Kenya – Trustland and british colony

SINCE 1994

(In South Africa – tribal lands to be registered as a CPA under the CPA legislation OR various Trustlands (like Ingonyama trust since Codesa) )

***

KENYA TRUSTLAND LEGISLATION

Click to access TrustLandAct28of1938.pdf

***

This briefing has been published by Lorna Mainnah of Hamilton, Harrison & Matthews, Kenya, who has agreed to Simmons & Simmons making it available to elexica subscribers.

Introduction

The Community Land Act, No. 27 of 2016 (the Act) came into force on 21 September 2016.

The Act aims at:

• Giving effect to Article 63 of the Constitution of Kenya, 2010 (the Constitution) which provides for a classification of land known as community land. To this end, the Constitution provides that community land shall vest in and be held by communities.
• Providing for, first, the recognition, protection and registration of community land rights. Second, the management and administration of community land. Third, the role of county governments in relation to unregistered community land and related matters.

The Act repeals the Land (Group Representatives) Act (Chapter 287 of the Laws of Kenya) and the Trust Lands Act (Chapter 288 of the Laws of Kenya).

Salient features

Ownership

Community land in Kenya shall vest in the Community. In this respect, the term “Community” has been defined to mean a consciously distinct and organised group of users of community land who are citizens of Kenya and share any of the following attributes: common ancestry, similar culture or unique mode of livelihood; socio-economic or other similar common interest; geographical space; ecological space; or ethnicity. The constitution of a community is therefore not limited to ethnic lines as is the case with the current practice.

The Act requires a community claiming an interest in or right over community land to be registered.

Tenure systems and classes of holding of community land

Community land may be held under any of the following land tenure systems:

• customary
• freehold
• leasehold, and
• such other tenure system recognised under the Act or other written law.

***

Further, community land may be held as communal land, family or clan land, reserve land, or in any other category of land recognised under the Act or any other written law.

Registration of community land rights

The Act requires community land rights to be registered in accordance with its provisions and the provisions of the Land Registration Act, 2012.

In this respect, a Certificate of Title issued by the Community Land Registrar shall be evidence of ownership of the land. This Certificate of Title shall not be subject to challenge, except on grounds of fraud or misrepresentation to which the person is proved to be a party or where the certificate of title has been acquired illegally, unprocedurally or through a corrupt scheme.

The registration of a community as the proprietor of land shall vest in that community the absolute ownership of that land, while, the registration of a community as the proprietor of a lease shall vest in that community the leasehold interest described in the lease, together with and subject to all implied and express rights and privileges.

Community land registrar and register

The Chief Land Registrar is required to designate a qualified registrar to be the Community Land Registrar responsible for registration of community land.

The Act also requires the maintenance for each registration unit, a community land register in accordance with section 8 of the Land Registration Act, 2012.

Customary land rights

The Act recognises customary land rights including the customary right of occupancy and provides for their adjudication and documentation. The Act also gives customary land rights equal footing in law as freehold and leasehold tenure. In this regard, the term “customary land rights” is defined to mean rights conferred by or derived from African customary law, customs or practices provided that such rights are not inconsistent with the Constitution or any written law.

Subject to the transition and saving provisions under the Act, any person who immediately before 21 September 2016 had a subsisting customary right to hold or occupy land shall upon commencement of this Act continue to hold such right.

Compulsory acquisition

The Act limits the compulsory acquisition by the State of any interest in, or right over community land only in the instance where the compulsory acquisition is, first, in accordance with the law. Second, for a public purpose. Third, upon prompt payment of just compensation to the person or persons, in full or by negotiated settlement.

Role of County Government in respect of community land

The main role of the County Government under the Act is to hold in trust on behalf of a community unregistered community land and any monies payable as compensation for compulsory acquisition of any such unregistered community land. Any such monies shall be deposited in a special interest earning account by the County Government and shall be released to the community upon registration of the community land.

A County Government is prohibited from selling, disposing, transferring, and converting for private purposes or in any other way disposing of any unregistered community land that it is holding in trust on behalf of a community.

