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Viewing cable 07NAIROBI2449, LAND REFORM IN KENYA: TRYING TO RIGHT
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| Reference ID | Created | Released | Classification | Origin |
|---|---|---|---|---|
| 07NAIROBI2449 | 2007-06-12 13:18 | 2011-08-25 00:00 | UNCLASSIFIED//FOR OFFICIAL USE ONLY | Embassy Nairobi |
VZCZCXYZ0014
PP RUEHWEB
DE RUEHNR #2449/01 1631318
ZNR UUUUU ZZH
P 121318Z JUN 07
FM AMEMBASSY NAIROBI
TO RUEHC/SECSTATE WASHDC PRIORITY 0308
INFO RUEHRC/USDA FAS WASHDC 1516
RUEHDS/AMEMBASSY ADDIS ABABA 9365
RUEHAE/AMEMBASSY ASMARA 4954
RUEHJB/AMEMBASSY BUJUMBURA 0145
RUEHDR/AMEMBASSY DAR ES SALAAM 5326
RUEHDJ/AMEMBASSY DJIBOUTI 4741
RUEHKH/AMEMBASSY KHARTOUM 1225
RUEHLGB/AMEMBASSY KIGALI 4834
RUEHLO/AMEMBASSY LONDON 2290
RUEHFR/AMEMBASSY PARIS 2239
RUEHRO/AMEMBASSY ROME 5156
UNCLAS NAIROBI 002449
SIPDIS
SENSITIVE
SIPDIS
E.O. 12958: N/A
TAGS: ECON EAGR EINV EAID ETRD PGOV KCOR KE
SUBJECT: LAND REFORM IN KENYA: TRYING TO RIGHT
PAST WRONGS BUT AT WHAT PRICE FOR THE FUTURE?
SENSITIVE BUT UNCLASSIFIED. FOR USG USE ONLY.
¶1. (SBU) SUMMARY: The combination of an ever-expanding
population, settler legacy, poverty, corruption, elite
impunity, and an inadequate land law system make the
ownership, tenure, and use of land one of the most volatile
questions in Kenya today and one of the most serious
impediments to economic development. Ethnic clashes; slums
and squatters; poverty and a lack of available capital;
corruption and political malfeasance -- all either reflect
or are reflected in the problems arising from KenyaQs land
rights and distribution regime. The proposed new National
Land Policy makes an attempt to solve some of these
problems, but if translated literally into law, could have
gravely detrimental unintended consequences for KenyaQs
economy. END SUMMARY.
--------------------------------------------- -------
Demographic Pressures and Badly Skewed Distribution
--------------------------------------------- -------
¶2. (U) KenyaQs land mass can be roughly divided into three
regions: fertile agricultural; arid and semi-arid (ASAL);
and coastal. The fertile agricultural land (roughly the
central and south-east parts of the country) comprises
about 17% of KenyaQs surface area and supports some 75% of
KenyaQs 36 million people; it is the epicenter of KenyaQs
agriculture-based economy. About 50% of this rich
agricultural land is owned by less than 20% of the
population. Nationwide, it is estimated that only about
18% of the population owns more than 1.5 acres
(approximately 13% of Kenyans are landless and about 69%
own one and half acres or less). Within this select 18%,
it is widely believed that there are a fortunate few who
own most of KenyaQs valuable property. While no one knows
exactly who they are and what they own, a group of former
and current politicians and power brokers, together with
the remnants of the white settlers and a few well-connected
businessmen and farmers, collectively own hundreds of
thousands and maybe even millions of acres of land. Tens
of thousands of these acres were bought legally, albeit
with the taint of inappropriate political influence.
Thousands more, however, were acquired illegally, often
through programs putatively designed to distribute land to
squatters and the landless. To add insult to injury, a
significant portion of these large land holdings are not
being developed or used; they are being held as speculative
investments by absentee landlords.
