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Struggles of Access to land. The 'Squatter Question' in Coastal Kenya
CDR Working Paper 98.7, June 1998
Karuti Kanyinga
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Contents
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Abstract
In
Kenya and the sub-Saharan Africa generally, there have been little
systematic discussions on the post-colonial struggles over control and
ownership of land. Studies ignore that the "land question" is not about
production alone and consequently have failed to assess its wider
consequences on the society. This raises the question, "what is the
current socio-political dimension to the land question and what is the
consequence of their interplay with other changes underway in the
country?" This
Working Paper addresses this question by discussing popular struggles
of access to land in the coastal region which studies seem to have
ignored despite its distinct political history. The Working Paper is
based on results of a survey conducted in Kilifi district, Coast
provinces, between September 1995 and November 1996. The author thanks
the Nordic African Institute, Uppsala, for financing the study on which
this paper is based.
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1.0 Introduction
In
sub-Saharan Africa, until recently, academic interest shown on the
question of access to and struggles around land ownership or what is
now known as the ‘the land question’ centred around land tenure reforms
and agriculture production. Discussions have continually ignored that
the land question comprises several aspects and can not be reduced to
the issue of agricultural development alone: the land question is also
at the centre of social and political organisation of agrarian social
formations. This apparently is responsible for the resurgence of the
land question in the economic, political and social discourses and
particularly in the constitution engineering processes in a majority of
sub-Saharan African countries. Of concern is that ‘economic
reductionism’ in the conventional literature tended to underline that
private property in land is a necessary condition for the development
of capital accumulation in agrarian societies on the assumption that
this would provide security for investment which would, in turn, boost
agricultural production on which the continent’s economy depends. This
thinking reflects, not surprisingly, in the World Bank’s sectoral work
and Structural Adjustment Programmes: the Bank has been supporting
titling efforts on the assumption that this will ensure secure land
rights, activate markets and increase agricultural production (World
Bank, 1989; Platteau, 1996).
Generally,
there seems to be fewer studies at present on the political aspects of
the land question compared to the colonial period where considerable
attention was given to ‘land-based’ peasant resistance movements in
‘colonies’ where settler economy dominated. Studies have failed to give
full attention to socio-political aspects of the land question in the
post-colonial period yet the land question continues to inform
organisation of local and national politics in these
societies.Moreover, recent years have witnessed reactivation of ethnic
sub-nationalism in the continent much of which is reinforced by quests
for control of certain ethno-territorial claims which now tend to be
the main challenge to the nation-state project in Africa. The
significance of the land question is African societies is bound to
increase for the land question is embedded in a dynamic and a broad
social political context (Basset and Crummey, 1993; Berry, 1993). It
also has a bearing on patterns of social relations in the society. How
land is held and specifically how ‘access to land’ is regulated are
dimensions of importance to the organisation of economics and politics
of that particular social formation (Okoth Ogendo, 1976; Njeru, 1977;
Glazier 1985, Mamdani, 1996). Any changes in the structure of land
ownership undeniably has consequences on the socio-political aspects of
that particular society and not on only its structure of agricultural
development (Okoth-Ogendo, 1991; Berry, 1993, Mamdani, 1996). Where
studies have attempted to redress this imbalance, the result has been a
tendency towards ‘moralization’ and/or idealization of customary land
tenure regimes. This
Working Paper attempts to go beyond both the ‘economic reductionism
fashion’ and the ‘moralized’ customary tenure regime by discussing the
land question within a broader socio-political and economic context.
The discussion builds around the questions ‘what are the current
socio-political dimensions to the land question and what is the
consequence of their interplay with other changes underway in the
continent?’ The discussion teases out socio-political relations that
lie beneath property rights in land with a view to bring into fore
other issues pertinent to the land question debate. The Working Paper
discusses struggles of access to land in Coastal Kenya where the land
question has a long and distinct political history from the upcountry
one on which much has been written. The studie is based on findings of
a survey conducted in Kilifi District, Coast Province, between
September 1995 and November 1996. A
case study from Kenya - and the coastal region of the country for that
matter - is particularly instructive because land reform programme in
the country has been quite comprehensive and has been at the centre
stage of the main political and economic events in the country. The
land reform began during the colonial period as a result of a report
prepared in 1954 by the then deputy Director of Agriculture, R. J. M.
Swynnerton, on how ‘to Intensify the Development of African Agriculture in Kenya.’
The Swynnerton Plan aimed at displacing indigenous land tenure systems
and imposing private property rights along the lines of English land
law (Swynnerton, 1954). Along
the coast, and particularly along the ten mile coastal strip (Mwambao)
which was under the ‘suzerainty’ of the Sultan of Zanzibar, problems
around control and ownership of land have roots in the pre-colonial
situation. The land question here formulated after the Arabs and the
Swahili settled in the area and consolidated slave trade after which
they gained control of the land. The colonial state deepened the
problem by introducing a legislation that enabled only thesubjects of
the Sultan (comprising mainly Arabs and the Swahili Muslims) to
register land as private property (Ghai and McAuslan 1970:29; Charo
1977; Cooper, 1980). The post-colonial state worsened the problem by
giving grants of land to politicians even in areas already occupied by
the indigenous Mijikenda groups. This resulted in increasing
landlessness and squatter problems.
