In Uganda, evictions of the poor from land by the dominant economic class have been common in the last two decades. They have mainly been classified under the broader rubric of land grabbing.  Land evictions are a microcosm of Uganda’s political economy and offshoots of lapses in land governance and the unending land reform processes.

Eviction scenes are usually characterised by the following: a group of  people (most often hired goons) destroying crops; a grader destroying structures or debris from already destroyed structures; victims trying to salvage their belongings from the debris (usually basic household items such as overused mattresses, plastic plates, cups, and clothing); stick-wielding victims voicing their frustration in front of media microphones/cameras, affirming their claim to the land and calling on a powerful agency or a politician to intervene (at times these calls to intervene are directed at the government using the popular Luganda phrase, “tusaba gavumenti etuyambe” (we are begging for the government’s intervention/help); women crying profusely, pacing around the scene, asking rhetorical questions (usually concerning their dire helplessness as widows/sole providers for their families and  wondering how they will pay off that loan or feed the children now that the food is destroyed); and people in uniform wielding guns and court papers purportedly authorising the eviction.

This description of evictions is a metaphorical representation of the actors, powers, agendas, and interests at play in land contestations. It is usually the face of other invisible forces deeply rooted in the letter of the law, power play, and asserted by a court of law through interpretation or misinterpretation. The scene can be appropriately captioned “noise verses uniforms, guns and court papers”. The poor can only amplify their voices of dissent by wielding sticks, while the instruments of state authority (uniforms, guns and court papers) remain in the hands of their tormentors.

The scene also presents a number of dichotomies: a class struggle between the underclass/poor and the dominant economic class, between the powerful and the subordinated/oppressed, citizens and subjects. The constitutional notion of citizenship bestows upon all Ugandans the right to state protection. Land conflicts have however presented a dynamic where the rich and powerful are more of citizens than others, for they can use the law and state institutions to assert their “entitlement” against the underclass/poor. Those who lose their land in this context become “subjects” whose claims are dismissed as merely an annoyance rather than “rights” worth defending. The “subjects” can only cry out for help as a privilege rather than a right. This is evidence that the most recent land law reforms of 1995, 1998 and 2010 have not yet benefited the majority of victims of land evictions. Their social-economic existence is destabilised. To them, the law is a powerful tool in the hands of the economically and politically dominant group.

The Constitution of Uganda recognises four tenure systems: mailo, freehold, customary and leasehold. Evictions have taken place on land held under all four tenure systems across the country. Not every eviction is unlawful, but unlawful evictions abound in Uganda’s history, and have intensified in recent times. They cause land conflicts, destabilise society, retard land-based production and curtail free marketability of land. Debates on land reform are frequent and the country is currently debating another range of reforms on the mailo system of land tenure.

There is need to understand the dialectic views about the need for reforms in this area, and I offer some discussion here. I take a teleological approach, avoiding the polemic debates on how we got here and focussing instead on what we could learn from and do about the sticking issues in the land reform processes in Uganda. I also explore the pro-commercialisation and other efforts aimed at land restitution in other countries, as well as the politics of the “entangled” interests on mailo land in Uganda, and how this shapes the efforts and politics of disentanglement. Land law has been used as a tool in the politics of entanglement and disentanglement. I argue that the law is not the magic bullet; it rarely addresses the underlying intersectional quandaries of a social, economic and political nature that normally converge in the spaces of the poor/underprivileged. Law should be coupled with other legitimate efforts aimed at disentangling the convergence of the issues referred to above and understanding the roles played by the various actors in land conflicts and their resolution. 

Land reforms elsewhere

Land reforms elsewhere are characterised by scenes where (just like in Uganda) voices  of protest confront forces wielding state authority sanctioned through law reforms, the poor pitted against the economically empowered in the struggle over land. A number of African countries have undertaken land reforms in the recent past, achieving—according to official supporting discourses—a constellation of gains ranging from correcting historical flaws, improving tenure security, promoting the capital value of land, and protecting indigenous communities, among others. South Africa and Zimbabwe stand out in the Southern Africa region. South African reforms have included a broader agenda to annihilate the dangers associated with the land dispossessions perpetrated against the black population during the apartheid era. Debates about racial inequalities, and restitution and/or compensation have been current in addition to communal land tenure policy initiatives aimed at vesting land in tribal authorities and streamlining its use and access within that traditional body politic. Expropriation without compensation is another hot debate in the South African context.

Land law has been used as a tool in the politics of entanglement and disentanglement.

In Zimbabwe, a number of land reforms took place in turbulent fashion in the early 2000s (of course there were efforts at land reform in the 1980s). Like in South Africa, reforms involved reversion of land from white to black farmers (put simply). The views about these reforms have been divergent with some believing that they have helped the small-scale farmer to gain ground in the agricultural market economy, while others see the initiatives as disastrous and unsustainable in economic and human rights terms (if all, both black and white, are considered citizens).

Next door in Kenya, the most recent reforms were heralded by the inauguration of the 2010 Constitution followed by the new land law of 2012 and the Community Land Act of 2016, among others. As elsewhere, the reforms were justified on a number of bases including inequitable distribution of land, historical injustices, landlessness among the poor, increasing trends of land grabbing, and the need to streamline communal land use. In her recent book, The Struggle for Land and Justice in Kenya, Ambreena Manji argues that one of the problems with reform in Kenya is the parochial view of “land reform” as reform of land law that leads to focus being placed on reforms within the land management and administration institutions that are pivotal to the exercise of bureaucratic power.

