11

Agrarian Problems of the African Lands

During the inter-war period land tenure achieved such importance both as a political and an economic issue, especially among the Kikuyu, that no fair account of the major problems of the time could be given without according it prominence.¹ The purpose of this account, therefore, is to illustrate the practical difficulties encountered in ensuring Africans a secure tenure and peaceful possession of their land, whether of tribal land, clan land, or group, family, or individual land, and the steps that government had been able to take to that end up to 1939.

When the British Protectorate was declared over Kenya there were no rigid boundaries between tribes nor, within the general area inhabited by a tribe, were there any definitive boundary marks to indicate the limits of clan lands or the holdings of family groups. Custom and long use had caused certain spheres of influence to be respected and sometimes, where tribal disputes had occurred, a settlement had been reached with reference to some natural feature. It was similar with clan and family units. Family groups might claim exclusive rights resting on some basis of first user or legitimate succession and might sometimes have blazed a tree or, with due ceremony, have planted shrubs or lilies to mark the limits of the claim but, for the most part, claims followed the banks of streams to their point of confluence or to the next group holding further down the ridge. Villages and areas of cultivation could be enclosed but, subject to these and a few other exceptions, there was very little visible evidence to suggest that the tribal land was other than a general common and the fact that grazing was a common right gave colour to that view.

It is not to be wondered at in these conditions that government concerned itself very little with private rights at this stage but concentrated on the preservation of inter-tribal peace. Provincial and district boundaries were drawn and occasionally altered with some regard to tribal areas, although most districts contained elements of more than one tribe, and the leading tribes were spread over more than one district. Internally in the districts locational boundaries were drawn in rough conformity to the areas of clan occupation and headmen were appointed accordingly but seldom, if ever, was a man required to move his home because he happened to be living in the area of another tribe or clan. When the preservation of peace so demanded, government might have to intervene to settle a tribal dispute but, except in acute trouble, it was generally best to leave the parties to settle it for themselves.

In the early days of British administration, when the making of roads and tracks, and the siting of camps, trading centres and markets were a main concern, questions of private ownership of land hardly entered the picture at all. If a road in the making passed through crops, either compensation would be paid to the owner of the crop or the road would wait until the crop had been reaped, for most tribes practised a method of shifting cultivation. Only if land was taken for a permanent building was there need for discussion, the matter being talked over with the headman and elders in baraza, for nobody yet claimed private ownership of unoccupied land. Internal disputes about gardens or crops and the distribution of cultivation rights on inheritance were settled by the elders in traditional fashion, but private rights over ‘bush’ land were never an issue at this time.

The same was also true, in general, when larger areas were alienated for such purposes as towns, settlers' farms or mission stations. The local population was protected by the Crown Lands Ordinance of 1900, which provided compensation for those who preferred to leave, for huts and crops and for general disturbance, but not for unoccupied, uncultivated land. There were certain cases in Nairobi, however – of which the CSM land grant of 1905 is the best example – where Kikuyu living on the site had claimed githaka rights, and accommodation with them was reached before title was granted.

Government was very slow to accept that anything in the nature of private rights existed in the tribal conception of land tenure beyond a simple right of user. Until 1920 the official and judicial view was that private rights, as distinct from common rights to pasturage and village occupancy, did not extend beyond a right of continued usage of land actually cultivated and a limited area round it marked out for near-future cultivation; and that cessation of cultivation for more than three years voided the right. There was, however, a growing doubt as to whether this attitude was right. In 1899 Mr Justice Cator had written: ‘It has sometimes been asserted that the Kikuyu acknowledge individual ownership of land, but I have heard this view contradicted.’ And the word githaka used in the sense of a land claim occurred in a dispatch to the Foreign Office in the same year. In 1913, the governor, Sir Henry Belfield, directed that an enquiry should be made but when, in the same year, J. O. W. Hope, a senior provincial commissioner, was appointed to mark out land in the Limuru area for European farms and award compensation to any Africans displaced, he never so much as heard the word githaka mentioned, although the area was afterwards admitted to have been part of the Kikuyu tribal land and it might have been expected that every possible argument would have been brought forward against its loss. Hope himself stated years later that he had been completely ignorant of the existence of any such system.² But, with the better organisation of the native tribunals which occurred about this time, more information was now coming to hand.

