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Kenya in Motion 2000-2020

 | 
Marie-Aude Fouéré
, 
Marie-Emmanuelle Pommerolle
, 
Christian Thibon

Chapter 6

The Politicisation of Land Policy Reform in Contemporary Kenya

Francesca Di Matteo
Traduction de Sara Stavchansky

Texte intégral

  • 1 The territorial nature of the colonial state (and postcolonial in its wake) in Kenya was conceptua (...)

1In Kenya, as in other African countries, the colonial experience was the foundation of a centralised and authoritarian bureaucratic institutional apparatus that continued shaping the state after independence (granted in 1963). In this former British settlement colony, state institutions, including those governing property rights, have been structured to provide territorial control,1 including through the deployment of the Provincial Administration, the branches of central state power in the Districts (Bourmaud 1988). The centralisation of state control gradually took hold in the 1970s, under the aegis of the first independent government. It gained strength in the 1980s with the second president of the Republic of Kenya, Daniel arap Moi, when the regime turned to autocracy (Nyong’o 1989). Social and political movements emerged in the 1980s and 1990s in opposition to the dictatorial state power: they called for the reshaping of the social contract through the revision of the constitution (Haugerud 1997; Klopp 2001; Murunga & Nasong’o 2007). The democratisation of land management and administration systems has been an integral part of this overall movement calling for the restructuring of the state.

  • 2 For a discussion of the concept of “neopatrimonialism” applied not only to African political syste (...)

2In this context in which the action of the territorial administration has allowed local political pluralism while framing and linking it to the central state through a selective redistribution of resources, i.e. a “rationalised clientelism” (Bourmaud 1988, 138), the institutions governing the land have become porous to political interference. They have thus drawn on the land resource, held de jure in trust by public authorities, to maintain clientelist networks, according to a well-known “neo-patrimonial” logic.2 This politicisation of land governance has contributed to the exacerbation of conflicting community relations in many local contexts, some of which, as in the Rift Valley, have resonated in the national political arena. The analysis of the conflict dimension of land issues is fundamental to understanding the triggers and vehicles of reform processes in Kenya, both constitutional reform and land governance reform. Land disputes have indeed been the basis of many institutional processes (such as the many commissions of inquiry appointed by the Kenyan presidents in the 1990s and 2000s) but also of less institutional processes (such as the constitution of a transnational network of actors) that contributed to the legal-institutional transformations of the country’ systems.

3From 2000 to 2010, the Constitution of Kenya Review Commission (CKRC) worked on the drafting of a new supreme law. Land reform was one of the pillars of the proposed constitutional changes. Not only were land issues incorporated into constitutional deliberations, with a chapter of the new Constitution fully dedicated to it, but a National Land Policy (NLP), was developed in parallel within the Ministry of Lands as early as 2004. The NLP had to unravel the land question and formulate general policy principles, unifying the corpus of land laws by deciding on their aims and their orientations. These two parallel reform processes were completed between 2009 and 2010. Since 2011, the legal-institutional framework proposed by these texts was progressively, albeit very slowly, put into place.

  • 3 These remarks were notably expressed in the documents at the base of the reform elaboration: see C (...)

4Among the salient points of land reform, the restructuring of the roles and functions of institutions governing property rights emerged, since the early 2000s, as the only policy instrument that could tackle both the colonial legacy and dysfunctional land administration (i.e. lack of efficiency and neo-patrimonial practices). Above all, it was necessary to deconcentrate and decentralise the politico-administrative power of the executive, especially limiting the hold of the president on land allocations, and thereby revising the legislative framework inherited from colonisation, now considered obsolete and plethoric. The structure of land ownership was also re-examined, including a number of principles that had remained dogmatic since independence, such as the sanctity of first registration and the inevitability of the individualisation of land tenure.3

5From the beginning of the process of enactment of land reform provisions, several authors argued many actors resisted institutional change. They noted the “difficulties” in reforming institutions (Bassett 2017), as well as the existence of “counter-reform” (Klopp & Lumumba 2017) attempts by the political and bureaucratic class, namely the government of the Jubilee Coalition—in power since 2013—officials of the Ministry of Lands, and, more generally, all the beneficiaries of the old regime (McAuslan 2013, 262; Manji 2014; Boone, Dyzenhaus, Ouma, et al. 2019). All these works differentiate the process of formulating land reform texts (the Constitution and the NLP) from the elaboration of laws meant to operationalise the reform provisions. Thus, the progressive impetus of the 2000s would stand in contrast to the resistance to implementation of transformative measures of the 2010s. But these analyses do not explain why the bureaucratic-political establishment, beneficiaries of the old regime, would initially have accepted land reform. Why would blockades and sabotage attempts have waited for the implementation of a new law radically reorganising the governance and structure of property, but have quietly allowed its formulation and promulgation?

  • 4 The analyses presented here are the result of doctoral research conducted in Kenya for eighteen mo (...)

6This chapter aims to show that resistance has been a constant feature of the policy process of land reform from the early stages of its formulation to its implementation. In order to do this, it analyses precisely the process of reform starting with its setting on the government agenda and exposes the negotiations taking place before and after the promulgation of the two founding reform texts. In addition, this chapter anchors the interpretive framework of the emergence and progress of the process of land governance reform in the political history of Kenya to better understand debates and blockages. After a brief discussion of the colonial legacy and postcolonial continuity of Kenya’s bureaucratic and economic-political structures, I will first show how the politico-land conflicts of the 1990s, particularly those in the Rift Valley, prompted certain stakeholders to advocate for policy change. I will then explain the reasons why the political system suddenly became more receptive to reform narratives and highlight how the international context contributed to the pro-reform movement as well as to the design of procedures for concerted decision-making. Finally, I will dwell on the political events that both obstructed and promoted the reform process.4

1. The “Land Question”: Construction of a Dominant Narrative

It was expected that the transfer of power from colonial authorities to indigenous elites would lead to fundamental restructuring of the legacy on land. This did not materialise and the result was a general re-entrenchment and continuity of colonial land policies, laws and administrative infrastructure. This was because the decolonisation process represented an adaptive, co-optive and pre-emptive process which gave the new power elites access to the European economy. (Republic of Kenya 2009, 5.)

