OPERATION FIRIMBI Bulletin March 2012 1

B U L L E T I N

OPERATION FIRIMBIBlow the Whistle Campaign

for JUST LAND REFORMagainst LAND GRABBING

and CORRUPTION in KenyaFirimbi Bulletin published by Mazingira Institute PO Box 14550 Nairobi 00800Tel: 254 20 4443219/26/29, Fax: 254 20 4444643 E-mail info@mazinst.org, Website: www.mazinst.org

Issue No. 36 December 2013

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About Kilifi County

Kilifi County covers a total surface area of 12,610 km2 and accounts for 2.17 per cent of Kenya’s total surface area. It borders the counties of Tana River to the North, Taita Taveta to the West, Mombasa and Kwale to the South and the Indian Ocean to the East.In terms of size, Kilifi Country is 12,610 square kilometres. It borders Tana to the north, Taita Taveta to the west, Mombasa and Kwale to the south and the Indian Ocean to the east. Its capital is Kilifi town and the other major urban areas include Malindi, Mariakani, Kaloleni, Mtwapa, Watamu, Kaloleni and Gongoni. Kilifi County has 21 forests covering 246 square kilometres and the River Sabaki, a perennial fresh water way runs 150 kilometres across the county supporting various agricultural and other socio-economic activities. Other seasonal rivers include the Nzovuni, Rare, Goshi and Wimbi, Kilifi County is diverse when it comes to demographics. Based on the 2009 census it has more than one million people roughly 3 percent of the Kenyan people with the main communities being the Giriama, Chonyi, Jibana, Kambe, Kauma, Rabai and Ribe who are part of the wider Mijikenda cluster. You will also fi nd the Swahili, Bajuni, people of Arab, South Asian and European descent as well members of other Kenyan ethnic groups who have made Kilifi County home over the past many decades.

Kilifi County has 6 administrative districts which are: Kilifi , Kaloleni, Malindi, Magarini, Ganze and Bahari. Arising out of the 2010 Constitution, Kilifi County has representatives at both the national as well as the devolved county level. The Governor is Amason Kingi, the Senator is Stewart Madzayo and the Women Representative is Aisha Jumwa. The county is divided into 7 constituencies and 35 wards. The Ganze Member of the National Assembly is Peter Shehe; Kilifi North is represented by Gideon Mung’aro; Kilifi South by Mustapha Iddi Salim while Mwinga Gunga represents Kaloleni; William Kamoti is the MNA (formerly known as MP) for Rabai while

Grappling with historical injustices around land: Focus on Kilifi county

December 2013

“Senator Mbura profi le continued” on page.2Continued on page 2

Kenyan legislators are not famous for their zeal on social justice issues-especially members of the Senate.

Most people would balk at naming any senator beyond James Orengo and Anyang’ Nyong’o associated with advocacy on human rights, especially concerning controversial issues like land grabbing, eviction of squatters and other pro-poor agendas.

Ms. Emma Gertrude Mbura is not yet a household name.Her profi le states that she is

“a proud mother of four daughters and the eighth born child of a single mother. She was raised in Mombasa where she went to school, dropping out briefl y in Form Two to give birth at the tender age of 13 years, before resuming and completing her secondary school studies and, later, college training. She has worked as a receptionist/animator in the hotel industry, and as a house help in the United Arab Emirates. Since the year 2000, she has made outstanding contributions around the country as an active Mombasa-based human rights defender and a community mobiliser, with a strong bias for women’s and children’s rights. She has also been an active crusader against poverty and the drugs menace in the Coast region, and across the country.” “1

She is also a Senator, nominated to represent Mombasa County. Some may be surprised at the party which nominated her- TNA, which is part of the ruling Jubilee government.

Emma Ray, as she is known on Facebook, is very vocal on matters she is passionate about-like land grabbing, evictions and other social justice matters. One of her most recent campaigns was to act in solidarity with the vendors and hawkers at Mombasa’s Markiti market, coming right after her vigorous public protests against the grabbing of former Mombasa Municipal Council fl ats by unscrupulous tycoons. Some of her detractors on social media have berated her for “clinging on to activism” instead of graduating into a “proper leader” in the Senate. To her credit, she has been undeterred by the sniping and carping in cyberspace.

