Three salient constraints to constitutional land solutions

The 2013 intergenerational power-transfer to conservative progeny retained the political leadership and with it, the overarching problems of ‘inability to think’ corruption and human rights


By Charles Khamala & Andrew Mellon

In agrarian economies, the key property in question is land, the primary means of production. Some land ownership scholars on Kenya, such as Perpetua Karanja, Akinyi Nzioki, Parker Shipton and Mitzi Goheen, reject the notion of collective ownership in customary land tenure, except for lands with particular cultural functions. They point out instead the system of intersecting, multi-layered rights, which grants various rights or privileges in the land to myriad members of the family, clan, etc.

Even assuming that their studies are statistically significant, what value is “ownership” without “access?” Thomas Sikor and Christian Lund show that “people may hold formal property rights to some resources without having the capacity to derive any material benefit from them.” They argue that “people lack effective rights if such rights are promised in law by custom but denied in practice. This is where property and access overlap partially; property rights may not translate into ‘ability to benefit’, and access may or may not come about as a consequence of property rights.” Nobel laureate, economist Amartya Sen’s “capabilities approach” contributes to the concept of famine, poverty and development. His human rights as “recognition of some important freedoms” emphasises widening people’s options to live productive and creative lives “that….people have most reason to value.”

Most rural African peasant communities dwell on communal land and live their daily lives according to customary law, which lacks a profit-motive or self-maximising tradition.

Because our economy does not produce sufficient surplus-value, Kenya’s first constitutional problem is that the government fails to collect sufficient domestic taxes to produce public goods. That is why in 2014, President Uhuru Kenyatta’s Jubilee administration was forced to issue IOUs to raise Sh250 billion from foreign markets. European governments, companies and financial institutions bought our Eurobonds on the Irish Stock Exchange.

Kenya is indebted to repay with interest. That loan is earmarked for capital projects like “geothermal plants, expanded airports, or a railway between Nairobi and the port city of Mombasa.”

Resource constraints

Yet, September 2014 transfer receipts suggest that US$999 million (Sh100 billion) of these proceeds were siphoned from one Kenya government sovereign bond account, at JP Morgan Chase in New York, to another at the Federal Reserve Bank of New York. It is no coincidence that with 2017 elections looming, Jubilee’s incumbent politicians engage in a culture of conspicuous consumption, contributing millions of shillings at weekly “harambees.” Yet section 55(2) of the Anti-Corruption and Economic Crimes Act (2003) creates “the presumption of corrupt conduct.” This was held by the Court of Appeal in the 2015 “Ethics and Anti-Corruption Commission v Stanley Mombo Amuti,” case. Judges Martha Koome, Hannah Okwengu and Festus Azangalala asserted that the Kenyan Constitution “makes provisions for national values and principles of good governance that includes integrity, transparency and accountability.” It is on these grounds that Opposition leader Raila Odinga, recently decried plunder of public money for private purposes.

Judicial independence is crucial for domestic commerce. However, widespread lack of literacy and numeracy skills by domestic borrowers promotes informal dispute resolution techniques, rather than Western adversarial litigation models. Furthermore, for entrepreneurs to overcome resource-constraints, i.e. to raise capital, sophisticated judges are required to balance between striking down defective, market-distorting, governmental command decisions, while simultaneously preventing encroachment upon human rights by predatory administrators.

At one extreme, unregulated financial markets facilitate fleecing of “wananchi.” At the other extreme, Parliament controls key sub-sector prices, like petrol. Prevailing economic austerity explains Sirisia MP John Waluke’s recent revival of the “Donde Bill”, which seeks a ceiling on commercial interest rates to outlaw usury. Such protectionist measures reflect the difficulty of unsophisticated administrators in developing countries to respect equal rights, as it demands application of complex discretionary standards, which increases the cost of governance. Whether liberalism or protectionism, the absence of independently audited oversight accounts necessitates conceptualising a normative framework to estimate the malfunctioning of checks and balances in the new constitutional dispensation. Are incessant calls for constitutional referenda justified? Which specific amendment is preferable to establish effective controls on government borrowing, spending and abuse of power?

Second-best reforms

Economists Richard Lipsey and Kelvin Lancaster discovered the general theorem of the second-best in 1956. It means that a constitution may be defective in multiple dimensions. It may not only contain defective rules, but also be presided over by unsophisticated rulers. In such compoundedly bad constitutions, they caution that sometimes a change in its crude rules, while retaining unsophisticated administrators, or vice versa, can make matters worse. Rather, the current situation may sometimes represent the second-best situation.

Ideally, a change in both bad rules as well as poor leadership produces first-best overall social welfare. This second-best theory can audit the performance of Jubilee’s constitutional implementation.

