Protection of Marginalized Communities, RAO


For the avoidance of doubt, I want to state categorically that NASA stands for respect of private property, protection of commercial contracts and sanctity of titles.

As a government, we shall uphold all rights and fundamental freedoms including those of private property as guaranteed under Article 40 of the Constitution.

We shall also similarly and with the same enthusiasm implement Chapter Five of the Constitution on Land and Environment and protect not just private land but public and Community land as well.

For about two decades prior to negotiations for the new constitution, there were growing concerns over the rate at which marginalized communities in Kenya and particularly the Maa community were selling ancestral lands and trust lands. This sale of land, although coated as a normal “willing seller, willing buyer” arrangement, was clearly a case of poverty among these marginalized communities and the clash of cultures between these communities and other Kenyans. The Maa have always valued land not for cash value but for grazing of their cattle. Years of neglect and abuse is forcing them to trade in their birth right for survival.

For long, these concerns were expressed only in whispers and it was not until the Bomas Conference when they came into the open.

The solution reached at Bomas was to create the new cadre of lands that was called “Community Land”. This was intended to ring fence lands in areas like Kajiado and Narok where most of the land, even when they are registered in the names of individuals, is held in trust for families and clans.

Jubilee has refused to enact proper laws to protect these community lands. Article 63 required Parliament to promulgate legislation to give effect to the Article 63 which states as follows:
“Community land shall not be disposed of or otherwise used except in terms of legislation specifying the nature and extent of the rights of members of each community individually and collectively”.

The law that was enacted by Jubilee was a mockery of the land rights of marginalized communities. The Community Lands Act No. 27 of 2016 placed the powers over community lands in the hands of the Cabinet Secretary for lands of the National Government and totally downplayed the roles of County Governments and the National Land Commission in administration of Community Lands.

Jubilee wants to ensure that these lands remain available for sale even when they are being sold in breach of trust and where the sales are dispossessing future generations of Kenya’s marginalized communities and particularly the Maasai people. That cannot be a way to build a fair, just and equitable society. This is one issue that NASA will address when it comes to power. It is what we were addressing in Kajiado last week.

The National Land Policy which provided the jurisprudence and framework for the chapter on land in the Constitution, and which addressed the issues of historical land injustices perpetrated against the communities in the Rift Valley, Central and the Coast and the challenges facing marginalized and indigenous communities, set up the roadmap for resolving the land issue in these areas. It is for this reason that Article 67 (e) offers a mechanism for investigating into present or historical land injustices and the rendering of redress. Unless the Constitution is amended, the land question cannot be wished away.

The other solution that NASA will pursue on this issue is the recommendations of the TJRC report. The report recommended many measures to tackle the poverty that was pushing these communities to sell their ancestral lands. These measures include building road networks to link these communities with the rest of Kenyans, drilling boreholes, building water catchment systems, hospitals, schools, and ensuring all government and public facilities are available to the communities. It also recommended making budgetary allocations to these communities over and above the Equalization Fund.

We all know that Jubilee does not want to hear anything to do with the TJRC report. Yet without a full implementation of the TJRC report and strict adherence to the Constitution, we shall never, ever come close to addressing the land question.

In the meantime we continue asking those who are registered as proprietors to stop selling land that they hold in trust. This is what we were urging in Kajiado. We told the proprietors that they must put the interests of the young Maasai people first because it is for them that they hold the land.

When proper laws are in place, then there will be a proper frame work for commercial transactions in community lands. That is what the new constitution intended and that is what NASA is promising to achieve. Jubilee is sensationalizing the comments made in Kajiado firstly because they have messed up the land chapters of the constitution and secondly because scaremongering is the only campaign tool they are left with. NASA will not allow the key pillars of the Constitution, namely devolution and land, to be compromised or eroded just because Jubilee does not want to face the reality of its legacy of failure and betrayal.

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