...
written by aeichener , December 07, 2006

Few things evoke emotions and instincts as much as the various land and land reform issues. This is not just true for the House of Mumbi, but for most Kenyans regardless of ethnia; just the perception of land use and usufruct may be different (and often does not at all correspond to the common Western notion of "ownership" as the English language falsely suggests).

In Dave's posting, I especially like the note that the problem indeed predates the colonial era. That is true for the Coast, but it is equally true for many other areas; and let's keep in mind that the most arrogant colonizers in Kenyan history were not stocky white men with pith helmets, moustaches and khaki shorts, hiding behind Maxim guns, but tall black men with spears and the attitude that the world and all other people were made only to serve them and their cattle, as subordinates... :twisted:

Alexander

great comment Dave!
written by Stephen Wanyama , December 07, 2006

A bit of a reality check on the part of Mrs Mugo would be nice, and a parcel of land from her family would stand in very well for the promise the Lenana Board have reneged on.

You are right also on Zimbabwe and Taiwan, and the general model is that a third world country can never rise out of its penury without a vigorous and far-reaching reform programme.

I believe great examples are being set in South America, especially as regards striking a balance between measures intended to alleviate poverty while at the same time respecting the right to private ownership and encouraging entrepeneuship.

Reality Check
written by Nekessa , December 07, 2006

Right on Stephen! I would be very embarrased to make claims as Mrs. Mugo did!! :shock:

ODM has been talking about minimum reform before the elections, and one of the issues they want addressed is Land Reform. However, they hardly have any plan. Perhaps this is the time to come forth with their grand plan :shock:

What I find amazing is that noone, even those calling for Land Reform, noone has questioned Mrs. Mugo. Perhaps, I missed it? Anyone caught it? :?:

Dave, great topic :idea: .... Land Reform is the one important issue that needs to be addressed before we can experience great leaps in our economy.

...
written by aeichener , December 07, 2006

The priestess' question is palpably genuine, but there is an ever-so light (and very elegantly flavoured) undertone of ...dare I say irony? ... or maybe just of a proper questioning spirit in it.

For it is always easier to wax about "African solutions to Africans problems" (laced with a nice trimming of anti-neocolonial rhetorics), than to suggest an actually workable and well-implementable project. As to "African solutions", Gado recently captured their spirit in cynical brutality, and with a saddening tinge of truth:



Alexander

Great recommendation
written by Nekessa , December 07, 2006

Good thing you recommended urself, coz I was just about to do the same.

Who will recognize that they are ill-equipped to address land reform? Certainly, not our lawyers. What is an authentic African system? How does one go about instituitionalizing it? :shock:

Legal Reforms and Uncommon Law
written by aeichener , December 07, 2006

In my opinion, the foremost step in a land reform project that deserves its name, would be the breaking and shedding of the colonial manacles that still fetter the Uncommon Law. Even in the United Kingdom, the dogmatics of land law are thoroughly archaic and supremely unpractical (dominium supereminens of the Crown), and have led to all sorts of convoluted constructs.

What must be done, is the development of an authentic African system of land laws. Such a system can and should be based on traditions and usage, but not on abuse. Some olden parts must be explicitly refuted (e.g. the thorny issue of land usage negated to women as widows or heirs), because "tradition" means keeping a fire alive, but not blowing ashes into people's eyes, or burning them with glowing coals.

There are very few if any Kenyan jurists who would at all be up to that task, because a Common Law training effectively disqualifies most of them. Common lawyers just aren't able to design and draft proper statutes, nor can they work with them. Dimwits, 99 %; and double dimwits if they studied abroad in a common law country.

Except for a number of ethnologists / anthropologists, I only know one suitable jurist besides me (thus he spake, arrogantly but confidently).
But that guy is absolutely superb: Godana Doyo (a Gabbra). Maybe the brightest legal mind in all Kenya.

re: Great recommendation
written by aeichener , December 08, 2006

What is an authentic African system? How does one go about instituitionalizing it? :shock:

My very slightly tongue-in-cheek comment in my text above (usually, my tongue knows better places to go than merely a cheek...) should of course not be the last word. And neither should the triste cartoon of Gado put an end to our thoughts.

So...

1. "Authentic African System".
That of course can be a dubious wording. Given the wide variety of social and economic subsystems, of traditions and heritages, of ethnia at least as diverse as in Europe and Asia, and not even united by skin colours, the claim of an abstract "Africanity" is as wide and baseless, as would be a pre-postcolonial reference to the Soul of the Common Negro (and his enigmatic counterpart, the Uncommon Negress). And still... and still.

