Fight over limited resources in Kenya:
Legal experts are familiar with consensus ad idem, meaning, the meeting of minds among parties to a contract. However, we must distinguish between the meeting of minds and that of hearts. Recently when politicians opened the can of worms at Kajiado County during one of the greatest campaign trails, the opposition leaders were recorded saying that Masai community members must reconsider selling their lands to the rich. Some critiques saw this as an incitement and called for probe. Is it in order to castigate whoever has an eye on matters of fact? When a poor person sells his or her land to the buyer, all the seller needs is material consideration. The wealthy person has no problem with that and shall pay money to the poor who will lose his or her entitlement to the land or real estate. This is what is known in the Kenyan system as the willing seller – the willing buyer! It is also within the sale of goods Act.
The other side of the coin is what brought the controversy. The seller is forced by his or her financial circumstances to sell the real estate to the willing buyer. Both shall reach the meeting of minds or consensus ad idem but not the meeting of hearts. The poor shall remain a squatter as no any other alternative the social justice has for him after disposing his property willingly. He loses the right of liens and the right of ownership is now with the rich. The rich shall only fence his land and apply all the protection needed to prevent any intruder or trespass issues. Social justice looks at reality beyond the law. It is fair to consider the existential situation of the seller even if he has made decision based on his mind. The heart may have something different from the mind. Social justice is not only about the “Mind” but many other issues that the heart may express.
Nomadic communities in Kenya have not been protected by social rules. Their livelihood is based on lands since they are pastoralists. Losing the lands to private owners, such communities shall be doomed to perish or adapt. The government must have valid solution to deal with the aftermath of such sale of goods contracts. Land reform and issues related to the real estate market in Kenya has never been resolved. The government has been playing dilly dally when it comes to issues of land.
The government issued some squatters in the Coast, and in Gusii with titles for political reasons. This has nothing to do with addressing real issues of land rights in Kenya. Still the poor people are destined to lose their lands and become servants of the rich. This is what is addressed in the social justice debates. National Land Commission has not done any great job in ensuring the social justice.
Whether the call for social justice in issues appertaining to land is qualified to be an incitement, is a debate for another day. The opposition has only played in the hands of the poor who are distressed and worried about the future after losing their title to their ancestral lands. The question is just to find one best and lasting solution to land rights other than rhetoric and political posturing.