MOBILITY, MARGINALITY AND
TENURE TRANSFORMATION IN KENYA:
EXPLORATIONS OF COMMUNITY PROPERTY
RIGHTS IN LAW AND PRACTICE
Celestine Nyamu Musembi and Patricia Kameri-Mbote
Abstract
Community land rights were officially recognized for the first time in
Kenya’s 2010 Constitution on the basis of ‘ethnicity, culture or similar
community of interest’. It remains to be seen whether this will begin to
reverse the trend of over-emphasis on individual tenure and sedentary
agricultural land uses. Against this background, this article interrogates
the various narratives around defining ‘community’ that have emerged
in national and local discourses on entitlement to resources. The article
draws on a case study of a Kenyan community – the Ogiek in the Rift
Valley – in which tenure and land use are changing rapidly and where
tension exists between individual and communal tenure, and among
contending visions of future community land rights.
Keywords: land rights, tenure, community, land use, Rift Valley
Introduction
Community rights to land in Kenya have had a precarious legal existence due to
a national pursuit of private, individual ownership. Since the 1950s attempts at
tenure reform have emphasized formal title. Community rights over land used for
purposes that are seen as incompatible with the dominant land use, namely
sedentary agriculture, have been particularly precarious, for example nomadic
pastoralism. Limited forms of legal recognition have been extended to some
forms of communal land tenure, but these are widely viewed as ineffective,
driving a push toward individual title even in the areas targeted for community
tenure.
The recognition of community land rights in the 2010 Constitution sought to
end this legal insecurity and this provides an opportunity to reflect on:
• the current legal landscape;
• how extant land laws work in concrete social settings (drawing on field
research conducted in East Mau in the Rift Valley); and
• what narratives are behind the meanings assigned to ‘community’ in delimiting
entitlement to land and land-based resources and whether they cause and/or
rationalize the exclusion of some social and demographic groups.
NOMADIC PEOPLES (2013)
doi: 10.3167/np.2013.170102
VOLUME 17, ISSUE 1, 2013: 5–32
ISSN 0822-7942 (Print), ISSN 1752-2366 (Online)
Celestine Nyamu Musembi and Patricia Kameri-Mbote
This article also looks at how the spirit of the 2010 Constitution will be given
effect, so that legal recognition of community land rights does not itself become
the basis for further marginalization of some or erode the basis for nationhood.
Background
Prior to the 2010 Constitution, land-tenure forms that recognized collective rights
were marginalized by official pursuit of a national land-tenure system promoting
private, individual ownership. This in turn favoured a dominant land-use type,
namely sedentary agriculture.1 This dual bias in the official tenure-reform
programme has translated into marginalization of community land rights, which
is felt the most in areas occupied by communities that practise pastoralism,
transhumance agriculture, or hunting and foraging.
The centrality of land in most of rural Africa cannot be overstated. Land is
significant not only as a key means of production. It is also a marker of citizenship
and belonging; a key factor in shock mitigation and in sustainable use of
environmental resources; a form of leverage in bargaining for social status; and a
root cause of conflict (Republic of Kenya 2002; African Union et al. 2010). The
centrality of land makes issues of land tenure2 not only very important, but also
highly contested (Kameri-Mbote and Kindiki 2008). Therefore decisions on what
type of tenure ought to be given formal legal recognition, and in what form, are
– far from being technical – every bit political. They reflect what the state thinks
ought to be valued.
The official commitment of the Kenyan post-independence government to
convert all land in the hands of private citizens into individually held and
formally registered land dates back to a 1965 policy declaration.3 However, this
had already started in the 1950s during colonial rule under a policy widely known
as the ‘Swynnerton Plan’. It was first implemented in the Central Province during
the state of emergency imposed by the British colonial regime to deal with
African demands for independence. Its stated objective was to improve
agriculture in the African areas, by providing farmers with security of tenure
(Swynnerton 1954). The plan was predicated on the notion that forms of tenure
other than individual ownership are inherently insecure and therefore unable to
provide incentives for profitable use of land.
The dual bias in favour of individual ownership and sedentary agriculture,
however, dates back even further than the Swynnerton Plan. In 1899 legal
officials for the Foreign Office wrote an opinion justifying the monarch’s power
to issue grants of land in the East African Protectorate to British settler farmers.4
They took the position that as the native people did not have a settled form of
government, there was no sovereign holding radical title over the land. The
British Crown then claimed radical title over land not physically occupied by
native people, which was characterized as ‘waste and unoccupied land’ and
6
NOMADIC PEOPLES
(2013)
VOLUME 17
ISSUE 1
Mobility, Marginality and Tenure Transformation in Kenya
therefore available for settler expropriation. The notion of ‘waste and unoccupied
land’ was based on a Eurocentric perception of what constituted meaningful use
of land – sedentary agriculture – thus deliberately chose to discount other uses of
land as noted above.
On account of this dual bias, a conference of colonial-era land ‘experts’ in East
and Central Africa in 1956 stated:
It is inevitable in most territories that for very many years to come native
law and custom will have to continue to govern land rights over large
areas, though when the community advances to a certain stage the aim
should be to replace these undefined rights with defined rights.5
Indigenous ways of organizing land relations were perceived as transitional, to be
replaced by ‘defined rights’ through a natural process of social evolution, with
government intervention from the top down to hasten this transition. This
thinking was not unique to East and Central Africa, nor has it been confined to
that historical period. In many contexts community land rights are not well
understood and are perceived as a lesser form of property because they are not
controlled by a single entity (Wantrup and Bishop 1975).
The dual bias also explains the lack of official attention to communities whose
livelihoods depend on land uses other than sedentary agriculture, such as the
Ogiek of East Mau. When the Carter Land Commission of 1933 recommended
the creation of Native Reserves for all the ‘native tribes’, the Ogiek were not
included.6 The reason given was that they did not constitute a settled and
identifiable group engaged in productive use of the land. In a policy context
overwhelmingly defined by a belief that productivity is tied to individual
ownership and sedentary agriculture, it is not surprising that no value was
attached to what were perceived as marginal land-use types such as pastoralism,
forest foraging and honey production. The only policy response to accommodate
‘unusual’ land-tenure regimes and uses was the registration of group ranches7 to
allow for communal landholding in pastoral areas. Even this has largely been
perceived as a temporary concession which, it was assumed, would phase itself
out as people came to appreciate the superior benefits of individual title (OkothOgendo and Oluoch-Kosura 1995).
The Current Legal Landscape
Despite the Aspiration: Community Land Rights without Community Land?
Before the 2010 Constitution, the 2009 National Land Policy (NLP) had already
laid a foundation for recognition of community land rights. It had identified
unequal legal protection of different types of tenure as a hindrance to sustainable
management of land and land-based resources. Like the Constitution, the NLP
provides for three land-tenure categories – public, private and community – and
VOLUME 17
ISSUE 1
NOMADIC PEOPLES
(2013)
7
Celestine Nyamu Musembi and Patricia Kameri-Mbote
requires the enactment of legislation to flesh out their content. The NLP lays
down the overall principles that should underpin such laws, namely:
• equal recognition and enforcement of land rights;
• non-discrimination in ownership of, and access to, land; and
• protection and promotion of the multiple values of land (rather than viewing
land as no more than an economic commodity). (Republic of Kenya 2009a:
para 69)
The NLP had proposed the enactment of a unified, substantive law for all three
tenure categories (the Land Act) and one procedural law (the Land Registration
Act) which would deal with the documentation of transactions in land under all
tenure systems. However, the Constitution departed somewhat from this
aspiration towards a single legal framework. The Fifth Schedule of the
Constitution – which dictates the legislative timetable – allows eighteen months
to enact ‘legislation on land’ and five years for ‘community land’.
These different time frames are probably indicative of the perception that
community land issues are complex and should be handled separately from the
more straightforward private and public tenure. This unfortunately sends a signal
that issues relating to community land rights can be ‘added and stirred’ after the
character of land tenure in general has been set in place; as an afterthought rather
than as a core part of a comprehensive package of tenure reform.
As a result, a separate Community Land Bill is being drafted, while the Land
Act8 and the Land Registration Act9 have already been enacted. The law setting
up the main regulatory body, the National Land Commission,10 has also been
enacted. This legislation makes references to community land, without the
content of it having been clearly defined. Actually the Land Act states (Section 3)
that it is applicable to all three categories of land (public, private and community),
even though it anticipates enactment of a law on community land (Section 37).
Section 5, which defines the forms of tenure that shall be recognized under the
Land Act, lists ‘customary land rights, where consistent with the Constitution’. It
also underlines equal protection and equal enforcement of land rights under all
tenure systems, and provides for conversion from one category to another
(Section 9). The Land Registration Act mandates the maintenance of a community
land register, and goes on to stipulate the information to be recorded in it.
Arguably, the Land Act and the Land Registration Act would not have been
comprehensive without addressing all three land-tenure types. However, their
provisions on community land raise concerns that they may have circumscribed
the legislative space and left little room for innovation in legal protection of
community land rights. It is therefore likely that in spite of constitutional
recognition, the perception of community tenure as transient and the trend of
parcelling out community land into individually held pieces – ostensibly as a
defence mechanism against future land-grabbing (Kameri-Mbote 2009) – will
8
NOMADIC PEOPLES
(2013)
VOLUME 17
ISSUE 1
Mobility, Marginality and Tenure Transformation in Kenya
persist. This raises the question of whether constitutional recognition of
community land rights will eventually ring hollow, as the subject matter itself is
fast disappearing before the necessary implementing law can be enacted.11
This and other implications of the constitutional protection of community land
are reflected upon in the penultimate section of this article. The remainder of this
section will discuss the current state of the law as it relates to community tenure.