Community Land Management Committee

The Act establishes a Community Land Management Committee which shall be elected by a community assembly consisting of all adult members of the community. The functions of the Community Land Management Committee shall be to:

• have responsibility over the running of the day to day functions of the community
• manage and administer registered community land on behalf of the respective community
• coordinate the development of community land use plans in collaboration with the relevant authorities
• promote the co-operation and participation among community members in dealing with matters pertaining to the respective registered community land, and
• prescribe rules and regulations, to be ratified by the community assembly, to govern the operations of the community.

Conversion of Community Land

Community land can be converted to either public land or private land and vice versa. The Act provides that at least two-thirds of the community members must approve any conversion of community land. This does not however limit the application of the Land Act, 2012 and any other law in respect of compulsory acquisition of land.

Special Rights and entitlements in community land

A community may, with the approval of its members, allocate land to a member or a group of members for exclusive use and occupation for such a time as the community will determine. However, an individual entitlement shall not be superior to the community title and a separate title shall not be issued.

Further, a pastoral community may grant grazing rights to a non-member of a community.

Benefit sharing

An agreement relating to investment in community land should be free, open and a result of a consultative process which should involve among other things stakeholder consultations and involvement of the community. The agreement should provide for the payment of compensation and royalties, capacity building of the community and transfer technology to the community.

Dispute resolution mechanisms

A registered community may use alternative dispute resolution mechanisms including traditional dispute resolution mechanisms to settle disputes. However, where all efforts of resolving a dispute fail, a party may institute judicial proceedings.

Group representatives who held land under the Land (Group Representatives) Act

The group representatives who held land under the Land (Group Representatives) Act together with the communities they represent are to be registered as a community under the Act. Land held under by group representatives in this respect may not be sold, leased or converted unless it has been registered under the Community Land Act.

http://www.elexica.com/en/legal-topics/banking/12-a-brief-overview-of-the-community-land-act-4fr1ca

****

Definition and Administration of Trust Lands

Trust Land is not explicitly defined in the two sections of the law that create it and administer it. Chapter IX, section 114 (1) (C) of the Kenyan Constitution, defines Trust Land as “land situated outside the Nairobi Area (as it was on 12th December, 1964) the freehold title to which is registered in the name of a County Council or the freehold title to which is vested in a County Council by virtue of an escheat.” This description has been adapted as the standard “definition” of this category of land in Kenya. Annexes I & II outline in detail the legal position as it exists.

The enactment of the Trust Land Act is a byproduct of the implementation of the Crown Lands Ordinance of 1902, which essentially deprived Africans of their native lands in favor of the migrant settlers, who were mainly of British descent. It derived its operational terms and implementation approach from the original setting that the colonizing forces first used when allocating to themselves the best land in the country:

· The decision on which lands to set apart rests with the County Councils;

· The reasons for setting apart the land rests with the County Councils and with the Commissioner for Lands under section 53 of the Act, which says “the Commissioner shall administer Trust Lands on behalf of each County Council;”

· Section 58 of the Act does not provide for an appeal against the decision of the Commissioner for Lands, not even by the relevant County Council, by asserting that “Save where provision is expressly made in this Act, no appeal shall lie from any decision given, order made or matter or thing done under this Act.”

Trust Land is by far the most extensive tenure system in Kenya, covering 456/991 square kilometers – 78.4 percent of the total land area. It is categorized into three main groups. (See Table 1):

· Trust Land not for registration, covering 59,625 square kilometers, or 10.2 percent of Kenya’s total land area (including townships and gazetted protected areas, such as national parks, game reserves, and forest reserves);

· Trust Land already registered, covering 27,279 square kilometers, or 4.7 percent of the total; and

· Trust Land not yet registered, covering 370/087 square kilometers or 63.5 percent of the land.

The last and largest category of Trust Land – Trust Land not yet registered – is by far the most controversial and contested. The Kaya Forest at the Coast and Loita in Narok are some examples of such Trust Land.

