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Friday, January 22, 2010

The New Constitution is Void AB INITIO

Guest Post by Blogger Mwarang'ethe


Kenyans have spent a fortune in search of a new constitutional dispensation. It is thus in order that we are now witnessing fretfulness and feverishness in expectation of change. However, we wish to warn Kenyans that all this expense shall be in vain. This must be so because, every new law must of necessity be injurious which is not adapted to that form of society which perfectly agreeable to nature and justice. Thus, any law that is drafted in ignorance of natural law principles, as this Draft Constitution has been, instead of being a staff of honesty and shield, must become a two – edged sword of craft and oppression.

In expressing this uncompromising and bitter truth, we are addressing the court of reason. However, at the same time, we are aware that there are few judges in this court. Furthermore, these already a few judges are too indolent to inquire diligently into the causes of present misery in Kenya. Nevertheless, we must address them because blessed are those who hunger and thirst for justice, for they shall be satisfied. More so, they are not only the salt of the earth, but, they are also the light which places the lamp of knowledge in the dark places.


Let go straight to the point. The sole objectives of any law reform are twofold. It is to assure safety of our property and the security of persons. Consequently, all the political commotion we see is all about right to property, i.e. who shall own the wealth generated in the commonwealth. Thus, without addressing this matter conclusively, we are wasting time. Furthermore, to the extent that safety of our property is not assured in any constitutional dispensation, it must follow as the day follows the night that, even safety of our persons is not assured.


According to Locke while agreeing with Cicero taught us that:

“That the great and chief end of men’s uniting into commonwealths, and putting themselves under government is PRESERVATION of their property.”

Also, Mr Mills expressed the same opinion taught us that:

“The end be obtained through government as the means, is to make that distribution of the scanty materials of happiness, which would ensure the greatest sum of it to the members of the community, taken altogether, preventing every individual or combination of individuals from interfering with that distribution, or making any man to have less than his share.”

In simple words, what these wise men taught us is this. It is for reasons of preservation of property which existed before any government is formed, do men unite under a government. What this means is that, the right of property is the KEY – STONE of a society. Therefore, the right to property is the basis of the political edifice. What this means is this. To the extent that, right of property is a natural right, not created by legislation and therefore, a principle derived from the laws of the universe, all its results must be determined at all times by those laws. Consequently, the legislator ought to ascertain these laws before he legislates. This means that before he takes any step to protect right of property, he must find out by serious study what are the first principles of this right. Let us now demonstrate how this important step has been ignored.


Among the African, Red Indians, Maori of New Zealand, Aborigines of Australia, the traditions and customs of right to land/natural resources are these. Land is a gift from the Creator and therefore, a common property. This meant that, one could farm, graze his animals and hunt on the land freely. However, the fruits of one’s labour, i.e. his millet, his cows, goats etc and the dear he shot, were his private property. This was a remarkable distinction between common property and private property which a modern lawyer and a philosopher has no clue.

In the Bible, we find similar message. The Lord told Moses in Mount Sinai that:

“The land shall not be sold for ever: for the land is mine; for ye are strangers and sojourners with me.” (Leviticus 25:23) Also, in Psalms 24:1, the Lord says, “The earth is the Lord’s.” What this meant is simple. Israel’s were to hold land in fee from Him. Thus, the ground itself, then, was not a proper object of sale, but only the result of man’s labour on the ground. It is for this reason, the wise man Solomon taught us that: “Moreover the profit of the earth is for all: the King himself is served by the field.” The similarity between African, Indian, Maori and Aborigine people and Mosaic Law is striking.

In England during the era of Saxons and Normans, and up to the end of feudalism, land was held along these lines. All land belonged to the Crown who held it as a trustee or a steward. Those who held land directly from the King were called tenants in capite (tenants in chief). The land these tenants in chief occupied was called demesne land. The rest of the land which was called mesne was granted to others who held it indirectly from the Crown on similar conditions. These mesne tenants could also grant others land under similar conditions. However, the most important point is that, all these people, held land for rent in service or in money or in kind. As a result of these arrangements, the cost of the government was from land rent.


However, with time, the tenants in chief refused to remit the rent to the Crown. However, they forgot to stop taking rent from their sub tenants. This was the start of an era where privilege started to be divorced from obligation whereby, land was being treated as unconditionally owned private property in fact, but, not in law.

