The Struggle for Land & Justice in Kenya

Land matters have remained one of the most explosive issues facing Kenya more than fifty years after independence from Britain. These debates have raged about the purpose and direction of land reform with citizens calling for change and governments resistant to calls for land grievances to be addressed. In her latest publication titled The Struggle for Land and Justice in Kenya, Ambreena Manjiargues that just like in many part of Africa since 1990, the desirability of land reforms has been a feature of political debates in Kenya. Manji asserts that land reform’s tenacity as a key idea in Kenyan history is beyond doubt. She views land as an exemplar of Kenya’s constitutional optimism and is of the view that there has been too much focus towards achieving institutional change in relation to the management and administration of land. Kenya’s land question, that was marked from the start by its status as a settler economy that has culminated into massive alienation of land to settlers has meant that agriculture has developed not only in a capitalist pattern, but as an enclave of super-exploitation and racial privilege under the overall domination of imperialist capital. Accumulation by dispossession has been underpinned by accumulation by ethnicisation. This publication extensively speaks to unlawful and irregular land appropriation that in essence transfers capital to a privileged few. But it is important to stress the connection between the plunder and the market itself, between primitive accumulation and accumulation through the market, between what is taken by force and what is acquired legitimately.

The author through this publication seeks to explain the often difficult politics of land (law) reform in both the colonial state and its successor, showing the continuities between different eras of reform. This book is also concerned with accumulation by dispossession and with struggles against exploitation in light of continuity/ change in the politics of Kenyan land reform. This book is concerned with understanding different framing of the meaning and importance of land and, in particular, different claims for epistemological and ontological justice in relation to land. Manji states that the other aim of this book is to show how the desire to navigate order/ transformation has affected approaches to land and severely circumscribed the terms of the land debate. The other aim of this book is to move beyond what, during the 2010’s, has become a convention of the legal academy and of commentators on Kenya’s constitution.  Perhaps the most significant characteristic of the most recent wave of land reform is the emphasis on the institutions of Kenyan land governance.

The aim of market led land reforms in Kenya before independence was to create a yeoman farmer class, which would be a bulwark against racial change. This is the tenor on the notion of state capture in Kenya that we must recognise that corruption is in fact the economy. More broadly, the author argues that the institutional legal approach described above must be understood in the broader global context. Ten years after the inauguration of the new Constitution in 2010, which promised fundamentally to alter the structure of land relations, the author shows how these promises have placed too much faith in law and in legal change, including in new institutions. The author deliberately describes the quest for land justice in Kenya as a struggle as a result of its connection with the politics and also how ideas of fairness and justice are constantly contested, not least by those who have continually urged the politics of vision as an attainable reality within our lifetimes. The author argues that modern land reform purports to provide legal answers to what remain political and social reform problems relating to land.

In the first chapter of this publication, the author comprehensively speaks about the longstanding and authoritative archive of official reports to explore the land grabbing, dispossession, irregular land dealing and land related violence which Kenyans have endured, and which have been visited on them with great regularity by a predatory state. The long history of state attempts to block the publication of reports or to redact their content also point us to the contestations over archives. The struggle to have these reports released and to see them published has been the valiant business of civil society since independence. The publication of the Ndungu report and the intrigue and delay surrounding the release of the TJRC report are just two instances of contestation over official reports that have come in time to memorialise land and other truths. In the process of struggling for access to these reports, civil society has been able to ensure that a vibrant citizen’s archive comes into being.

In the second chapter, the author provides an intellectual history of the idea of land reform in Kenya and argues that Kenya’s land issues are complex and multi-faceted and have resulted into massive and worsening inequalities in access to resources. There is a continuing conflict over who is and who is not entitled to occupy land. In this chapter, the author attempts to locate the present day debates about land reforms in the long arc of Kenya’s land history since independence. She seeks to present a history of ideas by asking; what has land reform meant at different times and to different people. In the third chapter, the author examines the multi-faceted land problems that have been experienced since independence with a view of demonstrating the many mischiefs with which land reform is concerned. The author draws on the work of political scientists to argue that official reports document the many wrongs associated with land and that Kenya thus possesses a powerful but neglected land archive built up over many years. This archive, she argues is scattered and fractured but if brought together in one place may constitute an important source of information about the mischiefs associated with land. Manji asserts that community land is the one domain in which transformative land relations can be seen to have occurred in 2010.  However, despite the transformative progress that has been brought about as a result of the new constitutional dispensation that was aimed at bringing about fundamental change in land ownership; community land is the new battle ground in Kenya’s land politics.