This is the statutory law that will continue to operate until a new law is enacted.
What does this current governing legal framework look like? In what specific
ways has it proved inadequate in guaranteeing the security of community land
rights? How might those inadequacies be addressed in the proposed law?
Temporary Solutions for a Transient Tenure Category
At the moment, if a group of people wish to legally secure collective interests in
land they have three options: register either as (1) a trust, (2) co-tenants, or (3) a
group ranch.
REGISTER A TRUST
This entails registering one or more people12 as private individual owners, and
then indicating them on the land register ‘as trustee(s)’. They then draw up a
separate legal document – a Trust Deed – setting out the terms of the trust, and
the powers of the trustee(s). This procedure was first made possible by Section
126 of the now repealed Registered Land Act, the law that was used to register
private title until the enactment of the 2012 legislation. The Land Registration Act
(2012) has retained the option of registering a trust over land13 but, judging from
experience, this option is unlikely to be used. Even under the repealed law this
option was rarely used, possibly because it was not popularized by officials
implementing the title formalization process (Nyamu 2000).
REGISTER AS CO-TENANTS
Section 91 of the Land Registration Act (2012) permits the registration of land by
‘two or more persons in undivided shares’, either as joint tenants or as tenants-incommon.14 Each co-tenant is entitled to receive a copy of the certificate of title.
However, the ensuing provisions give the impression that the collective land
ownership envisioned here is that of a structured group such as a cooperative,
rather than a community identified by ‘ethnicity, culture or similar community of
interest’ under the 2010 Constitution. For instance, where the co-owners have
registered as tenants-in-common, any co-tenant is entitled to dispose of his/her
share as long as the consent of other co-tenants is sought. He/she may also apply
to the registrar for partition of the land held in common, as long as all the other
co-tenants consent to this (Section 94). This would pose practical challenges in
the case of a community, on account of the numbers involved and intergenerational
succession. The law does require the registrar to take into account the interests of
co-tenants who refuse consent. For instance, in a pastoralist setting, the registrar
VOLUME 17
ISSUE 1
NOMADIC PEOPLES
(2013)
9
Celestine Nyamu Musembi and Patricia Kameri-Mbote
is supposed to examine whether the dissenters will still have sufficient pasture in
their accustomed sites even after the partition. In cases of partition the registrar is
given powers such as ordering compensation of those opposed to partition, and
auction of shares. The authors’ suspicion is that these provisions on partition and
the powers of the registrar make this an unattractive option for the registration of
community rights to land.
REGISTER A GROUP RANCH
This is made possible by the Land (Group Representatives) Act of 1968, which
is still in force as it was not repealed by the 2012 legislation. This law allows a
group of people who hold shared interests in a piece of land, typically a common
grazing area, to have their names entered into a register of members, constituting
a Group Ranch. They then adopt a constitution and elect between three and ten
people to serve as representatives of the group. Those elected apply to the
Registrar of Group Representatives for incorporation. They acquire the legal
authority to hold title to the land and enter into transactions on behalf of its
members. The group also elects a committee which is responsible for the day-today running of the ranch, including setting livestock quotas for each member.
Section 8 requires that the representatives consult with members and exercise
their power for the collective benefit of the group. In reality, the exercise of the
powers of group representatives has proved to be a threat to members’ rights, and
to community interests in land broadly, an issue that is taken up in detail below
in the discussion of shortcomings of the current legal regime.
Group ranches are more commonly found in the districts classified as ‘arid and
semi-arid lands’ (ASAL) where pastoralism is the predominant land-use. The
enactment of this law followed the recommendations of the Mission on Land
Consolidation and Registration in Kenya (1965–1966),15 appointed to appraise
the tenure reform programme. It took the view that the individual tenure system
being established in the country was unsuitable for certain areas, especially where
nomadic pastoralism was practised. It proposed instead the registration of groups
of pastoralists as owners of large blocks of land with fixed boundaries.16
Trust Land
In today’s legal context, people who hold unregistered land will find it is regarded
as ‘trust land’. A brief historical background is necessary to understand this. The
report of the 1933 Kenya Land Commission (Carter Commission) recommended
that reserves be set up for the various African communities.17 Further, the
commission recommended that the tenure in those Native Reserves would be
governed by customary tenure rules initially, but that the policy should be
towards eventual introduction of private title:
On the question raised on the first term of reference, whether the tenure
of land should be tribal or individual, we recommend that the tenure
of each reserve should be built on the basis of native custom obtaining
10
NOMADIC PEOPLES
(2013)
VOLUME 17
ISSUE 1
Mobility, Marginality and Tenure Transformation in Kenya
therein, but that it should be progressively guided in the direction of
private tenure, proceeding through the group and the family towards the
individual holding.18
Title in the Native Reserves was held in trust for the ‘natives’ by the colonial
government. After independence, this trust passed on to local authorities (county
councils) and the land became known as trust land. The relevant law is the Trust
Land Act (1970),19 which remains in force after the 2010 Constitution.20 It makes
it clear that the tenure regime operating in the trust land areas is African
customary law.21
Provision is made for the conversion of trust land into individually registered
land, once that land undergoes adjudication under the relevant laws governing the
tenure reform programme. The Trust Land Act makes provision for county
councils to designate certain portions of trust land for public purposes, such as for
use by a public body, for mining purposes or for use and occupation
by any person or persons for purposes which in the opinion of the council
are likely to benefit the persons ordinarily resident in that area or any
other area of Trust land vested in the council, either by reason of the use
to which the area set apart is to be put or by reason of the revenue to be
derived from rent therefrom.22
Once trust land is set apart by the government for public purposes it ceases to be
available for local people.23 The excerpt of the Trust Land Act quoted above has
proved to be the root of dispossession for communities occupying such land. This
is discussed below, where inadequacies in the legal options currently available for
the protection of community interests in land are highlighted.
Shortcomings in the Current Law
Group ranches and trust land have been the main legal forms in which community
land rights have been held. However, each of them is riddled with problems.
GROUP RANCHES
Analysts observe that the ‘group ranching’ schemes have generally failed due to
the haphazard manner in which they were delineated, and the absence of a clear
legal regime for their management to minimize conflict. As a result, group ranch
members have given in to pressure to subdivide the ranches into individual
holdings. Therefore by the mid-1990s official policy leaned towards extending
the process of individualization of land tenure to all ASAL districts (Kituyi 1990;
Rutten 1992; Okoth-Ogendo and Oluoch-Kosura 1995: 44; Galaty 1999; KameriMbote 2002).
The ineffectiveness of the legal regime governing group ranches has been
partly attributed to a lack of congruence between official and community
perceptions of what the relevant social unit for landholding is (Rutten 1992).
Group ranches have also been criticized for introducing a territorial fixity that did
VOLUME 17
ISSUE 1
NOMADIC PEOPLES
(2013)
11
Celestine Nyamu Musembi and Patricia Kameri-Mbote
not exist before, resulting in long-running interclan boundary disputes, some
violent (Rutten 1992: 290). This territorial fixity has also impeded mobility, which
is a crucial component of sustainable livestock production in arid and semi-arid
areas (Kituyi 1990; Rutten 1992; Galaty 1999). Moreover the legal regime has
done nothing to stop corrupt and influential group representatives from irregularly
transferring pockets of group ranch land to their individual ownership.
Overall, the group ranch policy represents a very narrow approach to the
broader issue of collective land rights. The policy appears to be guided by
exceptionalism: it is built around a presumption that only pastoralism required
this kind of accommodation of collective interests in land. Pastoralism is one
form of land use dependent on community tenure but it is not the only one. There
are other land uses for which individual ownership is just as unsuitable, such as
hunting, foraging or beekeeping. These are not necessarily compatible with
pastoralism; conflicts do arise between pastoralists and these other land uses,
drawing attention to the need for a comprehensive look at various manifestations
of community-oriented land rights and the allied land uses. This is the legal
framework that the anticipated law on community land rights must provide in
order to give full effect to the 2010 Constitution.
TRUST LAND
Since independence, much trust land has now changed status, either to individual
ownership under the Registered Land Act or to government land set aside for
public purposes as discussed above. Therefore customary tenure, and with it the
recognition of collective rights, has ceased to apply in those areas (Kameri-Mbote
2002).
The wide discretionary powers given with respect to the setting aside of trust
land for public purposes have been abused, as a result of which chunks of trust
land have been put out of reach of communities for purposes that can hardly be
described as ‘public’ or beneficial to residents. In many instances land ostensibly
set apart for a public purpose was subsequently allotted to powerful individuals,
a trend that defined the opacity of the one-party era, particularly in the 1990s. The
2003 Ndung’u Commission (Republic of Kenya 2004) investigated illegal/
irregular allocations of public land. County councils were required to supply
inventories of all land set aside for public utility within their jurisdiction, as well
as a list of all allocations made to individuals and companies. The commission’s
report states that the information supplied was so grossly inadequate that it was
impossible to establish the full extent of land-grabbing in areas under the control
of local authorities (Republic of Kenya 2004: 39), most of these being trust lands
(or former trust land irregularly transferred). Clearly, rather than safeguard
community interests, the trust land system simply contributed to the rapid
disappearance of such land altogether.
