Opinion & Analysis

State must recover grabbed land

Ibrahim Mwathane
Ibrahim Mwathane 

At a workshop for Kenya Wildlife Service (KWS) wardens and scientists, I lauded the management for the decision to take such a high level workshop to far away Garissa.

Most State Agencies don’t. Mombasa, the Coastal city of comfort and leisure, takes preference.

The decision to bring their conservation discussions far North would not only provide business to the town, but also substantially raise public awareness on matters of conservation. But this was a side issue.

My key compliment was elsewhere. KWS controls a whopping 10 per cent of Kenya’s land mass.

Land under its parks and reserves accounts for about 75 per cent of Kenya’s stock of public land.

And some of it traverses pristine areas like the peripheries of major urban areas such as Nairobi, Nakuru and Kisumu. It’s prime for land grab.

Yet, during Kenya’s land grab mania of the 1980s and 90s, this land remained largely intact.

Only a few plots on which stood houses for wardens in some of the District Headquarters went into private ownership irregularly.

At a time when many other State Agencies lost much land, this was unparalleled.

And much as some attribute this feat to KWS’ operative Statute which outlaws conversion of protected land to other uses without the authority of the National Assembly, I believe that it’s the restrained and protective internal staff culture that helped to save the prime KWS land.

I said as much and encouraged the wardens and management to keep up this businesslike approach to conservation.

The land they watch over, the fauna and flora therein, belongs to Kenyans and posterity.

But I was in for some major surprise.

During lunch, Dr Julius Kipng’etich, the director, calmly told me that KWS had actually recovered all of its grabbed land listed in the Ndung’u Report.

“We have recovered all the 20 listed plots”, he asserted.

Just how, I sought to know. A combination of things, the Director explained.

“First, we denied entry to all those who claimed to have acquired titles to our land. This preserved status quo. Then, through a careful and diplomatic combination of negotiation, persuasion and application of our statutory mandate, we slowly got each of the beneficiaries to surrender the titles”.

This, to the best of my recollection, is exemplary.

Perhaps other than the Kenya Forestry Service, most other State Agencies sat back to await government policy and a suitable legal framework to support repossession of their grabbed land.

Meanwhile, beneficiaries continue to dig in and develop such land. Others sold it, further complicating recovery.

In 2002, the Ndung’u Report recommended that there be established a Land Titles Tribunal to embark upon a process of revocation and rectification of the more than 200, 000 titles to the parcels of land they identified in their report.

This recommendation was subsequently embedded in our National Land Policy which provides in its Article 62 (b) that the “Land Act” to be enacted shall provide, under the National Land Commission, for the establishment of “a Land Titles Tribunal to determine the bona fide ownership of land that was previously public or trust land”.

These are the provisions that provide the contextual background to Article 68 (c) (v) of the Proposed Constitution of Kenya which provides that “parliament shall enact legislation to enable the review of all grants or dispositions of public land to establish their propriety and legality” which is cause for much of the flak visited on the land chapter.

But the KWS model illustrates that affected State Agencies could meanwhile move their individual cases and save the State unnecessary delay, litigation and costs.