Of all the problems associated with matatus — Kenya’s most accessible means of public transport — their obnoxious behaviour on the road annoys the public most.

It is little wonder that when the Kenyan government announced a plan to phase out the 14-seater matatu to pave way for the buses, there was little in the way of hue and cry from the public.

The tussle over the planned phase-out, with the government set on reducing traffic congestion in the ever growing capital Nairobi, and the owners and operators of the 14-seater vehicles crying foul over loss of income finally saw the government back down for further consultations and study of a matter that has yet to reach a final resolution. 

The communal sigh breathed by the public had more to do with relief over the averted inconvenience of a matatu strike than any deep sympathy for the matatu owners and operators.

Matatus are obnoxious! A statement more difficult to argue with is hard to find. If you are an unwitting passenger, their staff are often impolite, trick you into boarding by filling the vehicle with non-travellers who exit one by one once you have been lured in, and hike the fare without notice when it rains.

An unfortunate fellow road user? They jump lanes, making a bad traffic jam horrendous, and turn the pavement into an extension of the road, sending pedestrians and cyclists scrambling for their lives.

So why should Kenyans care about the 14-seater matatu phase-out? The fewer of these menaces there are on the roads, the better, right? The answer is perhaps more complicated than that, yet it is one that ought to greatly concern many Kenyans, for it is an issue that touches on our personal liberty and the country’s economic development.

It is a question of regulation by the government of private property, and at what point it becomes over-regulation. Kenya’s Constitution protects the right to property under the Bill of Rights, which protects the citizens’ fundamental rights and freedoms. Property rights are human rights.

Fundamental rights and freedoms belong to all citizens simply because they are human beings — they are not granted by the government. In fact, it is the state’s duty to “observe, respect, protect, promote and fulfil the rights and fundamental freedoms in the Bill of Rights.”

The Constitution grants all citizens the right to acquire and own any kind of property in any part of Kenya and bars the government from depriving them of that property “or of any interest in, or right over, property of any description,” unless the deprivation is in the public interest and just compensation is paid.

Not just land

Land has been the focus, as far as ownership of property in Kenya goes, from before Independence. Land was the impetus for the fight for independence, and has been at the root of tribal clashes that have rocked the country since.

Against that background, an outright taking of personal land by the government would be clearly frowned upon by most Kenyans.
Should the government deny a landowner the right to use land profitably, our reaction would be no less indignant.

A simple analogy is illustrative. Suppose the government were to declare today that landowners in Mwea may no longer grow rice, and suppose for the purpose of this illustration that rice was the only viable crop in that region.

Farmers who have invested in agricultural land in Mwea would now find themselves stuck with property that was completely useless to them and that, for all intents and purposes, may as well be literally taken from them.

But land, important as it is, is not the only property of value and worthy of protection.

Indeed, the vast majority of Kenyans own little or no land. According to the National Land Policy, only 20 per cent of Kenya’s land area can be classified as medium to high potential agricultural land, and the rest is mainly arid or semi-arid.

Approximately 75 per cent of the country’s population lives within the medium to high potential agricultural areas while the rest of the population lives in the vast Arid and Semi-Arid Lands (ASALs).

More dire is the fact that, according to the Kenya Land Alliance, more than a half of the arable land in the country is in the hands of only 20 per cent of the 30 million people of Kenya.

The reality is that up to 13 per cent of the population is absolutely landless, while another 67 per cent on average own less than an acre per person. Various reports indicate that up to 75 per cent of Kenyans make their living from farming, producing both for local consumption and for export.

One need not be an economist to conclude that continued reliance on land by the majority is not sustainable, at least not if prosperity is a goal we hope to achieve.  

As Kenya moves from an agrarian society, one in which the primary means of subsistence is the cultivation of crops,  towards becoming an industrialised country, it is crucial that we begin now to assign the same degree of protection to all types of private property that is currently accorded to land ownership.

Many Kenyans own some kind of property. Pastoralist communities will affirm that livestock is their most prized property. Houses and apartments, transport vehicles, securities, and intellectual property such as copyright, patents and trademarks are all of great value to their owners, just as much as land is to those who own it, and every bit as worthy of protection.

Regulatory taking refers to a situation in which a government regulates a property to such a degree that the regulation effectively amounts to an exercise of the government’s power to take private property for public benefit, but without actually taking away the title to the property.

It is like allowing a mine-owner to keep the mine but denying them the right to extract any minerals from it.

For example, the US Supreme Court first recognised regulatory takings in 1922 in Pennsylvania Coal Co. v. Mahon, when a government regulation denied a coal mining company the right to mine coal that it owned beneath residential homes.

The Fifth Amendment to the US constitution states that “no person shall be... deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.”  The Court reasoned that “if regulation goes too far it will be recognised as a taking” and compensation must follow.

In 2010, Kenya’s Transport Ministry announced plans to replace 14-seater matatus with buses and mini-buses with between 26 and 42 seats.

The process started in January 2011 with the freezing of new licences for 14-seater vehicles. So far, 14-seater matatus that were in operation before the new law have had their operating licenses renewed.

Public transport vehicles, despite being privately owned, are subject to a higher level of government regulation because public safety is at stake.

Few would argue that they should not be stringently regulated to ensure the life and safety of Kenyans. Indeed, the late John Michuki, when he was the transport minister, became famous for his stringent and successful regulation of matatus that brought order to Kenyan roads — the Michuki rules.

But where is the line drawn between regulation and outright taking of these vehicles by denying their owners all economic benefit?  Does the phase-out of 14-seater matatus cross that line?

Statistics from the Ministry of Transport indicate that there are 22,000 14-seater matatus in public transport service in Kenya. The vehicles have been purchased by their owners for a very specific purpose — the public transport business.

Those who bought their vehicles before 2010 had every expectation that they would be able to use them for the intended purpose.

The government has asserted a public benefit to phasing out these vehicles — to reduce traffic congestion. The phase-out has not yet reached the point of a taking because operating licenses are still being renewed throughout the country.

Should this change, then the issue of the taking of private property through regulation will arise.

Whether such a taking would deny 14-seater matatu owners all reasonable economic use depends on the possibility of the 22,000 vehicles being converted to another economically viable use. The government has yet to cross that line though, but it is a line to be carefully watched.

Because where there is a government taking of private property for a legitimate public purpose, there must be compensation. The two go hand in hand. A strong system of property rights is one of the most fundamental requirements of a capitalist economic system.

Property rights

Obviously, the merits and demerits of capitalism are debatable, but having decided on that particular system, our options are to play by the rules and succeed at it, change to another system, or fail.

A weak system of property rights will almost definitely erode our creativity and industriousness and see the country to an economic halt, for few will wake up early each morning to work hard if they are not assured that they will be able to retain the fruits of their labour.

What right-thinking investor, local or foreign, will invest in private enterprise when there is no assurance that their right of ownership is protected? 

At stake too is our right to security. Protection of property rights allows for competition for resources by peaceful means rather than competition by violence, and therefore makes for a more secure society.

The Constitution of Kenya guarantees freedom to own and use private property. If there comes a time when the owners of 22,000 matatus are denied the right to get an economic benefit out of their investment without just compensation, the question of the private property rights for all Kenyans will be at stake.

As the government consults and researches on the matatu phase-out issue, it must do so with this in mind: a final resolution of the matatu issue will make a far more crucial statement than what is being  currently discussed — the unsupportable loss of jobs in an economy that cannot sustain it, the impact on traffic jams, the modernisation of the transport system.

It will be a statement to investors on whether to invest in Kenya or not, it will be a statement to upcoming generations of Kenyans on whether it is worth bothering to be productive or not.