Comments on Blair Rutherford’s brief paper “Translation of Land Rights in Africa- Some Themes” presented at the workshop, Translation of Rights across Contexts in Africa, Institute of African Studies, Carleton University, 3 April 2009

 Introductory Note: This presentation was prepared as a commentary and complement to an excellent paper drafted by Blair Rutherford. His paper emphasized the importance of power relations and struggles over meaning, in debates over how “land rights” are defined.

In the presentation, I included a number of examples from Rwanda, particularly to demonstrate some of the different kinds of rights to land (loosely based on the concepts of “usus, fructus, and abusus”). The Rwanda examples are not included in this succinct summary.

 Chronology of debates over rights

Debates over  the protection of  “property rights” in international law – such as the International Covenant on Economic, Social and Cultural Rights (ICESCR – adopted 1966, entered into force 1976), and others - became battlefields in the struggle for decolonization, and the Cold War, particularly in terms of the state’s right to nationalize land belonging to individuals and corporations, vs the notion of private property rights. In the end, agreement could not be reached on how property rights should be addressed in the ICESCR. More generally, international human rights law does not protect private property per se, but conventions such as the African Charter on Human and Peoples' Rights place significant emphasis on the importance of due process guarantees, the right to compensation, and the definition of the public interest.

Throughout the 1960s and 1970s western donors supported systematic titling programmes in  many countries, including in Africa; whereas redistributive land reform, sometimes involving collectivization of agriculture, was attempted in several Asian countries, and in parts of Latin America. Such efforts resulted in occasional success stories, but more often mixed outcomes and

unintended consequences.

Over the last 15 years, there has been an unprecedented range of experimentation, particularly in Africa. To some extent there is now less overt ideological influence in land policy, and perhaps increased common ground. The use of an incremental approach to policy implementation, involving pilot projects, is often in evidence.

Agencies and governments have for decades tried to legislate customary land tenure systems out of existence, or have simply ignored them in the hope that they would eventually fade away. On the contrary, they have proven extremely robust. In most African countries, less than ten percent of landholdings are registered under a formal system of documentation—the vast majority is held under customary tenure. There are myriad forms of customary tenure, which tend to have elements of flexibility built into them, and the interpretation of custom evolves over time. Some specialists prefer to reject the term altogether, preferring “local tenure systems” as a more accurate description.  In response to the continuing relevance of custom, most African governments have now started to provide customary institutions with a legal basis and have attempted to adapt or codify customary regulations and systems.

The first major World Bank publication on land issues since 1975, Land Policies for Growth and Poverty Reduction (2003), represents some policy changes for the Bank. The report acknowledges that “deprivation of land rights as a feature of more generalized inequality in access to economic opportunities and low economic growth have caused seemingly minor social or political conflicts to escalate into large-scale conflicts”. The emphasis on inequality is a new departure for the Bank, which also recommended the “legal validation of agreements reached by informal means, in order to prevent ‘institutional shopping’ between formal and informal mechanisms”; and the Bank is now supporting a project working with customary chiefs in Ghana, for example.  The report also acknowledges that ‘group rights” to land – forms of common property - may be more appropriate than individual property rights in some situations, and recognizes that there are obstacles to the use of landholdings as collateral – a traditional point of faith for the Bank. (Of course, it remains to be seen whether these policy statements translate into changes in World Bank operations on the ground.)

Mass titling is no longer seen as the main tool for enhancing land tenure security. Agencies like USAID, which has in the past been associated with mass titling programmes based on a model of individualized land holdings and the central importance of land markets, has supported registration of community lands e.g. in transitional areas of Sudan. Under such a model, local communities map and demarcate the village boundaries, without claiming specific parcels within the village.

Across Africa, a neo-liberal economic and philosophical hegemony is combining with increased realization that customary institutions are here to stay, albeit in ever-evolving forms. Efforts are underway at the regional level (e.g. the EAC's efforts to 'harmonise' laws and policies), and at the continental level (e.g. the AU-led land policy initiative) to finalize land guidelines or common principles.

