THE LAIKIPIA ‘’INVASIONS’’ – THE HISTORICAL CONNOTATION, INSECURITY & GOVERNANCE EQUATION
That a deadly battle is ongoing in parts of Laikipia and its surroundings is no secret. There is ongoing acrimony between the locals and the ranch owners with both parties stating that they have the inherent and legal rights to the land and its resources. The result of this invasions have been catastrophic with loss of both human, wildlife and domestic animals, destruction of property, unrest, disruption of socio –economic activities including farming and even school attendance.
In February, this year Mr Tristan Voorpuy, a dual Kenya/British national was found dead on the Sosian ranch which he co-owns. The British High Commissioner to Kenya, Nic Hailey challenged the government to restore law order in Laikipia. A majority of the pastoralists claim that the huge tracts of land owned by the ranchers is their ancestral land and rightfully belong to them. The historical aspect cannot be downplayed in trying to have a lasting solution for the Laikipia unrest.The questions to ask are then; Why the dissent? What are the factors that have contributed to and escalated the invasions and the violence being permeated?
Historical Injustice – One of the reasons for the culmination of the invasions in Laikipia by headers is the narrative of historical injustice whereas the headers state that they are actually after reclaiming what belongs to them. Godfrey Sang, a Historian says that the invasion is the dialectical culmination of a historical process that began with the treacherous Anglo Maasai treaties of 1904 and 1911.The herders believe that the large track of lands owed by the White Ranchers is ancestral land rightfully owned by them. The grounds for this narrative is first anchored on the 15th August 1904 Colonial Agreement that the then settlers have a 99 year old Lease which then would have come to an end in 15th August 2004. The herders base their argument on Article 65 of the Kenya Constitution, 2010 which states; “A person who is not a citizen may hold land on the basis leasehold tenure only, and any such lease however granted, shall not exceed ninety-nine years’’. Nonetheless, when this term reached, the narrative then mutated to a 999 year lease but then the Settler Ranchers were protected by the Law then as at now.The Kenya Constitution 2010 recognizes the Protection of Right to Property as enshrined in Article 40 whereas subject to Article 65, every person has the right either individually in association to others to acquire or own property of any description and in any part of Kenya.
Cultural Quotient – There is a looming question of whether the State has failed to adequately address the land issue in Laikipia. Land is an emotive issue in Kenya. The herders insist that the vast land owned by who they term as ‘’outsiders’’ is cultural land. The fight for land and resources is often vicious and unrelenting. It can only be temporarily quelled but often rears its ugly head in times of crisis such as drought and famine. A wise man once stated that ‘’hunger is greater than fear.’’ A man is willing to go through all lengths to meet the basics in life.
The invaders as they are being referred are pastoralist tribes whose main socio-economic activities are livestock rearing. In this culture, the livestock are deemed the lifeline of the tribesmen. Everything revolves around their livestock. It is not only the main source of food, it is used for dowry exchange and most of the cattle parts are considered of value and the more cattle a man has then the wealthier a man is viewed to be. It is a symbol of status.In November 25th 2016, the Cabinet Secretary Interior ordered that all pastoralists should be removed from Laikipia much to the chagrin of the herders. Article 11 and 44 of the Kenya Constitution, 2010 recognizes culture but then one’s cultural practice should not infringe on another’s rights or amount to criminality so as to contravention the Law. Article 2 (4) of the Constitution states that any law, including customary law, that is inconsistent with the Constitution is null and void to the extent of its inconsistency.
Mr Sang is of the view that culture may not be a prime motivating factor for the Invasions. He says that with the commercialization of pastoralism in an environment of scarcity, conflict is inevitable. ‘’Resource – driven conflict is harder to solve in an environment where cultural expectations defy modern agricultural practices. The pastoralists do not distinguish between ownership and occupation and thus occupation to them is more vital.’’ Critics may not agree with the Historian’s sentiments in entirety. Yes the Pastoralists do comprehend the concept of ownership because even as they have peacefully co- existed with the ranch owners and even wildlife for years, the pastoralists believe themselves as the rightful owners of the ancestral land and seek a share of ownership of the same.