  • 5 For a discussion and definition of the “land question” in Africa, and / or in East Africa, see Oko (...)
  • 6 This aspect of colonial history has been largely studied by historians and jurists: see Sorrenson (...)
  • 7 They are formed in the central region, namely the Kikuyu country, named after the farmers who popu (...)

7This excerpt, taken from the NLP, is meant to exemplify the political aspects of what is called in Kenya the land question.5 It first associates the land question with the incompleteness of the process of decolonisation during transition to independence. The colonial legacy would thus be the first pitfall in the resolution of problems related to land management. This colonial legacy refers particularly to the “historical land injustices” caused by the expropriation of many Kenyan populations by the colonial enterprise, which have never been rectified. The establishment of a settlement colony in Kenya is indeed the result of large-scale land acquisitions, which the colonial government justified “legally” by a reversal of sovereignty.6 The lands targeted were mainly those located in areas of high agricultural potential: the Central Highlands and the Rift Valley, later known as the White Highlands.7

  • 8 This is especially true before the outbreak of the political and military emergence known as the M (...)
  • 9 Polysemic term which, according to the historical periods and the regions of the country, can desc (...)

8Although many communities in the highlands were dispossessed by the colonial enterprise, the land claims of some groups in the Rift Valley, namely Maasai and Kalenjin, have resonated most in the national and international political arenas at specific historical moments, such as during the transition to independence in the 1960s and the return to multi-party politics in the year 1990. In order to understand the advent and regular resurgence of one of the major social cleavages structuring the partisan Kenyan system, it is important to note that until the 1940s, the colonial administration had encouraged the migration of populations deemed fit for agriculture, such as the Kikuyu of the central region, to the European farms of the Rift Valley.8 In the independence negotiations, these migrations were disputed by the delegations representing the Maasai and Kalenjin herders and agro-pastoralists who called themselves “indigenous” to the Rift Valley and feared that European farms would be handed over to the Kikuyu, who lived there as squatters.9 At the Second Constitutional Conference, held in London (Lancaster House) in 1962, the Maasai delegation demanded the return of 70% of the White Highlands (Kantai 2007, 109). The leader representing the Maasai, Justus ole Tipis, along with the representative of the Kalenjin, Daniel arap Moi (both from the same party, the Kenya African Democratic Union, KADU) and Donald Ngala, representative of some coastal communities—all three leaders from the periphery—defended the land rights of “indigenous” communities. They opposed the claims of the Kikuyu-dominated Kenya African National Union (KANU), under the leadership of Jomo Kenyatta, who emphasised the rights acquired by sedentary communities on the basis of colonial policies (TJRC 2013, 199-206). The criteria used to redistribute lands occupied by the British became the bone of contention structuring power struggles between groups. The KANU won the first political elections of 1963. The political project of this organisation became then dominant and engulfed KADU, but it could not suppress the claims of the periphery, bound to resurge.

  • 10 See the literature on settlement schemes of the 1960s: Harbeson (1973), Leys (1975), Oucho (2002).

9The independence land deal concluded in London was condensed in Article 75 of the 1963 Constitution protecting land rights acquired during the colonial period, regardless of the process of acquisition. This article endorsed the spoliations of the colonial period and made any land restitution impossible. To appease KADU leaders and representatives of minority groups, Kenyatta promised that the ancestral lands would not be transferred to other ethnic groups, but this promise was not kept. The Africanisation of the White Highlands followed neither the logic of restitution to the first occupants (land to the “natives”) nor that of redistribution (land to the landless). The state orchestrated both sales of the old White Highlands and their financial conditions10 without any restructuring of the property system. The prevailing historical narrative argues that there was a quasi-ethnic monopoly of land redistribution in favour of the first government’s ethnic group. This narrative persisted despite the regime change at the end of the 1970s, which reoriented the neo-patrimonial strategies of land redistribution.

  • 11 To delve more deeply into the historical-political construction of Kalenjin claims, see Médard (19 (...)

10This moment in Kenyan history is seen as crucial because it has sown the seeds of discord among several groups, as their land claims have been neglected or even simply ignored. These claims were perpetuated and reaffirmed, in particular, by the use of the notion of historical land injustices. This notion is ambivalent and subject to successive reinterpretations according to the stakeholders and the context.11 What is important to emphasise here is that the construction of the cleavage between the Kikuyu and Kalenjin dominated and structured the national political scene, despite the salience of spoliations and injustices suffered by other groups in other parts of the country.

  • 12 For a discussion of the political economy choices, see Leys (1984).
  • 13 Jean-François Médard (1992, 191) has described the phenomenon of straddling between the private an (...)
  • 14 See the Ndung’u Report (Republic of Kenya 2004) for a detailed description of so-called irregular (...)

11It follows that upon independence, the Kenyan economic structure remained intact: the role of the state remained that of “creator and protector of the great landowners” (Holmquist, Weaver& Ford 1994, 76). Rural development policies continued to be tied to the myth of the productivity of large farmers,12 and social inequalities were fueled by neo-patrimonial management of resources, including land.13 The Ministry of Lands and the provincial administration system in particular were caught up in this system of selective redistribution of resources, putting themselves at the service of the powerful and thus impoverishing the quality of services delivered to the citizens.14 Land allocations, as well as the issuance of land titles, played a major role in such political strategies of building and maintaining clientelist networks that served political and electoral purposes, especially since the return to multi-party politics.

  • 15 The term “restitution” refers to the British, but because of the intertwining of ethnic and territ (...)

12Indeed, coinciding with the advent of multi-party electoral competition, the question of land “restitution” to the Kalenjin dominated political debate and the rhetoric of the electoral campaigns.15 The Kalenjin claimed to be doubly dispossessed, both by the British and by the distributive policies of the Kenyatta era, a Kikuyu president who favoured his own. The Kikuyu became targets of deadly attacks in the Rift Valley throughout the 1990s and in 2007–2008, as well as elsewhere in the country.

2. Historical and Contingent Reasons for the Land Reform Agenda

  • 16 In December 2007, following the denunciation of electoral fraud, violence erupted notably in Nairo (...)
  • 17 Through this term, the activists aimed to denounce the political and socio-economic marginalisatio (...)