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2.0 Politics and land rights in Kenya
Kenya's
land question in general has roots in the colonial situation where
events stemming from three distinct but interrelated processes shaped
it (Sorrenson, 1967; 1968; Okoth Ogendo, 1979; 1986; 1991). The first,
from which others followed, was alienation and acquisition of land as a
prelude to the establishment of a colonial state. The sequel to this
was imposition of English property law and its acclamation of title and
private property rights in the alienated areas. Land tenure reform in
the Native Reserves under the Swynnerton Plan ‘completed the question’
by both deepening and diversifying its structure. Each of these
processes gave rise to unique but related sets of problems regarding
access and control of land thereby laying the basis for a rather
‘complex land question’ whose solution continues to plague the Kenyan
polity. This had several consequences. Firstly, the processes caused
mass displacement in alienated areas and especially among the Kikuyu of
Central Kenya giving rise to a mass of people without land rights - the
squatters. The squatter problem latter became the basis for the
organisation of a peasant rebellion - the Mau Mau - against the
colonial state; the rebellion organised to have Uhuru (independence)
which they thought would result in the return of the ‘stolen’ land.
Secondly, alienation contributed to the ‘ethnicisation’ of the land
question: the squatters moved into the Rift Valley where they sold
labour to the colonial settlers and their numbers therefore added to
those of other displaced ethnic groups such as the Kalenjin and the
Maasai. Consequently, ethnic tension over the control of land in the
area deepened in tandem with the consolidation of the struggle for Uhuru.
Some of these other groups feared that the squatters would accede to
land rights in the former settler areas and deny them control of what
they considered to be their ‘tribal’ spheres. They consequently began
to fence off the squatters from the region and in some cases violently
evicted them. In
early 1960s and in addition to the reform of land tenure in the
reserves, the government introduced a parallel programme for
‘re-Africanisation’ in the White Highlands previously ‘scheduled’ for
European settlement. This aimed at altering the racial structure of
land ownership to address the ethnic and political dimensions to the
land question complex. The government established several settlement
schemes for the landless and introduced a land purchase programme for
the African middle class to accede to the ‘scheduled areas’ (Leys 1976;
Njonjo, 1978; Leo, 1984). Both
the reform of land tenure and the ‘re-Africanisation’ programme had a
profound effect on the nation-building project; they considerably
shaped the politics of transition and have continued to shape local and
wider politics. Notably, at the time of transition to independence, the
land question directly influenced the debate on constitutional and
economic arrangements that the country were to assume and later became
the basis upon which political parties formed (Bates 1989;
Harbeson 1973). The parties formed to participate in the politics of
transition constructed a distinct answer to the land question as a
means of negotiating for independence with the colonial government
after the defeat of the Mau Mau peasant rebellion. The two main parties
were the Kenya African National Union (KANU) comprising an alliance of
two numerically large groups - the Kikuyu and the Luo. KANU preferred a
centralized state and unitary form of government and emphasised on the
respect of private property rights. It also had on its board a radical
nationalist faction which advocated for Nyakua (forcible
seizure) of the expropriated land in line with the need to reward Mau
Mau freedom fighters. The second party was the Kenya African Democratic
Union (KADU) comprising an amalgamation of smaller groups - the
Kalenjin, Maasai, Turkana, and the Samburu (KAMATUSA), the Somalia and
the Mijikenda among others. KADU, because of the fear of domination by
the Kikuyu and the Luo, preferred a federal system of government (Majimbo)
with regional assemblies whose most significant duty would be
administration of land matters. KADU saw this as a check on the land
hungry Kikuyu squatters who were already settled in the white highlands
to which KAMATUSA had historical territorial claims. The settlers also
formed the New Kenya Party to protect and preserve their interests in
land. Their party later allied with KADU to push for federalism and
respect of land rights as advocated by KADU leaders. 2.1 Freezing the Land question
KANU
won the elections in 1961 and 1963 and formed a government comprising
especially of influential liberal politicians, led by Kenyatta and Tom
Mboya, who then began to articulate the demand for a unitary form of
government and respect of private land rights wherever established.
KADU dissolved in 1964 in ‘national interest’ and KANU accommodated its
leaders including those who advocated preservation of
‘ethno-territorial land claims’. This ‘froze’ the land question and in
particular its ethnic dimension for that moment. This also eroded the
influence of the radicals in KANU for they could no longer threaten to
defect to the opposition. This gave way to class based politics of
access to and control of the land and ‘froze’ its ethnic dimensions
altogether. The
liberals in KANU and in particular those who constituted the inner
court for the first government (the Kenyatta administration) were keen
not to disturb the legal framework on economic development laid down by
the colonial state. They were convinced that consolidating property
rights in land would lead to intensified agricultural productivity on
which the economy depended. The conflict over land and the manner in
which it was resolved thus had two importantconsequences: firstly a
constitutional arrangement evolved that favoured sanctity and
inviolability of private property rights and one that provided
protection from deprivation of property without compensation. Secondly,
it resulted in the adoption, without alterations, of the legal
framework on which the colonial reform of land tenure depended. These
outcomes, and protection of private property in particular, encouraged
unlimited accumulation of land in the ‘scheduled’ areas by the liberals
in KANU and KADU for it allayed the fears that accompanied the
radical's threats to confiscate land from the settlers. 2.2 Thawing of the land question
Accession
of Daniel Arap Moi to Presidency after the death of Kenyatta in 1978
saw the ‘thawing’ of the land question. Moi was one of the senior KADU
leaders who vehemently advocated for federalism (Majimbo) to
protect land and political rights of the smaller agro-pastoralist
communities against the large ethnic groups. His presidency naturally
saw a reconstitution of former KADU elites; their ‘ideology on land’
soon got into the centre stage of politics and the state itself. It at
the same time aroused high expectations among the KAMATUSA groups who
subsequently appropriated it to fence off their areas against other.
