Historical land injustices are locked in Pandora’s box that has not been opened due to lack of political consensus.
Discussion of the subject matter tends to be emotive. As a country, we must exhaustively explore all the alternatives of easing the pressure away from the issues.
In addition, we must build a defensive mechanism that will nullify probable toxic emissions of ethnicity in the name of ancestral land. Such floodgates should entail assurance of sufficient political support, including secure property rights over land.
Prior to the British settlement, our ancestors enjoyed occupancy right to land that was communally owned. Later, the British declared Kenya its protectorate based on terra nullius doctrine.
This status denied the British the legal power to alienate land, unless such power was granted through agreements. Thus, they could not claim title on land occupied by our ancestors.
To circumvent this constitutional impasse, the British invoked the Foreign Jurisdiction Act of 1890 that gave jurisdictional power over unoccupied land. They also enacted new laws to acquire land that was occupied by Africans.
These laws extinguished occupancy right and segregated Africans to the so-called natives’ reserves. In these reserves, Africans became tenants at the will of the Crown.
The National Land Policy defines historical land injustices as unresolved land grievances that span from 1895 to date. The Constitution empowers the National Land Commission (NLC) to initiate, investigate or present historical land injustices and recommend appropriate redress.
It is on this basis that the NLC recently gazetted members of a taskforce to formulate legislation on investigation and adjudication of complaints, arising from historical land injustices.
Ideally, the taskforce must first formulate a policy before drawing legislation. Such a policy must define the problem by unpacking the heterogeneous nature of subject matter that is intertemporal and regional as well as ethnically driven.
Effective stakeholder analysis through public participation should cultivate adequate political goodwill, which is an important ingredient.
Upon formulation of the policy, the taskforce should exhaustively explore alternative ways of resolving land grievances within the existing legal framework.
The discussion of historical land injustices assumes that the victims were true owners of the land in question. This assumption does not hold in some cases.
For instance, before the British settlement, our ancestors’ occupancy rights were informal and did not amount to ownership. Legal remedy for such cases that are difficult to prove ownership is not provided for in our national laws.
However, these cases may be resolved by invoking a common law doctrine, namely the Aboriginal Title Doctrine. It is premised on the idea that the imposition of colonial land laws did not extinguish the original land title of the indigenous people.
The doctrine is domestically applicable because Kenya is a common law jurisdiction. It has been successfully applied in other common law jurisdictions like Canada and Australia to safeguard the interests of the indigenous population.
In cases where the victims were bona fide land owners with a title deed, our registration laws protect the interest of the current title holder against any future claim.
Therefore, the victims as claimants cannot reclaim their land but are entitled to seek monetary restitution from a public fund.
In conclusion, let us first exhaustively seek answers to historical land injustices from the existing national and international legal framework before we open Pandora’s box. We might be surprised the answers to this insurmountable task lie in our backyard.
Prof. Kieyah is a principal policy analyst at KIPPRA. Views expressed in this article are personal.
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