This approach diverts attention from the broader questions of access, land justice for the poor and unequal distribution. Manji further believes, “We must attend to insurgent knowledge and ideas of change.” In essence, any reform programme should aim at deeper and broader change beyond legal reforms in order to address the plight of the subaltern poor caught up in contestations over land. Such an approach questions the dominant but rather rhetorical narratives of the state as the protector of rights and people, to address situations where symbols of state power (uniforms, guns and court papers) are ironically applied to entrench a skewed power position to intimidate and dispossess victims in land conflicts/evictions.

The Uganda case 

Public debate in Uganda has recently been dominated by discussions on the reform of the mailo land tenure system, with views varying from those that believe it needs to be reformed (and may be abolished) to those that believe that the mailo system does not need to be reviewed. Uganda has gone through a series of land reforms over the course of the country’s history, with each reform influenced by the political, social and economic factors prevailing at the time. In 1975, President Idi Amin abolished all perpetual land ownership tenure systems and vested all land in the state, which granted periodic leases to land users. The post-1995 land law reforms re-vested land back in the citizens to hold by virtue of the revived tenure systems (mailo, freehold, customary, in addition to leasehold). Unlike in the past, the post-1995 period saw heightened contestations over land and witnessed classic evictions.

The 1900 Agreement is often seen as the precursor of mega-reforms in the mailo system of land holding. The Land Law of 1908 introduced reforms to address the lack of clarity identified in the findings of the Carter Committee of 1907. Among the issues raised was whether the 1900 agreement introduced a new system which changed the reciprocal obligations that existed between landlords and tenants (embedded in custom and tradition) prior to its signing. The 1908 law defined and drew the boundaries of the mailo system introduced under the 1900 agreement. Mailo land could be transferred to anyone in the Protectorate (outside the clan system of Buganda) and it was no longer land exclusively governed based on Ganda customary law. In 1928, the Busulu and Envujjo law attempted to reorganize the landlord-tenant relationship by, among others, stipulating the rent payable and other terms of use. This was following tenants’ complaints of exploitation by landlords who were charging exorbitant rents. In 1975, mailo interests were by law commuted to leaseholds when land was nationalised, a position that was reformed through the Constitution of Uganda in 1995 and operationalised through the Land Act of 1998.

Any reform programme should aim at deeper and broader change beyond legal reforms in order to address the plight of the subaltern poor.

Reforms are not new. The question is why haven’t they delivered on their agenda to address the so-called “land question”?  Can reforms focusing on the mailo land tenure (mainly in central Uganda) address all the problematic land issues at a national level or those associated with  other tenure systems such as  the vast customary tenure predominant in the north? Are we asking the right questions to guide reform processes? Are we addressing the right problems? Does the operating environment allow for clear and focused reforms? Can focus on “law reform” (to refer to Manji’s conceptualisation) without addressing the underlying social-political issues resolve the multifaceted nature of challenges encountered in the mailo system?

All these questions have one answer. Land is a part of the political repertoire and therefore efforts to bring about land reforms involve managing politics, society, and the economy, yet the balance is not easy to strike. Although cumbersome for some, the unresolved land issues are exploitable “stock”’ for others.  Beneficiaries of the “stock” would therefore not opt for approaches that resolve the problem once and for all, since that would not be just a trifling inconvenience but a big loss.

The “miles” of “entangled” land

Any attempt at reforming the mailo system requires a broader approach using multiple lenses to disentangle the various legal and social-political issues that characterise its structure and practice. Broadly, the mailo system is entangled in class, religion, culture, politics, etc. Specifically, it is first entangled in history, conjuring historical rationales and claims that are also embedded in culture/traditions whose contemporary relevance may come into question. Who was who and who is who in terms of control of the centres of power. Does the new generation embrace the shifts (if at all) in the power centres? Second, the mailo system is entangled in the argument about the fairness of land distribution under the 1900 agreement and its contemporary relevance in debates about the classes of “victims” and “beneficiaries” in the mailo land tenure system.

Third, mailo system is entangled in the geopolitical imperative to promote registration and free marketability of land as a part of the broader goal of promoting a neoliberal model of development. In Uganda – The Dynamics of Neoliberal Transformation, the country is described as an exemplar of African countries that have fully embraced neoliberal restructuring that has resulted in significant economic growth, but also in inequality, concentration of wealth, corruption, and privileging production paradigms (as opposed to others of social value). Neoliberalism has also influenced land reforms by commodifying land and placing it in the markets, by increasing the relationship between land and commerce, and by changing the exchange value of land.

Fourth, mailo land is also entangled in the national political agenda on land reform, officially presented as a pro-poor logic; reform the land laws to strengthen protection of land occupants against land title holders. Fifth is the cultural issue where talk of mailo land evokes debate about the monarchy of Buganda and its power over land (mainly the official mailo land), considered trust land held by the King in trust for the people of Buganda. Crucially, land in Buganda is currently occupied by people/social groups from all over the country, including the powerful, and “foreign investors”.