It is clear from this discussion that the existing legal regime could not be
depended upon to safeguard community land rights.24
12
NOMADIC PEOPLES
(2013)
VOLUME 17
ISSUE 1
Mobility, Marginality and Tenure Transformation in Kenya
The Current State of Community Land Rights: Case Study of
East Mau
Background and Rationale for Case Study Selection
The authors chose the Ogiek community as the case study because it has had a
concerted struggle for land rights dating back to the colonial period. The Ogiek
community claims ancestral title to the Mau Forest Complex, which is in the
Kenyan Rift Valley. Their land struggle has also involved multiple attempts to
define Ogiek identity and ‘belonging’ both internally and in relation to the
Kenyan polity. It therefore offers an ideal setting for studying the narratives on
defining community and community land rights. It also helps to draw out the
issues that must be addressed in attempting to translate abstract constitutional
recognition of community land rights into concrete entitlements. The Ogiek case
study provides salient lessons on crucial issues such as the interplay between
community interests and larger national goals.
The Mau Forest Complex is of strategic national importance because it is the
largest of five water towers in the country, with the largest forest cover. Rivers
originating from Mau drain into Lakes Victoria, Nakuru, Turkana, Baringo and
Nitron. It supports some of the most important national wildlife reserves,
including the Maasai Mara National Reserve and the Serengeti National Park in
Tanzania. It also hosts a rich variety of plant and animal species of international
conservation concern. All but one of the rivers in the west of the Rift Valley
originate from the Mau (Republic of Kenya 2009b: 55–56, 61). Concerns about
rapid deforestation due to human settlement led to the establishment in 2009 of
an official task force (popularly known as the Mau Task Force) which has made
far-reaching recommendations on landholding within the Mau, with huge
implications for the Ogiek land claim.
Although the Ogiek live throughout most of the East Mau Forest this study
focused on Nessuit Location, which is situated within Njoro division of Njoro
district and has a total recorded population of 13,488.25 Nessuit Location is
further divided into three smaller administrative units (sub-locations): Sigotik,
Mesipei and Nessuit. The first sub-location is settled predominantly by people of
Kipsigis ethnicity (Kalenjin) who only came into the area in the mid-1990s
pursuant to a government settlement programme that has since been termed
‘irregular incursion into the forest’ (Republic of Kenya 2009b). The other two
sub-locations are occupied predominantly by people of Ogiek ethnicity.
The researchers employed a combination of qualitative and quantitative data
collection methods, carrying out semi-structured interviews with key informants,
and also conducting life history interviews with respondents selected by age and
gender.26 Four focus group discussions (FGDs) were convened, organized by
gender and age: older men, older women, younger men, and younger women.
There was a structured questionnaire survey of three hundred respondents
representing three hundred households across the administrative sub-units. In
VOLUME 17
ISSUE 1
NOMADIC PEOPLES
(2013)
13
Celestine Nyamu Musembi and Patricia Kameri-Mbote
addition to using these sub-units as the criterion for distribution, the authors also
decided on a specific ethnic balance: two hundred Ogiek and one hundred nonOgiek. This weighting was dictated by the population statistics and by the need
for both an insider’s and an outsider’s perspective on how the ongoing struggle
for official recognition of Ogiek ancestral title to the East Mau Forest is perceived.
The fieldwork was undertaken on diverse dates in September 2010 and between
April and June 2011.27
Land Tenure in East Mau: Implications for Legal Protection of Community Land
Rights
In East Mau, marginality and insecurity of tenure have a long, interwoven history.
The Ogiek, a tiny minority, have an undisputed claim to first settlement in the
forest, as this is well documented in colonial records. They have endured several
waves of eviction since the Mau Forest Complex was declared a protected
conservation area in 1932. Unlike other ethnic groups within the colony, they
were not allocated a Native Reserve in the 1930s because the Carter Commission
did not list them among the forty-two tribes it recognized (Kenya Land Alliance
2009). The colonial government therefore refused to recognize their claim to
ancestral title to the forest, even though there is no historical evidence of them
having migrated from anywhere else (Blackburn 1976; Kamau 2000).
Successive governments, particularly since the 1990s, have tried to redress
this historical injustice and certain areas in the outer ring of the forest have been
declared settlement schemes. But this process has been fraught with allegations
of irregularity and token awarding of a few individual titles to Ogiek while the
bulk went to members of other communities favoured by the regime of the day.
When a settlement scheme was first initiated in Nessuit in 1992, Ogiek community
members initially refused to accept individual parcels. They insisted on a block
title for the community, which they perceived as more secure, but this was not
granted.28 The current status in Nessuit is that some Ogiek and non-Ogiek
(mainly Kipsigis) families have acquired private title, while others hold allotment
letters, provisional documents assigning a specific person a specific parcel of land
but not yet confirmed through official registration.29 This is because the settlement
process was halted by a High Court injunction in 1997 in a case filed by
representatives of the Ogiek challenging the legality of the scheme.30 Still others
occupy land without any form of documentation whatsoever, or on the strength
of allotment letters whose authenticity has been challenged by others who hold
similar letters in respect of the same parcel (double allocations).31 In addition to
this legal insecurity, absolute landlessness among large numbers of Ogiek has
been officially acknowledged (Republic of Kenya 2009b).
The current state of affairs in Nessuit is a general insecurity of entitlement to
land, whatever the basis for one’s claim. Private title has been rendered insecure
following the recommendations of the Mau Task Force (Republic of Kenya
2009b: 46–47) to audit all title deeds issued in this area. Therefore protection of
14
NOMADIC PEOPLES
(2013)
VOLUME 17
ISSUE 1
Mobility, Marginality and Tenure Transformation in Kenya
any claimed interest is currently contingent on the completion of this audit. Titles
that are found to have been issued irregularly will automatically be revoked
without compensation. Titles may be declared irregular on any of the following
grounds: either the allotment date shown on the ‘green card’ predates the official
designation of the area as a settlement scheme;32 or the allotment was done in
contravention of the High Court injunction; or the allotted land falls outside the
boundaries of the settlement scheme; or the allotment was not in line with the
stated government purpose.33 Also to be revoked are titles giving one person more
than one parcel of land, or a parcel larger than the designated five acres (Republic
of Kenya 2009b).
Barring any of the irregularities discussed above, a clean title will secure an
individual owner’s land rights, or at least the right to compensation or relocation
by government if their land parcel is located in a critical water catchment area or
biodiversity hotspot. It is clear from the task force’s report that a significant part
of Nessuit and the neighbouring Mariashoni are considered part of a critical water
catchment area, and therefore revocation and relocation are likely options for
those with clean titles (Republic of Kenya 2009b: 63).34
The Nessuit area is therefore an incomplete (and in some parts irregular)
settlement scheme. While on paper there are areas of land that are unallocated and
therefore not under individual or group ownership, in reality there is no unclaimed
area. All the land within the location is under the control of some individual or
family.35 Yet Ogiek respondents in the study (and in public forums and media)
kept referring to ‘our community land’. What did they mean by that? The answer
to this question has a bearing on what they will expect of the new legal recognition
of community land rights under the 2010 Constitution.
At one level they are referring collectively to the parcels that have so far been
allocated to Ogiek families under the stalled settlement scheme. However, more
significantly for the purposes of this project, it is clear from the findings of this
research that they also intend to include:
• land parcels settled or used by Ogiek families even though not officially
allotted to them (on the basis that the whole escarpment is their ancestral land);
• land intended for Ogiek settlement but irregularly allotted to people from
other communities (also claimed on the basis of ancestral title by virtue of first
occupation);
• land outside the settlement scheme boundaries (and therefore part of the
forest), but which they claim is identifiable as having belonged for generations
to the respective Ogiek clans;36 and
• all of the Mau Forest Complex land, to which the larger Ogiek community lays
ancestral claim as the first inhabitants (Muchemi and Ehrensperger 2009).
They expect the constitution to finally reward their decades-long campaign for
their ancestral lands. They articulate the claim as a collective one but this is not
VOLUME 17
ISSUE 1
NOMADIC PEOPLES
(2013)
15
Celestine Nyamu Musembi and Patricia Kameri-Mbote
to say that there is no notion of private rights to land. In Nessuit, depending on
who holds them, there is both hostility to and accommodation of private rights
even as the discourse is framed largely as a community struggle. Private rights in
the hands of Ogiek who have secured title deeds are accommodated by fellow
Ogiek; but those in the hands of Kipsigis are viewed with hostility and inherent
suspicion, due to the cloud of irregularity that surrounds their settlement in the
area. This dimension will be revisited when exploring the prevalent narratives on
community in the next section.
The Ogiek themselves, however, especially those who have been actively
involved in championing the claim to land and forest resources, are far from
unanimous on the issue of how to achieve a balance between private rights to land
that have emerged since the 1990s settlement initiative and the pursuit of official
recognition of community rights.
