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Ogiek Land Cases
Historical Injustices

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Chapter 6: Kenya Land Policy since 1900

     Land policy in Kenya and its legal development has a long history. This is attested to by the long list of policy papers, reports and commissions set up by the various regimes.

     On 15th June, 1895, what is largely known as Kenya was declared a British Protectorate. The legal effect of the declaration was merely to confer on the British crown Political Jurisdiction over the area, whilst it remained a foreign jurisdiction. Beyond that, the declaration of Protectorate did not confer any rights over land in the territory. Any rights over the land would have to be on the basis of conquest, agreement, treaty or sale with the indigenous people. In 1897, the Indian Land Act was extended to the territory, thus enabling the appropriation of lands in the main land beyond Mombasa for public use. This appropriation was however limited to land within one mile of either side of the railway line.

     To overcome the problem of title to land in the territory, in 1899 the law officers of the crown advice that the Foreign Jurisdiction Act, 1890 empowered the crown to control and dispose waste and unoccupied land in the protectorates with no settled forms of government and where land had been appropriated to the local sovereign individuals. In 1901 the East African (Lands) ordinance-in- council was enacted conferring on the commissioner of the Protectorate (later named Governor) power to dispose of all public lands on such terms and conditions as he might think fit.

     The land, now called crown land was vested in the commissioner in trust for the British crown. This was effectualised in the crown land ordinance, 1901, which defined crown land as all public lands within the East African Protectorate which for the time being are subject to the control of his Majesty by Virtue of any Treaty, Convention or agreement or by virtue of His Majesty’s Protectorate and all lands which have been or may hereafter be acquired by His Majesty under land acquisition Act, 1894 or otherwise however. The Crown Land Ordinance, 1902 followed suit and empowered the commissioner to sell free holds in crown land up 1,000 acres to any person or grant leases of 99 years.

     The Swynnerton Plan of 1954, the Kenya Land Commission of 1932-4 to the East African Royal Commission of 1953-55, are some of the commissions set up to look into land cases. Along the road, little was done to eradicate some of the anomalies introduced by the colonial authorities in the early legislations.

     The most pressing concern for indigenous communities the world over is land, its use and occupation. Land is not an asset that they should only posses, but it is also a spiritual element that defines their cultural heritage and identity.

     The primary objective of the law since Kenya became a colony was to consolidate land and its various resources within the hands of the ruling elites class, which is essential for political control in an agrarian society and its related set ups. This indeed explains the antagonistic relationship between the government and local communities on usage of forest resources. This is the situation the Ogiek found themselves in alongside other Kenyans, when the law was perceived to be aiding and abetting the interest of one group over them. The law has lost legitimacy for the same elite encroached on the forest at the pretext of settling landless people. The absence of a comprehensive land policy is to be blamed for all these wrongs.

     In Kenya, the Ogiek are known as natural conservationists and have co-existed with nature and its bio-diversity for their survival. However, their livelihood is now under threat as the forest resource, which is their only home, is being systematically degazetted by the state to facilitate logging and flower plantations for the European markets, as well as for political gains and mileage.

     Before the establishment of British rule in 1895, Kenyan communities occupied certain portions of land where they lived either as pastoralists, cultivators or as hunters and gatherers, while some communities cultivated and fished. Their land laws were the customary laws. After the British rule was established in 1895, the Crown asserted it was the sole owner of all the land and defined the rights that were to be recognized. This was made clear in the Crown Lands Ordinance of 1902.

     Initially, the Crown Lands Ordinance respected the customary land rights to some extent, and this made the colonialists unhappy. The 1915 amendment of the Crown Lands Ordinance facilitated the dispossession of the Africans of their land. It was during this time that some parts of Mau Forest were recognized as Crown Lands. In most cases, the indigenous owners of the confiscated land became labourers of the British farmers.

