Most of the world's indigenous or cultural communities live on land to which they do not have legal title. Although many legal systems recognize forms of `customary,' `aboriginal,' or `traditional' rights based on long residence and membership in a given community, they often compete with property rights held under individual title or by the State. Under `customary law,' rights over land tend to be inclusive (many people `included' as right holders), ambiguous (different rights overlap), and negotiable (rights specified through the agency of social process). But customary land tenure, in all its flexibility, seems to lack the certainty brought about by formal land registration. Maasai, for instance, have a clear notion of e-rishata or division or separation that constitutes a boundary, but their borders are zones more than lines. Individuals and families, whose rights are derived from the community, mingle together as they use land in common, with access being subject to negotiation and potential conflict. One would expect then, that titling Maasai land would have reduced uncertainty of tenure and social conflict, but in fact, instances of uncertainty and conflict have risen. Why?
In north Keekonyokie, a region of Kajiado District in southern Kenya, resident Maasai each day drive their cattle to nearby pastures. Close to the capital city, Keekonyokie stock keepers who live amidst rich grasslands and dryland forests provide meat to Nairobi's teeming market. Nearby, Rift Valley lands were expropriated from Maasai in the early 19th century and given to white settlers to establish colonial farms and ranches. Today, Maasai, whose customary land holding is based on long occupation, continuous use, traditional rights, colonial treaty, and the Group Representatives Land Act adopted in the early Independence period, are again experiencing dispossession -- this time by a different set of Kenyan settlers. This group, like the first, is using Kenyan law to their advantage. As a result, many Maasai have either been displaced from or still traverse land they know as theirs, but which, through the peculiar way paper is inscribed and changes hands, they no longer own.
Before and immediately after Kenyan Independence in 1963, Maasai land was held in trust, first by the Crown, then by the Kenyan government. But in the mid-1960s, the Kenyan government, with the support of the World Bank, began to divide Maasai pastoral regions among registered `ranches,' titles to which were held by Maasai `groups' rather than individuals. But over time, some group lands were allocated to a few individuals who wanted to establish their own ranches. But the hemorrhage of group lands annexed to individuals progressively undermined the integrity of collective holdings and calls were heard for the ranch to be subdivided among its members -- each of whom would receive individual title.
Dictating each step in the process of subdividing group holdings is a body of relatively ill-formulated land law, executed by the poorly administered Ministry of Lands and manipulated by insiders and outsiders alike who covet the lands in question. Nevertheless, in contrast to where government intervenes directly in the appropriation and allocation of land, In Kenya, it is less government itself, than the institutions of law legislation, lawyers, liens, formal cautions, suits, out-of-court settlements, court proceedings, rulings, appeals, etc. that provide the framework within which land questions are adjudicated and negotiated. Some land cases are resolved in a satisfactory manner, but in cases that touch on major governmental figures or the maintenance of local power, pressure tactics, bribery, corruption, and both of `high politics,' which involves powerful figures and state-level strategy and `low politics,' meaning under-handed and corrupt politics intervene.
During its 20 years experience with privatization, Ilkeekonyokie section in Kajiado (that lies in the parliamentary seat of the former Vice President) has become infamous for corruption in the disposal of its land. Mosiro, Lodariak, Ilkisumeti, Ewuaso Kedong', and Suswa, have come to represent `cases' more than Maasai locations or group ranches. And law has come to represent the means for, more than the antidote to, seizing land. Using land reform to advance development is well supported by theory, but the politics of `land' grabbing,' as it is known in Kenya, trumps the economics of land use. Law uses what Shakespeare, in The Merchant of Venice, called its "gracious voice" to obscure the outcome of dispossession.
Individual Versus Indigenous Land Rights
Residence and ethnicity have served as dual principles of land allocation in Kenya, as lands held by communities have been formally registered and titles have been issued. Some draw claims both from residence and ancestral links to land; other immigrants, often called `acceptees,' claim land rights on the basis of residence alone. In many cases, granting land rights to current residents who come from other regions neither jeopardizes the livelihoods, nor the symbolic identity drawn from the local landscape, of a local community, but sometimes -- as in the Maasai case -- they do. The Indigenous and Tribal People's Convention (Convention 169) of the UN's International Labour Office (ILO), adopted in 1989, states that "The rights of ownership and possession of the peoples concerned over the lands which they traditionally occupy shall be recognized." Moreover, "governments shall take steps as necessary to identify the lands which the peoples concerned traditionally occupy, and to guarantee effective protection of their rights of ownership and possession."