Trust Land is essentially a constitutional matter in Kenya. Its importance is stressed in its definition, Chapter IX of the Constitution of Kenya (See Annex I.) While Section 114 (1) A and B identify Trust Land principally in the first two categories – Trust Land not for registration and Trust Land already registered – these are areas that were specifically outlined in the schedules and whose boundaries were physically drawn on the ground, making relatively clear both their location and their status at the time the Act of Parliament governing them was enacted.

read more:
http://www.nzdl.org/gsdlmod?e=d-00000-00—off-0envl–00-0—-0-10-0—0—0direct-10—4——-0-1l–11-en-50—20-about—00-0-1-00-0–4—-0-0-11-10-0utfZz-8-00&cl=CL1.1&d=HASH409dff535464b6806fe89e.13.5&gt=1

****

BACKGROUND

The British colonialists came up with several laws and concessions to further alienate the coastal and mainland communities from their land.

These included the Land Acquisition Act (1894), Crown Lands Ordinance (1902), Crown Lands Ordinance (1915), and the Kenya Native Areas Ordinance (1926).

These laws and ordinances saw the eviction of communities to facilitate the construction of the Kenya-Uganda Railway and the leasing of the 20 per cent medium to high potential land to European settlers and multinational corporations for 99 years (the infamous ‘white’ highlands). This is largely since Kenya’s land had been declared ‘Crown’ land owned by the Queen of England to be disposed at her will.

The first Crown Land Ordinance of 1902 provided the settlers with a 99-year lease and subjected them to the control of the State, replacing Ordinance of 1897 that provided for a 21-year lease. Each settler was to be given 160 acres free of charge as an inducement to farm. In 1915, another Ordinance gave the settlers 999-year leases and declared all ‘Waste and unoccupied’ land in the Protectorate ‘Crown Land’ and subject to the Governor’s powers of alienation. It  also demarcated the land into either ‘Scheduled Areas‘ (for European settlement) or None Scheduled Areas (for African Reserves)

Sir Charles Elliot used the 1902 Ordinance to evacuate the Maasai from their southern lands which were alienated for settler use.

With these arrangements, even by the time Kenya formally became a colony in 1920 through the Kenya Annexation Order-in-Council and the Kenya Colony Order-in-Council of 1921, there were rules that enabled the British Protectorate authorities to alienate land for settlers.

The Crown Lands (Amendment) Ordinance of 1938 gave legal effect to the dual policy of European “White Highlands” (or high potential areas) and African “Native Reserves” (or marginal lands). Following this policy enactment, all the areas outside the Native Reserves, and any other African claims and interests were extinguished. African customary law was to apply to the “native areas” and the Native Lands Trust Board was to protect “native interests”.

By the time of independence in 1963, these inequities could be seen as follows: White settlers occupied an equivalent of three million hectares of land, half of it suitable for cash crop farming and the balance suited to large-scale livestock farming. In total, an estimated 3,600 farms of between 400 and over 800 hectares were occupied by the white settlers, constituting about 21,000 of Kenya’s 356,000 square-kilometre area or about six per cent of Kenya’s land.

Thus, 3,600 white settler families occupied about 20 per cent of Kenya’s arable land while six million Africans shared the rest.

https://informationcradle.com/kenya/land-alienation-in-kenya/

***

THE PEOPLE OF KENYA – HOMELANDS

There are over 70 distinct ethnic groups in Kenya, ranging in size from about seven million Kikuyu to about 500 El Molo who live on the shore of Lake Turkana. Kenya’s ethnic groups can be divided into three broad linguistic groupsBantu, Nilotic and Cushite. While no ethnic group constitutes a majority of Kenya’s citizens, the largest ethnic group, the Kikuyu, makes up only 20% of the nation’s total population, The five largest – Kikuyu, Luo, Luhya, Kamba and Kalenjin- account for 70%. 97.58% of Kenya’s citizens are affiliated with its 32 major indigenous groups. Of these, the Kikuyu, who were most actively involved in the independence and Mau Mau movements, are disproportionately represented in public life, government, business and the professions. The Luo people are mainly traders and artisans. The Kamba are well represented in defense and law enforcement. The Kalenjin are mainly farmers. While a recognized asset, Kenya’s ethnic diversity has also led to disputes. Interethnic rivalries and resentment over Kikuyu dominance in politics and commerce have hindered national integration.