Bad constitutionalism began with colonial Kenya’s “indirect rule” model. Feudalism denied Africans any right of appeal to the Supreme Court to challenge crude rules. Imperialist discriminatory due process resulted in an uneven playing-field. Facilitated by hand-picked home guards, the perception that socio-economic inequalities were unmerited precipitated the Mau Mau rebellion. African nationalists rejected blatant race-based exclusion. During the turbulent 1950’s, constitutional instability reduced late British colonialism’s short-term economic efficiency and decreased social welfare. Similarly, in the post-Cold War era, our authoritarian Kanu-state ignored ethnic cleansing thus effectively continuing “divide and rule.”

Notwithstanding de-racialisation through independence, or even the much-awaited “second liberation,” the repressive, sectional Kenyan state continues to serve elites and exploit labour. Lamentably, low civic education permits reliance by politicians on ethnic affinity for unwitting support from excluded classes. Both “uhuru” promises of land and freedom were abandoned unceremoniously. Recent Rome Statute provisions outlaw manifest criminality of mass human rights violations. Nowadays, circumstantial crimes of kleptocracy aid and abet crimes against democracy. Two points are irresistible. That absence of economic investment makes “rule of law” hard, and vice versa.

Systemic corruption

It follows that Kenya’s second constitutional problem is the Jubilee government’s delinquent political will to establish credible oversight mechanisms or nurture media freedoms. Consider December 2015 legislation conferring President Kenyatta not only new powers to employ and dismiss the Auditor-General’s staff as well as the Police Inspector-General (and deputies), but even to appoint both the Chief Justice and Deputy from three nominees. Incumbents, as well as opposition leaders succumbed to popular ethnic pressure to compromise competitive politics and stifle markets prescribed under liberal ethics. Outgoing Chief Justice Dr Willy Mutunga SC accuses “economic bandits” of state capture where “weak state structures in African countries create space for criminal networks to operate, especially when these groups operate along ethnic loyalties.”

The Law Society of Kenya, among other civil society activists, is suing the unconstitutionality of increasing executive unaccountability. The 2005 Blair Commission Report confirms that “Africa’s history over the past fifty years has been blighted by two areas of weakness. These have been capacity – the ability to design and deliver new policies; and accountability – how well the state answers its people.” Issa Shivji interprets these as meaning that Africans are “blighted” by lack of the ability to think and by corruption, respectively. Yet a third constitutional problem bedevils Kenyan society, namely human rights violations. Matthew Stephenson extrapolates this rationale for stalled judicial sector reforms, which explains the inertia afflicting wider legal and constitutional implementation.

Although most substantive rules under the current constitution generally portray devolved government, the procedural rules for accessing the courts to petition a president-elect, remain flawed. Cord wishes both to increase the political will to devolve funds as well as improve the IEBC’s and Supreme Court’s respective impartiality. Jubilee inclines towards reversing devolution gains and recentralising executive power. Although Kenyans deserve better conditions than we receive from the ethnic demagogues we choose, imposing either unelected representatives or foreign policies is an undemocratic option. Unless ordinary citizens perceive the benefits, cherish the values and appreciate responsibilities of living under a liberal democratic constitution, we are unlikely to dedicate sufficient resources to protest against economic sabotage, political fraud and misrule. Current pressure for the “rule of law” project, exerted by internal activists, leverages on the International Criminal Court cases.

Okoa Kenya or Punguza Mzigo?

By a November 9, 2015 Constitutional Bill, Cord’s Okoa Kenya Movement identified 42 clauses craving national referendum amendments. Kisumu Senator Anyang’ Nyong’o highlights first, that the Constitution’s “Land and Environment” chapter ignores county government matters. Second, that “the constitution only guarantees counties not less than 15 per cent of the national budget.” Third, “Where our people live in the counties, security personnel operate as if they are an alien force divorced from county governments.” It prescribes that: “This mischief will finally be cured when the amendment establishes a County Security Advisory Council.” Fourth, that parliamentary political parties demand pro rata strength in the Independent Electoral and Boundaries Commission. Fifth, that procedural technicalities impede access to Supreme Court electoral remedies. It proposes enlarging timelines for lodging presidential election petitions to 21, up from 7, days, and postponing judgments until 60, instead of 21, days. The first three substantive proposals seek structural redesign for wealth redistribution. The last two procedural proposals modify the electorate’s means of holding leaders accountable. Altogether, Okoa Kenya assumes that benefits of devolved government – whether regional equalisation or reducing human rights violations, can only accrue if reformists – rather than conservatives – steer constitutional implementation.