     The 19O2 Crown Lands Ordinance, the first version of today’s Government Lands Act, Chapter 280 of the Laws of Kenya, recognized a situation where the indigenous people would be allowed to continue occupying land, which had been taken away by colonialists. This caused great anxiety. Consequently, some of the Crown Land Native Reserves were to be designated from which the colonialists were excluded. Between 1919 and 1939, many Native Reserves were reclaimed.

     The history of Kenya between 1918 and 1939 is one of trying to increase the indigenous people’s security of tenure, and since the economy was agricultural, the land question was a constitutional issue, as it is today. The British government appointed the Kenya Land Commission, which inquired into the land issue and made its recommendations. One of the far-reaching recommendations that resulted in the establishment in 1938 of Land Racial Reserves was the one referred to above. The forests have since 1901 been part of government land. Under the Forest Act, through degazettement, land, which was once a forest, could cease to be a forest. The Forest Act, Chapter 385 came into operation on 1st March, 1942. Ever since that time the official day light robbery of the Ogiek lands via power of the pen has become common. The genesis of Ogiek problems has its root cause in this colonial arrangement.

     The government has initiated a number of land reforms, but in all these, the Ogiek do not benefit as they have been ruthlessly marginalized. For instance, in the land reforms of 1957, the Olenguruone area council trust lands were allocated to other tribes, but the area that was set aside for the Ogiek was declared Free Land. This was not convenient for their cultural and economic activities, but the part of land they were claiming was said to legally belong to the government, hence, State Land.

     According to the Kenyan Constitution of 1963, section 205, all land formerly belonging to the British Crown (Crown Lands) was transferred to the President of Kenya on behalf of the Government of Kenya. By the Crown Land Ordinances of 1902 and 1915, such lands included:

     The Ogiek were, therefore, said to be illegally occupying government land, hence they became squatters, in their own land. This problem of land rights delivery is best captured in the report of the Kenya Land Commission of Inquiry into the land laws and systems and I quote, “Land rights delivery is a process which entails the mobilisation of instructional mechanisms and personnel for ascertainment of rights, registration, demarcation and/or survey, the preparation of cadastres and land market regulation among others. These are processes which, in Kenya, are run as part and parcel of public administration. The operation of the specific modalities established for this purpose, therefore, has always been overtly political. At the territorial level, Government and Trust Lands are administered by the Commissioner for Lands directly or in the case of the later on behalf of county councils. This means that ultimately access to land in Kenya is controlled by the Commissioner. Although procedures exist in the Government Lands Act for the proper notification to the public of land available for grant and for the assessment of applications, these are routinely ignored or by-passed by public officers in the Commissioner’s office. Private (i.e. registered) land is administered by the proprietors themselves but under the facilitation of a complex bureaucracy consisting of staff from central government line ministries, local political functionaries and local or traditional administrators. The overall effect is that decision making on these issues is often contradictory and ineffectual. Need therefore exists to rationalised and simplify this system.

     Between 1969 and the 1990s, the government established Lake Nakuru and Mauche Settlement Schemes, with the aim of settling the landless Kenyans including the Ogiek community. However, this was never to be the case, for those settled were senior civil servants, politicians and businessmen. East Mau Forest alone has 1,700 senior government officials each with 50 acres and above. Between 1963-71, 48,000 hectares of land were excised from government forests across the country.

     The Ogiek were probably the first people in East Africa to have a well-defined land tenure. This land tenure composed of land tenure, animal tenure and tree tenure. First, the land is divided amongst various branches of the Ogiek lineage. The major branches are:

     Individuals enjoyed subsidiary rights of use and occupancy of communally owned land. Permanent features such as swamps, glades, rivers, sacred sites and trees served as boundaries. Each clan had their own parcel of land and others respected this. There was land for use during the dry season and land for use during the rainy season. These land holdings arrangement were meant to solve disputes arising from disagreements. Trespass to another clan’s parcel of land would mean instant death by poisoned arrows. This mode of land tenure made them great environmentalists of the past and the present.