Land is a part of the political repertoire and therefore efforts to bring about land reforms involve managing politics, society, and the economy.

Understanding these entanglements is invaluable in debates on mailo land reforms. One should take a microscopic view of them all in order to decipher them; use them as a guide to identify the actors to engage with; transcend blemished determinist economic views in the rationalisation of the purpose of reforms; promote debate and constructive engagement; avoid ideational and discursive hegemonic approaches shaped by subjectivities in perspective.

With the above, the law may indeed not be the silver bullet. It contains positive initiatives that would go a long way to solving the problem, but at the same time, it has contributed to the stalemate thereby further entangling the mailo tenure system. The reforms have largely not delivered emancipation for the oppressed, or corrected the power imbalances and the resulting injustices.

Beyond the law 

The Constitution and the Land Act aim to “streamline” the “relationship” between the landlord and the tenant. This presupposes continuation of the dual/conflicting rights on the same piece of land for title holders and tenants/occupants, with some changes in the reciprocal rights and obligations for both, and amicable social co-existence. The land by implication remains entangled in the dual claims of the landlord and the tenant, albeit in a regulated manner. There are a number of initiatives in the Land Act aimed at regulating the landlord/tenant relationship, a few of which are highlighted here.

First, the tenant is guaranteed security of occupancy and protected against eviction on condition that s/he pays rent to the landlord. The rent is “nominal”/“non-commercial”, fixed through government bureaucracies with the resulting “coercive security of occupancy” for the tenants. The landlords are obliged to receive the rent (even against their will) and refrain from evicting the tenants.

This has elements of imposing “edifice” since market forces are locked out in the determination of rent and the social good of the tenant is considered to be of paramount importance. It is believed that such approaches of regulating rent entrench the social aspects of the landlord/tenant relationship in recognition of the historical dimension of the mailo system of land holding. The tenants can occupy the land as long as they pay the nominal rent to the landlords, which sustains the existence of dual rights on the same piece of land.

Second, the tenant can apply for certificate as evidence of his/her occupancy with the consent of the landlord. This is then registered as an encumbrance on the landlord’s title. It is ironical to expect that the landlord will accept to further entangle the land, and limit its application in the market.

Third, the landlord and tenant can jointly hold the land or equally agree to share it such that each can exclusively hold and occupy a portion. The skewed power patterns between landlord and tenant most times hinder the possibility of an amicable and fair agreement/outcome.

Fourth, under the Land Act, the tenant may request the landlord for a mailo title, freehold (resulting in subdivision of land and grant of exclusive ownership to the tenant on agreed terms), or a lease. Considering the fact that the majority of tenants are financially constrained, yet land is of high value and in high demand on the open market, it is unlikely that such negotiations would yield in the interest of the tenant. Offering the land on the competitive market is normally a more viable option. In some instances, the lack of assistance from a third party to participate in the negotiations exposes the tenant to exploitation by the landlord. In essence, unless the Land Fund provided for in the law is capitalised and applied to facilitate land acquisitions by tenants on mailo land, land will remain unaffordable to many.

The reforms have largely not delivered emancipation for the oppressed, or corrected the power imbalances and the resulting injustices.

Fifth, the law allows either landlord or tenant to sell their interest to the other or in case of a sale on the market, to consider the other as the one with priority to purchase. A 2016 study that I conducted for the Public interest Law Clinic of Makerere University finds that realities on the ground render many of the initiatives above mere perceptions of protection that fall short of the lived experience of people in a landlord/tenant relationship on private mailo land.

A 2010 amendment to the Land Law allows the landlord to sell the encumbered land to a new person who steps into the landlord/tenant relationship with the tenant(s), yet the tenant who sells in violation of the law (offering first to the landlord) commits a criminal offence punishable by law. This change (in favour of the landlord) perpetuates the entangled situation of the mailo system, which at times leads to evictions by new landlords.

The big question remains: how can the layers of entanglement be disentangled?  To eradicate the dual and overlapping rights (of landlords and tenants) on the same land, the best two options are, first, mutual agreements to share land such that both landlord and tenant get (exclusive) registered title and, second, grant of leaseholds by landlords to tenants. The law makes provision for government support to acquire registered interest in land through the land fund. The law is to some extent confirming Manji’s argument, since it has not yet delivered on its promise. A lot more needs to be done in order to achieve the promises set out.

The dangers associated with the unintended consequences of going too far back in history outweigh the benefits.

Addressing the issues using the already existing initiatives is advantageous in many ways, and the assumption is that they are a product of consensus. This is more a from–now–onwards approach to the problem, conveniently avoiding peeling the discursive frames rooted in history to establish right and wrong. Remedying historical wrongs can be important, but some scholars (such as Jenna Thompson in Taking responsibility for the past: Reparations and Historical Injustice commenting about the choice between restitution and compensation) have argued that at times the dangers associated with the unintended consequences of going too far back in history outweigh the benefits.

