Land in most forms of society, is the most important of natural resources required for the creation of wealth.
According to Njuguna and Baya (2008) , the centrality of land in human life made it the main struggle for Kenyas independence from British colonial rule.
The present legal and institutional frame work of land tenure, land use and the system of acquisition and disposition of land rights which have been in place since the colonial times has brought about strife and tension in land matters.
Land tenure institutions along with related property rights regimes governing natural resources from the foundations of the land system. The system of land used in pre independence Kenya was the communal system of land whereby communities could share land amongst themselves.
When the British settlers moved to Kenya majority of them annexed the fertile parts of Rift Valley highlands and the Central highland in the former Rift Valley and Central provinces of Kenya.
Native Africans who had settled on these lands were forcefully removed and they became squatters on their own land.
Origin of squatting and the legitimization of this mode of living can be traced both to labour laws and land tenure systems in the 1920s and also to the Muslim Tenant at Will with respect to squatting at the coast. The concept that land in Kenya was terra nullins (vacant land), and its citizens tenants at the will of the crown was at the heart of the colonial land tenure system.
Through this concept Africans didnt have any legal ownership rights to the land they customarily owned; instead they had only user rights. Native Trusts Lands Boards were established to manage African affairs in the reserves. The boards established are paternalistic and very top down approach to land administration. Through this study we shall more be concerned with rights of violation in the Coast, Rift Valley and Central provinces which have a history of land injustices.
HISTORICAL CONTENTS OF THE LAND ISSUE IN THE COAST PROVINCE IN THE PERIOD BEFORE 1900
The period leading to the declaration of the Protectorate status of East Africa happened in August 15, 1985. In 1886, the British and German Governments established the Mwambao wa Pwani (ten mile coastal strip) and ceded control over it to the sultanate of Zanzibar.
The assumption was that the sultans subject within the Ten Mile Coastal Strip would retain certain rights to land vested in the Imperial British East Africa Company. This was a private company founded by Cecil Rhodes in 1987 and was given mandate by the British government to administer the East African protectorate.
On the 10 Mile Coastal Strip, the colonial regimes recognized the claim of the Sultan of Zanzibar. Only his subjects mainly those with some ancestral links outside Kenya could register land.
This meant that up to 25% of the indigenous population was turned into landless squatters unable to register the land that they had lived on for generations.
The squatter problem escalated due to rising populations, increased demand for land and the non restriction of land ownership in the country.
PERIOD UPTO 1908
During this period the British authorities in their quest to establish the full extent of land accorded to private ownership led to passage of two ordinances; the Registration of Titles Ordinance and Land Titles Ordinance. .
The symbiotic relationship with passage of the Registration of Title Ordinance was in respect of compulsory acquisition of land while the Land Titles Ordinance was passed in relation to giving the owners title of the land which had been compulsory acquired.
The Land Titles Ordinance provided at Section 17(1) ,all land situated in any district area on phase to which this act has been applied concerning which no claim of ownership has been made shall at the expiry of the period provided (six months) be deemed to be Crown land and all things attached shall be subject to a right of interest evidenced by a certificate of title.
Section 17 (2) provided that every certificate of title dully authorized under the seal and hand of the recorder of titles shall be conclusive evidence against all persons (including government ) of several matters therein contained that the person to whom the certificate is granted is the owner of the coconut trees , houses and buildings of the land.
This ordinance was applied to Malindi, Lamu, and Tana River districts. Only claims lodged before 1922 were accepted by the recorder of titles in a process that took long.
As a result of the passage of these ordinances about 95% of all land within Mwambao was recorded in the name of Arab immigrants, the remaining 5% being declared Crown Land for lack of claim from the local ownership.
LAND FACTOR IN RIFT VALLEY.
Rift Valley Province of Kenya is the biggest province in Kenya .The inhabitants are mostly members of the Kalenjin, Kisii and Maasai communities although there are inhabitants from other provinces notably the Luos, Luhyas and Kikuyu from the neighbouring provinces. In regard to Rift Valley Africans did not have legal ownership right to the land they customarily owned instead they had only user rights.
The Native Lands Trust Boards were established to manage native affairs in the reserves.