     The legislation concerning forest is fairly comprehensive and spread over various acts, which are administered without coordination by a wide range of public bodies and individuals (see Kenya Forest Master Plan, 1994). These acts include:

     A brief look out of these legislation gives us the following picture:

The Trespass Act, Chapter 294

     This Act was enacted in 1963 and revised in 1982. This Act makes provisions with regard to trespass on land. In this Act “Private Land” means:

     The Trespass Act is an act of parliament to make provision with regard to trespass on land. As such it would readily apply to the administration of forests, as they are private property to the Kenyan people. The definition of private land in the Trespass Act read with Sec. 4 of the forests Act could make forests private land.

     Trespass arises where a person causes physical matter to come into contact with another’s land. Trespass, therefore, protects an occupier’s right to enjoy his or her land without unjustified interference.

     The side-notes to section 3(1) read “Trespass upon private land”. Thus the operative terms here are private land. The complainant can only have a valid compliant if the land on which the trespass is claimed to have taken place is private land. It should be noted that the absurdity of this charge becomes even more obvious when one considers that in a charge under section 3(1) the charge sheet must allege that the entry into the land was “without reasonable excuse” and “Without the consent of the occupies thereof”.

     This act reduces the conservation and protected areas into a private property, owned by the business and rulings class indirectly, but invoking the government title to conceal the truth.

The Registered Land Act, Chapter 300

     The Registered Land Act is an act of parliament to make further and better provision for the registration of title to land, and for the regulation of dealings in land so registered, and for purposes connected therewith. This Act was enacted in 1985 and revised in 1989 applies to the following areas:-

  1. Every area to which, immediately before the commencement of this Act, the Land Registration (Special Areas) Act applied;
  2. Any area to which the land Adjudication Act applies;
  3. Any area to which the minister may, by orders, apply this Act; and
  4. All land which from time to time is set apart under section 117 or section 118 of the constitution.

     The idea behind the RLA was to get simple code that could be understood by a majority of people in Kenya. The act has simple particulars and provisions governing land transactions under the Act. The Act contains various statutory forms that need to be filled by parties to the transactions. Their signatures need to be attested after which the forms are to be forwarded to the Registrar for registration.

     Section 109 of the RLA states that any disposition of land, lease charge must be in the prescribed form. Every instrument must be signed by both or all parties to the transactions.

     Sec. 14 of the Act defines what is meant by first registration under sec. 143(1) a first registration shall not be questioned and the register shall not be rectified in so far as the first registration is concerned.

Trust Land Act, Chapter 288

     This Act was enacted in 1939 and enacted in 1962and came into force in 1963. It was revised in 1970.Under this Act, “Trust Lands” refer to what were previously known as “Native Reserves” or “Special areas”

     Chapter nine of the constitution of Kenya deals with Trust Lands. Section 115 vests the Trust Lands in the County Councils to hold “for the benefit of the persons ordinarily resident on that land”. The County Councils are enjoined to give effect to such rights, interest or other benefits in respect of the land as may, under African Customary Law for the time being in force and applicable thereto, be vested in any tribe, group, family or individual”. The frame work for administering trust land is set out in the Trust Land Act.

     Sections 53 of the Trust Lands Act confers direct powers to the commissioner of lands to administer Trust Lands on behalf of the County Councils. The Commissioners mandate may be terminated by the Minister where the ministers is satisfied that the council has made satisfactory arrangements to administer its trust land by itself.

     In administering the trust lands, the commissioner of lands may:

     That the commissioner of land is also the one who on behalf of the President administer government land under the Government Lands Act raises questions whether the Commissioner of Lands can be trusted to administer the trust envisaged by the constitution on behalf of the local residents.

     Indeed, experience shows that section 53 has created a leeway which has been used to appropriate trust lands and deny the local inhabitants the benefits envisaged by the Constitution. The manner in which Trust Lands have been managed has excluded the communities altogether.

