Pambazuka News

Land-related conflicts in Kenya: policy and legal implications

Odenda Lumumba

2005-03-07, Issue 201

http://pambazuka.org/en/category/comment/27620


Zimbabwe is not the only country in Africa where the issue of land is of crucial importance. Across Africa, conflicts over land have been at the heart of centuries-old political struggles. In Kenya, resistance against colonial rule was crystallised through struggles over land, writes Odenda Lumumba. The Giriama, the Maasai, the Kikuyu, the Nandi and the Luhya and Pokot reacted violently to colonial land dispossessions and the struggle over land continues to this day.


The manner in which individuals or groups in Kenya hold, use, occupy, possess or have access to land since colonial rule to the present is a history of how land lies at the heart of many potential and violent conflicts. This assertion is based on the fact that the word conflict as used in this paper is very fluid: referring to debate, contest, disagreement, argument, dispute or quarrel; a struggle, battle or confrontation; a state of unrest, turmoil or chaos over land. Going by this definition I submit that land related conflicts in Kenya are a common, everyday occurrence. Indeed, land-related conflicts in Kenya stem from colonialism, which not only imposed alien land tenure relations in Kenya, but also introduced conceptual, legal and sociological confusion in the traditional tenure systems then prevailing in traditional Kenyan society before the advent of colonialism.

The colonial regime in Kenya proceeded from a land-related conflict assumption that customary land tenure systems were inimical to modern imperatives of agricultural development or indeed to the then colonial settler economy. Henceforth, colonialism embarked on three events i.e. expropriation of land through a process of alienating large tracts of land and dispossessing indigenous people of their land, imposition of English common property law and transformation of customary land law and tenure. These three processes are the beginning of the land-related conflicts that Kenya has experienced to date.

Precisely, the land-related conflicts became prominent when Kenyans of African origin were crammed into native reserves from 1926 and were exacerbated when the process of individualization of tenure in the reserves in the mid-1950s started with a deliberate aim to completely transform African communal tenure relations into individualized land holdings. When the colonial regime realized that individualization alone could not solve the land-related conflicts, it enacted the Registered Lands Act, whose purpose was to provide the legal framework for the extinction of claims to individualized land based on African customary land law. The land-related conflicts in Kenya continue to be pronounced because both the economic and legal frameworks upon which the relegation or intended extinction of customary land rights was based have failed the test of time. Land relations in many parts of the country are still actualized on the basis of customary law, even where such land is registered under Registered Land Act. Communal tenure systems are still very much part and parcel of the social and economic fabric between and within ethnic societies in Kenya.

Thus, the land-related conflicts are prevalent due to the fact that the instrumentality of English/Common law has failed to socially engineer an irreversible movement from communal tenure to individual tenure. Neither has the jurisprudence developed by the courts of law succeeded in extinguishing customary land rights. The bottom line, therefore, is that land-related conflicts in Kenya are a persistent issue that must be comprehensively addressed by the ongoing National Land Policy Formulation Process. For there are many problematic aspects to it that require clear discussion from a policy point of view. The land policy will, however need to address practical aspects of the nature and effects of land-related conflicts as opposed to purely theoretical or academic perspectives.

The land policy shall have to clarify the many legal questions that have gone begging in this regard. And in so doing the wide structural inequities between the 'land-haves' and the 'land-have-nots' as a major cause of land-related conflicts shall have to be addressed. This aspect is paramount as long as agriculture remains Kenya's economic mainstay. Especially remembering that, of the total land area of 587,900 square kilometres that comprise Kenya's landmass, 17.2 per cent is of high and medium potential while the remaining over 80 per cent is arid and semi-arid.

Land and conflict: actors and processes involved

The land developments discussed above were to have far-reaching implications for the African natives in Kenya. Land being at the centre of Africans' survival and a major force of production to white colonial settler economy, it sparked off sharp social, economic and political inequalities, which in turn led to numerous land-related conflicts, of which the Mau Mau independence struggle was the main one.

Many Kenyan communities starting with the Giriama at the Coast, the Maasai in the sprawling savanna land of Kenya, the Kikuyu in the Central highlands, the Nandi in the Nandi escarpment and the Luhya and Pokot in the western highlands reacted violently to the colonial land dispossessions. Underlying alienation of land was a policy of exploitation and oppression against the colonized communities who were 'herded' in reserves to create room for intensification of agriculture by the settlers using forced native labour. These policies generated land-related conflicts that have an indelible mark on the future of Kenya.