13The concept of historical land injustices is essential to understand the sensitivity of the land issue in Kenya. The national land policy defines these injustices as having arisen from the land spoliations of the colonial period, perpetuated by the independent governments (Republic of Kenya 2009, 42). This concept became very relevant beginning with the post-election violence of 2007–2008 that threw the country into civil war for several months. In the wake of the 2008 National Reconciliation Agreement, the Truth, Justice and Reconciliation Commission, inaugurated on August 3, 2009, was established as an instrument of transitional justice. In particular, it examined the extent to which post-election violence had resulted from historic land injustices.16 The Commission report published in 2013 explains that the formulation “historical injustices” was adopted in everyday language in Kenya as part of the social mobilisations demanding the revision of the Constitution beginning in the 1980s.17

  • 18 In the 1980s and 1990s, this designation referred to the first human rights organisations, religio (...)
  • 19 For narratives presenting a participant point of view on the momentum of these mobilisations and t (...)

14The 1990s were a turning point in the launching of constitutional reforms as well as land reforms. First, the concerted mobilisation of various sections of Kenyan civil society18 exerted considerable pressure on President Moi’s regime, pushing him to establish the CKRC in 2000. This commission was tasked with reforming the constitution.19 Then, to understand the reasons that led the president to make political concessions, it is necessary to plunge into the internal mechanics weakening the regime. Indeed, because of an increasingly predatory mode of government—notably plundering public land and redistributing resources through new clientelist channels that excluded groups previously in power—President Moi renewed and narrowed the networks shaped by his predecessor, Mzee Kenyatta (Branch & Cheeseman 2008, 1-26).

15Finally, added to the political practices spurring exclusion was the deterioration of the economic conditions of the 1970s, which led to exasperation of the regime autocratic style, while laying the foundations for the discontent of a section of society. Due to the slowdown in the economy, which resulted from, among other things, the implementation of structural adjustment plans, the nascent Kenyan middle class was unable to maintain high levels of consumption (Holmquist, Weaver & Ford 1994, 90). Finally, an alliance between elements economically disadvantaged by the regime and international bodies were put in place. It can be said that the pro-democracy movement was well-anchored in the economic structure while also being the “product” of external forces (ibid., 96). In fact, it was through the action of the urban middle class, and not by peasant or worker organisations (largely absent from the mobilisations), that the demand for a return to a multi-party system took shape.

  • 20 For a detailed reconstruction of this movement in Kenya, see Pommerolle (2005).

16The advocacy movement for land reform has its roots and fed on the pro-democracy struggles of the 1980s and 1990s: it is their continuation, although metamorphosed. In the international context of the end of bipolarism, the wave of international programs of the 1990s, which funded advocacy activities, focused on human rights and pro-democracy lobbying and invested heavily in civil society organisations, designed by the aid industry as the democratising element in the face of predatory state devices.20 These aid flows led to an exponential increase in the number of non-governmental organisations (NGOs) (Kanyinga 2013).

  • 21 The creation of a Land Alliance is not unique to Kenya but is part of a regional or sub-continenta (...)
  • 22 These are consultants, experts or academics recruited by international organisations, and / or act (...)

17In Kenya’s land sector, donors were indirectly influential in the agenda setting of land reform when funding the creation of the Kenya Land Alliance (KLA). The KLA was originally conceived as a platform for NGOs dealing with land issues. It was meant to introduce new narratives and directories of commitment to these questions in order to influence the decision-making process. The KLA is a model of political participation that was promoted by Oxfam GB,21 itself funded by British cooperation, strictly in connection with Kenyan personalities with highly-internationalised profiles.22 This strategy worked well: not only did the KLA form a federation of various organisations and gain leadership, but it also managed to impose itself, in the early 2000s, as a key interlocutor of governmental and bureaucratic land institutions. This symbolic capital was built during the formulation of the land policy, the National Land Policy (NLP).

18It is in this context of multiple influences that, in the wake of reports produced by the commissions inquiring into the violence of the 1990s (Kiliku Commission, 1993, Akiwumi Commission, 1998), which pointed to land claims and their ethnicisation as the cause of the conflicts (Kameri-Mbote2008), President Moi established in November 1999 another commission of inquiry to examine the land laws in place and propose a restructuring of the legal-institutional system. The recommendations of the so-called Njonjo Commission (named after its chairman, the former Attorney General, Charles Njonjo), published in 2002, constituted a fundamental precedent for the start of the land reform process. This Commission documented the excessive (too many laws) and inefficient (lengthy and costly) nature of the legal framework governing land, while also highlighting the concentration of power within the executive branch. These land-related findings helped to justify, more broadly, a political-administrative decentralisation of public authorities in Kenya. For the first time, an official document issued from the circles of power argued for the need to reform laws and harmonise them through the development of a national land policy.

  • 23 It should be noted that the terms and contents of land reforms in so-called developing countries h (...)

19The appointment of this Commission also galvanised the transnational network (of which the KLA was part and parcel) of Kenyan and international activists, aid professionals, and consultants who had previously been waiting in the shadows of a regime, seemingly impenetrable to change, for the window of opportunity (Kingdon 1984; 2002) to convey new narratives and references to the government forum to fuel the process of change. Both the Njonjo Report (Republic of Kenya 2002) and the first version of the constitutional text, a document called “The People’s Choice” (CKRC 2002), were partly dependent on the contributions of the Law Professor H. W. O. Okoth-Ogendo, building stone of the transnational network. The KLA also significantly contributed to the production of these two documents. Since its founding in 1999 and during the decade of land reform law formulation, it was funded to produce research and foster the development of a policy incorporating provisions that “international standards” recognise as pro-poor.23

20In 2002, the electoral debacle of President Moi’s heir apparent Uhuru Kenyatta, son of Jomo Kenyatta, sanctioned the first political alternation, as well as the demise of KANU, the independence party. The rise to power of the National Rainbow Coalition (NaRC), a coalition of opposition parties and KANU’s dissenters, seems to have been crucial for the start of constitutional reforms as a result of the relative injection into the state machine of personalities from civil society (Anderson 2003).

  • 24 The Development Partners Group on Land is made up of UK Aid, Irish Aid, Swedish International Deve (...)
  • 25 The Minister of Lands at the time, Amos Kimunya, was not a politician, but a chartered accountant (...)