The Forest Act, Chapter 385

     This is an act of parliament to provide for the establishment, control and regulations of central forests, forests and forest and on unalienated government land. Forest areas means an area of land declared under section 4 to be a forest area.

     Section 4(1) empowers the Minister from time to time, by notice in the Gazettee:-

  1. Declare any unalienated Government land to be a forest area:-
  2. Declare the boundaries of a forest and from time to time after those boundaries;
  3. Declare that a forest area shall cease to be a forest area;

     Section 4(2) Before a declaration is made under paragraph (b) or paragraph (c) of subsection (1) twenty - eight days notice of the intention to make the declaration shall be published by the minister in the Gazette. The Forest Act was enacted and became operational on 1st March 1942. It was amended in 1962, 1957 and revised in 1964.

The Wildlife (Conservation And Management) Act, Chapter 376

     This is an act of parliament to consolidate and amend the laws relating to the protection, conservation and management of wildlife in Kenya; and for the purposes connected therewith and incidental thereto.

     Its objective is to make sure that wildlife is managed and conserved so as to yield to the Nation in general and to individual areas in particular, optimum returns in terms of cultural, Aesthetic and scientific gains as well as are incidental to proper wildlife management and conservation and which may be secured without prejudice to such proper management and conservation. It to ensure that full account is taken of the varied forms of land use and the inter-relationship between wildlife conservation and other forms of land use. ThisAct was enacted in 1976 and 1989 and amended again in 1997. it was revised in 1969.

The Agriculture Act, Chapter 318

     This is an act of parliament that came into operations in 1980, revised in 1986. Its purpose is to promote and maintain a stable agriculture to provide for the conservation of the soil and, its fertility and to stimulate the development of agricultural land in accordance with the accepted practices of good land management and good husbandry.

     Agricultural land means all land which is used for the purposes of agriculture, not being land which under any law relating to town and country planning, is proposed for use for purposes other than agriculture.

     The state intervention has taken two forms:

  1. Regulation of use and development of agriculture land.
  2. The control of transaction in agriculture land.

     The primary objectives have been first of all to secure proper utilization and management of agriculture land so as to maximize output. Secondly, to ensure that economic units are efficient agricultural production, thirdly to ensure that those who hold agriculture land are able to farm it well.

     The statutory frame work for the realization of these is provided by the Agriculture Act Chapter 318; which is concerned with the regulation of use and development. Secondly by the Land Control Act, Chapter 302, which deals with agriculture transactions.

     The objectives of the Agriculture Act are

     The institutional framework within which these objectives are pursued is as follows. There is the

     Sec. 22, 25, 29, 32, 35 and 37 deals with the composition and function of this institution.

     Parts iv, v, xii, xiii deals with the normative framework for the regulation and development of Agriculture land.

     Under section 48, the Minister has power to make rules for the conservation of the soil and the prevention of the adverse effect of soil erosion on land.

     Part (xii) and (xiii) of the Act which also deals with preservation, utilization and development of Agricultural land have for reaching implications for access or ownership of agricultural land.

The Water Act, Chapter 372

     This is an act of parliament to make better provision for the conservation, control, apportionment and use of the water resources of Kenya, and the purposes incidental thereto and corrected therewith. The Ogiek have lived and learned to exist since creation time. Today our rulers behave as if without laws our water bodies cannot be protected. They tend to forget that in every society there are rules and regulations.

The Fisheries Act, Chapter 378

     This is an act of parliament to provide for the development, management, exploitations, utilization and conservation of fisheries and for connected purposes. This Act came into operation in 1989.

Government Land Act, Chapter 280

     This Act was enacted in 1915, repeated in 1970 and revised in 1976. It originated in the Crown Lands Ordinance of 1902. The GLA deals with government grants prior to 1920 whether leasehold or freehold. The register under the GLA is modeled under the Land Title Act, that is its system of registration of documents. Under this system it is necessary to trace title backwards up to the government grant. Conveyance under the GLA must be by way of deed. A deed has three essential requirements. It must be signed sealed and delivered.

