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Land Tenure

The critical problem facing Kenya’s land tenure system is the inequitable distribution of land, rooted in land injustices of the past, in some acts that were illegal, while others were illegitimate or unfair. The combination of an ever-expanding population, settler legacy, poverty, corruption, elite impunity, and an inadequate land law system make the ownership, tenure, and use of land one of the most volatile questions in Kenya today and one of the most serious impediments to economic development.

Ethnic clashes; slums and squatters; poverty and a lack of available capital; corruption and political malfeasance -- all either reflect or are reflected in the problems arising from Kenya's land rights and distribution regime. The proposed 2007 National Land Policy made an attempt to solve some of these problems, but if translated literally into law, could have gravely detrimental unintended consequences for Kenya's economy.

Kenya's land mass can be roughly divided into three regions: fertile agricultural; arid and semi-arid (ASAL); and coastal. The fertile agricultural land (roughly the central and south-east parts of the country) comprises about 17% of Kenya's surface area and supports some 75% of Kenya's 36 million people; it is the epicenter of Kenya's agriculture-based economy. About 50% of this rich agricultural land is owned by less than 20% of the population. Nationwide, it is estimated that only about 18% of the population owns more than 1.5 acres (approximately 13% of Kenyans are landless and about 69% own one and half acres or less).

Within this select 18%, it is widely believed that there are a fortunate few who own most of Kenya's valuable property. While no one knows exactly who they are and what they own, a group of former and current politicians and power brokers, together with the remnants of the white settlers and a few well-connected businessmen and farmers, collectively own hundreds of thousands and maybe even millions of acres of land. Tens of thousands of these acres were bought legally, albeit with the taint of inappropriate political influence. Thousands more, however, were acquired illegally, often through programs putatively designed to distribute land to squatters and the landless. To add insult to injury, a significant portion of these large land holdings are not being developed or used; they are being held as speculative investments by absentee landlords.

For the average Kenyan, this situation is simply galling. Land, and the appertaining agricultural, water, and grazing rights, are not only the greatest source of wealth accessible to them, but are also of enormous cultural importance. For most Kenyans, the possession of land, the raising of crops and livestock, and the obtaining of mortgages to raise capital for further development is the only route out of poverty. Land ownership is highly valued as a status marker for most of Kenya's ethnic groups (cattle ownership, which necessitates grazing land, serves the same purpose for pastoralists).

As the population increases, owning enough land to prosper, or even to survive, is becoming an increasingly difficult proposition. The population of Kenya increased almost 400% in the four decades since independence while the amount of land has remained the same. Even under the best land system, demographic pressure alone would make land rights a very serious issue. Kenya's land system is far from the best, and the lack of available land is exacerbated by chronic uncertainty over who owns what land and perceived injustices, both historic and current. This potent mix retards development, contributes to widespread poverty, and creates such frustration and anger that violent intercommunal clashes over land are common, especially in election years.

The history of Kenya's land problems is rather complicated. In broad strokes, from the late 1880s to the mid-1950s, the British colonial government took overt control of about 50% percent of the prime agricultural land (mostly in the middle of the country) and large parts of the coast. In some instances the land was simply taken; in others, it was ceded to the British government by treaties of questionable fairness, often by leaders who had no authority over the land they ceded. Much of this land was either sold or leased to white settlers and became famously known as the "White Highlands". Estimates of how many thousands of Kenya's people were displaced by this process vary; it is certain, however, that millions of acres of high-quality land came under direct British colonial control and use.

The rest of Kenya was largely "native" land, which was held "in trust" by the British government for the benefit of its inhabitants and was not as closely controlled by the colonial government. Most of Kenya's ASAL regions and much of the good agricultural land not occupied by the settlers fell under this category. Finally, some areas were designated as "crown" land, which reserved the land for the use of the British Government. Land one mile on either side of the Kenya-Uganda railway, for example, was "crown" land, as were large parts of Kenya's coast, forests and riparian areas. Legally, the "native" lands were also "crown" lands and thus their inhabitants could be alienated from their lands at any time. In practice, this did not happen with great frequency, as much of the land was ASAL and thus of little value to the settlers.