Ethnicity lay behind conflicts over land that occurred just before and continued after the 1992 multiparty elections: in Narok District, several episodes pitted Maasai against Kikuyu in 1992, and Maasai against Gusii in Trans-Mara District in August, 1997. In a recent article on "Internal Displacement" published in The African Law Review, it was argued that ethnicity had replaced race as the primary axis around which the "politics of identity" revolved in Kenya. Those who "perceived themselves as ethnic minorities," fearful of internal colonization, were displacing those seen as part of expanding ethnic majorities. Though regretting how local tensions have been exploited for electoral purposes, it must be pointed out that the article in question is disingenuous when it claims that ethnic conflicts over land involve a contradiction between "the universal values of human rights" and "ethnic apartheid," or the security of newly acquired property versus the land rights of a resident, local community. Is the protection of an indigenous minority's rights a form of "ethnic apartheid?" How should the property rights of new arrivals be weighed against the customary land rights of a community?
In Kenya, property rights of new settlers were usually acquired -- often at the expense of other communities -- as collective entitlements rather than individual achievements. When indigenous peoples' rights are called `tribalistic,' it is implied that they illegitimately transgress individual rights. But we suggest the opposite, that appealing to individual rights may be a means of advancing group interests, as in the two cases mentioned above. The Narok case stemmed from a dispute over Maasai land that had been allocated by a government then controlled by the recipient group; the Trans-Mara case stemmed from illegal, but effective occupation of land held under Maasai group title by cultivators claiming squatter's rights. In both cases, conflict involved Maasai resistance to the expropriation of portions of their land under the guise of law.
Dispossession by De -- Registration in Ewuaso Kedong'
When Ewuaso Kedong' was formally constituted as a Group in 1970, a few individuals received 800 acre portions annexed from the collective holding. But within a decade, 70% of these individual owners had sold half their land, and although technically no longer formal members, they returned to the Group to ask for more. Seeing community lands progressively diminished by individualization, members decided to subdivide the existing ranch among its members. Critical questions were debated regarding who should be included on the register. First, should the next cohort of young men coming of age be added to the register? Second, what should be done about outsiders who, through generosity, friendship, or bribery, had already been added to the register? And third, who should decide these questions: the formal ranch committee, the registered members, or the community as a whole?
During planning sessions for subdivision, the legally constituted Group Ranch Committee disregarded many of the rules for its own administration and as a result, lost public support and legitimacy; it failed to hold annual general meetings, it showed favoritism in allocating land (to themselves, family, friends), took bribes, used collective funds to survey land designated for the favored few, and withheld allocations for those who disagreed with its actions. The committee finally stated that younger age-sets should not be registered and outsiders should be deleted: "Anyone who does not come from this area, who may have got into the register by mistake, their names will be erased. A person cannot belong to two places." But protests arose about the committee unilaterally deciding on membership. One man protested: "I want to tell the committee to remember that it was chosen by the public, and it does not seem right for you [the committee] to remove some people without the consent of the public." A case was brought against the committee that sought to replace its members, but through judicial maneuvering by the committee, the case has yet to be heard. As long as the committee faces losing, the case will most likely be postponed indefinitely though it may come to trial if an outcome favorable to the committee has been assured through bribery. Legal procedures thus allow the committee to avoid responding to the public will.
