In Kenya, Land Reform Worries Both Rich and Poor

At first glance, the two scenes on either side of the frenetic Nairobi roundabout couldn't have seemed more different. To the west, diplomats, businessmen in bespoke suits, political operatives and sons and daughters of Kenya's colonial classes filed into the parquet-floored ballroom of the Muthaiga Country Club for a members-only meeting. Meanwhile, a short walk east, in the slum of Mathare, Agnes Muthoni, 55, was arranging scraps of cardboard, foam and polythene in the charred, garbage-strewn plot where her home of 40 years had stood until Aug. 8.

But both Muthoni and the members of the Muthaiga club were grappling with the same agenda: how to hold onto their land. A new constitution passed by national referendum last month has provisions to alleviate Kenya's perennial problem of land reform. But neither impoverished Kenyans like Muthoni nor the elite of the club trust the country's leaders with implementing the new law fairly. Indeed, land is one of the most contentious issues in Kenya. Land grievances were at the root of violence that followed flawed elections in 2007, when hundreds of thousands of ethnic minorities were driven off lands that local communities believe had been given to them illegally in decades past. And now, instead of defusing tension ahead of elections in 2012, Kenyans fear that the ambiguities about land in the new constitution may only make things worse.

Many of Muthaiga's members had publicly supported Kenya's new constitution. Now they are seeking to protect their "oasis in Nairobi," with its golf course and regular afternoon teas, from changes laid out by that document. Many fear the new charter could strip them of the land on which the club was built. The new constitution prevents foreigners from owning land — and while a ban on black guests vanished with independence from Britain in 1963, the membership of the club is overwhelmingly white and from elsewhere. The new constitution terminates their current ownership of the property and gives them a 99-year lease instead.

In the Mathare slum, Muthoni's land problem is much more primal — and violent. Someone wants to grab it. On the evening of Aug. 8, four days after the vote on the new constitution, a man rapped at the door of her tin shanty. "The man told my daughter, 'Why don't you tell your mother to move out?'" Muthoni tells TIME. She refused. She'd slept in the spot for some 40 years. Early the next morning, she woke to the sound of running feet. A light flashed through an opening in the roof. Then came an explosion. Flames licked at Muthoni's bed. She escaped. At dawn, a dozen or so families dug back into the rubble. Muthoni unearthed the charred remains of her life's savings of a little more than a hundred dollars, reduced to an unrecognizable wad of bills bound by an elastic band. A neighbor found the body of Muthoni's 3-year-old child among the ashes.

Muthoni and her neighbors believe a local man burned down their houses to lay claim to the land under the new constitution. In the past, the man had claimed that they were living on land that his father owned before independence, though he had no proof.

For decades, ownership in places like Mathare was a free-for-all. "It still looked like the bush when I came," Wambui Theuri, a resident, tells TIME. "At independence, more people started flocking in and nobody was asking who owns this land. You just clear the grass and you move in." Though the new constitution promises tenure or compensation to squatters like Muthoni, the nature of such compensation is vague.

Some experts have hailed the charter as a revolutionary overhaul. However, others say the new constitution is ambiguous about what will happen to the land. People across the class spectrum fear that their country's corrupt politicians will use the constitution's changes to grab land as they have done for years. "It is inevitable that the administration of land will be every bit as corrupt as it always has been," Michael Aronson, a Muthaiga club member and onetime vice chairman of a Kenyan commission that filed a damning report on political land-grabbing in 2004, tells TIME. "How can you possibly trust the Ministry of Lands when they're so busy grabbing land?"

In what that commission described as "unbridled plunder," the report accused Kenya's past presidents and numerous government officials of distributing public land — land that they had no power to give away — to select people, often for political reasons, and usually ignoring legal procedure. Sometimes, officials gave away land without presidential approval, and a great deal of evidence documenting such cases was destroyed. The Kenyan government's response at the time was to ignore the report entirely, and few investigations that resulted from it have brought about any change. However, the current Minister of Lands, James Orengo, has vowed to clean up the system and stop illegal land-grabbing.

"A great deal is left to future legislation," Yash Ghai, a legal scholar and former adviser to the Kenyan constitutional review, tells TIME. "I think it depends on the kind of leadership we have, and on that point I have absolutely no reason to believe that change will take place."

In the meantime, the Muthaiga Country Club may have come up with a solution. Several members tell TIME that the club voted 500 to 30 to create a holding company of members who are Kenyan citizens, which will lease the land back to the club. "Our Club is approaching its centenary with every intention of achieving a good many more centuries," said a private note to Muthaiga members obtained by TIME. "While a lease may be acceptable for the lives of all our current Members, it will not provide the certainty that is desirable for our grandchildren and their sons and daughters."

In Mathare, however, Muthoni can only seethe — and vow to stand her ground. These days she sleeps rough beneath dirty plastic sheeting and cardboard scraps on the charred spot where her room used to be. "I sleep here," she says, glaring up the hill to the building where the man she believes destroyed her home lives. "People build at night in Mathare. I am here to safeguard the land."