This saw the closure of frontiers in Rift Valley where land hungry
groups used to migrate to acquire land. Relatedly, in the process of
constructing his independent bases of political support, Moi ordered
rapid individualization of farms owned by land buying groups
(cooperatives and companies and partnerships) and subsequent
registration of titles for the individual shareholders. Simultaneous
with the closing of the frontiers, political patronage evolved as the
single most medium of regulating access to public land. The government
continued to give land as rewards to political clients with a view to
establishing a stable political and economic class. From the early
1990s and with increasing pressures for political liberalization,
appropriation of government land by political elites took even a faster
pace as Moi struggled to retain loyalists, a clientele that was
otherwise rapidly disintegrating. Meanwhile
and as pressure for political liberalisation deepened, the KADU group,
hitherto constituting KANU leadership, began to appropriate the land
question for a different but related political project. They began to
use the ‘thawing land question’ it as a political tool to fight those
opposed to them, in the believe that Multi-partism implied the end of
Moi leadership. This resulted in ethnic land clashes between members of
former KADU groups and immigrant population in Rift Valley and much
later on the Coast between the Mijikenda and upcountry Kikuyu and Luo
immigrants. KANU won the 1992 elections but left behind a simmering
land question, an issue that has continued to influence political
developments in the country. The Rift Valley and areas around the Coast
have witnessed the most violent and unprecedented ethnic conflicts in
recent years. Although some of the conflicts are expressed in the form
of party politicsthey have their logic in the ‘thawing’ land question.
The section examines the evolution of the land question on the coastal
area and examines its implications for the local and wider politics.
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3.0 The coastal land question
As
mentioned earlier, the land question on the coast formed in tandem with
the consolidation of both the slave trade and the ‘Sultan rule’ on the
Coast. The entry of the British administration deepened it through two
significant ways. Firstly, the rivalry between the British and Germans
over the control of the East African coast resulted in the two
‘awarding’ the Sultan ‘sovereign rights’ over a strip of 10 miles along
the coast - Mwambao. This allowed the Sultan’s subjects to have private
property in land but prevented the indigenous from doing so because
they were not subjects of the sultan and/or were not Muslims (Republic
of Kenya, 1978). Secondly, the British promulgated a legislation in
1908, the Land Titles Ordinance of 1908, to enable the colonial
authorities determine the extent of private possessions before they
could alienate land for the Crown and or give grants to individual
settlers. This also aimed at enabling the British administration
penetrate and control the interior. This Ordinance, and its version of
land tenure on the coast, began by altering the distribution of land
first among the Arabs and the Swahili. The Ordinance then closed
avenues via which the indigenous Mijikenda and ex-slaves could have
made any claim to land on the coastal belt. Instead the administration
introduced ‘Native Reserves’ and removed them from certain of the areas
in order to give way to European settlement. Evolution
of the land question on the coast entered into a new phase with the
negotiations for political independence in the wider colony. At the
time of transition to independence, the British government entered into
a pre-independence agreement with the Kenyatta administration and the
Sultan regarding control of land in Mwambao (Salim, 1968: 224; Ghai and MacAuslan 1970: 187-188).
Kenyatta conceded to the Sultan’s demands for recognition of private
land rights on the ‘Coast’ and promised to adjudicate and register such
rights where they were not adjudicated, notwithstanding the negated
land rights of the indigenous groups. Both the agreement and
negotiations over independence concluded the process of creating the
squatter phenomenon: they transformed the Mijikenda into squatters or
‘tenants of the Arabs and the Swahili landowners.’ The
first government thenceforth favoured private property rights
irrespective of how they had been acquired. The government also
acknowledged the problem of landlessness on the coast and appointed two
different Committees at different times between the late 1960s and the
mid 1970s to study and advise on how the problem would be resolved.
With regard to the squatters, the government favoured establishing
various schemes on former Crown lands (now government land) or on land
purchased from those who were willing to sell. It was hoped that these
schemeswould solve landlessness and safeguard the principle of private
landownership both of which would in turn help circumvent possible
invasion of private land by squatters. Much later in early 1970s, the
government also began a programme of individualization - land tenure
reform -arguing that the communal manner in which land was held was a
canopy of landlessness on the coast and therefore unless land was
individualized ‘the government would neither know the magnitude of the
problem nor would holders effectively utilized their holdings.’ None of
these approaches effectively tackled the land problems on the coast:
they instead engendered different forms of reforms and by that
complicated the land question as argued below. 3.1 Politics of resettlement efforts
Economic
and political rationale guided the establishment of settlement schemes
on the Coast. The government saw in the schemes opportunities for
peasants to participate in agricultural production and by that increase
production in the sector. Post-independence pressure from radical
politicians underpinned the political rationale. This led to the
government establishing settlement schemes for the landless to prevent
violent political conflicts between the coastal landless, on the one
hand, and the upcountry settlers and the Arab-Swahili ‘landlords’ on
the other. These
resettlement schemes were not specifically established for the landless
in the coast region; upcountry groups got land here in spite of
landlessness among the coastal people and in spite of the fact that the
land question here considerably differed from the upcountry one.
