Kenya: Whose Land Is It Anyway? The Failure of Land Law Reform in Kenya, Part II
The rise and rise of the rule of law
Kenya´s recent experience exemplifies critical shortcomings of land reform processes throughout East Africa. Since the 1990s international financial institutions, donors and governments have embraced law reform as a means to address a range of land issues, with varying degrees of sincerity and commitment. In essence, land reform has been land law reform. This approach was prompted by a rediscovery of the role that law might play in development. The emphasis on law is not new. In the 1960s, the "law and development" movement held that law reform could promote economic development in newly independent countries. Interest subsequently waned due to scepticism as to the merits of this argument.
The recent revival of law in development policymaking, and in particular the focus on the centrality of the rule of law to development, has had a major impact on how land issues have been addressed. Law has played a key role in what has been labelled "new wave land reform in an era of neo-liberalism": land reform in East Africa has taken place in an "intellectual climate which rediscovered the importance of law as a major contributory factor in the international community´s support and pressure for land law reform within countries in the region".
The renewed prominence of law as a proposed solution to land problems has supported the representation of land as a tradeable asset that can be used to leverage loans.
Secure formal property rights and developed land markets are considered a desirable goal of international and national land policy advocated by the World Bank and other multilateral and bilateral donors. Such legal constructs are portrayed as prerequisites for economic growth, poverty reduction and establishing the rule of law in developing countries. The formalisation and monetisation of land tenure have gone hand-in-hand as part of a "market-friendly" approach to land described by pre-eminent scholar, advocate and practitioner Patrick McAuslan in an important paper published in 2001 as "the globalisation of land markets".7 The formalisation of land title and access to credit are now intricately connected in development policy prescriptions.
David Kennedy, currently faculty director of the Institute for Global Law at Harvard Law School, has argued that there is an unarticulated hope among law and development practitioners and academics that working within a strictly legal framework can substitute for, and thus avoid confrontation with, "perplexing political and economic choices". This has placed "law, legal institution building, the techniques of legal policy-making and implementation - the ´rule of law´ broadly conceived - front and centre". It has excluded, rather than encouraged, contestation over economic and political choices; and the hope that law might substitute for contestation "encourages people to settle on the legal choices embedded in one legal regime as if they were the only alternative". The rule of law, according to Kennedy, "promises... a domain of expertise, a program for action, which obscures the need for distributional choices or for clarity about how distributing things one way rather than another will, in fact, lead to development".
This observation helps us to understand why and how, over the past two decades, East African nations have felt compelled to reconsider land tenure regimes, adopt new land policies, enact new land laws and introduce programmes to ensure their implementation.
Getting technical
The consequences of a legalistic approach to land reform are starkly evident in Kenya´s new land laws. First and foremost, it foreclosed debates about redistribution, prioritising land law reform as the most effective way to address land problems and so evading more difficult questions about who controls access to land and how a more just distribution might be achieved.
A further consequence of the weight accorded to law as a means to resolve land issues is that amongst lawyers, civil society groups and scholars, it expedited a retreat into a technicist approach that ignored the wider political context and therefore missed an important opportunity for bringing about positive change. A constant rebuff deployed during public meetings of the Parliamentary Committee on Land and Natural Resources (the "Land Committee") in Kenya was that the new land laws were highly technical and complex. Land law is complex, but this mantra, and severe time limitations, often seemed to be aimed at suppressing genuine debate and citizen participation.
Rather than challenging the retreat into technical legal responses, civil society groups largely accepted - and to some extent reinforced - this practice by assuming the role of mediator between the law and the people. This was mistaken. As Patrick McAuslan asserted, "to move from policy formulation to drafting laws is not, as some people assume, to move from a debate on policy to one on legal technicalities". The technical is highly political. When ideas of equity and fairness come to be precisely defined, perceived winners and losers emerge. Objections and obstructions quickly arise. "These are not," McAuslan continued, "objections on ´policy grounds´ but on technical legal grounds; a particular clause ´wouldn´t work´; a certain provision is ´unnecessary´; another goes too far or is ´impracticable´".9
Acute distrust of bureaucratic power over land issues is widespread among Kenyans. The allocation of public land in pursuit of patronage and profit has long been practised by successive presidents and their land commissioners. Civil society needed to wrest control of the debate from bureaucrats if the "intensely redistributive potential"10 of the National Land Policy and the constitution were to be realised. Instead, activists were distracted and mollified by the technical obfuscation that tends to be part and parcel of land law reform - and which typically reinforces the status quo.
Ambreena Manji