Some take the view that any accommodation of private rights claims,
especially with regard to current and future demands for land and access to the
forest, will dilute their claim to indigenous status as a community. Their proposal,
recognizing that twenty years of individualization of landholding is a reality, is
that the community should insist on a block title. Any sub-division within the
block title should be an internal matter, dictated by the need to zone different land
uses. They suggest that the current private holdings could be designated for
human settlement and small-scale cultivation. For such holdings something akin
to land certificates could be issued, while any land outside of these be retained
undivided and zoned into grazing areas and beekeeping areas. The undivided
areas would be held communally and regulated according to the well recognized
clan rules and conventions, which would be given legal authority through the law
regulating community land.37
Others take the view that completion of the settlement scheme, culminating in
the issuing of private titles, is the only viable option, because there is no
remaining land for future allocation that can be counted upon to serve as
community land. The only potential ‘community land’ is either land to be hived
off the forest (an unlikely option, in view of the restoration initiative underway)
or to be repossessed from the communities that were settled irregularly. They also
invoke standard arguments in favour of private title: better incentive for
development and access to credit, and fewer disputes that arise from mixed
agriculture because private holdings can be fenced off. They argue that communal
landholding would be untenable as there are now diverse interests and diverse
ways of life, some incompatible with each other.38
This discussion on land tenure in East Mau brings out several points that have
implications for the crafting of a legal framework for protecting and regulating
community land. First, the law will have to make it clear how individual interests
are to be accommodated within community land rights. The two are not mutually
exclusive; the social reality is one of overlap and interaction. Second, the
language in which claims to community land are being made is a distinctly ethnic
16
NOMADIC PEOPLES
(2013)
VOLUME 17
ISSUE 1
Mobility, Marginality and Tenure Transformation in Kenya
one, tied to cultural identity. Looking at East Mau it is difficult to envision what
the framers of the Constitution had in mind as a ‘similar community of interest’
(Article 63(1)) outside of ethnicity and culture. Since the claim is framed in terms
of reclaiming ancestral land, emphasis is inevitably on ethnic and cultural
identity. The legal framework will have to walk the tightrope of ensuring that
validation of claims along these lines is still in line with the equality and nondiscrimination provisions of the 2010 Constitution. Third, the situation in East
Mau confirms the concern expressed earlier that researchers and law-makers may
be engaging in the search for a legal framework for community land rights while
the subject matter itself is fast disappearing.
Finally, how are national goals such as environmental conservation and social
cohesion to be accommodated simultaneously with implementation of the
constitutional recognition of community claims to land and land-based resources?
The next sub-section on tenure over resources highlights the issues raised by this
question in the context of East Mau.
Tenure over Resources in East Mau: Implications for Legal Protection of
Community Land Rights
Article 68 of the 2010 Constitution requires Parliament to revise sectoral land-use
laws in accordance with the principles that frame its chapter on land and
environment.39 Accordingly, comprehensive reviews of laws and policies in the
water, forestry, wildlife and tourism sectors are underway, even as the land laws
are being enacted. The outcomes of these reviews will inevitably have
implications for future community land rights. This sub-section will highlight
such implications with respect to water and forest resources in East Mau.
WATER
The water sector has already undergone far-reaching legal and policy reform
culminating in the Water Act of 2002, which was preceded by the National Water
Policy of 1999. The Water Act contains provisions that place a lot of emphasis on
community participation in the management of water resources.40 From a reading
of the text of the law it would seem that communities are already enjoying the
benefits of the principle of citizen participation that is emphasized in the 2010
Constitution. However, the findings of this research in East Mau suggest that
awareness of these structures, and therefore community participation in water
governance, is extremely low. Community control of water resources is tenuous
at best.41
In the survey we asked the respondents whether they were aware of Water
Resource Users’ Associations (WRUAs). Seventy-one per cent said no, despite
our having observed a signpost in Nessuit for the Njoro River WRUA.42 Of the
29 per cent who said yes, we asked how they became aware of them. Only 9.3
per cent indicated that their awareness arose from actual participation in such a
group. The majority had come to know about WRUAs through the neighbouring
VOLUME 17
ISSUE 1
NOMADIC PEOPLES
(2013)
17
Celestine Nyamu Musembi and Patricia Kameri-Mbote
Egerton University (which had carried out a river rehabilitation project) or
through hearing about them from officials of groups concerned with water issues.
The water issue in East Mau also brings into sharp focus the challenge of
balancing local and national interests that will need to be addressed in the legal
framework on land generally, and community land rights specifically. The crisis
that necessitated a high-level initiative on restoration of the Mau Forest Complex
was triggered by rapid destruction of a crucial water catchment area on account
of human settlement, with implications nationally and regionally.
Under the 2010 Constitution, all water resources (rivers, lakes and other water
bodies) are classified as public land. This means that even within areas that might
end up being classified as community land, water resources will be regarded as
being under the control of the national government ‘in trust for the people of
Kenya and shall be administered on their behalf by the National Land
Commission’ (Article 62(3)). In East Mau it is quite clear that whatever local
claims to land and land-based resources will be validated, be they community or
private, the law’s role must involve balancing those claims against the larger
national public interest.
FORESTS
The Mau Task Force recommended that the government should give a strong role
in forest management to communities adjacent to the forest. The intention was to
facilitate alternative livelihood strategies compatible with forest conservation.
The Ogiek are positioning themselves as the ideal candidates for community
management of the Mau forest on account of their long occupation and intimate
knowledge of it. Their framing of the claim also emphasizes their traditional uses
of the forest, such as beekeeping and foraging, which are not destructive, while
playing down cultivation.
Like water, the forests sector has also undergone substantial reform,
culminating in the Forests Act of 2005. Here, too, the law created communitylevel structures for the involvement of citizens in decision-making, citing as one
of its objectives the promotion of ‘the empowerment of associations and
communities in the control and management of forests’ (Section 5(m)). The law
created Forest Management Committees that have local representation, as well as
Community Forest Associations (CFAs) to be set up by members of communities
living within or adjacent to a forest area (Sections 46–49).
The survey showed that the awareness level with respect to the forests sector
was better than that of the water sector. Of the respondents, 43 per cent were
aware of CFAs, while 57 per cent were not. This is no doubt on account of the
publicity around the work of the Mau Task Force and the politics it spawned.
However, the awareness level was not matched by actual participation: only 3.3
per cent had taken part in a CFA; the vast majority (57 per cent) had only heard
about CFAs from government forest officers. The ongoing review of the forests
sector to align it with the 2010 Constitution must also be coordinated with the
18
NOMADIC PEOPLES
(2013)
VOLUME 17
ISSUE 1
Mobility, Marginality and Tenure Transformation in Kenya
enactment of the law on community land as there are definite implications for
forest-adjacent communities.
Community, Belonging and Entitlement: Narratives of Inclusion and Exclusion
A person’s ability to establish a claim to land classified as community land will
rest first on the definition of community, and second, on whether that person
belongs to that community. Yet the experience of implementing the Land (Group
Representatives) Act suggests that defining community for purposes of establishing
entitlement to land is an art that continues to elude lawmakers. The 2010
Constitution avoids a definition of ‘community’, stating simply that communities
will be identified ‘on the basis of ethnicity, culture or similar community of
interest’.43 The National Land Policy is bolder and attempts a definition of
community: ‘a clearly defined group of users of land, which may, but need not
be, a clan or ethnic community’ (Republic of Kenya 2009b: 60).
In writings on community ownership of land and land-based resources, the
term ‘community’ has been understood as referring to a clearly defined group of
users of land, holding clearly defined rights and obligations. There are different
kinds of communities: some have explicit, written rules while others have
implicit, unwritten rules. Further, in most community land contexts, the rules on
resource extraction appeal to some authority higher than the individual user or
any sub-set of users – this may be the chief, the medieval manor, a democratic
governing body, a government agency, group consciousness or peer pressure
(Wantrup and Bishop 1975). The rules governing community property may be
vested in formal institutions or in informal institutional arrangements based on
cultural or religious customs, kinship and mores (Gowdy 1994). There are
separate but not necessarily equal entitlements to the resources for each user and
all users are subject to strict limits in their use of the community property
(Netting 1997; Stevenson 2001).
The governing norms ensure that any dealing with community property takes
into account the entitlements of others and is subject to some process of approval
by the community. Potential users who are not members of a group of co-equals
are excluded, or permitted use only on certain conditions (Quiggin 1984). It
therefore differs from private property only with respect to the number of persons
who own it and can exclude outsiders (Bromley and Cernea 1989; Kameri-Mbote
2002). Being defined as an insider or an outsider makes all the difference when it
comes to perceptions of entitlement to resources. The question of community and
belonging is therefore made contentious right from the start because of the
anticipated consequences.
As noted above, the 2010 Constitution sets up three criteria on the basis of
which ‘community’ may be constituted: ethnicity, culture or ‘similar community
of interest’. The experience of East Mau sheds light on the criteria likely to
predominate. The sociopolitical context of Kenya following the 2007–2008 postelection violence, which resulted in loss of lives, destruction of property and
VOLUME 17
ISSUE 1
NOMADIC PEOPLES
(2013)
19
Celestine Nyamu Musembi and Patricia Kameri-Mbote
displacement of people, also suggests that the first two criteria (which often get
conflated) will dominate the debate on defining community land rights. It has
been observed that people’s allegiance to their ethnic groups is much stronger
than to the national polity (Ndegwa 1997). Ethnic identity is therefore very likely
to become the default frame of reference unless care is taken to ensure inclusivity
in defining the basis for entitlement.
