NAIROBI LETTER:Illegal land-grabbers have made Mombasa's poorest squatters in their own homes, writes JODY CLARKE
THE ISSUE of land runs close to Irish hearts. The Bull McCabe wouldn’t face his mother in heaven or hell “without that field” and Gladstone, in his mission to pacify Ireland, knew there would be no peace until far greater numbers of the population were put in possession of the country’s soil.
So as Kenya gears up to vote in Wednesday’s constitutional referendum, one in which the contentious issue of land rights in the country might finally be resolved, perhaps it’s no surprise to find an Irish priest leading illegal slum dwellers in their fight for recognition of title.
"It's in our blood," says Fr Gabriel Dolan, sitting in the office of his slum parish school in Mombasa, built illegally on government land. "If you find missionaries in the slums, there's a good reason that they are often Irish." Kenya's problem with land goes back over 100 years, when the British first arrived and declared the country terra nullius– land of no one. British settlers grabbed land belonging to the Maasai and Kalenjin tribes in the Rift Valley, creating what became known as the White Highlands.
But on independence in 1963, well-connected people in the independence movement snapped up land on the cheap from fleeing white farmers.
They were generally members of the Kikuyu, Kenya’s largest tribe and that of the country’s first president, Jomo Kenyatta. He is thought to have ended his days as Kenya’s largest individual landowner.
The issue still rankles with the tribes of the Rift Valley, who believe that the land rightly belongs to them. This was one of the causes of the tribal animosity that began Kenya’s post-election riots in 2008.
The new constitution intends to resolve some of these issues by setting up a land commission to determine whether land was acquired illegally or irregularly in the decades following independence, from white farmers or, more often as not, public land deals.
In a typical example, 2000 acres of government-owned forest would be given over to build houses for dispossessed people but in the actual land deal, 10,000 acres would be allocated. Beneficiaries in the government would snap up the difference.
The consequences of these land-grabbing deals are still being felt in slums like Fr Dolan’s. Home to 80,000 people, semi-state companies and government ministries officially own the 6.5sq km or so of land in the Bangladesh slum. But land-grabbers, who have plagued Kenyan society since independence, have either illegally or irregularly gained fictitious title to it, says Fr Dolan.
That means that even if people have maintained homes in the slum and built schools and other local amenities, they could be bulldozed at any time.
If the land commission can determine who rightly owns what, it could keep bulldozers away from Bangladesh slum and others like it.
But it’s not just in land rights that the constitution is making large leaps and bounds. It also says that minorities and marginalised groups should have “reasonable access to water, health services and infrastructure” while every child has the right to shelter and a basic education.
The government doesn’t feel obliged to provide basic services, be they schools or health clinics, to the squatters. The slum dwellers are conveniently forgotten, and have had to raise money from confirmations and other special occasions to build a school and parish hall.
“The constitution does not offer a panacea to all our ills. But it could offer a lot of hope as it does bring some form of protection to people here.”
However, the document is not perfect. Article 43 (a) says that the government can take land without compensation, opening the door for potential despots to abuse the clause, says Chris Foot, a Nairobi lawyer and leading advocate for the referendum’s No campaign.
“The quality of the drafting of it leaves a lot of ambiguities.”
He also points out that if fraudulent title is an issue, all that is required is for the current laws to be enforced.
“As regards theft of land, that can be dealt with under the penal code. It’s not rocket science.”
But with the polls showing 62 per cent of Kenyans in favour of a Yes vote it is clear that there is real momentum for change in Kenya.
The appearance on the No side in recent weeks of former president Daniel Arap Moi, a man who allegedly benefited from shady land deals himself, seems to have reminded many Kenyans that they do not want a return to the past.
Whether the constitution will definitively solve the issue of land rights for Fr Dolan’s parishioners, he is not certain. But he is hopeful. Even if people in the slum are evicted, he says, “it is worth taking a risk on the poor. The gospels say that you should take a risk. So even if we are bulldozed, I wouldn’t regret building the school. It is a gesture of solidarity and it will still mean a lot for people here”.