¶3. (U) For the average Kenyan, this situation is simply
galling. Land, and the appertaining agricultural, water,
and grazing rights, are not only the greatest source of
wealth accessible to them, but are also of enormous
cultural importance. For most Kenyans, the possession of
land, the raising of crops and livestock, and the obtaining
of mortgages to raise capital for further development is
the only route out of poverty. Land ownership is highly
valued as a status marker for most of KenyaQs ethnic groups
(cattle ownership, which necessitates grazing land, serves
the same purpose for pastoralists). As the population
increases, owning enough land to prosper, or even to
survive, is becoming an increasingly difficult proposition.
The population of Kenya has increased almost 400% in the
four decades since independence while the amount of land
has remained the same. Even under the best land system,
demographic pressure alone would make land rights a very
serious issue. KenyaQs land system is far from the best,
and the lack of available land is exacerbated by chronic
uncertainty over who owns what land and perceived
injustices, both historic and current. This potent mix
retards development, contributes to widespread poverty, and
creates such frustration and anger that violent inter-
communal clashes over land are common, especially in
election years.
--------------------------------------------- -
A History Rife With Unfairness and Illegality
--------------------------------------------- -
¶4. (U) The history of KenyaQs land problems is rather
complicated. In broad strokes, from the late 1880s to the
mid-1950s, the British colonial government took overt
control of about 50% percent of the prime agricultural land
(mostly in the middle of the country) and large parts of
the coast. In some instances the land was simply taken; in
others, it was ceded to the British government by treaties
of questionable fairness, often by leaders who had no
authority over the land they ceded. Much of this land was
either sold or leased to white settlers and became famously
known as the QWhite Highlands.Q Estimates of how many
thousands of KenyaQs people were displaced by this process
vary; it is certain, however, that millions of acres of
high-quality land came under direct British colonial
control and use.
¶5. (U) The rest of Kenya was largely QnativeQ land, which
was held Qin trustQ by the British government for the
benefit of its inhabitants and was not as closely
controlled by the colonial government. Most of KenyaQs
ASAL regions and much of the good agricultural land not
occupied by the settlers fell under this category.
Finally, some areas were designated as QcrownQ land, which
reserved the land for the use of the British Government.
Land one mile on either side of the Kenya-Uganda railway,
for example, was QcrownQ land, as were large parts of
KenyaQs coast, forests and riparian areas. Note: Legally,
the QnativeQ lands were also QcrownQ lands and thus their
inhabitants could be alienated from their lands at any
time. In practice, this did not happen with great
frequency, as much of the land was ASAL and thus of little
value to the settlers. End note.
¶6. (U) In the lead-up to independence, the British
government attempted to place land back in the hands of
indigenous Kenyans through a series of settlement and
repurchasing programs. The programs met with mixed
success; while many thousands of families were resettled on
the land they had lost, the Kenyans who had become
politically powerful and/or wealthy during the colonial
period were able to purchase vast tracts of the best land,
leaving much of the population with the left-overs or
nothing at all. Note: During the 1950sQ Mau Mau
insurrection, many thousands of Kenyans, primarily of the
Kikuyu tribe, lost their lands. While some of them were
resettled, many more were not. End note. At independence
in 1963, the newly-empowered Government of Kenya (GOK)
decreed that whatever land rights were in existence at the
time would be confirmed and upheld.
--------------------------------------------- -----
Actors change, but the colonial status quo remains
--------------------------------------------- -----
¶7. (SBU) The decision by the post-independence GOK to
maintain the colonial period status quo for land rights at
independence was, in essence, a perpetuation of the land
rights system used by the British. The land purchased from
the settlers or redistributed by the British government
became QprivateQ land. The land the British had declared
QcrownQ land became QgovernmentQ land. The President,
through the Commissioner of Lands, took on the powers of
the colonial governor to allocate that land as he saw fit,
although ostensibly only for Qpublic interest.Q Most
QnativeQ land became QtrustQ land, governed by county
councils in trust for the inhabitants. Many of the
problems of the colonial period also persisted, if with
different actors. QPrivateQ land was, and still is,
largely owned by the rich and powerful and obtained through
a combination of (often ill-gotten) wealth, luck, and
influence peddling. Thousands of Kenyans were, and still
are, landless squatters.
