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Normative and Institutional Approaches to the Protection of Property Rights of IDPs in Kenya's Rift Valley Province

Document Cited authorities 1 Cited in Related
Vincent
Published date01 June 2012
Date01 June 2012
Pages251-280
AuthorLaurence Juma
DOI10.3366/ajicl.2012.0033
INTRODUCTION

The post-election violence of 2008 which displaced about 600,000 people in six out of the eight provinces of Kenya1

S. Mwiandi, ‘Moving Beyond Relief: The Challenges of Settling Kenya's Internally Displaced’, USIP Briefing, August 2008, available at http://www.usip.org/files/resources/USIP_0808_2.PDF) (accessed 15 April 2011). These numbers are relatively conservative given that the displacement occurs at different levels and for different reasons, and movements cannot always be documented accurately.

has brought the plight of the internally displaced persons (IDPs) to the forefront of the national debate on politics and law. Transcending this debate is the sobering reality that inasmuch as the events of 2008 were catastrophic, they were a mere replay of the ethnically engineered political violence that Kenyans have had to endure before and after every major election since 1990.2

The number of those displaced in the so-called ‘ethnic clashes’ of the 1990s has been estimated at 500,000. See J. Klopp, ‘Kenya's Internally Displaced: Managing Civil Conflict in Democratic Transitions’ in D. Bekoe (ed.), East Africa and the Horn: Confronting Challenges to Good Governance (2006), p. 59; Report of The Commission of Inquiry into Post-Election Violence (CIPEV), 15 October 2008 (hereafter the Waki Commission), pp. 291–3; Select Committee of the National Assembly (the Kiliku Committee), Report of the Parliamentary Select Committee to Investigate Ethnic Clashes in Western and Other Parts of Kenya (1992); the Report of the Judicial Commission of Enquiry into Tribal Clashes in Kenya 1998 (hereafter the Akiwumi Report).

 This rather unpalatable historical fact affirms the widely held view that the conditions that lead to displacement in Kenya have been nurtured by the many years of political mismanagement, incongruent national policies on land, and the failure to harness ethnic diversity and promote national cohesion.3

See, for example, J. Oucho, Undercurrents of Ethnic Conflict in Kenya, Brill (2002); L. Juma, ‘Ethnic Politics and Constitutional Review Process in Kenya’, 9(2) Tulsa Journal of Comparative and International Law (2001): 471; S. Ndegwa, ‘Kenya: Third Time Lucky’, 14(3) Journal of Democracy (2003): 145; G. Lynch, ‘Negotiating Ethnicity: Identity Politics in Contemporary Kenya’, 107 Review of African Political Economy, (2006): 49.

 But this conundrum is not unique to Kenya. Evidently, Kenya's experience typifies a global trend concomitant with rising incidences of civil conflict and human rights abuses. A recent study indicates that the number of IDPs the world over rose from 23.7 million in 2005 to 27.5 million last year (2010), and that Africa contributed about 40 per cent of this figure (11.1 million).4

See Internal Displacement Monitoring Centre, Internal Displacement: Global Overview of Trends and Developments 2010, Norwegian Refugee Council (2010), available at http://www.internal-displacement.org/ (accessed 21 April 2011). The highest IDP concentration in Africa is found in DRC (1.7 million), Somalia (1.5 million) and Zimbabwe (1 million). For a discussion of the conditions that lead to displacement in Africa, see J. Crisp and E. Mooney, ‘Report on the Workshop on Internal Displacement in Africa’ (Addis Ababa, 19–20 October 1998), 33 International Migration Review (1999): 468.

 While the rising numbers may call attention to the diminished ability of poor countries to eliminate conditions that lead to displacement, they also forecast the inevitability of suffering, marginalisation and abuse of rights that internally displaced persons endure in absence of measures aimed at addressing their plight. Already, the international community through the various institutional and legal mechanisms, has established standards of protection for IDPs which states are being encouraged to implement.5

Studies have pointed to the establishment of the UN Guiding Principles on Internal Displacement, UN Doc. E/CN 4/1998/53/Add2 (1998), noted in Comm. Hum. Rts. Res. 1998/50 (hereafter UN Guiding Principles), available at http://www.unhcr.org/43ce1cff2.html (accessed 3 June 2011); the adoption of the Inter-Agency Standing Committee of a policy paper on Protection of IDPs; and the establishment of an IDP Unit within the UN Office for the Coordination of Humanitarian Affairs (UNOCHA) as positive steps that strengthen international response to the IDP situation. See N. Katsberg, ‘Strengthening Response to Displaced Children’, 15 Forced Migration Review (2002): 4.