Dispossession by Committee
South of Ilkeekonyokie and straddling the eastern escarpment and the Rift Valley floor, is Ilodokilani section, which occupies terrain somewhat drier than that of its neighbor to the north. In the mid-1990s, faced with subdivision, Kilonito and Elang'ata Wuas group ranches paralleled Ewuaso Kedong's in making unequal allocations of land to their members, which resulted in protests and appeals to the courts. In Kilonito group ranch, an out-of-court compromise was achieved in 1997-98, negotiated in part by the Paramount Chief of the district who lived nearby. The old committee was allowed to remain in power (to save face), but was ordered to develop a new plan for equal subdivision between all registered members. Despite this precedent, a similar agreement has proven difficult to achieve at neighboring Elang'ata Wuas, where politically influential members stood to lose large tracts of land they had been allotted. The court's decision stripped the old committee of power and ordered election of a new committee that would be charged with subdividing the land equally among all members. But the old committee appealed the case and the final outcome has yet to be reached. Although Ewuaso Kedong' benefits from the same leadership as Kilonito, the group associated with the old committee has been intractable because of the strong possibility that they might gain through political pressure on the court the land that they seek.
Selling their Land, Selling their Souls
When titles have been acquired by group ranch residents, they can legally sell their land. Indigenous peoples throughout the world -- frequently non-literate and unfamiliar with the meaning of private property -- often lose land granted to them under freehold titles. In the last two decades, many Maasai who received individual ranch holdings have sold (some, or all) land to which they received legal title. The money has been used for diverse purposes: to pay development loans under threats of enclosure, supplement scanty incomes, pay for school fees or vital expenditures, simply participate in a consumer economy they observe around them, or buy alcohol.
As a result, large tracts of Maasai land are increasingly falling into the hands of non-Maasai. This affects the long-term economic security of individual families, threatens the resource base for the viable practice of extensive animal husbandry, and undermines the cultural sustenance of an indigenous culture. The challenge posed to the Maasai community by individual sales of land demands serious debate and farsighted leadership. But the Maasai leadership -- local and national -- is seriously compromised by its conflict of interest over the land question since it is most likely to benefit from land alienation and sale. Local leaders are often those who receive large land allocations, which when sold, become income; and they are in the best position to purchase land, (when it is not sold to those outside the community), or to serve as agents in land transactions when ultimate buyers are non-Maasai. Maasai national political leaders depend on the patronage of the ruling party -- and the government -- which does not wish to restrict or discourage Maasai land sales. Finally, Maasai leaders often depend on electoral support from non-Maasai living in their districts, many of whom are active in procuring Maasai land. Thus, while not illegal, the tacit encouragement of and passive acquiescence to Maasai land sales, especially those involving poorer pastoralists who will be left destitute, represents a scandal with only one precedent: the expropriation of the desirable central Rift Valley from Maasai by white settlers at the beginning of the 20th century.
The legitimacy of "willing buyer, willing seller" seems insurmountable, but land transactions are often of dubious legality. Buyers often illegally approach prospective land holders and purchase futures at less than market price, then can bribe officials to enter the buyer's rather than the seller's name on the register, thus claiming an entire holding. Also, while awaiting title, prospective land holders may sell piece of land to several buyers, but then refuse to hand over title since transactions concerning land for which title has not yet been obtained are illegal. Family members must give permission for land sales before the Land Board, and in disputed areas of Keekonyokie, all transactions in land have been frozen through implementation of a `caution' on transfers of titles. The Kajiado District Officer, however, held `special' secret, yet illegal meetings, of the Land Board for a `fee' to approve land transfers. Many leaders who should advise Maasai against land sales are precisely those who benefit from them.
Corporate Dispossession via Covert Land Purchases
Sending out local agents to solicit and purchase land, the Kenyan United Insurance Company has recently been involved in massive land buying across much of Kajiado District. In Saikeri, between Ewuaso, Lodariak, and Mosiro, many people have sold land to an agent representing the United Insurance Company. After making partial advance payment, the agent demands the title deed, supposedly in order to take it to the Land Control Board, but then never returns it to the original title holders. Why are these purchases occurring? Following such sales, the lands "purchased" are often left unoccupied by the new owners, but title deeds themselves are valuable as collateral for loans. In the long-term, piece-meal purchases by land buying companies may eventually result in the consolidation of land parcels and dramatic land loss to the Maasai community.