The principal non-indigenous ethnic minorities are the Arabs and Asians. Almost all the Kenyan Arabs live in Coast Province, more than half of them in Mombasa. Over 99% of the Arab residents have Kenyan citizenship, speak Swahili rather than Arabic, and generally see themselves as Africans. Non-Kenyan Arabs, mainly petty traders from Yemen, are called Shihiri. When Uganda expelled 80,000 Asians in 1972, public pressure intensified in Kenya to force non-Kenyan Asians to depart. Under the Trade Licensing Act, non-citizens were denied permits to own or manage commercial establishments. In reaction, British immigration laws were modified to allow about 3,000 Asians from East Africa into the United Kingdom each year Kenya has one of the largest European communities in present-day Africa and hosts many Americans as well. Many Americans work as missionaries or with the official family-planning programs, the Peace Crops or one of many U.S firms operating in the country. With its consistent pro-Western alignment, Kenya has actively fostered cultural, social and economic contacts with the West.

The Kikuyu, Meru, Gusii, Embu, Akamba, Luyha (or alternate spelling of Luyia), Swahili and Mijikenka (which in fact is a group of different ethnic groups) constitute the majority of the Bantu speaking peoples of Kenya. In general, the Bantu have been farmers.

The Kikuyu (or Gikuyu) homeland is around Mount Kenya and it is believed they migrated into the area from East and North East Africa around the 16th century. They were neighbors of the Maasai and although there were raids for cattle between them, there was also a lot of trade and intermarriage. The Kikuyu god, Ngai, resides on Mt. Kenya which they call Kirinyaga. As with other ethnic groups, the traditional healer was held in high esteem. For the Kikuyu, land ownership is the most important social, political, religious, and economic factor. They have a complex system of land ownership that revolves around close kin, The importance of land brought them into conflict with the colonial government when white settlers and farmers occupied their traditional lands. Today, Kikuyu farmers produce most of the fresh produce that is consumed in Nairobi as well as coffee and tea for export. Many Kikuyu have also been successful in economic and commercial endeavors. Traditionally, the Kikuyu were governed by a council of elders based on clans.

The Akamba (or Ukambani) migrated into their present homeland, which is east of Nairobi towards Tsavo national park, about 200 years ago. They were exceptional traders participating in commerce from the coast to Lake Victoria all the way up to Lake Turkana. Their main trade items were ivory, beer, honey, iron weapons, ornaments, and beads. Because they settled on arid land, they also traded for food with their neighbors the Maasai and the Kikuyu. During colonialism, the British respected them for their intelligence and fighting skill. Many were drafted into the Army and fought in World War One. However, the British did not respect their land or right to own cattle. The British tried to restrict the number of cattle the Akamba could own and confiscated cattle above the set amount. In response, the Akamba created the Ukamba Members Association that led a peaceful march and protest to Nairobi. Like many other ethnic groups, the Akamba have a series of age sets and the men are initiated into adulthood at around age 12. Elders were responsible for administrative and judicial functions as well as overseeing religious rituals and observances.

The Luyha’s traditional homeland is around Kakamega in western Kenya. They are Kenya’s third largest ethnic group after the Kikuyu and the Luo. The Luyha suffer from high population density which effects their farming economy as cultivation occurs on plots that get smaller with each generation. They are important producers of sugar-cane.

The Meru are actually eight different groups of people. They migrated to the North East side of Mount Kenya around the 14th century from the coast, probably displaced by Somalis. Until 1974, the Meru were governed by a chief called the mogwe. But in 1974, the chief converted to Christianity and the practice was abandoned. Also farmers, the Meru produce tea, coffee, pyrethrum, maize, potatoes and miraa, a stimulant popular with Muslims.

The Embu are well known for their honey and also for dancing on stilts which is performed by men wearing long black coats and white masks.

The Swahili are not really one ethnic group. The term Swahili refers to different peoples who share a common link, the Swahili language, although it is spoken with different variations and dialects up and down the coast. Sub-groups of the Swahili include Bajun, Siyu, Vumba, Pate, Mvita, Shela, Fundi, Ozi, and Amu who live in Lamu. They have a long-standing trading civilization. They traded with people as far away as the Chinese for porcelain. They possess excellent ship building skills (their dhows trade up and down the east African coast), as well as renown wood carving skills. Around the 7th century, Islam became the predominant religion.

