Why I would vote YES for the Draft Constitution

My dad, Joseph Kiptarus arap Rugut died a poor tea estate labourer. He liked his job. He died on the day he had been 'promoted' to a senior supervisor. His predecessor was demoted. Dad died allegedly from alcohol intoxication, apparently because he was celebrating his promotion the only way he knew best: by drowning in the local brew. Those who picked his remains said he was strangled, his neck showing signs of strangulation. He didn't see his family break some cycle he wanted to see broken. Dad belonged to a generation whose parents considered education as a pass-time for social outcasts. His father made sure that he did not go to the Intermediate level after Kaptumo Government School (GS). His generation produced rare exceptions like Joseph Tendenei arap Letting and younger ones like Samwel Kipyebei arap Ngeny. Those were rare exceptions.


My grandfather, a senior (chongin) of the Maina age-set, somehow regretted his decision to roadblock dad's progress in education much later as he sent me away from his death-bed at Nandi Hills hospital. He made me believe he was OK, saying I should go back to my grandmother's in Uasin Gishu. He died before I reached my grandma's.


Kiprugut arap Ngeny believed that education was only necessary to enable one read the road sign posts. Beyond that, he and his generation thought, children who went to GS Kapsabet howled like hyenas. That was madness. My grandpa would have none of that madness for his sons and daughters. And he had many. He migrated from Kapngendui  in Kabirer to Kimatkei in Tindiret and then on to Sireet where he met with Bwana Robotson (Robertson), the owner of Koisagat Tea Estate. Luckily for him and his generation his daughters were married off. For each daughter who was given away, he sold the dowry, kept the money according to a strict rule, which enabled him to separate the wealth according to his two wives' daughters. Eventually, tired of "pressing blue" (teben buluu), signing with the thumb dipped in blue ink, which was a way of seeking permission to keep cattle in the reserves, he sought to buy land in the Location Seven of Kaptalam near Kabiriirsang next door to super athlete Henry Rono, Olympic champion Wilfred Kipkemboi Bungei and World champion Janeth Jepkosgei Busienei. That land was bought using the money accumulated from dowry. Each wife's daughters' dowry bought so much land, which was divided amongst the sons of each wife in keeping with the Nandi tradition of "ma amei go(t age) go(t)", literally no one home shall feed on/eat of another home. Every home is entitled to own property. My father did not want to leave his Kamelilo people to adopt a new home in Kaptalam at Kabiriirsang.

By not moving, he stayed on as a labourer at Robotson's farm (Koisagat Tea Estate). It was the case of the son inheriting servitude from his father. Talk of a vicious cycle, this is one such.

Among the few Africans working at Robot's farm who could write the names of fellow workers and speak a few English words, my dad was a hero in his generation. He was argumentative, intelligent but lost in booze. He was the booze house hero. He stood up to the wazungus as he did when we 'grabbed' Siret Tea Estate's land in the 1979/80s. We because I was in the group of boys and men who went on to partition the grazing land belonging to Siret Tea Estate without the estate permission. Mr Gardner was miffed and he would have swallowed us. But for arap Rugut. On hearing of the invasion, some crazy mzungu called Gardner came on horse-back. The villagers knew there was trouble. We gathered nonetheless at a place in the grabbed land. Everybody went quiet as Kiptaliilgong (starry-eyed) arrived. My father looked around the gathering, none of the other elders stood to say anything. He quietly collected himself, picked his bakora and stood up, spit out the brown tobacco-stained saliva and told the mzungu point-blank, "komoon (come on) this is our shamba". He did not need to say more. The gathering all stood up, the mzungu was intimidated and that inspired dad to go on in his unintelligible English. "We want our land", he said. "That tea cannot grow there because it is our boma, the cow dung has polluted the soil. Give us back our land now". He was the man of the moment.

In 1982, each of those families living on the cliff overlooking the Kano Plains were allocated 2.5 acres (one Hectare) of land. Father, rest in peace.