So are we seeing “the end of history”, the end of ideology and controversy, in the debates over land rights? Not at all. Instead, the unfounded articles of faith and the ideological baggage involved are merely more difficult to discern. It has proven very difficult to provide “land tenure security” at a national level. There are always winners and losers, and significant unanticipated results. Land tenure systems are dynamic and extremely complex. Land issues not only embedded in local social and political structures, but are liked to international agricultural markets and other global processes. Foreign direct investment in agriculture is an increasingly important key driver, but others, such as the international conservation lobby, have been significant for decades. I would like to congratulate Blair for bringing the global issues out very clearly in the background paper. All too often, especially in terms of land conflicts, the tendency is to indulge in reductionist analysis, “tribe X vs tribe Y fighting over forest Z”, while the reality is far more complex: conflicts between elites, fought through proxies, nested within legal and political contests at national and international levels.

The assumptions underpinning particular arguments or proposed ‘solutions’ therefore need to be analyzed in detail. When the propositions are unpacked, and their existential and semantic trajectories are traced – much as  the ‘Translating Human Rights’ project seeks to do – we often find struggles over meaning, highly-constrained forms of ‘consultation’, and a host of untenable assumptions.

In Africa and many other parts of the world, the meanings of ‘customary tenure’ are highly contested. Some observers, such as Johan Pottier, have suggested that land tenure professionals, administrators and others have tended to see customary systems through a ‘statutory’ lens, imposing meanings which do not necessarily fit with local realities.  For example, in a recent contribution to an edited volume, Pottier critiques the way in which we talk of ‘customary rights’, suggesting instead that custom represents behaviours and norms which are negotiable and fluctuating: “Rules of access and use, as they existed in pre-colonial times, had principles but no rigid rules or rights; codified tenure, imposed during colonialism, had rigid (and occasionally invented) rules to suit the opportunistic climate of modern times.”

Sally Falk Moore (Law as Process. An Anthropological Approach ,1975) documents ways in which rules are renegotiated, contested and reinterpreted over time. She provides the example of the role of the chiefs in the area of Tanzania near Mt Kilimanjaro, inhabited by the Chagga people. The Chagga chiefs had been seen in pre-colonial times as having a symbolic power over land, but had little active role to play in the day-to-day administration of land affairs, which was overseen by lineage groups. After all, land was plentiful and “could be had for the asking, or sometimes even without asking, just by cultivating”. Over time, land became more scarce and more valuable, as the population increased and coffee was introduced. Over time, the British colonial power granted the council of Chagga chiefs power to legislate. The council of chiefs passed  an ordinance that land could be transferred with the authority of the chief, but in practice this meant that the role of the chief was formalized and that chiefs had increased power over the distribution of land. Falk Moore tells us that, “By means of such making of rules and interpretation of rules, the chiefs gained expanded control over the distribution of land. ‘Norms’ have many uses. The indigenous prerogatives that chiefs had always had over territory they ruled were more and more interpreted as rights to all unclaimed, unoccupied, or unused land.” (pg. 201). We should ask ourselves how the unwieldy mechanisms of the state may interact with such complex and diversified arrangements...

Unfortunately the ways in which these vital issues are being debated often remains rather simplistic. The land sector is by definition multi-disciplinary, but all too often, specialists in particular disciplines are unable to see the ‘big picture’. Technical experts concentrate on refining land administration systems and tools, land lawyers devote themselves to writing the best possible legislation based on international models, without tailoring their efforts to local governance norms and cultural expectations.

This post is a response to an article by Roger Alford, entitled 'Mobilizing the Rwandan Church to protect Human Rights', posted on the Opinio Juris website.

In his article, Roger Alford states that:

“Rwandan President Paul Kagame is personally invested in making Rwanda a country that is committed to reconciliation, human rights and self-sufficiency... In 2005 Kagame partnered with Rick Warren of Saddleback Church to develop a plan of action...