Nilotic ethnic groups include the Luo, Masai, Turkana, Samburu, and the Kalenjin. The Luo are the second largest ethnic group in Kenya and they live for the most part on the shores of Lake Victoria. The Luo migrated from the Nile region of the Sudan around the 15th century. Originally, the Luo were pastoralists, but when rinderpest decimated their herds, they became fishermen and farmers. The Luo also played an important role during the independence struggle and many leading politicians have been Luo including Oginga Odinga, Tom Mboya, and Robert Ouko. In Luo music, they use a one stringed-lute, the orutu, and an eight-stringed instrument, the thum, to produce haunting melodies. The Luo have a different puberty rite than their neighbors. It involves extracting four or six bottom teeth. This is no longer widely practiced. The Kalenjin are actually the name the British gave to several different ethnic groups that speak the same language but different dialects. Some of the ethnic groups that comprise the Kalenjin are the Kipsigis (who have produced some of Kenya’s best runners), Nandi, Tugen, and Elyogo. Kenya’s current president, Daniel Toroitich arap Moi, is a Tugen. Because of his political power, the Kalenjin have become politically powerful. They mostly live in the Rift Valley and probably migrated from the Sudan about 2,000 years ago. Although mainly pastoralists, the Kalenjin have taken up some agriculture and also produce honey.

The Maasai, Samburu and Turkana are probably the most well known ethnic groups outside of Kenya. The Maasai migrated to Kenya from what is today the Sudan about 1,000 years ago and constitute about 2% of the total population. Their comparatively small number does not equate with their reputation and fame outside of Kenya as stoic and brave lion hunters and warriors. In spite of pressure from the Kenyan government to modernize, the Masai have fiercely maintained much of their traditional culture and way of life. They are nomadic cattle and goat herders, and for them cattle is the most important social, economic, and political factor. Cattle are a sign of wealth, social standing as well as a food source. Milk and blood, tapped from a cow’s jugular vein, is a staple. Their traditional homeland is southern Kenya and northern Tanzania in an area that has the most visited game parks.Thus many tourists come in contact with the Maasai morani(warriors) clad in red blankets, red ochre covering their heads and carrying spears and clubs as well as Maasai women wearing colorful beads. The Maasai help to manage and maintain the Maasai Mara National Park and receive a percentage of the park fees.

The Samburu are closely related to the Maasai and their traditional homeland is around Maralal in Northern Central Kenya. Like the Maasai their morani prefer red blankets, use red ochre to decorate their heads and the women wear beaded jewelry. They also tend cattle and goats, but it is cattle which is the center of Samburu social, political, and economic life. The Samburu are still nomadic people and when pasture becomes scarce in this semi-arid land, they pack up their manyattas (small settlements) on camels and move to better pastures.

The Turkana are closely related to the Maasai and the Samburu. They have a reputation as fierce warriors. Although they keep goats, sheep and camels, cattle is the most important component of Turkana life. Their diet consists mainly of milk and blood. The Turkana live in Northern Kenya, near Lake Turkana on arid land. Like many other ethnic groups in Africa, Turkana men have several wives. However, the Turkana have a three year wedding ceremony that ends after the first child is weaned.

The Maasai, Samburu and Turkana practice cattle rustling. Law enforcement officials tend to stay clear of disputes arising between and within groups. Disputes are settled by elders and often the guilty person is fined cattle, goats, camels, or sheep.