Increasing number of ‘outsiders’ and malpractice in the allocation of
plots gradually engendered hostilities between the indigenous groups
and the new beneficiaries with the local people often accusing the
local Provincial Administration of ‘tantalizing’ squatters with
promises of more land. These promises were rarely fulfilled. Secondly
and related to this also was the problem of political patronage in
allocation of plots in the settlement schemes to elites (through
‘grants from above’). In the view of many, officers in the Provincial
Administration and upcountry political elites were ‘the second to Arab
and Swahili landowners in acquiring private land rights and titles in
the area: they not only ‘grabbed’ land meant for the landless but also
invited others to do the same.’ This expropriation resulted in less
land for resettlement; it added to the mass of people without user
rights. The schemes thus could not eliminate or even reduce the problem
of landlessness. These
‘grants from above’ had another effect: they intensified disputes over
control of land in the area and c widened divisions between the local
residents, on the one hand, and new land owners the state at the local
level - officers in the Ministry of Lands and those in the Provincial
Administration - on the other. Several disputes and conflicts involving
local politicians and the indigenous people on the one side and the
government and upcountry political elites on the other began
immediately after the schemes started. In Magarini Settlement Scheme
Complex startedin 1978, for instance, local politicians often
complained of biases by settlement officers in allocation of the plots
and of evictions of coastal beneficiaries and their replacement with
upcountry ones. In 1984 controversy over these allocations indeed
reached the floor of the parliament where questions and answers were
more revealing: senior government officials listed their constituents
and friends and recommended them to be given plots by the settlement
officers. To avoid embarrassment and possible political backlash, the
government emphasised that all land in Kenya was ‘national land’ on
which anyone could be settled irrespective of ethnic identity and that
‘Magarini was not a scheme only for the coastal people’ (the Weekly
Review, May 4, 1984). Since then allocation of land on the scheme
continued to be at the centre stage of area politics with local
politicians mobilising support around promises of ensuring that the
government gives priority to the local people. Problems
of access to land in the settlement schemes have a longer history as
the following case study shows. Some have roots in the ‘grants from
above’ given by the colonial administration but have all the same
continued to inform organisation of local politics. In Kijipwa area of
Kilifi district, a settler farmer obtained land during the colonial
period to start an experiment with sisal farming after whose success he
obtained more land for a plantation. The displaced people moved to
neighbouring locations but were evicted again in the late 1960s when
the plantation acquired more land including the one on which some had
settled. This time, however, they resisted eviction and fought away the
local Provincial Administration and the owners of the plantation. They
nonetheless won several concessions among which was the authority to
occupy the area ‘as the government looked for land to settle them’ but
on condition that ‘they lived in peace.’ They continued to occupy the
land and even subdivided it among themselves ‘on conviction that they
were the rightful owners of the land and that the government would give
them secure tenure rights.’ Meanwhile,
pressure built on local politicians, particularly the then senior and
influential cabinet Minister, Ronald Ngala, to petition the government
for allocation and for titles to the land occupied by squatters in the
coastal region. Ngala got Kenyatta's assurance that a settlement scheme
would be established for the squatters and the landless in Kilifi among
other areas. Several schemes were established but these were inadequate
given the high number of landless people on the coast (estimated in mid
1970s at about one quarter of the population). Moreover the state was
increasingly alienating land and turning it over to elites connected to
central state politicians. Area residents who had knowledge about these
events complained that land for the scheme was set aside in a rocky
place and far away from where they had settled. Much later in 1982,
another scheme was established in the area that had been occupied
especially by those who refused to move out after the first wave of
eviction. The
whole exercise of resettlement was left in the hands of government
officers - the chiefs and the officers in the Department of Settlement
- who answered to yet another settlement Committee headed by the DC.
These officers subsequently abused the allocation procedures: those
families that had poor relations with the chiefs or their associates
had their names omitted from the list of occupants while ‘friends of
the officers’ had both the ‘household heads and eldest sons listed
separately as occupants’ to increase their chances of getting more than
one plot. Other officers also listed names of their relatives and
friends who were not residents in the area. In
the actual distribution that followed, fewer people than those
initially planed for got plots. Some families acquired more than one
plot while others got none at all. This was more disappointing for
those who had occupied the area from mid-1960s. They lost not only the
holdings but also tree crops and other investments undertaken during
the long period of occupancy. Others were unfortunate in other respects
- they were allocated land away, from where they had settled and grown
tree crops, to virgin areas where they had to start settlement life
anew. Other
problems followed. Initially both the demarcation officers in the
Ministry of Lands and the local Provincial Administration had announced
that the scheme was designed for hundreds of five acre (two hectare)
plots, enough for the registered occupants. This was not to be as the
size of the holdings was reduced from five to two and half acres, with
those responsible giving the excuse that ‘this would enable all the
occupants get land.’ This
was just a smokescreen for elites had obtained ‘grants from above’
which effectively reduced the size of the area meant for the scheme.
Several government officials and politically connected individuals who
included cabinet Ministers, permanent secretaries (some from the
coast), senior officers in the Ministry of Lands and Settlement, a
judge, a prominent leader of a national choir group and a District
Officer (DO), among others, acquired large portions of the land here.
Some of these were given land on which squatters lived and cultivated
and therefore land on which their livelihood depended. Additionally,
the ‘plantation had already acquired the other better part.’ Those
who lost their land rights took their complaints to the Provincial
Administration but no one could interfere with the grants. Most
complainants were often turned away and told ‘to keep peace, for the Nyayo
government will solve the plight of the homeless’(Nyayo literally means
footsteps; it is used to refer to Moi because of his often repeated
promise to follow Kenyatta’s footsteps) Others were listened to by the
DC but were told that the land now ‘belongs to the allottees because
they had titles to it.’ Aware that they probably would have got land
were it not for the huge tracts that had been allocated from above,
those who missed the plots refused to give way to the new owners. They
hoped that their persistent appeals to the Provincial Administration
and local leaders would bear fruits. But some of the land had already
changed hands without their knowledge: some of the allottees had
already turned over the land to private developers (amajority foreign
hoteliers operating in partnership with influential economic elites)
who then began to expel the occupants. The bases for another struggle
had began in earnest. Some
of the new owners, impatient with the occupants, ‘brought in bulldozers
and flattened the area without a warning to occupants.’These evictions
did not spread fast, however. Occupants decided to resist being evicted
arguing that ‘they had more rights to the land than the allottees and
that they should have been given priority in the allocations by virtue
of having been the first occupants.’ From then on, they began to
violently confront the new land owners and kept them at bay. This kept
potential buyers away as well. With
the assistance of the new owner, some of the squatters eventually got
land far away from the area or went to squat elsewhere. Other allottees
were unable to get alternative land for occupants through the
Provincial Administration and therefore decided to use the courts
charging that the squatters were ‘professional squatters’ who had sold
their land with a view to politicising the land question on the coast.
