THE RELATIONSHIP BETWEEN THE LAW AND LANDLESSNESS IN KENYA
Land in most forms of society, is the most important of natural resources required for the creation of wealth.
According to Njuguna and Baya (2008) , the centrality of land in human life made it the main struggle for Kenya’s independence from British colonial rule.
The present legal and institutional frame work of land tenure, land use and the system of acquisition and disposition of land rights which have been in place since the colonial times has brought about strife and tension in land matters.
Land tenure institutions along with related property rights regimes governing natural resources from the foundations of the land system. The system of land used in pre independence Kenya was the communal system of land whereby communities could share land amongst themselves.
When the British settlers moved to Kenya majority of them annexed the fertile parts of Rift Valley highlands and the Central highland in the former Rift Valley and Central provinces of Kenya.
Native Africans who had settled on these lands were forcefully removed and they became squatters on their own land.
Origin of squatting and the legitimization of this mode of living can be traced both to labour laws and land tenure systems in the 1920’s and also to the Muslim Tenant at Will with respect to squatting at the coast. The concept that land in Kenya was “terra nullins” (vacant land), and its citizens “tenants at the will of the crown “was at the heart of the colonial land tenure system.
Through this concept Africans didn’t have any legal ownership rights to the land they customarily owned; instead they had only user rights. Native Trusts Lands Boards were established to manage African affairs in the reserves. The boards established are paternalistic and very top down approach to land administration. Through this study we shall more be concerned with rights of violation in the Coast, Rift Valley and Central provinces which have a history of land injustices.
HISTORICAL CONTENTS OF THE LAND ISSUE IN THE COAST PROVINCE IN THE PERIOD BEFORE 1900
The period leading to the declaration of the Protectorate status of East Africa happened in August 15, 1985. In 1886, the British and German Governments established the Mwambao wa Pwani (ten mile coastal strip) and ceded control over it to the sultanate of Zanzibar.
The assumption was that the sultan’s subject within the Ten Mile Coastal Strip would retain certain rights to land vested in the Imperial British East Africa Company. This was a private company founded by Cecil Rhodes in 1987 and was given mandate by the British government to administer the East African protectorate.
On the 10 Mile Coastal Strip, the colonial regimes recognized the claim of the Sultan of Zanzibar. Only his subjects mainly those with some ancestral links outside Kenya could register land.
This meant that up to 25% of the indigenous population was turned into landless squatters unable to register the land that they had lived on for generations.
The squatter problem escalated due to rising populations, increased demand for land and the non restriction of land ownership in the country.
PERIOD UPTO 1908
During this period the British authorities in their quest to establish the full extent of land accorded to private ownership led to passage of two ordinances; the Registration of Titles Ordinance and Land Titles Ordinance. .
The symbiotic relationship with passage of the Registration of Title Ordinance was in respect of compulsory acquisition of land while the Land Titles Ordinance was passed in relation to giving the owners title of the land which had been compulsory acquired.
The Land Titles Ordinance provided at Section 17(1) ,”all land situated in any district area on phase to which this act has been applied concerning which no claim of ownership has been made …… shall at the expiry of the period provided (six months) be deemed to be Crown land and all things attached shall be subject to a right of interest evidenced by a certificate of title.”
Section 17 (2) provided that ” every certificate of title dully authorized under the seal and hand of the recorder of titles shall be conclusive evidence against all persons (including government ) of several matters therein contained that the person to whom the certificate is granted is the owner of the coconut trees , houses and buildings of the land.”
This ordinance was applied to Malindi, Lamu, and Tana River districts. Only claims lodged before 1922 were accepted by the recorder of titles in a process that took long.
As a result of the passage of these ordinances about 95% of all land within Mwambao was recorded in the name of Arab immigrants, the remaining 5% being declared Crown Land for lack of claim from the local ownership.
On the ten mile coastal strip, the Colonial Government recognized the claim of the Sultan of Zanzibar as his subjects could only register the land,
This meant that the local coastal community had lost all rights to the land and hence became landless. This meant that outsiders notably the Persians, Arabs and the British registered land and acquired titles in their names.
As a result, this lead to the emergence of absentee landlords.Inorder to establish the full extent of land accorded private ownership, two ordinances namely the Registration of Titles Ordinance and the Land Titles Ordinance were passed,
Registration of Titles Ordinance was in respect to the compulsory acquisition of land while Lands Titles Ordinance was passed in giving title of the land which had been acquired.