Given the emotive issue of land rights at the Coast, it was commendable to see her reproducing this excerpt from a human rights report on the so called Malindi “Salt Belt”:

The lords of Malindi salt mines have been riding roughshod over area residents with impunity. Beneath the veneer of the successful mining fi rms are tales of hopelessness as many local residents are living under the fear of eviction,

environmental-induced illnesses, human rights violations and general exploitation.

The Kenya National Commission on Human Rights has exposed gross human rights violations by salt harvesting companies in Malindi. Some salt harvesting companies were found to have maliciously contaminated fresh water sources used by residents of Malindi to force them out of their land, paving way for the expansion of salt harvesting activities...The report says workers who harvest salt and those who work in the factories are not given appropriate protective gear, thereby exposing them to health risks.

Residents are worse off today than when the mining companies began operations in the 1980s. Areas that some years ago were covered by mangrove, cashew, and mango trees and coconut palms have been reduced to bare ground as more land is cleared to mine salt.

Senator Emma Mbura: Feisty advocate for Salt Belt protestors

Nomionated Senator Emma Mbura

1 http:/www.makatilili.or.ke/

OPERATION FIRIMBI Bulletin March 20122

Dan Kazungu was elected to serve the people of Malindi; Harry Kombe represents Magarini.

Land is one of the major issues in Kilifi County dominating public discourse and debate when it comes to ownership, use and the overlapping issues around the concerns of the mostly Mijikenda indigenous people vis-a-vis other inhabitants from other social, economic, ethnic, racial and religious groups. As will be seen in other articles in this edition of Firimbi colonial legacies and post-colonial political administrative arrangements loom large when it comes to understanding and grappling with the question of squatters, food security, tourism and business activities in Kilifi County.

Background Tens of thousands of Kenyans who call Kilifi County home still live like second class citizens-consigned as squatters with their basic and human rights violated and ignored with local and national elites using their political connections to grab prime land and enrich themselves at the expense of the ordinary Mijikenda people.

This was vividly recounted in a recent online edition of Kilifi News which reported that the Kilifi County Government had petitioned the National Land Commission to investigate land allocations in 70 settlement schemes in the area. County Governor Amason Kingi was quoted as lamenting that “although the settlement schemes were earmarked for the landless, lands offi cers ended up giving land to prominent people and private developers. It is shocking to see that over 70 per cent of the people in the county are living as squatters yet the Government had set up settlement schemes many years ago”. These sentiments were echoed by Kilifi County Senator Stewart Madzyayo who castigated the lands offi cers for the massive grabbing of public utility lands in the region. The settlement schemes which sparked the uproar include Kapecha, Kidutani, Gatheche and Kijipwa in Kikambala Division, Kibarani, Tezo and Madeteni in Bahari District and Jimba Kibamba Muche Settlement Scheme in Watamu and Magarini Settlement Scheme in Magarini District.

The Kijipwa case

Another manifestation of the ongoing confl icts over land ownership and land use in Kilifi County are the series of civil suits and other forms of litigation. For example on 12th of March 2013, Justice Mukunya of the Kenya High Court sitting in Mombasa made a ruling in Civil Suit 286 of 2012 where Kahindi Katana, Khamis Mwakae Khamis, Stephen Kiti Nyale, David Nganga, Marcos Sebe and 28 other plaintiffs had sued Fort Properties Limited over LR No. KILIFI/KIJIPWA/53 which had been sold by the late former PC Stephen Mwakisha in 2009 to Fort Properties. In their previous Miscellaneous Civil Application No. 381 of 2009 the plaintiffs against the Director of Land Adjudication and Settlement and the Land Registrar Kilifi and Fort Properties being

cited as an interested party they prayed for orders of mandamus compelling the Director of Land Adjudication and Settlement to declare null and void his decision to allocate land known as Kilifi /Kijipwa/53 to the party and that the Land Registrar Kilifi to cancel the title issued in favour of the interested party and that the Director of Adjudication and Settlement and Land Registrar Kilifi be compelled to issue new titles in the name of the applicants for portions of 2.5 acres each. The applicants also argued that it was irregular for Mr. Mwakisha to be allotted 20 hectares when he was not a squatter like them. The former PC subsequently sold the 20 hectares to Fort Properties Ltd. Justice S. Mukunya ruled against the applicants stating that “having looked at all the pleadings, the annextures on affi davits and having perused Mombasa Misc. Application No. 381 of 2009, I come to the conclusion that the Originating Summons herein is premature and misconceived. I strike down the same with no order as to costs.”