On the legal front, top government officials have identified three central problems: intra-family land grabbing, domestic violence, and sexual crimes. To address those problems, lawyers from Saddleback Church have drafted a human rights manual for local pastors they can use to educate their members about those issues. They have started with the issue of land grabbing, and future manuals will be developed that focus on domestic violence and sexual crimes... It is an impressive project. The result will be a manual that will be sent to thousands of Rwandan pastors with information on the rights of women and children and information on legal resources for families who struggle with land grabbing. Prevention is the principal objective, but for those who are in the midst of a land grabbing dispute, the manual encourages local pastors to work with government legal aid clinics, the National University of Rwanda, and the Christian human rights NGO International Justice Mission to intervene.”

I’ve been closely following the land law reform in Rwanda since 2003 and lived and worked there 2005-2007, as Rwanda Researcher for Human Rights Watch. I know IJM’s work and admired their systematic approach to developing their program on land rights. Despite this, I would share the cautionary tone of Rhodri Williams, who argues that "there is a tendency for well-meaning and well thought out property initiatives to get caught in the contradictions of countries with plural legal systems". However, my concerns are slightly different. While his points about customary legal systems are valid for most  countries in Africa, they are slightly less relevant in Rwanda, where population pressure has resulted in an active land market and an erosion of many customary norms. Custom is still important, but there is less conceptual ‘distance’ between custom and statutory forms of tenure than in most African countries. All the same, customary rights are particularly important in areas practicing polygamy and in the case of the indigenous Batwa ethnic minority, who have lost their rights to hunting and gathering territories.

I have come to be wary of projects which stress ‘awareness-raising’ in Rwanda. Yes, most Rwandans require better access to information. But all too often, an emphasis on awareness-raising becomes an excuse to shy away from the equally important tasks of monitoring and denouncing abuses and mediating in disputes. Most organizations are fearful of taking on a monitoring role because of the risk of retaliation from government officials or other ‘connected’ individuals implicated in abuses. Despite the creation of the government ombudsman, a local system of dispute mediators, and many other promising institutions, the Rwandan state nevertheless remains generally hostile to criticism.

Looking at the list of priorities prepared by the “top government officials” (clearly it was not a consultative, multi-stakeholder process) there is an omission which is obvious to anyone who knows Rwanda well:  land-disputes involving the Rwandan state. There are many different kinds of disputes involving the state as a party, some of them related to the ongoing expropriations in Kigali, and some related to the ongoing land reform in rural areas. In Kigali, many poor households are being evicted without due process, especially adequate and timely compensation. In the countryside, there is a risk that the land registration process will be hurried, with an attendant risk of abuses, and agricultural collectivisation policies have already involved coercion in some places. Though President Kagame has established a commission to deal with land-grabbing by politicians and military figures in the countryside, he has staffed the commission with many of the same politicians and military who have accumulated large tracts of land in dubious circumstances. Unlike most land commissions, this one has not published any reports.  The lack of transparency extends to its operational principles, which appear to ignore  the laws in force (e.g. the expropriation law and the land law).

In the past, some members of the Rwandan clergy have stood up for human rights. (A comment by a blogger about the role of the church in genocide is valid, but we should remember that responsibility is individual, not collective – just as some church leaders killed, others saved). It will be interesting to see whether Saddleback Ministries will empower them to stand up for land rights, or whether the emphasis on “intra-family” land rights will mean that the pastors are encouraged to stay silent when the land-grabber happens to be the Rwandan state. Judging by the approach taken so far, I would recommend that they take a more multi-dimensional view of land issues in Rwanda.

