KIEYAH: How to resolve the squatter problem

Resolution of the land question is quintessential to Kenya’s economic development, political stability and social cohesion.

However, past public discourses on land reforms have been merely rhetorical, which is attributable to the inability of citizens to marshal adequate political will to push for substantive and inclusive reforms.

The procrastination in addressing the land question is no longer untenable. Successful resolution will depend on the choice of strategies of unpacking land problems, which is heterogeneous in nature.

Unfortunately, the centrality of land carries contentious political impulses that have impeded the search for workable strategies.

Such impediments have rendered land question to perceptively become an insurmountable monster that no one want to touch. Luckily unpacking the heterogeneity of land problem demonstrates part of the answer lies in our legal system.

A case in point is the squatter problem that is exemplified by the coastal land problem. The coastal squatter problem can be traced back to the occupation by Persians, Arabs and Britons.

The problem was exacerbated by the British land acquisition to facilitate the construction of Kenya-Uganda Railway in the beginning of 1900.

The British Protectorate took pre-emptive action of acquiring land without compensation outside the ten miles coastal strip, which was subjected to a different legal framework.

Under the framework, the strip’s property owners were obligated to claims of ownership through a tribunal. Upon successfully proving ownership, the claimants were issued with various documents of title depending on the nature of their ownership.

Due to information asymmetry and high level of illiteracy, most Africans never participated in the process of protecting their land ownership rights through the registration.

Such failure condemned Africans to become squatters in their own land within the ten-mile strip that covers 1,128 parcels of land on over 80,000 hectares in Kwale, Mombasa, Kilifi, Malindi and Lamu.

Over the years the coastal region squatters’ problem has mutated into various categories found in government and private land. Such categories include indigenous, trespassers, illegal allotee, and tenants-at-will. These problems may be resolved as follows.

First, if the squatters have resided on the private land of an absent owner for more 12 years, then the government should engage law students or young lawyers on bono basis to assist the squatters claim ownership under the doctrine of Aerse Possession.

This doctrine is embedded in the Limitation of Action Act. Accordingly a person entitled to any registered land through aerse possession may apply to the High Court for an order that he be registered as the proprietor of the land or lease in place of the person then registered as proprietor of the land.

Second, if the squatters are on public land, the government may formally alienate that to squatters or may evict them with sufficient notice accompanied by an alternative settlement.

Third, if the squatters are settled on community land then the government may formalise the squatters’ ownership through processes of adjudication and registration.

In conclusion, before politicising the land question, let us unpack its heterogeneity of and seek legal solution first. It is much safer.

Prof Kieyah is a land policy and law expert.

SOURCE: BUSINESS DAILY