This development had very grave consequences. One, the Crown was starved of funds to run the government. This required introduction of taxation of citizen’s labour. The imposition of tax on the poor who had already lost their land resulted in poverty and crime in England. To hide this problem, the English government introduced Poor Relief law and punitive punishment of using modern prisons and capital punishment. Today, they call the Poor Relief the so called Welfare, but, it is the same Poor Relief law which was enacted when many people lost their birthright to land. The other consequence was that, having retained land free of duty, i.e. rent for public purse, the few grew very wealthy. From this wealthy generated from rent which rightly belongs to the Crown, they started lending the Crown loans with interest. To pay these loans, the English government had to incur further public expenditure which increased taxation even further.


It is this corrupt and inequitable system which developed in England, we cheerfully and ignorantly inherited. As a result, we now have an unholy trinity of TAXATION of incomes, POVERTY and WELFARE. Under this trinity, taxation causes poverty because it falls hardest on the poor. Poverty necessitates Poor Relief which is euphemistically now called welfare. The funding for welfare calls for more taxation which further increases poverty. This creates a vicious circle which is broken by borrowing.

However, since it is impossible to repay these loans and interests, the governments must sink into more debts to be met with more taxation. As we all know, this leads to serious inflation which again bites the poorest most. And, mark you, this borrowing is from those who hold land, but, do not remit rent that is due to the State although they continue to collect rent from the poor. This is one the worst defect of modern state and without its reform, poverty and conflict will be with us.


In the modern English law on land, we find this. There are two basic doctrines in the law of real property. These are known as:

  • (a) The doctrine of tenures: all land is held of the Crown, either directly or indirectly, on one or other of the various tenures, and
  • (b) The doctrine of estates: a subject cannot own land, but can merely own an estate in it, authorizing him to hold it for some period of time.

What is crystal clear, but, not to a modern lawyer, is that, under the current land law in England which we have accepted is this, all those who call themselves land owners in Kenya, as a matter of law are not land owners. They only own an estate in that land. The question that we must ask is this. So, who owns the land in Kenya then? The answer is obvious. It is owned by all Kenyans as a common property. It is remarkable that, the modern English land law takes us back to where we started about African traditions law and customs of land. The question is, if those who call themselves land owners are tenants of all Kenyans, where is the rent due for holding this land? Or, what is the consideration for holding this land?

The answer is that, those who call themselves owners of land in Kenya have not been paying their dues to those who own land. This means that, the government we had since 1963 did not meet the requirement that the chief end and aim of a government is to preserve the existing property of those who form a government. This being the case, one the major aim of the current constitution reforms should have been about securing the birthright to land i.e. property, that a few robbers have dared rob for so long. The question is, has the Draft Constitution done this?

We answer with bitter disappointment that, it has not come even close to this. This is not surprising for lawyers who are like priests of the Middle Ages, blend technical competence with plain and fancy hocus-pocus to make themselves masters of their fellow men. Thus, they are only versed with technicalities of conveyancing which is a means of attaining reputation and wealth to understand what they are doing. Being what they are, they can only amend some of these technicalities and some trivial discrepancies of detail. They do this while blindly assuming to be correct that which reason teaches is an error. Thus, since they are experts in what is law and not what law ought to be, they can only recommend the continuation of an error while only pruning the most revolting consequences of the same.

To the extent this draft has not addressed the lost birthright to land, i.e. right to property; we are still stuck with the unholy trinity of taxation, poverty and welfare. The only way to end this vicious circle that bleeds ignorance and conflict is to require the King to live on his own as they expressed in England when land rent was collected to run the affairs of the government. It is in accordance with this doctrine, Sir John Fortescue (Lord Chief Justice 1442) expressed in clear and unambiguous terms that, it is only in case of overmuch exorbitant for suppression of rebellion, the defence of the realm to repel invasion was it thought right and necessary that people should be taxed.

