|IN THIS AND OTHER DEMOCRAcies, when it comes to enforcement of human rights, the judge keeps aside all other cases and hears the application of any person complaining of violations of his right to liberty.
The argument by legislator Franklin Bett and other Rift Valley MPs that the resettlement of internally displaced people “be not hurried” until the underlying cause of the fighting has been addressed, is an argument for suspending those provisions of the Constitution which protect the rights of others.
It flies in the face of constitutional truth about the proper way of redistributing wealth. It goes against the very tradition which this nation established in 1963. It amounts to an argument that the Constitution, which has the force of the law throughout Kenya, continues to be suspended in some parts of Rift Valley.
The MPs’ claim that the land problem was created by the President Jomo Kenyatta manifests their ignorance of the agreement reached over land during the 1962 Constitution Conference, which was attended by representatives of all Kenyan communities.
IT IS AT THAT CONFERENCE THAT a political settlement on the future of Kenya was reached. That is the ‘future’ which this nation has lived since 1963.
The names of all participants in that conference are reproduced in the report. Those who are alive today are former President Moi, Mr George Nthenge and Mr John Keen.
The MPs are, therefore, insulting the intelligence of Kenyans who have lived under that Constitution for 44 years.
The internally displaced Kenyans have a right to be resettled immediately in their homes, partly because as section 3 of the Constitution declares, it has “the force of law throughout Kenya”, and partly because the Constitution guarantees every Kenyan the right to move throughout Kenya and the right to reside in any part of Kenya.
Their displacement was a serious violation of the Constitution by some politicians and their supporters who, after the December 27 elections, acted on two dangerous heresies, namely:
(i) that there is a law which permits a person to suspend the operation of any part of the Constitution or other laws which he or she disapproves of; and,
(ii) that in a democracy, the so-called economic inequalities and imbalances in land redistribution can be corrected through violence.
Democracies are characterised by the observance of the principles that no individual or institution has power to suspend the operation of the law, and that all injustices must be removed through either a constitutional change, or through Acts of Parliament.
Following the 1962 constitutional settlement, Kenyans in 1963 acted in accordance with this constitutional principle, which provided for the transfer of land ownership from Europeans to Africans. They also recognised the institution of property, which included the property acquired through force during the colonial rule.
Section 197 established a Central Land Board, whose duty was to select agricultural land for purposes of settlement, to assess a fair purchase price, and to convey interest in land on the basis of willing-buyer willing-seller.
The Constitution rejected the nationalist claims that land had been stolen and, consequently, that the European owners did not have valid titles to land. It recognised as valid all the land rights which had been acquired since the commencement of colonial rule.
All the internally displaced persons in Rift Valley Province acquired land from former European owners through the Central Land Board, or through purchase, either individually, or through land-buying companies, which subsequently sub-divided it amongst shareholders.
The claim that any land in the Rift Valley, which was formerly owned by Europeans, belongs to any community is based on a rejection of the constitutional basis upon which the country became independent.
The MPs swore on January 15, 2008, that each of them “will protect and defend the Constitution of Kenya as by law established.” That Constitution, which they swore to defend, protects the right to life, the right to property, and the right not to be discriminated against on account of one’s ethnicity.
During the post-election violence, some members of one community evicted from their farms people whose pre-colonial homes were in what today are Nyanza, Western, Central and Eastern provinces. These are the people who constitute the internally displaced persons.
THE CLAIMS BY THE MPS THAT citizenship does not have the same and equal content for some Kenyans living in that province is preposterous.
Our economic, constitutional and political reality is that individuals from all communities own farms, homes, businesses and hold jobs in all parts of the country, including Rift Valley Province.
One fails to understand the logic that says that there are Kenyans who should not own farms or homes in some parts of the Rift Valley. The logic, which allows every Kenyan to work and carry on business at a place of his or her choice, applies to every inch in the Republic, including Rift Valley Province.
These MPs ought to apologise to the internally displaced persons for the criminal activities of their supporters, and lead in the campaign to correct the heresies on which the killings and displacement were based.
Dr Kuria is a constitutional lawyer and State counsel working in Nairobi.