Political Angle – Being an Election year, it can be rightfully construed that politicians have interest in gaining advantage and garnering votes by all means. Local politicians have been accused of being instigators of the violence in Laikipia where headers have invaded private farms, conservancies and ranches. These herders are said to be from Pokot, Samburu, Isiolo and Baringo.
Up to February, 2017 a whooping number of not less than 130,000 are quoted to have crossed into privately owned land and this ensued the loss of wildlife, looting and plunder of private property and even loss of lives. It is believed that some of the cattle belong to rich, powerful and politically connected persons.
This is what Political Risk Analyst Dismus Mokua about the Invasions; ‘’The Political Factor cannot be undermined. The local politicians have encouraged the invasion of the private ranches and farms with the objective of political capital. All this leaders know the law and thus understand that the process of airing their grievance should be channeled through legal means.’’ Mr Mokua further says that the arrest of such political leaders for incitement to violence actually works for them. The arrest or arraignment of this leaders before a court of law, spurns a feeling of protection among their ethnic electorate and ultimately a sure winning or retaining of the political elective positions.’’
Wrangles among the Local Warring Communities -A lengthy interview with Saruni Lemargeroi, Governance and Leadership Consultant and a Samburu local who was born and resides in Laikipia County has an interesting angle. He says that the Laikipia Issue is multifaceted. The communities who live in Laikipia are mainly Pokot, Samburu, Turkana, Maasai also known as the Laikipiak. Every community demands the equal rights to have their livestock graze in Laikipia which is home to thousands of livestock due to its good vegetation for animals. The Laikipiak feel displaced and sapped. They claim to be the original owners of the land and thus seek ways to protect what they believe is rightfully theirs and defend themselves against the other warring factions.
On the issues of lease coming to an end or expiry, Mr Saruni states that the local communities have suggested that the government considers buying the land from willing buyer basis. He passionately emphasizes that the Government can purchase back from the ‘’white settlers’’ who he alleges own 60% of the land.
Mr Saruni further states that the pastoralists have lived for years without invading the private ranches until recently when that has changed. He says that the ranchers had for years entered into non formal agreements with the pastoralists to allow the livestock in the ranches as long as the headers protect private properties. He says that he speaks on behalf of the many local tribes and says; “We as the pastoralists want to see the land return to us. We want the government to initiate compensation process where they can engage with the owners whose lease has come to the end. We do not want to take it by force-unless if need be. We don’t want to fight with anyone and we also do want our livestock to be shot by the government security agents or the ranchers. We want a lasting solution initiated by government. We are Kenyans and we should be heard.’’
Kenya’s national laws promote inclusivity, fair representation and public participation. The concept of Equality before the Law and right to equal benefit and equal protection of the law is envisaged in Article 27 of the Constitution. Kenya is a democracy after all. Article 21 (3) of the Kenya Constitution envisages this; ‘’All state organs and all public offices have the duty to address the needs of vulnerable groups within the society, including women, older members of society, persons with disabilities, children, youth , members of minority or marginalized communities, and members of particular ethnic, religious or cultural communities’’.
The wrangles among the tribes are not only about the clamor for amenities but also politically instigated. The Maasai(laikipiak) feel misrepresented. It is believed that Laikipia north was created to allow the Maasai community have political representation in Laikipia which was predominantly Kikuyu. The indigenous tribes are of the view that the Laikipia crisis is well calculated move to disperse and destabilize the Samburu votes. Mr Saruni says that there is a feel that greedy politicians and who seek to have a weak leadership represent Laikipia North in Parliament are imploring a divide and rule strategy. They are parading the narrative that the Maasai feel that the current Member of Parliament, Matthew Lempurkel does not represent their interests thus the need to have a Maasai leader to head Laikipia north.