Charles Nyachae’s Commission for the Implementation of the Constitution’s 260-page December 2015 Report made distinctly different proposals. He said “there should be a maximum of 225 MPs in Parliament down from the current 345.” CIC “also want the number of wards reduced by half, from 1,450 to 750. The team has also proposed that the section for nominated MPs be deleted to do away with nominated MPs.” These representational reductions ominously resemble Jubilee’s Gatundu South legislator Moses Kuria’s “Punguza Mzigo” scheme. On November24, that ruling party maverick announced a “referendum to reduce the number of MPs and MCAs and scrap senator and woman representative posts. He said the number of counties should be reduced from 47 to 16 and MPs to 200.” Both latter alternatives, to their credit, would significantly reduce Kenya’s wage bill. To their disgrace however, the Jubilee government may simultaneously scuttle wider devolved representation of the people.

Criticising second liberation piecemeal strategies, Kenya’s then Attorney General Amos Wako claimed, “it is the NGOs’ approach to legal and judicial reform that is characterised by narrow focus on specific, selfish mandates.” In “Legal Reform, Global Knowledge, and Civil Society: The Kenyan Experience,” 2001, he commended the Kanu government for faithfully discharging its broad “duty to see the overall picture and making decisions in the interests of society as a whole.” Senior Counsel Wako, now Cord’s Busia Senator and even vice-chairman of the International Law Commission, argued that: “Some NGOs were formed primarily as a source of wealth for its officials or members and only secondarily to espouse certain ideals. They often lack transparency and accountability, and pursuing one track – as nearly all nongovernmental organisations do – can be detrimental to other equally important tracks. Governments and intergovernmental organisations have a duty to see the overall picture and make decisions in the interests of society.” Improvising “second-best” theorem reasoning, Wako condemns NGOs, rather than the government, as desiring incrementalism in their search for legal and judicial reform, since “they lack resources and genuine commitment to the ideals and noble objectives they espouse, as well as grass-roots support.”

Creeping incrementalism

A theatrical tragedy ensued. First, in its landmark 2004 “Njoya case,” the constitutional court torpedoed the NGO’s illegitimate Bomas Draft Constitution. Second, the November 2005 national referendum resoundingly rejected Wako’s Draft Constitution. Both documents had extraneous origins. However, Wako’s was Executive-oriented, reproducing the centralised “status quo ante.”

Third, postelection violence erupted. Conversely, last July, visiting US President Barack Obama recognised that “millions voted for the new constitution.” That harmonised version won his praise as “one of the most progressive in Africa.” Its reformist progenitors, earned rebuke. Obama criticised Cord leaders’ demands for his intervention, since when “they are in power, they wanted the United States to mind their own business.”

CJ Mutunga voiced a liberal dissent in the Supreme Court’s “Advisory Opinion No. 2 of 2012.” Conversely, the conservative majority Tunoi, Ojwang, Wanjala and Ndung’u, SCJJ held that gender parity in public elective bodies cannot be attained immediately.

Constitutional equality can only be fully realised over a staggered period of time.

Recounting history, successive post-independence amendments substituted colonial oppressors, but retained undemocratic laws, resulting in a third-best outcome. Similarly, incomplete implementation, since 2010, has postponed the first-best goal of reforming both the dysfunctional constitutional design as well as replacing authoritarian incumbent officials. If economic development and human rights under Kenya’s previous constitution were unsustainable, shall the second liberation realise the “uhuru” promise of land and freedom?

Last August, speaking at the coastal areas affected by unregistered land with a high number of squatters, President Kenyatta reminded us that “the land question in Kenya is an issue that has lasted for over 50 years and we pledged that if we won the elections, we would end the land question and bring the land answer.” He said the 60,000 title deeds to be issued in the region are worth Sh20 billion and should be used to unlock the wealth of the area and change livelihoods of residents.” With a heavy hand, in January 2016, his government cancelled “title deeds for land totalling 353,770 acres. He said the Government’s move to revoke title deeds for the irregularly acquired land which was handed over to Lamu County government was aimed at ensuring the locals get enough land for development.”

Curiously, that land protectionism maintains that: “The County Government should plan well on how to utilise the land. There is need to set aside land for livestock keeping, farming and industrial development.” However, it is not possible for counties to alleviate poverty, promote development or respect human rights at the grassroots, without first increasing devolved funding and involving them in security functions.

Without “entitlements,” no market’s invisible hand can protect the marginalised from “economic banditry.” Lund concedes that although customary rights have historically conferred “ineffective ownership’ or property rights” (such as women’s customary rights to a field of their own) title deeds for squatters are “distinct from no rights at all, even if those paper-only rights do not translate into the ability to benefit here and now.”


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