What I meant, I had already begon to outline above. It is easier to begin by asserting what I do not mean, do exclude: namely, the simple and unreflected transposition of legal institutions from a totally unrelated and foreign system and tradition. Even the deceptively simple English language notion of "ownership" (= dominium in the sense of Roman Law and ius commune) has no counterpart in most Africans' notions and understandings of what land means, how and to whom it is "assigned", and how and by whom it is to be used.

On the other hands, changes of social conditions and rapidly encroaching urbanization in many parts of Africa show us that there already exist many circumstances and conditions where ancestoral interpretations are simply no longer applicable. If you want to buy a plot in a posh Nairobean estate to build your new house, conceps of tribal land stewardship, honey harvesting rights of neighbouring Ogiek, and the vicarious administration and per-vitam distribution of the rights of agricultural usage through decision of the eldest man of the extended family (who is steward rather than owner) will hardly help you to gain the necessary security for buying the surveyed small plot and have a "title deed" registered.

Water Law and Water Rights
written by aeichener , December 12, 2006

There is a thing, a legal field, that I have not addressed in the long previous draft, but which proves to be of absolutely crucial importance for a future development of such interacting systems of land laws.

And that is water rights. This may actually become the life question of entire Kenya in the next decades, both of rural and of urban Kenya.

Land without water is worthless. This is true for the agricultural farmer and horticulturist, is true as well for the rancher and for the pastoralist. Only water makes land useful (with some apparent limited exceptions, such as mineral and mining use, e.g.; but mines in turn need lots of water for processing their ore).

Who controls the water controls the land. Who excludes others from water by law or force, dominates them, and can reduce them to subservience and poverty.

Water rights therefore cannot be merely private; in legal systems all around the world, they have been one of the oldest concerns of the public, beginning right with Egypt and the Fertile Crescent, where some of the first "states" are nascent.

In Kenyan context, the equitable balancing of water usage and water consumption is of most crucial importance to pastoralists; they must be guaranteed emergency rights (in drought times) which grant them limited access to water even if this infringes into rights of other users. But they must also equitably bear the common plight of a hard season, and must make their own sacrifices. To balance this, to distribute unavoidable damages and losses equally and fairly, shall be the task of the Law; be it statutory or through a system of supporting and fortifying contracts between pastoral communities and other land users.

The lack of such a system has provoked numerous conflicts between pastoralists and other land users, especially larger ranchers. Unscrupulous and egoistic liiidaahs of hapless and helpless nomads have tried to play the race card, which of course was both silly and dangerous; dangerous because Kenya cannot support ethnic tensions, and silly because their ancestors themselves were land robbers and colonialists of the highest order. No "ancestral lands" were taken away from pastoralists by the British or by the present black ranchers; the invading Maasai and Samburu were it who took by force of the sword and by ethnic absorption (including occasional ethnicide) the land previously used by others. But the great-grandchildren must not pay for the sins of their forefathers; what is to be balanced, are the rights of today, not the wrongs of yesteryear.

great thread
written by emmo opoti , December 12, 2006

As you have yourself noted, dear Alex, this would best work as a title of its own. I am not sure too many people are benefitting as it is.

Dear Emmo:

I intend to make an article out of it (also with additional subdivision, such as proper headers). I do intend to continue my work a little bit here in the thread still, before choosing a new grazing ground for my words, hungry as they may be. Alexander

...
written by Don , December 12, 2006

This is perhaps the most thorough treatment of the land question that I have seen outside of academic circles in a long time. When the heavyweight intellectual meets cultural seperpower I want my ringside seat.

I guess Alex demonstrates why this is such a burning issue. Our legislators and other opinion formers prefer to skirt, skip and dodge around the powerful constituent issues of this time-bomb even as it ticks the seconds away. To use a Volcano analogy the sporadic land clashes and ranch invasions represent the gentle tremors and venting of gasses prior to a serious eruption. These are largely ignored by the elite classes and urban populations.

...
written by aeichener , December 12, 2006

Let me continue my piece-meal approach; I am sorry about the delivery in tantalizing installments, but maybe it will grow to a whole article in time. That of course would be an ideal development of the comments option, wouldn't it?

So, yes, I do think that "authentic African systems" of land law can still exist today, under changed conditions. Or, rather, that they can be developed. The important thing is to acknowledge today's challenges (such as changed gender roles, equal rights, drift towards urbanizations, environmental concern), and to properly deal with them. How is that to be done? Let's continue...

* * *

The necessary fundamental approach would be, IMO, to differentiate the land law regime between modes of land usage. I could think of the following principal modes, which all require different dogmatics. There is no "one shoe fits all" system applicable to each of them alike.

a) Agricultural usage (divided into subsistence agriculture and commercial sales agriculture, including horticulture, but only partially including agroforestry).

b) Forest usage and environmental reserves (here, the special needs and interests of hunters-gatherers will be mainly addressed). Can also include riparian rights.

c) Traditional pastoral usage (husbandry, extensive grazing).

d) City and town land usage (this legal regime includes traffic and transport usage, as such as railways, roads, airports, ports, but not necessarily airstrips and pipelines, because these may rather bear the character of easements / servitutes).


