The Land Question, Redux.

In 2010 when the Committee of Experts was about to publish the final harmonised draft Constitution, it held a retreat at the Great Rift Valley Lodge in Naivasha. One of the niggling matters that was being considered was the form of government that Kenya would adopt: parliamentary, presidential or a hybrid form made up of the two. The second one was the Land Question. Four years later, we are facing the consequences of the compromises that were made at Naivasha.

We have a presidential system of government that resembles the United States'. The members of the executive are no longer members of the legislature and both work hand in hand to appoint members of the Cabinet and the Judiciary. There is one crucial difference between Kenya and the United States: the power of the Executive Branch, exercised through the President's office, the Cabinet and executive agencies, is vast, limited only by the Supreme Court and the Houses of Congress. That is the United States. In Kenya, it is unclear how vast the power of the National Executive is, because there are many "independent" commissions and offices that do not seem to be under the thumb of the National Executive: they draw their funds directly from the Consolidated Fund; their administrative affairs are not the business of the National Executive; their discipline is the preserve of Parliament; and so on and so forth.

What this means is that in the current roiled political waters, it is almost impossible to determine whether the Land Question will be settled once and for all if the National Executive and its agencies are unable to pull in the same direction. In theory, the National Executive is responsible for policy; it only has the power to implement that policy where no other institution has been created for that specific purpose. In land, therefore, it is the Cabinet Secretary who determines lands policy, but it is the constitutional National Land Commission that has the mandate of executing that policy. Moreover, while the Commission may advise in the development of policy proposals, it is not for the Commission to decide what the policy shall be; its job is to execute the policy once the policy has been set by the Cabinet Secretary.

But the Land Question has not been settled since 1959, when the Emergency came to an end and the colonial government realised that it could no longer afford to hold on to the Kenya Colony. Mzee Jomo Kenyatta, Kenya's first Prime Minister and President, did not do much to solve it, but he did a lot to benefit some areas while others languished. The settlement schemes overseen during his presidency benefitted tens of thousands of Kenyans. But when he failed to tackle squarely the question of what to do with the Million Acre White Highlands, the principal reason for the Mau Mau war, Mzee guaranteed that Kenyans would kill each other over land for the next forty years, and so we have.

Uhuru Kenyatta has the chance to avoid the legacy problems that his predecessor, and late father, suffers. For once, given that the Government of Kenya has failed for forty years to resolve the Land Question, it is time to admit that the National Executive has too many vested interests whose entrenched opposition to any reforms have made the problem almost intractable. The President and his Cabinet Secretary could begin by throwing their weight into formulating a policy that empowers the Commission, whittles down the power of the entrenched vested interests, and raises the costs to those interests the longer the status quo prevails. Second, the President could beef up the capacity for investigating and punishing land-related crimes, especially historical ones. If he could demonstrate his commitment by supporting the Director of Public Prosecutions when he goes after the Big Fish, it will give the entrenched vested interests the signal they need to shift their weight off of their opposition to land reforms.

Finally, despite the financial and international implications, the President must demonstrate that he will support all efforts to settle all native Kenyans on viable, arable land first before he goes for outside investors. This is not to say that only black Kenyans should benefit; that ship has sailed. If you were born in Kenya and you hold Kenyan citizenship, you should enjoy right of first refusal before Chinese, Emirati, British or Indian investors get a look in. Mr Kenyatta has a chance to leave a lasting, positive legacy. He should seize it.