21At the dawn of the electoral victory of the NaRC, a group of donors24 initiated an intense collaboration with the Ministry of Lands to jointly design the methods of formulation of the NLP.25 The so-called National Land Policy Formulation Process (NLPFP) was fully funded by donors. They established a Memorandum of Understanding with the Ministry of Lands, held regular consultations with senior officials of the Ministry, and recruited consultants to manage the budget and support the conceptualisation of the land policy text.

  • 26 See the report of USAID on the analysis of the NLP (USAID 2009 [2008]).
  • 27 One need only refer to USAID’s lobbying activity that tries to convince DfID to stop supporting KL (...)

22In this context, it is instructive to put the NLPFP in perspective with the constitutional revision process. Although both processes involved to a certain extent the same actors and produced the same content, the constituent conference was fully funded by the Kenyan government and became the scene of consequential political bickering, while the NLPFP was apparently immune to conflict. The unprecedented collaboration of NGOs with the Ministry of Lands produced a document partly traversed by decolonising motives, asking, for example, for the legal recognition of local land rights of rural communities (based on the conceptualisation of the legal category of community), and the comprehensive treatment of historical injustices, thus endorsing a principle of social justice which, for some stakeholders, remained very dangerous.26 The political stakes of the NLPFP process were nonetheless highly significant,27 even if they were relatively shadowed by the strong politicisation of the constituent conference. This is explained by the fact that politicians were the main absentees of the NLPFP, while they dominated the last phase of the constituent conference. The NLPFP was led by transnational actors; only a few Ministry of Land bureaucrats were involved. The final version of the land policy was completed in 2007, but it would take two years before Kenyan government institutions endorsed it.

  • 28 On one side, the Liberal Democratic Party (LDP) of Mwai Kibaki, former executive of KANU, who in 2 (...)
  • 29 Mr. Kibaki broke his promise at the Constitutional Conference by leaning towards a strong presiden (...)

23In this context, it is important to relativise the fall of KANU and the rise to power of the NaRC government as catalysts of change. It is true that following the political alternation of 2002, the process of formulating the NLP started, and the process of constitutional revision, which President Moi had interrupted before the December 2001 general elections, was revived. However, the reluctance of some parts of the coalition to work for change was visible as early as in 2005, when internal disruptions stalled the reform process. The NaRC was, in effect, composed of two political forces28 that joined hands by political expediency (to get rid of Moi), though de facto remained divided. Their honeymoon was very short, and discord in the constitutional referendum of 200529 was visible. The intra-government feud froze the reform process until 2007, during the presidential elections in December, which plunged the country into interethnic clashes in Nairobi, in the Rift Valley, and other places throughout the country. The peace agreement materialised from a power-sharing agreement between the two parties, who committed to the fulfillment of constitutional reforms (including land reform) in order to restore peace in the country. The NLP was adopted in December 2009 by Kenyan Cabinet and Parliament; in the same context of the end of the crisis, the new Constitutional was promulgated in August 2010 via referendum.

24Both interviews and observations as well as the re-reading of historical events from 2000 to 2010 show that the entire process of land reform elaboration (six years for the NLP, and approximately ten for the Constitution) suffered the ups and downs of partisan ruptures and re-compositions of the Kenyan political system. Indeed, if the reform agenda had fed on the political violence of the 1990s (Njonjo Commission appointed in the wake of commission reports investigating the causes of conflict in the 1990s), it was the brutal resurgence of conflict arising from local arenas at the centre of the national scene in 2007 (Boone 2014) that made it possible to unblock the political impasse crystallised by the 2005 referendum rejecting the Constitution. It seems that the transitional government created in 2008 had no other choice but to endorse the constitutional text in order to fulfil its commitments to restore peace in the country.

25The reform of land governance was, in this sense, imposed (by concomitant internal and external forces) upon a political class that was at reluctant to reform the land administration because of the historical system of territorial control and centralised authority over land rights in place since colonisation. The initial relative enthusiasm of the incoming government (especially between 2003–2005) may have reflected an initial desire both to stand out from the past and probably also to recast political alliances through, among other things, the restructuring of land governance. Yet, the overhaul of land governance systems would prove too expensive (in political terms), especially for the bureaucratic establishment. The analysis of negotiation of norms during the formulation of land laws, meant to enact constitutional principles, corroborates this assumption, as illustrated here below.

3. Inter-Institutional Impasse or Necessary Adjustments?

  • 30 It is instructive to note that the KLA Director was also appointed a member of the Ndung’u Commiss (...)

26As we have seen, the report issuing from the Njonjo Commission served as a reference for the development of the National Land Policy. The content of the land chapter of the Constitution is also inspired by the recommendations of this report. The commission of inquiry indicated that the concentration of decision-making power in the hands of the President and Commissioner of Lands (appointed by the President), particularly with regard to land allocations, was among the most blameworthy elements of the system of land governance. Several pages of the Njonjo Report describe this system of land administration as vulnerable to political interference. Another commission of inquiry—the Ndung’u Commission, named after its chairman, Paul Ndung’u30—appointed by the NaRC government in 2002 and charged with investigating fraudulent land allocations, also unveiled the many methods of abuse of an excessively concentrated and personal power.

  • 31 This politician was, by the time of writing this paper, Governor of the Kisumu County, at the time (...)

27Indeed, by virtue of the land laws previously in force (like the Government Lands Act), the President had the right to dispose of public lands (then classified as government lands) and to delegate this power to the Commissioner of Lands. Both ignored the “public interest” clause that was to govern such measures: they allocated public land to clients of the regime. This phenomenon is commonly referred to as land grabbing in Kenya. The omnipotence of the President and his Commissioner was illustrated in the jargon of the sector by the expression “green pen.” In 1997, during a parliamentary debate on the revision of the Constitution, the (then opposition) MP Prof. Anyang’ Nyong’o,31 declared:

Mr. Speaker, Sir, we must, in the new Constitution, ensure that we are no more enslaved by this presidential authoritarian system. From the moment the new Constitution comes into being, no President in the Republic of Kenya should be a demi-god. No President should have the power of taking a green pen and signing a piece of paper and bequeathing to an individual thousands and thousands of acres of lands of Kenyans. (National Assembly, Official Report. The CKRC Bill, the 14th of October, 1997.)