The result of 'herding' African communities in the reserves was massive landlessness, especially in those parts of the country that were in settler agricultural and other allied economic activities. Landlessness, quite understandably, led to poverty, discontent and eventually open land-related conflict. That is how organized political dissent by Africans against whites and white rule started to loom. The essence of this dissension was the deterioration of life due to mounting land pressure, overstocking and soil degradation in the reserves, which spurred the whole country into the liberation struggle (the land and freedom struggle).

At independence, the government was faced with the land-related conflict of how to settle the landless and displaced people. Obviously, people wanted the land for which they fought; yet the government was faced with the need to sustain the economic development then, which was a predominantly settler economy. The conflict situation was exacerbated by the fact that the government did not abrogate the colonial legacy but instead retained policies and laws inherited from the colonial regime with regard to land ownership and use. The land settlement schemes further generated land related conflicts in Kenya because most communities did not get back their land, given that in granting independence, the British government made sure that the rights and interests of the settlers who opted to stay in Kenya were safeguarded.

Secondly, even the lands that were availed for redistribution to the landless Africans were at the market place under the policy of "willing buyer, willing seller." This arrangement only aggravated land-related conflicts because those communities who lost their land under the then communal/customary tenure further witnessed their customary land at independence being individualized to those who could afford it at the market place. This was a further entrenchment of land-related conflicts which forty years after independence still manifest in the form of land clashes of 1990s and the current simmering land-related conflicts in form of historical land claims throughout the country.

Resettling the landless through settlement schemes or process has further generated land-related conflicts because since the 1970s the government reverted to a system of Settlement Fund Trustees, which due to corruption and mismanagement has generated further conflicts in settlement schemes where the squatter problem has been used to settle the politically correct individuals leaving squatters conflicting over the very lands that was meant for their settlement. Since the settlement schemes were not sufficiently addressing the landless problem the government encouraged purchase of land through the land-buying companies and farming cooperatives by the landless pooling resources together. The land-buying companies and farming cooperatives have increasingly contributed to land-related conflicts because they have been badly abused by politicians as a means of swindling land-hungry peasants. This process was supposed to facilitate the subdivision of the purchased land among the members in accordance with their respective shares. But more often than not the contributors towards the intended purchase have been cheated out of their money, hence massive land-related conflicts. The government intervention to cause subdivision of land among members and the issuance of title deeds has dragged on, leading to further land conflicts.

The land-related conflicts have involved all manner of actors at different times, at around independence and immediately after independence in the 1960s the land issues activated the ethno-regional conflicts that saw the polarization of politics between Kenya African National Union (KANU) and Kenya African Democratic Union (KADU) and later Kenya Peoples Union (KPU). These land-related conflicts reemerged in the early 1990s as Kenyans pushed for multi-partyism and continue to simmer during the constitutional debate. Indeed land-related conflicts and the stalemate over concluding the constitutional review process is a conspicuous feature of the country's failure to address the land question, which lingers on in the executive and devolution provisions in the new draft constitution.

The other important link to land-related conflicts is the mortgage institution and how it relates to rights of access to land. In Kenya individualization of land was and is meant to enable the registered proprietor to offer his title to a financial institution in return for credit. Thus, lenders stretching from banks, finance houses, and building societies have been forced into land-related conflicts with defaulters in the effort of realizing their security upon default. The rural people are engaged in protracted land related conflicts with financial institutions resisting being disinherited because they argue that the policy of the mortgage institutions was ill-conceived from the very outset in that the peasants whose land was offered as security did not have any entrepreneurial skills or experience in credit management to guarantee the possibility of the mortgage institution realizing their security upon default. So serious is the land-related conflicts out of the land mortgages that the state has been forced to intervene to stem the obvious effects on social order, but up to now the state legislative and administrative actions have failed to resolve the problem.

The other land-related conflicts in Kenya manifest themselves through what is commonly known as the human-wildlife conflicts. Kenya adopted an ambitious wildlife management and conservation arrangement through gazettement of large tracts of community lands as national parks, national game reserves and conservancy sanctuaries. In the process. communities are excluded from such lands, which are managed as public trust lands under the Kenya Wildlife Service (KWS). But given that most of these lands have eaten into grazing rangelands of pastoralist communities and agricultural lands of crop agricultural communities, permanent and potential land related conflicts occur between communities contingent to wildlife areas and the KWS as an agent and directly between human beings and wildlife. The use of ecologically sensitive areas such as forests and riparian reserves is emerging as another major cause of land-related conflicts between conservationists and beneficiaries of illegal and irregular allocation of such lands for political patronage.