The dogmatic systems applicable to those must IMO be construed and developed rather differently:


As to a), a traditional system will start from a notion of individual usage and usufruct rights being rooted in a communal right. Individual land users are not free to use land and to dispose of "their" land as with mobile property, but they remain bound within the cadre of the smaller and wider family, and the ethnic (sub-)group to which they belong. The "owner" of such land is not an absolute owner in the Roman law sense of dominium, nor alike to a English freeholder or yeoman, but he is most akin to a steward administrator or trustee (using English words).

Depending upon the internal develeopment of the ethnia, the necessary representation of women can be achieved in different ways. Even traditional male "prerogatives" could then be tactfully respected in outer form (where elders would demand so, e.g. in communities where only the eldest man of a family or sub-clan may bindingly administrate and "decide" over land, nominally), while additional new participation and veto rights could ensure that women and girls have their say and can no longer be disadvantaged as previously (inheritance, divorce).

A final and total transfer of land rights (this could become necessary e.g. if a town expands) will necessitate the consensus of the group (depending upon custom, either univocally or majoritarily). Great care must be taken not to ape the present provisions of "communal" ownership, which vests traditional right in an untraditional body of unaccountable and often egoistic and corrupt representatives. Rather, old bodies should be reconstituted (the Meru example shows that this is plainly possible), with moderate alterations (such as giving women an equal voice in group deliberations).


As to b), the traditional European and US dogmatic figures of easements / servitudes, and silvarian / riparian participatory rights (as know both in Roman law and Germanic laws) frequently have their counterparts in traditional African practice.
The old practice of native African forest usage can either be classific as an exclusive usufruct (such is venerable Ogiek practice, where an inheritable and inalienable communitary usufruct is vested in the sub-clan, and teritories are usually divided by ridges and brooks), or as a limited silvarian right (such is practice with the Kaya forest, and also with the former sacred groves at the lower Mount Kenya slopes).
One must not confuse one with the other, even though some of these silvarian usage rights are historically rooted in the legacy of incorporated former hunters-gatherers cultures, e.g. as the Agumba were debellated and ultimately sucked up by the Ameru and Aembu. Same is true for Athi and Agikuyu. For example, the Aembu honey rights have their original seat in the old pre-Bantu Agumba practices, as I would venture.


As to c), this is one of the most problematic issues in the future land law. The conflict of pastoralists with sendentary land users and also with hunters-gatherers is old and predates colonialism by long. Both have diverging sets of interests, and one of the most important functions of the law is to balance and pacify such conflicting interests. In trying to administer this difficult function of adjudication (iustitia commutativa rather than iustitia distributiva), the legal system will have to take into account psychology and attitude conflicts persisting until today, and ethnically based superiority ideologies.

One necessary step will be limited land reforms; reforms which address a limitation of colonially based "ownership" and exclusive usage rights in areas which previously had constituted the core of pastoralists' grazing grounds. The law cannot wind back the clock of time, but it can mitigate and balance where the odds have been shifted by force to one side.

Another necessary step will be a legal regime that recognizes and guarantees limited traditional usage rights of pastoralists also on territories where they do not have primary usage rights (as in section a). A European dogmatic figure to achieve such an aim is the easement. It cannot and should not be transposed here however, for it presupposes small cadastral subdivisions and intensive subsistence agriculture or narrow urban neighbourship. Rather, a contractual system of usage rights between pastoral (sub-)groups and the communities of traditional land-users (or large individual landusers) must be implemented (and, if necessary, forced) by the law. This is more in respect of traditional order, and also recognizes the fact that a pastoralist is not an isolated individual, nor a land owner with demarcated plots and border stones, but part of an ethnic community that frequently grazes jointly, over extended streaks of land.
For emergencies and other contingencies however (such as droughts, or livestock epidemies), the law must provide a subsidiary system of state-sponsored emergency relief, and of the equitable and authoritarian imposition of common sacrifice beyond the contractual ties. This is a task for the development of a new and truly African system, combining the past traditions with the present challenges and the future contingencies.


As to d), such urbanized and technicized settings demand an adequate land regime which allows for free transfers and trade, free from traditional and ethnic bonds, thus with an emphasis on individuality and subjective rights.