  • 32 Regarding (unregistered) community lands, the Njonjo Report agreed on the relevance of securing th (...)
  • 33 The commissioners are recruited by competition, and their appointments are sanctioned by Parliamen (...)
  • 34 Similarly for the decentralised entities of the NLC, the County Land Management Boards, whose memb (...)

28On the basis of these findings, the recommendations of the two commissions converged on the establishment of a new institutional framework that would bring efficiency, transparency, and accountability to the land administration system, thus converging towards the establishment of an independent commission, the National Land Commission (NLC), responsible for the management of the public and community land domain.32 This mandate would be included in the articles of the NLP, from 232 to 238 (Republic of Kenya 2009), thus envisaging the creation of a constitutional body, independent from the Ministry of Lands, accountable to Parliament and composed of eight commissioners33 with strong powers. The NLC was supposed to administer all public lands, establish a register of all land areas, exercise the compulsory acquisition of property, and establish and manage the National Land Trust Fund, a fund that was to finance the implementation of several reform processes, such as the resolution of historical injustices.34

  • 35 “Art. 84(2)(c) to advise the national Government and devolved governments on a policy framework fo (...)
  • 36 “Art. 83(e) to advise the Government on, and assist in the execution of a comprehensive programme (...)

29Through these recommendations, the historic mandate of the Ministry of Lands was drastically reduced and even stripped of strategic functions, such as those related to land registration. However, the profound restructuring of the mandates and institutional powers proposed by the NLP had less legislative than programming value. The whole challenge of the work of the activists and members of the advocacy coalitions was to ensure that the contents of the NLP be included in the final version of the constitutional chapter on land in order to ensure its future implementation. In August 2010, following the meeting of the Parliamentary Committee on Land and Natural Resources in Naivasha to revise the constitutional text in order to resubmit it to the referendum vote, certain crucial functions attributed to the NLC were excluded from its jurisdiction. This included the clause giving the Commission the right to manage community and private lands35 as well as the clause giving it the power to co-execute (with the Ministry of Lands) the land registration program. In this respect, the final version of the constitutional chapter conferred on the NLC only a meagre role of advisor.36

  • 37 Namely: “Art. 5(2)(b) monitor the registration of all rights and interests in land; (e) manage and (...)
  • 38 For example, the Adjudication Land Act, according to which the Ministry of Lands is in charge of l (...)

30These last-minute revisions made little contribution to an unequivocal reading of the respective mandates of land institutions. They were mainly used to trigger endless disputes over the “real” perimeter of the NLC’s mandate, and by extension the Ministry’s, and the formulation and enactment of laws defining in detail the functions of the Commission. The NLC Act was enacted in 2012 in conjunction with two other land laws (the Land Act and the Land Registration Act). Although the process of formulating these laws has been described by academic Ambreena Manji (2013) and other stakeholders (including NGOs) as yet another attempt by the political establishment to obstruct the reform process, these laws broadened the NLC’s mandate by restoring to it some of the functions of which it had been relieved by the politicians at the Naivasha meeting.37 Some confusion nevertheless resulted from the non-repeal of laws dating from the old regime (pre-Constitution 2010) in contradiction with the new legislative provisions.38 This laid the foundation for an inter-institutional conflict fought with obstructionism, polemical statements in the press, and above all litigation to tip the scales of interpretation of norms.

  • 39 Gazette Notice No.7503. 2012. The National Land Commission Act (No. 5 Of 2012) Taskforce to Develop (...)

31Controversies related to these land laws began as soon as they were formulated. The work of the Ministry’s consultant to draft the laws (a Kenyan, head of a notorious law firm in Nairobi) was harshly criticised by KLA and its members, who accused the consultant of writing the laws by “copying and pasting” Tanzanian land legislation. In addition, land laws were introduced into Parliament very late, two weeks before the constitutional deadline. The KLA and the surveyors’ body, Institution of Surveyors of Kenya, then protested against the lack of public consultation during the formulation of these laws. These organisations then requested and obtained a sixty-day deadline extension. Thus, debates about land laws continued within and beyond Parliament, but it seems, without inscribing in the body of laws a legal distinction between the roles and functions of land governance institutions. Indeed, in May 2012, after enactment of the laws, the President of the NLC, university professor Mohamed Swazuri, appointed a taskforce to identify provisions that were contradictory or inconsistent with other laws in order to propose amendments.39 Thus, barely enacted, the land laws were already in the process of being amended.

  • 40 The Kalenjin and the Kikuyu became national allies, benefitting from a demographic majority due to (...)
  • 41 It is instructive to observe that in 2014–15 and again in 2015–16, the Treasury allocated 2.2 bill (...)

32It was only in 2015, two years after the establishment of this taskforce, which was supposed to report on its work within three months, that the Land (Amendment) Act was published by the Ministry of Lands and not by the NLC. It is important to note that the 2013 presidential elections saw the rise of Uhuru Kenyatta, who was elected president of Kenya at the head of a coalition government (Jubilee Coalition) with William K. Ruto, leading to a fundamental transformation of the partisan opposition game.40 Unlike in the days of the NaRC, the Jubilee government adopted a decidedly conservative approach to land management, returning to the promotion of individualised land titles as an instrument of “unblocking” economic capital.41 The Jubilee administration made the title deed into an ideological foundation, which went hand in hand with business and private enterprise incentives, typical of its neoliberal approach. It is clear that the political environment was no longer conducive to the discussion of NLP’s principles of social justice, especially considering that NLP’s decolonising intentions may have been detrimental to the private interests of the Kenyatta family, who were beneficiaries of the Mzee-era allocations.

  • 42 The government was also in favour of maintaining centralised administrative power within the Minis (...)
  • 43 Indeed, the budget allocation to the NLC was the prerogative of the Ministry, but only until 2015- (...)

33From 2013 to 2016, during the elaboration of amendments to the land laws, relations between the land institutions of the old and new regime further deteriorated. Ellen Bassett (2017) described the successive developments of the tension of these relations. It would seem that as soon as the NLC’s eight members were appointed in 2013, the government was reluctant to support the new institution.42 Not only did the High Court require the President to publish the names of commissioners in the Official Journal (prompted by a complaint filed by a KLA member), but the first budget allocation to the NLC from the Ministry of Lands was well below expectations (241 million KES, compared to 2 billion envisaged by the NLP).43

  • 44 Mutambo, Aggrey. 2014. “Confusion Mars Land Ownership Transfers.” Sunday Nation, 2 February. https (...)

