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September 22, 2018

Development, gender justice and compensation

Evelyn Mwambe, 37, mother of two and a resident of Kyapaloni, Buseruka village revealed [in a police statement] that her husband vanished into thin air after receiving compensation monies without her consent.” I found this on a blog about compensation for land taken for the oil industry in Uganda.

Similar things have happened, for example, in Lamu to compensation paid for the land taken for the LAPSSET project. Experiences are similar in other parts of the world including Asia and the Pacific. Even if the men do not vanish, they may use the money for purposes that are less useful to the family for its future now it does not have the land on which it used to rely.

There have been various recent reports in the press about compensation payments for land acquired for projects like the Standard Gauge Railway being made to men who have promptly taken off with the money, to go a-whoring, get a new wife, or a fancy new car, abandoning existing wife and children.

Studies of compensation for land taken often comment that women headed households often miss out on compensation. It is clear that women in “male-headed” households also suffer even when compensation is paid.

Why are compensation payments organised like this when it is entirely foreseeable that this will happen?

Of course the media only highlight the irresponsible ones, and one hopes there are plenty of cases of men who use the money carefully, and even do so in consultation with their families. But the concern here is with the cases of women and families abandoned completely, or deprived of benefits surely intended for families, by the irresponsible men.

Yet the land that has been taken was often farmed by the women, and they now find themselves not just homeless but jobless, and forced to depend more on the men (if they are still around) or on the job market for which they are ill-equipped.

Does this have to happen?

Let’s begin with the Constitution. For a start it says, in Article 45, that “The family is the natural and fundamental unit of society and the necessary basis of social order, and shall enjoy the recognition and protection of the State.” It makes it clear that the human rights must be the framework for all state policies. And it is a fundamental duty of the State and every State organ (like the Land Commission) to respect and protect the rights. But —far from protecting— the state is assisting in the destruction of family life.

Of course it may sometimes be necessary for land to be taken: for “a public purpose or in the public interest”, as Article 40 says. One element of that Article is that “Provision may be made for compensation to be paid to occupants in good faith of land acquired … who may not hold title to the land”. This was intended to benefit people like squatters who may have lived for a long time on land that is taken by the government, but have no right to be there. This disruption to their lives may merit some compensation. “In good faith” means that they must have thought they had a right to be there.

Wives and family members do have a right to be there. But custom and practice often mean that the land is recognised as belonging to the man alone. But you might think that they have as much right as squatters to be there and benefit from compensation!

In fact the Constitution also says that Parliament must pass laws “to regulate the recognition and protection of matrimonial property and in particular the matrimonial home.” This suggests that one party to a marriage ought not to be chased out of the family home, or find that the family home has been sold by their spouse unknown to them. And Kenyan law about matrimonial property has actually been improved since the Constitution.

Under the Land Act, the matrimonial home cannot be mortgaged unless any spouse living there has agreed. And there is a Matrimonial Property Act, which says that if one party (let’s say the husband) acquires property before or during the marriage, even if it is not treated as joint property, and the other spouse (let’s say the wife) makes a contribution towards the improvement of that property, she has an interest in the property equal to her contribution. In other words, it is partly hers. .

The most relevant law for our immediate purpose is about the compulsory acquisition of land. This, too, reflects the Constitution. The Land Act tells us that, when land is taken by the state, “just compensation” must be paid —promptly and in full — to everyone who has an interest in the land.

And who has the interests in the land? The Act says that they include not only anyone whose interest is shown in the land registry, but also any person actually occupying the land, and their spouse or spouses. So whether a family includes a registered owner of the land or not, and even if a man is the occupier, that man’s wife or wives have a legal interest in the land.

This is not an unusual situation internationally, as I commented earlier. And the UN Food and Agriculture Organisation, which has produced a useful guide on compulsory acquisition and fair compensation has suggested:

Legislation should require the acquiring agency to investigate which family members hold de facto interests in the land and will suffer personal losses from its compulsory acquisition. The legislation could create mechanisms though which compensation is paid to members of an affected family in a manner that ensures joint decision-making about the use of such funds.

Depending on newspaper reports, we cannot be sure what procedure has been followed. But the reports suggest that either our procedures are not adequate, or are not followed. The National Land Commission has the power (the responsibility) to lay down criteria and guidelines for compulsory acquisition. It is not clear that they have done so. More: the Commission can reject a request by an authority that wants to acquire land if Article 40(3) of the Constitution is not satisfied. That’s the one about fair compensation.

Sums of money larger than people have ever seen paid for their land as a lump sum are often used unwisely if they have no experience in saving and investing. This can be true even of people with the best interests of their families at heart. Where recipients of the money are short-sighted, irresponsible or dissolute they —and their families through no fault of their own—may be left destitute.

Standards developed by international financing bodies like the World Bank insist that development projects involving land acquisition ought to lead to improvement of living conditions of people required to leave their land, and that if possible land should be replaced with land.

How much of the reported KShs30 billion being paid in compensation is being wasted in this way? That 30 billion has been raised from Kenyan consumers—all of us—through the Rail Development Levy levied on imports. And by what standards is our government guided in its mad rush to finish the SGR? Those trains that will be hauling us towards the promised land of Vision 2030 will, it seems, be doing so over the ruins of families and lives.





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