But rarely did the courts enforce requests for eviction. In several
cases the new owners were ordered to give occupants time to look for
alternative land. The
resettlement efforts thus were not an adequate solution to the land
question. They deepened rather than solved it. Economic interests of
politically influential elites also deepened the land question. ‘Grants
from above’ resulted in concentrating the best land in the hands of the
economic and political elites who nonetheless failed to utilize them
but turned them over to foreign hoteliers. Their interests were
certainly in direct conflict with the survival needs of the peasantry.
Perhaps these conflicts over access to land would not have been so
intense had the elites managed to provide alternative land to the
squatters. The cases also demonstrate the limitations of ‘accumulation
from above’ and political patronage in general. Those affected are able
to resist it; to make the machinery for accomplishing political
patronage unreliable and ineffective and to generally put such forms of
accumulation on hold. ‘Accumulation from above’ also has its own costs:
taking advantage of it incurs costs that not even the politically
influential can circumvent. Idle and unutilized land and violent
conflicts are evidence of such costs and of limitations to success of
patronage in regulating access to land. 3.2 Struggles over public ‘but’ private land
Victims
of the first and the second wave of eviction that accompanied the
expansion of the plantation expected to get back the land upon expiry
of the lease. In about 1992 the lease on one block expired but it did
not revert back to those who had been evicted. It allegedly reverted
back to government ownership. No sooner had this happened than the
lease was renewed and part subleased to a cement company. The
plantation retained the other part. The company constructed a brick
perimeter fence around the disputed land in an effort to fence off the
squatters. Both events put a lid on the rising expectations for
resettlement. To regain the land, some of the area’sresidents
approached two local Members of Parliament while others directed their
appeals to the District Commissioner (DC) and the Provincial
Commissioner (PC). All these appeals were said to have been
unsuccessful. The politicians simply said the matter would be resolved
by the Provincial Administration while the latter asked the squatters
to ‘keep peace as the government inquired into the matter.’ All
those consulted apparently skirted the issue partly because more
powerful actors had been involved in the lease negotiations and partly
because they feared a political backlash. In addition to this, both the
cement company and the plantation owners had maintained relations with
central state elites over a long period of time as a way of keeping the
state away from the land question in the area. As informants observed,
‘the plantation’s principal shareholders had institutionalized the
practice of buying off local politicians after every general election.’
This practice had extended to cover maverick local elites. But since
some of the local-level leaders were squatters or had no secure tenure
in the land they lived, it was difficult to develop a comprehensive
patronage approach and specifically one that would have ‘silenced’ all
the ‘land-needy’ elites. A
political differentiation between the district’s national- and
local-level elites was clearly evident in relation to the issue of
patronage. Their national positions and how they related to the land
question brought them riches and connected them to the powerful. This
tended to deter them from involvement in actual struggles over land;
they often blamed and sought solutions through the administrative
context, while side stepping the issue of ‘land grabbing’ by national
level political and influential economic elites. There
were also local level elites who commanded considerable local support
because of consistently articulating local land issues. In their rank
were several local state party officials -including a councillor,
members of the opposition political parties, a local cleric, a school
teacher, and a local women’s group leader. Their approach was distinct
from that by national level elected officials in several ways. This
group mobilised resistance against land grabbing and articulated the
problem against both the administrative and political contexts. The
local level elites acted as a link between the mass of the squatters
and the elected officials and the Provincial Administration. They were de facto
leaders of the opposition to ‘irregular allocations’ and had
constituted a ‘squatters Committee.’ This Committee articulated popular
concerns on squatting and kept abreast with all aspects of the land
question. From
late 1995, it was this group of local level elites that mobilised the
squatters into occupying the section of the plantation whose lease had
expired with a view to redistributing the land among the squatters. By
early 1996 they had devised a plan for redistribution: they listed
names of rightful occupants and made several attempts to discuss the
subleased land with the DC and thePC but none of these was willing to
meet them until they got to know about the plans to subdivide the land.
In
February 1996, the PC conceded to a meeting in which enumerated the
problems they wanted a solution to. They emphasised that ‘their land
continues to be grabbed by ‘deceitful outsiders’ while a lot more was
‘expropriated for plantation farming.’ They stressed that ‘squatting
had become a chronic wound stuck on us from the days of our
forefathers.’ They wondered ‘how come a stranger (foreigners
and/or upcountry elites) owns our property while we are made slaves in
our ancestral land?’ The PC only promised to ‘soon look into the
problems’ and assured them that the Presidential directives on the
resettlement of squatters and adjudication of rights on the land they
occupied would be effected. Afraid that the promise would turn into an
empty one like the previous ones, the squatters organised to ‘invade’
the farm and subdivide it. The
land ‘redistribution project,’ unlike the one in the formal
resettlement schemes, was organised through a Committee that was
appointed by the occupants. The Committee comprised elders, the youth,
and the local level leaders. This Committee helped identify genuine
inhabitants and listed their names. The youth watched out for intruders
and possible attacks by the police. The local leaders continued to
consult with the Provincial Administration at different levels. The
redistribution project began by uprooting the sisal, subdividing the
holdings and allocating to those listed and participating in the
project. As the exercise went on, the plantation owners called for the
intervention of the DC who came in the company of police. The DC did
not manage to stop the redistribution partly because of the hostility
of the squatters and partly because of continuing consultations between
the PC and the local level elites. The PC held a meeting and in
response to their complaints, announced the setting aside of more land
for the resettlement of squatters but this was seen as inadequate for
the high number of landless registered by the squatters committee. The
struggle did not come to an end with the setting aside of the land: the
plantation owners insisted that they would not transfer any more land
unless they got title to another block whose lease had expired and had
been reconverted into government land. Whether they really succeeded in
having the allocations revoked is debatable but cannot be ruled out,
given that the plantation owners had over the years sharpened their
‘political skills’ to deal with political and administrative contexts
of the land question in the area. The
discussion raises several observations. Firstly, patronage deepened
rather than solved the squatter problem because ‘grants from above’
reduced the size of land meant for resettlement. There was more
concentration of land in the political and economic elites and
consequent dispossession of the squatters. Patronage as a means of
accessing land rights became soinstitutionalised that even some of the
squatters depended on it to secure their rights. Secondly, counter-
patronage strategies or popular modes of acquiring land rights evolved
when patronage failed or where patronage hierarchies were weak and
unable to deliver to popular demands. It is precisely because patronage
failed to yield that squatters invaded the sisal plantation and
redistributed land amongst themselves. Both the landless and squatters
also could not effectively utilize the holdings they squatted on
because of the ever-present threat of eviction, a threat they
considered an ‘chronic wound’ in their daily struggles. On the other
hand, those allocated land ‘from above’ were speculating and not using
it: they planned to put up hotels or to sell to hoteliers. Few used it
for agriculture as the squatters did. These allocations therefore need
be seen as having had aroused conflict over access as well as conflict
over land use. Finally, the discussion shows that patronage has its own
costs for the elites too. It generated disputes between them as it did
between themselves and squatters and therefore it is not an open-ended
mode of acquiring rights or building political constituencies. 3.3 Struggles over access Arab and Swahili land
After
the registration of land holdings under the 1908 Ordinance, Mijikenda
families and families of ex-slaves continued to occupy land without the
knowledge of other claimants. Some had permission of the land owners
who permitted their use of land and husbandry of commercial trees.
