POLICY AND PEACEBUILDING
FINAL PAPER

University of Notre Dame

THE LAND QUESTION AND DISPLACMENT IN KENYA:
SUPPORT FOR EFFECTIVE IMPLEMENTATION OF THE NATIONAL LAND POLICY

By William Kiptoo

EXECUTIVE SUMMARY
In 2010 Kenya enacted the National Land Policy following the promulgation of the new through the referendum. This was achieved through many years of consultation between the government and stakeholders of the land sector, mainly civil society organizations. The need for land reform was also identified by the Kenya National Dialogue and Reconciliation as key to long-term peace and reconciliation. The policy aims to address Kenya’s land tenure problems that have caused political violence during elections and mass displacements of the local population due to unresolved land grievances.
Internal displacement and land problems in Kenya are a product of the colonial legacy, where the land policy favored the white settlers against the African natives. After independence successive governments inherited these policies and land became political tool to rewards loyalties further creating divisions and discontent. A myriads of land-related conflicts followed pitting communities against each other as political elites continue to benefits. The inability of the government of Kenya to adequately address the land question has implied that the basic needs of significant proportion of the Kenyan population are not met. The basis of the new law is address the root causes of violence.
The National land policy addresses inequitable distribution of land, land administration issues, access to land, land use planning, restitution of historical injustices, environmental degradation, conflicts, unplanned proliferation of informal urban settlements, outdated legal framework, institutional framework and information management. The policy recognizes the need for security of tenure for all Kenyans (all socio-economic groups, women, pastoral communities, informal settlement residents and other marginalized groups), and designates all land in Kenya as public, community or private. Most significantly, it recognizes and protects customary rights to land. It also recognizes and protects private land rights and provides for derivative rights from all categories of land rights holding
Activities already achieved include legislation to facilitate implementation and allocation of a budget to the Ministry of Lands (MoL) responsible for its implementation, albeit inadequate. Some likely challenges of implementing NLP include: (1) Sustained political goodwill: Complicit political leaders can present subtle barriers to implementation since the some members of the political class were involved in the irregular allocation of land. (2) Funding: 9.6 billion Kenya Shillings will be required over the first six years to implement the Land reform. This is a substantial investment given the weak economy and government’s expenditure. (3) Institutional Transformation: Transiting from the current institutional set-up to the proposed National Land Commission (NLC) where the Ministry of Lands (MoL). (4) Technical Capacity: High level technical capacity will be required to review, harmonize and enact new land legislation including legal experts and development and maintenance of the proposed modern land information management system.

Specific Recommendations
To effectively achieve full implementation of the NLP the government should consider the following recommendations. 1. Expand stakeholder base to include the private sector in the policy implementation due to the fact that the private sector in Kenya had issues regarding land tenure laws and their exclusion in the implementation may spell counterproductive given their level of influence in the policy level. 2. Extend public information to rural areas to increase unawareness of the implication of new NLP on the land tenure. 3. Allocate adequate funds to the Ministry of Lands to effectively implement the law by identifying areas in the national budget that resources are to be reallocated. 4. Build technical capacity of MoL staff through ensuring sufficient legal and information technology experts are available to the Ministry of Lands to help provide understanding and correct interpretation of the policy principles into statutes and development and maintenance of the modern land information management system.

