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The International Land Coalition (ILC) has commissioned this present report to analyse the illegal/irregular acquisition of land by Kenya’s elites to ascertain the types of land affected, the processes used to acquire land, and the profiles of the perpetrators, as well as to identify the victims and the impacts of land grabbing. The report is drawn largely from the Kenya Land Alliance (KLA)’s series “Unjust Enrichment: The Making of Land Grabbing Millionaires”, which focused on the illegal and/or irregular allocation of protected (forest) land, and land held by public corporations and parastatals (2006a and b) and the report of the Commission of Inquiry into the Illegal/Irregular Allocation of Public Land (2004), known as the Ndung’u Commission Report. Kenya’s land questions are culturally, ethnically, culturally, and economically charged, and become increasingly urgent as pressure on land increases as a result of its growing population. In a country where 85% of the population rely on agriculture as their primary livelihood source, yet 88.4% have access to less than three hectares of land, tensions over land simmer. This is particularly true for minority ethnic groups, who have been systematically excluded from land ownership. These tensions are exacerbated by two inextricably linked phenomena: the disappearance of large tracts of public land and the enormous wealth accumulated by elite members of Kenyan society. In 2003 President Kibaki appointed a Commission of Inquiry into the Illegal/Irregular Allocation of Public Land (commonly known as the Ndung’u Commission), which revealed shocking trends of illegal and irregular public land allocations, and named many prominent individuals, companies, and organisations, both public and private, that had benefited from large-scale land graft. Its many recommendations have encountered much opposition from powerful vested interests and are yet to be fully implemented, and abuses of public land continue. The Kenyan Government holds government and trust land1 to be managed “in the public interest”. It is these categories of land that have borne the brunt of land grabbing, particularly (in the case of government land) land earmarked for urban development, land allocated to fulfil ministry and state corporation/parastatal functions, and protected land, particularly forests, and (in the broad trust land category) resettlement and trust land. These lands are generally uninhabited or inhabited by marginalised communities, which makes them easy targets. These allocations involve processes that range from the questionable to the blatantly fraudulent or illegal; these processes depend on the type of land targeted. Recurring characteristics are the abuse of public office and the manipulation of legal processes to obtain or allocate public land for personal gain or to ensure political patronage. The most common processes involve the following:
Letters of allotment (which set out an offer of land transfer) being treated as saleable interests in land; ° Illegal/irregular allocations and appropriations of alienated2 public land, including abuses of public office; allocation of high-value public land to private interests; parastatals acting as land brokers; direct sale of public land to private interests; and unpunished invasion and privatisation of public land; ° Parastatals and ministries paying exorbitant prices to acquire land from private individuals; ° Illegal and/or irregular excisions3 of protected forestland to private interests and for unauthorised uses (tea farms, community resettlement, etc.). This includes resettlement schemes where vulnerable communities have been relocated to protected land because the land intended for their resettlement was allocated to other parties. This often concerns marginalised communities, and results in their further victimisation through evictions. These activities have been facilitated by the highly centralised nature of Kenya’s land administration and management system, initially introduced by the colonial administration. Under this framework, land grabbing has proliferated as a form of political patronage. It has a wide range of beneficiaries, including national and international private interests (companies and individuals), foreign and diplomatic missions (embassies, etc.), religious institutions, foreign governments, etc., while those facilitating grabs of public land have accumulated massive personal wealth. The impacts of land grabbing by Kenya’s elites have yet to be fully quantified; however, to put the problem into financial context, the KLA estimates the public losses incurred for parastatal land and protected forestland to be Ksh 53 billion. However, the effects are long-term and include degradation of (protected) national resources, speculation on land prices, increased rents, landlessness, and missed development opportunities. These impacts are particularly dangerous given the fragile state of Kenya’s power-sharing government following the 2007 post-election violence – in which land played a part. Land-related ethnic (and political) tensions and violence have a long history in Kenya, and land grabbing has exacerbated these tensions. Progress towards addressing Kenya’s land-grabbing problem and its negative impacts was made in 2006, when Kenya’s parliament endorsed in principle to the new National Land Policy (adopted by Cabinet in June 2009), which will be central in forming the structures needed to remedy land administration problems, including land grabbing. For the interests of this report, the two most important features of this policy are the decen-tralisation of land administration functions to a three-tiered system comprising national, district, and local land boards to increase accountability and to facilitate enquiries into land allocations, and the government’s new right to investigate title deeds for validity and to revoke illegitimate title deeds (which previously went unquestioned). On 4 August 2010, a referendum was held on the (then proposed) Constitution, which, among other issues, allows for the creation of the necessary structures for the National Land Policy’s implementation. Despite strong opposition to the land chapter of this document from religious, political, and high-level business interests, the new Constitution was approved by 66.9% of the voters and its opponents accepted the result. Nevertheless, this opposition – particularly from politicians who supported the land policy (knowing that a legislative framework is required) – raises serious concerns about the real commitment of officials in addressing the land-grabbing issue. With the passing of the Constitution, the Ministry of Lands now faces the task of creating the necessary structures and implementing the National Land Policy to restore confidence in Kenya’s land administration processes and authorities. In creating these structures, and knowing that expeditious action is needed to redress Kenya’s currently skewed land-holding situation, the Ministry of Lands and the Government of Kenya must ensure the efficient and democratic design of these structures to reassure all stakeholders that their interests are duly represented. This is the first recommendation of the present report. Second, it is recommended that bona fide beneficiaries who have lost out due to illegal/irregular allocations (e.g. resettled communities) be treated differently in comparison with those gaining by means of unscrupulous land grabbing. This requires adequate planning to restore protected areas and rightful land uses, while providing for proper resettlement planning so as to ensure that communities are not further victimised. In the same vein, it is recommended that companies suspected of benefiting from illegal/irregular land allocations be required to conduct a title deed search stretching back to the instance of first registration. Full title deed searches should become common practice for all companies registering land as part of their corporate governance and responsibility in Kenya. Finally, it is recommended that Kenya’s land administration and National Land Registry be thoroughly updated. This will likely require a large-scale re-survey of public land holdings in Kenya to obtain an updated inventory and to assist in the ongoing investigations into illegal and/or irregular land allocations.