Others occupied what they believed was public land that had gone to
waste. Generally, those who settled on Arab and Swahili land continued
to do so until the eve of independence when, at the height of political
conflicts between Mijikenda politicians and the Arabs, the latter came
to the land to issue eviction notices or to ask for nominal rents. It
is then that the Mijikenda and ex-slave families say that they realised
the land belonged to someone else. In Kijwe Tanga, Malindi, one old
informant said that the general trend around the area was to cultivate
any waste land, particularly land where none prevented them to do so.
This they did until early in the 1960s when Arab land owners came from
the towns where they had retired to do commerce, and insisted the land
was theirs: they allowed them to continue to cultivate the land on
condition that they did not grow tree crops, which Arab and Swahili
landowners feared would be used to support ownership claims by the
occupants. Being restricted to the cultivation of food crops did not
satisfy family needs of the occupants and therefore some moved into
other areas where they could grow cash crops to supplement family farm
incomes. They moved to areas they thought were public lands only to
learn later that they were also owned by different Arab and Swahili
landowners. Others obeyed the order to cultivate food crops and stayed
on the land. In the meantime, there are those who have continued to
squat on land whose owners they have never seen but have been told are
Arabs who may have settled in Zanzibar and may have family members
coming to register the land. Such land owners are very few, however. But
economic changes brought about by the growth of tourism, and an
increasing number of upcountry migrants, forced more changes onto the
structure of land ownership in the area. Thisintensified from mid-1980s
when land prices began to rise rapidly in line with increased
government and private sector interest in tourism. Most land owners,
especially those who had kept the land speculatively, found this as an
ideal opportunity to sell and to cash in on the growing land market.
Prices for the land on the coast have continued to appreciate as
tourism expands. With
increased land values, most land owners began to sell and to terminate
use rights of occupants. Mass expulsions followed these changes as new
owners wanted the land cleared of any squatters before transfers could
be completed. This resulted in adding to the mass of people without
land rights as a majority of those evicted had no alternative land to
move to. One informant, disappointed by the turn of events particularly
in the 1990s, indeed stated that Arab and Swahili land owners who were
"now streaming into the area with eviction notices should have come
earlier when there was abundant government land: they are coming when
government land has been exhausted and when we have done a lot of
investments on the land they claim to be theirs." But occupants were
also concerned about what would become of their tree crops which were
the main source of incomes for most families. Rarely were the new
owners or the old ones willing to compensate them. Struggles
over access to Arab land are characteristically different from those
regarding ownership of public land and those against evictions as a
result of "grants from above'. The knowledge of a registered proprietor
tended to prevent some of struggles from turning violent as had those
in the latter case. Those who expected to acquire the lands through
ownership by prescription would have found it difficult to do so
because the high legal costs required for a suit of that nature and
because of multiple interests around land. Most landowners were
effectively holding on to their former plantations without effectively
utilizing them. Some did so speculating on land prices and therefore
did not mind the presence of the squatters as long as they did not make
ownership claims on the land. To them, cultivation of the land and
growth of tree crops - although the latter tended generally to be
subject to restrictions - were investments that increased the value of
the land. They also played another strategic role: their land could not
be termed idle and therefore could not have been subjected to the
policy of eminent domain or compulsory acquisition by the government.
Such fears, which date back to the resettlement efforts of early 1960s,
are widespread among owners of large holdings in areas inhabited by
mass of landless and squatters. 3.4 The politics of Land Tenure Reform in coastal Kenya
The
land reform program in coastal Kenya began in the period between the
late 1960s and early 1970s. Studies here have demonstrated how the
reform led to some people losing or gaining more rights to land. Others
have attempted to assess the impact of the reform on the society in
general (see Mkangi, 1975; Fleuret 1988; Ciekawy, 1988). How the reform
program has affected community and wider politics has nonetheless
received scant attention. Although the reform began that early not much
of the land has been adjudicated or registered: few people have
titledeeds. Reasons for this include among other things disputes among
the local people over the different stages of the reform and in
particular the demarcation stage which delineates people’s rights
before they are registered. Another problem has been lack of adequate
resources on the part of the government to support the reform. When
such resources are available they are expended in demarcating land
along the coastal line where influential political elites have an
interest in beach plots for the rapidly growing tourist industry.