To many Kenyans, the problem is the executive. To this we answer. This is mere delusion and fantasy borne out of confusion of thought fostered by brainwashing of modern education if one can call it education, the pulpit, the legislature and the media which are all under the control of the land lords. We say this because, political organisation very much depends on the mode in which property is distributed. Whenever the right to property is placed on the proper foundation, the oppression and its offspring’s, i.e. ignorance and poverty it with all their dreadful consequences are unknown. However, whenever the foundation of property is rotten as this draft proposes, freedom cannot exist and justice cannot be administered. This is so because history bears witness to the following facts:

The rules which regulate the manner in which land can be owned, and used, and disposed of, must always be the very greatest importance to the state. The STABILITY of the state and the WELLBEING of its citizens at all times depend, to no small extent, on its land law. This is true today as it was in the earlier period of history.

For heaven’s sake, if you have not secured the foremost natural right i.e. inalienable birth right to land, how dare you deceive humanity that you can secure those other so called human rights you call right to food, clothing, access to justice and shelter among others that you put so nicely in this constitution?

Therefore, concurring with Chief Justice Coke, we call upon all men of reason to join us, in saying that, when any man made law is against common right and reason, the common law will control it, and adjudge such law to be void. Therefore, as demonstrated in this short essay, this so called new constitution is in utter violation and in fact in contempt of both Natural and Divine Law. Thus, it cannot assure the safety of our property and our personal safety. For these reasons, it is void ab initio and the nation cannot claim not to have been forewarned. In God’s name, stop this robbery of the poor and weak.


Anonymous said...

ODM, in their "headless-chicken" dance, were no match for the rigors of constitution-making and ended up helping PNU propagate a constitution geared for the daytime robbery of the weak. ODM did not believe in parliamentary democracy, they just wanted the easiest way of sneaking into power. They are chicken-eating mongooses. Washindwe kabisa.

Anonymous said...


I don't have time to read your drivel (did they not teach you how to write short or summarized essays in school?)

But do you know who owns the biggest chunk of land in Kenya?

Well, they are:

Delamere Family
Kenyatta family
Moi family

What do they have all in common?

They are all former presidents of Kenya (Delamare being the founder of the country under colonial govt)

The truth is, Kenya's land question has it's roots in the colonial administration. Prior to that, Kenya has had no clearly defined laws on how to manage land, and this is what has lead to a breakdown in land administration. Moreover, lack of land policy has also opened the door to environmental degradation. e.g. mau issue.

Phil's Mistress

Anonymous said...

Sasa andika kwa Kiswahili, tuelewe!

Anonymous said...

Be brief, be brilliant, be done and be gone.

Then ... andika kwa Kiswahili, tuelewe (@11:19 AM) ... in the same way our distant ancestral cousins - Rwandans, Ethiopians, Israeli, Indians, Arabs, Koreans, Japanese, Chinese, Turkish, Germans, French - proudly do (translate) for their patriots.

Anonymous said...

You have a major point but how many ordinary folk understand it?

Your points are based on political theory and they do make sense to a political scientist but you have to find a way of sending the same message to the man on the street, the "plebs /proletariat" who at the end of the day have the numbers to decide how our country will be governed.
Great article!

Anonymous said...

How simple can the writer be? He has tried his best to bring a very important point on what to look for when writing a constitution especially on land issues. If you can be able to log into a machine and load Kumekucha on your browser then your brain should be able to synthesize this essay. Stop your laziness, read this piece again, engage your gray matter then make a positive contribution.

Philip said...

This is how I get your arguement in another perspective.

Land is very important however our government has not been able to come up with a good land policy which will enable it to use all the land it owns in a productive way.

Maybe I need to be corrected, what I know is that there is freehold land and leasehold land in Kenya. Freehold being referred to land one can own for 999 years. While leasehold is mostly less than 99 years.

I know the government policy is so bad that one can acquire freehold land and live it idle for the entire duration - I mean 999 years. So that in the end it's not only the government, but it's people also who loose.

Yes, there are rates that people pay annually but it's so little it doesn't relate in any way to the value and the output that land can provide.

The government can create so much wealth from the land when it comes up with a policy that will make people to make good use of the land they have acquired.

The policy should discourage forever acquisition of land and keeping it idle by ensuring one pays tax over the land one "owns" - In other words land should not be owned by people, but by the government, so that people should be renting the land from government and not acquiring it for life, and they should be paying the "rent" to the government, this can be monthly or annually.

At the moment most people are complaining of poor economy of the country yet there are a lot of idle land owned by the government which can be "rented out" to people for productive use.

I once wondered whether it's possible for me to rent land from the government.