Cushitic speaking people comprise a small minority of Kenya’s population. They include the following ethnic groups: Somali, El Molo, Boran, Burji Dassenich, Gabbra, Orma, Sakuye, Boni, Wata, Yaaka, Daholo, Rendille, and Galla. The Somali tend large herds of cattle, goats, sheep, and camels in the dry, arid lands of Northern Kenya. They are politically well organized and are united by both family allegiances and political treaties. The Somali also produce exquisitely carved headrests and woven artifacts.

https://www.africa.upenn.edu/NEH/kethnic.htm

*** *** ***

BRITISH RULE :  THE KIPANDE SYSTEM

https://api.parliament.uk/historic-hansard/commons/1946/jul/31/kipande-registration-system-kenya

HC Deb 31 July 1946 vol 426 cc930-1930

931

***

***

After colonial Kenya but before the Republic of Kenya came into existence, Kenya was known as the Commonwealth of Kenya. This lasted from December 12th 1963 to December 12th 1964. The Queen was represented in Kenya by Governor General Malcolm Macdonold. After one year as a commonwealth Jomo Kenyatta became the first president of a newly independent Kenya.

***

2017

In 1895, the future nations of Kenya and Uganda became the British East Africa Protectorate (EAP) as an emergency measure. In 1902, control shifted to the Foreign Office, a new governor was appointed, and a wholesale colonization effort begun.

The plan was simple:

Flood the land with settlers who would set up farms, and then use their surplus to cover the cost of the Uganda Railway, which had just been finished. After that, whatever surplus flowed out of the EAP could be used for other initiatives that the Colonial Office (which had taken over control from the Foreign Office) had in mind, such as conquering Sudan or putting down the Boer revolt in South Africa.

The first step involved importing huge numbers of foreigners to disrupt the local tribes’ balance of power. In practice, that meant transporting thousands of Indians and other Asian laborers to the EAP for work projects all over the country.

This deprived locals of work in the towns and made them more desperate for any jobs the British had for them to do. It also focused native resentment squarely on Indians, rather than on the white administrators who had them shipped in.

The EAP government then began expropriating large tracts of land in the highlands, with or without compensation, and evicting people whose ancestors had lived there for a thousand years. The British set up reservations to house the newly landless peasants, which quickly got crowded and overtaxed the marginal lands they were sited on.

Given these conditions, an internal refugee crisis was well underway by 1910: Masses of native people, most of whom had no connection to their reservations and no reason to stay, started drifting out of their pens and across their old lands in search of income. The roughly 1,000 British settlers now had around 16,000 square miles of prime farmland under their control, and their cheap labor came to them looking for work.

To manage these refugees, the British established three tiers of laborers – Squatter, Contract, and Casual – and gave each its own privileges and obligations.

At this time, the British were only farming around five or six percent of the land they had seized. They classified any native Kikuyu or Luo farmer caught sneaking back onto the land to start a garden as a Squatter. He could stay there, but at the cost of 270 days of unpaid labor per year as rent — days which correspond to the planting and harvest seasons.

Contract labor, those who signed agreements to leave their reserves and work for British planters, hardly had it better. Casual laborers were cheap scabs for major road-building projects and other itinerant work around the colony. They became wholly dependent on British wages for their living and owned virtually nothing.

Regardless of tier, throughout the British rule, natives who transgressed against any of a thousand unwritten rules were routinely flogged, sometimes at the order of the Crown Court, and sometimes on the settlers’ own initiative, and acts of open rebellion were routinely put down with hangings.

Furthermore, to keep all of this straight, the British imposed a pass system, called kipande, a paper document that all native African males over 15 had to wear around their necks. The kipande listed the worker’s classification level and included a few notes about the man’s history and character, so that any police or farm official would know at a glance whether he could be trusted with a job or should be hauled off to jail for another whipping.

https://allthatsinteresting.com/kenya-genocide

***

In response to political and economic marginalization, in particular land alienation, the Kikuyu, Embu and Meru peoples of Kenya took up arms against the colonial British government, launching a guerrilla style insurgency from the forests of Central Kenya. Fighting between the Mau Mau and the British, supported by a loyalist Kenyan “Home Guard” lasted until 1956, ending with the defeat of the Mau Mau.

In response to political and economic marginalization, in particular land alienation, the Kikuyu, Embu and Meru peoples of Kenya took up arms against the colonial British government, launching a guerrilla style insurgency from the forests of Central Kenya. Fighting between the Mau Mau and the British, supported by a loyalist Kenyan “Home Guard” lasted until 1956, ending with the defeat of the Mau Mau.