For Uganda, the dual and overlapping rights to mailo land—with landlords holding registered title and tenants claiming occupancy rights—is a product of historical events heralded by the 1900 agreement. This situation perpetuates land conflicts and evictions. To resolve it, it will be necessary to ensure the active involvement/agreement of all those who are affected (landlords and tenants, and other actors). Also needed is government support to ensure that such agreements do not overly burden the weaker party (the tenant with occupancy). This will be facilitated by the gathering of information on the amount of land that is currently under the mailo system, how many landlords and tenants there are, how many are absentee, the location of the land, how much mailo land is without tenants, etc. This will fill the information gap and facilitate the reform process. Reform processes should provide a platform to discuss the problematic land issues in the whole country beyond the central region, by all citizens beyond the Kabakaship and the presidency.

In the meantime, rampant evictions are an indicator of the law’s and the system’s failure to address the sticky issues regarding mailo land. Yet land remains an arena for the entrenchment of class differentiation, portrayal of power and fear of the pro-commercialisation reforms that may lead to loss of land. The fact that mailo land is entangled has not stopped the rich and investors from evicting the poor. The entangled nature of the tenure is a “mess” that is exploited by the evicting class with impunity. Disentangling the tenure through provision of clear interests/proprietary rights (leases or mailo titles) could equip the disenfranchised tenants with the tools to assert their rights. If not, the metaphorical scene described here will remain the hallmark of land relations in Uganda. 

Even as the August 2022 general election approaches, the land question remains unanswered. And with the uncertainty as to who will win the presidency, which remains the centre of power despite devolution following the enactment of the 2010 Constitution, many Kenyans who migrated to the Rift Valley are anxious.

Already, there are land invasions in parts of Laikipia, a county in the Rift Valley, targeting the farms of migrant communities and those of White settlers.

In July, the media reported that herders had driven hundreds of livestock into private ranches, sparking protests from ranch owners in Rumuruti, Mugie, Laikipia Nature Conservancy and Suiyan.

According to Laikipia County Commissioner Daniel Nyameti, the herders were from the neighbouring Baringo, Samburu and Isiolo counties in search of water and pasture for their livestock.

While the invasions were—as in previous years—blamed on prolonged drought in the neighbouring counties, there seems to be a pattern that often leads to deadly conflicts.

In the mix is bad politics, land grievances and unresolved historical land injustices. “The invasions of ranches and farms and the resultant conflict have a historical and cultural context. The herders are most of the time used to invade Laikipia with the aim of driving out land owners and ranchers and claim land for themselves,” Rumuruti resident Charles Kimani told the Nation in July.

“Politicians sometimes provide arms to the morans and pay them to raid and occupy land. This is not about pastoralists escaping drought, because sometimes even after it rains, they still remain here. This is forcible occupation of land that belongs to other people,” Kimani added.

As has been the case before, the security forces intervened.

On 28 July 2021, Interior Cabinet Secretary Fred Matiang’i gave the herders one week to leave the farms or face forceful evictions by the police. “We are preparing a serious crackdown. It’ll be ruthless and merciless, and I plead with all illegal herders to move out within the period,” CS Matiang’i said at the Anti-Stock Theft Unit camp in Naibor in Laikipia County, where he was accompanied by the Inspector General of Police Hillary Mutyambai.

Matiang’i also appeared to blame local politicians for the violence saying, “We must put an end to this balkanization. We will not allow wananchi to be hurt due to political positions. We will immediately arrest those encouraging election rearrangements through forced movements.”

Former Laikipia North MP Mathew Lempurkel has been arrested by police on several occasions for inciting his community to invade private land to graze their animals. In 2017 Lempurkel was arrested following the murder of Tristan Voorspuy, a dual Kenyan/British national, was killed as he visited a site where two cottages had been set ablaze on the Sosian Ranch of which he was co-owner.

On 29 July Narok Senator Ledama Olekina, who comes from the pastoralist Maasai community, tweeted, “Good Morning @FredMatiangi you cannot order our people out of their ancestral lands! Those Ranchers -mostly colonials and former Government official stole our lands and you know that! Saying you will buy out own cows to ease pressure on pasture is killing our economy! No way!”

“When I become President of Kenya . . .  no single person will own more than 1,000 acres of land. All ranches in Laikipia will revert back to the original owners! Neocolonialism will end!” Olekina added.

The senator lamented that the Maasai of Laikipia have been made landless by the “British colonial and neocolonialism as well as their own government orchestrated by CS Fred Matiang’i who makes colonialists look more like philanthropists.”

The recurrent land clashes in Laikipia are just but part of a bigger problem.

Colonial land theft

The problem started with the stealing of land in the fertile areas referred to as the “White Highlands” by the British colonialists. Between 1902 and 1961, the colonial government reserved these areas exclusively for Europeans. They included Machakos, Nairobi, Thika, Mt Kenya region, Laikipia, Naivasha, Nakuru, Kericho, Sotik, Lumbwa, Songhor, Nandi, Uasin Gishu, Trans Nzoia and Mt Elgon.

How it happened

Towett J. Kimaiyo explains Kenya’s land policy since the colonial period in his book, Ogiek Land Cases and Historical Injustices 1902 – 2004. Kenya was declared a British Protectorate on 15 June 1895, which conferred on the British Crown political jurisdiction over the land from the Coast to the Rift Valley.

“Beyond that, the declaration of Protectorate did not confer any rights over land in the territory. Any rights over the land would have to be on the basis of conquest, agreement, treaty or sale with the indigenous people,” Kimaiyo writes.

