BY JOHN HARBERSON
In mid-September, the Institute for Security Studies (ISS) issued a report on the bearing of land issues on security in Kenya. It concluded that there is a close link between land injustices and ethnic violence in Kenya. The ISS report linked what it termed land-related injustices, unemployment, and gang activity. Indeed it drew on a 2012 survey by the National Crime Research Centre which reported the existence of 46 organized criminal gangs in the country. The ISS cited the report of the Truth, Justice, and Reconciliation Commission which detailed again the pervasiveness of land tenure injustice in Kenya. The ISS noted that the violence in Lamu County exposed yet again the capacity of unaddressed land injustices to undermine state security, echoing the telling reports of the Waki and Ndung’u Commissions which made the same points.
None of this, of course, has ever been a secret to Kenyans. At the same time, it is likely that most Kenyans are quite aware that the now four year old Constitution has made land tenure justice, equity, and effective use a matter of constitutional principle for the first time in the country’s history, elevating reform legislation passed by Parliament a year earlier. These were historic and monumental achievements.
But the key question that to my knowledge has not been addressed, let alone confronted, is what are the potential risks and costs of slow, delayed bridging of the gap between fairly newly established constitutional promise and the continued still largely unreformed land tenure reality—in the short, medium and long term?
On previous occasions, in 2007-8 as well as earlier, in connection with elections, serious land based violence has arisen in the absence of any constitutional or even parliamentary provisions for addressing its causes. The heart of the problem in these first elections in the democratic era has been that the electoral dimension of democracy preceded by two decades the all important constitutional dimension. Put more starkly, relatively free and fair electoral competition preceded democratically established rules of the game for that competition. Thus, the first elections of the democratic era allowed violent expression of very widely and profoundly deeply experienced abuses and injustices in land tenure practice and policy from Kenya’s earliest days as a colony through the Mau Mau Emergency-era reforms of the terminal colonial decade and post-colonial regime consolidating patronage excesses.
Kenya’s enduring land tenure crises have been integral to formation of my hypothesis that the complexity of democratic rule making requirements for effective postcolonial state building in sub-Saharan Africa has been widely and profoundly underestimated. In essence, I suggest, first, that democratic rule making is an indispensable dimension of post-colonial state building in sub-Saharan Africa. And by democratic rule making, I mean participatory rule making engaging not just political society, i.e., political leaders, but civil society as well. Submission of elite-drafted proposed constitutions to voters in a referendum is certainly a necessary but not a sufficient element of needed civic participation in rule making for truly post-colonial state building. My hypothesis is that rule making for post-colonial state building in sub-Saharan Africa must take place at the grassroots as well as elite levels.
In previous essays I have frequently drawn attention to the elements of state weakness or even state failure highlighted by the annual Fund for Peace failed state surveys. Those surveys include as indicators of state failure the crisis circumstances experienced by citizens in their daily lives, e.g., internal displacement, violence, malnutrition, unemployment, pollution, and maternal and child mortality along with more familiar, more macro level indicators like systematic corruption, inequality, and ethnic and religious conflict.
What has been pervasively missing, however, has been recognition that addressing these grassroots ills as well as more macro level ones is a central dimension of building stable states. Granted that without a stable democratic constitutional framework successful state building is unlikely to occur, nonetheless laborious, complex, and prolonged as the process may be, there is no substitute for the citizens who experience these ills at the grassroots also being participants in constructing the terms and processes for their remediation. In a word, micro level as well as macro level democratic state building is necessary to achieving the goal.
Kenya has illustrated with special and dramatic clarity what the Fund for Peace surveys have recognized only obliquely, that land tenure terms and conditions are a central dimension of grassroots level democratic state building in sub-Saharan Africa and in other developing country regions. If the analysis to this point has been correct, it follows that Kenya has yet to take the necessary steps to establish the land tenure foundations of a stable democratic state, notwithstanding passage of the 2010 Constitution with its chapter on land tenure and the previous 2009 legislation passed by Parliament on which that chapter is built. The Institute for Security Studies analysis implicitly makes that point while stopping short of articulating what is needed to fix the problem.
The heart of the problem is that the land tenure chapter in the 2010 Constitution and the 2009 land tenure legislation articulated unimpeachably valid principles without setting forth processes by which they are to be implemented at the grassroots. More specifically, they don’t identify processes by which decades of past injustices can be sorted out, case by case, in the course of establishing terms on which Kenya citizens can hold land in ways mutually acceptable to their neighbors as well as themselves while simultaneously realizing the principles set forth in the Constitution and the legislation.
Furthermore, the Constitutional chapter and the legislation recognize for the first time that individual, community, and government land are to exist side by side. This has been a step forward from the pre-existing policy dating back to the 1950s and 1960s which privileged individual tenure over the others. But they stop short of identifying mechanisms for reconciling conflicts where claims based on two or even three of those bases overlap on any given piece of land.
To my knowledge, little or no progress has been made, even conceptually as well as in practice, on how to realize land tenure principles in a sea of enduring land tenure injustice. Indeed, I have often heard it hinted that the problem is too big and too controversial to permit it even to be addressed. Admittedly, it was an achievement that the 2013 elections occurred largely with an absence of the land tenure-based violence that accompanied three of the previously four elections in Kenya’s democratic era. But I truly wonder both to what extent the existence of the promises of the Constitution and the legislation on land policy was a factor and how far into the future, absent implementation progress, any such effect will last.
Since 2010, however, those provisions have been in place and, presumably, are widely known.
Or to put the question less starkly, how realistically might it be possible to bridge this gap and over what likely period of time? I have heard it intimated on more than one occasion that Kenya’s land problems are to massive and complex even to be fully acknowledged, let alone effectively addressed? Is that true? If not, how not? If true, at what risk to the country? .
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