The Report of the Commission on Investigation of the Post Election Violence
(Republic of Kenya 2008) chaired by Judge Philip Waki noted that the
constitutional liberty to own land anywhere in Kenya exists only in theory
(Republic of Kenya 2008). The report based this assertion on the historical trend
of creation of districts based on ethnic boundaries, which has resulted in exclusive
sub-national enclaves akin to ‘native reserves’, in which there are ‘insiders’
(ancestral land owners) and ‘outsiders’ (migrants) (Republic of Kenya 2008: 31).
The report concluded that the overt and covert pursuit of ethnic homogeneity in
land allocation and acquisition has led to a type of ‘residential apartheid’ as
Kenyans move into more ethnically homogeneous areas even within urban
centres and towns (Republic of Kenya 2008: 31).
In East Mau it became clear very early on that it was impossible to have a
discussion on land and land-based resources without the question of inclusion and
exclusion framing the discussion right from the outset. There is a distinct ‘us and
them’ narrative. Reference to ‘community’ in the context of entitlement to land
and land-based resources is deliberately framed so as to include the speaker’s
community and exclude the other.
The Mau Task Force Report officially acknowledged that the Ogiek have lived
in the forest the longest (over 150 years) and it undertook to identify all Ogiek.
This exercise all but confirmed that Ogiek will get preference in the proposed
government policy of giving communities adjacent to the forest a strong role in
its community management, as part of the search for alternative livelihood
strategies more compatible with conservation. This certainly puts a premium on
ability to prove Ogiek ancestry.
The task force undertook its process of Ogiek lineage validation with the help
of the Ogiek Council of Elders. The exercise produced an official register of
Ogiek lineages, and appears to have enjoyed a lot of legitimacy at the grassroots
level. Upon establishing Ogiek identity, one is then perceived as well positioned
to claim land rights or preferential consideration in community forest management,
or compensation for forfeited title. Thus, it would appear that proof of Ogiek
identity now depends primarily on an official document. A government record has
now become the primary (if not conclusive) document for defining community,
belonging and entitlement. It is the primary reference for validation of any claim
to land or land-related resources in the East Mau Forest .
However, being Ogiek is not an uncontested identity. On account of the
community’s mobility (both voluntary and forced, through eviction from the
forest) and interaction with other communities, the Ogiek have taken on the
20
NOMADIC PEOPLES
(2013)
VOLUME 17
ISSUE 1
Mobility, Marginality and Tenure Transformation in Kenya
language of other communities, including the naming of their clans and agesets.44 While this may be seen as a consequence of interaction and adaptability,
there is a survival narrative too. The historical mode of organization of the Ogiek
into bands with no organized formal institutions such as chiefs, clan leaders or
formal councils of elders made them vulnerable (Kamau 2000). They have been
perceived by successive governments (colonial and post-colonial) as elusive and
uncountable bands of forest dwellers who needed to be flushed out into the open
where they could be counted and organized. In this undertaking, non-Ogiek have
typically been appointed as local administrators, creating the openings that
enabled opportunistic claims to Ogiek identity. With the loss of language and
traditional way of life, governments and politicians have disinherited the Ogiek
by exploiting the difficulty in identifying bona fide Ogiek (Kamau 2000).
The Ogiek have made sustained efforts, especially since the 1990s, to reclaim
an ‘authentic’ Ogiek identity, in order to counteract the way in which they have
historically been defined by others. During the 1969 census, for instance, the
Ogiek were lumped together with other forest-dwelling tribes and collectively
referred to as Dorobo – a Kiswahili derivative of the word Il-Torobo, used by the
Maasai to refer to a person who has no cattle and therefore lives a poor life by
eating wild animals (Blackburn 1976: 53). The Ogiek have used public forums at
every opportunity to put forward their own narrative. The most notable efforts
include submissions before the Njonjo Commission,45 in court cases,46 in the
media47 and through publications such as an atlas of Ogiek ancestral territories in
East Mau (Muchemi and Ehrensperger 2009), and monographs authored by
Ogiek activists (Sang 2001; Towett 2004). The atlas presents a careful mapping
of the clan boundaries, based on a combination of oral history and technical
expertise. In addition, it presents genealogies of the respective Ogiek clans, and
documents Ogiek knowledge of the Mau’s ecoclimatic zones and the types of
land uses that each zone supports. The atlas presents a distinct narrative of Ogiek
lifestyle (hunting and foraging) as being compatible with forest conservation and
sustainable use, carefully omitting any reference to grazing or cultivation, which
are currently the dominant land uses in the area. In the court cases the Ogiek
present their livelihood as entirely dependent on the forest, and their culture as
being about conservation of nature, asserting that even in modern times they
never interfere with the natural environment except when necessitated by
construction of schools, administrative and trading centres and houses of
worship.48
How have the Kipsigis landholders responded to what is essentially a narrative
that defines them out of entitlement to land in East Mau? They are really more of
an aggregation of individual claimants to land than a community as such. While
conducting the survey the researchers observed that the Kipsigis in East Mau are
from diverse poor backgrounds in various parts of Baringo district (although
many claim to have been evictees from Tinet Forest so as to strengthen their
claim for resettlement). They make a passionate argument, appealing to the
VOLUME 17
ISSUE 1
NOMADIC PEOPLES
(2013)
21
Celestine Nyamu Musembi and Patricia Kameri-Mbote
government’s commitment to poverty alleviation as the reason why their claims
to land in the Mau ought to be validated. In essence, this framing of their claim
attempts to bypass the Ogiek’s ethnically defined claim and to appeal to a larger
national project: poverty alleviation and self-sufficiency. The Mau Task Force
does take note of their concern, but most of their claims (particularly in Sigotik)
are likely to fall under the category of irregular allocations, which would mean
that barring some political solution, they will be considered neither for
compensation nor for relocation.
The Ogiek claim to East Mau is an exclusive one. The expectation is high that
‘community land’ in the 2010 Constitution refers specifically to ancestral land,
which necessarily means exclusion of outsiders who have no such ancestral ties
to the land. The survey asked the Ogiek respondents whether they thought that
non-Ogiek already living in the area were entitled to land. The response was 72.8
per cent against, and 27.2 per cent in favour. To answer the third question posed
in the introduction to this article, the narrative behind the meanings assigned to
‘community’ in delimiting the scope of entitlement to land and land-based
resources is an ethnocultural one. It is a narrative that definitely rationalizes the
exclusion of others.
Is it possible for the legal recognition of community rights to land in this
context to take a form that is less likely to exacerbate tension between the Ogiek
and the Kipsigis? Or is such tension inevitable if historical injustices are to be
genuinely confronted and addressed? Can this be done without offending the
2010 Constitution? Article 27 suggests that it is possible through the principle of
affirmative action for historically marginalized groups, but stating the principle is
a lot easier than acting on it in a practical situation as charged as East Mau.
Internal Exclusion
So far the discussion in this section has focused on how narratives of community,
belonging and entitlement are being constructed so as to exclude perceived
outsiders largely on ethnic grounds. There is simultaneously a more subtle
narrative of exclusion from within, by which sub-groups who may well fit into
the ethnic narrative may nevertheless be defined out of entitlement in certain
contexts. These sub-groups are variously defined by gender, age and class. In the
study site evidence of internal exclusion is less direct but present nonetheless.
Kameri-Mbote and Oduor (2007) discussed the effects of privileging the
narrative of ‘hunter-gatherer’ identity for Ogiek, including in official discourses
such as court cases, in the face of the reality that more and more women had
acquired interest and skill in farming, a fact that was confirmed by the life history
interviews with female respondents conducted as part of this research.
It was established that in the settlement scheme exercise, the government’s
policy was to allot land to all Ogiek over the age of 18 regardless of gender. We
met women who held either titles or allotment letters in their own names. This
appears, on the face of it, to have presented women with an opportunity to hold
22
NOMADIC PEOPLES
(2013)
VOLUME 17
ISSUE 1
Mobility, Marginality and Tenure Transformation in Kenya
land in their own right. Yet through informal interactions it appeared that the
social meaning assigned to this is varied. While some understood this to mean
that women do indeed have control of land in their own right (some even
suggesting that this is in line with Ogiek culture), others simply viewed this
policy as another avenue for securing a larger family holding. A woman wielding
title or an allotment letter in her name did not necessarily use any decisionmaking power with respect to the land. The land was still viewed as a family
resource within the control of the relevant male elder.
The legislation on community land rights will have to accord with the
principles of equitable access and gender equality. At the same time, it must be in
line with the anti-discrimination provisions in the bill of rights (Article 27).
Developing rules on how community land rights will be regulated will therefore
call for decisive yet well informed and sensitive action to deal with the fact that
certain forms of internal exclusion that are rationalized and justified within
customary tenure systems may contradict these constitutional principles.
Conclusion: Giving Meaning to Constitutional Recognition of
Community Land Rights
The recognition of community land rights in the 2010 Constitution is only the
beginning. The shape that the legal landscape for the protection of these rights is
likely to take is far from clear. The land that is potentially the subject matter of
community rights is fast disappearing as conversion to other types of land tenure
continues unabated. The decision to have the law on community land enacted
separately from the Land Act and the Land Registration Act (2012) fans the
prevalent view that community land tenure is inferior to the other types. The
longer time frame given for enactment of the Community Land Bill leaves space
for confusion and conflicts: the new legislation makes reference to community
land, and other older laws remain in force.