Anonymous said...

I am disappointed in the fisrt five commentaries. But I think we can lay the blame squarely on our education system and laziness and ignorance inherent in most Kenyans and more so, middle class Kenyans (much to my devastation)......Do you know that most well educated Kenyans will tell you the best to invest is by buying land and then selling it for a profit read speculation....please do tell me if things can get more ridiculous than that? All said and done, I find this a very intellectually engaging and enlightening piece that needs preservation for future reads.....well done Mwarang'ethe!!!!

This post is great only if you can try to understand......

Vikii said...

What a screed!

Mwarang'ethe said...

A number of issues have been raised. Firstly, for those who find it difficult to understand the article, they only need to read the first two paragraphs.

Someone noted that middle class invest in land. This is true. They do so in the believe, but, a mistaken one that increase in land values represent an increase in commonwealth. It does not for whatever a land owner gains by higher prices the tenants or buyers who must pay them will lose. Likewise, the common wealth would not increase if some are enslaved for whatever the enslavers get, the enslaved must lose. Therefore, land is a relative wealth and not actual wealth.

Thus, real wealth is this. It is what labour has impressed upon matter in such a way as to store up the power of human labour so as to minister to human desires. This therefore, automatically disqualifies land/natural resources as man’s property.

Someone mentioned freehold and leasehold. Well, as a matter of fact, free hold is what was called tenant in chief (in capite) as we noted above. The leasehold is what was called mesne in England.

Now, what it means is that, the leaseholder, just like the mesne of the old, is still paying his rent to the tenant in chief. However, the tenant in chief i.e. Baron, is not passing this rent to the King. This forces the King to tax the labour.

Thus, we are just reminding the tenant in chief that we have not forgotten he has not been remitting rent which he collects from the mesne. It is so simple and straight forward.

Having said the above, let be noted that, we have three factors of production. We discuss them in a very brief manner, so, we will leave a lot of details. These factors are land, capital and labour. For the land, the returns are rent. For capital, the returns are interest and for the labour is wages.

Now, the big issue is this. If the nation’s annual produce is KES 100, you will find that, about 80% of the wealth produced, is pocketed by rent and interest.

This means that labour, the creator of all wealth pockets about 20% of the annual wealth created in a community. They do so because, under the law rent, all incomes above that is necessary to maintain labour will accrue to the owners of land without the expenditure of their labour.

Thus, the labour only gets that income to enable it to just survive if at all they are able to survive. The rest is soaked by rent. This means that those few who hold land under the current corrupt system, pocket almost all surplus of a community WITHOUT DOING ANY WORK.

If labour consists more than 95% of the population it pockets around 20% of its produce. This means that, less than 5% of the population who control land pockets over 60% of the annual produce WITHOUT LABOUR. The rest is captured by other pirates calling themselves bankers and financiers.

It is therefore, from this perspective we insist, even if you have the best constructed presidency in the world, it will only preside over this rotten system and the fruits will be the same, i.e. poverty, ignorance and attendant conflicts.

This must be so cos those who do not work, will still prosper at the expense of those who work/labour. This will not produce a vibrant middle class necessary for development of a viable democracy.

Thus, land seen in this wider context, is at the heart of the mess and not executive as Wanjiku has been led mischievously and deliberately misdirected so that she does not see the truth. You can see the same efforts in this blog.

Anonymous said...

The whole question of land is bit overblown. It does not matter who owns the land, what matters is how do we get maximum productivity.

My contention is that we have adequate laws in that country. All we need is implement them where appropriate to ensure more productive use of land.

Mwarang'ethe said...

Anonymous said...
The whole question of land is bit overblown. It does not matter who owns the land, what matters is how do we get maximum productivity.


Read the history of great civilizations and what led to their fall. If you do, you shall have a better and well informed understanding of what land is.

Yes, it does not matter who owns land, but, this is only true if we have in our laws this one simple and essential condition.

There must be distinctions between:

(a) Natural right of property, and
(b) property as the product of labour.

Unfortunately, the above distinction is totally missing and is deliberate mechanism so as to appropriate wealth of those who labour by those who do not labour via the soil.

Anonymous said...

....and just to add on to this, land is not a product of human labour, so it would be wrong for anyone to claim title to it.

deroo said...

