The administrative process of adjudication, consolidation and registration under the Swynnerton Plan was given the force of law by the Native Land Tenure Rules of 1956.
In order to ensure that the rights given under the process were not disturbed, the African Courts (Suspension of Land Suits) Ordinance was passed in 1957 to bar all litigation regarding land to which the 1956 rules applied.
This, in effect, prevented claims by aggrieved parties who included leaders of the nationalist movement, dispossessed peasants whose rights were not recognised by the new laws and later, detainees who had been fraudulently divested of their land.
These rules were incorporated into the Native Lands Ordinance of 1959, which, among other things, declared that the first registration was not to be challenged, even if it had been obtained by fraud, and that only a maximum of five persons could be registered as owners of any parcel of land, holding trust for the other members of the family.
In the majority of cases only the male head of household was registered (Prof Paul Syagga, “Public land, historical injustices and the new constitution”, SID Constitutional Working Paper No.9, 2014).
The impact of these new laws was to create an increasing level of disquiet amongst Africans, fuelling the clamour for freedom from the yoke of colonialism.
“The wind of change is blowing through this continent. Whether we like it or not, this growth of national consciousness is a political fact,” British Prime Minister Harold Macmillan was to famously remark in 1960 after visiting a number of British colonies in Africa.
The British government suddenly announced in January 1960, that Kenya would move rapidly towards independence under an African government. Resentment against the European farming enclave popularly known as the “White Highlands” was high amongst Africans, but the British government, under pressure from European settlers, sought to pre-empt this threat through a programme of land resettlement.
In return for land resettlement, moderate Europeans were expected to support the decision to move Kenya towards independence. The Colonial Secretary at the time, Ian Mcleod, believed that rapid political change could occur without racial strife if moderate Europeans helped to achieve interracial understanding and cooperation.
The first phase of resettlement enabled 5,000 experienced African farmers, who had proved their ability and accumulated some savings, to purchase and develop subdivisions of European farms with the financial aid of the World Bank, the Commonwealth Development Corporation and the British government.
This so called “low-intensity scheme” was aimed at permitting African farmers to earn $280 per year, after all operating costs and loan repayments. The political purpose of this, as one official of the lending agencies put it, was “to put raisins in the cake”.
The programme was intended to integrate the Highlands in accordance with multi-racial thinking moderate Europeans while serving two important economic objectives: developing previously underdeveloped areas in the White Highlands and restoring a market in land for the benefit of both races (John W. Haberson, “Land Reforms and Politics in Kenya 1954-70”, Journal of Modern African Studies 1971) .
This “Yeoman” (an attendant in a noble household) type of scheme only helped to further stratify the African society. The European farmers wanted their social milieu to be left undisturbed while the main issue of landlessness and squatting was not addressed. The policy of favouring the “progressive farmer” was an abject social failure.
In yet another politically expedient and paternalistic reaction to the question of landlessness, the colonial government introduced the Million Acre Settlement Scheme in 1962, as Kenya was about to attain independence.
The scheme involved the settlement of 35,000 landless, smallholder families on 1,150,000 acres of land hived off from the periphery of the White Highlands at a cost of twenty five million sterling pounds.
The scheme was financed by the same development partners -World Bank, the Commonwealth Development Corporation and the British government- and loans were made available to African farmers for outright purchase and provision of some element of working capital. The loans were repayable over a period of five years.
The plots in the scheme could only be purchased by individuals rather than groups of people: there was no provision for collective enterprises such as co-operatives or land buying companies.
This opened a pandora’s box as very few peasant farmers could afford to even pay the deposit required to qualify, leaving the scheme wide open to abuse by the already well-heeled African elite and the salaried middle class.
The scheme also had an ethnic character reflected in the ethnic structure and geographic settlement pattern of the Kenyan society stemming from the political negotiations that were taking place simultaneously and laying a basis for inter-ethnic conflict which continues to erupt in the Rift Valley region even today.
Whereas these resettlement schemes, to some degree, placated the African demands for altering the racial structure of land ownership in the Highlands, the colonial administration favoured policies that provided incentives to contribute to the settler economy, rather than to solve the hunger for land.
We are still living under the cloud of this problem and because of some of the laws passed in that era, even the New Constitution is unable to resolve many aspects of the land problem in Kenya.