Africans were restricted to native reserves which formed the basis of ethnically defined administrative units.
According to Mbithi and Barnes C. (1975) . the creation of reserves by the Europeans stabilized what was a fluid land situation among the African peoples.
In 1904, the Maasai were moved from their preferred grazing grounds in the Central Rift Valley to two reserves, and then again in 1911 one of these reserves was again moved against the wishes of the community.
The Maasai lost more than half of their customary territory. The Kalenjin community was another group affected by the rationale of division of land in the Rift Valley. The Kalenjin community is made up of the Kipsigis, Nandi, Keiyo, Marakwet, Tugen, Sabaot, Pokot, Elgeyo and Tariki found on the slopes of Mt. Elgon.
The Kipsigis are the largest sub group occupying the south Rift valley and the Nandi are the second largest occupying a majority of the North Rift.
These two communities offered most resistance to European occupation. The settlers through their influence alienated a majority of the kinsmen through the introduction of the native reserves.
The Rift Valley highlands became Crown Land and through this concept the Kalenjin lost most of their fertile lands to the settlers and by 1920 the Kalenjin were forced to live in reserves where overcrowding and erosion of land caused them to become labour tenants. (Mbithi and Barnes infra 42)
The Nandi most notably offered resistance to the British settlement of their area through the Nandi Resistance of 1911. This resistance was led by Koitalel Arap Samoei, the resistance happened during the construction of the railway as the natives had to be alienated from their land.
This move was achieved through the imperial British East Africa Company, a private company which was given concession for the construction of the railway.
The Devonshire White Paper of 1925 was used to formulate policy on the native reserves especially with the regard to the Crown White Highlands established under the 1925 policy paper.
Land ordinances and homestead rules assumed that all land not occupied, cultivated or grazed by natives at that time was waste land and had to be considered crown land available for lease.
From 1912 1925, labour laws encouraged the natives already displaced or experimenting population pressure due to European settlement to settle on European land as labour tenants.
They were significant as they started work at the European estates and plantations and that at times the stated policy was to force Africans out of the reserves to work on the settler farms. They were free to trade and settled most disputes and their own grievances under customary law.
The Resident Natives Labourers Ordinance was passed and the Rift Valley natives went to court. Many were convicted and the conditions became harsh that after 1927 more Africans returned to the reserves then later left to settle as tenants.
Under the ordinance the following categories of people were classified as landless:
– People who lost all their land to European land alienation.
– Ahoi (labour tenants) who were forced off their land by African land holders.
– People whose land holdings were insufficient to support their families.
In present days, alternatives to squatting exist in the urban areas coupled with existing fact that about 70% of these people are generally landless hence exposing them to squatting (Mbithi & Barnes infra70)
LAND FACTOR IN CENTRAL PROVINCE
Central province is mainly inhabited by the Agikuyu community.The community mostly considers this to be their ancestral place and many members of the community trace this to be their ancestral birth place or place of origin.
The Kikuyu was another community hard hit by evictions of land such as the 60,000 hectares converted to European coffee farms in Kiambu. Alienation of land in this particular place began at around 1905, this was emancipated by the particular speed of commercialization through the Orders in Council of 1915 according to which Africans had been evicted from the Kenya highlands.
The Devonshire policy in 1930 formulated a policy whereby a majority of the Kikuyu community was forcibly moved to the reserves. The 1954 Swynnerton Plan for the Reforms of African Land Tenure became the fundamental roadmap for land acquisition.
Between March 1954 and end of 1956, the colonial government ordered confiscation of land belonging to the MauMau an armed political wing that offered resistance to British rule in central Kenya.
The British colonial government countered them through vigilization under which over a million people were concentrated in native villages which was a direct source of inspiration for the land consolidation programme in the Kikuyu areas.
Surprisingly those local leaders loyal to the colonialists and who managed the land consolidation exercise appropriated land for themselves in the process resulting to a high number of landless result majority of them were forced to move somewhere else to look for land and to escape the harsh conflicts arising from colonialism.
