1uvZ4zN

Volume III
Chapter ONE
74. The practice of illegal allocation and distribution of land has led to a general
feeling of marginalisation among some communities as well as the ethnicization of
the land question. The Commission of Inquiry into the Illegal/Irregular Allocation
of Pubic Land (the Ndung’u Commission) noted that throughout the 1980s and
1990s public land was illegally and irregularly allocated “in total disregard of the
public interest and in circumstances that fly in the face of the law.” 69 This became
the foundation of ethnic tensions, and later violence, particularly in the Rift Valley
and Coast Provinces.
75. Further, through its policies that favour the investment of resources in only high
potential areas that have ample rainfall and fertile lands, the government has
encouraged asymmetrical development in the country that, because of the ethnic
dimension of land allocation and ownership, itself has ethnic consequences. 70 The
relationship among land ownership, development, and ethnicity is summarized
in a recent report by the NCIC:
The Sessional Paper No. 10 of 1965 on African Socialism and its Application to
Development and Planning sought to empower Kenyan citizens of the new nation
through the provision of services and expansion of economic opportunities. In
doing so, the Government adopted the Africanization Policy to replace the departing
European and Asian communities with educated or skilled Africans. Most jobs, firms
and businesses were taken over by the African elite but in an ethnically biased manner
that also led to the exclusion of Kenyan Asians and Europeans from citizenship and
appointments in the civil service. In addition, Sessional Paper No. 10 dismissed the
livestock-based pastoralist economy and in the process contributed to unequal
development patterns and the marginalization of non-crop-farming communities.
There are historical legislative frameworks and policies that facilitate undesirable
ethnic and race divisions. Examples of these frameworks and policies are: the Stock
and Produce Theft Act which came into operation on 5th May 1933 and is still in force;
Sessional Paper No 10 of 1965 that highlighted the areas with potential for growth
and relegated other areas to underdevelopment without regard to the people who
live there; and The Indemnity Act of 1970 which gives immunity to perpetrators of
state violence against its citizens in Northern Kenya. Legislative frameworks that
would have enhanced harmonious ethnic and racial coexistence were largely ignored
or subverted. In addition, poor and lopsided economic policies and planning have
enhanced inequality and ethnic tensions. 71
69 Republic of Kenya ‘Report of the Commission of Inquiry into the Illegal/Irregular Allocation of Pubic Land’ (hereafter the ‘Ndungu
Report’) (2004) 8.
70 African Peer Review Mechanism ‘Country review report of the Republic of Kenya’ available at and (last accessed 17 April 2010).
71 National Cohesion and Integration Commission Commission ‘Kenya ethnic and Race Relations Policy’ (2011)13.
REPORT OF THE TRUTH, JUSTICE AND RECONCILIATION COMMISSION
27