It such contemporary court decisions that has intensifi ed the clamour among squatters and landless people in

December 2013

There is an urgent need to intervene and modernise production process. The salt industry could do better if it got help and encouragement from development partners as a way of inducing lasting partnerships to promote good human rights practices in work places and communities.

The Malindi salt mining companies should be encouraged to attain ethical work standards by complying with the law while at the same time fulfi lling their obligations of corporate citizenship. The case of Kenya’s Magadi Soda Company in Kajiado County is an illustration of good corporate citizenship in salt mining. “2

It is not a coincidence that Senator Emma Mbura cares about evictions, exploitation and other land rights concerns. She used to be an active volunteer for many years with the Mombasa-based Ujamaa Center which co-authored the Malindi Enumerations Report with Muungano wa Wanavijiji in 2006.

Senator Emma Mbura was appointed as a Mijikenda leader by Kaya elders in early 2013, a move she said gave her more power to serve the coastal communities. She said her main focus would be on the girl child, youth and women empowerment.

“I am a strong woman with extra power bestowed upon me by the Kaya elders. My position is clear, to fi ght for my people,” she said.

Given her progressive credentials, it is clear that Senator Emma Mbura is an ally not only of those concerned with the exploitation at the Malindi salt mines, but on related matters like the evicted squatters in Kijipwa, Magarini and other parts of Kilifi , Mombasa, Kwale and other counties in the Coast region.

The September 1963 letter from Ronald Ngala to Prime Minister Mzee Jomo Kenyatta on Coast land issues.

OPERATION FIRIMBI Bulletin March 2012 3December 2013

Question & Answer with Mrima Wanyepe, Chairman, Coast Landless Social Forum

Question: What is the historical context behind the is-sues affecting Kijipwa and other areas of Kilifi in re-gards to London?

Wanyepe: You have to go back to 1895 when the fi rst pieces of land were grabbed from the indigenous people, from the local natives. There were similar moves in 1908 and again in 1945 when allocation was done to a cho-sen few- and I mean Europeans, Asians and Arabs. The local Africans did not have title deeds. Large tracts of land was taken away. Apart from the white settlers and colonialists, land was grabbed by prominent Arab fami-lies like the Mazruis and Swaleh “Nguru”-despite his African sounding surname, Swaleh Nguru was an Arab, the Nguru name was because his family sold the “ngu-ru” fi sh- you know the salty, dried sea fi sh that people in Mombasa love so much. Some rich Asians also benefi ted. I am talking about what later became the Vipingo sisal estate, Nyali Estate Limited, Wilson Christopher, Lord Delamare, Lily White, Sheikh Dahanan, the Bashweri and Turner families, Zehanat, Abdallah Nassiri al Mazrui. For example, did you know that the whole of Malindi is owned by three families-Bashweri, Turner and Mazrui?In terms of grabbed land, we are talking about areas like Mtwapa, Shariani, Jipya, Kilifi Township, Watamu, Malindi, Bongoni and Mambrui. In 1963, the late Ronald Ngala wrote a letter demanding that all the land which had been classifi ed as “private land” should be returned to the Miji Kenda people and that the gov-ernment of Mzee Jomo Kenyatta should be availed to the local people in order for them to get back their land. To date, nothing has happened and this among the major reasons for the continuing land issues at the Coast.

Question: What is your take on the MRC issue?

Wanyepe: Before people started talking about the Mombasa Republican Council in 2012 and 2013, there was Kayabombo in 1997; Mulungulipa in 2000 and the Nyuki movement. All these uprisings and movements were around land, especially evictions happening in different settlement schemes and historical injustices. The most affected areas were Kilifi and Kwale. I have to point out however that on the MRC matters, some elite Arab politicians hijacked these grievances for their own selfi sh ends. As someone who is Mijikenda and who vied for the Kilifi South parliamentary seat, I can confi rm that many of the forces funding the MRC just wanted to use and in fact disenfranchise the Mijikenda from participat-ing in the electoral process.

Question: Have you interacted with the National Land Commission?