Section 17(1) of the Land Titles Ordinance provided that,’ all land situated in any district area on phase to which this act has been applied concerning which no claim of ownership has been made……shall at the expiry of the period (six months) be declared to be crown land and all things attached shall be subject to a right of interest evidenced by a certificate of title.”
Section 17(2) provided,” every certificate of title dully authorized under the seal and hand of the recorder of the titles shall be conclusive evidence against all persons (including persons) of several matters therein contained that the person to whom the certificate is granted is the owner of the coconut trees, houses and buildings on the land.”
This ordinance was only applicable to Malindi, Lamu and Tana River Districts. As a result of the passage of this ordinance, about 95% of all land within Mwambao was recorded in the name of absentee landlords and the remaining 5%being declared Crown Land for lack of claim from the local ownership.
As a result, the squatter problem escalated due to rising populations, increased demand for land and the non- restrictions of land ownership.Land injustices can be traced back to the decision of the Colonial Government to introduce a system of individual land title deeds under the Lands Titles Ordinance to those who claimed ownership rights within the Ten-Mile Coastal Strip.
Only a few inhabitants were aware of the process and few availed themselves to register land in their names. Absentee landlords continued to collect land rates from the local inhabitants who felt squatters in their ancestral land.
In 1963, the Independence Government started mechanisms to create new economic opportunities that did not address the Coastal people ‘land hunger”
In 1978, Settlement Schemes were established to address the unequal land distribution but the project did not take off immediately.
RIFT VALLEY LANDLESSNESS PROBLEM
With regard to Rift Valley, Africans did not have any legal ownership right to the land they customarily claimed instead they only had user rights.Native Lands Trust Boards were established to manage native affairs and which formed ethnically defined administrative units.
According to Mbithi and Barnes C.(1973) “the creation reserved by the Europeans stabilized what was a fluid land situation among the African people.”Land in Rift Valley was considered to be Crown Land.In Isaka Wainaina Kamotho vs.Morito Indagara & A.G of Kenya (1922) 2KLR; the courts dashed the hopes of the locals by declaring them to be tenants at will of the Crown land they occupy.The Crown Lands Ordinance of 1920 was used by the British to compulsory acquire land for the settlers hence leading to a large population of the natives becoming landless and being concentrated in the native reserves.
This resulted into the local community losing much of their land to the colonial government. Prior to this in 1897, the Commissioner of the Protectorate using the Land Acquisition Act of India (1894) . This was also extended to Kenya, appropriated all land within the one mile on the either side of the Kenya-Uganda railway for the purposes of construction of the railway.
The Act was also used to compulsory acquire land for other purposes such as government buildings. In the period between 1915-1920 the Act was repealed and replaced by the Crown Lands Ordinance that declared all land within the protectorate was Crown Land .The effect was that Africans became tenants of the Crown with no more than temporary occupation rights to land. At the same time the Foreign Jurisdiction Act of 1890 in conjunction with the East African Land Regulations of 1887 were used to alienate land from the natives to the settlers as a way of paying for the railway.
According to Okoth Ogendo (1991) any land alienated whether for construction of the railway or occupancy became Crown land. Crown Land was defined as “all land within the East African Protectorate that was subject to being in control by His Majesty by virtue of any agreement or treaty and all land that had been or may have been acquired by His Majesty under the Land Acquisition Act of India or otherwise.”Ndung’u Report (2004) asserts that the East African Land Orders were enacted to compulsory acquire land for commercial and residential use .The orders read together with provisions of the Crown Land Ordinance were to bring all land to the Crown. This in essence meant that Africans had surrendered their rights to the land in which they owned.
The British attempted to woo settlers from back home to settle in the new colonies and boost the economy. As a result this led to the passage of the Residency Titles Ordinance of 1924 was .This made the locals lose land to foreign immigrants.
The government to date does not have clear data n the landless squatters, especially among urban slum dwellers.
Lack of political will has resulted in prolonged slow pace of land reforms
Laws and programmes aimed at protecting the tenure rights of farm workers and labour. Tenants have been ineffective, evictions have continued and more people have lost access to rural land.Legislation o commercial land rights that strengthened the powers of chiefs over land was passed in 2005, but is subject to a constitutional challenge and has not yet been implemented.
Landless South Africans has continued to advocate for their rights. This is because majority of them are poor.
The Landless People Movement (2001) has been formed to fight for the discontented landless people; the government involves them in order to reduce the effect of squatter problem especially among the urban dwellers.
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