MAU MAU FACTOR IN CENTRAL KENYA
Massive seizure of Kikuyu land and the formed displacement of labourers for settler production were major factors in the Mau Mau revolt. The Mau Mau leadership stated we are fighting for all land stolen from us by the crown law in Kenya; firstly most of the high potential agricultural areas have been adjudicated.
Management of land was vested through the Government Lands Ordinance of 1952 and hence responsibilities were delegated through the local administration loyal for the colonial government. As a result of this, two thirds of the Kikuyu population was landless because of colonial confiscation of land.
It is through this that led the Mau Mau to lead against a political uprising against the colonial British government in a war that lasted for eight years and where key military officials of the uprising like Dedan Kimathi and Waruhiu Itote was executed.
LAND POLICIES AT INDEPENDENCE
At the Lancaster House Conference, the UK government pressured Kenya to accept a willing buyer willing seller approach in question of white settlers farms. Land issue was at the heart of the politics at that time and a key difference in the political platform of the two post-independence parties KANU and KADU .
The latter advocated for majiboism where it would see regional assemblies would oversee the administration of land matters. Prior to the independence it was feared that the landless would restart the land distribution aims of the maumau.
A project dubbed the Million Acre Scheme (1962) was established in 1962 to defuse tension and ensure that the colonial landholding structure could remain in place.
By 1977 about 95% of the former Crown White Highlands had been transferred to the Africans.
The high density settlements provided some access to land for landless households but the poor quality land and scarce extension services made a share on the landless acquiring rigid households. Corruption played a big part in ensuring that project does not take place.
In late 1970s and early 1980s, elites with political connection soon accumulated very large landholdings through dubious means. By 1990 it was estimated that some 26% of Kenyas population was landless this was in regard to the fundamentals of the colonial land tenure systems especially the very unequal relationship between statutory and customary tenure.
PRESENT DAY SITUATION (RECENT POLITICAL VIOLENCE AND CONTESTED CLAIMS TO LAND)
The election violence that affected Kenya in the first months of 2008 took on different forms and a number of different dynamics can be accessed.
As we shall discuss later, land played a pivotal point in forming violence as this was seen and highlighted in the Waki Commission Findings (2008)
The concept of majimbo perpetuated by politicians played a bigger role as Majimbo concept in particular is of relevance to land as a territorial resource.
Majimbo was not fully interpreted but was meant to mean get the land back issue particularly in the rift valley. Violence and land shall be discussed further in the subsequent chapters.
LAW AND LANDLESSNESS IN KENYA
The problem of landlessness in Kenya was not a passing phase.After attainment of independence in 1963, landlessness continues to dominate unequal distribution of land in Kenya. This is mainly attributed to the previous land law regimes which had resulted into the peripheral problem. During the advent of colonialism, white settlers hived off parts of the Kenyan highlands and claimed exclusive ownership. In this chapter, we shall discuss into detail how the problem of landlessness came about and which laws were used to further this situation.Central, Coast and Rift Valley Provinces will remain the focus of the study.
STATUS OF LANDLESSNESS AT THE COAST.
This dates back historically during the pre-independence era.Coastal land was previously controlled by the Persians, Arabs and British. The Mwambao wa Pwani (Ten Mile Coastal Strip) was administered by the Sultanate Of Zanzibar on behalf of the British Government.
The assumption here was that the Sultans subjects within the coastal strip would retain certain rights to land vested.
On the ten mile coastal strip, the Colonial Government recognized the claim of the Sultan of Zanzibar as his subjects could only register the land,
This meant that the local coastal community had lost all rights to the land and hence became landless. This meant that outsiders notably the Persians, Arabs and the British registered land and acquired titles in their names.
As a result, this lead to the emergence of absentee landlords.Inorder to establish the full extent of land accorded private ownership, two ordinances namely the Registration of Titles Ordinance and the Land Titles Ordinance were passed,
Registration of Titles Ordinance was in respect to the compulsory acquisition of land while Lands Titles Ordinance was passed in giving title of the land which had been acquired.
Section 17(1) of the Land Titles Ordinance provided that, all land situated in any district area on phase to which this act has been applied concerning which no claim of ownership has been made…shall at the expiry of the period (six months) be declared to be crown land and all things attached shall be subject to a right of interest evidenced by a certificate of title.
