Written by Eric Ng'eno   
Thursday, 06 August 2009

One thing that is very, very notable about the contentions over the Mau, particularly whether and when to evict, or not and why, is the absence of law-based arguments. The occupiers of the moral high grounds, those who have mounted the high horse,  carefully avoid the law. They speak as though it actually does not exist. It is as if there are no land laws that can be used to determine various claims. And that ought to make people quite curious indeed.

I wish I were Sammy Mwaita. Then I could tell you the genesis of the entire rigmarole. But I am not, so I will just tell you what might be in the public domain -- what is, and is not, cannot be said for sure, since our unthinking journalists and commentators have done a sterling job of fomenting such a whirlwind of confusion that truth is obscured in its vortex. A minister de-gazetted forest land to settle the Ogiek. Up to that point, all was well. Remember that Londiani, Burnt Forest, Mount Elgon and other strife-torn areas also had de-gazetted forests. Because the Ogiek were few, other 'deserving cases' and landless squatters were brought in and settled. It now seems that that was part one of the scheme -- if you will forgive the pun. The main idea all along was to settle what Ruto calls ‘Executive Squatters'. These are the princes of the Kenyan state. Very few women are involved, so the use of the word princess would be quite unfair. Ministers, Permanent Secretaries, PCs, DCs, KANU operatives, State House officials, etc. The idea was for the non-executive squatters and Ogiek to be used as a human shield in case matters turned elephant, as they clearly have. That is the genesis of the present irony.

Moi and his sons detest the current crop of Rift Valley MPs, but because of the 'human shield' thinking years back, Moi and Sons find themselves in the happy position of beneficiaries of the 'no-compensation-no-eviction' demand that has made the Rift MPs look so bad. And that is why the distinction between genuine resettled former squatters and Executive Squatters comes in handy: it is important to take the distinction into account.

It is also important to look up the law and what it says. So here goes.

CHAPTER 1 - REGISTERED LAND CODE | HOME

6. Land registries.

Registration districts. Appointment of officers.

Land registries. Cap. 280. Cap. 282. Cap.281.

6. (1) There shall be maintained in each registration district a land registry, in which there shall be kept -

(a) a register, to be known as the land register, in accordance with Division 2;

(b) the registry map;

(c) parcel files containing the instruments which support subsisting entries in the land register and any filed plans and documents;

(d) a book, to be known as the presentation book, in which shall be kept a record of all applications numbered consecutively in the order in which they are presented to the registry;

(e) at the discretion of the Chief Land Registrar an index, in alphabetical order, of the names of the proprietors (other than public bodies, banks, building societies and other corporations which lend money on the security of land) of land, leases and charges, showing the numbers of the parcels in which they are interested; and

(f) a register and a file of powers of attorney.

(2) The registers of powers of attorney for the time being maintained for the purposes of the Government Lands Act, the Land Titles Act and the Registration of Titles Act shall be deemed to be registers of powers of attorney under this section.

I am not done yet, so here's more.

CHAPTER 1 - REGISTERED LAND CODE | HOME

14. First registration.

Transitional provisions. Manner of registration.

First registration.

14. The date of first registration under this Act of any land shall -

(a) in the case of land the subject of a grant or lease under the Registration of Titles Act, be deemed to be the date on which this Act applied to the land concerned;

(b) in the case of land registered under the Land Registration (Special Areas) Act, be deemed to be the date on which it was first registered under that Act;

(c) in the case of land the subject of a grant, lease or certificate of ownership registered under the Government Lands Act or the Land Titles Act, be the date on which this Act applies thereto by virtue of section 12 (1) (b);

(d) in any other case be the date on which the land first came on to the land register.

And then this in addition.

CHAPTER 1 - REGISTERED LAND CODE | HOME

27. Interest conferred by registration.

Reparcellation. Rights of proprietor.

Interest conferred by registration.

27. Subject to this Act -

(a) the registration of a person as the proprietor of land shall vest in that person the absolute ownership of that land together with all rights and privileges belonging or appurtenant thereto;

(b) the registration of a person as the proprietor of a lease shall vest in that person the leasehold interest described in the lease, together with all implied and expressed rights and privileges belonging or appurtenant thereto and subject to all implied and expressed agreements, liabilities and incidents of the lease.

What, you say?

28. Rights of proprietor.

Interest conferred by registration. Voluntary transfer.

Rights of proprietor.

28. The rights of a proprietor, whether acquired on first registration or whether acquired subsequently for valuable consideration or by an order of court, shall not be liable to be defeated except as provided in this Act, and shall be held by the proprietor, together with all privileges and appurtenances belonging thereto, free from all other interests and claims whatsoever, but subject -

(a) to the leases, charges and other encumbrances and to the conditions and restrictions, if any, shown in the register; and

(b) unless the contrary is expressed in the register, to such liabilities, rights and interests as affect the same and are declared by section 30 not to require noting on the register:

Provided that nothing in this section shall be taken to relieve a proprietor from any duty or obligation to which he is subject as a trustee.