His generation is full of people who bear the signs of tea bush scratches, tea-pruner's scars and all other attendant professional hazards. Our family's tribulations represent those of countless others who may never tell their tales. I have lived all my life as a youth well aware of the damage to my people that tea estates wrought us. From poor education by the squatters to dependence on food rations (not free) to diseases acquired from the herbicides and other spraying chemicals. All these left many families with widows. My family was no exception. My father died hoping that I'd go to Kenyatta University (by then it was merely a college). He wanted me to get six degrees (double what his hero Jean-Marie Seroney had). He wanted me to excel, perhaps in order to help him break out of the cycle into which he was born. Or may be he had no idea why he wanted it done. But I know he drank lots of busaa whenever I did well in school. Nobody else could say anything in front of him in those busaa dens for the length of the holiday. Poor man was proud of my performance to a fault. He died too soon.

Every time I looked at smoke billowing out of grass-thatched homes in the evenings I always thought "that smoke over there is telling us a story we cannot understand". As if each family had something to say, except through smoke.

In my father's eyes, he saw Robotson going away. He actually went, and died. Just like the poor Botha who crashed at Limuru in his single-engine plane. One by one the white farmers left. Robotson's farm, Koisagat Tea Estate was bought by NK Karanja (he was shot dead at the gate to his home in Ruiru) and SK Njoroge (Former Internal auditor State corporations). None of the squatters knew when and how the farm changed hands. All they know was that managers like Simon Motelin and Andrew Segecha at Ogirgir went away quietly and soon Koisagat was managed by a new manager every six months. Was it leadership that failed  to organise us to buy back the farms, with government help? Why didn't the local leadership enable (indeed empower) the Nandi peasants to buy the land from the departing wazungus?

My father's story is similar to so many other untold struggles. Some were buried  with their tales. We will never get to know what they knew. Others like arap Letting Kap Chepwongo died complaining of chest pains. A professional earth-mover driver, arap Letting was credited for felling huge trees using T4. Those rocking movements, bumps and rough landing were to take their toll on his health. He died a poor man, like my dad.

The pain of the squatters was to inspire a lot of my writings on land rights activism in the 1990s (refer to Kenya Times of 1. Sat 31 Dec 1994 page 7, "Compensate People who lost Land" and 2. Tuesday 2 Jan 1996 Page 7, "Give Locals Chance to buy Farms", 3. The Weekly Review 23 Sep 1994 Page 2 "Nandi Squatters", "Compensate Nandis who were robbed of Land", The Daily Nation, Thur 27 Apr 1995 Page 7, "Britain should compensate Nandis", see also The Kenya Times of 24 Jun 1995, "Nandis Should be Compensated", Kenya Times Sat 3 Feb 1996 Page 7, "Nandi Problems need a Solution" and The Weekly Review, 20 May 1994 page 2, "Nandi Politics").

Tea Estates had no secondary schools of their own by then, they still sent the kids to Kapsabet Boys High and Chepkunyuk Secondary, schools built by the same poor squatters. The tea estates had no medical facilities of their own. They still ferried the sick to Nandi Hills Hospital. The tea estates did not employ Nandi graduates. They preferred school failures from the UK who were trained by Africans and then, by virtue of nothing more than their colour and affiliation to the owners of those farms, were made bosses over the Africans. We demanded the jobs, and services. Tokenism was to greet us initially but eventually they found it untenable to ignore the masses. Ngo sik berbeer ko tiny koeech ng'omoot (when the ignorant acquire knowledge, those who regard themselves wise are in trouble).

Today things are slightly better. We have KTGA Taito Secondary school and the sick, though not all, are treated at their own facility at Kapsiwon (Kapsiwoot).

Yet that is still a far cry from what they should do. The tea estates are not benefitting the squatters children in terms of scholarships as happens in, for example, James Finlay Tea in Kericho where Kipsigis children are supported in High School and University.  In Nandi, none of that happens. One day that will change, but how? They ignore their corporate social responsibility. But not for too long.

Fast forward to the draft constitution.

I am an optimist. I believe in people and their ability to evolve and panel-beat things to suit their lives. As a squatter's son, I have refused to be a prisoner of circumstances, and that has brought me this far. That hope and determination that refuses to draw boundaries and put up fences is what has helped me to date.

