Colonial Kenya - Compartmentalization of Land
An early problem in attracting settlers was the question of land titles. IBEAC had made almost 100 treaties with tribal leaders, but these did not assign land rights. After establishment of the protectorate, responsible authorities in London had recommended against the alienation of land, their opinion being that in a protectorate the land did not actually belong to the crown. Unoccupied land, however, could be assigned for occupation on a land certificate basis not involving a transfer of title. The following year authorization was given for such certificates to be issued for a fixed time period.
European settlers wanted freehold grants, however, and by 1899 the British government had concluded that wasteland and unoccupied land found in such jurisdictions as the East Africa Protectorate and "occupied by savage tribes" actually came directly under the control of the crown; such land, therefore, could be granted to settlers without restrictions. The Crown Lands Ordinance of 1902 made provision for the sale and leasing (for a maximum of 99 years) of such land. The commissioner was given considerable leeway in making rules to im- plement the ordinance, and Eliot subsequently established provisions permitting an initial allocation of 160 acres, which could be increased to a maximum of 640 acres. The settlers from the beginning objected strongly to the lease's length, which they felt introduced a considerable degree of insecurity, and in 1915 the lease term was increased to 999 years, i.e., to be held in perpetuity.
Of particular significance was the 1902 ordinances provision that only temporary occupation licenses, limited to one year and a maximum of five acres, might be issued to Africans and other non-Europeans who were considered qualified to use the land. This provision was immediately applied to all Asians seeking to obtain land in the highlands area. Moreover, in the next year specific instructions were issued by Eliot that land for Asian settlement was not to be issued outside town boundaries in a broad area from the eastern highlands to the western edge of the Rift Valley.
Despite Asian complaints the Foreign Office backed Eliot. In 1905 jurisdiction over the protectorate was transferred to the Colonial Office, which initially tried to exercise greater discretion in allowing European settlement when it came at the expense of the indigenous population. But the rules that Eliot had established held until 1915, by which time almost all of the most desirable agricultural land had been alienated to Europeans. The new Crown Lands Ordinance of 1915 perpetuated the restriction by authorizing legal limitations to nonwhites (including Asians) on ownership, acquisition, management, and other matters involving land in the highlands.
Early interpretations of land rights implied that Africans did not have title to any land but that their rights were only those of occupancy, cultivation, and grazing. If African-occupied land was no longer used it became wasteland and reverted to crown land status and thus could be assigned to Europeans. Advantage was taken of the provision when land containing an African settlement was leased. The settlement was excluded from the lease as long as it was occupied, but as soon as it was deserted, no matter how this might occur, it became crown land and part of the leased parcel.
Supposedly inalienable reserves were established for the Maasai by treaty in 1904, one south of the railroad, the other to the north in the Laikipia Plateau area. They were to be held in perpetuity, and settlers were to be excluded from acquiring any of this land. Gradual divergence in the development of the two Maasai groups caused the government to believe that it would be better for them to occupy one area. There was also considerable settler pressure to move the northern group from the Laikipia Plateau because of its fertile, well-watered land. The move to an enlarged southern reserve was finally effected in 1913 despite opposition from the northern Maasai. The northern area was then thrown open to European occupancy.
The Crown Lands Ordinance of 1915 also authorized the establishment of African reserves, but there was no guarantee of their inviolability even after official proclamation, for the protectorate government had the prerogative of declaring areas of any reserve surplus to African needs and disposing of them. For example, in the Nandi reserve in western Kenya some 44 square kilometers of the best land were taken in 1919 for use in the settlement of British war veterans.
The question of both African and European land security led during the 1920s and 1930s to the impaneling of several commissions of inquiry. Legislation in the late 1930s finally set boundaries for the so-called White Highlands, which enclosed a total area of about 43,250 square kilometers. Existing African land rights in these areas were voided, either with or without compensation. In contrast, certain European holdings in the midst of reserve areas were allowed to continue, although the established rents for such land and the residual land rights were transferred from the government to the appropriate reserve.
At the same time, the original existing African reserves were reclassified as native land instead of crown land. They were delimited and divided into nine units that were allocated to the principal ethnic groups. Certain other specified areas were made available for temporary reserves, and some additional land was designated for African leasehold. The remaining crown land outside the White Highlands was opened without regard to racial background, but this land generally was far less desirable. Population increases and the requirements of subsistence agricultural practices brought growing pressures on the reserves and helped fuel already long-existing African discontent over land.
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