Introduction

In Kenya controversies and dilemmas surrounding land have been a critical concern in the recent past and remain unresolved following mass displacements of local population. In the aftermath post elections violence in the early 2008, it was obvious that issues of land tenure were key to understanding the root causes and dynamics of conflict. The “Kenya National Dialogue and Reconciliation” process identified land reform as key to long-term peace and reconciliation, and the proposed “Truth, Justice and Reconciliation Commission” was mandated to examine historical land injustices, and the illegal or irregular acquisition of land, especially as these relate to conflict or violence.
Land has been the most important asset in Kenya. The nature and characteristics of the issues surrounding land are intricately intertwined with the country’s history and have been shaped by political and economic developments from the colonial period to the present. Land problems are a consequence of the European colonization that oversaw the formation of state structures based on alien legal and institutional frameworks. Over the years of its rule, the colonial power systematically established new institutions and administrative systems that led to the erosion of indigenous land tenure organizations and land rights.
Until recently most communities faced serious challenges maintaining their way of lives, mainly because the successive governments’ failure to reform the existing land tenure. Political choices made by the leaders since the 1960s was to safeguard policies and laws that were inherited from colonial administration which favored a few rich politically connected individuals. These policies led to myriads of land-related conflicts in many parts of the country; a dominant social-political feature that has rendered the government appear ineffective, even when it tries to intervene during violent conflict. In the midst this confusion, communities continue to face social and economic instability as the scramble for land resources escalates. On many occasions, communities have used violence as they attempt to regain possession of ‘lost land’ or secure access to other land resources. The enactment and implementation of the National Land Policy is seen as a step forward towards addressing underlying social and economic inequalities in Kenya.

Background of Land Violence in Kenya Kenya’s history of internal displacement and land problems began during the colonial period, when the British land policy favored (white) settler agriculture, entailing the dispossession of many indigenous communities’ land (mainly the Kalenjin, Maasai and Kikuyu) across the Rift Valley and Nyanza, Western and Central provinces – the so-called White Highlands. This process was legalized with the implementation of an individual freehold title registration system at the expense of customary mechanisms of land tenure. The land grievances of colonial dispossession gave rise to alienation. Kenyatta maintained the system of freehold land titles and did not question how the land had been acquired. To compensate the displaced, the government began a series of resettlement schemes based on a market system, which was biased towards those with the financial means to acquire land. Meanwhile, corruption and ethnic politics supported patronage networks and favored certain communities, particularly the Kikuyu, who settled in the fertile areas of the Rift Valley, at the expense of others, such as the Luo, the Maasai and the Kalenjin.
These land tensions were further exacerbated by Kenyatta’s successor as president, Daniel Arap Moi. Kenya has had a history of political violence since the introduction of multiparty politics in 1992. The incumbent ruling party turned a section of opposition voters into scapegoats, and organized violence against them in ethnically-mixed areas in order to displace potential opposition voters. Poor smallholders living in the Rift Valley bore the brunt of discontent, spurred to varying degrees by members of the administration. Some 1,500 people died in 1992. Violence occurred again following incitement by the Kenya African National Union (KANU) politicians during the 1997 elections, and hundreds of thousands of people were displaced from their homes.
In 2002, KANU leaders resisted the temptation to use violence following the electoral victory of the National Rainbow Coalition (NARC), headed by Mwai Kibaki. Unfortunately, the new government also failed to adequately provide for those who had been displaced in political violence, many of whom continued to live in terrible conditions. Meanwhile, tensions over land tenure in the slums resulted in violent clashes between gangs, or between gangs and the police.
Prior to the 2008 post elections violence, groups such as the Sabaot Lands Defense Force (SLDF) killed over 150 people and displaced tens of thousands around Mt. Elgon over land claims. In the run-up to the elections in December 2007, tensions in many parts of the country culminated into large scale post elections violence in 2008 that became highly politicized. Although the government has tried to quell the violence providing security in areas experiencing conflict and conducting large-scale operation against the SLDF, resulting in many fatalities, these one-off operations have no sustainable results because they do not address the underlying causes of the land disputes. Thus attempts to deal with land conflicts in Kenya have continued to maintain a tenuous status quo rather than resolve the structural problems.
The Land Question and Displacement
Land issues are a fundamental aspect of structural conflicts in Kenya that has often degenerated into physical violence. Central to land conflicts are issues of ownership, access and use. Land has been the root of economic, cultural and socio-economic change following years of an inappropriate land tenure system, a large segment of the population continues to have difficulties not only in adapting to the modern agrarian economy but also in coping with the increasingly fragile and marginal environment, land degradation, low agricultural output and intensifying conflicts over access to and control of land. Inadequate resolution of the land question is also a major cause of poverty in Kenya. Violence over land conflicts has occurred sporadically in different parts of the country, and doubts over the worthiness of land titles almost caused major economic instability a few years ago.
Land, like other natural resources, always contains a potential for physical violence especially in conditions where distribution is skewed. The initial report on the Land Tenure and Violent Conflict in Kenya Project (2008) observed that land-related grievances are easily manipulated for political purposes. Recent violence in the Rift Valley, for example, targeted small-scale settlements, rather than large-scale farms, the objective being to displace a larger population, for political reasons, rather than the acquisition of land per se. The report further claim that newcomers to an area lack secure tenure, disincentivising them to invest in environmentally sustainable land use as “Locals” accuse them of “milking the land”, and fears of attack and displacement prevent a thaw in relations.
The inability of the government of Kenya to adequately address the land question has implied that the basic needs of significant proportion of the Kenyan population are not met. The whole basis of law and order are likely to be threatened in situations where basic needs are frustrated since such needs are universal motivations. Given the linkages between human needs and violent conflict, the land question in Kenya is likely to continue to lead to violence unless it its root causes are addressed.