But to overcome the problem of title to land in the territory, in 1899 the law officers of the crown advised that the Foreign Jurisdiction Act of 1890, which empowered the crown to control and dispose waste and unoccupied land with no settled forms of government and where land had been appropriated to the local sovereign individuals, be effected.

In 1901 the East African (Lands) ordinance-in-council was enacted conferring on the Commissioner of the Protectorate (later named Governor) the power to dispose of all public lands on such terms and conditions as he might think fit, Kimaiyo explains.

In effect, the land—now referred to as Crown Land—was vested in the Commissioner in trust for the British Crown.

The Crown Land Ordinance of 1902 followed suit and empowered the Commissioner to sell up 1,000 acres of Crown land in freehold to any person, or grant leases of 99 years, extended to 999 years in 1915.

The problem started with the stealing of land in the fertile areas referred to as the “White Highlands” by the British colonialists.

As a result, between 1902 and 1915, about 7.5 million acres—20 per cent of the best and most fertile land in Kenya—was reserved for the settlers as Crown Property.

In his book Kenya: A History Since Independence, Charles Hornsby explains that many of the first settlers came from the British aristocracy and military, accustomed to command, and with deeply engrained prejudices against foreigners.

“These imperial settlers were convinced that they were the natural rulers of Kenya (as of everywhere else) and that Africans were their feudal subjects,” writes Hornsby. He further observes that the inhabitants, many of them Kikuyu, resisted colonial rule but the colonialists employed large-scale violence.

History informs that between 1895 and 1908 other communities in the White Highlands, among them the Gusii, the Nandi, the Luhya, the Luo and the Teso, resisted colonial occupation. Colonialization displaced many inhabitants in the “White Highlands”, while others sold their parcels while understanding that they were merely ceding the right to use of the land.

Interestingly, the Maasai did not really resist. Why is this?

Hornsby says that 30 years before the arrival of the British colonialists, the Maasai had suffered drought, wars, and outbreaks of smallpox and rinderpest, which depopulated their land in Central Rift Valley and killed most of their cattle. They thus gave in to the colonialists and even became mercenaries for the British alongside the Kamba and the Luhya Wanga, finds Hornsby. The Maasai lost the entire Central Rift Valley.

According to John M. Lonsdale in The Politics of Conquest: the British in Western Kenya, 1894–1908, three-quarters of the alienated lands had been Maasai-controlled until 1890.

Hornsby says the British signed controversial land agreements with the Maasai, most of whom were illiterate, alienating them for colonial settlements. One of these agreements was the infamous Maasai Agreement of August 1904, a treaty signed by the colonial government and Maasai elders. The Maasai ceded possession of pastures in the Central Rift Valley in return for exclusive rights to a southern reserve in Kajiado and a northern reserve in Laikipia.

Many of the first settlers came from the British aristocracy and military, accustomed to command, and with deeply engrained prejudices against foreigners.

“The British moved the Maasai of Nakuru and Naivasha north to Laikipia ‘in perpetuity’. In 1911-13, to extend white farms and ranching north, the governor drove all 10,000 Maasai from Uasin Gishu, Trans Nzoia, Laikipia and Nakuru into the southern Maasai reserve, which later became Kajiado and Narok districts.”

“Both deportations were justified by agreements with [illiterate] Maasai elders but were repudiated later as having been signed under duress,” Hornsby finds.

This is what Senator Olekina means when he says the Laikipia land belongs to the Maasai. Settlers who remain in Laikipia still own large tracts of land of this alienated land.

The black colonialist

Wĩyathi na Ithaka (independence and Forests [land]) was the rallying call of the Mau Mau, the Gikuyu, Embu and Meru (Gema) resistance movement against the British.

In his Mau Mau song, Wĩyathi na Ithaka, popular Benga artist Joseph Kamaru’s says,

Our people let us join hands, this country is ours and it is our share/ µGod shower us with blessings/We don’t mind being captured, being detained, being displaced, being taken to peripheries/ But we will never stop agitating for our independence until this land sees the light/ This is a black man’s land and our hope is independence.

Therefore, when Kenya became independent in 1963, there was hope among the inhabitants, particularly those who had fought against the colonialists, that they would get their land back.

They were disappointed.

Once he became President, Jomo Kenyatta betrayed the cause of restitution and redistribution of land.

In his paper, History of Land Conflicts in Kenya, Peter Veit notes that Kenyatta maintained the system of freehold land titles and did not question how the land had been acquired. Individual private ownership rights continued to derive from the president just as in colonial times.

“Government programmes to systematically adjudicate rights and register land titles persisted and continued to undermine customary tenure systems. After independence, much of the colonial-era “Crown Land” was categorized as government land. The native reserves became Trust land, but were still governed by statutory trustees—the County Councils and the Commissioner of Lands—rather than directly by traditional institutions,” he writes.

The Kenyatta government also established the Settlement Fund Trustees to facilitate the purchase and distribution of settler farms to landless Kenyans.

The high-density settlements provided some land to landless households, but the schemes were based on a market system and principally benefited Kenyans with the financial means to purchase land, Veit observes.

