Constitutional Referendum Part III

A few weeks ago I attended a workshop on the proposed new constitution that was sponsored by Friedrich Ebert Stiftung. The forum was free and open to the publc. The workshop focused on 6 thematic areas of the new constitution – Representation, Women’s Issues, Devolution, Land and Natural Resources, Media, Executive Powers and Youth. The aim of the workshop was to look at the Wako draft in light of what the different stakeholder (I hate this word but you can’t avoid it) groups involved in Bomas wanted and in light of the current constitution. What follows are some notes I took at the workshop.

The next part of the workshop focused on land issues. The presentation was done by Odenda Lumumba from the Kenya Land Alliance. There didn’t seem to be much controversy over the land provisions and according to Lumumba most of the Bomas provisions were retained in the Wako draft. One of his main concerns, however, was property protections only seem to apply to matrimonial and inheritance cases…what about single women? He also called the referendum process a zero-sum game…jump of the cliff with an imperfect constitution or retain the bad constitution? In his view, the politicians have outwitted Kenyans yet again.

Particular things to note as far as the provisions related to land:

– Kilifi does more than protect the right to property – women’s property rights are specifically mentioned;
– Protection of the environment is specifically mentioned;
– Calls for national land policy;
– President no longer has the power to allocate land;
– Non-citizens can only hold land on a leasehold basis for not more than 99 years (controversial provision in some quarters, some argued there’s nothing to prevent a non-citizen from temporarily transferring land to a citizen to get around this provision ).

And the cribbed from FES handout 3-part comparision.

1. Current Constitution

– The President has special powers under ordinary legislation to make grants of government land to individuals.
– There is no recognition of environmental rights and no requirements on regulation of land use.
– There is no requirement for a national land policy.
– It is not clear who land belongs to and designations in ordinary laws are equally unclear.
– Property rights of spouses not protected and could actually be whittled down by recognition of customary law.
– Land use is unregulated.
– Non-citizens can hold any interest in land for any term.
– No National Land Commission

2. Bomas Draft

– Would have been expanded recognition of land as a national resource (Chapter 7, Sec 58).
– Requirement for a national land policy
– Land belongs to Kenya as a nation and is designated as either public, community, or private.
– Land use is to be regulated.
– Property rights of spouses will be protected.
– Non-citizens to only hold land on leasehold for not more than 99 years.
– National Land Commission to be established.
– National Environment Commission to be established.
– There was to be expanded protection of natural resources

3. Wako/Kilifi Draft

– There will be expanded recognition of land as a national resource (Chapter 7, Sec 38).
– Requirement for a national land policy
– Land belongs to Kenya as a nation and is designated as either public, community, or private.
– Land use is to be regulated.
– Property rights of spouses will be protected.
– Non-citizens to only hold land on leasehold for not more than 99 years.
– National Land Commission to be established.
– National Environment Commission to be established.
– There was to be expanded protection of natural resources

Part 4 dealing with Women’s Issues to follow…