We are going to address the land question as mentioned in the Draft Constitution.
We welcome Guest writer Mwarang'ethe who will elucidate on what other eminent thinkers have said on this subject. We welcome comments and suggestions. In a later post we will bring to your attention to places where the Land Value Taxation system has worked or is working.
LAND IS AN INALIENABLE BIRTHRIGHT Having examined CHAPTER SEVEN of the Draft Constitution entitled LAND AND PROPERTY, we have come to the conclusion that, although on appearance it looks a better deal than the current one, this Draft Constitution dwells on EQUALIZATION OF FORTUNE and entrenchment of MONOPOLIZATION OF LAND by a few. We believe that, this policy falls short of the objective of a well designed agrarian reform which is the EQUALIZATION OF RIGHTS of all citizens.
To ensure equalization of rights as opposed to chaos of equalization of fortune and continued monopolization of land, we propose the inclusion of the following maxims in the Draft Constitution:
(a) Acknowledging that, the Almighty and Eternal God, having created men free and equal in respect of their rights and having given the earth in common to all men, every Kenyan has a birthright that is original, inalienable and indefeasible by any act or determination of others to an EQUAL share of the property in the land/natural resources in its original state. This is a maxim of natural law.
(b) It is also a maxim of natural law, that everyone, by whose labour any portion of the soil has been rendered more fertile, has the right to the additional produce of that fertility, or to the value of it and may transmit this right freely to other men.
(c) LAND/NATURAL RESOURCES VALUE TAX (including landing slots, airwaves etc), POLLUTION and WASTE shall be the main source of revenue for running the affairs of the Kenyan state. There shall be no taxation of INCOME, CAPITAL & EXPENDITURE etc until the
WHOLE land value, pollution and waste tax has been collected and utilised productively.
Brief Explanation for these maxims
Having started well on the s.79, the Committee went adrift and ended up with a land law that is ambiguous and will cause unnecessary economic and political tension. Our considered view is that, you have ended here for you and the whole nation has been and is still labouring under a false and a very dangerous doctrine that, land/natural resources can be called a man's property.
If this Harmonised Draft was the product of the man in the street, the incorporation of private property in land in the Constitution in s. 81 would be understandable. Since you are lawyers, who are supposed to be learned, ingenious and friends of mankind, you have no liberty to find this inquiry useless or troublesome as common men would do. You must therefore, summon courage and perhaps a bit of divine wisdom to examine this absurd and pernicious right to absolute ownership of land.
However, one must appreciate the fact that due to the conditioning we receive as we grow up and in our so called law schools, it is not easy to see through this false and dangerous doctrine of absolute title in land that our law professors
have propagandised to their law students for centuries. In the words of Smith,1 while discussing the subtle monopolization of land, he notes that:
“If I were to avoid saying anything threatening to the reader I would leave out this chapter, but the subtle monopolization of social wealth started here. The powerful structured their superior rights into ownership of land hundreds of years ago. These excessive rights are now ingrained in law and custom.”
Smith, further explaining the injustice of one person having unrestricted ownership of another’s living space on this earth, says that:
“This practice is only customary; it is part of the social conditioning that we all receive while growing up. Being thoroughly conditioned, and having never experienced or imagined anything else, few ever realize that under the current structure of land ownership they may not have all their rights. Instead, the possibility of eventually owning one’s piece of land is viewed as evidence of full rights. Being conscious of the not –so-distant past when common people did not have even this privilege, citizen’s view and celebrate these limited rights as full rights.”2
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1 J. W. Smith, Ph.D, The World’s Wasted Wealth 2 – Save Our Wealth, Save Our Environment. Cambria, California: The Institute For Economic Democracy, 1994 at 339.
2 J.W. Smith, The world’s Wasted Wealth 2 (n 2) at 339 – 340.
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Thus, by succumbing to this false but widespread doctrine of private land or property in land, you have engrained in our fundamental law as the powerful did centuries ago, the most dangerous monopoly every witnessed in human history. You have therefore, failed to heed the immortal words uttered by Jean Jacques Rousseau in his “A Discourse on the Origin of Inequality,” that:“The first man who, having enclosed a piece of ground, bethought himself as saying “this is mine,” and found people simple enough to believe him, was the real founder of civil society. From how many crimes, wars, and murders, from how many horrors and misfortunes might not any one have saved mankind, by pulling up the stakes, or filling up the ditch, and crying to his fellows: “Beware of listening to this impostor; you are undone if you once forget that the fruits of the earth belong to us all, and the earth itself to nobody.”3
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3 J.J. Rousseau, The Social Contract and Discourses by Jean – Jacques Rousseau, translated with an Introduction by G.D.H. Cole.
