Row rages over land in Kenya draft law

June 21, 2010 12:00 am

, NAIROBI, Kenya, Jun 21 – Church leaders have joined the debate on hate speech with fresh claims that provisions of the Land Chapter in the proposed Constitution could potentially incite ethnic hostilities.

Reacting to the arrest and prosecution of three MPs over hate speech, the clergy said the leaders were simply interpreting the provisions of Articles 63 and 67 which touch on community land.

Evangelist Willy Mutiso who read a statement on Monday took issue with the recognition of community land on the basis of ethnicity, ancestral land and culture or community interest as a potential justification for communities to evict others.

“The simple and direct interpretation of this Article is that tribal enclaves will be recognised in law and that in these areas, specific tribes will have pre-eminence over the others,” he opined.

Article 63 (1) states: “Community land shall vest and be held by communities identified on the basis of ethnicity, culture or similar community interest.”

Article 63 (2,d,ii) defines community land as “ancestral lands and lands traditionally occupied by hunter-gatherer communities.”

“By stating that ancestral lands will be classified as community land then Kenyans will be at pains to identify their ancestral lands,” protested Dr Mutiso.

Last weekn MPs Wilfred Machage, Fred Kapondi and Joshua Kutuny were charged for allegedly saying this article gives communities powers to evict others from what they called their ancestral land.

Article 67 gives the National Land Commission the mandate to “initiate investigations on its own initiative or on a complaint into present land injustices and recommend appropriate redress.”

However a land expert has termed this interpretation as skewed.

Former Institute of Surveyors of Kenya Chairman Mwenda Makathimo told Capital News that the definition of community land in the proposed law does not automatically rule out legally acquired private and public land.

“You will not go proving it is your ancestral land when it already public or private land legally registered,” he said, adding that community land exists under present laws and is held as trust land by the councils.

“The loose use of the term historical injustices by politicians has been the core thing to cause conflict when they incite the public and tell them that there is no recourse,” he said.

“Giving the work to the land commission gives a chance to due processes to verify what is properly a claim that can be accepted in legal terms.”


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