The United Insurance Company has raised funds abroad, theoretically to help resettle internal refugees displaced in the Rift Valley in 1992. The company enjoys the patronage of key political figures who benefit from large-scale land transfers and can conveniently arrange transfers due to their close relationship with the Land Control Board. In ethnic terms, these acquisitions are part of a long-term pattern of land transfers in the district from Maasai to Kikuyu. These transfers resulted from informal migration and administrative transfer during the colonial period; from land sales during the post-Independence period, more recently by entering local Kikuyu on registration lists, and most recently, through individual land purchases (including land bought through companies).
The United Insurance Company, a Kikuyu-based corporation, aims to usurp Maasai lands in increments. That its modus operandi seems immune to scrutiny by local journalists or the government attests to the deep connection between government and civil society. Through human rights associations, religious bodies, or the press, civil society often speaks loudly and articulately about injustice in the land (the article in The African Law Review is an excellent example), but never about the systematic dispossession of the Maasai from their land.
Conclusion
Today, the pragmatic framework for competition over land in Kenya is provided by law. The cases just reviewed demonstrate how Kenyan law offers methods for achieving indirectly what is not attainable directly: those with rights to land are deprived of land; those without rights, gain land. Individuals illicitly seek legal registration and many succeed; others rightfully seek it and fail. Requiring groups to hold annual general meetings is abrogated, but cases are indefinitely postponed by courts, legally dismissed on technicalities, and illegal and unethical land transactions are recognized. In Kenya, most land conflicts are mediated with reference to law, often through a process of quasi-legal negotiations that either rarely, or at the last minute, end up in court. Law has become the method of choice for dispossession, but also the indispensable framework for resisting it.
Kenya is a country currently associated with corruption, but corruption is not so much a state as a process; courts -- often staffed by competent officers and serviced by well-informed advocates -- can work well, especially in cases uncontaminated by direct political interest. But when economic and political interests coincide, justice is slower and its outcome less certain. Rather than security, land reform is shrouded in an atmosphere of insecurity for both the subjects and agents of dispossession (the former fear losing land, the latter that the courts or the public will take away land they have so diligently acquired). Uncertainty in law exists as litigants exploit divisions within government, call upon their own allies, raise funds for legal representation, or recruit the assistance of international bodies concerned with social justice. In Maasai districts, many non-governmental organizations have been formed, some of which serve as advocates for the defense of community lands. The Loodo-Ariak Land and Community Project, for example, was formed to pursue the land rights of dispossessed pastoralists of that region and has also assisted other communities -- Mosiro, Ewuaso, and Ilkisumeti -- experiencing threats, if not theft, of their lands. In Kajiado District, Dupoto e Maa was created to pursue community education, development, and advocacy on legal issues surrounding land rights and has attracted wide participation among Maasai educators, academics, community workers, and civil servants.
Law now provides the indispensable framework within which land issues are articulated and debated. Disappointingly, it has proved as valuable to those who desire Maasai lands as to those who want to maintain the integrity of Maasai lands and communities. The same tools of land law, administrative processes, and judicial procedures to protect ones' land is also used to dispossess others. Land processes continue to recruit the emotions borne of regional, cultural, and ethnic affinities and, beyond the importance of any one individual transaction, implicate the future well-being of entire Maasai communities. To suggest that land issues can be reduced to a conflict between human rights and ethnic chauvinism ignores the questions of indigenous and cultural rights; in Kenya, even the pursuit of individual land is seen locally as having collective significance. It would be regrettable and ironic if protests against Maasai dispossession and land loss were caricatured as chauvinistic and lauded as serving the universal principles of human rights.
Acknowledgments
The research on which this paper is based was supported by the Canadian Social Sciences and Humanities Research Council (SSHRC), and the Québec Fonds pour la Formation de Chercheurs et l'Aide à la Recherche (FCAR), in cooperation with the Arid Lands and Resource Management Network in Eastern Africa (ALARM), which is supported by a grant from the International Development Research Centre of Canada. For the development of the case studies, we are grateful for the assistance of the late Mosinko Ole Tumanka and Jeremiah Ole Tumanka from Ewuaso Kedong,' Joseph Ole Simel from Lodariak, and Taki Ole Maora from Lodokilani.
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