That, ladies and gentlemen, is a verbatim rendering of pertinent sections of the Registered Land Act, Chapter 300 of the Laws of Kenya.

The government opens a registry, appoints a registrar who opens a register in order to enumerate all persons who hold land in the Mau, or in whatever registration district. A peasant gets hold of a title deed, meaning that as per § 27, he is what my law lecturer termed the 'exclusive and conclusive' owner of the land registered to his name. In essence, that is what a title deed amounts to: information that Government has conferred on its bearer conclusive and exclusive proprietary rights over the land in respect of which it is issued.

All de-gazettements, demarcations, registrations, and issuances of title documents are therefore acts of government. As such, government ought to be the last entity to wake up one morning and require bearers of its certificates of registration simply to get lost. If it did that, then no investor would ever repose any sort of confidence in Kenya, because the only working security in Kenya today is the title deed. Banks respect it. Business listens to it. If it is converted into a mere piece of paper, as Kimunya unfortunately remarked once upon a time, while Tuju gleefully cackled, what will stop my good friend Ama from Kawangware from marching into a Runda townhouse and politely requesting the owner to vacate, as he needs to take a shower and catch up on his reading? What indeed?

As an act of government, therefore, reclamation of Mau for 'overarching ' concerns about the environment must take into account its liabilities as the issuer of the titles and the guarantor of the rights conferred thereby. That is why, even in exercise of its eminent domain, i.e. government's unfettered right to forcefully possess any land in Kenya, it is required to adequately compensate the title holder of that land. As a legal and commonsense imperative, therefore, government must compensate the title holders of Mau.

This brings into focus the Executive Squatters. The first time I saw a copy of Moi's title deed, I was disgusted beyond belief. It was the old RTA version and read, "HIS EXELLENCY THE PRESIDENT OF THE REPUBLIC OF KENYA, OF STATE HOUSE, NAIROBI, HEREBY CONFERS UPON DANIEL TOROITICH ARAP MOI, OF KABARNET GARDENS PO BOX...... ALL THAT LAND KNOWN AS............" Indeed, I can say without any fear of contradiction that that is the second time I lost faith (the first time was at Moi University, and there have been other times besides). It reminded me of one of my favourite short story of all time, Prof. Lo Liyong's Lexicographicide, in which he refers to a character in another tale by Tutuola where one person dances, plays the drum, sings, and actually reposes to watch himself do all three things, at once! It is beyond doubt that the Executive Squatters were allocated land corruptly and in pursuance of an abuse of office. That being the case, the process of cancelling their titles and denying them compensation must nevertheless be transparent, just and legal. It occurs to me sometimes that the PM frequently loses sight of that imperative and is tempted to accomplish his objectives by way of a roadside declaration. I must confess, too, that I sometimes share that temptation. However, the reason he is a leader and a holder of such high office is that he is expected to always have the greater public interest in abiding by the law as a main consideration. For a private citizen like me, there is more latitude to fulminate irrationally and compass all sorts of dastardly designs against 'grabbers' and 'the corrupt elite'. So, in accordance with the foregoing, I declare that the Executive Squatter must go to hell.

Ole Ntimama used the 'conservation of catchments' argument to brutally evict Kikuyu from Enoosupukia and so forth. A forceful and brutal eviction out of Mau would retrospectively validate those unfortunate acts. Most arguments for eviction without compensation claim environmental concerns as the cause for urgency. They have no no merit whatsoever. The Mau catchment, or 'water tower', if you like, goes all the way to Londiani, Kericho Tea Estates, Burnt Forest and the Nandi Hills multinational-owned tea estates. As recently as the seventies, indigenous forests were being cleared to settle squatters in land excised for settlement schemes. There is every reason to conclude that the hyped-up urgency over Mau, the proposal to violate the law and the preferment of singular brutality in eviction has everything to do with the ethnicity of the majority of the title holders in Mau. Whilst the 'clever' formal media commentators and 'wise' analysts gloss over the issue, it may be time to talk to each other sincerely. The Hague, Mau and other controversies stem partly from a widespread feeling that the Kalenjin are unforgiven, that they are guilty of too many unforgivable things, have got away with too much for too long and that no opportunity should be wasted, but instead, must be used to extract retribution, revenge, justice, punishment, closure and settlement, and that forgiveness will only ensue after full vengeance has been exacted and they are suitably contrite, and not in everyone's face as they presently seem to be. In such a situation, facts are secondary, motive is the only item on the agenda. But we ought to be sobered by the sure knowledge that anything short of due process will punish everyone, and the punisher even more. As they say, 'mtego wa panya huingia waliomo na wasiokuwemo'.

I know it is difficult to be fair and just to someone one does not like but ironically, the greatest beneficiary of such 'unfair' justice in the person meting it. First, because a precedent is set, and more importantly, it prevents unintended consequences from revisiting us when it is other incumbents' turn to reclaim important water catchments. Even as the law may seem an Ass, it is our Ass. Those mounting the high horse must, therefore, alight upon the Ass with sagacity and compassion.

[Source: www.kenyaimagine.com, 06.08.2009]

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