34A few months before the establishment of the NLC, differences over the interpretation of the respective powers became public. The minister and the chairman of the NLC both claimed power to register land, issue land titles, and manage the resettlement processes of evicted persons. More specifically, the debate focused on the signing of land titles, symbolising authority in the land sector.44

4. Pro-NLC Mobilisation, but Failure on the Historical Land Injustices Test

  • 45 For more details on governors’ positions, see also Bassett (2014).

35In response to this institutional and political impasse, NGOs, including KLA, aligned with the NLC, creating an opposition front against the Ministry, and thereby the government. The Commission thus renounced its non-political character when it was defended by NGOs and by some representatives of the Council of Governors who joined the anti-old-guard front because of the reluctance of the central government to decentralise powers, as envisaged by the new Constitution.45 This is particularly true in the case of the KLA fundraising campaign from a number of donors (including USAID, but also the Ford Foundation and Swedish cooperation) for the benefit of the NLC.

  • 46 Musa, Kurian. 2015. “Supreme Court: The National Land Commission Has no Mandate to Issue Land Titl (...)
  • 47 Interview with Mohamed Swazuri conducted on April 4, 2016.

36NGOs were also very active in supporting the NLC requesting an advisory opinion from the Supreme Court in April 2014 (Reference No. 2 of 2014) on certain aspects of its mandate: two civil society organisations, Katiba Institute and Haki Jamii, who specialise in legal advice, declared themselves amicus curiae in favour of the NLC. The verdict, issued on December 2, 2015, clarified the roles of the two institutions, and on the thorny issue of the issuance of titles, the Court stated that, although the involvement of the NLC in the preliminary stages of land allocation was not under discussion, the signing and issuing of titles remained the mandate of the Ministry.46 The NLC and the Ministry then jointly set up an inter-ministerial commission so that its members could interpret and operationalise the verdict of the Court. It was therefore an interpretation of interpretation, or as the chairman of the NLC sarcastically defined it, the opinion of a “Superior Supreme Court”47—a formulation that denounced the legalistic approach of senior Minister of Lands’ officials seeking to dilute the role of the Commission.

  • 48 Burrows, Olive. 2014. “Historical Land Injustices to Be Resolved ‘Once and for All.’” Capital News (...)
  • 49 “Draft Bill Proposes Tribunal to Address Historical Injustices.” 2015. Daily Nation, 6 February. h (...)
  • 50 Ibid.
  • 51 “Taskforce on Historical Land Injustices in Marsabit.” 2014. Marsabit Times, 16 October. https://m (...)

37If the civil society was convinced that the NLC was going to spearhead change, the positioning of some of these NGOs was recalibrated as of 2015 because the NLC failed the test of historical land injustices (HLI). Due to its constitutional mandate to begin investigations into injustices, the NLC formally announced on May 20, 2014, the formation of a taskforce to conduct hearings and public consultations to define the scope of injustices and to propose a law systematically dealing with land grievances. Expectations were high: this working group had awakened the hopes of Kenyans.48 Nevertheless, nine months later, when the HLI bill was presented to the public, it was rejected by NGOs, including the KLA.49 The taskforce was disappointing, first, because of its composition: two members had been singled out, accused of being “beneficiaries of injustices.”50 In addition, the public hearing seemed to have been conducted in a rushed manner, sometimes reduced to a brief visit to the counties, where participants sometimes lamented that they had not received any preparation regarding the questionnaires distributed during the hearings,51 on which the bill should have been based. The drafting of the bill was eventually entrusted to a consultant who did so without taking into account the public hearings report, only compiled a posteriori because of the criticism. Moreover, the bill merely established an ad hoc tribunal expected to tackle the cases of historical injustices. This amounted to relieving the NLC of its constitutional mandate by delegating it to another entity whose establishment would have called into question the relevance of the NLC.

  • 52 For an empirical discussion of the reform of land tenure categories, namely the attempts to instig (...)

38Because of all these criticisms, the bill was shelved. To fulfil the constitutional mandate of the NLC, a shortcut was to be found: as part of the amendments to the 2016 land laws, the NLC was conferred the power to investigate and deal directly, on a case-by-case basis, with the complaints and historical grievances, without however a comprehensive legal framework to which refer to. All the amendments to the 2012 land laws were enacted on August 4, 2016. Ultimately, the NLC found itself deprived of its decentralised bodies, while the most strategic functions were attributed to the Ministry, such as the management of all land transactions as well as the registration of so-called community lands.52

Conclusion

39The reform of the land system would not have been put on the Kenyan agenda in the early 2000s if different dynamics, both domestic and international, had not converged fortuitously at the very moment when policy entrepreneurs (Kingdon 1984), operating within the framework of transnational networks, were able to seize the “window of opportunity” that was offered to them. The analysis of these accidentally-convergent dynamics helps to unlock the black box of decision-making to comprehend institutional change as itinerant, contradictory, and decidedly hybrid.

40The case of the Kenyan land reform highlights the fact that the “window of opportunity” is contingent and does not last long, as shown by the political vicissitudes in 2005 and 2007, as well as the successive changes made to the texts of the land reform. Secondly, the political economy of the decision-making process revealed the multi-scale power dynamics in which the decision-making machine is embedded, in Kenya as elsewhere. The legal-institutional processes of policy-making have been put into perspective with political contingencies to show their intertwining: partisan power struggles, the weight of personalities, and individual interests participated in the negotiation of norms and of the political-legal status of the actors of the reform process.

41Policy and politics are very closely linked, as the process of developing land reform in Kenya has been the source of intense political activity resulting in alliances, ruptures, and many re-compositions. This case study challenges a conceptualisation of the decision-making process as eminently technocratic, depoliticised or extroverted, especially in an African country under aid-regime. The stalling of contemporary land reform in Kenya must be understood in a historical perspective so to account for the multi-dimensional politicisation processes of issues, procedures, and actors themselves. The in-depth analysis of the multiple processes and power struggles leads to relativise the concept of “resistance” and to consider the complexity of the “land question” from its historicity and its entrenchment in the power dynamics structuring the Kenyan state and polity. If, on the one hand, it appears that political and land institutions are strongly defined by habitus and neo-patrimonial practices, we can see, on the other hand, that the institutionalisation of change and democratic practices is not a clearly linear process, which is reflected in particular in the reluctance of some NLC commissioners to confront the spectres of corruption and historic land grievances.