In the lead-up to independence, the British government attempted to place land back in the hands of indigenous Kenyans through a series of settlement and re-purchasing programs. The programs met with mixed success; while many thousands of families were resettled on the land they had lost, the Kenyans who had become politically powerful and/or wealthy during the colonial period were able to purchase vast tracts of the best land, leaving much of the population with the left-overs or nothing at all. During the 1950s Mau Mau insurrection, many thousands of Kenyans, primarily of the Kikuyu tribe, lost their lands. While some of them were resettled, many more were not. At independence in 1963, the newly-empowered Government of Kenya (GOK) decreed that whatever land rights were in existence at the time would be confirmed and upheld.

The decision by the post-independence GOK to maintain the colonial period status quo for land rights at independence was, in essence, a perpetuation of the land rights system used by the British. The land purchased from the settlers or redistributed by the British government became private land. The land the British had declared crown land became government land. The President, through the Commissioner of Lands, took on the powers of the colonial governor to allocate that land as he saw fit, although ostensibly only for "public interest." Most "native" land became "trust" land, governed by county councils in trust for the inhabitants. Many of the problems of the colonial period also persisted, if with different actors. "Private" land was, and still is, largely owned by the rich and powerful and obtained through a combination of (often ill-gotten) wealth, luck, and influence peddling. Thousands of Kenyans were, and still are, landless squatters.

During the 1980s and 1990s, the GOK badly abused its right to dispose of "government" land, selling, leasing, or simply giving large blocks of it to foreign investors, companies, government officials, or well-connected businessmen and farmers, often to buy political influence or acquiescence. "Trust" land was also abused extensively during the same period, with allocations to those who had no connection to the communities occupying the land other than corrupt relationships with the county councils. One of the most authoritative studies done on land tenure in Kenya, the Judicial Commission of Inquiry on Illegal and Irregular Allocation of Public Land ("Ndung'u Report"), estimates that 90% of the land titles issued in the past twenty years had been either illegal or the result of influence-peddling. Other estimates state that of the 1.5 million registered titles in Kenya, fully 500,000 are illegal.

While most of Kenya's ethnic groups have suffered land deprivations at the hands of the British, the GOK, or both, the inhabitants of Coast Province, about half of whom are Muslim, have arguably suffered the most. Their problems date back to 1888, when the Sultan of Zanzibar (who at the time controlled much of the East Africa coast) ceded to the Imperial British East Africa Company virtually all rights to land in a ten-mile wide strip along the entire coast of Kenya. The strip actually went from Tanzania to Somalia.

In 1908, the colonial government passed a law stating that all land in the ten- mile strip would become "crown" land unless the inhabitants could assert their rights to ownership during a six-month window. Most coastal inhabitants either could not produce the requisite paperwork, or did not even know of the requirement. Accordingly, when the window closed almost all of them lost their rights to their land. At independence, virtually none of the land became "private" land under the ownership of the indigenous people. The vast majority became either "government" land or "private" land under the ownership of foreign investors or wealthy Kenyans from other parts of the country.

Perhaps as nowhere else in Kenya, the GOK abused its authority over "public" land in Coast Province. In just one example, six salt companies were given 10,465 hectares of "public" land with no regard for the welfare of those living on the land. According to GOK estimates, 11.3% of the residents of Coast Province have no legal rights to the land they have occupied, in some cases, for generations. Other estimates put the number as high as 80%.

One of the other ethnic communities with a particularly acute land claim is the Masai. In the years before the British arrived, the pastoralist Masai controlled as much as a third of modern Kenya and numbered perhaps 400,000. The Masai had acquired control of these enormous tracts of land by dispossessing other Kenyan communities, especially the Kamba. In the last few years of the 19th century, however, they lost perhaps 90% of their population to famine after a series of diseases decimated their herds. The British, seizing on this weakness, "convinced" the Masai to enter into two treaties, one in 1904 and one in 1911, which gave the British government huge tracts of land in central Kenya under what was supposed to be a 99-year lease.

These lands formed the lion's share of the "White Highlands." However, during the colonial period and after independence, that land was either re-leased or sold outright. When the original 99 years expired, none of the land was returned to the Masai. The population of Kenya's Masai is now somewhere around 500,000 and more and more would-be Masai herders have no land for their cattle. Illegal land dealings within the Masai community itself have caused a large part of their problems, but their claims to the land taken from them by the British and the GOK have become a lodestone for those seeking to reform Kenya's land system.