 Equally enacted are the regional instruments that reinforce international standards and are modelled to suit local challenges.6

See, for example, African Union Convention for the Protection and Assistance of Internally Displaced Persons in Africa, 22 October 2009 (hereafter Kampala Convention), available at http://www.unhcr.org/refworld/docid/4ae572d82.html (accessed 4 June 2011); Protocol on the Protection and Assistance to Internally Displaced Persons of the Great Lakes Pact (2006), available at http://www.internal-displacement.org/8025708F004BE3B1/(httpInfoFiles)/29D2872A54561F66C12572FB002BC89A/$file/Final%20protocol%20Protection%20IDPs%20-%20En.pdf (accessed 3 June 2011).

 Unfortunately, most African governments, hobbled by chronic underdevelopment, corruption and even incompetence, may be less keen to embrace these standards, and even worse, deliberately circumvent them at the altar of gaining political capital.7

See F. Deng, ‘Divided Nations: The Paradox of National Protection’, 603 ANNALS (2006): 217.

In Kenya, the challenges associated with the wave of internal displacement after the post-election violence of 2008 are now visible in the public sphere and could threaten the implementation of the new Constitution.8

The situation developing in Kenya illustrates the nexus between property (land) issues and constitutional reform and what Catherine Boone identifies to be the increasing visibility of constitutional dimensions of land questions in contemporary African politics. See C. Boone, ‘Property and Constitution Order: Land Tenure Reform and the Future of the African State’, 106 African Affairs (2007): 557.

Yet government responses are, as they have always been, characterised by half-hearted measures coined in the height of political upheaval, and barely followed through when the political tensions subside.9

See M. Kiai, ‘Forgotten and Unwanted: The Plight of IDPs and the Balkanisation of Kenya’, Daily Nation, 14 May 2011; B. Omanga and O. Obare, ‘Poor Planning Undermined IDP Settlement’, East African Standard, 24 April 2011; ‘Haphazard Resettlement of IDPs Has Exposed our Underbelly’, East African Standard, 22 April 2011.

 And because such measures are bereft of substantive and procedural regularity, they cannot be given effect by established norms. Not that the norms themselves are any better, but as this article will suggest, lack of a well-intentioned policy framework exacerbates an already faltering normative situation. Indeed, a recent report has affirmed that the anomaly in policy framework is wreaking havoc in land ownership and tenure systems despite a compounded land registration system that recognises the sanctity of title.10

See Government of Kenya, Report of the Commission of Inquiry into the Illegal/Irregular Allocation of Public Land, Government of Kenya (2004) (hereafter the Ndungu Report). See also R. Southall, ‘The Ndungu Report: Land and Graft in Kenya’, 103 Review of African Political Economy (2005): 142; J. Klopp, ‘Pilfering the Public; the Problem of Land Grabbing in Contemporary Kenya’, 47 Africa Today (2000): 1.

 Property rights regime and the related land tenure institutions have thus been at the receiving end of a poorly constructed regulatory framework, from both the normative and policy perspectives. As a result, the efforts to galvanise appropriate response to the protection of IDP property rights suffers in the mix of a weak legal system, ineffective structural governance apparatuses, corruption and indecisiveness of government. Some of these challenges have a historical presence and have been the subject of considerable study.11

See, for example, Y. P. Ghai and J. P. W. B. McAuslan, Public Law and Political Change in Kenya, Oxford University Press (1970); S. Coldham, ‘The settlement of land disputes in Kenya: an historical perspective’ (1984) 22 (1) Journal of Modern African Studies 59, 62; H. W. O. Okoth-Ogendo, Tenants of the Crown: Evolution of Agrarian Law and Institutions in Kenya, African Centre for Technology Studies (1991); B. Berman, Crisis and Control in Colonial Kenya: the Dialectic of Domination, James Currey (1990); D. Maughan-Brown, Land, Freedom and Fiction: History and Ideology in Kenya, Zed Books (1985).

 Nonetheless, they constitute a basis upon which to parse the nature of law and the deficiency in governance that make the IDP phenomenon difficult to contain or manage in the present legal set-up

This article takes on the task of mapping out the imperatives of property governance regimes that render the Kenyan legal system improperly poised to deal with IDPs. Thus, it analyses the strength of the existing norms against international and regional standards for the protection of IDP property rights and elicits a theoretical understanding of how human rights standards can be brought to bear upon the plight of IDPs in Kenya.

 DEPRIVATION AND VULNERABILITY OF IDPS

Although Africa's disproportionate share of IDPs and Kenya's deteriorating situation are perhaps a reflection of how normative institutions have failed to moderate competing claims to power, the numbers tell a different story: that of millions of people uprooted from their homes through no fault of their own and destined to a life of misery in camps and other displacement facilities. Thus, the narrative that the IDP phenomenon engenders is really that of deprivation and vulnerability, and that is why the phenomenon now attracts considerable...

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