¶8. (SBU) During the 1980s and 1990s, the GOK badly abused
its right to dispose of QgovernmentQ land, selling,
leasing, or simply giving large blocks of it to foreign
investors, companies, government officials, or well-
connected businessmen and farmers, often to buy political
influence or acquiescence. QTrustQ land was also abused
extensively during the same period, with allocations to
those who had no connection to the communities occupying
the land other than corrupt relationships with the county
councils. One of the most authoritative studies done on
land tenure in Kenya, the Judicial Commission of Inquiry on
Illegal and Irregular Allocation of Public Land (QNdungQu
ReportQ), estimates that 90% of the land titles issued in
the last twenty years have been either illegal or the
result of influence-peddling. Other estimates state that
of the 1.5 million registered titles in Kenya, fully
500,000 are illegal.
------------------------------------------
Coast Province Is Particularly Problematic
------------------------------------------
¶9. (SBU) While most of KenyaQs ethnic groups have suffered
land deprivations at the hands of the British, the GOK, or
both, the inhabitants of Coast Province, about half of whom
are Muslim, have arguably suffered the most. Their
problems date back to 1888, when the Sultan of Zanzibar
(who at the time controlled much of the East Africa coast)
ceded to the Imperial British East Africa Company virtually
all rights to land in a ten-mile wide strip along the
entire coast of Kenya. (Note: The strip actually went
from Tanzania to Somalia. End note.) In 1908, the colonial
government passed a law stating that all land in the ten-
mile strip would become QcrownQ land unless the inhabitants
could assert their rights to ownership during a six-month
window. Most coastal inhabitants either could not produce
the requisite paperwork, or did not even know of the
requirement. Accordingly, when the window closed almost
all of them lost their rights to their land. At
independence, virtually none of the land became QprivateQ
land under the ownership of the indigenous people. The
vast majority became either QgovernmentQ land or QprivateQ
land under the ownership of foreign investors or wealthy
Kenyans from other parts of the country.
¶10. (SBU) Perhaps as nowhere else in Kenya, the GOK abused
its authority over QpublicQ land in Coast Province. In
just one example, six salt companies were given 10,465
hectares of QpublicQ land with no regard for the welfare of
those living on the land. According to GOK estimates,
11.3% of the residents of Coast Province have no legal
rights to the land they have occupied, in some cases, for
generations. Other estimates put the number as high as
80%.
------------------------------------
So, Too, Are The Claims of the Masai
------------------------------------
¶11. (SBU) One of the other ethnic communities with a
particularly acute land claim is the Masai. In the years
before the British arrived, the pastoralist Masai
controlled as much as a third of modern Kenya and numbered
perhaps 400,000. Note: The Masai had acquired control of
these enormous tracts of land by dispossessing other Kenyan
communities, especially the Kamba. End note. In the last
few years of the 19th century, however, they lost perhaps
90% of their population to famine after a series of
diseases decimated their herds. The British, seizing on
this weakness, QconvincedQ the Masai to enter into two
treaties, one in 1904 and one in 1911, which gave the
British government huge tracts of land in central Kenya
under what was supposed to be a 99-year lease. Note:
These lands formed the lionQs share of the QWhite
Highlands.Q End note. However, during the colonial period
and after independence, that land was either re-leased or
sold outright. When the original 99 years expired, none of
the land was returned to the Masai. The population of
KenyaQs Masai is now somewhere around 500,000 and more and
more would-be Masai herders have no land for their cattle.
Illegal land dealings within the Masai community itself
have caused a large part of their problems, but their
claims to the land taken from them by the British and the
GOK have become a lodestone for those seeking to reform
KenyaQs land system.