Gun running & the Insecurity Equation – Security of the person from any form of violence either public or private is a fundamental right and freedom enshrined under Article 29 (c) of the Kenyan Constitution. The State is thus compelled by Law to provide Security.
Under Section the Firearms Act Law Of Kenya, Carrying an illegal firearm is a serious crime can attracts up to 10 years in jail without the option of a fine. In the same Act, there are some guns such AK47, G3 and MP5 which are described as “specified firearms” under Section 4A and the possession of any of these without a firearms certificate or any lawful justification attracts life imprisonment. One also faces the same penalty if, being licensed to carry or trade in such a firearm, one hires it out or unlawfully permit another person to take possession of or use it in organized criminal activities. With the above stringent laws, one would be under the guise that such a law would act as deterrence against illegal trade and possession of firearms.
It is noteworthy to state that most of the weapons used in these invasions, cattle rustling and poaching are illegal firearms. Most of these guns are smuggled into Kenya through porous borders, from Somalia, Uganda and Ethiopia.
In November 2016 more than 5,000 illegal guns were set ablaze by the authorities. Interesting is that most of the guns had been recovered from herders and criminals seized by authorities in the previous nine years. The proliferation of illegal firearms and weapons could be a contributing factor In the invasion of the private farms.
Captain Collins Wanderi renown Security Analyst states that it goes without saying that permeation of illegal firearms and porous borders as aiding factors in the Laikipia invasions. A gun gives someone a certain kind of courage. No one ever goes to war or battle without a weapon. Mr Wanderi cites the absence of government as one of the biggest problem. His reasons are this; the lack of motorable roads and government security posts does not augur well with socio – economic structure and culture and thus drive for firearms. The Security Analyst says that self-arming is the compensation control wherever and whenever government is absent in areas prone to violent skirmishing for scarce resources.
The question that arises is then? Has the Government done enough? A lot has been said about whether there has really been justice and a permeation of fairness and equity in addressing the locals’ needs. Matthew Lempurkel the Member of Parliament of Laikipia North is an angry man. He says he has respect for the Law and Order but he shall not advocate for Law that is unfair to his people and infringes on the rights of his people. The Member of Parliament says that the Government is only focusing on the plight of the Ranch Owners and failing to address the needs of the people whose economic and social rights have been undermined. Mr Lempurkel says the State has failed to protect the pastoralist and their cattle and claims harassment from the National Security Organs.
Mr Lempurkel says he fails to fathom how a government can be unfair to its own people citizenry. Lempurkel alleges that there a well calculated plan to get the Samburu out of Laikipia. His argument is based on the cultural card. So then the question arises; Who has the land rights? Mr Lempurkel refers to himself a Champion and Defender of the Samburu and other Marginalized Groups Rights and vows to stand by his people nail and tooth. Mr Lempurkel further states that some politicians have taken advantage of the insecurity to target their opponents for political vantage. He says the State should do more to protect the civilians and show commitment in finding a lasting solution.
The Laikipia Issue must be addressed with the sobriety and seriousness it so deserves with all mentioned factors in consideration. Good governance and policy advocates for ‘’Homegrown solutions for Homegrown Problems’’. Laws usually develop in response to the needs of the society .The role of factors such as rule of law, transparency, accountability and public service ethics cannot be undermined in trying to redress the crisis. The Constitution is the supreme law of the Republic and binds all persons and all State organs at both levels of Government.
Ms Juliet O. Nyang’ai is a Practicing Advocate, Principle Partner at JNC Advocates & Corporate Governance Specialist. She can be reached on nyangaij@gmail.com
The above article appeared on the Informer East Africa, UK Newspaper in 2017
JNC Advocates prides itself in its unmatched ability to provide sound consultancy in regards to legal research & analysis. We also offer commissioned insights on existing laws, expert guidance in compliance, enforcement and implementation of Legal directives.
