Look beyond law for answers to the land question

Last week, I spoke at a webinar organised by ICJ Kenya to mark the 10th anniversary of the Constitution. Our task was to respond to the question: Does the Constitution answer the land question?

Drawing on my book to be published this week, I argued that we must look beyond the text of the Constitution and subsequent land laws.

At first sight, Kenya has indeed addressed the land question in her Constitution. In Chapter Five (Land and Environment), it sets out in detail the principles that should govern land and its administration. That chapter is a signal achievement, giving form to what citizens told the Constitution of Kenya Review Commission they wanted: Equality of access to land as a critical productive resource, transparency in relation to acquisition and administration, and a system of land administration functions (such as registries) in close proximity to them.

But…

All of this is to be admired in Chapter Five. How then to we explain why Kenya’s land inequalities are greater now than they were at the inauguration of the Constitution, with the best land in the hands of a few powerful individuals?

The concentration of land in the hands of the wealthy and powerful has had enormous consequences for ordinary citizens. The forced taking of land has transferred capital to a privileged few, expanding the number of citizens with no resources for subsistence or petty commodity production. Forced to serve as a reservoir of cheap labour, their livelihoods are often dependent on precarious work in cities where their existence is dominated by insecurity.

The attainment of their social and economic rights – which shaped the progressive 2010 Constitution – is a distant hope. Poor accommodation, domestic and police violence, hunger and a lack of healthcare and access to water are the everyday reality.

Only a wider understanding of the land question beyond the text of the Constitution and other laws will enable us to understand why this so. Prof Yash Ghai has written that to understand the dynamics and functions of constitutionalism, we must pay attention to its social and economic bases. Students, teachers and scholars must go beyond the formal boundaries of the law.

HISTORY

One starting point is to deepen our knowledge of the historical meaning of land reform. In the late colonial period, land reform was a defensive strategy. It was only ever introduced to deal with Kenyans’ increasingly radical demands over land and their growing challenges to the racial priority given to white settlers and the consequent landlessness of so many.

This perspective allows us to see continuities: in the present day, land reform has also only been on the table as a defensive strategy. The idea is to talk the talk, but only to mask that fact that no substantive concession or change will be allowed to happen that threatens the land status quo.

The class that has benefited from land accumulation can hardly be entrusted with guardianship of a Constitution which, in the form of Chapter Five, seeks to reform a historic system of unequal land relations.

Prof Issa Shivji in his book Accumulation in an African Periphery has explored how at independence a system of racial privilege was replaced with that of ethnic privilege. Prof Atieno-Odhiambo described this as "the tyranny of property" that pitted the haves against the have nots. We cannot understand Kenyan history – and specifically its class formation – without paying close attention to the history of land.

GOING BEYOND LAW

So, have we put too much faith in the Constitution and in law reform? What are the limits of law in challenging inequalities in land so deeply rooted in colonialism and now benefiting its successor regimes?

For lawyers who wish to be clear-sighted and self-critical, it is important to ask if, by putting so much hope in the law, we have obscured other choices. How land is distributed is the result of political and historical choices. It is not inevitable. But we know from reading Prof Ghai and Prof Patrick McAuslan’s landmark Public Law and Political Change in Kenya that law was used to achieve land dispossession in the colonial era. The best example was how — when the Maasai challenged the legal basis of their removal to facilitate the white reservation of land — the courts ruled that the Maasai had sufficient sovereignty to sign away their land in the agreements they had signed in 1904 and in 1911 - a happy outcome for the colonial regime.

Looking back over the past decade, we must consider whether we have allowed our liberal legalism to suppress wider demands for fairer land distribution. Strong institutions alone cannot replace the critical debates we need to have about redistribution, restitution and a reckoning with dispossession.

What intellectual resources are available to us with which to approach this vexed question? How might we shift the current dominant grammar on land - the grammar of law? Have we been too reliant on technical legal solutions to bring about piecemeal change? As law teachers and writers, we must move beyond legal dogma and ask these questions.

WAYS OF SEEING LAND

To do this requires us to find new grammars. Amongst the harms of colonialism was the philosophical assault it involved. Ways of seeing land – and our relationship to it – were fundamentally changed by the colonial encounter.

Holding land communally, and treating it as an intergenerational asset which carries with it great responsibilities and duties, was viewed as backward. Rather than emphasising a relationship with land (which the South African, Antje Krog, has described as people’s recognition that they are ‘land-owned’), importance has been attached to owning land. Land grabbing on a vast scale has been one result.

In a twisted logic, failing to acquire land is presented as personal failure, an outlook summed up in President Jomo Kenyatta’s question to Bildad Kaggia, "What have you done for yourself?’ Acquiring land marks you out as special, even when that acquisition has taken place by illegal and irregular means. This is the ethos of the ruling class who believe that by their individual effort they have accumulated wealth and power and can bequeath it accordingly.

This notion is of course built on a deeply gendered and patriarchal model of land and family: A man with a tight grip on his land is expected to have a similarly tight grip on his wife and family. Other ways of seeing land are castigated as backward and wasteful.

The heterosexual family ensures that wealth can be transmitted generationally. A decade-long resistance to the Constitution’s provisions on gender representation must be understood in this light. The patriarch and his reproductive wife guard their individual wealth, believing it to be acquired by their unique hard work, and keeping alert to other, more dangerous ways of wishing to organise society. Insurgent demands for fairness - in the organisation of the family (or Parliament) or in access to land - are keenly felt as threats.

This analysis suggests that to assess the past 10 years of the Constitution, we need to think broadly and conceptually. Land wrongs are not episodic. We need to pay attention to structures such as class and the family. We need to see the history of land grabbing not as deviant but as fundamental to the formation of today’s state.

For lawyers, this means taking our lead from the University of Dar es Salaam in the 1960 and 1970s and reading and teaching history, economics, political science, and literature alongside law. We must move beyond the formal boundaries of law and we must understand Kenya’s reactionary history in both its public and private manifestations. And we must seek to understand the daily struggles of the people in relation to the land and to build out of them a constitutionalism for the people.

Ambreena Manji is Professor of Land Law and Development at Cardiff University, Wales. She has published widely on land law reform and is the author of The Struggle for Land and Justice in Kenya (James Currey: 2020).