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Kenya: "The Land Is Ours"
by Timothy Gachanga
June-October 2006
africafiles.org
Introduction
It is unfortunate that the problem of landlessness in Kenya was not a passing phase after all. It was not a problem to be shed like the skin of a snake and then tossed away and forgotten. After forty three years of independence (achieved in 1963), landlessness continues to dominate political discourse among politicians who use it over and over again to gain popularity and power, creating a class of politicians who ultimately become masters of the double discourse of theory and practice in their in dealing with the issue. While on one side of this double discourse politicians openly condemn government failure to deal with the issue, on the other side they exacerbate the issue by giving land to their cronies in return for political support. This has made independent Kenya, especially during the Kenyatta and Moi regimes, contradict and bring shame upon what had been promised as independence for the country.
Background
The problem of landlessness in Kenya goes back to the advent of colonialism when white settlers hived off parts of the Kenyan highlands and claimed ownership. But subsequent hopes that the land would revert back to the Africans were never fully realized. In an interview with a local TV station this year during the Madaraka celebrations (Madaraka is celebrated on June 1st every year to mark the day Kenya gained independence), ex-Mau Mau veterans were still expressing disappointment over Kenyatta’s declaration that no land was free. Kenyans had to work for it. "This was a humiliating betrayal for Mau Mau. After spending years in the forest and risking our lives, we thought Kenyatta would recognize our sacrifice by rewarding us with land grants," complained an ex-Mau Mau veteran. They expressed disappointment over the absurdity of having to pay for "land that was rightly theirs". Understandably, the majority of landless people were unable to raise even the basic sum needed as a down payment for the purchase of "their land". They had no option other than to let go of the land which they regarded as their mother or the umbilical cord through which their spiritual and mental contentment was realized. It is this spiritual attachment to the land that made the Mau Mau sacrifice their lives and take arms to topple British colonialism.
Some landless Kenyans were accommodated as squatters by the remaining white farmers or the new bourgeoisie. Others joined cooperative societies or limited companies that purchased large farms which were later subdivided and shared out among the various members. (Even today, some cooperatives are still in operation and are subdividing land and sharing it out to their members.) This, however, was not without flaws. The process was riddled with blunders, quick-witted recoveries and fascinating power plays — all spiced with an occasional tinge of unscrupulousness. The directors were the new bourgeoisie who could use their influence to acquire more land and give it to their political cronies.
Later the government introduced alternative, cheaper schemes for settling the landless. In 1965, the Squatter Settlement Scheme was initiated whereby land was obtained through government expropriation and from confiscated mismanaged lands and donated lands. These schemes were marred by political interference, with politicians using the opportunity to reward their supporters. The Kenyatta and Moi regimes were notorious in this regard. They failed to recognize the fact that it is impossible for the government to resettle the landless without first possessing the land through a major nationalization programme. Even today, thousands of acres of land are still owned by former colonial settlers which they run as ranches or as wildlife conservation areas. As well, former home guards from both the Kenyatta and Moi regimes and some top NARC (National Rainbow Coalition) politicians themselves own thousands of acres that may have been acquired dubiously.
The Kenyatta and Moi regimes have also come under criticism because decisions about distribution and redistribution of land were made in offices behind closed doors. There was little listening to how people who live close to the African soil express their sense of belonging and practise their values. Because the Kenyan Government relies on land laws and policies established under the British colonial government, many disadvantaged groups are denied ownership of their ancestral lands. A good example is the Ogieks who live in the Mau Forest in Rift Valley Province.
The Ogieks
The Ogieks are a local hunting and honey-gathering people that have lived in the Mau Forest for hundreds of years. The colonial Forest Act did not recognize them as forest dwellers. Instead it regarded them as "outlaws". If you were not a forest officer, living in the forest was outlawed. The Trust Land Act (Cap 288), Forest Act (Cap 385), and Government Lands Act (Cap 280) of May 1963 do not regard the Ogieks as a forest dwelling community. Moreover, the courts are reluctant to address indigenous rights.