That can also mean a massive and wide-scale repossession of the enormous tracts of lands that have been alienated since uhuru by the many hungry swines snorting and pushing each others at the common trough (African mentality: what is the State's, is nobody's, thus is free for me to grab).
And (not "or", but "and"! depending upon the individual cases and needs) offering the possibility of a formal adjudication of misappropriated and alienated lands to their present "owners", inasmuch as they are bonafide possessors, joint and balanced however with a due indemnification of the public coffers, e.g. through an mandatorily imposed mortgage.

Alexander

...
written by Nekessa , December 15, 2006

As Emmo said, I suggest we make of this an article, and put it as top editor's pick . We can even cut and paste

Have the folks in the Ministry of Land read your argument?

Authentic African System
written by Nekessa , December 17, 2006

Are you saying then, that it doesnt exist? And if it does, the challenges, such as urbanization that you cite, don't these impound the problem?

What's more, how do lawyers having studied the British common law, think outside that box?

And legislatures, even if from the Bundus, make Nairobi their home and forget about where they come from---> translates to selling out thus underdevelopment and neglect of rural Kenya.

colonial land rights
written by Dave Nyambati , December 19, 2006

Alex, this is the most comprehensive analysis of the subject as it pertains to Kenya that I have ever seen. Your keen assessment on the unique challenges custom to Kenya is remarkable.

The first step after passing the necessary laws should be to create a special branch of the judiciary created just for the purpose of addressing the points of dispute that will undoubtedly arise from the reformation process. Any major change in land legislature is bound to propagate numerous lawsuits that could potentially tie up the courts for decades and will need a dedicated system to address this.

On the issue of colonial land rights, all land acquirement that was either disseminated or approved by the colonial administration should be reclaimed and henceforth considered of the state. The previous owners should be allowed the right to petition the government with proof of legal procurement for monetary exchange and have their cases heard by the special court. Furthermore there should be a limitation to the amount of Kenyan land that can be owned by foreign individuals, families or entities. Of special consideration should be entities whose goods/services satisfy a vital need. If the land was acquired dubiously, these entities should be offered the opportunity to buy it back and the money go directly to the communities historically displaced with respect to geography. Just my 2 cents :confused:

who owns britain
written by emmo , January 01, 2007

http://www.progress.org/revwob.htm

Lenana doesn\'t need the land!
written by Kamale , February 09, 2007

I had wanted to comment on the Lenana School saga before this thread was hijacked by Alexander.....

I was rather bumbfounded that people would not see the benefit of the intended institution being funded by the Lions even it was from IDLE land hived off the many acres occupied by this former education giant.

Lenana like the other pre-colonial government boarding school in Nairobi (Nairobi School) were educational giants at the time of independence and were quickly identified as National Schools amongst the original 10 major schools. The pre-colonial schools such as Highlands, Limuru Girls, Nairobi, Lenana and Alliance (both schools) were all very well endowed with land, most of which was earmarked for future expansion or subsistence farming.

With the advent of the Moi error, most of these schools apart from going down academically (bar perhaps alliance schools and Starehe)their infrastructure was progressively run down. You need to see the infrastructure today at both Lenana and Nairobi schools to get a feel of how run down the schools are. The areas set aside for expansion or subsistence farming are also disused.

It was therefore admirable in my view fo Beth Mugo, being the area MP as well as a junior education minister to see the potential of land that is not being used by a school that has no capacity to even develop the land! She saw an opportunity to develop a centre of excellence and even managed to source funding from an international NGO.

But being the Kenyans we are, we were quick to see land grabbing in the making, merely because a politician was involved. But I actually read the noise being made by the school's BOG as a weak attempt to cover up for their inability to develop or utilise the land that Beth wanted.

What about the so called Old Laibons? These old boys of Lenana came out with guns blazing to protect what was their school. But if you look at what old students of the other National schools have done for their alma maters, then old boys of Lenana should just shut up and just let Beth do for the school's land what they have failed to do!

What about the positives of the institution being sited at Lenana? There are certain educational partnerships that work well and perhaps this was something the Lenana BOG would have taken up as a supplementary function of the school.

An opportunity to further the education of some bright children (even from Dagoretti) was lost on account of silly myopia and dog in manger attitudes.

land problems
written by anonymous , February 09, 2007

the solution to the land problems in kenya IMHO does not lie in subdivison or major reforms - rather they lie in finding alternatives to land as a form of security - as it is land and livestock are the only form of social security that are available to most kenyans.

I think the solution to the land problem is developing a special fund for the landless to get a monthly stipend to allow them to afford a basic livelihood
and also provide training and education for at least a generation.

i propose that initially an amount say
20 billion be set a side for this fund
in addition - all pivate land should be
taxed and a certain amount would go to this fund. this would ensure that the whole country benefits for land with necesarily owning it directly.

also note that in 50yrs time if we are to take the same trajectory as most countries in the world only a small &#xta;ge of the population will live directly off the land.