A draft bill on community land has not been made public yet, but the drafters
certainly have their work cut out for them. This article has highlighted several
issues that such a law will have to address. First, the need to provide a framework
for balancing collective and individual (or nuclear family) interests in community
land. These are not mutually exclusive. Rather, virtually every property system is
characterized by some degree of coexistence of collective and individual
interests, and the law on community land will have to take account of this.
Second, the drafters and relevant policy makers will need to do their
groundwork to establish the specific contexts in which community tenure is
considered useful. This may be with respect to only some types of land use or
types of land-based resources. Some views expressed in the East Mau case study
suggest that whilst people certainly see a value for community tenure with respect
to land uses such as grazing and beekeeping, this is not necessarily the case with
VOLUME 17
ISSUE 1
NOMADIC PEOPLES
(2013)
23
Celestine Nyamu Musembi and Patricia Kameri-Mbote
respect to farming. Unless the law is sensitive to such expressed needs for
differentiated tenure it could end up imposing a rigidity that is unhelpful. This has
turned out to be the case with respect to group ranches, where differing
perceptions of the law have resulted in fixity of boundaries and disputes over
control of water and pasture.
Third, the new law should empower community structures to govern land and
land-based resources and hold title in their own right, so long as these are
consistent with the Constitution. Little will have changed if after enactment of the
new legislation the bulk of what might be termed community land continues to
be held in trust by county governments. That system has been abused in the past,
and the very notion of a trust is steeped in colonial-era assumptions about native
people’s lack of capacity to hold title.
Fourth, the East Mau case study illustrates that the very definition of
‘community’ is contested. This is because defining community is never simply
descriptive. The exercise is laden with anticipation of the consequential assigning
of entitlements so as to include those perceived as belonging and to exclude
perceived outsiders. The realities of inclusion and exclusion can and do shift
within community boundaries as well. The drafters of the proposed law must
reflect on how the law might allow communities the much needed space to
develop their own structures of governance of land and land-based resources
while at the same time ensuring that these structures do not simply rationalize
exclusion. Striking a balance between local interests and national public-interest
goals also calls for reflection.
Finally, in framing the law on community land rights, it will be important to
ensure that the law addresses the whole range of land uses. Historically, land uses
that do not fit into the dominant mould of sedentary agriculture have been treated
as incidental or transient, a fact reflected in the lack of seriousness in the search
for a legal regime that genuinely accommodates them. This calls for flexibility so
as to capture the dynamism of communities and to allow for further evolution of
community rights and their legal expression.
Notes
1.
24
The notion that individual ownership offers the most secure tenure type for generating
incentives for productivity persists, especially in official circles, despite the fact that
most assessments of Kenya’s tenure reform programme have disproved this. Reviews
have established, for instance, that in many parts of the country, individual titling
has resulted in units of sub-economic size; that the much touted claim that formal
titling minimizes land disputes or eases their processing is disproved by empirical
evidence; that most land transactions bypass the official system; that there is no
correlation between formal title and access to credit and other inputs necessary for
improved agricultural production; and that the programme has been associated with
NOMADIC PEOPLES
(2013)
VOLUME 17
ISSUE 1
Mobility, Marginality and Tenure Transformation in Kenya
2.
3.
4.
5.
6.
7.
8.
9.
10.
11.
12.
13.
tenure insecurity for some social categories. Some of these reviews appear in official
documents such as the National Land Policy (Republic of Kenya 2009). See Mwachofi
(1977); Pala (1983); Shipton (1988); Pinckney and Kimuyu (1994); Bruce and MigotAdholla (1994); Meinzen-Dick et al. (1997); Lastarria-Cornhiel (1997); KameriMbote (2002); and Musembi (2007).
‘Land tenure’ refers to the nature of and manner in which rights and interests over
various categories of land are created or determined, allocated and enjoyed. It defines
the methods by which individuals or groups acquire, hold, transfer or transmit property
rights in land (MacCormack 1983; Bennett 1985; Ogolla and Mugabe 1996). Land
tenure attempts to answer the tripartite question: ‘Who holds what interest in what
land?’ (Okoth-Ogendo 1991). Tenure systems represent relations among people in
society with regard to land and related resources. Tenure systems are culture-specific
and dynamic, changing as the social, economic and political situations of groups
change (Lawry and Bruce 1987; Ogolla and Mugabe 1996).
‘African Socialism and its Application to Planning in Kenya’ (Sessional Paper No. 10
of 1965).
East Africa Protectorate, F.O. 2/241, Foreign Office to Law Officers (R.E. Webster and
R.B. Finlay), 18 November 1899. Quoted in Sorrenson (1968: 51).
Report of the Conference on African Land Tenure in East and Central Africa,
Arusha, Tanzania, October, 1956 (Special Supplement to the Journal of African
Administration) [hereinafter referred to as Land Tenure Conference Report], p. 2 (para
90). The development of a legal framework on land relations in the first place was
greatly influenced by colonial imperatives in the protectorate – to make the colony
productive. It is therefore not surprising that it favoured settled agriculture over other
land uses such as pastoralism, hunting and gathering. African tenure systems were
viewed by colonial agronomic experts as inimical to proper land use and agricultural
development – they encouraged fragmentation through the inheritance practices that
encouraged sub-division of the holdings into sub-economic units; cut down on returns
from labour and time expended on the land; were prone to incessant disputes which
discouraged long-term capital investment; and were generally an insecure basis for
generating agricultural credit. See Swynnerton (1954).
Report of the Kenya Land Commission (Sir Morris Carter, chairman) (Her Majesty’s
Stationery Office, 1934).
Land (Group Representatives) Act, 1968.
Kenya Gazette Supplement No. 36 (Acts No. 6) 2012.
Kenya Gazette Supplement No. 36 (Acts No. 3) 2012.
Kenya Gazette Supplement No. 36 (Acts No. 5) 2012.
It is worth noting that a proposed moratorium on dealings with community land to
pave the way for the community land legislation has not been brought into effect and
registration of individual titles over community land continues unabated.
The Registered Land Act (now repealed by the Land Registration Act of 2012) capped
the number of registered co-owners at five. There is nothing in the language of the
Land Registration Act to suggest that this cap still applies; the new law is silent on this.
See Sections 25(2) and 28(b).
VOLUME 17
ISSUE 1
NOMADIC PEOPLES
(2013)
25
Celestine Nyamu Musembi and Patricia Kameri-Mbote
14. The law requires that persons registering a co-tenancy must indicate whether they
wish to be joint tenants or tenants-in-common. In a joint tenancy a co-owner is not
free to transfer his/her share except to another co-owner, and upon his/her death the
other co-owner(s) automatically take over his/her share. This is known as the right of
survivorship. In a tenancy-in-common each co-owner is free to transfer his/her share
to third parties with the consent of the other co-owners (which consent is not to be
unreasonably withheld). Upon death his/her share does not pass to the other co-owners
but to his/her heirs since tenants-in-common do not have a right of survivorship. This
legal distinction is summed up in Section 91 of the Land Registration Act.
15. Government of Kenya, Report of the Mission on Land Consolidation and Registration
in Kenya, 1965–1966 (1966). The mission was instituted to look at the status of land
registration in the country and make a recommendation on the general direction that it
should take.
16. This was done through the Land (Group Representatives) Act of 1968.
17. This was ostensibly to delineate the land that was not available for further European
settlement, but in effect it served to confine Africans to their respective Native
Reserves, and to delineate the ‘White Highlands’ as out of bounds for African
communities (Sorrenson 1968; Njonjo 1978; Okoth-Ogendo 1991).
18. Report of the Kenya Land Commission (Sir Morris Carter, chairman) (1934).
19. Chapter 288 of the Laws of Kenya (1970) (revised edition 2010 available at http://
www.kenyalaw.org, last accessed 8 March 2013). The constitution that was repealed
by the 2010 Constitution also contained provisions on the governance of trust land,
which largely restate the provisions of the Trust Land Act. Sections 114 to 120 of
the Constitution of Kenya (repealed) (revised edition 2008 available at http://www.
kenyalaw.org, last accessed 8 March 2013).
20. The Sixth Schedule of the 2010 Constitution saves the application of existing laws,
which are to be ‘construed with alterations, adaptations, qualifications and exceptions
necessary to bring it into conformity with this Constitution’. In addition, Article 63(2)
(d)(iii) anticipates that county governments will continue to hold land in trust for
communities. It defines ‘community land’ to include land that is ‘lawfully held as trust
land by the county governments’. Further, Article 63(3) states that any community
land that remains unregistered ‘shall be held in trust by county governments on behalf
of the communities for which it is held’.
21. See Section 69 of the Trust Land Act: ‘In respect of the occupation, use, control,
inheritance, succession and disposal of any Trust land, every tribe, group, family
and individual shall have all the rights which they enjoy or may enjoy by virtue of
existing African Customary law or any subsequent modifications thereof, in so far as
such rights are not repugnant to any of the provisions of this Act, or to any rules made
thereunder, or to the provisions of any other law for the time being in force.’
22. Section 13 of the Trust Land Act, Chapter 288 of the Laws of Kenya (1970) (revised
edition 2010 available at http://www.kenyalaw.org, last accessed 28 May 2012).
