The East African,Posted to the web September 19, 2006
By Ibrahim N. Mwathane, Nairobi
Efforts by the Kenyan Government to settle squatters at the Coast are commendable.
The rights of indigenous coastal people over their original customary land were lost with the coming of the Imperial British East Africa Company (IBEAC) in 1895 and the subsequent enactment of the Land Titles Ordinance in 1908.
THIS ORDINANCE enabled the colonial authorities to declare any land over which no claim was made by indigenous inhabitants on the expiration of a stipulated period of six months to be Crown Land. The Crown Land so declared was henceforth administered under the 1902 Crown Lands Ordinance, the current Government Lands Act, hence giving the colonial powers the legal mandate to allocate and administer the previous customary land at the Coast. This mandate was assumed by our post-independence governments.
Other than land for which certificates of ownership had been issued by the Sultanate of Zanzibar under whom the coastal strip was administered prior to the assumption of mandate by the IBEAC on agreement with the Sultan. Most of the rest of the coast customary land over the ten-mile strip reverted to the state on the expiration of the six month period provided for claims. Indigenous coast people were not only unaware of the stipulated period but would also not have understood the need to claim land they traditionally knew to be theirs. So they lost their land to the new colonial regime, an injustice perpetuated over the years and which the current government now wishes to address. Most of the land whose ownership rights were recognised and respected under the Land Titles Ordinance was primarily in the hands of Arabs. They were the dominant traders at the coast who have since moved to other countries and are popularly referred to as “absentee landlords.”
THEIR LAND has since been taken over by squatters, who over generations have lived on and tilled it long before the Arabs staked their claims. Having been closer to the colonial administration, the Arabs were in the picture and were easily able to lay claims to indigenous land before the expiration of the six months. What is also true is that a lot of such land has over the years been allocated to politically correct business people, politicians and civil servants.
It is against this background that the challenges to the government’s exercise to formally settle coast people on such land must be seen. A number of questions are pertinent. How will the government, for instance, legally extinguish the registered rights held by the “absentee landlords” without appearing to contravene the existing land laws without creating precedent which would be damaging to land ownership and investments in the country?
Much as the Minister for Lands is reported to have proposed that the government should invoke adverse possession to defeat titles held against such land, the matter is not that simple. Some of the people occupying the land pay annual rent to agents of absentee landlords, implying they are willing tenants in a contractual relationship they have respected for years. Adverse possession may not apply in such circumstances.
On the other hand, even in the event that the government may wish to invoke the Land Acquisition Act to compulsorily acquire such land and negotiate compensation to the affected registered owners, most are not available and live outside the country. Some may even have died. Though this may frustrate the government’s intentions, it does not justify forced takeover, not supported by law.
The government, though, still has options of quickly enacting some legal framework within which to assume ownership of such land without breaching the basic principles of sanctity of title.
By invading land, the coastal people are seeking to arm-twist the government to allocate them such land in line with the broader government intentions stated by President Mwai Kibaki. This speculative squatting can easily spread upcountry in places where large groups of squatters have lived for long next to large tracts of land deemed, in their view, to be “idle.”
THIS COULD be one of the reasons why previous governments have been reluctant to confront this coast land issue. It sets a strong precedent likely to introduce powerful political forces into the entire resettlement equation and considerably slow down solutions. It boils down to who owns land in Kenya.
The invasions have, for instance, partly encroached on the ownership of land by some of the local Arabs with considerable clout in coast politics. It will be interesting to watch how the situation unfolds given the presidents’ stated resolve to confront the problem.
The Minister for Lands is also reported to have indicated that in allocating the identified land, 80 per cent of it will be reserved for allocation to indigenous coast people and 20 per cent put to other uses.
While this principle has merits, it is usually a soft window through which requests from favoured persons find their place in the allocation lists. This should not happen.
From the past settlement schemes at the coast, documented practice shows that rapid disposal of land from locals to other people ensues soon after issuance of titles. This tends to defeat the original intended purpose by the government. Local leaders will, therefore, need to urge their people to desist from disposing off their land. If they sell, the exercise would have been in vain since poverty will continue to prevail.
Though titles are supposed to be instruments with which the holder may deal freely, this established practice will need to be regulated through the relevant local land control boards.
The bottom line is that the current efforts to settle coast people on their original customary land must be sustained whatever the obstacles. Coast people, like others elsewhere, need to own, build and cultivate land in confidence and be able to pass it on to their dependants.
This is their natural right. Coast leaders should, however, make efforts to prevail upon local people to give the government time to come up with a programme of resettlement and not the chaos that invasions would occasion.
IT IS also the business of national leaders to ensure that the under-pinning legalities are well addressed to cushion these efforts against future challenge in courts. Any efforts by the government to pursue this to a logical conclusion should be supported by all.
Ibrahim N. Mwathane is a consultant in surveying, cadastres and land information management