Like in modern Africa and the rest of the developing world generally, in Kenya, land and land tenure constitute a critical subject. Several reasons account for this. While land remains the major means of production, agriculture is the main economic activity in Kenya despite over-emphasis of industrialization strategies by successive post-independent governments.

Secondly, with the ever rising population, access to land for subsistence purposes for the majority of Kenya’s population is no longer guaranteed. Thirdly, since land itself does not expand, its availability, on the whole, remains a constant. Fourthly, land tenure reform policies have tended to favour and over-emphasise a movement away from pre-colonial communal or group based and “inclusive” land tenure to individual and “exclusionary” tenure.

By “inclusive” land tenure, I mean tenure which guarantees that available land caters for any expansion in the community population on a continuing and re-adjusting basis through re-arrangement and re-allocation of access rights to the land. An “exclusionary” land tenure system, on the other hand, seeks to accord to individual primary control and primary access rights to the land in question thereby de-emphasising and often negating corporate sharing of access rights to the land question.

Fifthly, privatization or individualisation of land ownership for purposes of introducing and developing the free enterprise system in Kenya then has on the negative side led to the genesis of landlessness in a scenario where employment opportunities in the public or private sectors (including the informal sector) are not visibly expanding. This explains the high level of unemployment in Kenya.

Therefore it is not in doubt that the land question is emotive. To the contrary, the Inspector General of Police, David Kimayio, and the National Cohesion and Integration Commission (NCIC) chairman, Mzalendo Kibunja, appeared to gag presidential candidates by restraining them from discussing land issues during their campaigns.

First, the caveats were unconstitutional. Politicians are free to make land issues their subject matter in their campaigns. It is a legitimate political right of those campaigning to discuss issues touching on the Constitution - land included. It is imprudent to outlaw talk on land matters on grounds of being sensitive or emotive, while unemployment and integrity are equally critical matters but politicians are yet to be barred from highlighting them in the campaigns.

However, what should be of concern to the authorities is the manner in which the discussions are made. So far, nobody has violated the law. The land issues have since been at the core of a myriad of maladies afflicting pre and post-independent Kenya. It is therefore completely unacceptable for anybody to seek to de-legitimise land issues during this electioneering period.

Apparently, caveats from NCIC and IGP were tantamount to creating problems where there was none besides greatly undermining the democratic process and fundamental rights as enshrined in the Constitution.

In recent days, presidential campaigns have been charged with Cord presidential candidate, Prime Minister Raila Odinga hitting at his Jubilee competitor, Deputy Prime Minister Uhuru Kenyatta over land reforms. Raila and his partners in have maintained that Uhuru cannot be entrusted with initiating and implementing land reforms in the country due to perceived personal conflict.

Even though, it is not in dispute, as Kimaiyo warned, that land ownership is a highly emotive issue and was linked to the 2008 post-election violence.

In the last two weeks, the land debate has dominated the campaigns with presidential candidates pushing the issue high up in their political rallies. The issue is compounded by the controversy surrounding the gazettement of the National Land Commission, which has for the last six months not been done after approval by Parliament in August last year.

For once, Kenyans must be allowed to, with sobriety, engage in a discourse on the land question. It is not secret that Coast, Rift Valley, Central, Kisii, Nyanza and Kakamega, are smoking zones of land issues which have never been addressed.  A way ought to be found to say; yes, some have benefited excessively through inheritance and succession rights. How do we address it?”

Unfortunately, what the political class is currently engaging in is mere threats as no individual, even if he were the president, would do anything except through an institution. The land policy is very clear. Politicians should not interfere with what the Constitution stipulates clearly.

Historical injustices and land issues have been of concern to Kenyans since independence and have been the principal issues on what every presidential campaign has been run since the re-introduction of multi-party democracy in 1992.

The controversial land question is far from getting an adequate answer, following President Kibaki’s delay in gazetting the new National Land Commission. Despite advice from Attorney General Githu Muigai that delaying or failure to gazette the commission was illegal, the Office of the President Permanent Secretary Francis Kimemia ignored the possibility of facing contempt of court charges.

Powerful and influential people in Government are allegedly frustrating the commission whose mandate is to investigate past and present land injustices and institute corrective measures. The National Land Commission Act 2012, section 15, states that the commission must correct historical land injustices.

“The Commission shall, within two years of its appointment, recommend to Parliament appropriate legislation to provide for investigation and adjudication of claims arising out of historical land injustices for the purposes of Article 67(2)(e) of the Constitution,” states the Act.

In the last two weeks the land debate has been in the public domain with presidential candidates making it their agenda in the campaigns. Land experts, constitutional lawyers, and civil societies have argued that failure to gazette the land commission would be propagating impunity by the ruling class in Kenya.

By Kasembeli Albert
A  Nairobi based journalist