Under the Crown Lands Ordinance of 1915, all land in Kenya outside the dominions of the Sultan of Zanzibar was declared to be Crown Land, including the African tribal lands, then called ‘native reserves’. The reason advanced for their inclusion was that ‘if such lands are vested in the Crown it will be possible for the Crown to regularise their occupation in the interests of the natives thereon, giving them real and definite right to the land’. The intention was good, but, through ignoring the fact that rights already existed and were being used, it misfired badly. In 1921, Sir Jacob Barth, the Chief Justice, gave judgment in a case concerning githaka rights: Isake Wainaina Gathemo and another v. Murito Ndagera and others. He stated that as an effect of the Kenya Order-in-Council 1921 combined with the Crown Lands Ordinance 1915, ‘all the native rights in such reserved lands, whatever they were under the githaka system, disappeared’. This caused dismay, which was only partially mitigated when he explained that his statement did not mean that the Africans had no rights in lands which were entitled to the protection of the courts, but that such rights had not yet been so precisely ascertained that the protection of the courts could yet be extended to them.³ The native tribunals, which, until then, had been doing good work towards sorting out land claims, were thus placed in an awkward position. If the Supreme Court had no jurisdiction, then the tribunals, being subordinate to it, had none either. In practice, however, they continued to hear land cases as before but, for a short period of years until jurisdiction was restored to them under the provisions of the Native Courts Ordinance, their decisions, where actual ownership as distinct from use was claimed, had to rank as advice to the district commissioner in his administrative capacity, not as judicial findings.

Partly, no doubt, as a result of Sir Jacob Barth's judgment, the ‘githaka question’, which had hitherto been treated too much as an academic issue about tribal customs, suddenly sprang into great prominence when, in 1922, the Young Kikuyu Association under Harry Thuku agitated for the granting of land titles. The agitation emphasised that there was a need for a firm basis to regulate a system of land rights and at last this was realised. Investigations which had already been going on for some years by individual district officers and missionaries were now pushed forward urgently. Committees to report on tribal land customs were appointed for most of the principal tribes, and at least the existing facts were ascertained. Among the results was the Report on Kikuyu Land Tenure, produced in 1929, in the preparation of which witnesses of the Kikuyu, Embu and Meru tribes gave valuable help.⁴

An important point which had emerged clearly was that, although the Kikuyu were now laying great stress on the githaka and were very insistent that it should be used as their basis of land tenure, only a very short time had elapsed, at most a couple of generations, since githaka had come to mean anything except ‘bush’ and had acquired a technical significance as a land claim. It was by no means as stable a concept as was being represented: that the githaka was a sort of half-way house between clan and full private ownership. What the Kikuyu wanted was that the githaka should be accepted as the basis of land tenure and that a system of private land ownership should be evolved from it. Government had sympathy for these aspirations and accepted them in principle.

That was approximately the position when the Kenya Land Commission of 1932–3 was appointed under the chairmanship of Sir Morris Carter with very comprehensive terms of reference. Its principal recommendations have already been mentioned. Of those recommendations relating to private land-holding and the development of a system of land tenure within the native lands, three of them were cardinal, namely:

(1) ‘that the native lands as defined in the Report should cease to be Crown Land and should be styled the “Native Lands”, the “nuda proprietas” being deemed to lie with the native population generally but subject to the sovereignty of the Crown and its general powers of control;’

(2) ‘that within the several blocks of the Native Lands the inhabitant tribes, groups, families and individuals should have all the rights and powers in respect of land which they have under native custom (as it is or may become either by natural evolution or by rule made under the Lands Trust Ordinance or any other ordinance) in so far as they are not repugnant to the Lands Trust Ordinance or rules made or to be made under it or to any other law or ordinance of the Colony;’ and

(3) ‘that Government should be given wide powers of control under the Ordinance, which should include a power to make rules for the regulation, development and guidance of land tenure in the Native Lands, but that such rules should only be made after an elaborate procedure of consultation, to be prescribed in the Ordinance, had first been followed.’⁵

As regards the first recommendation, while it appreciated the native impulse which had induced government to declare these areas Crown Land, the commission observed, with some understatement, that ‘to deprive a man of his rights in land for the sake of protecting him is a method of procedure which is liable to be misunderstood’.⁶ The second recommendation made clear that the native lands were not exclusively reserved for the particular tribe or tribes whose name they bore, so protecting minority groups, recognising the existence of private rights, and rendering the whole situation more fluid and adaptable. The third recommendation, the requirement that rules should only be made after long deliberation meant, in effect, that for many years to come more would be accomplished by consultation and agreement than by legal enforcement.

