Before we look at the land injustices in Kenya, let us talk about land facts in the country.
Kenya has a land size of about 581,751 square kilometres (44.6 million hectares). Land makes up 97.8 per cent and the other 2.2 per cent is water surfaces. However, only 20 per cent of this land size is medium to high potential land. The other 80 per cent is arid or semi-arid.
Forests and woodlands (including national parks and game reserves) occupy between 7 to 10 per cent of the land mass in Kenya.
Of the 44.6 million hectares of land that comprise Kenya, Only about 43.62 million hectares are suitable for human settlement. Surprisingly, 75 per cent of the Kenyan population lives in the medium to high potential land (20%). Smallholders dominate much of this high potential land. This creates the problem of increasing population in relation to scarcity of (arable) land.
Land in Kenya is essential for commercial (economic) and subsistence purposes. It is a means to earn income and to sustain a livelihood. Land ownership defines ethnocultural identity. Communities obtain a sense of belonging by associating the land that they occupy with their ancestors (ancestral land). The land also grants individuals and communities a sense of social security.
Therefore, the majority of the land injustices in Kenya revolve around the issues of land acquisition, land ownership, and land use. That is why the majority of conflicts in Kenya revolve around land and reveal why individuals and communities attach a sentimental value to land.
Land issues before the colonial period
Before the colonial period, inward migration of communities defined land acquisition, ownership, and use. Communities settled in areas distinct to them today.
The solution for a need for land was to expand into unoccupied areas. In other situations, some communities conquered others to occupy their land (inter-tribal wars). Even so, the conquered community could still relocate to another place and find new land.
Trans-nomadism was also common among the pastoral communities. They could move to new grazing lands and still come back to the old grazing lands when pasture had grown again.
The relatively easy means of acquiring land in the pre-colonial period results from the ratio of people to land at the time. The population was low and the land size was big. There was enough land to sustain everyone’s need. People also owned land often on a communal basis.
In the history of pre-colonial Kenya, there are no (if any) incidences involving land that lacked a conclusive solution. The Arab and British invasion that paved the way for historical land injustices in Kenya nevertheless disrupted this prevailing situation at the time.
Land injustices in Kenya caused by Arabs
Arabs from Arabia and Persia invaded the Coastal Strip in the early 1800s. They took part heavily in the slave trade, especially the Sultan of Zanzibar. Their activities led to mass evictions of the indigenous coastal communities from their land. They alienated the coastal communities from their land through forceful evictions to create room for Arab settlers and through their practice of the slave trade.
For example, members of the Mijikenda community fled their land on the beach to escape the Arab traders who would capture and sell them as slaves. The Arabs later occupied this land and obtained a certificate of ownership from the Sultan.
During independence, the Mazrui Arabs claimed ownership of the 10-mile ‘Coastal Strip’. They ignored the plight of the indigenous communities that lived there before they scrambled for land in the region.
Land injustices by the British colonialists
The British colonialists even made worse the land injustices in Kenya at the time. They came up with several laws and concessions to alienate the coastal and mainland communities further from their land. These included the Land Acquisition Act (1894), Crown Lands Ordinance (1902), Crown Lands Ordinance (1915), and the Kenya Native Areas Ordinance (1926).
These laws and ordinances saw the eviction of communities to facilitate the construction of the Kenya-Uganda Railway. They also saw the leasing of the 20 per cent medium to high potential land to European settlers and multinational corporations for 99 years (the infamous ‘white’ highlands). This is mostly because Kenya’s land had become ‘Crown’ land owned by the Queen of England to dispose of at her will.
The British also conquered and forcefully evicted entire communities, especially those that resisted their encroachments. They also signed agreements with the illiterate community leaders to obtain their land. These include the Talai and the Maasai communities who the British evicted wholly from their lands.
Talai and Maasai evictions
The British colonialists evicted the Maasai from their lands around Suswa, Ol Kalou, and Ol Jororok through the Anglo-Maasai agreement of 1904 into Laikipia. The colonial government became interested in the Maasai land in Laikipia to settle more settlers. They forced the Maasai to sign the second Anglo-Maasai agreement of 1911. This agreement saw the entire community displaced from Laikipia to its current location of Narok and Kajiado districts.