PHEW!!! Pure screed Vikii. Wondering where the PARLIAMENTARY SYSTEM brigade went to

Anonymous said...

Kenya needs a stable executive, legislation and judiciary totally independent from one another.

1) The president should be a national figure voted overwhelmingly by Kenyans with over 50.1%. A re-run is a must and must be stated clearly in the constituition. If he is a member of a political party, his party must be of a national character AND NOT a coalition of TRIBES, RELIGION, REGIONS, ETC.

His cabinet and all other appointed officials must be ratified by the parliament and the senate.

He must fire any of his officials who is involved in corruption or crime, otherwise the senate and parliament must impeach him. This will enable a culture of impunity to be done away with.

2)The parliamentarians should serve for 3 terms only and earn a fixed amount of not more than 30-times amount earned by a P1 teacher. The Speaker should be named President of the National Assembly (PNA) and should be in charge of the smooth running of the house. Once elected, an MP should NOT be a member of the cabinet (to avoid MPs supporting the President to be "rewarded" after election).

3) The Senate should consist of 8 elected Provincial leaders, and representatives of the counties. The provincial leaders should be named Provincial Presidents (PP). There should be no gender discrimination NOR seats reserved for women and men.

4)All positions of judges should be advertised. The Law society or any law professional body should forward the names to the parliament for ratification after which the president will sign their contracts. A judge's contract should not exceed 10 years.

5)Political parties must be based on ideologies ONLY. Their numbers must be reduced to 3. The ideologies should be Socialist, Capitalist, Environmentalist, Tradition conservationalists, communists, etc.

Names like ODM,PNU,should go. Independent candidates should get at least 10000 signatures to vie for parliamentary seats.

Let's wish Kenya success.

Anonymous said...


Eric Wainaina (musician) has fathered a child with his mpango wa kando Valerie Kimani.

The cheating couple are thought to be v. delighted with the news!

Anonymous said...

Anon 2.18, you have nailed an excellent observation i.e. we have problem with our education system; laziness and ignorance of the so called middle class... (refer to Philip Ochieng's recent article on our education system)

what you have written deserves all the kudos, if only most ppl will spend some time reading, understanding and truly digesting this information... that said, a second reading is in order...

Ken Thumbi

Anonymous said...

Mwarangethe, how many people know this information? I bet almost none. You can't blame those fixing the constitution since am sure most of them are well meaning. I doubt if Raila knew this he will oppose it, why not sell this idea to the people who are able to move it through. Am sure they will need a thorough lecture to understand what you are getting at. However, since we are already deep into the process, why can't we mend this system the way it is then immediately start working on a land policy which we will take time to do but will do it right?

Mwarang'ethe said...

Anonymous said...
Mwarangethe, how many people know this information? I bet almost none. You can't blame those fixing the constitution since am sure most of them are well meaning.


You are right. Not many people have investigated these matters. And, as a matter of fact, the schools, media, pulpit, govts. ensure these matters remain hidden from the masses who then blame their "bad" leaders for their poverty.

However, the COE cannot claim to be ignorant for we gave them a dossier on the same matter.

We even promised to get them very qualified persons from all over the world, to help devise a well designed policy. For "unknown reasons", they chose to ignore this offer.

More so, if they asked or, if Kenyans were to be interested, Mwarang'ethe can within 48 hrs. draft a comprehensive law on:

- Declaration of The Natural Law Relating to the Acquisition and Ownership of Private Property.

Now, there is one thing that should be clear. On the surface, this looks like a land issue. It is not. It is more than that.

It is this:

(a) who shall work/toil and who shall pocket the BULK of the national wealth?

Under the current arrangements, which we are about to entrench, the BULK of wealth produced in Kenya by those who toil, shall end up in the hands of few idlers who constitute a landed aristrocracy which in turns controls the politics of the nation.

Seen this way, if we enact this law as it is, we would have entrenched the appropriation of national wealth by a few. So, if the national wealth will still end up in the hands of the few, what was the purpose of the reforms?

Now, given the road we have taken to reach here, reopening these matters will prove to be very very difficult. It is this serious.

Anonymous said...

I understand what you are saying Mwarangethe. So what is the solution, we need the PSC to be informed. Can we get someone to talk to Agwambo and some few others like PSC chairman? At the moment they are the only people that can dramatically try to change this process.

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