This chapter has benefited from the advice of many researchers whom I would like to acknowledge: Claire Médard, who reviewed and commented on several versions of this article, as well as Philippe Lavigne Delville, Catherine Boone and the editors of this book, notably Marie-Emmanuelle Pommerolle and Marie-Aude Fouéré, who offered valuable advice. Omissions and inaccuracies are my responsibility.

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Notes

1 The territorial nature of the colonial state (and postcolonial in its wake) in Kenya was conceptualised by Claire Médard (1999) in her doctoral thesis in Geography. She shows that the state territorialise its power through the control of both natural resources and populations.

2 For a discussion of the concept of “neopatrimonialism” applied not only to African political systems, see Bach & Gazibo (2012).

3 These remarks were notably expressed in the documents at the base of the reform elaboration: see Constitution of Kenya Review Commission, The People’s Choice. The Report of the Constitution of Kenya Review Commission (2002), Report of the Commission of Inquiry into the Illegal / Irregular Allocation of Public Land (2004), and Sessional Paper No. 3 of 2009 on National Land Policy (2009).

4 The analyses presented here are the result of doctoral research conducted in Kenya for eighteen months. I adopted several qualitative methods of data collection: semi-structured interviews with a wide range of actors (members of associations, public authorities, representatives of rural communities, etc.), press review, participatory observation in civil society and government workshops, notably through the integration of a non-governmental organisation lobbying for reform, the Kenya Land Alliance.

5 For a discussion and definition of the “land question” in Africa, and / or in East Africa, see Okoth-Ogendo (2007), Moyo (2008) ou Manji (2013).

6 This aspect of colonial history has been largely studied by historians and jurists: see Sorrenson (1968), Péron (1995), Okoth-Ogendo (1991) and Hughes (2006).

7 They are formed in the central region, namely the Kikuyu country, named after the farmers who populate this area, and the Rift Valley, where groups who engaged in pastoralism, but also agriculture, coexisted.

8 This is especially true before the outbreak of the political and military emergence known as the Mau Mau revolt, as a result of which migrations, including Kikuyu, were strictly controlled, and Africans residing on the settlers’ farms “repatriated” to the reserves: (see Kanogo 1987; Berman & Lonsdale 1992).

9 Polysemic term which, according to the historical periods and the regions of the country, can describe different socio-economic and political relations: see Kanogo (1987) for an analysis of the conditions of the Kikuyu on settler farms in the Rift Valley.

10 See the literature on settlement schemes of the 1960s: Harbeson (1973), Leys (1975), Oucho (2002).

11 To delve more deeply into the historical-political construction of Kalenjin claims, see Médard (1999) and Lynch (2011). For a necessary detour into other regions of Kenya, see the works on the Swahili coast: Willis (1993), Cooper (1980). For northern Kenya, see also Schlee (1989) and Oba (1992).

12 For a discussion of the political economy choices, see Leys (1984).

13 Jean-François Médard (1992, 191) has described the phenomenon of straddling between the private and public spheres in Kenya, showing how individual enrichment is a function of access to the state. Other authors have revealed that the redistribution of resources by those in power is accomplished through regional and ethnic affiliation: Bradshaw (1990), Wrong (2010), Boone (2012). For a historical discussion of neo-patrimonial logic in Kenya, see the thesis of Jaqueline Klopp (2001).

14 See the Ndung’u Report (Republic of Kenya 2004) for a detailed description of so-called irregular and illegal land transactions of which land administration has been responsible since Kenyan early independence years.

15 The term “restitution” refers to the British, but because of the intertwining of ethnic and territorial claims, it is used in everyday language in Kenya to refer to land injustices perpetrated by independent governments.

16 In December 2007, following the denunciation of electoral fraud, violence erupted notably in Nairobi and in the Rift Valley, throwing the country into deadlock for several months, causing the death of 1,200 people and displacing 500,000 (Human Rights Watch 2008). In the 1990s, this confliction associated with the electoral meetings had also affected the coastal and northern region, showing that the grievance was not localised but diffuse.

17 Through this term, the activists aimed to denounce the political and socio-economic marginalisation of social groups and regions, whereas, more generally, this expression refers to the dispossessions and inequalities that result from the land policies implemented since colonisation: see TJRC (2013, 68).

18 In the 1980s and 1990s, this designation referred to the first human rights organisations, religious figures and organisations, student university unions, cultural professionals (such as traveling and participatory theatre actors), as well as private sector professionals, including lawyers who actively participated in the pro-democracy struggle corporately and individually by providing pro bono legal services to political prisoners.

19 For narratives presenting a participant point of view on the momentum of these mobilisations and the struggles between the mobilised groups and state authorities, see Mutunga (1999), Mutua (2013) and Maingi (2011).

20 For a detailed reconstruction of this movement in Kenya, see Pommerolle (2005).

21 The creation of a Land Alliance is not unique to Kenya but is part of a regional or sub-continental strategy. Land Alliances have been created in Zambia, Zimbabwe, Malawi, Tanzania and Uganda, still under Oxfam GB’s impetus, at the start of land reform formulation processes, to federate NGOs and thereby strengthen their advocacy capacity.

22 These are consultants, experts or academics recruited by international organisations, and / or activists operating in connection with the aid system.

23 It should be noted that the terms and contents of land reforms in so-called developing countries have historically been debated primarily between bilateral and multilateral donors (and only to a lesser extent with the governments concerned), who discuss the best formula for economic growth. This was true until the turn of the twenty-first century, when the focus was instead on poverty-reduction strategies ideally formulated through involvement of key stakeholders (see, for example, Mosse & Lewis 2005). In this overall framework, the KLA, like other Land Alliances in Africa, is indeed an emanation of this specific historical moment when some development aid agencies tried to formulate alternative models to the dominant dogma of privatisation and the primacy of the market (see Toulmin & Quan 2000).

24 The Development Partners Group on Land is made up of UK Aid, Irish Aid, Swedish International Development Authority, USAID and UN-Habitat.

