4 - Land and Constitutional Change

Summary

In an ideal situation, a constitution should set out the broad principles for the governance of land and establish an efficient and equitable institutional framework for land ownership, administration and management. Land policy reforms are not likely to succeed in the absence of such a sound constitutional framework. Accordingly, land reforms should be accompanied by constitutional reforms if they are to be effective. (Republic of Kenya 2009b)

Kenya's current constitutional moment has included both the first popularly ratified constitution and its first post-independence comprehensive land reform policy. The roughly temporally parallel processes that brought about these two signal achievements have inserted the interests of ordinary Kenyans into this constitutional moment in a way that elections and constitutional ratification alone would not have, reflecting more than two decades of civil society pressure. (Harbeson 2012: 15)

Introduction: Land as exemplar

In the 1990s, the struggles of civil society for constitutional reforms and the demands of civil society for an end to kleptocratic land relations became deeply interconnected. Constitutional reform became at once a ‘struggle over the formulation of the norms, structures, and processes to govern the state’ (Mutua 2008: 117) and a struggle for ‘legal text and political culture’ (Modiri 2018: 295). In this chapter, I explore the part played by demands for land reform in the constitutional debate. I show how the constitutional debate and the land debate became intertwined and ran alongside one another. Part of the explanation is that as well as running alongside each other temporally (Harbeson 2012: 15), they also shared the same dramatis personae. Members of civil society campaigning on land issues were often also participants in wider anti-government and pro-democracy movements. They often had what Kenyans call ‘struggle credentials’ along more than one axis. For this reason, I think the place of the land struggle in the period of Kenya's new constitution-making was different to that occupied by ‘specialized cadres’ which Mutua (2008: 118) identified as ‘clusters of reformers … focused on single issues’. In the 1990s, as a result of the official reports and subaltern pressures that I describe in Chapter 3, those agitating for land reform succeeded in elevating land problems as typifying Kenya's national political culture and demonstrating the need for change. By trying to place land at the heart of demands for change, civil society offered it as an exemplar of the injustices that needed to be addressed.