Efforts by consecutive governments to resettle the Ogieks were marred by the lack of clear resettlement policies and political greed. This happened in 1963 and again in 1976 when the Kenyatta government tried to resettle them. Politicians seized chunks of land for themselves and their relatives at the expense of the Ogieks. The Ogieks ended up losing the land which they claim was rightfully theirs. In the mid-1970s, the Maasai, like the Ogieks, lost huge tracts of land through the old colonial legislation when they were relocated from land that was subsequently included within Amboseli National Park, one of the continent's most famous wildlife reserves. In response, Maasai groups began systematically killing many of Amboseli's most prized tourist attractions, including dozens of leopards, elephants and rhinos. This programme of extermination was undertaken as part of a desperate protest campaign designed to counter the growing threat that tour operations posed to Maasai land rights. Although a compromise was later reached, the Maasai lost many of their traditional land rights to profitable government and environmental interests.
In 1988, the Moi Government also made an attempt to resettle the Ogieks. The government initiated a settlement scheme at Ndoinet in South and Western Mau in which the Kipsigis and the Ogieks were to be resettled. But the Ogieks refused to participate in this scheme arguing that it was their ancestral land and that they did not need to share it with the Kipsigis. The government nevertheless appeared determined to have the Kipsisgis benefit from the land.
Since 1993, the government has been carving out huge parts of the Mau Forest for settlement but the Ogieks have not benefited. Instead senior state house officials have ended up securing huge chunks of the land, and senior Rift Valley politicians have used the land to reward their supporters. Attempts by Ogiek representatives to Moi and to other officials in his government to protect them proved unsuccessful. In 1997 they went to court to stop the surveying and allocation of their land to others. Their lawsuit eventually went to the High Court, but the case was dismissed in March 2000. Judges ruled that there was "no reason why the Ogieks should be the only favoured community to own and exploit natural resources, a privilege not enjoyed or extended to other communities" (Daily Nation, May 30, 2002).
Forests
In February 2001, the Government issued a gazette notice of its intention to take 167,742 acres from the country’s 14 forests, ostensibly to settle landless people. This was met with considerable opposition. The then environmental minister had earlier claimed that much of the forest area to be taken was already occupied by squatters. However, it has since been established that the forests were indeed intact and had not been occupied by squatters. The notice did not explain the reasons for expropriation neither did it supply information on specifically who was to benefit. It merely said later that the move was meant to rationalize forest boundaries with developments on the ground (Quarterly Peace Monitor, 1:2, 2002, p. 23).
After publishing the gazette notice, the government reportedly deposited the proposed boundary plans in a remote district forest department’s offices allegedly to deny those who opposed it a chance to scrutinize it before the 28-day notice period expired. Though the proposal was made on January 30th, it was only released on February 16, 2001, further justifying public suspicion. On January 21, 2002, a Daily Nation insight report exposed the government’s attempt to treat the 28-day notice to expropriate the forest lands as a mere formality. While the allocations had been made illegally, the gazettement would legitimize them and thus quell the public outcry. Many forests had been allocated before the notice was made. In Mt. Kenya Forest government surveyors had moved in even before the expiry of the notice (Daily Nation, January 21, 2002).
Current Policy
When the NARC Government came to power, it recognized landlessness as one of the root causes of poverty and inequality. Their election Manifesto stated:
Land is one of the most contentious issues in Kenya today and has been so since colonial days. Land is of particular interest to Kenyans because of a number of factors, including the fact that 80% of Kenyans are rural peasants who eke their livelihood out of land. For such people land is life and any threat to their land resources causes fear and panic. Indeed our struggle for national independence revolved around the land issue.
Unlike the Kenyatta and Moi regimes, the NARC Government recognized the need to repossess the land still owned by white settlers so as to resettle the landless. In the draft Constitution, which was one of the promises made to Kenyans, it stated that no foreigner would be allowed to lease land for a period exceeding ninety nine years. Any land with a lease greater than ninety nine years would revert back to the State. Though the draft was rejected, this clause was not contentious, meaning that the Government and the people were in agreement that the land was rightfully theirs (Kenya Gazette Supplement, 2005). When NARC eventually came to power, there was limited repossession of small pieces of land that had been grabbed by Moi cronies. There was also a plan to repossess underutilized land to be distributed to the landless. Addressing the media in early 2004, the then Minister of Lands and Settlement, Mr. Amos Kimunya, said that the government was touring farming regions to identify underutilized land. "We will tell them 'we are giving you one more year, if you can’t demonstrate to us that you can develop it then give us back the land,' Mr. Kimunya said. 'Our emphasis now is maximizing the land use. For us all land should be economically and efficiently used'" (Daily Nation, February 11, 2004). Addressing the nation during this year’s Madaraka Day, President Kibaki ordered the Ministry of Lands to issue title deeds to squatters in Coast Province as one way of boosting the economic growth (Daily Nation, June 2, 2006).
