Land has been a highly complex and emotive subject in Kenya. It not only serves as the primordial factor of production for supporting community livelihoods, but also embodies the social, cultural, and spiritual identities of more than 40 indigenous communities who regard Kenya as home.
In pre-colonial times, land tenure in Kenya was governed through the application of customary laws that differed between communities.
Between 1895 and 1897, the British government extended the Land Acquisition Act to the East African Protectorate against the backdrop that all lands that, according to European understanding, were wasted and unoccupied were declared Crown Lands (Sorrenson 1968, Okoth Ogendo 1991).
At this point, the myth of protecting African land rights translated into alienation of the land actually occupied by native populations.
The settlers’ insatiable desire for land and their displeasure with legal strictures on native lands instigated a confrontation with the Foreign Office in which the battlefield resided in formulation of laws and ordinances elaborated to regulate tenure regimes.
The colonial administration, which was backing the settlers, gradually obtained disenfranchisement of Africans and neutralisation of native legal land entitlement.
Pioneer European explorers and administrators used the term Highlands to refer to the region not less than 5,000 feet (1,524 metres) above sea level, which was best suited for Europeans to farm and reside.
During the settlement process, the term came to be used for areas not already occupied by local African tribes, and as the Crown Lands Ordinance of 1902 permitted grants only to Europeans, the term came to mean the land only Europeans could own and manage and was subsequently known as the White Highlands.
At the beginning of European settlement, the White Highlands were inhabited by nomadic pastoralists and this absence of settled agrarian communities allowed the British to regard the region as uninhabited.
In 1915, the Crown Lands Ordinance lifted the interdiction of alienated villages Africans farmed by extending the Crown lands to include native reserves. The latter was formalised by the Native Reserves Ordinance of 1926.
The Carter Commission of 1932 undertook a review of land issues in the entire territory of Kenya, from the colony (western and central districts) to the coastal strip protectorate and to the Northern Frontier District comprising the arid and semi-arid territories of the north.
The salient conclusion of the commission was the definition of African rights to land as amounting to usufruct rights, minimising the possibility of entitlement (titling) to these rights.
Its proposals were effected through a series of laws and regulations including the 1938 Native Land Trust Ordinance, which converted land in the reserves from Crown lands to Trust land under the Native Land Trust Boards.
The legal ramification of the trusteeship model was that Africans only retained user rights where they could manage the land in accordance with traditional practices with the ultimate administrator being the trustee who acted as the intermediary between the statutory system established by the colonial government and the “natives.”
In this model, the African populace was considered unfit to interface directly with either the State or the market.
At independence in 1963, the trusteeship model was retained. The responsibility for trust lands was conferred upon local authorities, the county councils, which acted as legal administrators on behalf of native communities until the promulgation of the new Constitution in 2010.
These councils were delegated the power to lend/lease concessions on trust lands to individuals or corporate entities, to sanction land alienation and privatisation, as well as to adjudicate land.
Unfortunately, given these sweeping powers, administration of trust lands (as well as public lands) has remained a domain of public action that is subject to endless political interference. Centralisation of executive power has led to extensive “land grabbing” benefiting the national political and economic elites.
The Ndung’u Commission of 2002 revealed the many abuses of the trusteeship model.
Although the process of land adjudication, consolidation and issuance of title which was started in the mid-1950s, is largely complete in Central and Western regions, Trust land is still the most extensive land tenure category in the country in terms of sheer land mass, especially in the semi-arid north and parts of Maasai land.
It is as if we are stuck in a time warp. More than 100 years later we still have these lands being managed by conservancies on behalf of communities. Entrenched political and economic interests continue to hold these communities at ransom. For how long?