Policy Options to the Land Question Kenya: Towards A Comprehensive Land Reform Attempts to address the land question in Kenya have been an ongoing process and greatest challenge since the early 1990s, following the introduction of multi-party politics in Kenya. The civil society movements have played a key role in advocating for legislative and policy reforms but the government has not been keen in including constitutional reform. When the National Rainbow Coalition (NARC) government assumed office in 2002 it stated its intention to prioritize land issues. The first step was to identify land for settlement for the victims for those who were unwilling to return to their “stolen” lands. This was never achieved. In 2004 the government however, commissioned an inquiry into illegal allocation of land, known as the “Ndung’u Commission.” The Commission made several recommendations among them bestowing ultimate responsibility of land management to a National Land Commission, rather than the President. It also recommended a review of land titles due to the huge number of irregular or illegal Deeds in existence.
Although the findings of the Commission were largely welcomed, most of the report’s recommendations were ignored. While the fundamental and systemic aspects of the land problems identified by the Commission’s report have been left to fester, evictions of communities from ‘gazetted’ (protected) forest areas have been implemented with excess force and without resettlement of many of those evicted. In some cases, evictions exacerbated local ethnic and political tensions.
In 2004, the government of Kenya through a consultative process formulated a comprehensive National Land Policy (NLP). The policy formulation process included substantial involvement of the civil society and major stakeholders on land. Donors were equally involved. NLP was adopted by stakeholders in April 2007 through a National Symposium and approved by the Cabinet in 2009. It was made into law in 2010 after the promulgation of the new constitution that was conducted through a referendum. This marked the beginning of its implementation phase.
The Land Reform Transformation Unit (LRTU) was established and charged with the implementation responsibility, pending the establishment of a National Land Commission (NLC). Activities of the LRTU are guided by priorities outlined in the Land Policy Implementation Framework.