This book is available at libertyfund.org
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This dangerous monopoly you seek to entrench was described by an eminent Scottish philosopher who was a contemporary of Adam Smith, but whose work was “suppressed” in these words:
"All these untoward circumstances which take place ... may be traced up, as to THEIR CAUSE, to that EXCLUSIVE RIGHT to the IMPROVABLE value of soil which a few men, never in any country exceeding one hundredth part of the community, are permitted to engross - a most oppressive privilege, by the operation of which the HAPPINESS of mankind has been for ages more invaded and restrained, than by all the tyranny of kings, the imposture of priests, and the CHICANE OF LAWYERS taken together, though these are supposed to be the greatest evils that afflict the societies of human kind.
The silent but pervading energy of this oppression comes home to the bosoms and to the firesides of the LOWEST ORDERS OF MEN, who are thereby rendered MEAN - SPIRITED and SERVILE. It begets in them also, for their own defence, so much CUNNING, FRAUD, HYPOCRISY and MALIGNANT ENVY towards those who enjoy affluence, that by its wide and continual operation the virtue of mankind is MORE CORRUPTED, and their minds mode debased..."4
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4 W. Ogilvie, Birthright in Land. London: Kegan Paul, Trench, Trubner & Co., Ltd, 1891 at 27. Words in capital letters are inserted by the present author to emphasize.
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Having noted the above, we can now state that all right of property is founded either on general right of occupancy or common occupancy and labour as discussed below.
In the Book of Genesis 1: 26, the Almighty Creator, tell us that having made man in His image, He said, “... and let them have dominion over the fish of the sea, and over the birds of the air, and over the cattle, and over all the earth, and over every creeping thing that creeps upon the earth.” There can never be any other basis for man’s dominion over the earth. Given this, it follows and must follow that the earth and all therein, are the general property of all mankind as a gift from their Creator. Thus, with the Almighty God having given the earth and all therein to mankind in common occupancy, each person born into this earth by nature has a title to an equal share of property in land.
The other method of acquiring title to land is through labour. It is through labour that the man, who owns more than his equal share of the land in his country of birth, has acquired the same. It is through his labour i.e. through purchase or the labor of those he might have succeeded, that he has acquired title to more than his share of land. However, such a right founded on labor cannot supersede the natural right of occupancy of other men in the original share of land.5
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5 W. Ogilvie, Birthright in Land (n 6) at 11.
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From the above, we are forced to admit that, since no man expended any labor in creating the earth, it is not possible for any man to call land his private
property. What a man can call his own private property is only which he has produced with his LABOR. Thus, since no man produced the land/earth, it is self evident that, it belongs to all men in common and therefore, is an inalienable, indefeasible birthright to all at all times.
The object of all political associations is the preservation of the natural and imprescriptible rights of man. Since right to land is one of these natural rights of man,6
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6 Other natural rights of man are: the right to life, liberty, security and the right to resist oppression.
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it cannot be considered heresy to declare and we beseech and pray to you and to the Kenyan people, to have the following maxim declared in the Constitution that:
Acknowledging that, the Almighty and Eternal God, having created men free and equal in respect of their rights and having given the earth in common to all men, every Kenyan has a birthright that is original, inalienable and indefeasible by any act or determination of others to an EQUAL share of the property in the land/natural resources in its original state. This is a maxim of natural law.
Having made the above observation, we are also aware that it is declared in the Genesis 3: 19 by the Creator that, “In the sweat of your face you shall eat.” By this we understand it to mean that, what man has produced by his labour, it is his property and the objective of any political association must be to protect man’s property. Arising from this observation, if man has expended his labour, or those he has succeeded have expended any labour to improve the soil, then, that improvement and or the value thereof, is his property and he may freely transmit to other men. In other words, cultivation and improvement of land can only give title only to their results, not to the land itself. Flowing from this, we urge you and the Kenyan people to see it fit to be declared in the new Constitution that:
It is also a maxim of natural law, that everyone, by whose labour any portion of the soil has been rendered more fertile, has the right to the additional produce of that fertility, or to the value of it and may transmit this right freely to other men.7
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7 W. Ogilvie, Birthright in Land (n 6) at 12.