This, consequently, led to the commercialization of land, inequality, corruption and the continued dispossession of those who were displaced by the colonial government. This is because those who had customarily owned the land did not have access to the necessary capital, or were rightfully against the idea of buying land they had owned.

And those who bought such land—in the Rift Valley for instance —were viewed as foreigners. These were the landless Kikuyu, Luhya, Kamba and Kalenjin who sought settlement in the under-utilised areas in the Rift Valley, the Eastern region and at the Coast.

This was the beginning of displacement under the Jomo Kenyatta regime.

It is important to note here that during the negotiations for Kenya’s independence, Kenyatta accepted the colonialists’ demands that the White settlers remain on their farms if they wished to and that land be transferred only on the basis of “willing buyer, willing seller”.

After independence, land acquisition was largely through four methods: “willing buyer, willing seller”, settlement schemes, shirika schemes (cooperative or collective farms) and land buying companies.

Settlers who remain in Laikipia still own large tracts of land of this alienated land.

These methods, Hornsby says, favoured the Kikuyu because they were richer, had easier access to loans and had more leaders in the high echelons of government. They settled primarily in Nakuru and Uasin Gishu.

Mwalimu Mati of Mars Group, one of Kenya’s leading anti-corruption and fiscal transparency watchdogs, told The Guardian that the root cause of Kenya’s land crisis is that the land was not bought by the people who lost it but by the Kikuyu elite of the time.

“That was the situation in Central Province where the Kikuyu came from. Kenyatta then settled the poor landless Kikuyu in the Rift Valley on land that had belonged to the Kalenjin,” Mati said in February 2008 at the height of the post-election violence, which was largely blamed on land grievances.

Kenyatta allowed politicians and civil servants to buy farms in Uasin Gishu and Trans Nzoia from the Agricultural Development Corporation (ADC) which acquired and continued to buy farms from the settlers, further contributing to inequalities in land ownership. The Ndung’u Land Report lists the ADC lands that were allocated illegally on pages 134-135.

The wealthy Gema elite, most of them in the Kenyatta government, continued to acquire the good and fertile land, triggering protests from locals, particularly the Kipsigis. Kipsigis MP Moses arap Keino is on record saying in 1973 that the Ministry of Lands and Settlement had become the Ministry of Settling the Rich. The Minister of Lands and Settlement between 1963 and 1979 was Jackson Angaine from Meru.

Kenyatta, too, bought large tracks of land.

“Kenyatta himself illegally acquired large tracts of settlement land. By 1989, “incomers” comprised 35% of the Rift Valley population. Other ethnic groups were outraged, a source of long-term ethnic animosities,” Veit writes.

The Guardian 2008 article reported,

The extended Kenyatta family alone owns an estimated 500,000 acres (2,000 sq. km). That represents a large chunk of the 28m acres (113,000 sq. km) of arable land in Kenya. The remaining 80% of the country is mostly semi-arid and arid land. The Kenya Land Alliance says more than half the arable land in the country is in the hands of only 20% of the population. Two-thirds of the people own, on average, less than an acre per person. There are 13% who own no land at all.

What were the implications?

More and more Kenyans were rendered landless and became squatters. Those who were economically able joined hands to buy their own land back from British settlers through the aforementioned means. Settlements became popular in the Rift Valley, the Coast region and Central Kenya.

In their Promised Land: Settlement Schemes in Kenya, 1962 to 2016, Catherine Boone, Fibian Lukalo and Sandra F. Joireman identify 73 schemes in the former Coast Province, 32 in Eastern Province, and 13 in Nakuru in Rift Valley Province.

They include Cherangani, Kabisi, Lugari, Kipkaren, Ndalal, Elgeyo Border, Lesos and Keben, Ainabkoi East, West and North, Kibigori, Muhoroni and Tamu, East Sotik, Sabatia, Kilombe, Ol Kalou, Wanjohi, Malewa and Kipipiri areas, South Kinangop and Njabini, Eburu, Mweiga/Amboni, Naro Moru and Warazo, Island Farms, Maragwa Ridge, Sigona Estates and Machakos (Mua Hills, Koma Rock and Lukenya).

Peasant farmers also saved and pooled resources together to buy shares in companies that bought land from settlers. Among them was Ngwataniro-Mutukanion Land Buying Company led by former Nakuru MP Kihika Kimani.

Coast region

Land as a historical injustice at the Coast is always an issue on the Kenyan presidential campaign trail during elections.

The land in the region was first grabbed by the Arabs, later by the British and by powerful individuals in post-independence governments, particularly that of Kenyatta.

“In 1970s, to help move ownership of these [beach] plots to Africans, Kenyatta issued a presidential edict that barred the sale of all beach plots without his permission. The result was to move control of these assets entirely into presidential favour, a process administered by Coast PC [Provincial Commissioner] Eliud Mahihu who could decide who could and could not buy coastal plots,” writes Hornsby.

The beach plots were taken over by top government officials, including Kenyatta, further dispossessing the inhabitants.

Quoting the Sunday Times, Hornsby says Mama Ngina bought land at the Coast to build two hotels, while Kenyatta built Leopard Beach Hotel, “which was registered in a Swiss company’s name”. In 1972, it was revealed that the Mombasa County Council had waived all rates on companies and properties owned by the Kenyatta family. 