Wanyepe: Yes, we sent a memorandum to Swazuri’s team in December 2013. We talked about the grabbed land and asked that that these should revert back to the original Mijikenda owners. We talked about the limita-tions of Cap 280 and how it provides a leeway to deprive squatters of a chance to get titles to their land. We reiter-ated our calls for a comprehensive national land policy and commented on some of the bills currently within the legislative process; we spoke about the need for clear guidelines when it came to evictions and settlements.

Question: What are your recommendations in regards to the issues of land at the Coast?

Wanyepe: 1. County land boards and community based groups

should be given powers to investigate issues of his-torical injustice and come up with a way forward.

2. To all governors countrywide- there should be no evic-tions without the involvement of the national gover-nor and his respective executive members in charge of land.

3. All title deeds for private land inhabited by indige-nous people should be immediately revoked and land reallocated to the original owners.

Kilifi South MP Ronald Ngala (left) and fi rst President Jomo Kenyatta during a meeting in Kwale District in 1966.Source: www.standardmedia.co.ke

Kilifi and across Kenya for a national land policy and an effective National Lands Commission with teeth to deal with their long standing grievances and other historical injustices in regards to land rights.

In the particular case that led to the civil suit in the Mombasa High Court it has been established that the presumed benefi ciaries of Kijipwa settlement scheme in Kilifi have long standing complaints that have festered for more than twenty years. Upon subdivision of the land by the government in the early 1980s, several big shots unfairly benefi ted from the land allocations. These include James Peter Kiyungu, an offi cial from the Ministry of Lands (37 acres); the late Boniface Mghanga, who was then with the Offi ce of the President; Steven Timothy Wakisha then the PC of Nairobi (20 acres); Mada Gopal Sauni, Legal Offi cer, Ardhi House (19.8 acres); Toshiba Thakorbhai Patel, Legal Offi cer, Ardhi House (19.28 acres); John Thiong’o Mwaura, a Physical Planner (9.70 acres) and Anderson Kariuki Chomba also a Physical Planner (7.76 acres).

Over 3,000 families in Kilifi County were rendered landless and homeless by this act of grand graft and land grabbing by politically connected Kenyan elites.

A century of grievances

The roots of these historical injustices have been researched and well documented by leading scholars like Prof. Karuti Kanyinga of the Institute of Development Studies at the University of Nairobi and respected civil society organizations like Muungano wa Wanavijiji, Ujamaa Center and MUHURI.

For example in his seminal study, RE-DISTRIBUTION FROM ABOVE: The Politics of Land Rights and Squatting in Coastal Kenya published in the year 2000 by Nordiska Afrikainstitutet in Uppsala, Sweden, Prof. Kanyinga informs us:

While slavery and colonialism clearly disrupted the existing structure of land tenure on the coast among the indigenous Mijikenda, the absence of a comprehensive land policy on squatters and an expanding tourist industry have further deepened the “Land Question complex” in the post-colonial period. On the one hand, the growth of tourism as an economic activity around the coastal belt led to a sharp increase in the value of land and to the emergence of an active land market that extended

beyond the coastal strip. Arab and Swahili landlords began to sell their acquisitions to private developers from both the coast and upcountry. Central state elites, mainly comprising Kenyatta’s cabal, also began to develop an interest in land on the coast for purposes of investing in tourism or for making money by selling to private developers. To the Arab and Swahili landlords who had already left farming in favour of commerce in the towns, land became an important source of capital to expand their commercial ventures. To state politicians, especially those close to Kenyatta, coastal lands became an important source of capital required to get into business and/or maintain patronage networks. On the other hand, no comprehensive policy on landlessness and squatters was formulated, nor was there a fi rm commitment on the part of the government to address the issue as it did with the resettlement efforts upcountry in the 1960s and 1970s.