The Kenya Lands Trust Ordinance of 1934, which was framed on the commission's recommendations, distinguished between the ‘protective’ need and the ‘development’ need in the administration of the native lands. The protective need was assigned to a Lands Trust Board, whose principal duty was to watch over the integrity of the boundaries and see that any subsequent alterations or exchanges were made fairly and in strict accordance with the provisions of the ordinance. The development need was to be the sole responsibility of the Kenya government, to be conducted through the provincial and district administration. It was subject, however, to a right of the Lands Trust Board to make representations to the secretary of state if it considered that government was failing in this regard to do its duty.

The Kikuyu Land Tenure Committee of 1929 had found it possible to state of the githaka system that ‘it is the greatest possible tribute to its worth that there are several places in the Nyeri and Fort Hall districts where one may stand and see more than a thousand acres at a stretch with scarcely an acre uncultivated, and the disputes which occur, though complicated and troublesome, are surprisingly few’.⁷ While the first half of this assessment was undoubtedly true, the second half suggested a degree of stability which was afterwards found to be incorrect. Indeed, when the Kikuyu mbari submitted their claims to the Kenya Land Commission in 1932, it was found that practically the whole Kikuyu country was covered at least two deep in rival githaka claims and, in several cases, the same piece of land was claimed by three or more contending groups. It was thus clear that very careful steering would be required before the githaka system could be pronounced a viable system of land tenure.⁸

Similar problems existed among other tribes, and even in tribes that had previously been free of land problems, the planting of permanent crops such as tea, coffee, wattle, sugar cane or sisal was soon to create them. It was in the Kikuyu districts, however, that the problems arose most acutely.⁹ Rival claims to land were sometimes so large as to amount to a political dispute about seigniory rather than an agrarian one about usage.¹⁰ Indeed they were treated as such – as an administrative matter to be settled by the district commissioner after discussion with the chiefs, headmen and elders on both sides and whomever else he considered it right to consult. Where the issue was genuinely agrarian and concerned some private right-holding or crops, it went before the native tribunal of the location concerned, who referred it to the group elders on both sides for an opinion before passing judgment. Thence, if necessary, it could be referred to the district commissioner or beyond through the normal channels of appeal. This arrangement was satisfactory to the extent that the judgment settled the matter immediately in dispute, but no very permanent result could be expected when there was no adequate mapping; when one could never be sure that the parties in court included the real right-holders; and where third-party interests were not represented. But at least substantial justice was being done in a way which was understood and respected. The mbari elders and the original tribunal court were generally familiar with the land and details of the dispute and, if a case came up on appeal, some of the members of the divisional appeal tribunal would usually be sent to visit the land. As time went on and education spread, it was increasingly expected that a sketch and possibly a photograph of some prominent feature on the land should be provided.

Reluctance to mark out boundaries was already disappearing. Advice was given to githaka heads and component right-holders in selected areas to mark out their boundaries by hedges—except, of course, where the boundary was a stream—and to use a different method to show whether it was a githaka boundary or an internal family right-holding. It was not expected that many of them would do so at first, but it was hoped that the practice might grow, even at the occasional risk of bringing disputes to a head. Although a record of court decisions could be kept and some attempt be made to plot them roughly on a map, no survey or register of right-holdings was practicable at that time, but with the increased planting of permanent crops, the position on the land was becoming more definitive.

Some of the right-holdings, especially near Nairobi, were very small—not yet so small as to be uneconomic, but threatening to become so. This was because Nairobi provided the neighbouring tribal areas with the best market for their produce and their labour, and much of the money earned went to the buying of goats and cattle which, in turn, went to the acquisition of wives. The result was local congestion. There did not seem to be much prospect of restraining it until, with social and economic advance, the Africans would find more uses for their money, and status would no longer depend on the accumulation of livestock and large families.¹¹

The system of inheritance aggravated the trouble. When a right-holder died his holding was divided between all his sons living on, or claiming rights in the land. Not only did each of them have to have an equal share of the land which had been cultivated but, if land had been cultivated in separate parts—some, perhaps, by a stream and some higher up on the ridge—each part was also divided. It was better in these cases that the shares should be left unmarked for, in that case, there was still hope of common sense prevailing and it might be expected that the muramati (githaka head) would use his influence accordingly. Nevertheless, it could be foreseen that, unless something was done to ease the situation, many right-holdings would be reduced to totally uneconomic fragments within a generation.

Many suggestions were made for dealing with the problem. Broadly speaking, they all foundered on the question of how to find alternative land or fair compensation for superfluous heirs. They were for example:

(1) Primogeniture: but this had been tried in South Africa in the Transkei without much success, although there was comparatively lucrative employment for the junior brothers to be had on the mines.¹² In Kenya there was no such certainty of work on offer. The elders would certainly not have regarded it as fair treatment that the eldest should have all.