Having said that, I know that this negotiated document has gaping holes in it, and bad things. BUT in addition it has a lot of very good things. One of the two that I like, impact on me and my locality  in Nandi Hills directly. I am aware of the inherent difficulties in accepting Majimbo with such a divided nation like ours, however passionate some people get about it. YET I see the possibility of increased resource devolution, resource majimbo, if you please. If you gave me a choice between the resources and political devolution, I'd grab resource devolution anytime. I see about 8-10-fold increase in resources being devolved to the grassroots in this constitution. That means for example, that  instead of the KShs 66 million that Tindiret Constituency got in CDF in 2009/2010 financial year, Nandi county with four constituencies shall be entitled to about KShs 3 billion (15% of about 850 billion). Simply put, if equal distribution were followed, Tindiret should get about KShs 700 million which translates to over ten-fold increase in available funds for better schools, health facilities and roads as well as bursaries for our kids.

In additions, there are funds like the fuel levy, CDF and LATF which are not  mentioned in the constitution. However, these monies were created by administrative Acts of Parliament and these administrative legislations can bring those to levels that must be negotiated again. On resource allocation, I vouch for a YES. On money matters, I see hope for breaking the poverty cycle. Our kids will not be denied access to better education because of lack of money. Nobody needs any more lessons on the usefulness of education in poverty eradication. I stand as a powerful symbol of what education can do to transform a family and her fortunes.

What is close to me, and the squatter children of squatters is LAND in the tea estates. Chapter 5 Article 65 gives me hope. It puts a ceiling on the time that Thornton and his sons, Hutchinson and his family and Gardner and his clan can hold Siret, Kipkoimet, Kipchomoo and Kapchorua. In the draft, it is NO MORE than 99 years. That is about one or two generations. If I don't participate in the negotiations, at least my kids and/or their kids will.


Landholding by non-citizens
65. (1) A person who is not a citizen may hold land on the basis of leasehold tenure only, and any such lease, however granted, shall not exceed ninety-nine years.
(2) If a provision of any agreement, deed, conveyance or document of whatever nature purports to confer on a person who is not a citizen an interest in land greater than a ninety-nine year lease, the provision shall be regarded as conferring on the person a ninety-nine year leasehold interest, and no more.
(3) For purposes of this Article –
(a) a body corporate shall be regarded as a citizen only if the body corporate is wholly owned by one or more citizens; and
(b) property held in trust shall be regarded as being held by a citizen only if all of the beneficial interest of the trust is held by persons who are citizens.
(4) Parliament may enact legislation to make further provision for the operation of this Article.

In the current constitution, they have ten to twenty generations, 999 years, to sit on that land. If this draft were enacted, I have hope that my children, or my children's children shall be able to repossess those tea estates within which are our grandparents' cattle bomas. You may see karaitaab (former homestead of) Mundut, Karaitaab Kabuunet, karaitaab Kap Kerebei, karaitaab Kap Anjaa, Karaitaab Kap Koboos, Karaitaab Kap Chemurungu and many others where in the middle of  Siret, Koisagat and Kipchomoo tea bushes, there is a region without tea. Because cow dung had a way of "poisoning" the soil, in order to preserve the evidence of ruthless eviction from those farms. Because there is hope that one day the son of Kipshambaindet, the daughter of a squatter and the peasant labourers who have enriched the white collar farmers rocking in their cosy sofas while trading at the London Stock Exchange in the name of Linton Park Plc, shall either OWN the land  or DECIDE who owns it, I votes YES.

Does this draft address existing leaseholds of 999, which Isaac Ruto worked hard to protect? I read Article 65(2) and see hope for that reversal. See it too:

(2) If a provision of any agreement, (title) deed, conveyance or document of whatever nature purports to confer on a person who is not a citizen an interest in land greater than a ninety-nine year (e.g. 999) lease, the provision shall be regarded as conferring on the person a ninety-nine year leasehold interest, and no more. No more! God is great indeed. No more than 99 years.

Imagine this is anticipated by Article 40(1), see below. The shrinking of leaseholds from 999 to 99 is exempted from the "right to property"!


YES for resource devolution.

YES for tea estates reverting to US, even if by then I shall be mbolea for those tea bushes.

I vote for what is close to me and my family, I vote YES to 99 years and no to 999 years.

