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Kenya: Right to Property Cardinal
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Business Daily (Nairobi)
EDITORIAL
5 May 2008
Posted to the web 5 May 2008
The decision by the Government to let the internally displaced persons exercise their right to property should be applauded.
But that right should come with a duty from the Government to not only protect those who decide to return to their farms, but to also initiate post-conflict resolution strategies that will heal the wounds inflicted on communities living in the expansive Rift Valley province.
The language of rights in the international discourse also comes with language of duties. In this case, the State is in a Catch-22 position since it can be sued by the IDPs if it fails in its duties to protect private property and allows the forceful acquisition of property in the guise of settling historical injustices and/or agitating for change.
That should not happen since all Kenyans have a right to own property anywhere.
We have said here before that land rights, whether private or ancestral, cannot be extinguished by chasing away the title holders and torching houses.
No government should allow its citizens to settle historical injustices in an unjust manner.
We have learnt from history that any such eviction in turn has negative impact on the entire economy.
Lands Minister, James Orengo, was quoted in a local paper as saying that there is enough land to settle the IDPs and said that it doesn't have to be in Rift Valley.
If he was quoted right, then we fear that we are witnessing a worrying trend in terms of the constitutional right to property.
We all recall the 1972 expulsion of Asians from Uganda without compensation but the Ugandan government, read the taxpayers, had to later compensate the expelled Asians during Yoweri Museveni's reign under pressure from both the World Bank and IMF.
In February this year, it emerged that the Ugandan taxpayer paid twice since Amin had also compensated the same Asians in 1976.
What are we saying? That right to property cannot be extinguished and the State should be firm on resettling the owners and providing them with security.
Also it should facilitate the selling of property of those who wish not to return as it did after Independence in 1963.
But more than that we should copy the Gacaca system of Rwanda where victims and aggressors were brought together in mass reconciliation and forgiveness sessions. These sessions should open space for dialogue and promoting reconciliation.
Rebuilding community trust will take years and this is not just about telling IDPs to go back to their farms.
We must engage both the civil society and scholars in addressing the emerging issues about inter-tribal trust and de-emphasize retribution as a goal.
These are the issues that the Government should put high on the resettlement agenda.
As one of our Columnists argues today Truth and Reconciliation Commission might not be able to solve all the problems after all key perpetrators keep off. Again, its mandate as we pointed out before is not to extinguish the right to property in the name of correcting historical injustices.
We have always said that it is very irresponsible for political leaders to use the IDPs as political bait to further their personal ambitions and we cannot use them to score political goals.
Even as President Kibaki and Prime Minister Raila Odinga, continue to put the house in order, they should at all times protect the dictates of our Constitution.
Likewise, Mr Orengo should go slowly with activism and do more on the rule of law.
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That is the only way we can settle the colonial notoriety of land acquisition and the subsequent land redistribution mess under both Kenyatta and Moi regimes. But let us not interfere with a people's right to property otherwise the State will be liable. Ask any lawyer.
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