25 The Minister of Lands at the time, Amos Kimunya, was not a politician, but a chartered accountant who had chaired the professional organisation of accountants in Kenya and had also been a consultant for British cooperation. It was the advent of new players in high-level positions, such as Kimunya, who had some familiarity with donors, which no doubt made the start of reforms possible.

26 See the report of USAID on the analysis of the NLP (USAID 2009 [2008]).

27 One need only refer to USAID’s lobbying activity that tries to convince DfID to stop supporting KLA.

28 On one side, the Liberal Democratic Party (LDP) of Mwai Kibaki, former executive of KANU, who in 2002 became president; on the other side, the National Alliance Party of Kenya (NAK) of Raila Odinga, opposition leader, who had allied with KANU's dissident fringe because of the promise of creation, through the constitutional revision, of a prime minister position. A two-headed government was therefore formed, allowing the coalition to self-perpetuate.

29 Mr. Kibaki broke his promise at the Constitutional Conference by leaning towards a strong presidentialist. The constitutional draft was changed by the Attorney General, Amos Wako, just before being submitted to the popular vote (hence the name of this version of the constitutional text, the Wako draft).

30 It is instructive to note that the KLA Director was also appointed a member of the Ndung’u Commission, which confirms the success of his organisation in integrating institutional forums for debate and the development of public policy solutions and tools.

31 This politician was, by the time of writing this paper, Governor of the Kisumu County, at the time of the quoted speech, a member of Ford-Kenya, the progressive wing of the NaRC, among the members of the coalition from the ranks of civil society; he was indeed a professor at the University of Nairobi then head of programs at the African Academy of Sciences in Nairobi.

32 Regarding (unregistered) community lands, the Njonjo Report agreed on the relevance of securing this land area through the legal recognition of customary land practices. The report also pointed to the abuses of the trusteeship model, a system whereby community lands were held in trust by local authorities, the County Councils, which eventually allocated these lands by confiscating them or giving them as concessions to private investors, while robbing the communities. Lastly, it recommended that the registration of community lands be under the jurisdiction of the decentralised bodies of the NLC.

33 The commissioners are recruited by competition, and their appointments are sanctioned by Parliament to ensure that recruitment reflects the imperatives of representation, experience and integrity: Republic of Kenya (2009); art. 232.

34 Similarly for the decentralised entities of the NLC, the County Land Management Boards, whose members were to be accountable to county parliaments. They were assigned crucial functions by the NLP in land administration, such as land use planning, land registration, record keeping of land transactions, and the issuance of titles: ibid., art. 241-246.

35 “Art. 84(2)(c) to advise the national Government and devolved governments on a policy framework for the development of selected areas of Kenya, to ensure that the development of community and private land is in accordance with the development plan for the area.” Committee of Experts on Constitutional Review. 2009. Harmonised Draft Constitution, Published on 17th November: 48.

36 “Art. 83(e) to advise the Government on, and assist in the execution of a comprehensive programme for the registration of title in land throughout Kenya (Committee of Experts on Constitutional Review 2009). We have highlighted the deleted words in the final version of the Constitution.”

37 Namely: “Art. 5(2)(b) monitor the registration of all rights and interests in land; (e) manage and administer all unregistered trust land and unregistered community land on behalf of the county government” (Law of Kenya, National Land Commission Act, No. 5 of 2012). Moreover, management of land registries was conferred upon it by Articles 6 and 7 of the Land Registration Act (Law of Kenya, Land Registration Act, No. 3 of 2012).

38 For example, the Adjudication Land Act, according to which the Ministry of Lands is in charge of land registration, which differs from Art. 5(2)(b) and (e) of the NLC Act.

39 Gazette Notice No.7503. 2012. The National Land Commission Act (No. 5 Of 2012) Taskforce to Develop Rules and Regulations under the National Land Commission Act, Dated the 28th May, 2013.

40 The Kalenjin and the Kikuyu became national allies, benefitting from a demographic majority due to ethno-regional alliances that were apparently decisive during elections in Kenya.

41 It is instructive to observe that in 2014–15 and again in 2015–16, the Treasury allocated 2.2 billion and 2.9 billion KES, respectively, to the Ministry of Lands for the issuance of 1 million land titles (HakiJamii 2015). See also Doyle (2016).

42 The government was also in favour of maintaining centralised administrative power within the Ministry, particularly during the enactment of Executive Order N.2/2013, when the Kenyan executive gave the Ministry a mandate that rendered the existence of the NLC meaningless.

43 Indeed, the budget allocation to the NLC was the prerogative of the Ministry, but only until 2015-2016, when Haki Jamii, a member of the KLA, registered a 29% increase over the previous year (with allocations of 896 million KES and 1.153 billion KES, respectively), which remained undersized but increasing (HakiJamii 2015).

44 Mutambo, Aggrey. 2014. “Confusion Mars Land Ownership Transfers.” Sunday Nation, 2 February. https://nation.africa/kenya/news/confusion-mars-land-ownership-transfers-944944 [archive].

45 For more details on governors’ positions, see also Bassett (2014).

46 Musa, Kurian. 2015. “Supreme Court: The National Land Commission Has no Mandate to Issue Land Title Deeds.” The Standard, 2 December. https://www.standardmedia.co.ke/nairobi/article/2000184276/supreme-court-national-land-commission-has-no-mandate-to-issue-land-title-deeds [archive].

47 Interview with Mohamed Swazuri conducted on April 4, 2016.

48 Burrows, Olive. 2014. “Historical Land Injustices to Be Resolved ‘Once and for All.’” Capital News, 1 September. https://www.capitalfm.co.ke/news/2014/09/historical-land-injustices-to-be-resolved-once-and-for-all/ [archive].

49 “Draft Bill Proposes Tribunal to Address Historical Injustices.” 2015. Daily Nation, 6 February. https://nation.africa/news/politics/Land-Injustices-Bill-National-Land-Commission-Parliament/1064-2615680-format-xhtml-hkguhkz/index.html [archive].

50 Ibid.

51 “Taskforce on Historical Land Injustices in Marsabit.” 2014. Marsabit Times, 16 October. https://marsabitimes.com/task-force-on-historical-land-injustice-in-marsabit/ [archive].

52 For an empirical discussion of the reform of land tenure categories, namely the attempts to instigate a paradigm shift, moving from the land trust model introduced at the time of colonisation to the recognition of a “community” legal personality, see Di Matteo (2017).

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