PC Mahihu owed the Bahari Beach Hotel, while Rift Valley Provincial Commissioner Isaiah Mathenge owned The Coral Beach Hotel.

“The extended Kenyatta family alone owns an estimated 500,000 acres (2,000 sq. km). That represents a large chunk of the 28m acres (113,000 sq. km) of arable land in Kenya.”

Kenyatta also acquired large sisal farms in Taveta in 1972 jointly with the Greek Criticos family, pushing more inhabitants to become squatters.

In 2016, the Kenyatta family “voluntarily gave out” 2,000 acres of “its land” to squatters in Taita Taveta (essentially returning or relinquishing land to the original owners).

Reacting to the move, Raila Odinga—then Opposition leader and now President Uhuru Kenyatta’s ally—said the president should issue more than 2,000 acres.

According to Fr Gabriel Dolan, a human rights activist, hundreds of families were evicted from Gicheha farm in 2018 —land believed to be the property of the Kenyatta family—and resettled on adjacent land popularly known as Sir Ramson land. This became the Ziwani Settlement Scheme in Taveta Sub-county.

There is also the unpopular Lake Kenyatta Settlement Scheme formed in 1973 in the Coast region.

By 1979, Lamu District – now Lamu County – had an 80 per cent population increase, among them nearly 10,000 Kikuyu (including ex-Mau Mau veterans), says Hornsby. The indigenous Bajuni ended up becoming the minority as the Kikuyu became more influential economically and politically.

In a brief for the Norwegian Peacebuilding Resource Centre, David M. Anderson notes that this caused tension between the immigrants and the indigenous local community during the 2013 elections.

“Candidates representing the outsiders at Mpeketoni did well, supported by a well-financed campaign. Local Bajuni feared that their interest might be sacrificed to the entrepreneurial skills of these outsiders,” Anderson writes in Why Mpeketoni Matters: al-Shabaab and violence in Kenya.

A year later, in June 2014, came the Mpeketoni attack in which at least 60 people, mostly men, were massacred by al-Shabaab militants.

The Ministry of Lands and Settlement had become the Ministry of Settling the Rich.

Anderson writes, “Mpeketoni was a legitimate target. The victims were not Muslim, and none were local Bajuni people: those killed were Kikuyu from the far-distant highlands of central Kenya, members of families that had come to Mpeketoni in the early 1970s, taking up land on a government settlement scheme. Mostly Christian, they were in every respect “outsiders” in this coastal district.”

It was not the first spate of violence in the area. In the run-up to the 1997 elections, violence erupted at the Coast, killing over 100 people and displacing over 100,000, mostly pro-opposition up-country people. At the time, the Kikuyu were in the opposition.

Incidents of violence sparked by the land issue are arguably a consequence of these inequalities, grabbing and disenfranchisement. And while the violence that followed in the wake of the 2007 election is widely viewed as the worst, the 1992 land clashes were in reality far worse.

In those clashes that took place between late 1991 and December 1992, at the height of the general election, some 5,000 people were killed and another 75,000 displaced in the Rift Valley Province, with the Molo area being the epicentre of the violence.

According to the Kenya Human Rights Commission, between 1991 and 1996, over 15,000 people died and almost 300,000 were displaced in the Rift Valley, Nyanza and Western Provinces by politically instigated violence.

The clashes were largely between the Kalenjin and the Kikuyu, with land ownership cited as one of the key triggers.

Commissions of Inquiry

After he came to power in 2002, President Mwai Kibaki, who won the election on an anti-corruption platform, formed the [Paul] Ndung’u Land Commission, a Commission of Inquiry into the Illegal/Irregular Allocation of Public Land, in June 2003.

In its report, the Ndung’u Land Commission found that President Kenyatta and his successor, Daniel arap Moi, who had been his Vice-President, abused their presidential powers by grabbing land and that there had been “unbridled plunder”.

The 20-member commission found that in many instances, presidents Kenyatta and Moi made land grants to individuals without any consideration of the public interest, for political reasons, and without proper pursuit of legal procedures, whilst there was also extensive illegal allocation of alienated land. An accusing finger was also pointed at Commissioners of Land for various illegalities.

Among other recommendations, the commission directed that all illegal allocations of public utility land be nullified, and that such lands be repossessed and restored to the purpose for which they were intended and the culprits be prosecuted.

The report is yet to be implemented.

The report of the Truth, Justice and Reconciliation Commission (TJRC) also found that the colonial administration used irregular and/or illegal methods to acquire land from the Kenyan inhabitants.

It was revealed that the Mombasa County Council had waived all rates on companies and properties owned by the Kenyatta family.

The report also found that top officials in the post-independence government of President Kenyatta turned the settlement schemes into cartels for their own benefit.

The report said the officials bought land in the Rift Valley, and in other parts of the so-called White Highlands, and in the process swindled communities that were supposed to benefit from the settlement schemes after having been displaced by the British.

It also identified the “willing buyer, willing seller” policy as one that exacerbated the problem.

The TJRC found that there is a close link between land injustices and ethnic violence in Kenya, and that the failure by successive governments to address landlessness has caused individuals and communities to turn to violence. Landlessness has in previous cases, such as in 1992 and 2007, been used as a political tool, causing further displacements.

