Human rights violations and land

Article 25 of the Constitution states:

25. Despite any other provision in this Constitution, the following rights and fundamental freedoms shall not be limited -

(a) freedom from torture and cruel, inhuman or degrading treatment or punishment;
(b) freedom from slavery or servitude;
(c) the right to a fair trial; and
(d) the right to an order of habeus corpus.

Torture, according to the United Nations Convention Against Torture (an advisory measure of the UN General Assembly) is:

...any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him, or a third person, information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. It does not include pain or suffering arising only from, inherent in, or incidental to, lawful sanctions.

In 2005, the Sabaot Land Defence Forces launched a massive campaign of intimidation, including the widespread use of torture, to force people to vacate lands in the Mt Elgon area that had been set aside for the Chebyuk Settlement Scheme. In 2008, the Government of Kenya responded by sending a mixed team of military officers and police forces to crush the SLDF. The security forces were accused of employing the same tactics used by the SLDF in carrying out Operation Okoa Maisha. The atrocities committed by the SLDF and the Government were documented by the Independent Medico Legal Unit and the Western Kenya Human Rights watch. To date, no one has been successfully tried in a court of law for the crimes that were committed in Mt Elgon area. Needless to say, the area remains tense 3 years after the cessation of hostilities.

The origins of the conflict are easy enough to recall. IN 1963, when Kenya gained internal self government, and in 1964 when it became an independent republic, the Government of Jomo Kenyatta promised to resettle the millions of Kenyans who did not own land of their own. One of the programmes that was funded by the British Government was the Million Acres Scheme, by which the Kenya Government would be guaranteed loans from the World Bank to buy a million acres from the departing white settlers for the resettlement of indigenous Kenyans. However, what was to become routine in Kenyatta's and Moi's regimes, the land did not go to those who needed it most; instead, many of the beneficiaries of the land settlement schemes were politicians and senior civil servants in the Kenyatta and Moi governments. As a result, the Land Question in Kenya has never been resolved, and incidences such as the Mt Elgon land clashes continue to hold this country to ransom, 47 years after Uhuru.

With the repeal of Section 2A of the former Constitution and the return to multi-party politics, every general election since 1992 has been characterised by land clashes and inter-ethnic clashes over land. Politicians seeking public office have exploited the despair many Kenyans feel over the 'invasion' of their 'ancestral' lands by 'outsiders' to galvanise them into taking action to weed out the outsiders and chase them from their land. The scenes of this violence have always been areas where settlement schemes were poorly managed, usually in the fertile areas of the Rift Valley, including the Mt Elgon region.

Opposition to the new Constitution was founded on, among other things, the fear that the land provisions in Chapter 5, would be used to deny many deserving Kenyans of the opportunity to own land or to take away land that had been allocated to others. Many of the undeserving beneficiaries of the Kenyatta and Moi Land Policies opposed the Proposed Constitution on this ground, and they sought to whip up popular sentiment against its ratification. These same forces had been opposed to the Draft Land Policy published by the Government in 2007.

The chickens of the Kenyatta and Moi Eras have now come home to roost. The gross human rights violations in Mt Elgon have their roots in the failed land policies of the Kenyatta and Moi regimes. The continued refusal by elements in the Kibaki regime to acknowledge these failures is rooted in part on their use of extra-constitutional methods to resolve these issues. If the military and police officers involved in Operation Okoa Maisha are ever brought to justice it may bring down the Kibaki government and all those who knew or participated in the authorization of torture and other cruel, inhuman and degrading methods in the pursuit of the leaders of the SLDF insurgents. 

The Land Question will continue to cast a long shadow long after the Kibaki Era has come to pass. We can only hope that the yet to be constituted National Land Commission is up to the task of resolving once and for all what has become the bane of national politics. If not, the next ten general elections will witness the same cycle of violence and land that has characterised the last four.