Business Daily (Nairobi)
James Thuo Gathii
3 June 2008
column
The violence that followed the December 2007 General Election climaxed in a total breakdown of the rule of law in Kenya. Never before had there been such widespread and open disregard of both law and order as well as the moral and religious restraints that keep us from living in a state of nature.
I remember a friend telling me at the height of the crisis that the Kenyan State had lost all its legitimacy and that is why it had no ability to control the chaos that followed the elections. There are certainly many explanations as to why this violence occurred including anger with the conduct of the counting of the presidential results and their announcement as well as issues relating to land.
As the country continues to unravel the origins of these violent clashes, what is clear is that they represented the most fundamental breakdown of any semblance of law and order and most importantly of the rule of law. Individuals, the police, groups of unruly youths and military officers took the law into their hands as the country tottered towards collapse and total implosion.
Before this most recent violence, the question why violence had not been an option to resolve political impasse in Kenya like it had been in many an African country was often asked. This question reflected an exceptionalism that Kenya was safe from the frequency of violence as part of its political culture.
That of course was then; Kenya has now joined the leagues of African countries susceptible to be rocked by violence at a moment's notice very much like our neighbours such as Somalia.
Clearly, our post-election violence epitomised how thin our regard for the rule of law in Kenya is. While the rule of law has several meanings, by the rule of law here I simply mean the choice a society makes to be governed not by political fiat or violent gangs, but by a set of rules or guidelines.
Understood this way, the rule of law then presupposes a society organised around a predictable and widely acknowledged set of rules and norms. These rules and norms are of course found in our legal system and most importantly our Constitution.
That many of our legal rules and our Constitution have been the subject of consistent reform efforts is a reflection that the rule of law has not always succeeded in attracting the adherence of a large portion of our society. In fact, during the one party era, the Constitution became a political football to be kicked around at the whim of the then ruling party.
Similarly, our current debates on forgiving post-election offenders as well as jettisoning the sanctity of title deeds and land leases are evidence of the continued challenges to the relevance of the rule of law in our budding democracy. I want to suggest three guiding principles for consolidating the rule of law in land matters.
First, the continued validity of titles ought not to be easily overturned. There is a truism that perhaps the sanctity of the title deed has been abused to disinherit families by registered owners when they mortgage their land. In addition, the process of registration of title deeds disinherited women and groups of people in various parts of the country.
That is why our courts over time came up with innovative solutions such as the trust doctrine that presumed registered owners held land on behalf of their families and not themselves only. Further, Parliament also passed the Group Ranches Act that allowed certain communities to hold land as a group rather than as individuals.
In addition, the processes of mortgaging, sale and subdivision of land are subject to local panels of elders to guard against disinheritance of families and indeed of communities. These safeguards as imperfect as they are, are an acknowledgement of the significance with which title to land is policed to guard against disinheritance and abuse.
It may be that we need stronger mechanisms to check fraud in land matters than we currently have, but if our current system of willing place then doing away with the validity of title to land will only undermine rather than help facilitate the operation of a land market in the country.
Second, no system of land ownership in this country will be successful without cultivating a culture of tolerance. Tolerance by Kenyans in whatever part of the country that any Kenyan can buy and occupy or use land anywhere and not fear that they may not be able use it productively is a necessary accompaniment of a national land market.
Indeed, it is a terrible thing that Kenyans who decide to buy land in a place other than is understood to be their ancestral home need not fear that every five years when a general election comes around they will be violently evicted.
Strong claims to ancestral land ownership are perfectly understandable. However, when land is sold to purchasers for value, ancestral claims cannot subsequently be used to defeat title acquired legitimately through the sale of land.
That is why tolerance of non-indigenous communities who decide to buy land in areas understood to ancestrally belong to other communities must be cultivated to facilitate the emergence of a true national land market.
Third, the continued need to acknowledge irregular land acquisitions and allocations continues to be an important issue as the Ndung'u land report showed.
These matters together with the historical injustices that are often referred to as immediate reasons for Kenya's post-election violence are Agenda Item Number 4 in the Kofi Annan led talks.
It is unfortunate that these issues are receiving little or no attention especially given the enormous amount of time and energy expended in getting a political settlement.
Land matters just like constitutional reform efforts cannot be settled half-heartedly or through a patchwork of ad hoc policies and reforms if they are to be sustainable. We now know just how violently explosive these matters can get if left to the ethnic demagogues that our politicians become during election time. That is why these matters must be resolved sooner than later. This is the time to seize the moment rather than to wait for the next election cycle.
Gathii is the Governor George E. Pataki Professor of International Commercial Law and Associate Dean for Research and Scholarship Designate at Albany Law School, NY.
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