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EXPERT ANALYSIS: Land Policy and Dispute Resolution Mechanism

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EXPERT ANALYSIS: Land Policy and Dispute Resolution Mechanism
Manifestations of Inappropriate Land Policy
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Land disputes in Kenya date back to 1888 when the Imperial British East Africa Company signed an agreement with the Sultan of Zanzibar in which “all rights to land in his territory excepting private lands” were ceded to the Company. This affected the 10-mile coastal strip from Tanzania to Somali border. The Company subsequently ceded this land to the Crown as soon the British East Africa Protectorate was established by the British in 1895.Thereafter massive land dispossession continued in Kenya through various pieces of legislation. 

1. Background
Land disputes in Kenya date back to 1888 when the Imperial British East Africa Company signed an agreement with the Sultan of Zanzibar in which “all rights to land in his territory excepting private lands” were ceded to the Company. This affected the 10-mile coastal strip from Tanzania to Somali border. The Company subsequently ceded this land to the Crown as soon the British East Africa Protectorate was established by the British in 1895.Thereafter massive land dispossession continued in Kenya through various pieces of legislation.

The highlights of these dispossessions include the appropriation of all lands within one mile of either side of the Kenya-Uganda railway in 1897; the 1902 Crown Lands Ordinance which provided that empty land or any land vacated by a native could be sold or rented to Europeans, and that land had to be developed or forfeited;1908 Land Titles Ordinance which required all those with written evidence of ownership of land within the coastal strip submit their claims to a Land registration Court, failure to which all unclaimed land shall be deemed “crown land”; the 1915 Crown Land Ordinance which declared all land “Crown land”, including land occupied and reserved for Africans, who thereafter became mere tenants at will of the state; and the Carter Commission of 1932 which fixed the boundaries of reserves where Africans were to be confined, but lands remained crown land, and could be alienated at any time.

By the time of independence negotiations at Lancaster House in 1962 a total of 3.0 million hectares (7.5 million acres) or 50% of agricultural land had been taken away from Kenyan Africans, particularly in Coastal, Central and Rift Valley regions of the country.

Most of the literature in Kenya point to the fact the impact of the colonial land policy led to inequality in land ownership and use, resentment by Africans, landlessness, squatting, land degradation and resultant poverty.

There were high expectations following independence, as is often the case with other countries that fundamental inequalities in land ownership and use would be speedily redressed. In practice the disparities continued and in some cases probably widened. The fact of continuity cannot be doubted. Indeed, independence saw a general re-entrenchment and persistence of colonial themes, policies and patterns of organisation in all aspects of Kenyan economy, save only for inconsequential adjustments.

2. Manifestations of inappropriate Land Policy

Immediately after independence the Government promoted rapid and orderly transfer of ownership of European farms to Africans and organised co-operatives on each scheme to market settlers’ produce and provide extension services under the Million Acre Settlement Scheme. This programme enabled some people to buy back land, so that by 1971 a total of 500,000 hectares (1.250 million acres) mostly in the Rift Valley had been purchased and vested in the hands of Kenyan Africans. However, the net result was that the majority of the people who were actually settled were not necessarily the absolutely landless who had given political impetus to the scheme, nor were they those who had been originally displaced such as the Maasai and the Kalenjins. Many people in Central Province simply disposed of their land or assigned it to relatives in order to qualify for the cheaper and comparatively larger settlement plots in the Rift Valley.

Land buying companies were formed, comprising mainly the farming communities from Central Kenya which assisted members to acquire land in Laikipia, Njoro, Molo, Nakuru and Mau Narok, all parts of traditional Maasai territory. A few got as much as 20 hectares of land, others got small pieces of 2 hectares, while indeed many who were landless did have access to this programme as evidenced by the unending squatter problem in the forests and other areas. Therefore tension between big land owners and the landless ha continued to mar Kenya’s picturesque landscape.

The first national development plan of 1964-70 embraced much of the continuity in the land management practice of yester years. It continued the land consolidation and adjudication which started in the 1950s with a target of 150,000 acres (60,000 hectares) per annum. This exercise slowed down to the extent that 65% of the country still remain unregistered, and only 212,796 titles had been issued by December 1992.More than 90% of these titles have been issued in arable parts of the country while low potential areas remain disenfranchised with constant conflicts over grazing and watering points.

In areas where adjudication was in progress various categories of land disputes are pending, numbering more than 23,000.The lengthy procedures of handling the cases have hindered development in these areas, and complex customary laws and practices further complicate the situation. In areas where registration is complete and titles issued, land boundary disputes are prevalent, and increasing at the rate of 900 per annum. The backlog of unsettled cases stand at 7,000 registered upcountry, while claims at the Coast under Land Titles Act stand at more than 9000.

Where titles are registered under both the Government Land Act and the Registration of Titles Act they provide a system of fixed boundaries. Only accurate and clear descriptions of boundaries are admitted for registration. This process has ensured that there are very few disputes regarding boundaries. The Registered Land Act, however, provides for a system of general or approximate boundaries, and this has created many disputes yet to be resolved.

Further disputes have arisen in Kenya due to displacement of people from their homes since the 1990s as a result of politically instigated conflicts, particularly in 1992 and 1997; and also due to competition over grazing land and watering points in the arid and semi-arid lands. More recently disputes are arising out new administrative boundaries created by the Government to ease administration.

3. Dispute Resolution Principles
Disputes are a way of life since the creation of more than one human being on the planet earth. Since then need has often arisen to settle the disputes as a way of co-existence, whether by way of “tit for tat”, by seeking redress from a higher authority and quarrelsome siblings do from the parents, or by submitting the dispute to a respectable neutral person or persons whose opinions will be respected by the disputants. These methods have existed among the communities in Kenya long before the advent of the courts of law. Even after the advent of legal system in Kenya many disputes among families and friends are sorted outside the courts through submission to respected family members or friends. Such resolutions are socially binding.

{styleboxjp}The National Land Policy recognises that given the genesis of land ownership in Kenya a number of scenarios will arise that will require different ways of resolving them rather than courts of law. For instance, there will be the issues of historical injustices arising out of colonial land policies and practices, as well as those necessitated by poor practices of post-independence governments which have occasioned mass disinheritance of various Kenyan communities of their land. These will include issues such in the Coast, the minority groups, the internally displaced ethnic clash victims, etc. There are also the cases of boundary disputes between individuals, families or clans as to the correct boundaries of their claims. These will occur in areas where land has been registered and in those where land is not registered. Recent cases include Tharaka/Meru and Mount Elgon districts. There will then be those who are being frauded of their rights to land through culture and inheritance practices.
National Land Policy recognises the need to ensure access to timely, efficient and affordable dispute resolution mechanisms. This will facilitate efficient land markets, tenure security and investment stability in the land sector. In order to facilitate effective, fair and efficient dispute resolution, National Land Policy urges the Government to:

Establish an independent, accountable and democratic system backed by law to adjudicate land disputes at all levels.

Establish appropriate institutions for dispute resolution and access to justice within communities with clear operational procedures, mechanisms for inclusion of community members in decision-making and clear record keeping to ensure transparency and the development of guiding rules for making decisions on specific matters; and

Encourage and facilitate the use of Alternative Disputes Resolution (ADR) mechanisms such as negotiation, mediation and arbitration to reduce the number of cases that end up in the court system and delayed justice.

There will therefore be need for creating channels for negotiation at community level using known practices within various communities, before matters are forwarded to Land Dispute Tribunals, and only thereafter could disputes be referred to Land and Environment Division of the High Court.

Paul M. Syagga is a Professor of Land Economics at the University of Nairobi


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