The fourth chapter of this publication shows how land reform and constitutional change come to be intricately connected in Kenya. Manji explores Kenya’s elongated process of constitutional reform and pays particular attention to the demands made in relation to law. She draws on the historical and legal accounts of this period to show how reform in the land arena becomes a marker for wider success of the 2010 Constitution, and argues that there are some dangers inherent to this. In her view, the anchoring of land in the Constitution should not lull us into overlooking the structural harm done in the land arena by colonialism and its successors in the post-independence period. In the fifth chapter, the author explores the new architecture of land governance envisaged by the reforms from 2009 to 2017. She delves into an in-depth discussion on the most important elements of the institutional architecture of land that has been constructed through the law and provides a comprehensive assessment of their workings and prospects. She critically examines the idea of devolved institutions of land governance as key change produced by the modern land reform movement and demonstrates the extent to which they have been driven by an ideology of order. Throughout this chapter, the author shows that to date, the ambitious experiment to devolve land administration has had a patchy record and that a powerful recentralising tendency can be discerned. In the sixth chapter, the author explores in further detail the politics of the National Land Commission and in doing so argues that the institutional change that was initiated with the hope that it would ameliorate Kenya’s longstanding problem of unclear, overlapping and contradictory land governance; that in her view may have been an exercise in futility. Drawing on both political science and legal analysis, the author demonstrates that significant hope was invested in the National Land Commission; as an independent constitutional commission and that, it was hoped it would be an institutional challenge to the centralised corruption of the lands ministry.

In the seventh chapter, the author examines the promise of the new Constitution to address the longstanding grievances over land through critically analysing the term historical land injustices that has firmly entered Kenya’s constitutional lexicon. Both the National Land Policy 2009 and the 2010 Constitution use the term to assert the connection between land and justice. She notes that the report of the Truth, Justice and Reconciliation  Commission (2013) provide perhaps the best illustration of the links made between land injustice and claims to justice, although the term historical land injustice does not appear in the legislation creating the commission. To this end, she argues that through its repeated use by activists and campaigners for constitutional reform and human rights, the term has become part of the everyday language of politics. She argues that we must be alert to the interaction of historical and present day injustices and to the ways in which the economy of land grabbing and corruption and the regular economy have come to be intricately connected, such that it is surely correct to speak in the present day of a ‘grabbed state’. She concludes this chapter by arguing that the struggle for land and justice must confront the ways in which the irregular and regular economy    interact.

Manji concludes this publication by arguing that, whilst land professionals have been concerned with developing and making effective a new architecture of land governance, a significant movement from the margins has kept up considerable pressure on land issues. They have inherited the mantle of earlier, radical movements that, in the intermediate post-independence period, had challenged a conservative elite on land issues. She emphasizes that in Kenya, and more widely across the continent, the enactment of new land laws cannot be understood apart from these wider political and sometimes constitutional struggles. Manji tries to recoup the role that land struggles have played in wider political and constitutional struggle since independence and argue that these land struggles have been an integral part of what African struggles for civil liberties, human rights, democratic participation, workers’ rights, peasant independence, spiritual space, elective representation and civic responsibility.

The Struggle for Land and Justice in Kenya is an exceptionally well researched transformative publication that will greatly contribute to jurisprudence around critical land issues. The author’s in-depth knowledge and understanding of Kenya’s complex land question and solid recommendations to the same will certainly be of great benefit to practitioners and scholars in appreciating the unique issues around land injustice in Kenya. A must read for scholars, policy makers, civil society actors and legal practitioners.