The other land-related conflicts arise and concern the extraction and mining of mineral resources in varied areas of the country the major ones being experienced are from the coast - the salt mining, titanium mining, ruby mining and further inland the gold mining, sapphire mining, fluorspar mining, and limestone mining up in the hinterland. The conflicts are mainly because the government has excluded legislatively mineral resources from land rights of communities contingent to mining areas. This deplorable scenario does not answer the concerns of sharing of benefits from mining and mineral resources.

Away from natural resource utilization and benefit sharing land-related conflicts there are also numerous land-related conflicts arising from land dispute resolution mechanisms. In Kenya our courts are clogged by land conflict related cases, which have held back development endeavours. Land Dispute Tribunals are also clogged up with land-related conflicts, which are waiting arbitration.

The latest land-related conflicts arise from the Presidential Commission of Inquiry into Illegal and Irregular Allocation of Public Land ('Ndung'u Commission'). The commission in question was set up to inquire into corruption surrounding public land dealings from I962 as a cut-off date selected by the Commission up to December 31, 2002 when the appointing NARC government came to power. The Commission, which took nine months to investigate into the scams, inquired into protected lands for environmental, conservancy and security reasons i.e. covering forestlands, national parks, national game reserves, sanctuaries, wetlands, marine parks, protect security lands for police, prison, military and state houses and lodges; public lands for settlement schemes; public lands in townships, municipalities and cities; and public lands held and set aside for use and carrying out the mandates of State Statutory Bodies (Parastatals) ranging from provision of all manner of infrastructure, research and development public purposes. The land-related conflicts arising from the exercise of this Commission are first and foremost the government's belated release of the Commission report under suspicion of an effort to doctor the report.

In a nutshell the actors in the land-related conflicts in Kenya are the public sector, private sector, civil society and the community sector. Thus in a number of highlighted land-related conflicts all interface as victims and perpetrators. In terms of processes they range from legal, policy and institutional frameworks put in place for economic, political and social development, which appear to have failed the test of time.

The conclusion flowing from this discussion of land and conflicts in Kenya are that:
- The land tenure regimes inherited from colonial rule are still a major source of land-related conflicts which need to be revisited in order to address cases of historical injustices that manifest themselves in the form of squatters, absentee landlordism, land clashes and all manner of lingering land claims.
- Building capitalism on the basis of disputed land rights in Kenya is a major drawback because while we have succeeded in integrating 10% of Kenya economic and political elites into western type of ownership of property we have failed to address the plight of the majority Kenyans who live below poverty in an assumed pool of labour, both actual and reserve labour. The Kenyan example of going through land conflicts occasioned by individualization of land ownership is a pointer to other African countries that individualization of tenure per se does not produce miracles to development and eradication of poverty. So much reflection is required to overcome this quandary of spurring economic growth and development.
- Vesting land rights through the law does not resolve land-related conflicts or historical injustices and obstacles to development simply because the law is in place to protect what was unfairly and illegally taken away from Africans by colonialists and even fellow Africans at independence.
- Customary land rights cannot be transformed into individual land rights successfully by simple adjudication of land rights as a legal and political process without appraisal of ecological and traditional land use system in varied areas of the country.
- New land dispute resolution mechanisms need to be thought-out to address too many land disputes to ameliorate future land-related conflicts, without resorting to multiplicity of land law systems that are in themselves an obstacle to development.

* Odenda Lumumba is National Co-ordinator for the Kenya Land Alliance (KLA)

* This is an extract from a paper 'Land-related conflicts in Kenya: policy and legal implications', presented at a conference in December 2004. The African Centre for Technology Studies (ACTS) has just released proceedings of the conference on "Land Tenure & Conflict in Africa: Prevention, Mitigation, and Reconstruction", held in December 2004 which is available on the web at http://www.acts.or.ke/Eco-Project.htm It includes papers on Burundi, Democratic Republic of Congo, Kenya, Rwanda, Somalia, Sudan, and Zimbabwe, as well as overview papers on customary land tenure, Oxfam GB's work on land rights in Africa, human security-centred approaches, and the work of UN-Habitat and UNEP.