23. The provisions on setting apart of trust land for government purposes and compensation
of identifiable individual or group interests affected are contained in Sections 7–13 and
68 of the Trust Land Act.
26
NOMADIC PEOPLES
(2013)
VOLUME 17
ISSUE 1
Mobility, Marginality and Tenure Transformation in Kenya
24. Chapter 11 of the 2010 Constitution introduces the devolved system of government
with counties replacing county councils. It remains to be seen how the counties will
deal with community land.
25. Kenya National Bureau of Statistics, 2009 Kenya Population and Housing Census,
Vol. 1A (Population Distribution by Administrative Units) (August 2010), pp. 161–62.
26. In total, thirty semi-structured interviews were conducted with twenty men and ten
women. Key informant interviewees included local administrators, long-serving
activists in the Ogiek struggle for land, members of the Ogiek Elders’ Council and
leaders of community groups, including women’s groups. Informal consultations were
also made with district-level officials who did not wish to be quoted. Life history
interviews were conducted with women and men, ranging in age from 27 to 71
years old. The research team comprised three principal researchers (two lawyers and
one anthropologist), one research assistant and a team of nine enumerators for the
household survey.
27. The survey data were processed and analysed using the Statistical Package for the
Social Sciences (SPSS). Data from the life histories, key-informant interviews and
FGDs were coded manually and organized by theme. Field research in East Mau was
undertaken as part of a larger, East Africa-wide study funded by the International
Development Research Centre (IDRC): ‘Access to Land and Land-Based Resources
for Women in Pastoralist and Forest-Dependent Communities in East Africa’ (Project
Ref: 105526-001). The Research Project Report is available on request from IDRC.
28. Confidential consultation with a government official, Njoro district headquarters, June
2011. We also gathered this from a consultation with community/clan elders held in
September 2010. There existed no legal framework for the granting of such a block
title, the only proximate one being possibly the group ranch arrangement, which would
not have been an exact fit. It would probably have required constituting of the groups
on the basis of clan membership. However, the boundaries that the Ogiek claim for
the respective clan lands run vertically across the various ecological zones of the Mau
Escarpment, allowing for their multifaceted use of the forest resources. See Muchemi
and Ehrensperger (2009). The settlement scheme area, by contrast, is a much more
restricted, relatively flat area in the lowest ecological zone, obviously selected with
sedentary agriculture in mind.
29. The vast majority of those within the settlement scheme area have no title deeds. Rather,
as the scheme was not concluded, all they have as evidence of their entitlement to the
land they occupy is the allotment letter (or ‘green card’) issued to them. Allotment
letters have an expiry date, and this has long since passed, but as it is the only relevant
document in their possession, people continue to rely on it, and some even transfer
the land on the basis of the expired allotment letter. Interview with Assistant Chief,
Mesipei sub-location, Stephen Mutarakwa, 26 May 2011, Nessuit.
30. Joseph Letuya & Others vs. the Attorney General & Others (Nairobi High Court Civil
Case No. 635 of 1997). See also reference to the case in Republic of Kenya. 2009b:
37. Hearing of the case is yet to take place. It has stalled for several reasons, but
attempts are underway to revive it. Personal communication from Kimaiyo Towett,
Ogiek Council of Elders, 13 March 2012. On 15 March 2013 the African Court of
Human Rights ruled that the Kenya government must not evict members of the Ogiek
VOLUME 17
ISSUE 1
NOMADIC PEOPLES
(2013)
27
Celestine Nyamu Musembi and Patricia Kameri-Mbote
31.
32.
33.
34.
35.
36.
37.
38.
39.
40.
41.
42.
28
community from the Mau Forest, pending determination of this case. The regional
court also called upon the government to observe the court injunction and halt any
further transactions in land in the area. The case was filed by the Ogiek Peoples
Development Programme, Minority Rights Group and the Center for Minority Rights.
See ‘African Court Halts Ogieks Eviction’ The Standard, Tuesday 26 March 2013,
available at http://www.standardmedia.co.ke/?articleID=2000080167&pageNo=2&st
ory_title= (accessed 12 April 2013).
Incidents of double or indeed triple allocation are particularly prevalent in Sigotik sublocation, as the survey revealed.
The Mau Task Force Report notes that since independence and up to 2001, physical
settlement has tended to predate official declaration of settlement schemes, on account
of political expediency (Republic of Kenya 2009b: 36).
The stated government purpose for the Nessuit Settlement Scheme was the settlement
of landless Ogiek and those displaced by the ethnic/political clashes of the 1990s
(Republic of Kenya 2009b: 45).
Communities in the area informed a team commissioned by the task force that thirteen
of the thirty-two streams that originate from the area had completely dried up.
Interview with Assistant Chief, Mesipei sub-location, Stephen Mutarakwa, 26 May
2011, Nessuit.
With the help of the Environmental Research Mapping and Information Systems
in Africa (ERMIS Africa), the Centre for Development and Environment (CDE),
University of Bern, Switzerland, and the National Centre of Competence in Research
(NCCR) North-South, the Ogiek community of East Mau have published an atlas
showing these Ogiek clan territories, as well as giving histories of the clans’ settlement
in East Mau. See Muchemi and Ehrensperger (2009).
This position emerged at a discussion forum between the research team and community
representatives (elders, women and youths) at the start of the study, on 22 September
2010 (at Disciples Church, Nessuit). See also, interview with Francis Kakwetin, a
community activist, formerly with Ogiek Welfare Council, 30 June 2011, Ngin’ge
Nursery School, Nessuit; and interview with Kimaiyo Towett, a member of the Ogiek
Council of Elders, 8 June 2011, Nakuru.
See interview with Joseph Sang, founder member of the Ogiek Welfare Council, 29
June 2011, Nakuru.
These principles are spelled out in Article 60(1) and they include equitable access,
security of land rights, sustainability, protection of ecologically sensitive areas and
elimination of gender discrimination.
The Water Act 2002 creates citizens’ participation forums such as Water Resource
Users’ Associations, and Catchment Area Advisory Committees.
In line with the 2010 Constitution, the draft Water Policy 2012 and draft Water
Bill 2012 have put in place mechanisms for ensuring water users’ participation in
the governance of water resources. Arguably these reforms will strengthen citizen
participation in the water sector.
When we informally probed some of the respondents on what they thought the
signpost was about they said it had something to do with an Egerton University
NOMADIC PEOPLES
(2013)
VOLUME 17
ISSUE 1
Mobility, Marginality and Tenure Transformation in Kenya
43.
44.
45.
46.
47.
48.
project. The WRUA did apparently exist, at least on paper, but clearly there has been
little community sensitization or mobilization.
Article 63(1). Article 63(2) then goes on to define community land to include land
held by groups under the Land (Group Representatives) Act; land lawfully held, used
or managed by certain communities as community forests, grazing areas or shrines;
ancestral lands and lands traditionally occupied by hunter-gatherer communities; trust
land held by county governments on behalf of communities; and other land lawfully
transferred to a specific community by any process of law.
Age-set names, for instance, coincide with those of the Maasai. See Kratz (1980).
Commission of Inquiry into the Land Law System of Kenya (Charles Njonjo, Chair),
2000. (The submission by the Ogiek Welfare Council is reproduced at http://www.
ogiek.org/report/ogiek-app1.htm.)
The main case is Francis Kemai & Others vs. the Attorney General & Others (Nairobi
High Court Civil Case No. 238 of 1999), in which a representative suit was filed by ten
members of the Ogiek community on behalf of a community of five thousand evicted
from Tinet Forest and living in diverse locations in East Mau. There is also Joseph
Letuya & Others vs. the Attorney General & Others (Nairobi High Court Civil Case
No. 635 of 1997), in which the Ogiek successfully secured the injunction that halted
the settlement scheme in Nessuit. In addition, there are several cases that show up as
nondescript criminal charges of ‘trespass’ and ‘incitement’, mostly against Ogiek land
activists and ordinary Ogiek who have engaged in self-help in land disputes with nonOgiek neighbours. All these cases have provided opportunities for airing the narrative
of an authentic Ogiek identity and ancestral entitlement.
See especially an extensive feature by Rights Features Service, authored by Kamau
(2000), available at http://www.ogiek.org/report.
See judgement in Francis Kemai vs. the Attorney General & Others (Nairobi High
Court Civil Case No. 238 of 1999). The court does not buy into this narrative of
continuity, citing the photographs presented in evidence to draw a sharp contrast
between ‘the Ogiek of yesterday’, characterized by ‘simplicity of material culture’,
‘whose home is a dome-shaped hut constructed from a frame of sticks, twigs and
branches and thatched with leaves or grass’ and the modern Ogiek ‘with the modern
houses of corrugated iron-sheet roofs and glass windows’. The latter must clear the
forest to make way for market centres and agricultural activities, which ‘belies the
notion that these people sustain their livelihood by hunting and gathering as the main
or only way out today’. The court dismissed the Ogiek claim.
References
African Union, African Development Bank and Economic Commission for Africa. 2010.
Land Policy in Africa: A Framework to Strengthen Land Rights, Enhance Productivity
and Secure Livelihoods. AUC-AfDB-ECA Consortium, Addis Ababa.
Bennett, T.W. 1985. ‘Terminology and Land Tenure in Customary Law: An Exercise in
Linguistic Theory’, Acta Juridica: 33–58.