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From the above two declarations, it is obvious that, by declaring that all men are equally entitled to the use of land does not involve in any way socialism or communism and we need not tamper so much with the existing arrangements as the draft proposes. Also, it is not necessary that the state manages the land. To engage in these activities as the draft declares is to engage in equalization of fortune. This type agrarian reform did not work with Tiberius Gracchus of the Roman Empire and has not worked in Zimbabwe and is fatally failing with dreadful consequences in South Africa that we shall witness in the fullness of time.
Instead of equalization of fortune, which is a dangerous route, all we need instead is an arrangement whereby all the land rent that has been going into the pockets of the few, is taken via taxation to fund the common purposes. To do so, we must deny and utterly reject the vicious idea of “divine absolute land titles” and replace them with conditional form of private ownership of land. This will ensure security of possession and thereby retain use rights and ownership of land for homes, businesses and production will be both easier and cheaper.
This is so because, in the words of Ogilvie, on the first maxim (men have equal right to land) depend the FREEDOM and PROSPERITY of the common people and on the second maxim (man has right to property in the improvements of land) depend the perfection of the art of agriculture, improvement of the common stock and the wealth of the community.8
Since not every Kenyan will be able to acquire an equal physical piece of land, in terms of what this draft proposes, we would not have attained freedom, equality and prosperity of the common people. More so, nor could an equitable division of land with the consent of all, even if it were not impossible that such a division could be made, give valid title to private property in land. This is so because, the equal right to the use of land would attach to all those thereafter born, irrespective of any agreement made by their predecessors.
However, reconciling these two maxims is not difficult as it seems in a free market economy. The first thing we need to acknowledge is that in a free market economy is that in accordance with Ricardo’s law of rent that all incomes above that is necessary to maintain labour will accrue to the owners of land without the expenditure of their labour.9 Seen this way, if we can adopt Ogilvie’s view10 for explanatory purposes, we can see that land has three prices:
(a) The ORIGINAL value of the soil prior to any improvement.
(b) The IMPROVED value of the soil which is bestowed by the owner and his successors.
(c) The CONTINGENT or the CAPITALISED value of land.11
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8 W. Ogilvie, Birthright in Land (n 6) at 12.
9 F. Harrison, Ricardo’ Law House Prices and the Great Tax Clawback Scam. London: Shepheard – Walwyn (Publishers) Ltd, 2006). See also, F. Harrison, Wheels of Fortune. London: The Institute of Economic Affairs, 2006; F. Harrison, The Power In the Land – Unemployment, the Profits Crisis and the Land Speculator. London: Shepheard – Walwyn (Publishers) Ltd, 1983.
10 W. Ogilvie, Birthright in Land (n 6) at 13.
11 J.W. Smith, The world’s Wasted Wealth 2 (n 2) at 348 He accurately predicted that the massive capitalization of land values would eventually cripple the Japanese economy.
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In accordance with dictates of self evident essential demands of justice and equity, the land owner can only claim the IMPROVED value of the land as his property for he has expended labour on that portion. However, to the ORIGINAL and the CONTINGENT/CAPITALIZED value he has no right. These two values must reside in the community at large. In the words of Smith:
“It is land held in unrestricted private ownership that creates high capitalized land values. True free enterprise requires breaking that monopoly through restricted ownership; society should collect the rent. Distribution of land by capitalized value (price) would then be replaced by distribution of land by rental value paid to the society. ... Thus those who use it for production or distribution will, almost universally, have secure ownership of the land. The land rent would go to the society, the interest to the owners of capital (improvement, livestock, or inventory), and wages to the farmer, businessperson or entrepreneur.”12
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12 J.W. Smith, The world’s Wasted Wealth 2 (n 2) at 348.