Until recently, it had become common to describe Kenya as “an island of stability in an otherwise unstable region.” The violence which followed the disputed results of Kenya’s December 27th general elections therefore surprised many people due to the speed at which it spread across many parts of the country. However, a wide-ranging and historical perspective reveals that the relative stability which has generally been experienced by the economic ‘centre’ in Kenya is not necessarily enjoyed by the ‘periphery’. Kenya is a society characterised by deeply embedded structural violence, due to deeply unequal and dysfunctional legal, political, social and economic structures, which prevent the majority of Kenyans from achieving their full potential. Of course, certain levels of conflict are endemic to all societies. The key issue is whether, and how, these tensions can be managed through transformative processes in the political, economic and social spheres.

Land issues, particularly in the global North, are often seen as largely technical in nature: the preserve of surveyors, planners, and lawyers. Technical knowledge and skills are indeed central. But of course, land tenure and land administration have always had a political basis and massive political implications –the fundamental definition of ‘private’ property, vis a vis public property, is an inherently political act. The rise of political economy approaches to policy analysis over past decades has generated increasing awareness that land and natural resources have been key currencies of political patronage. Political leaders reward their key allies with the power to allocate land, and these allies then reward their supporters with access to land, and punish their opponents  by limiting or withdrawing that access. So, although current discussions over land policy reform tend to be ‘de-politicized’ on the one hand by (shaky) assumptions about the key role of  ‘the market’, there is on the other hand a general awareness that land and property rights are key to good governance, and that land reforms orientated towards social justice objectives can support wider democratization. Recently, I was reminded about a couple of perspectives on ‘land and politics’.

I was lucky enough to attend a presentation on post-election violence in Kenya by Kenyan civil rights activist Firoze Manji, during which he reminded us that land and politics in Kenya are inextricably linked. Manji has thirty years’ experience in international development, human services, and human rights, and is currently the Editor of Africa’s leading electronic news source, Pambazuka News, and coordinator of Fahamu Network for Social Justice.

Manji’s central point was that the current coalition government in Kenya is illegitimate – that attempts by Mwai Kibaki to retain the Presidency, despite apparently losing the election, are illegal and should be recognised as such by the international community. He pointed out that if this essentially illegal government is legitimised by donors, this gives a clear signal to other political leaders, such as Robert Mugabe: you can steal elections, and get away with it. Instead of the present coalition government, Kenya should have an interim ‘caretaker’ government, with a time-bound mandate, and a clear objective – to hold fresh elections.

Manji provided a sharp and convincing analysis of how the political machinery functions in Kenya, and made a number of other important comments which I won’t go into here, because I want to concentrate on the question of  ‘land and politics’. From this perspective, he made two important points: one, land issues, which have been mishandled since colonial times, are amongst root causes for grievance, and hence violence, in Kenya. Secondly, and more surprisingly, Manji argued that the failure of the Kibaki-led NARC government to deal with these grievances after taking power in January 2003 was a key reason for the dissolution of that political alliance. You’ll remember that parties led by Mwai Kibaki, Raila Odinga and other political leaders from different regions of Kenya formed an opposition alliance in order to beat Daniel Arap Moi’s KANU party in the December 2002 elections. The NARC coalition had promised to crackdown on corruption and deal with outstanding grievances, including illegal allocation of land and the general failings of the land administration system. To that end, a commission was formed, but as mentioned in earlier blogs, its main recommendations were largely ignored. Few if any of those implicated in corrupt land deals were prosecuted, and corruption in the land sector and elsewhere continued unabated.  According to Manji, the history of Kenya is one of impunity – impunity for war crimes committed by the British government against suspected members of the ‘Mau Mau’ liberation movement, impunity for political assassinations and corruption by members of the Kenyatta regime, and impunity for involvement in the so-called ‘tribal clashes’ (and yet more grand corruption) by members of the Moi regime. Key members of the NARC coalition were so disillusioned by the continuing impunity and particularly the failure of the government to resolve land and other issues, that the alliance disintegrated.