VOLUME 17
ISSUE 1
NOMADIC PEOPLES
(2013)
29
Celestine Nyamu Musembi and Patricia Kameri-Mbote
Blackburn, R.H. 1976. ‘Okiek History’. In Kenya before 1900: Eight Regional Studies, ed.
B.A. Ogot. East Africa Publishing House, Nairobi, pp. 58–83.
Bromley, D.W. and M.M. Cernea. 1989. The Management of Common Property Natural
Resources: Some Conceptual and Operational Fallacies. World Bank Publications,
Washington, D.C.
Bruce, J.W. and S.E. Migot-Adholla. 1994. Searching for Land Tenure Security in Africa.
Kendall/Hunt Publishing Company, Dubuque, IA.
Galaty, J.G. 1999. ‘Grounding Pastoralists: Law, Politics, and Dispossession in East
Africa’, Nomadic Peoples 3(2): 56–73.
Gowdy, J. 1994. Co-evolutionary Economics: The Economy, Society and the Environment
(vol. 5). Springer, New York.
Kamau, J. 2000. ‘The Ogiek: The On-going Destruction of a Minority Tribe in Kenya’.
Rights Features Service, http://www.ogiek.org/report (accessed 12 March 2013).
Kameri-Mbote, P. 2002. Property Rights and Biodiversity Management in Kenya. ACTS
Press, Nairobi.
Kameri-Mbote, P. 2009. ‘The Land Question in Kenya: Legal and Ethical Dimensions’. In
Governance: Institutions and the Human Condition. Strathmore University and Law
Africa,Nairobi, pp. 219–46.
Kameri-Mbote, P. and K. Kindiki. 2008. ‘Trouble in Eden: How and Why Unresolved
Land Issues Landed “Peaceful Kenya” in Trouble in 2008’, Forum for Development
Studies 35(2): 167–93.
Kameri-Mbote, P. and J.O. Oduor. 2007. ‘Following God’s Constitution: The Gender
Dimensions in the Ogiek Claim to Mau Forest Complex’. In Human Rights, Plural
Legalities and Gendered Realities: Paths are Made by Walking, ed. A. Hellum, J.
Stewart, S. Ali and A. Tsanga. SEARCWL & Weaver Press, Harare.
Kenya Land Alliance. 2009. Forest Dependence in Kenya: A Case Study of HunterGatherer Communities in Kenya. Kenya Land Alliance, Nakuru.
Kituyi, M. 1990. Becoming Kenyans: Socio-economic Transformation of the Pastoral
Maasai. ACTS Press, Nairobi.
Kratz, C.A. 1980. ‘Are the Ogiek Really Maasai, or Kipsigis? Or Kikuyu?’, Cahiers
d’études Africaines 20(79): 355–68.
Lastarria-Cornhiel, S. 1997. ‘Impact of Privatization on Gender and Property Rights in
Africa’, World Development 25(8): 1317–33.
Lawry, S. and J. Bruce. 1987. Resource Tenure and the Management of Natural Resources
in Africa. Concept Paper for the Africa Bureau of the Agency for International
Development. Draft. Land Tenure Center, University of Wisconsin-Madison, Madison,
WI.
MacCormack, G. 1983. ‘Problems in the Description of African Systems of Landholding’,
Journal of Legal Pluralism 21: 1–20.
Meinzen-Dick, R., L. Brown, H.S. Feldstein and A. Quisumbing. 1997. ‘Gender and
Property Rights: Overview’, World Development 25(8): 1299–1302.
Muchemi, J. and A. Ehrensperger. 2009. Ogiek Peoples Ancestral Territories: Safeguarding
Territories, Cultures and Natural Resources of Ogiek Indigenous People in Kenya
(Eastern Mau Forest). ERMIS Africa and CDE, Nairobi.
30
NOMADIC PEOPLES
(2013)
VOLUME 17
ISSUE 1
Mobility, Marginality and Tenure Transformation in Kenya
Musembi, C.N. 2007. ‘De Soto and Land Relations in Rural Africa: Breathing Life into
Dead Theories about Property Rights’, Third World Quarterly 28(8): 1457–78.
Mwachofi, M. 1977. ‘Land Reform in Taita: A Study of Socio-economic Underdevelopment
in a Kenyan District’. B.A. Dissertation, University of Nairobi.
Ndegwa, S. 1997. ‘Citizenship and Ethnicity: An Examination of Two Transition Moments
in Kenyan Politics’, American Political Science Review 91: 599–616.
Netting, R.M.C. 1997. ‘Unequal Commoners and Uncommon Equity: Property and
Community among Smallholder Farmers’, Ecologist 27: 28–33.
Njonjo, A. 1978. ‘The Africanization of the “White Highlands”: A Study in Agrarian Class
Struggles in Kenya, 1950–1974’. Ph.D. Dissertation, Princeton University.
Nyamu, C. 2000. ‘Gender, Culture and Property Relations in a Pluralistic Social Setting’.
Doctor of Juridical Studies (S.J.D.) Dissertation, Harvard Law School.
Ogolla, B.D. and J. Mugabe. 1996. ‘Land Tenure Systems and Resource Management’.In
In Land We Trust – Environment Private Property and Constitutional Change, ed. C.
Juma and J.B. Ojwang. ACTS Press, Nairobi.
Okoth-Ogendo, H.W.O. 1991. ‘Tenants of the Crown: Evolution of Agrarian Law and
Institutions in Kenya’. ACTS Press, Nairobi.
Okoth-Ogendo, H.W.O. and W. Oluoch-Kosura. 1995. ‘Final Report on Land Tenure and
Agricultural Development in Kenya’. Ministry of Agriculture, Livestock Development
and Marketing, Nairobi.
Pala, A.O. 1983. ‘Women’s Access to Land and their Role in Agriculture and DecisionMaking on the Farm: Experiences of the Joluo of Kenya’, Journal of Eastern African
Research and Development 13: 69–87.
Pinckney, T.C. and P.K. Kimuyu. 1994. ‘Land Tenure Reform in East Africa: Good, Bad
or Unimportant?’, Journal of African Economies 3(1): 1–28.
Quiggin, J. 1984. ‘Private and Common Property Rights in the Economics of the
Environment’. Working Paper 23, Centre for Resource and Environmental Studies,
Canberra.
Republic of Kenya. 2002. Report of the Commission of Inquiry into the Land Law System
of Kenya on Principles of a National Land Policy Framework, Constitutional Position
of Land and New Institutional Framework for Land Administration. Government
Printer, Nairobi.
Republic of Kenya. 2004. Report of the Commission of Inquiry into the Illegal/Irregular
Allocation of Public Land. Government Printer, Nairobi.
Republic of Kenya. 2008. Report of the Commission of Inquiry into the Post Election
Violence (CIPEV), http://www.communication.go.ke/media.asp?id=739 (accessed 12
March 2013).
Republic of Kenya. 2009a. National Land Policy: Sessional Paper No.3. Government
Printer, Nairobi.
Republic of Kenya. 2009b. Report of the Prime Minister’s Task Force on the Conservation
of the Mau Forests Complex. http://www.kws.org/info/maurestoration.html (accessed
9 March 2013).
Rutten, M.M.E.M. 1992. Selling Wealth to Buy Poverty: The Process of the Individualization
of Landownership among the Maasai Pastoralists of Kajiado District, Kenya, 1890–
1990. Breitenbach, Saarbrücken.
VOLUME 17
ISSUE 1
NOMADIC PEOPLES
(2013)
31
Celestine Nyamu Musembi and Patricia Kameri-Mbote
Sang, J.K. 2001. ‘The Ogiek in Mau Forest’. In From Principles to Practice: Indigenous
Peoples and Protected Areas in Africa – Case Study 3: Kenya. Forest Peoples Programme,
Moreton-in-Marsh, http://www.forestpeoples.org/sites/fpp/files/publication/2010/10/
kenyaeng.pdf (accessed 12 March 2013).
Shipton, P. 1988. ‘The Kenya Land Tenure Reform: Misunderstandings in the Public
Creation of Private Property’. In Land and Society in Contemporary Africa, ed. R.E.
Downs and S.P. Reyna. University Press of New England, Hanover.
Sorrenson, M.P.K. 1968. Origins of European Settlement in Kenya. Oxford University
Press, Oxford.
Stevenson, G. 2001. Common Property Economics – A General Theory and Land-Use
Applications. Cambridge University Press, Cambridge.
Swynnerton, R.J.M. 1954. A Plan to Intensify the Development of African Agriculture in
Kenya. Kenya Department of Agriculture, Nairobi.
Towett, K.J. 2004. ‘Ogiek Land Cases and Historical Injustices 1902–2004’. Ogiek Welfare
Council, Nakuru.
Wantrup, S.C. and R. Bishop. 1975. ‘Common Property as a Concept in Natural Resource
Policy’, Natural Resources 15(4): 713–27.
Celestine Nyamu Musembi is a Senior Lecturer in the School of Law,
University of Nairobi. She holds a doctorate in Law from Harvard University.
Email: [email protected]
Patricia Kameri-Mbote is Professor of Law and Dean at the School of Law,
University of Nairobi. She holds a doctorate in Law from Stanford University.
Email: [email protected]
32
NOMADIC PEOPLES
(2013)
VOLUME 17
ISSUE 1