In the particular case of Kilifi :

The resettlement schemes were not specifi cally and exclusively established for the landless in Kilifi district. This was particularly true of those established in the 1960s, for they were open even to upcountry groups in spite of the prevailing landlessness among the Mijikenda, and in spite of the fact that the nature of the Land Question here differed considerably from the upcountry one. Some upcountry people, and the Kikuyu in particular, found their way into the Mtwapa, Mtondia, and Tezo-Roka schemes either directly through buying from allottees or through the allocation procedure. Magarini was even started as a national multi-ethnic scheme. These schemes, thus, could not have been expected to eliminate, or even reduce, the problem of landlessness, particularly on the coast and in Kilifi . Increasing numbers of “outsiders” and malpractices in the allocation of plots gradually engendered hostilities between the Mijikenda, especially the Giriama who are the majority in Kilifi , and other groups. The cause of this hostility was the Giriama fear of domination by the Kikuyu and other immigrants—a fear that their leader, Ronald Ngala, had also expressed on the eve of independence. The Giriama were further concerned that the schemes were not specifi cally/exclusively aimed at redressing landlessness among coastal groups and yet, the upcountry ones were aimed at benefi ting only the landless upcountry

Continued on page 4

OPERATION FIRIMBI Bulletin March 20124

Editor Davinder LambaContributor Onyango Oloo

Design George Mutuku

Published by Mazingira Institute, supported byRooftops Canada/Abri International

with assistance fromForeign Affairs, Trade and Development Canada

Affaires etrangeres, Commerce et Developpement Canada

B u l l e t i n

December 2013

groups. Local leaders, therefore, widely accused the local Provincial Administration of aggravating the land problem by resettling “outsiders”, the high numbers of squatters on the coast notwithstanding. The offi cials are simultaneously said to have prevented this antagonism from degenerating into a violent one by frequently “tantalizing” squatters with promises of more land. These promises were rarely fulfi lled.

Talking of Kijipwa, Prof. Kanyinga reveals:

Struggles over access to land in Kijipwa… date back to the colonial period when a German farmer obtained land to start an experiment with sisal farming. After the success of the experiment, he obtained more land for a plantation. This was followed by the eviction of those already settled there. An attempt was made to resettle them elsewhere but some turned down this offer, arguing that the new place was rocky and less productive than where they had been moved from. They, instead, moved to adjacent empty public land (near the beach and relatively fertile) in the belief that they would get their land back or would be settled in a better place. This also was a better option because they occasionally worked on the plantation. In the mid-1960s, the plantation owners began to expand their land after obtaining a new lease for a large area extending to where the former occupants had moved. This time they refused to move out. They fought those who came to enforce the eviction order. These included the plantation askari (security guards), labourers, and the local chief and his assistants. Police moved in moments later and arrested several “leaders” of the resistance. They marched them to the local police post and locked them in. The squatters regrouped and marched to the police post to demand the release of their colleagues or to be locked in as well. The police responded by beating, dispersing and arresting them. As the struggle intensifi ed, an offi cer from the DC’s offi ce arrived and requested the plantation owners and the squatters to hold talks on the matter.

Apparently, senior politicians in the district had already petitioned the president for the government to give land to these and other squatters. The squatters won several concessions among which was the authority to occupy the area while “the government looked for land to settle them” but on condition that “they lived in peace”. They continued to occupy the land and even subdivided it among themselves in the “conviction that they were the rightful owners of the land and hopeful that the government would give them secure tenure.” Meanwhile, pressure was building on local politicians, particularly the then senior and infl uential cabinet minister, Ronald Ngala, to petition the government for land allocation and for titles to the land occupied by squatters around Vipingo, Kijipwa and elsewhere in Kilifi . Ngala made several appeals at public meetings and whenever Kenyatta visited the coast. He got Kenyatta’s assurance that a settlement scheme would be established for the squatters and the landless in the area. The Vipingo settlement scheme, established in 1974, was one result of this assurance. Area residents who had knowledge about these events, nonetheless, complain that land for the scheme was set aside in a rocky place and far away from where they had established themselves. The best land was left for use by the plantation. Much later in 1982, another scheme, Kijipwa, was established in the area that had been occupied especially by those who refused to move to the Vipingo scheme after the fi rst wave of evictions.

Contemporary struggles

These research fi ndings are corroborated by Mrima

Dr. Swazuri: Leadership by exampleThe Chair of the National Land Commission, Dr. Mohammed Swazuri has earned plaudits from a cross section of Kenyans for his hands on intervention on a range of matters pertaining to land and people’s rights- at least according to a scan of the country’s major dailies.