The GOK has made several efforts to examine, if not address, the inequities and illegalities present in Kenya's confused land system. In 1972, the GOK set up a Special Committee to assess land problems in Coast Province. In 2002, it commissioned a special report on existing land law and tenure. In 2004, the Ndung'u Report, which concerned the illegal or irregular allocation of "public" lands, was published. The Ndung'u Report in particular caused quite a stir, as it stated "[t]he powers vested in the President to make grants of [government land] have been grossly abused over the years by both the President and successive Commissioners of Lands and their deputies." The Report also pointed to local authorities as being complicit in the "unbridled plundering of public lands."

The Ndung'u Report was widely praised and was adopted in full by the GOK Cabinet. However, very little has been done to act on any of the problems it cataloged or the recommendations it made. In the first two years after the Report was published, a paltry 133 titles of illegally or irregularly allocated public land were given back to the GOK. While there were some unsubstantiated rumors that the Ministry of Lands had begun to accelerate its implementation of the Report, notably canceling a rumored 600 illegal titles, it was not doing so publicly.

With the death toll approaching 150 and the number of displaced persons rising to above 61,700, by April 2007 the conflict over land settlement in the Mt. Elgon district of Western Kenya had become a major political issue. The Kibaki administration promoted dialogue among the warring factions and increasing security forces in the area, which only addresses the symptoms. The underlying causes of the conflict were layered, with clan identity, corruption, and patronage playing prominent roles. Untangling these issues and establishing a firm basis for communal harmony in the region was further complicated by the politics of Western Province, one of Kenya's more politically contested regions.

Mt. Elgon's slopes, an extinct volcano, are exceptionally fertile, which has made the region the breadbasket for much of Western Province and beyond. The Mt. Elgon region, located on the Kenya-Uganda border, is primarily populated by members of the Kalenjin/Nilotic ethnic group. The Kalenjin account for approximately 11 percent of Kenya's population and are comprised of a collection of small ethnic groups amalgamated into one ethnic identity largely for political mobilization purposes. One of these small ethnic groups, the Sabaot, is at the center of crisis in Mt. Elgon. The Ndorobo clan of the Sabaot are traditionally forest dwelling hunter-gathers living on the upper slopes of Mt. Elgon around Chepkitale peak. The Soy clan, traditional pastoralists and cultivators, reside on the lower slopes of Mt. Elgon.

Violence escalated in Mt. Elgon in November 2006 between the two Sabaot clans. There has been tension and occasional violence between the two groups since 1971, when a settlement program brought them into conflict over land allocations. The Ndorobo traditionally have a low status relative to the Soy. The land settlement scheme was intended to make farmers of the Ndorobo so that they would no longer depend for their sustenance on the local flora and fauna in an ecologically unique and sensitive area. The population living in the resettlement area has grown since the inception of the scheme, resulting in too little land available to accommodate the expanding population. The land allocations under Phase III of the settlement program resulted in the eviction of approximately 3,000 Soy by GOK security forces to clear land intended for resettled Ndorobo.

In addition to the complaint that the land allocations disproportionately benefit the Ndorobo at the expense of the Soy, the Soy accuse the government of corruption in land allocation decisions. Local leaders and land officials are accused of distributing land unfairly in an attempt to reward particular communities at the expense of others.

The concerns regarding inequitable distribution of land in Kenya are legitimate and the historical injustices real. Their reality is reflected in the current ethnic violence over land. There are layers of injustices, however, beginning in the colonial period and extending into the present. Disentangling them to achieve “justice” will be difficult and complicated by the fact that a part of the land has moved through market channels to good faith purchasers, often small and medium Kenyan farmers.

Some injustices have created serious resentments among ethnic groups, and those groups are major political players today. Reforms that cut these ethnic lines can be perceived as new injustices and, if badly managed, can increase rather than resolve conflict. They can become fodder for unscrupulous politicians who are more interested in using issues to drive political wedges to their own advantage than in resolving those issues.

A 2004 concept paper called for a National Land Policy and identified several broad needs of the land sector. A National Land Policy Secretariat located in the Ministry of Lands [MoL] undertook the task of developing the national policy, working through six thematic groups and numerous subgroups. A “final” draft was approved by a 600-stakeholder symposium in April 2007 and then approved by the MoL in May 2007.

The mandate of the National Land Commission (NLC) is drawn from the National Land Policy of 2009, Constitution of Kenya 2010, National Land Commission Act, 2012, the Land Act 2012 and the Land Registration Act of 2012. The NLC has facilitated acquisition of land and compensating affected persons for road constructions and creation of wayleaves. It is continuously addressing public complaints regarding land issues, either through written memoranda or visits by delegations and individuals to Ardhi House.