Manji’s presentation raised a number of important questions. Given the ‘illegitimacy’ and the obvious fragility of the current coalition, how can land issues be tackled in a systematic and effective way? They are so sensitive, politically and economically, that they can cause the dissolution of political alliances. Already, ODM have caused controversy by emphasising the need to pursue those guilty of grand corruption. Senior ODM politician Najib Balala (who is from Coast Province) specifically cited land problems during President Kenyatta’s time, saying, "If it is the clean versus the unclean, we begin in 1963.The political elite took land in their areas and pushed their people into foreign territories. You own thousands of acres of land while your people are scrambling for a quarter of an acre, and you still call yourself a leader with values? We go back to 1963 because that is where the problem began." Balala has been criticised for remarks allegedly made during a local meeting in which he said the ODM’s political opponents could be cut off, isolated, like another Lesotho, which is surrounded by South Africa. He was referring, indirectly, to the Kikuyu of Central Province, and seemed to be threatening or justifying ethnic cleansing.

And yet, despite the dangers, the difficult questions of historical injustices over land, IDP return and resettlement, land tenure etc  must be tackled, or they will simply reoccur in future. The ‘politics’ of addressing these has both national and international dimensions. First I want to summarise some recent national-level events, and in my next blog I’ll look at the international aspects.

As we all know, negotiations to establish a cabinet were in a situation of stalemate for a while, with the PNU (Mwai Kibaki’s party) pushing for a large cabinet while Raila Odinga’s ODM wanted a smaller number of Ministerial dockets. Some of the online blogs, and even some newspaper articles, argued that political ‘strongmen’ should be rewarded with political posts for their role in instigating violence. The name of William Ruto, a Kalenjin from the Rift Valley and a member of ODM, has figured prominently, with some bloggers stating bluntly that he should be rewarded for ‘bringing a war which stopped Kibaki’.

The delay in naming the cabinet caused an increase in tensions and some violence, particularly in certain Nairobi slums and in parts of Rift Valley Province. On April 11^th, seven houses were torched in Mau summit (the Mau escarpment is a perennial site of evictions and violence against Kikuyu ‘settlers’) and Likia, in Molo district. Two days later, more houses and business premises were burned down in the same District. In response to the house-burnings and the anti-Kikuyu sentiments of some in the Rift Valley who said that they would resist the return of IDPs, members of the local administration reportedly said that  they would “forcibly resettle displaced people” in Molo District if  local people are reluctant to accept the return of IDPs. The government is again looking only at the ‘hard’ aspects of security, rather than the more holistic ‘soft’ dimensions. The ‘hard’ aspects, which are much in evidence in its handling of the Mt Elgon violence, include military or military-style operations, greater physical  police presence, and the criminalisation of all parties involved in violent disputes. An emphasis on ‘soft’ dimensions would look at the root causes of violence, emphasise real reconciliation, encourage support for local livelihoods in order to defuse tensions, and would perhaps differentiate between those real criminals who incited or perpetrated extreme violence (rape, murder) and those who committed lesser crimes against property, or who were manipulated by the ring-leaders.

Aid agencies had to suspend some of the ‘go and see’ visits designed to let IDPs visit their abandoned homes to assess the security situation. The local media reported that many IDPs were demanding that the government resettle them, by identifying alternative land, rather than asking them to return to areas which may be insecure.

The politicians finally reached a compromise, but this is still one of the world’s largest cabinets, some 40 strong. And Kenyan MPs and top civil servants are notoriously well-paid. According to Firoze Manji, the annual salaries and benefits accruing to this new cabinet represent 80% of the 2007 national budget! When one combines this with the idea of sharing the national ‘cake’ on ethno-political lines, one realises how much work there will be to ensure that changes are made to the land tenure and land administration system in Kenya. Efforts have clearly been made to achieve ‘balance’ between the PNU and ODM representatives. If there is an ODM Minister, there is usually a PNU Assistant Minister. The Minister for Lands, James Orengo of the ODM, is a lawyer, a man known to be outspoken in his younger years. The Minister for Environment and Natural Resources, which has a great stake in land tenure issues, is John Michuki of the PNU, a close ally of Mwai Kibaki and a tough-talking type. Efforts to manage the complex and very deep-rooted land problems in Kenya will have to get past personal rivalries, party political competition, and the ongoing intrigues to take control of the key political and economic levers of power in Kenya. It'll be a lot of difficult work - but it can be done!