--------------------------------------------- -
Previous Attempts At Reform Have Gone Nowhere
--------------------------------------------- -
¶12. (SBU) The GOK has made several efforts to examine, if
not address, the inequities and illegalities present in
KenyaQs confused land system. In 1972, the GOK set up a
Special Committee to assess land problems in Coast
Province. In 2002, it commissioned a special report on
existing land law and tenure. In 2004, the NdungQu Report,
which concerned the illegal or irregular allocation of
QpublicQ lands, was published. The NdungQu Report in
particular caused quite a stir, as it stated Q[t]he powers
vested in the President to make grants of [government land]
have been grossly abused over the years by both the
President and successive Commissioners of Lands and their
deputies.Q The Report also pointed to local authorities as
being complicit in the Qunbridled plundering of public
lands.Q
13 (SBU) The NdungQu Report was widely praised and was
adopted in full by the GOK Cabinet. However, very little
has been done to act on any of the problems it cataloged or
the recommendations it made. In the first two years after
the Report was published, a paltry 133 titles of illegally
or irregularly allocated public land were given back to the
GOK. While there have been some unsubstantiated rumors
that the Ministry of Lands has recently begun to accelerate
its implementation of the Report, notably canceling a
rumored 600 illegal titles, it is not doing so publicly.
---------------------------------
The New Land Policy Means Well...
---------------------------------
¶14. (SBU) The proposed National Land Policy (NLP) is the
most recent of the GOKQs land reform efforts. It is the
penultimate step in a process that began in 2004. The GOK,
working with a group of donors and NGOs, has created a
document designed to not only reform KenyaQs land laws, but
also to substantially reorient the priorities of KenyaQs
land system. It is at its heart a policy designed to help
the poor and vulnerable and to end violent conflict over
land, all laudable goals. The donor group describes the
NLP as Qpro-poorQ, focusing more on equity and recognition
of a basic right to land use than on individual ownership
rights.
¶15. (U) In broad strokes, the NLP is designed to fix the
following ills: insecurity of tenure, skewed distribution,
widespread gender-based and class-based discrimination, and
historical injustices. It would do so by amending or
repealing virtually every land law currently on the books
and replacing them with a single set of legislation,
enforced by a new governmental entity, the National Land
Commission. The Commission would have broad-ranging powers
to manage, oversee, redistribute, and determine the use of
land in Kenya. It would also establish tribunals to right
historical wrongs and injustices dating as far back as
¶1895. Note: 1895 seems to have been chosen because that
date is often cited as the inception of the colonial
period. Thus pre-colonial land disputes between indigenous
communities would not be heard by the tribunals. End note.
--------------------------------------------- ----------
But Could Have Serious, Harmful Unintended Consequences
--------------------------------------------- ----------
¶16. (SBU) The proposed NLP is a bold document, one which
borders on the utopian. It can be argued that such a
radical shake-up is necessary to root out the illegalities
and gross inequalities in the current system; however, the
NLP has a number of provisions which could have highly
detrimental effects on the investment climate and the
Kenyan economy. Take, for example, the proposal to Qrepeal
the principal of absolute sanctity of first registrationQ
of title to land. In essence, this proposal would allow
any registered land title to be reexamined and litigated
without the need to show it was obtained through fraud or
other illegal means. While the proposalQs intent is to
provide a means to overcome illegal titles, it would also
dramatically weaken the security and confidence of every
landowner, and every bank, in the land rights they hold or
use as collateral. The effect on the availability and
value of mortgages, and thus on the ability of any
landowner to raise capital, could be dire.
¶17. (SBU) Another provision (mentioned above) would create
legal and administrative QmechanismsQ to resolve historical
land QinjusticesQ arising as early as 1895. Note: Some
claim that non-Kenyan NGOs, particularly ActionAID, are
responsible for this particular item in their efforts to
help the Masai. End note. Historical QinjusticesQ is a
slippery term at best, and considering that land issues in
Kenya tend to be tied to often-volatile ethnic tensions,
attempts to resolve the QinjusticesQ in favor of one ethnic
group over another could be disastrous. Another provision
states that non-Kenyans would no longer be allowed to own
property in Kenya: QforeignersQ would be limited to 99-year
leases. Those QforeignersQ who own land, or who have
leases longer than 99 years, would see their rights reduced
to 99-year leases with no obvious means of reimbursement.