The National Land Policy Successive governments in Kenya have pursued short-term policies to address land grievances. This includes measures that facilitate the return of the internally displaced persons to their former residence. These policies also favored increase of physical security to the displaced, rehabilitation of key services, assistance to the first three months of returned and promote and engage in reconciliation activities. This option, preferred by the government, donors and the humanitarian community, is seen as less controversial, easy to implement, and is visible and quantifiable. However, this does not leads to significant changes in the society in the absence of efforts to address the underlying structural causes of violence, it risk creating conditions for further violence and fresh displacement. Yet Kenya has not had a clearly defined or codified National Land Policy since independence.” The National Land Policy enacted in 2010 through a national referendum provides Kenya with the best option to address the long-standing land grievances that have often led to conflicts and violence. Rationale for National Land Policy Formulation
Chapter Five, Article 60 of the Constitution of Kenya provides that land shall be held, used and managed in a manner that is equitable, efficient, productive and sustainable. The principles set out in land governance include equitable access to land and security of land rights
The NLP is to guide the country towards a sustainable and equitable use of land. The objectives of NLP are: (a) all citizens with the opportunity to access and beneficially occupy and use land; (b) Economically viable, socially equitable and environmentally sustainable allocation and use of land; (c) Efficient, effective and economical operation of land markets; (d) Efficient and effective utilization of land and land-based resources; and (e) Efficient and transparent land dispute resolution mechanisms.
Importance of the National Land Policy
Under the 2008 Kenya National Accord and Reconciliation Agreement, land reform was prioritized a means “to deal with long-term issues and solutions that may have constituted the underlying causes of the prevailing social tensions, instability and cycle of violence.” It underscored the importance of land tenure reform to meet Kenya’s medium and long-term goals of stability.
To achieve the reform agenda the law provides that the newly created National Land Commission to “inquire into major economic crimes, in particular grand corruption, historical land injustices, and the illegal or irregular acquisition of land, as these relate to conflict or violence.” A major step towards attaining this is the full implementation of the National Land Policy (NLP) which will address the problem of ‘landlessness’ and recurring land disputes among individuals and between communities and prevent future land conflicts.
Features of the National Land Policy
The NLP identifies inequitable distribution of land, rooted in land injustices of the past as the critical problem facing Kenya’s land tenure system. Specifically NLP hopes to address land administration issues, access to land, land use planning, restitution of historical injustices, environmental degradation, conflicts, unplanned proliferation of informal urban settlements, outdated legal framework, institutional framework and information management.
The policy recognizes the need for security of tenure for all Kenyans (all socio-economic groups, women, pastoral communities, informal settlement residents and other marginalized groups), and designates all land in Kenya as public, community or private. Most significantly, it recognizes and protects customary rights to land. It also recognizes and protects private land rights and provides for derivative rights from all categories of land rights holding.
Land management and administration problems (such as systematic breakdown in management, over-centralization, lack of participation by communities, high costs, unnecessary delays) will be addressed through streamlining and strengthening surveying and mapping systems, adjudication procedures and processes, land registration and allocation systems and land markets. To ensure access to justice in land related matters, land dispute institutions and mechanisms will be streamlined through the establishment of independent, accountable and democratic systems and mechanisms.
Land issues requiring special intervention, such as historical injustices, land rights of minority communities (such as hunter-gatherers, forest-dwellers and pastoralists) and vulnerable groups will be addressed by NLP. The government has committed to ensure that measures to identify such groups are and their access to land and participation in decision making over land and land based resources have been put in place.
Since institutions managing land in Kenya are many and poorly managed, the policy provides that the government will achieve efficient management of the Lands sector by devolving power and authority, participation and representation, justice, equity and sustainability through this process. Three institutions will be set up: the National Land Commission, the District Land Boards and Community Land Boards. A land court and District Land Tribunal will also be established, as will be a National Land Trust to mobilize finances. The Ministry of Lands will continue performing residual roles including policy formulation and implementation, resource mobilization, and monitoring and evaluation.
Implementation of the Land Policy requires building of in-house capacity. The National Land Policy Secretariat will be transformed into the Land Reform Unit (LRU) to plan and implement the change process.
Through the policy, the government will ensure that all land is put into productive use on a sustainable basis. NLP encourages a multi-sectoral approach to land use, provide social, economic and other incentives and put in place an enabling environment for agriculture and livestock development.
Some of the tasks spelt out in the NLP framework include drafting and enactment of legislation necessary to implement the policy; the establishment of relevant institutions; the recruitment and training of required personnel; the mobilization of financial and other resources; the organization of civic education on land reform. Activities already achieved include legislation to facilitate implementation and allocation of a budget to the Ministry of Lands (MoL) responsible for its implementation, albeit inadequate. If fully implemented the policy will provide all citizens, particularly the poor, with access to land use and eventually reduce land-related conflicts.
Implementation Challenges
Implementation of the NLP has been slow process since its enactment in 2010. This is because its success requires long term financial and political commitment by the government and political leaders countrywide. It will however, have to contend with the following fundamental challenges:- a. Sustained political goodwill: Land Reforms entail compromises between political leadership and the executive, some of whom are key business investors. Complicit political leaders can present subtle barriers to implementation since the report of the 2004 Land Commission revealed the “large extent to which members of the political class and the executive were involved in the irregular allocation of land.” b. Funding: Item 271 of the 2006 Sessional Paper on the Land Policy envisage a 9.6 billion Kenya Shillings will be required over the first six years to implement the Land reform. This is a substantial investment. With the elections coming up March 2013 the parliament has delayed approving funds to enable the MoL to move ahead with the policy implementation. Whereas Development partners have pledged to provide support in some of the implementation components, failure to prioritize budgetary support for the process can be limiting. c. Institutional Transformation: Transiting from the current institutional set-up to the proposed National Land Commission (NLC) where the Ministry of Lands (MoL), while retaining the policy formulation and resource mobilization roles may present some challenges. Additionally, the establishment of the Community Land Boards (CLB) could face hostility from the existing local authorities currently hosting such roles. Implementation must address such challenges. d. Technical Capacity: High level technical capacity will be required to review, harmonize and enact new land legislation. Legal experts required must be able to understand and correctly interpret the proposed policy principles into statutes. This capacity is not sufficiently available and may pose a challenge. The development and maintenance of the proposed modern land information management system will also require specialized technical capacity. Again, the local supply of this capacity may prove quite a challenge.