I know that Isaac Ruto, the MP for Chepalungu had moved a motion to DELETE Article 65. Amazing. Whose agenda was he serving? That of my squatter family and the countless others in Kericho or that of the absentee landlords? Was he a gun for hire? I vote NO to Ruto's 999 years and YES to Article 65.

"NOTICE is given that the Member for Chepalungu (Hon. Isaac Ruto) intends to move the following amendment to the Draft Constitution:

ARTICLE 65

THAT pursuant to the provisions of section 33 (4) of the Constitution of Kenya Review Act, 2008, this House approves the draft constitution submitted by the Committee of Experts and laid on the table of the House on Tuesday 2^nd March, 2010 subject to deletion of Article 65". 

Mr. Speaker, Sir, I wish to withdraw the next amendment which is on Article 65 on the basis that my intention, initially was to protect shareholding and possibly not to create a shake on the Kenyan economy. Otherwise, the other side of the coin is equally important. In any case, this Parliament is, at the moment, not serious on passing any of these amendments.


Please help me make this a reality in my lifetime. Vote YES and pass this draft. It is not perfect. But we shall overcome. This is the beginning, we shall amend it if and when it is necessary.


I have heard of arguments like "(the) government shall take away your land". While this is not true, my uncle has an answer. While speaking to him the other day I asked him whether he was worried about land being taken away by the government. His answer was curt. "Which land?", he posed. "Here we have vegetable gardens (kabunguut) and not anything you can call land". So, it the government going to take away Kabunguut? No. 


Let us regurgitate what I have written elsewhere.


A). Is anybody going to take away your LAND?



Let us find the Article which is raising temperatures among land-grabbers (the text in red is my own annotation)



Protection of right to property
40.

1.      Subject to Article 65 (Ownership of land by Non-citizens which limits it to leasehold of 99 years!), every person has the right, either individually or in association with others, to acquire and own property––

a)      of any description; and

b)      in any part of Kenya.

3.      Parliament shall not enact a law that permits the State or any person—

a)      to arbitrarily deprive a person of property of any description (does that EXCLUDE LAND?) or of any interest in, or right over, any property of any description; or

b)      to limit, or in any way restrict the enjoyment of, any right under this Article on the basis of any of the grounds mentioned or contemplated
in Article 27 (4).

3.   The State shall not deprive a person of property of any description (does that EXCLUDE LAND?), or of any interest in, or right over, property of any description, unless the deprivation—

a)      results from an acquisition of land (Quite naturally, if PROPERTY did NOT include LAND, why is it specifying LAND here?) or an interest in land or a conversion of an interest in land, or title to land, in accordance with Chapter Five; or

b)      is for a public purpose (government even does it now for things like Pipeline! under Compulsory Acquisition Act Cap 295) or in the public interest and is carried out in accordance with this Constitution and any Act of Parliament that—

i)                    requires prompt payment in full, of just compensation to the person; and

ii)                   allows any person who has an interest in, or right over, that property a right of access to a court of law.

4.      Provision may be made for compensation to be paid to occupants in good faith of land acquired under clause (3) who may not hold title to the land.

5.      The State shall support, promote and protect the intellectual property rights of the people of Kenya.

6.      The rights under this Article do not extend to any property that has been found to have been unlawfully acquired (GRABBED land for example).

B). Is LAND property or does Property not include LAND?

Let us look at Article 260 for definitions

Interpretation
260.  
In this Constitution, unless the context requires otherwise—

“land” includes—

a)      the surface of the earth and the subsurface rock;

b)      any body of water on or under the surface;

c)      marine waters in the territorial sea and exclusive economic zone;

d)       natural resources completely contained on or under the surface; and

e)       the air space above the surface;

“property” includes any vested or contingent right to, or interest in or arising from—

a)      land, or permanent fixtures on, or improvements to, land;

b)      goods or personal property;

c)      intellectual property; or

d)      money, chooses in action or negotiable instruments; 

Let us say that everybody has an interest in this constitution. For some it is religion, for others it is power. For me it is resource allocation and my tea estate, stupid. That is the simplified constitution for me and my rationale for a YES vote. YES we CAN.