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Recalling God’s law that “In the sweat of your face you shall eat,” the refusal to collect this rent violates rules of equity and justice in the eyes of men and God the Almighty for it is robbery by a few against the majority. This is in violation of the law that, thou shall not steal. By refusing to acknowledge this basic Biblical economic truth, we have stifled the development free market economy and thereby delayed an increase in social efficiency equal to the invention of money and printing. Flowing from the above, we believe and it is well documented that, the best way to restore birthright to all Kenyans is to tax ALL land rents and fund common services like defense, police, courts and infrastructure just to name a few. To do so, we urge an enactment of this maxim in the new Constitution:
LAND/NATURAL RESOURCES (including landing slots, airwaves etc) VALUE TAX, POLLUTION and WASTE shall be the main source of revenue for running the affairs of the Kenyan state. There shall be no taxation of INCOME, CAPITAL & EXPENDITURE etc until the WHOLE land value, pollution and waste tax has been collected and utilised productively.
The appropriateness of land rent as the best means of funding the affairs of state is widely acknowledged by the greatest economists and thinkers of all ages. For instance, Adam Smith observed that:
“Land is a fund of a more stable and permanent nature; and the rent of public lands, accordingly, has been the principal source of the public revenue of many a great nation that was much advanced beyond the shepherd state. From the produce or rent of the public lands, the ancient republics of Greece and Italy derived, for a long time, the greater part of that revenue which defrayed the necessary expenses of the commonwealth. The rent of the crown lands constituted for a long time the greater part of the revenue of the ancient sovereigns of Europe.”13
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13 Adam Smith, An Inquiry into the Nature and Causes of the Wealth of Nations by Adam Smith, CHAPTER II: OF THE SOURCES OF THE GENERAL OR PUBLIC REVENUE OF THE SOCIETY. Accessed from libertyfund.org/title/119/212385 on 2009-11-22.
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He further added that: Both ground-rents and the ordinary rent of land are a species of revenue which the owner, in many cases, enjoys without any care or attention of his own. Though a part of this revenue should be taken from him in order to defray the expenses of the state, no discouragement will thereby be given to any sort of industry. The annual produce of the land and labor of the society, the real wealth and revenue of the great body of the people, might be the same after such a tax as before. Ground-rents, and the ordinary rent of land, are, therefore, perhaps, the species of revenue which can best bear to have a peculiar tax imposed upon them.
Ground-rents seem, in this respect, a more proper subject of peculiar taxation than even the ordinary rent of land. The ordinary rent of land is, in many cases, owing partly at least to the attention and good management of the landlord. A very heavy tax might discourage too much this attention and good management. Ground-rents, so far as they exceed the ordinary rent of land, are altogether owing to the good government of the sovereign, which, by protecting the industry either of the whole people, or of the inhabitants of some particular place, enables them to pay so much more than its real value for the ground which they build their houses upon; or to make to its owner so much more than compensation for the loss which he might sustain by this use of it. Nothing can be more reasonable than that a fund which owes its existence to the good government of the state, should be taxed peculiarly, or
should contribute something more than the greater part of other funds, towards the support of that government.”14
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14 A. Smith, an Inquiry into the Nature and Causes of the Wealth of Nations (n 18).
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We find the same sentiments expressed by Alfred Marshall, a great economist who straddled the classical and the post – classical period of economics for he wrote:
“Looking forward rather than backwards, and not concerning ourselves with the equity and the proper limits of the present private property in land, we see that part of the national dividend which goes as earnings of land is a surplus in a sense in which the earnings from other agents are not surplus... there is this difference between land and other agents of production, that from a social point of view land yields a permanent surplus, while perishables made by man do not.”15
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15 A. Marshall, Principles of Economics, 4th edn., 1898. VI. Ch. II, Para.13 as quoted in N. Tideman (ed) Land and Taxation. London: Shepheard – Walwyn (Publishers) Ltd, 1994 at 23.
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Given the limited time and scope of this proposal, it is not possible to deal with all great thinkers who have written on the subject of land and land taxation and the benefit it would bring to humanity if well implemented.
For instance, by collecting rent from its natural resources, in particularly, oil, Alaska was able to give its citizens a dividend of $ 1, 143, 172, 725 in the year 2000 which amounted to an individual dividend of $1963 per person.16
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16 A. Hartzok, “The Alaska Model of Governance – Resource Rents for Public Investment and Citizen Dividends” (Spring 2002), No. 02(1) Geophilos at 60.