The route from Laikipia was gruesome since many of the Maasai kin and animals died on the way.
The colonialists displaced the Talai entirely and transferred them to Gwassi in Nyanza that had dangerous animals and little rainfall. They dispatched a force, which included African home guards, to prevent them from ever reclaiming their land after initially resisting the British occupation. Many of their leaders were also jailed or exiled.
The Maasai never got their Laikipia and Suswa, Ol-Jororok, Olkalou land back. This is just an example of how British land policies brought about land injustices in Kenya. They uprooted communities from their ancestral lands never to recover them again.
The Maasai challenged the 1904 and 1911 land agreements in a civil court in 1913. They demanded that they return to the northern highlands. They also wanted compensation for the loss of their livestock. Among the arguments presented were that the community leaders who purportedly signed the two agreements were illiterate. Therefore, they were unable to enter into any valid agreement.
They further stated that community leaders who purportedly signed the agreements had not consulted with members of the community. Therefore, they could not be assumed to have acted on behalf of the whole community.
However, despite the active assistance of sympathetic British activists and lawyers, the Maasai lost the case. It was dismissed on technicalities and they received no compensation.
Maasai lost the case on a technicality
In rejecting their claim by the Maasai Community, the court stated that the Maasai ethnic community as living within the limits of the East Africa Protectorate are not subjects of the Crown, nor was East Africa British territory.
East Africa, the court maintained, being a Protectorate in which the Crown has jurisdiction is, in relation to the Crown, a foreign country under its protection and therefore, its native inhabitants were not subjects owing allegiance to the Crown, but protected foreigners who, in return for that protection, owed obedience.
The agreements were interpreted as “…not constituting legal contracts between the protectorate government and the Maasai signatories, but rather, as treaties between the Crown and the representatives of the Maasai, a foreign tribe living under its protection.”
Colonial Land injustices and land alienation
The colonial land injustices in Kenya alienated Africans from their lands. It forced them into reserves that were soon overcrowded and unfit for human settlement. This full dispossession of land by the British colonialists set a precedent for most post-independence land conflicts. It exacerbated future historical land injustices in Kenya based on land acquisition, ownership, and use among the Kenyan communities.
The British brought members of other communities into new regions to work their farms through
- forced labour;
- forced taxation; and
- forced military conscription.
According to Researcher Tom Wolf, mainland communities such as the Luhya went to work in settler lands in the area originally occupied by the Taita Community. The Taita viewed working for European settlers on their own lands as slavery and hence the necessity for new labour. This new labour was attractive because these persons came from far. They would be around for longer periods than those from the region who would have to go to their families in the evening or on shorter periods.
Wolf says reserves were created for these workers. Even when these settlers left, these persons from the mainland continued occupying the lands that were historically not theirs. This brought about land injustices in Kenya where the local communities lost their ancestral lands to communities from other regions.
Effects of colonial land policies and practices
The effects of the Arab and British practices on land and the subsequent land injustices in Kenya had detrimental consequences on the indigenous communities during and after the period under colonialism.
They led to the permanent displacement of entire communities and the disruption of the socio-cultural and economic life of many communities.
The practices created arbitrary ethnic-specific boundaries (the native reserves). This generated a notion of exclusivity of land rights by certain communities in certain areas. The communities viewed other communities owning land in those regions as ‘foreigners’.
The British and Arab colonialists were the originators of the land grabbing practice in Kenya. The Arabs grabbed the 10-mile Coastal Strip. The British grabbed the 20% arable land for their own settlers. These practices exposed entire families and succeeding generations to landlessness.
These land practices and subsequent land injustices in Kenya also promoted inequality in land and related rights. They caused poverty and destitution and barred Africans from owning land in the ‘white’ highlands. They also created a system of land tenure based on alien principles of English property law, while largely neglecting the regime of indigenous customary property law (for example, title deeds over indigenous land inheritance practices).
The practices generated discrimination in access to land and related infrastructure and social amenities. They promoted ethnic suspicion, mistrust, tension and structured violent conflicts in reserves – still felt today. Their poor environmental practices also led to the decline of forestland from 30 per cent in the 1890s to a mere 3 per cent by 1960.
(Much of this information is abridged from the TJRC Report Volume 2b on Land & Conflict)