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.
SOLE OBJECTIVE OF LAW REFORMS
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.
RIGHT TO PROPERTY AS BASIS OF SOCIETY
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.
RIGHT TO PROPERTY IN NATURAL & DIVINE LAW
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.
CORRUPTION OF RIGHT TO PROPERTY
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.
UNHOLY TRINITY OF MODERN STATE
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.
MODERN LAND LAW
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.