Conclusion and Recommendations
Given the realities discussed in this paper, it is clear that implementation of the National Land Policy provides solutions to the grievances that has led to frequent political violence and displacements. Kenya requires focusing on the implementation of its National Land Policy to realize its land reforms and improve social, economic and political environment. This will have stabilize the land sector and reduce the political tensions during with general elections and land-related violence.
To effectively implement the National Land Policy, the government should consider the following recommendations. 1. Expand stakeholder base to include the private sector in the policy implementation. Although the process of drafting the policy was consultative, the private sector was not heavily involved. This may have been due to the fact that the private sector in Kenya is generally slow to engage in policy work. With indications that large commercial farmers have had issues regarding land tenure laws, it is necessary to engage them in the implementation process else because of the potential influence they have in policy change if their interests are not made. 2. Extend public information to rural areas. It is also clear that many people in the rural areas, including many officials, are unaware of the contents of the new NLP and how it affects them. This often leads to misinformation. Although Ministry of Lands is making efforts to provide the public with information on the policy more needs to be done. The 3. Allocate Adequate Funds. As already mentioned above, full implementation of the new law will require the Ministry of Finance to allocate 9.6 billion Kenya Shillings over the first six years. Already the Ministry of Finance has allocated some amounts to the Ministry of Lands to jumpstart the process. But with the current high government spending and the limping economy, this amount may be a challenge for the government to fully meet this cost. The government should identify areas in the national budget that resources are to be reallocated to provide for the scarce resources to crucial yet underfunded land reform program. 4. Build Technical Capacity of Ministry of Lands staff: to achieve high level of technical capacity in the Ministry of lands, the government should ensure sufficient legal and information technology experts are available to help provide understanding and correct interpretation of the policy principles into statutes and development and maintenance of the modern land information management system. In addition, the current staff will require training to cultivate a customer service approach to the public. Unless this is done, these staff may transmit old and corruptible habits to the new institutions. A well-structured and sustained unit and a gradual attitude change and commitment to professional ethics would help to deliver the reform principles more effectively.

