and wealthy interests - like tea estates - have no doubt been a factor.
This is a very complex matter, and one on which - as Ambreena Manji says in her book, The Struggle for Land and Justice in Kenya – law alone is not an adequate solution. The constitution does have a vision of a fairer society, on this as so many other issues. It is time we moved more determinedly to realise it.