For example, the Wednesday, July 10, 2013 edition of the Star reported that Dr. Swazuri went on public record expressing his support to Takaungu residents who took a decision to pull down two gates put up by the Mombasa Cement Company that denied them access to the Indian Ocean beach.

“It’s sad to see that private developers, some who irregularly acquired land had gone to an extent of denying local fi shermen

Wanyepe, a land rights activist and long time resident of Kilifi who has been at the forefront of the Kijipwa struggles for more than a decade. Mr. Wanyepe recommended that county land boards and community based groups should be given powers to investigate issues of historical injustice and come up with a way forward; he said that there should be no evictions without the involvement of the national governor and his respective executive members in charge of land; and his third recommendation Nicholas Wanyepe Mrima demanded that all title deeds for private land inhabited by indigenous people at the Kenyan Coast should be immediately revoked and land reallocated to the original owners. See the separate exclusive interview he granted to Firimbi Bulletin for this special issue in January 2014.

Over a decade later, Muungano wa Wanavijiji and Ujamaa Center conducted a mapping exercise at Kijipwa which further documented the plight of the landless people in this part of Kilifi County.

and other beach users by erecting perimeter walls on access routes and all those have to be cleared,” said Swazuri.He added that the National Land Commission would demolish 17 structures that deny residents access to the beach, saying that the commission would soon start scrutinizing all the title deeds in all the settlement schemes to ascertain their validity, noting that some of the title deeds are being issued fraudulently by being backdated.

“The most notorious place is the coast. Most of these people are former politicians who know which land has not been registered,” he said. The commission was also investigating how several foreigners acquired free hold title deeds in Kilifi County.

And in another report appearing in the Standard, Dr. Swazuri announced that the National Land Commission would revoke titles at the Coast which were irregularly acquired. People having fake title deeds had grabbed land in Kawala, Kadzodozo and Madzimbani in Kilifi County chairman of the Commission, Dr Mohamed Swazuri said. In the same publication at another date, Dr. Mohammed Swazuri was quoted as directing that the land commission would demolish all structures built within 60 metres from the shoreline at the Coast. He urged investors to voluntarily pull down the structures to avoid inevitable demolition by the National Land Commission. Dr Swazuri also warned former MPs

Acknowledgements

There are tens of thousands of ordinary women and men throughout the seven constituencies which make up Kilifi County who have struggled and continue to strive for long term sustainable solutions to the many challenges around land through out Kilifi . Many of them are very conscious of the many predecessors who fought valiant battles before dating back to freedom fi ghters like the legendary Me Katilili wa Menza.

In preparing this edition of Operation Firimbi, we received valuable information, research assistance, insight and analysis from a host of individuals and organizations who have been at the forefront in championing the land rights and aspirations of the people of Kilifi and the wider Coastal region.

We want to thank in particular, Mrima Wanyepe, Chairman of the Coast Landless Social Forum, Patrick Ochieng’, Grace Oloo and the folks at the Ujamaa Center; Evans Gachie and the Coast Citizens Forum; Senator Emma Mbura; Yusuf Lule Mwatsefu and HURIA; Father Dolan and Haki Yetu; MUHURI, Ilishe Trust; Mweupe Khalfan of InformAction; Livingstone Nyando; Phyllis Muema and KECOSCE; Muungano wa Wanavijiji, Haki Centre; Hussein Khalid and Haki Africa as well as national civil society organizations with a strong presence at the Coast like Kituo Cha Sheria and the Kenya Land Alliance. This list is by no means exhaustive.

and civic leaders who have abetted irregular sale of public property at the Coast.

“Politicians who have served as MPs and civic leaders at the Coast have been playing a big role in land grabbing as they have ideas and maps of the whereabouts of public lands,” said Swazuri.

He said his Commission would not tolerate private developers who go against the law in terms of land ownership and its use. He also directed all perimeter walls erected to block access routes to the beach be demolished immediately.A Star story covered a function where Dr. Swazuri revealed that more than 75 per cent of land in Kenya is not registered, making it easier for unscrupulous individuals to grab the land.

He said this was because there had been few surveyors and inadequate facilities complicating work of the national land commission, especially where technology was not used to fast-track the registration of land.

“Can we register 75 per cent of the land in Kenya in 10 years? It is possible because of technology,” Swazuri said.

Dr. Mohammed Swazuri Chair of the National Land Commission.