(2) The eldest son to succeed to the title but the co-heirs to be allowed to remain on the land. This would help to the extent of keeping the shape of the right-holding intact, but it would not prevent congestion in respect of use.

(3) As in (2) but the principal heir to be allowed to buy out the others at an agreed valuation at any time up to a stated limit, after which they could not be disturbed or bought out against their will.

(4) The land to go to one heir after closed auction between the heirs.

Suggestions (3) and (4) seemed to be on the right lines. The chief objection against them lay in the fact that the principal heir would seldom have the means to buy out the others. To render either of these schemes workable would probably postulate an agreed valuation, recourse to a land bank, and an arbiter. It was thus necessary that for the proper development of the African lands there should be a land bank from which Africans might borrow for approved purposes on proper security.

Tenants were another complication, for according to Kikuyu custom they had no rights over the land they were cultivating beyond a right to reap their standing crops. They could not be evicted from their huts, however, and this expression was generally held to include the village yard and the cattle pen enclosed with it. Nevertheless, there were various ways in which they could be induced, not forced, to leave, though relations between owner (mwene) and tenant (muhoi) being normally friendly, cases of a man being moved against his will were very rare. The principal disability against which tenants suffered was that they could not build permanent houses or plant permanent crops: at least, if they did, they would have no security.

It was not possible, at this time, to attempt any comprehensive solution to these problems, but the end always kept in view was to introduce more fluidity into the land system so that the population should be able more easily to redistribute itself. The most obvious way of doing this was to permit the buying and selling of land, but there were two main obstacles, the first being that tribal custom was against it. Leaving aside questionable transactions with the Dorobo,¹³ there was no authenticated instance of any right-holder having sold his land to another with the approval of the elders, but unquestionably the claims of the right-holders in Kikuyu to have this right were gaining ground and the opposition of the elders was weakening. Probably, if this had been the only obstacle, if a start had been made with a few selected areas and if an appropriate method of prior consultation had been devised, the consent of the elders could have been obtained in cases where the need was clearly urgent. Custom was not the only obstacle, however. It would be necessary that the boundaries of the land should be clearly set forth together with a statement of any encumbrances and contingent interests, and that a period for third-party objections should be allowed before the transaction could be registered. Nothing of this kind had got beyond the discussion stage by the end of the inter-war period. Although sales were thus not practicable as yet, there did seem to be a possibility that the custom of pawning land for goats might be extended and, subject to more equitable conditions regarding redemption, be developed into a form of leasehold.

Leaving now the problems of tenure of agricultural land as between Africans, the very important provisions which the Kenya Lands Trust Ordinance of 1934 made for procuring land for public purposes, trade and social requirements must now be considered. The position which had obtained under the Lands Trust Ordinance of 1930 was that townships and trading centres situated within the external boundaries of what were then called native reserves were deemed to be excluded from them, and this also applied to land alienated for a public body, generally a mission, for purposes of social service. Apart from giving the map a pock-marked appearance, it had the effect of removing from the African lands all the principal landmarks of their own advancement. True, the government paid over to the local native council—afterwards, African district council—all the rents they received from these sources, but the Land Commission considered that if, in addition, these places were re-included in the native lands, the councils would come to take an active interest and a pride in them. Government agreed, and action was taken accordingly.

As to any land that might be required for such purposes in the future, the commission, following a practice already being tried with success in the Kiambu and Nyeri districts, recommended a process of ‘setting apart’ and lease. The land would first be set apart by the native council paying agreed compensation to the right-holders either in the form of an outright payment or, if they preferred, by an initial premium and annual instalment. The land having thus been set free from private interests, the council would then let it on lease for the purpose required, fixing the rent at an amount sufficient to recoup themselves for their outlay and their pains. The commission went into details about the manner of fixing the compensation; about a power of enforcement on the lines of the Land Acquisition Act if no agreement had been reached and the need for the service was urgent and sufficiently important to justify the action; and about power for the provincial commissioner to order an outright final compensation to be paid in cases in which annual payments were causing complications. Nearly all of these recommendations found their way into the new Lands Trust Ordinance of 1934. The method proved most useful for the reservation and leasing of small plots for schools and churches, market sites, agricultural experimental and seed-raising plots, locational centres for chiefs, and other similar purposes of administration and social service. When a larger area was in question, as for a new trading centre, and external boundaries had been duly set apart after compensation to right-holders had been agreed, the district commissioner, after consultation with the local native council, would divide the total area into plots to be leased separately, and the council would receive the rents. Existing townships, district stations and trading centres within the boundaries of the native lands were deemed to have been set apart already. In the initial stages of growth the rents would go wholly to the local native council. As they became a little larger and more important, a township committee would be appointed and, at this stage, the council would be expected to pay a contribution towards their development out of the rents which they received. Later, when the township grew to a size and status vaguely described as Class A, a quit rent would be paid to the council, after which the township authority would take over the responsibility for its future development, together with its rents and revenues, under the general supervision of the commissioner of lands.