References
April 2010
Bruce J. (2009). Kenya Land Policy: Analysis and Recommendations. ARD, Inc. 159 Bank
Street, Suite Burlington, VT 05404.
Doyo A. G. (2009). Fixation with the Past or Vision for the Future: Challenges of land Tenure
Reform in Kenya with special focus on Land Rights of the Maasai and Boorana Pastoralists. Murdoch University.
Government of Kenya (2010). National Land Policy. Government printers, Nairobi.
Humanitarian policy (2008). Crisis in Kenya: land, displacement and the search for ‘durable solutions. 111 Westminster Bridge Road. London SE1 7JD United Kingdom. IASC Framework on Durable Solutions for Internally Displaced Persons (2010). The Brooking
Institution University of Berlin Project of Internal Displacement IASC1775 Massachusetts Avenue NW, Washington, DC, USA.
International Crisis Group, Kenya in Crisis, Africa Report 137, 2008, pp. 1, 19.
Internal Displacement Monitoring Centre (2008). ‘I Am a Refugee In My Own Country’:
Conflict-Induced Internal Displacement in Kenya. Geneva: IDMC
Jensen, E. (1996). Land tenure profile: South Africa (draft, Land Tenure Center, University of
Wisconsm-Madison).
Ministry of Lands Sessional Paper No. 3 of 2009 on National Land Policy. Government Printer,
Nairobi.
Njuguna, H. K & Baya M.M. (2008). Land reforms in Kenya: An Institution of Surveyors of
Kenya (ISK) Initiative. Alibhai Shariff Building, Nairobi, Kenya.
Patrick O. Alila and Rosemary Atieno (2006). Agricultural Policy in Kenya: Issues and
Processes. A paper for the Future Agricultures Consortium workshop, Institute of Development Studies, pg. 20-22
Research Institute, Kenya (2008). A Nation Fragmented, Briefing Note 0801
Sheekh N. M., Atta-Asamoah A. & Sharamo R.D (2012). Kenya’s neglected IDPs Internal displacement and vulnerability of pastoralist communities in northern Kenya. A situational report. Institute for Security Studies. Braeside Gardens, off Muthangari Road, Lavington, Nairobi, Kenya
United Nations Development Programme (2011). Durable solutions to internal, displacement,] reconciliation and restoration of human dignity of IDPS in Kenya: a situation report
Kenya. United Nations Avenue, Gigiri, Nairobi.
Wakhungu J. Nyukuri E. and Huggins C. (2008). Land tenure and violent Conflict in Kenya
(2008). In the context of local, national and legal and policy frameworks. Consultative conference proceedings. African Centre for Technology Studies (ACTS), Gigiri Court, off United Nations Crescent, Nairobi, Kenya.

--------------------------------------------
[ 1 ]. Wakhungu J. Nyukuri E. & Huggins C. (2008)
[ 2 ]. Ibid
[ 3 ]. Doyo A. G. (2009)
[ 4 ]. Ibid
[ 5 ]. Ibid
[ 6 ]. Humanitarian policy (2008)
[ 7 ]. Ibid
[ 8 ]. Ibid
[ 9 ]. Ibid
[ 10 ]. Ibid
[ 11 ]. Ibid
[ 12 ]. Research Institute (2008)
[ 13 ]. United Nations Development Programme (2011)
[ 14 ]. Sheekh N. M., Atta-Asamoah A. & Sharamo R.D (2012)
[ 15 ]. Jensen, E. (1996)
[ 16 ]. Patrick O. Alila and Rosemary Atieno (2006)
[ 17 ]. Njuguna, H. K & Baya M.M (2008)
[ 18 ]. Ibid
[ 19 ]. Research Institute (2008)
[ 20 ]. Wakhungu J. Nyukuri E. & Huggins C. (2008).
[ 21 ]. Internal Displacement Monitoring Center (2008)
[ 22 ]. Ibid
[ 23 ]. ibid
[ 24 ]. Bruce J. (2009)
[ 25 ]. Ibid
[ 26 ]. Sessional Paper No 3 of 2009 on the NLP, p. 265
[ 27 ]. National Land Policy (2010)
[ 28 ]. Ibid
[ 29 ]. Humanitarian policy (2008)
[ 30 ]. Ibid
[ 31 ]. National Land Policy (2009)
[ 32 ]. Ibid
[ 33 ]. Ibid
[ 34 ]. Kenya National Dialogue and Reconciliation Parties, Longer-Term Issues and Solutions: Constitutional Review, 4 March 2008, p.1.
[ 35 ]. Kenya National Dialogue and Reconciliation, Truth, Justice and Reconciliation Commission, p.1.
[ 36 ]. Bruce J. (2009)
[ 37 ]. Ibid
[ 38 ]. ibid
[ 39 ]. Sessional Paper No. 3 of 2009 on National Land Policy, August, 2009
[ 40 ]. Ibid
[ 41 ]. Ibid
[ 42 ]. Bruce J. (2009).
[ 43 ]. Bruce J. (2009)
[ 44 ]. ibid