Yet another troubling provision would require the GOK to
Qcompulsorily acquire all land on which mineral resources
have been discovered before allocating such land to
interested investors...Q While the intent is to prevent
local communities from being exploited, the GOK itself has
a badly checkered history concerning corruption and misuse
of resources.
--------------------------------------------- ------------
Private Sector Cries Foul, And The Elite Will Not Like It
--------------------------------------------- ------------
¶18. (SBU) The NLP was created with virtually no input from
the wealthier side of the Kenyan private sector, including
its landowners and companies, or from the banks.
Representatives from this section of the private sector
have stated that they either did not know of the various
forums and symposiums that were called to discuss the NLP,
or were rebuffed when they attempted to give their views.
Many of those involved in the NLP process, however, told
Econoff that these representatives simply chose not to be
involved. Whatever the case, the landowners have recently
started to make their voices and many criticisms heard.
¶19. (SBU) Furthermore, if taken literally, the proposals
the NLP makes would require a serious investigation and
probable reallocation of the lands held by the rich and
powerful of Kenya, including the three families widely
rumored to be amongst the countryQs biggest landowners:
the Kenyattas, of the first President, Jomo Kenyatta, who
are said to own approximately 500,000 acres; the Mois, of
the second president, Daniel arap Moi, who are said to own
about 114,000 acres; and the Kibakis, of the third and
current president, Mwai Kibaki, who are rumored to own at
least 44,000 acres. Note: Some estimate that the families
of KenyaQs first three presidents collectively own as much
as 11.5 percent of Kenya. End note. The Kenyan elite are
unlikely to allow this to happen. Furthermore, most
scholars believe that enacting the NLP would require a
constitutional amendment and the repeal or amendment of 17
different pieces of legislation. Based on prior history,
the Kenyan Parliament would be tied up for years doing
nothing else. Finally, many of the provisions of the NLP
were also in the draft Constitution that was rejected in a
national referendum in 2005. While they have been
repackaged as part of the NLP, they still carry the taint
of public rejection.
--------------------------------------------- -------
Land Reform Is Needed, But The NLP Is Not The Answer
--------------------------------------------- -------
¶20. (SBU) COMMENT: The likelihood that the NLP will become
law in its current form is small. It is something of a
mish-mash of desires and goals from a widely disparate
group of concerned parties. Parts of the NLP seem to be an
attempt by a small and radical group to up-end land rights
in Kenya in favor of a redistributionist scheme which has a
quaintly utopian flavor; the more concerned landowners
believe it could actually result in a Zimbabwe-style
meltdown. The donors say that much of the NLP is an
aspirational document that they hope will be crucial to
Kenya overcoming its ever-worsening land shortage; they
assume that the deeply troubling legal problems it contains
will be worked out through the legislative process. There
are provisions which seem to be a genuine attempt on the
part of the GOK to reform the Kenyan land system; there are
others that are so unworkable and unrealistic that they
smack of a cynical attempt by the current administration to
win votes by pandering to the poor in an election year.
¶21. (SBU) There is no great reason for hope that KenyaQs
land system will change soon, despite the great need to do
so; past attempts to right land wrongs in Kenya have been
almost completely ignored by the powers that be. Even if
the GOK were to decide to take real steps to fix KenyaQs
thorny land problems, it must be well aware that as history
elsewhere has shown, attempting to make right historical
wrongs is fraught with risk and danger. While the public
discussion engendered by the NLP is a step in the right
direction, it seems that for the foreseeable future, talk
will be the NLPQs only constructive contribution to KenyaQs
land problems. END COMMENT.
RANNEBERGER