Land Adjudication Act, Chapter 284

     Under this act, claims for Adjudication and award of title are made. Once an area of land has been declared to be subject to adjudication, any claims made in respect to the land are dealt with Act. The titles granted under Registered Land Act, Chapter 300. The title under RLA is guaranteed by the state and anyone who suffers loss by reason of mistake is to be indemnified by the state. The general rule under the RLA is that the proprietor’s title is unimpeachable except in the case subsequent registration which can be impeached on the grounds of fraud and mistake. A first registration cannot be questioned under the Act. This Act came into operation in 1968 and revised in 1970.

The Land (Group Representatives) Act, Chapter 287

     This is an act of parliament to provide for the incorporation of representatives of groups who have been recorded as owners of land under the Land Adjudication Act, and for purposes connected therewith and purposes incidental thereto.

     In this act group representatives means where at a meeting held under sections of this Act the members of a group resolve that group representatives shall be incorporated, and elect not more than ten and not less than three persons to be group representatives, the persons so elected shall make application to the registrar in the prescribed names for theirs incorporation under this Act.

     Part III of this Act deals with the incorporation of Group Representatives. Part IV of the Act lays down how the groups are administered.

The Antiquities And Monuments Act, Chapter 215

     This is an act of parliament to provide for the preservation of antiquities and monuments.

     In this act “antiquity” means any movable object other than a book or document made in or imported into Kenya before the year 1895, or any human, fauna or floral remains of similar minimum age which may exist in Kenya.

     In this Act, “monument” means

  1. An immovable structure built before the year 1895 other than an immovable structure which the minister may by notice in the Gazette either specifically or by reference to all immovable structures in a specified area declare not to be a monument for the purposes of this Act;
  2. A rock –painting, carving or inscription made on an immovable surface before that year;
  3. An earthwork or other immovable object attributable to human activity constructed before that year;
  4. A place or immovable structure of any age which, being of historical, cultural, scientific, architectural, technological or other human interest, has been and remains declared by the minister under section 4(10)(a) to be a monument.

     Part II of the act deals with protective declarations, part III of the Act deals with searches and discoveries, part IV protected areas, part V monuments, part VII export and part VIII of the Act deals with powers of enforcement.

Chief Authority Act, Chapter 128

     This is an Act of parliament to make provision in regard to the powers and duties of chiefs and to provided for matters incidental thereto.

     Part II of this act deals with duties of the chiefs, his powers, penalty for disobeying his orders and offences by chiefs. Part III deals with famine relief.

     This Act was amended in 1997 during the IPPG (Inter parliamentary Group, thus making the functions of the holder of office people friendly, as it reduced the oppressive powers.

     Looking at the above acts, it is clear that most of the land laws were enacted after independence, thus, each of the laws impacted on the Ogiek way of life both directly and indirectly as it sought to dismiss their very existence and survival.

     If the government were seriously concerned with the Ogiek plight, an Ogiek Land Act would have been enacted. In doing so, the harmonisation of all this legislation would have been eased, and today, Kenya’s water towers would be intact and safe. Any encroachment would have been met with the stiffest resistance and zeal.

     This might sound unbelievable, but if one were to closely examine the whole complex transactions of the extractions of our natural resources alongside the sustainable development process, one would arrive at the conclusion that our national states, corporations and global elite have had their chance to attain “sustainable development” within the last 10 years since Rio. National and international protocols have largely failed both the forest and the communities who depend on them. This sorry state is repeated across the continent and is the genesis of the ecological conflicts which seem to bedevil our national planning and development process.

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Copyright © 2004, Ogiek Welfare Council and Towett J. Kimaiyo.
Reproduced with permission of Towett Kimaiyo.
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