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There is no reason why for instance, Angola and Nigeria could not have adopted such a scheme. Instead, they allow foreign companies to book their reserves into their books and thereby, capitalize the same in foreign stock exchanges so as to enrich foreigners, even as their citizens sink into poverty.
Should the Committee of Experts desire to educate itself more on this question, we stand ready to provide materials in our possession. We also stand ready to assist the Committee to get in touch with some of the leading thinkers on the land question that are in a position to design a land policy conducive to equal rights. However, should the Committee and the nation at large ignore this opportunity; it will go down in history as having squandered an historical opportunity to remove the entrenched fiscal folly that characterises the modern state whereby, the annual public value of the land is monopolised or privatised by a few while taxing the majority poor to increase the value of this land. This fiscal folly is in direct violation of the word of God that, “The profit of the earth is for all; the King is served by the field.”17
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17 Ecclesiastes 5: 9. King James Bible. Available at http://kingjbible.com/ecclesiastes/5.htm. (21st November, 2009).
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In this, there no doubt the Bible is referring to the rent thereof, and if we replace word King with state, we can start to see how Solomon made Israel very prosperous having prayed for divine guidance on how to govern.
Furthermore, by taxing the poor to increase the land value to be appropriated by a few is in direct violation of the following maxim:
"They shall build houses, and inhabit them; they shall plant vineyards and eat the fruit of them. They shall not build and another inhabits; they shall not plant and another eats; they shall not labour in vain nor bring forth for trouble."18
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18 Isaiah 65:21.
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To try and hide the fact that the cause of modern poverty is taxation of the majority poor to enrich the few as Prophet Isaiah clearly denounced above, we have come up with the so called welfare state. However, this has not worked and will not work for poverty is institutionalised in the structure of the modern state.
One may ask, is there any evidence of the fact that the poor “plant and another eat” whereby, we tax the poor to enrich the landed interest? Yes, we can give three examples. On 8th October, 2009, the East African Standard reported that: “Thika Road Expansion to Increase Property Value”19
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19 J. Okoth, Thika Road Expansion to Increase Property Value. Available at http://www.standardmedia.co.ke/business/InsidePage.php?id=1144025878&cid=464. (21st November, 2009).
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Here, we see a clear example of land appreciating value not due to expenditure of labour by the owners of the land, but, as a result of infrastructure built by the tax payers. Also, on 5th September, 2009, the E.A. Standard reported that: “Land grabbers threaten economic stimulus plan.”20 Also, on 24th July, 2009, the “Nation” reported that: “Investors scramble for Lamu prime land.”21
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20 M. Aron, Land Grabbers Threaten Economic Stimulus Plan. Available at http://www.standardmedia.co.ke/InsidePage.php?id=1144023200&cid=14&j=&m=&d. (21st November, 2009).
21 M. Mwajefa, Investors scramble for Lamu prime land. Available at http://www.nation.co.ke/News/-/1056/629304/-/ul2en8/-/index.html. (21st November, 2009).
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Here, we see a few foreigners have bought land in anticipation that tax collected from a Turkana who will never perhaps even visit Lamu in his lifetime will be used to fund infrastructure which will raise the value of the land. The question is, will the draft Constitution smash this naked robbery of the poor? Sadly, we venture to say, with bitter disappointment, no.
Thus, it seems to us that, on the one hand in the words of Fred Harrison the outcome of the confused arrangements of this draft will be nothing but a state with divided loyalties. It will proclaim to represent the welfare of all citizens, but, in reality, it will be protecting the rent – seeking interest of the privileged few.22
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22 F. Harrison, Ricardo’ Law House Prices and the Great Tax Clawback Scam (n 12). See also, F. Harrison, Wheels of Fortune (n 12).
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On the other hand, if the Kenyan government tries to repossess already privatized land, it will fail spectacularly as South Africa has failed and in the worst scenario, it will bring chaos as we have seen in Zimbabwe.
Given these unpleasant outcomes, it seem to us that, the only way is to look forward and not backwards as Marshall informed us and collect the land rent or what he called annual public revenue and fund common expenses. By doing this, we would have ensured every Kenyan’s right to earth’s bounty without laying claim to anyone’s equity. Your draft must come out clearly and unambiguously on this proposition. May the God Almighty give you the courage, wisdom and the fortitude necessary to carry out this sacred obligation so as to restore our God given birthright which a few robbers have dared to rob mankind for so long.