Notwithstanding this, political impulses have considerably speeded the
exercise since mid-1980s. This is particularly true particularly with
regard to demarcation of squatters’ rights in government land. In
Kilifi district, between early mid-1980 and 1995, 40 blocks of
government land in different places and covering an area of over 12,
920 hectares were adjudicated to over 14 040 squatters already settled
there. In total only about 20 per cent of the land has been registered
since early 1970s. Presidential directives considerably influenced the
pace of the demarcation and adjudication of land here. Government
officers often got into action whenever the president issued directives
to speed the exercise but the steam would dissipate until another
directive was issued. Where
land registration was going on, most disputes centred around boundaries
and ownership of land. Some of the disputes were occasioned by
disagreements between and among family members. Still others resulted
from some people reneging on previous agreements on the rights allowed
while others resulted from instances where parents died without
clarifying to their children the kind of rights they had had,
especially given that the indigenous tenure allowed coexistence of tree
and land rights in the same holding. Disputes were common in instances
where pioneer occupants acquired land to cultivate or to grow tree
crops but lent out some sections or fragments to other families or even
allowed borrowers to cultivate food crops under their trees on the
understanding that the ‘borrowers acknowledged having nothing more than
user rights.’ Arbitrators
in some of these disputes were village elders who were assumed to have
had the knowledge of ‘which family used to own what and where.’ They
heard these disputes in the presence of both the local chief and the
adjudication officers. If they were unable to resolve it then they
advised the disputants to take their dispute to the local land
Adjudication Committee who would hear it and advise the adjudication
officer on how to proceed with the registration of disputed rights. If
again dissatisfied, the disputants would proceed to the Land
Arbitration Board, a body comprising between six and twenty five
residents from within the district and appointed by the Provincial
Commissioner. Most of the members of the Board were retired government
officers, elders, and other prominent people ‘who are likely to avoid
bribes.’ This Board heard cases from all over the district but met
quite irregularly. Cases brought to the Board took slightly longer than
those heard by the local land Adjudication Committee. Once the
adjudication register was published those still dissatisfied with the
Arbitration Board could make an appeal to theMinister of Lands. But
cases brought to both the Arbitration Board and Minister took unusually
long time to determine and involved costs that ordinary disputants were
not able to bear. All
cases of dissatisfaction were referred from the lower legal authority
to a higher one. Some were resolved by informal negotiations outside of
the arbitration the authorities while other disputants preferred to
appeal to higher levels of Provincial Administration. This was
generally practised by those who lost cases at the level of the
Adjudication Committee. Moreover, whether to go to the local Provincial
Administration or any other authorities depended on various
considerations. Some chose to go to the chiefs or DOs if their rivals
had already gone to the Committee. For others the choice was influenced
by the costs involved in filing a case. Attempts were always made by
each arbitrating bodies to ensure that all disputants were present when
the case was being heard. Both the DOs and the adjudication officers
(for the Committee) often consulted to decide on who would hear any
case brought to their attention because ‘some were civil cases that had
issues of land subordinated to them.’ The
option of going to the courts was generally discouraged because of the
Presidential directive that land disputes should not be heard by courts
and also because jurisdiction to determine land disputes per se
had been transferred from the magistrate’s law courts to the elders
courts chaired by District Officers. The ‘modern’ court’s
responsibilities are currently confined to giving the decisions of the
elder’s court’s legal force by certifying the proceedings of the
elder’s courts. Family disputes over boundaries cooled down faster than
those about actual ownerships and records of existing rights i.e
records of who owns how much and where. These were often the main
subject of arbitration by the different bodies. Most
informants felt that the reform program has progressed at a very slow
pace. They identified several factors responsible for this. A majority
observed that the reform was held up by delays in solving disputes over
demarcation of boundaries and over ‘records of existing rights.’The
rich, officers in the Provincial Administration and Lands Office and
corruption in general were also identified as impediments. Those who
cited corruption specifically accused the Committee and the
adjudication officers of settling disputes in favour of those who had
bribed them. The rich, the influential and local elites in general,
were perceived as instrumental in the registration because they had ‘uwezo'
(monetary means) to influence the Committee and the adjudication
officers to do them favours, irrespective of whether they had
legitimate rights and claims or not. This had the effect of
intensifying disputes over both boundaries and the ‘records of existing
rights’ between such people and others who had legitimate claims but no
‘uwezo to sway the Committee or the land officers to their side.’
Although
some of the respondents saw the adjudication staff as being vulnerable
to elite manipulation, the local elites resented the staff in the
Departments of Lands and Settlement,Survey, and the Physical Planning
because ‘they all come from upcountry and therefore have little regard
for the pace of the programme.’ These officers, on the other hand, gave
other reasons for the slow pace of the reform programme. They claimed
that the Department lacked both funds and enough personnel. They
specifically cited transport difficulties, lack of field allowances,
lack of equipment, and shortage of aerial and base maps as handicaps to
their work. Pressing assignments were done either with vehicles
borrowed from other departments, but again their use depended on the
availability of funds for fuel which when not obtained led to ignoring
the assignments altogether. These constraints led to funds for many
activities such as re-demarcating boundaries or subdividing holdings
being solicited from those who came for such services. Those who were
able to pay for the transport got their problems attended to while
those who were unable to pay had to wait for the Department to get
funds from the parent ministry which also depended on availability of
funds from the Treasury. The
adjudication staff also blamed the slow progress on disputes among
residents arguing that some of the disputes often degenerated into
violent confrontations thereby making some areas inaccessible. They
cited disputes involving families, clans, and adjudication of rights of
occupants on government land as the main examples in this regard. The
latter land was said to be even more inaccessible because of
disagreements among squatters about boundaries of their rights. The
status of Arab and Swahili land, whose owners had not registered their
rights, also hindered the progress of the reform particularly where
such lands bordered government land and/or were occupied by squatters.