Section 17(2) provided, every certificate of title dully authorized under the seal and hand of the recorder of the titles shall be conclusive evidence against all persons (including persons) of several matters therein contained that the person to whom the certificate is granted is the owner of the coconut trees, houses and buildings on the land.
This ordinance was only applicable to Malindi, Lamu and Tana River Districts. As a result of the passage of this ordinance, about 95% of all land within Mwambao was recorded in the name of absentee landlords and the remaining 5ing declared Crown Land for lack of claim from the local ownership.
As a result, the squatter problem escalated due to rising populations, increased demand for land and the non- restrictions of land ownership.Land injustices can be traced back to the decision of the Colonial Government to introduce a system of individual land title deeds under the Lands Titles Ordinance to those who claimed ownership rights within the Ten-Mile Coastal Strip.
Only a few inhabitants were aware of the process and few availed themselves to register land in their names. Absentee landlords continued to collect land rates from the local inhabitants who felt squatters in their ancestral land.
In 1963, the Independence Government started mechanisms to create new economic opportunities that did not address the Coastal people land hunger
In 1978, Settlement Schemes were established to address the unequal land distribution but the project did not take off immediately.
RIFT VALLEY LANDLESSNESS PROBLEM
With regard to Rift Valley, Africans did not have any legal ownership right to the land they customarily claimed instead they only had user rights.Native Lands Trust Boards were established to manage native affairs and which formed ethnically defined administrative units.
According to Mbithi and Barnes C.(1973) the creation reserved by the Europeans stabilized what was a fluid land situation among the African people.Land in Rift Valley was considered to be Crown Land in Isaka Wainaina Kamotho vs.Morito Indagara & A.G of Kenya (1922) 2KLR; the courts dashed the hopes of the locals by declaring them to be tenants at will of the Crown land they occupy.The Crown Lands Ordinance of 1920 was used by the British to compulsory acquire land for the settlers hence leading to a large population of the natives becoming landless and being concentrated in the native reserves.
This resulted into the local community losing much of their land to the colonial government. Prior to this in 1897, the Commissioner of the Protectorate using the Land Acquisition Act of India (1894) . This was also extended to Kenya, appropriated all land within the one mile on the either side of the Kenya-Uganda railway for the purposes of construction of the railway.
The Act was also used to compulsory acquire land for other purposes such as government buildings. In the period between 1915-1920 the Act was repealed and replaced by the Crown Lands Ordinance that declared all land within the protectorate was Crown Land .The effect was that Africans became tenants of the Crown with no more than temporary occupation rights to land. At the same time the Foreign Jurisdiction Act of 1890 in conjunction with the East African Land Regulations of 1887 were used to alienate land from the natives to the settlers as a way of paying for the railway.
According to Okoth Ogendo (1991) any land alienated whether for construction of the railway or occupancy became Crown land. Crown Land was defined as all land within the East African Protectorate that was subject to being in control by His Majesty by virtue of any agreement or treaty and all land that had been or may have been acquired by His Majesty under the Land Acquisition Act of India or otherwise.Ndungu Report (2004) asserts that the East African Land Orders were enacted to compulsory acquire land for commercial and residential use .The orders read together with provisions of the Crown Land Ordinance were to bring all land to the Crown. This in essence meant that Africans had surrendered their rights to the land in which they owned.
The British attempted to woo settlers from back home to settle in the new colonies and boost the economy. As a result this led to the passage of the Residency Titles Ordinance of 1924 was .This made the locals lose land to foreign immigrants.
The government to date does not have clear data n the landless squatters, especially among urban slum dwellers.
Lack of political will has resulted in prolonged slow pace of land reforms
Laws and programmes aimed at protecting the tenure rights of farm workers and labour. Tenants have been ineffective, evictions have continued and more people have lost access to rural land.Legislation o commercial land rights that strengthened the powers of chiefs over land was passed in 2005, but is subject to a constitutional challenge and has not yet been implemented.
Landless South Africans has continued to advocate for their rights. This is because majority of them are poor.
The Landless People Movement (2001) has been formed to fight for the discontented landless people; the government involves them in order to reduce the effect of squatter problem especially among the urban dwellers.