Proposed Constitution: Land Question Mishandled

By Mwarang'ethe

In the proposed constitution, we find Article 68 (1), that, Parliament shall -

(c) enact legislation -
(i) to prescribe minimum and maximum land holding acreages in respect
of private land

(v) to enable the review of all grants or disposition of public land
to establish their propriety or legality.

There are a number of issues like money, which we feel are very dangerous in this Draft. However, we must warn that, the land question is the most visible to many, and therefore, is the most dangerous issue in this proposed constitution. The mistake we are making is to assume that, only a degree in law is required in constitution making.

This is a terrible mistake and we shall pay dearly. For instance, how many legal historians, general historians, philosophers, sociogists do we have in this constitution making business?

Sample this:

By the 2nd Century BC a lot of peasants had lost land to rich land owners in the mighty Roman Empire. When Tiberius was elected into the office of the tribune in 133 BC, he embarked on serious land reforms. To do so, he invoked an old law that had limited the amount of land that could be owned by a single individual. He therefore, established a commission to oversee the redistribution of land holdings from patricians to peasants. Mark you, he was just enforcing law that existed, but, had been ignored. A lot of senators who were huge land owners opposed his reforms. To counter this opposition, he appealed to the people arguing that, a tribune that opposed land reforms did not reflect the will of the people.

To counter him, the senators decided to prosecute him after his office. To avoid this scenario, he sought a second term. As we would expect, the senators opposed this move bitterly and in the ensuing confrontation, Tiberius and his supporters were murdered. We are told, that, this was the first time blood was openly shed in Roman politics for almost four centuries. When his brother Gaius took office in 123 BC, he sought to revive his brother's land reforms. He also sought to give non Roman Italians citizenship (did we hear complains about 8 year old child?). This made Roman citizens to turn against him. Once his support was weakened due to citizenship question, his movement was crushed and he and his supporters lost their lives as well.

Does it appear like any of the COE is aware of this history? However, they cannot plead ignorance because, when the COE requested public input last year, we did give our feedback. We reproduce some of what we informed this COE. The opening lines of our proposal was like this:

"Having examined CHAPTER SEVEN of the Draft Constitution entitled LAND AND PROPERTY, we have come to the conclusion that, although on appearance it looks a better deal than the current one, this Draft Constitution dwells on EQUALIZATION OF FORTUNE and entrenchment of MONOPOLIZATION OF LAND by a few. We believe that, this policy falls short of the objective of a well designed agrarian reform which is the EQUALIZATION OF RIGHTS of all citizens."

To ensure equalization of rights as opposed to chaos of equalization of fortune and continued monopolization of land, we propose the inclusion of the following maxims in the Draft Constitution:

(a) Acknowledging that, the Almighty and Eternal God, having created men free and equal in respect of their rights and having given the earth in common to all men, every Kenyan has a birthright that is original, inalienable and indefeasible by any act or determination of others to an EQUAL share of the property in the land/natural resources in its original state. This is a maxim of natural law.

(b) It is also a maxim of natural law, that everyone, by whose labour any portion of the soil has been rendered more fertile, has the right to the additional produce of that fertility, or to the value of it and may transmit this right freely to other men. This is also a maxim of natural law.

(c) LAND/NATURAL RESOURCES VALUE TAX (including landing slots, airwaves etc) and then POLLUTION and WASTE shall be the main source of revenue for running the affairs of the Kenyan state. There shall be no taxation of INCOME, CAPITAL & EXPENDITURE etc until the WHOLE land value, pollution and waste tax has been collected and utilised productively.

We added this:

"Having started well on the s.79, the Committee went adrift and ended up with a land law that is ambiguous and will cause unnecessary economic and political tension. Our considered view is that, you have ended here for you and the whole nation has been and is still labouring under a false and a very dangerous doctrine that, land/natural resources can be called a man's property. By so doing, you have acquiesced to a false but, traditional doctrine that has not yet been subjected to critical examination. You have therefore failed to heed the words of Sir William Blackstone in the Commentaries on the Laws of England that:

“There is nothing which so generally strikes the imagination, and engages the affections of mankind, as the right of property; or that sole and despotic dominion which one man claims and exercises over the external things of the world, in total exclusion of the right of any
other individual in the universe. And yet there are very few that will give themselves the trouble to consider the original and foundation of this right. Pleased as we are with the possession, we seem afraid to look back to the means by which it was acquired, as if fearful of some defect in our title; or at best we rest satisfied with the decision of the laws in our favour, without examining the reason or authority upon which those laws have been built. We think it enough that our title is derived by the grant of the former proprietor, by descent from our ancestors, or by the last will and testament of the dying owner; not caring to reflect that (accurately and strictly speaking) there is no foundation in nature or in natural law, why a set of words upon parchment should convey the dominion of land: why the son should have a right to exclude his fellow-creatures from a determinate spot of ground, because his father had done so before him: or why the occupier of a particular field or of a jewel, when lying on his death-bed, and no longer able to maintain possession, should be entitled to tell the rest of the world which of them should enjoy it after him.”


We then added that:

If this Harmonised Draft was the product of the man in the street, the incorporation of private property in land in the Constitution in the manner of] s. 81 would be understandable. However, since you are the experts in law, it is not an option for once again to quote Blackstone:

“These inquiries, it must be owned, would be useless and even troublesome in common life. It is well if the mass of mankind will obey the laws when made, without scrutinizing too nicely into the reason for making them. But, when law is to be considered not only as a matter of practice, but also as a rational science, it cannot be improper or useless to examine more deeply the rudiments and grounds of these positive constitutions of society.”

Since you are lawyers, who are supposed to be learned, ingenious and friends of mankind, you have no liberty to find this inquiry useless or troublesome as common men would do. You must therefore, summon courage and perhaps a bit of divine wisdom to examine this absurd and pernicious right to absolute ownership of land.

We added further that:

"... From the above two declarations, it is obvious that, by declaring that all men are equally entitled to the use of land does not involve in any way socialism or communism and we need not tamper so much with the existing arrangements as the draft proposes. Also, it is not
necessary that state manages land. To engage in these activities as the draft declares is to engage in equalization of fortune. This type agrarian reform did not work with Tiberius Gracchus of the Roman Empire and have not worked in Zimbabwe and is fatally failing with
dreadful consequences in South Africa that will shall witness in the fullness of time.

Instead of equalization of fortune, which is a dangerous route, all we need instead is an arrangement whereby all the land rent that has been going into the pockets of the few, is taken via taxation to fund the common purposes. To do so, we must deny and utterly reject the vicious idea of “divine absolute land titles” and replace them with conditional form of private ownership of land. This will ensure security of possession and thereby retain use rights and ownership of land for homes, businesses and production which will be both easier
and cheaper."

We then WARNED the COE on the DANGERS of looking backwards. We therefore, requested the COE to look forward and not backwards and to empasise this, we wrote that:

"We find the same sentiments expressed by Alfred Marshall, a great economist who straddled the classical and the post – classical period of economics for he wrote:

“Looking forward rather than backwards, and not concerning ourselves with the equity and the proper limits of the present private property in land, we see that part of the national dividend which goes as earnings of land is a surplus in a sense in which the earnings from other agents are not surplus... there is this difference between land and other agents of production, that from a social point of view land yields a permanent surplus, while perishables made by man do not."

We then informed the COE that:

"... However, should the Committee of Experts desire to educate itself more on this question, we stand ready to provide materials in our possession. We also stand ready to assist the Committee to get in touch with some of the leading thinkers on land question who are in a position to assist in designing a land policy conducive to equalisation of rights.

However, should the Committee and the nation at large ignore this opportunity; it will go down in history as having squandered an historical opportunity to remove the entrenched the fiscal folly that characterises the modern state whereby, the annual public value of the land is monopolised or privatised by a few while taxing the majority poor to increase the value of this land."

Given what we presented to the COE, and our offer to help them get in touch with leading land reform thinkers from around the world, it is therefore, very disturbing to see that, this COE has ignored well detailed lessons of dangers of land redistribution and very reasonable
advise of a great economist, Alfred Marshall, that, the best way is to look forward and not backwards.

Now, let us ask:

(a) Will we divide land into equal portions for every Kenyan?
(b) If we shall not divide land into equal portion, where is equality before the law in such a case?
(c) And, if we will not have equal pieces of land, who shall have a bigger portion and what criteria shall be used?
(d) If the mighty Roman Empire was unable to enforce land size limitations, for what reasons do we think we will succeed?
(e) If we go back and check the validity of past land grants, how far shall we go?