New evidence has emerged that the Kenya government’s  ‘crackdown’ against members of an outlawed militia group, the Sabaot Land Defence Forces (SLDF), has involved beating, torture and murder, as well as the arbitrary arrest of up to a thousand people around Mt Elgon area.  Earlier this week, the Daily Nation published articles based on interviews with army personnel detailing the murder of local people, whose bodies were then dumped in the forest by the army. One of the alleged 'spiritual leaders' of the SLDF was arrested, amidst complaints from some local people that as an elder, he would be a key witness regarding the contested land claims at the basis of the SLDF violence. On April 4th, Human Rights Watch (in collaboration with Mwatikho and Western Kenya-Human Rights Watch) issued a press release stating that the Kenyan army had tortured hundreds, and killed dozens of people during the operation. According to a report by AFP, President Kibaki stated that, “"I wish to assure Kenyans that my government will deal firmly with all those behind incidences of insecurity in the country... It should be clear to all that inciting and encouraging others to engage in acts of lawlessness or violence is punishable under the law. Those who participate in such activities will not be spared regardless of their status in society." His words beg the question – does the law not apply equally to members of the security forces?

The security forces continue to use indiscriminate violence, a tactic we have already seen used against citizens living in areas controlled by the Mungiki gang in the slums of Nairobi. One wonders when the government will realise that this approach is counter-productive, and will only further radicalise local people. Initially, most local people are likely to have opposed the SLDF's use of violence. Now, with the army allegedly torturing and killing at will, the violence committed by the SLDF will seem less odious, and the government loses its credibility as an arbiter in local disputes and as a guarantor of security, itself bound by principles and laws.

Meanwhile, the land issues remain unresolved. When I spoke to Ministry of Lands officials in November 2007, they said that the land disputes were not being addressed by them, as it had become purely a security issue. Thought the violence has escalated, the initial spark remains aflame – the question of land access and inequitable evictions from the Mt Elgon forest area remains a ‘live’ one. I would not like to have the Ministry of Land’s job of trying to manage the land dispute in the aftermath of this government violence.

Kenya plans rapid resettlement of IDPs- but will it be voluntary?

By Chris Huggins

As an update to the blog on the land-related causes of Kenya’s recent violence, I’d like to draw attention to the land and shelter needs of Kenya’s internally displaced people (IDPs). As I mentioned previously, its imperative that they are provided with government assistance whilst they remain in the IDP camps , and that they are given options for the future. The Kenya national commission on human rights recently stated that the poor conditions in IDP camps represents a violation of their fundamental rights.

In today’s Daily Nation, it was reported that the government is to start resettling IDPs this week, in an exercise that is predicted to last some three months.

Its good to see that the government is moving quickly. However, the emphasis on IDPs ‘returning to their farms’ may be a cause for concern. The government spokesman, in earlier official statements, has emphasized that under the constitution, every Kenyan is entitled to freedom of movement and can purchase land and housing anywhere (s)he chooses. True, its important that basic human rights are protected, and that the Government provides adequate security in areas affected by violence, to allow IDPs to return home if they choose to do so. The state has indeed pledged to build new police stations in violence-hit areas, and has even deployed the army in some areas. Farm inputs have also been promised, to help IDPs quickly become self-sufficient upon return.

The important issue, however, is that IDPs should be free to choose when, and indeed whether, they wish to return to the homes and farms from which they have been chased.  This is no minor issue: people’s lives depend upon their assessments of their personal security. However, some recent comments by the authorities may suggest that there is cause for concern. The Provincial Commissioner for conflict-affected Rift Valley Province told local people, "Unless you are willing to go back to your farms, it might be difficult for the government to identify who are genuine displaced people,'' according to another report in the Daily Nation. Journalists have noted that many IDPs do not yet feel ready to return, citing the inability, or lack of will, on the part of local administrators to stop violence. It has already been demonstrated by Kenyan and international human rights groups that much of the violence was indeed organized or instigated by local leaders.

