President William Ruto has confronted the thorny land question by signalling imminent tax on idle land, which could reopen debate on stalled plans to limit the size of private land one can own and settlement of squatters.
It’s a controversial issue that President Ruto has been a key player in since the promulgation of the constitution in 2010, and although his latest proposal is informed by the quest to increase tax revenue amid government budgetary constraints, it will open a Pandora’s box.
Successive governments have skirted around the issue, and questions linger on whether President Ruto will succeed where others have failed.
Housing Principal Secretary Charles Hinga reignited the latest debate over proposed taxation of idle land, saying it will prompt owners to put it into productive use.
As a pointer to the controversy that will stalk the debate, last November, as Parliament debated a motion that majorly wanted government to act on proposals to cap the size of privately owned land, divisions were apparent on the bid to tax idle land, with resistance largely from representatives of pastoralist communities.
Influential personalities
Big land owners, who are invariably influential personalities, have also opposed the attempt to tax idle land and fought off suggestions to redistribute land to settle the landless.
Altogether land reforms have aborted over communal, ethnic and partisan divisions.
Kwanza MP Ferdinand Wanyonyi brought the motion that sought the publication of rules and regulation for private land use and management. MPs approved the motion, tasking authorities to ensure enactment of legislation to prescribe minimum and maximum private land holding.
Mr Wanyonyi wanted the Ministry of Lands to draft a Bill so that “individuals who have land just for the sake of it because they inherited it or they bought a lot of it, should be taxed for having land lying fallow”.
“We do not have to mention names, but as you know some families are wealthy and buy a lot of land. A person leaves land idle and is not in a position to do anything with it. Therefore, the government should levy taxes on that land,” said Mr Wanyonyi. He cited Trans Nzoia, Laikipia and Taita-Taveta as counties where certain families had bought vast land that was lying idle.
MPs Robert Pukose (Endebess) and Omboko Milemba (Emuhaya) are among those who supported the push. But Kilgoris MP Julius Sunkuli vehemently opposed the plan, saying the elephant in the room is not large landowners but fragmentation of land.
Mr Sunkuli argued that being a pastoralist, there is no such concept as idle land and therefore, land belonging to the Maasai, Somali and Samburu in Tana River and other pastoralist areas should not be classified as idle. He said it was ill-advised for government to come up with a policy on how an individual is supposed to use their land.
“The only person who should have a say is yourself because the title deed you hold over land is called absolute proprietorship. We must never destroy the freelance nature of our land,” said Mr Sunkuli. “For example, I have 100 cows and somebody taking a trip to Maasai Mara looks at my land and does not see them because they are grazing at a certain corner. He will then say that my land is idle without knowing my cows will be grazing there tomorrow.”
Economically viable
Samburu County Woman Rep Pauline Lenguris buttressed Mr Sunkuli’s position: “Where I come from, land is owned communally. So, in my place, there is no land that is idle or that does not belong to anyone.”
Kajiado County Woman Rep Leah Sankaire added: “It is wrong to imply that because my land is not farmed, it is idle. For me, rearing cows is a business that is economically viable for our community. That is our way of life and that is how we do it.”
In 2013 the Truth, Justice, and Reconciliation Commission urged the National Land Commission to formulate and implement strict guidelines in terms of the maximum acreage an individual or company can buy.
As Agriculture minister in 2010, Dr Ruto was part of the Parliamentary Select Committee that met in Naivasha to review the draft constitution. Its membership included some Cabinet secretaries serving in his government today. The land chapter was extensively discussed by the team that included former President Uhuru Kenyatta, who at the time served as Deputy Prime Minister, as was Mr Musalia Mudavadi.
In the team, one of the contentious phrases was “equitable access to land”, which then Lands minister James Orengo said guaranteed one resettlement in alternative land in case of re-planning, but which Dr Ruto said had “the connotation of land subdivision, which is becoming a very big threat to land use, and especially agricultural productivity”.
At one point Dr Ruto pushed back on a proposed amendment by Mr Kenyatta saying: “Kenyatta should not propose this. Let somebody else do that. In view of this let Mr Munya propose, it can be used against him. This particular one is talking about squatters and landless and all these people.”
Later as Parliament considered the draft constitution, Dr Ruto was among those who unsuccessfully lobbied MPs to delete Article 68 that compels Parliament to enact legislation to prescribe minimum and maximum land holding. The then Agriculture minister was also unable to rally MPs to expunge another provision that granted the state sweeping powers to repossess property, including land. Both unsuccessful amendments were moved by then Chepalungu MP Isaac Ruto.
Devalued land
“It is not appropriate to give the government a free hand to decide what to do with other people’s property. By allowing this to stay, we would have effectively devalued land. This, in itself, is a dangerous clause because it will enable a rogue government to ride roughshod over people’s property,” moved Mr Ruto, who went on to serve as Bomet governor.
Dr Ruto, the Agriculture minister, seconded the proposed amendment arguing provisions of Article 40 “negated the constitutional protection of the rights to land.”
“In effect, we are saying that land should not have any value. If land does not have any constitutional provision and if a title deed means nothing or if we turned the title deed into a piece of paper, it means that we cannot invest in land because it does not have the requisite constitutional provision,” Dr Ruto argued.
The proposed amendment fell because there was no requisite number of members present.
A subsequent bid to strike off the provision restricting the size of private land ownership was also defeated on similar grounds despite spirited lobbying by the two Rutos.
“We have to be allowed to debate whether we now want to set a maximum and minimum land holding. I want to refer you to the first amendment I tried to do to Article 43(a), where it says that if we set the minimum at 10 acres and the maximum at 20 acres, whatever variation that will arise thereof, will not be subject to any compensation of whatever nature. We did not pass that amendment, anyway. So, it means that we are setting a stage to take away people’s land free of charge, without caring about the anguish such action will cause the,” Mr Ruto argued.
His proposed amendment to discourage limiting the size of private land ownership was seconded by MP Mithika Linturi, now the Agriculture minister.
Capitalist state
“I rise to second this amendment, the reason being that Kenya is, and shall continue to be, a capitalist state. We cannot limit people’s abilities. Today we are in a generation where most of us are buying land. We cannot allow a situation whereby if I want to buy as much land as possible, because I have something to do on that land, I cannot be allowed. If the problem is under-utilisation of land, we should be thinking of how we can introduce land taxes for purposes of making sure that idle land is used,” Mr Linturi said.
An Assistant Minister for Livestock Development, Aden Duale, now Defence minister, also protested “when you set minimum and maximum limits, you are basically setting the stage for a major redistribution of land in this country”.
Dr Ruto also pleaded with MPs that the team had agreed to the amendments through consensus in Naivasha.
“The issue of land is a very serious one, because if we put these items in the constitution, we will make it impossible for any future government to deal with the issue of land,” Dr Ruto said. “Speaking as the Minister for Agriculture, the biggest threat that agricultural land faces is land subdivision. We are actually going the wrong direction by trying to sub-divide land into small pieces, and trying to give everybody a piece. This is really retrogressive in the simplest words that can be used.”