Popular Challenges
Despite the centrality of the land issue, the process and the existing land laws are in conflict and in some instances their application is not relevant in some parts of the country. Abuse of existing land laws and other state powers has led to irregular allocation (the grabbing of public land) to a favoured and privileged few. In January 2003 for instance, villagers in Keiyo District invaded a 1000-acre public forest area which they claimed had been irregularly allocated to a Cabinet Minister. The land was to be used for a memorial in honour of the Minister’s mother. The villagers cut the barbed wire fence at several places to allow their animals into the memorial park. The invasion was led by community elders. The elders claimed that the forest was a trust land and a sacred ground used for traditional initiation rites and that it was taboo for an individual to acquire it, due to its cultural value (Daily Nation, January 9, 2003).
In March this year, over 3000 Ogiek squatters were left homeless after police and forest officers razed 120 houses on forest land. Reacting to the eviction, the squatters complained that they had occupied the land since time immemorial. They depended on beehives and other products of forests for subsistence as well as the maintenance of their social, ethical and spiritual order. Among these groups, bride price is counted in bee hives, not cattle. When they are displaced from their land their economic and spiritual security is uprooted. They wondered how a law passed in a far-away city could decide that "their land" is no longer theirs. While the government views the land as a strategic national resource worthy of protection, the squatters view it as a cultural heritage and as inseparable from their life (Daily Nation, March 13, 2006).
In Meru, the community is up in arms following irregular land adjudication procedures. Late last year, at the sacred lake of Bututia, located off Meru-Maua road at Kianjai, Meru North, elders complained bitterly that they had been evicted from their ancestral lands by outsiders who have been allocated land in their area. Some have been rendered effectively landless in that they have been pushed into a sacred lake area which the community believes should not be settled. The lake is a gazetted area partially covered by water and surrounding marshes. It measures approximately 250 acres (Gazzette Notice no. 8988, The Antiques and Monuments Act, Cap 215). "This is where all rain making ceremonies for the Ameru people were conducted and no one is supposed to settle here," an elder said while pointing to a bird on top of the water where the boundary mark for his land was. The elders threatened to conduct a cursing ritual on the outsiders who dared settle in their land. Cursing rituals are not new in this area. On December 16, 2005, elders conducted a cursing ritual so as to stop the encroachment and logging going on in Giitune sacred forest located some seven kilometers from the town of Meru.
Conclusion
Since Europeans began exploiting Africa centuries ago, the value of land to Africans and non-Africans alike has been determined partly by the worth of its natural resources. Over the centuries, the desire for agricultural products and valuable minerals led to violence, population displacement, landlessness and environmental degradation at the hands of colonialists. Though colonialism has ended, local and regional conflicts over the control of land still threaten the peace. In Kenya, the land problem has at times taken an ugly ethnic turn in which thousands have been killed and thousands displaced from their homes. The problem doesn’t seem to be coming to an end any time soon. The rich continue to hoard and control land. The landless and the poor continue to struggle for "their land". The result is continued conflict. However, there is a need for correcting historical wrongs and for finding how best to incorporate communal interests over the years. Without this, the squatters, the indigenous communities and the small holding peasants will continue to lose land rights to local and national economic and political elites because of the distortions in the structures regulating access to land.
References:
Daily Nation, 21 January 2002, 30 May 2002, 9 January 2003, 11 February 2004, 13 March 2006, 2 June 2006.
The Antiques and Monuments Act, Gazette Notice no. 8988 (Cap 215).
Kenya Gazette Supplement, 2005.
Quarterly Peace Monitor, 1:2, 2002, pp. 22, 27. Peace and Development Network, PeaceNet-Kenya.
Muhando et al. Mt. Kenya Sacred Sites: A guide book on Mt. Kenya sacred sites. 2005.
Reprinted with permission from the author from:
www.africafiles.org/atissueezine.asp
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