The issue is primarily one of rights, as well as conflict management. However, for some Kenyan authorities, it is also a political one – ensuring that members of particular ethnicities return to their former homes is a way of ensuring that ‘their’ voters are back in ‘their’ constituencies. Its early days yet, and the resettlement of IDPs has not yet begun, but Kenyan and international organizations should watch the situation closely.

Comments are welcome at cdhuggins@gmailcom

Since a political agreement between Mwai Kibaki and Raila Odinga was signed in Nairobi on the 28th February, the international media has largely forgotten about Kenya. However, the agreement and the establishment of a coalition government represent only the start of a long process of nationwide healing and reconstruction that must take place if mass violence is not to be repeated.

While violence has significantly reduced since the agreement was signed, killings have continued through March. In Laikipia District, a patchwork quilt of farms, ranches, and wildlife conservancies inhabited by a wide range of ethnic groups, tensions remain high and more than two thousand people became newly displaced in mid-March. Around Mt Elgon to the West of the country, the army launched a huge offensive against suspected members of the Sabaot Lands Defence Force, who have killed hundreds of people in recent months due to grievances over land tenure and forcible resettlement. The use of helicopter attacks on the slopes of the mountain has prompted criticism of the government’s tactics, and journalists have been barred from the area.

These incidents highlight the fact that the violence is not just ‘political’, or ‘ethnic’. Issues related to land rights are one of the root causes of conflict in Kenya, and the country is unlikely to be free from tension or violence until these are addressed. The first priority of the government should be the land and shelter problems of the displaced population, which is estimated at more than half a million people. In the long run, much will depend on a more fundamental overhaul of the land tenure and land administration systems. Under the political agreement, negotiations over ‘historical injustices’ are due to take place later in the year. Despite the risk that these will be politicized and difficult, it is vital that the international community and Kenyan civil society works to ensure that the systemic land-related problems are addressed during these negotiations.

Some three weeks after the political deal was signed, the government pledged to release plans for the resettlement of IDPs, with a reminder that, “all Kenyans have a right to settle, buy property, travel, own land and engage in income generating activities in any part of the country despite of where they come from or their ethnic background.” Both Raila Odinga and Mwai Kibaki were due to visit IDPs in the Rift Valley in the last week of March, and a National Reconciliation and Emergency Recovery strategy has been developed, which apparently includes plans to resettle IDPs.

But what of the substantial issues which have been outstanding for decades?

A national land policy, drafted in 2006, has yet to be tabled in parliament. The policy, which is seen by many as a progressive document responding to gender inequalities as well as protections for those using land under communal tenure systems, calls for compensation and reparation for historical injustices.

Under the political agreement, land and other ‘historical grievances’ will be discussed over the coming months. Experience suggests however that some politicians will be use the land issue to leverage more influence at the national level, through manipulating local constituencies. There is a risk that debate over the legal basis and ethical implications of historically-documented transfer and appropriation of land will give way to emotional and simplistic sloganeering. Land experts and other advisors supporting the process (including any representatives of the AU and Kenya’s international donors) must do everything in their power to maintain attention on ways to implement the findings of the Ndung’u’ Commission and the draft land policy. Some large-scale redistribution of land may be necessary, though this will of course involve many risks. Those who have been displaced must be given security and other guarantees necessary for them to reclaim their homes and farms, or must be resettled and compensated by the government for their lost income over the past months. It is also vital that Kenya establishes a robust system of procedures, checks and balances, as this will help in the long term to guarantee more equitable access to land and land-use classification.

While the land question is only one of a range of difficult issues that Kenya will seek to address, it is a key element of ‘good governance’, and a fundamental part of the current economic and political inequalities which have contributed to mass violence. If further bloodshed is to be avoided, the international community must help Kenya to manage the land issue.