The multinational tea companies in the South Rift have suffered another blow after the United Nations (UN) backed the recommendation by the National Land Commission (NLC) to revalue the expansive land.
The UN Human Rights Council, in a letter to President Uhuru Kenyatta, also expressed concern over the government’s failure to restitute the communities evicted from the land and offer physical and psychological rehabilitation for the horrendous human rights violations in the hands of the colonialists.
The letter follows a petition filed before the UN in Geneva, Switzerland by Kericho Governor Paul Chepkwony through the Queens Counsel Rodney Dixon and lawyer Kimutai Bosek.
“We would like to bring to the attention of Your Excellency’s Government information we have received concerning the alleged lack of effective remedies for the Kipsigis and Tali indigenous peoples who were subjected to human rights violations during the pre-colonial and colonial period in Kenya, associated primarily with the expropriation of land on Kericho County,” reads a letter from the human rights council members.
They are Fabian Salvioli, special rapporteur on promotion of truth, justice, reparation and guarantees of non-occurrence, Balakrishnan Rajagopal (adequate housing), Jose Francisco Cali Tzay (rights of indigenous people), Cecilia Jimenez-Damary (internally displaced persons), Tendayi Achiume (racial discrimination and xenophobia) and Nils Melzer (torture and degrading treatment).
The special rapporteurs noted that Kipsigis and Talai, together with other indigenous people, were subjected to gross violations of human rights such as unlawful killing, sexual violence, torture, inhuman and degrading treatment, arbitrary detention, arbitrary displacement and violations of rights to privacy, family life and property.
Estimated 500,000 Kipsigis and Talai people suffered the violations.
The council now wants the State to implement the 2019 NLC ruling, among other things, to make a formal acknowledgement that the land confiscated from the Kipsigis and Talai should have been returned to them upon Kenya’s independence.
Following a petition by Kericho County Government on behalf of the local communities, NLC had also ruled that a fresh survey and audit be carried out for land allocated to multinational firms in Kericho and Bomet and that the land in excess of the size documented in official records be passed on to the counties to hold in trust for the communities.
The more than 200,000 acres of tea in the region is owned by tea firms which include James Finlay, Unilever, George Williamson and Sotik Highlands.
The NLC also ordered that the land rates and rent for land occupied by multinationals and other tea firms be raised to benefit the local communities.
This is after it emerged that the companies did not only under-declare the acreages and value of land, but also paid a paltry Sh294 per acre instead of Sh40,000 agricultural rates according to the law.
A panel of four chaired by former Commissioner Samuel Tororei further ruled that multinationals should lease land from the counties at commercial rates and expired leases should only be renewed with host counties’ consent.
With the valuation of tea estates having been done over 25 years ago, the companies have continued to pay a negligible amount for such a prime agricultural zone.
The UN council says: “We welcome the 2019 decision and recommendations adopted by NLC in Kenya in connection to the confiscation of land belonging to the Kipsigis and Talai peoples. However, we express concern at the apparent insufficient implementation addressed to the Kenyan Government.”
In tandem with the NLC ruling, land leases of the affected firms should not be renewed without the concurrence of the respective county governments.
However, the UN council says there was need for the government to investigate the full extent of the violations that did not fit in the scope of NLC, adding that even though some reparations could and should be done by the colonising power, the successor state must guarantee some form of reparation for the harm suffered.
The trouble began in 1895 when the United Kingdom proclaimed a protectorate in East Africa, which was administered by the colonial office in London while the Governor General sat with an Executive council in Kenya.
In 1902, through the Crown Lands Ordinance, 90,000 acres of land in Londiani, Kericho County was confiscated and subsequently given to foreign settlers. The Kipsigis who lived in the area were forcibly evicted without compensation and relocated to create “reserves” in Belgut, Bureti and Sotik where families were kept as slaves with restricted movements.
The impunity to grab more pieces was created through the Crown Land Ordinance 1902, 1907, 1915 and 1919 legislations which took the title to land away.
The global agency had last month written a similar letter to the British Government expressing concern over their inaction on the same matter.
In a detailed letter, they said the UK, like Pontius Pilate, had cleaned their hands off the mess they created and transferred the liability to independent Kenya.
Furthermore, they created an immunity by setting a timeline for launching cases touching on land and also bodily harm, making the case “virtually impossible”
“The Kipsigis and Talai people have tried to pursue their claims in Kenyan jurisdiction but the limited scope for ordinary legal proceedings on the matter has made it challenging, particularly due to the existence of limitation periods, the state immunity and the immunity of the UK to newly independent Kenyan jurisdiction; and the transfer of liability from the UK to newly independent Kenya pursuant to section 26 of the Constitution of Kenya (Amendment) Act 1964,” reads the statement.