1 The discussion that follows, in which Fazan concentrates on Kikuyu land issues, does not differ in principle from the findings of Sorrenson, Land Reform, or A. Fiona D. Mackenzie, Land, Ecology and Resistance in Kenya, 1880–1952 (Edinburgh: Edinburgh University Press, 1998), the latter of which focuses on Fort Hall/Murang'a district.

2 Fazan's references to Judge Cator and Mr Hope show that he had his copy of the Carter Commission's Report by his side, pp. 81–2.

3 This ‘Barth judgment’ is quoted in all scholarly histories of the 1920s.

4 Fazan seems to have forgotten the earlier Kikuyu Association, founded in 1919, which acted as a chiefs' trade union. Perhaps his memory was occluded by his own hostility towards the association in the later 1920s, when as District Commissioner Kiambu he felt that his chiefs should have been content to limit their expression of political views to sessions of the formally constituted Local Native Councils, of which most were members ex officio. See: Confidential note of a meeting at Government House, 21 November 1930, called to discuss Fazan's handing over report, on leaving Kiambu: Kenya National Archives: PC/CP. 8/5/1. For the 1929 committee, see above, Chapters 7 and 11.

5 In recommendations (1) and (2), Fazan paraphrases paragraph 1639, p. 418 of the Carter Commission's Report; (3) appears to summarise paragraphs 1655–7 on pp. 421–2. These recommendations followed Fazan's minority view in the report of the 1929 committee on Kikuyu land tenure.

6 This piece of official irony comes from paragraph 1636, p. 418 of the Carter Commission Report.

7 Colony and Protectorate of Kenya, Report of the Kikuyu Land Tenure Committee (Nairobi: Government Printer, 1929), p. 10, paragraph 22.

8 Fazan is correct to point out the contradictory claims to property recorded from the various Kikuyu mbari (which were lineage corporations or ‘houses’ with many affiliated dependants rather than purely family descent groups), one of the many hurdles in the way of racial equity and the tenurial reform that Fazan judged necessary to African agricultural well-being.

9 The observations that follow help to explain why the provincial administration was so hesitant in the matter of African land tenure reform in the 1930s and 40s.

10 Fazan's use of the medieval English term seigniory (found throughout the 1929 committee report) usefully illustrates the difficulties found by British officials in trying to understand African tenures. Their natural instinct would have been to cast back to the history they half-remembered from school or university. But feudal notions of seigniory needed, first, a king with sovereign powers over land, secondly, lords who swore him homage in return for an allocation of land and, thirdly, clear obligations to tenants below them. None of these elements, except in very variable terms the last, applied to Kikuyuland.

11 This passage summarises one of the arguments Fazan had made at greater length in his 1932 ‘Economic Survey of the Kikuyu Reserves. See Appendix III.

12 The Kenya government had sent Fazan to South Africa for a brief visit precisely to see what could be learned from the experience of the Transkei, later the first of apartheid's Bantustans.

13 A wealth of political disagreement lies behind this aside. Kikuyu elders and their white sympathisers, principally Dr Louis Leakey (see his The Southern Kikuyu before 1903 (London: Academic Press, 1977, Chapter 4)) argued that, in southern Kikuyuland especially, Kikuyu agrarian colonisers had bought out Dorobo hunting rights in the nineteenth century in a series of private contracts, hallowed by ritual and often guaranteed by inter-marriage. Kenyatta's Facing Mount Kenya, Chapter II, expressed a similar view, not quite so convincingly. Fazan, keen to see that what he regarded as progressive development should not be hindered by historically dubious rights of seigniory, was inclined to believe that many of these accounts were politically convenient fictions. Fortified in this view by Dorobo complaints voiced at the Kenya land commission's public meetings, Fazan wrote in its Report (p. 93, paragraph 285) that while Kikuyu had indeed acquired Dorobo rights partly by alliance, adoption and payment – as argued by Leakey and Kenyatta – the process was nonetheless carried through ‘largely by force and chicanery’ – what he here, in his memoir, calls ‘questionable transactions’.