Since the policy required the presence of land owners in the
adjudication processes for purposes of determining boundaries it was
difficult to register any land that bordered on Arab and Swahili land
in the absence of these land owners. The
reform program thus was being implemented under severe constraints. The
financial burden was slowly being transferred to the community and
particularly to those who sought land-related services. The
restrictions on government spending on the land reforms mean that the
local communities would have to shoulder the increasing costs of the
reform. Meanwhile there already had developed an informal ‘rent
seeking’ mechanism that benefited land officers and wealthy residents.
Generally control of land had clearly become a political resource for
both ‘low’ and ‘high’ politics in addition to providing economic
resources for mediating patronage based politics. One may conclude
therefore that while both administrative fiat and political whims
influenced the pace or the progress of the reform they also largely
contributed to the deepening of the land question and to
intensification of disputes in the area.
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4.0 Conclusion: politics of land rights
and social domination
4.1 Land and community politics
The
issue of land ownership has been at the centre stage of local politics
in Kenya for a long while. With regard to the coast, land rights
generated political conflicts similar to those experienced upcountry.
In the run up to uhuru in 1963, differences between the Arabs
and the Swahili and the Mijikenda groups led to socio-political
divisions along which several political parties formed. After
independence, the resettlement schemes caused sharp hostilities between
the upcountry groups and the indigenous coastal ethnic groups. Concerns
by the latter’s political leaders, resulted in the appointment of a
government Committees to investigate and make recommendations on the
land question. Recommendations received little attention. Government
land was increasingly turned over to economic and political elite for
purposes of tourism which the state elites seemed keen on promoting. This
obtained for a short period after Moi ascended to the Presidency in
1978 but became reinforced after his social bases of support began to
decline. ‘Grants from above’ linked to short-term political
considerations. Allocations were for the purpose of concentrating power
and of securing loyalty from the elite rather than according to broader
economic or political objectives. This resulted in increased
landlessness and deepening of the squatter problem around the coast.
These problems, in addition to the problems arising from the reform of
land tenure, became the single most important resource for mobilising
political support. Although
articulation of land issues plays a critical role in political
mobilization, those elected into office failed to continue to press for
viable solutions to it. The central state elites and others in
privileged political and economic positions ‘silenced’ them with grants
of land or other favours so that they could not pursue positions that
were detrimental to their modes of accumulation. In this way, the
national political elites’ role prevented a consolidation of an active
constituency of landless. Social
and political divisions among the various coastal groups also
contributed to the lack of a common and consistent position on the land
question. Divisions between the heterogenous Mijikenda groups and
especially between the Giriama, the Chonyi and the Kauma in Kilifi are
reproduced in the organisation of area electoral politics. But rarely
did these different groups take a common position on land issues as
each inhabited a distinct geographical location. Problems of one
subgroup were rarely seen as universal problems but as localised to
that specific group. Political elites contributed to the widening of
this divide since it enabled them to have an effective control over
politics and the economy. 4.2 Reformulating the ‘Land Question Complex’
The
reform of land tenure has been accompanied by different types of
disputes, of which the main ones are those over boundaries and actual
ownership of holdings. Transformation of land into an important
patronage resource also has had adverse effects on the previous modes
of accessing and controlling land. Most beneficiaries did not utilize
the land but turned their ‘grants from above’ over to private
developers. The implications of these for the national economy are very
clear. Firstly, at the national economic level, this mode of
accumulation has washed away the bases of indigenous capitalism and
replaced them with Asian and foreign ones but with connection to
central state elites. Secondly, at the local level, these forms of
accumulation have resulted in economic and social domination over the
local people. Thirdly, economic structures created by these forms of
accumulation are not responsive to local needs; they are associated
with ‘private forms of repression’ which are channelled through the
local state structures - the Provincial Administration officers. The
state-led mode of social-economic domination and exclusion has
bifurcated the society into a group of the landed and therefore
economically and politically powerful, and another group of squatters
or ‘subjects of the landlords’ who, while ‘subjects,’ are not meek but
increasingly determined to solve the land question. The local state
structures continue to act as the main avenues through which this
‘subjection’ and social domination is enforced. The
involvement of the state in regulating access to public land has
increased rather than decreased and has contributed to the deepening of
the land question rather than solved it. The state's practice of
individualizing public land according to political considerations has
created more people without rights to land and has generated new types
of disputes over ownership. The most important of these concerns
‘allocations of public land’ for such allocations- done on prime high
potential areas- result in mass evictions of those already settled on
the land in disregard of the improvements that occupants have made over
long periods of occupation. On
the other hand, political patronage has its own ‘expenses’ and
limitations: the success of ‘accumulation from above’ requires not only
political connections (or even higher political connections) but a
‘regime of compulsions’ and/or administrative and legal force.
Meanwhile, ‘resistance from below’ is the single most important
mechanism of limiting such forms of accumulation. But ‘resistance from
below’ has its own internal contradictions and limitations.
Social-economic and political differentiation among the actors involved
prevents consolidation of popular opposition against patronage in and
opposition against oppression both by institutions of the state at the
local level and private economic elites. What
has come to be known as the land question can not be reduced to a
single issue and solution. Its complexity and dynamism cannot be
comprehensively captured by casting it as asimple question of relations
of agricultural productivity to titling. The discussion suggests that
land tenure reform hinges on not only issues of land productivity but
also on issues of social restructuring, polarisation and exclusion.
Therefore the ‘land question complex’ must be understood as one
constitutive of the social and economic relations of a social
formation. For any attempt at resolving the political and economic
crises around land rights to be meaningful, it must first appreciate
this complexity.
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