The TJRC report was published in May 2013 and tabled in the National Assembly in July 2013 but there has not been any substantive progress, mainly because of lack of political will and also because those identified as responsible for the injustices are politicians occupying top government positions.

Somalia’s leaders have agreed to hold delayed parliamentary and presidential elections by October 10 this year. The outcome will have significant ramifications for the country’s relationship with Kenya.

For decades, Kenya and the Federal Government of Somalia (FGS) have operated as reluctant allies drawn together by the realities of regional humanitarian and security challenges.

For example, Kenya hosts over 200,000 Somali refugees in Dadaab that have fled decades of drought, conflict, and terrorism. The government has sought to close the camps many times due to alleged security concerns.

But Somali leaders – including Kenya’s allies in Jubaland – have rebuffed efforts to expedite the refugees’ return due to insecurity and lack of resources, which is largely why Kenya has maintained its deployment of approximately 3,500 troops as part of the African Union Mission in Somalia (AMISOM).

The two countries have regularly taken retaliatory measures against each other in response to bilateral disputes. Somalia has banned the importation of the narcotic plant miraa from Kenya, which has cost its farmers millions of dollars. On its part, Kenya has at times stopped or hampered travel between the two countries.

Most recently, in December 2020, Somalia severed diplomatic relations with Kenya, alleging that Kenya’s growing relationship with Somaliland and interference in Jubaland’s political process amounted to undue intervention in Somalia’s domestic affairs. Qatar later mediated a resolution to the dispute, and both countries are implementing the agreement.

The election of a new national leadership in Somalia will offer an opportunity to develop a new common framework for cooperation to address areas of disagreement, including the fight against al-Shabaab, recognition of Somaliland, and delimitation of the maritime border.

Security cooperation

Kenya and Somalia’s disagreement over a joint border security strategy has harmed the security of both nations. Kenya has long sought for the bordering Jubaland region in Somalia to serve as a “buffer zone” of security led by a local ally. But it has used controversial means in an attempt to achieve this end, including military support to FGS rivals like Jubaland president Ahmed Madobe.

On the other hand, the FGS has wanted to maximize political and territorial control of Jubaland, particularly in Gedo where Madobe has less support. Constant infighting among local and national militias has hampered its stability.

The next Somali administration must address the sources of tension and agree on a security architecture that is acceptable to Jubaland, FGS, and the local communities.

Although Kenya invaded Somalia in 2011 without FGS consent and against the advice of key foreign partners, ultimately its forces have played a critical role, together with Ethiopian and Somali troops, to retake critical urban areas from al-Shabaab in the Jubaland region.

However, the prolonged nature of AMISOM’s mission – now 14 years – has created fatigue to conduct offensive operations. As matters stand, al-Shabaab still controls the entirety of the Middle Juba region and most rural areas, and it is still able to tax businesses in government-controlled areas.

Attacks by al-Shabaab on Kenyan Defence Forces (KDF) in vulnerable remote areas have killed hundreds and forced most troops to redeploy near the border, turning Kenya’s AMISOM contingent into a subsidized border force.

The KDF’s withdrawal of troops from conflict areas has made it more reliant on airstrikes that Somalis say indiscriminately harm or kill innocent civilians. These incidents undoubtedly diminish support for the KDF’s presence in Somalia and help al-Shabaab justify their existence to the local communities. It is for this reason that the FGS filed a formal complaint with the AU requesting that Kenya be held accountable for these actions.

The KDF’s increased border presence has also not stopped internecine fighting between Jubaland and FGS troops, which have continued to fight for control of the Gedo region. Local officials in Kenya’s Mandera County have complained that pro-Jubaland militias roam with impunity inside Kenyan territory, gathering resources to fight FGS forces on the Somali side of the border. The sporadic conflict has displaced tens of thousands of people, and the conflict has exacerbated the challenge of creating a sustainable security solution to the region.

Kenya, Somalia, and Jubaland need to reach a common agreement on security architecture for the region that better defines a timeline for the withdrawal of Kenyan troops and identifies which Somali forces will take over responsibility for security in each part of the region.

Relations with Somaliland

The next Somali administration will have an opportunity to reset relations with Somaliland and revamp a process that has been dormant since 2015 on an agreement that formalizes how the two sides will govern themselves in the future – either separately or through some form of autonomy within a federal system.

While Kenya has not officially recognized the breakaway region of Somaliland as an independent country, it has leveraged outreach to Hargeisa to pressure the FGS to compromise on critical issues.

Kenya will likely continue to take advantage of Somaliland’s dissatisfaction with the failure of the FGS to uphold aspects of previous agreements. Kenya and Somaliland have held sporadic talks between envoys, and Kenya is considering establishing a consulate in Hargeisa.

The KDF’s withdrawal of troops from conflict areas has made it more reliant on airstrikes that Somalis say indiscriminately harm or kill innocent civilians.

But economic matters might be the most robust incentives for Kenya to expand its relationship with Somaliland.

Since Somalia’s blockade of miraa imports has hurt Kenyan farmers, Kenya could leverage improving relations with Somaliland to get an export deal in a region where Ethiopia currently dominates the miraa market.

In addition, Somaliland’s new Emirati-financed port at Berbera will compete with Mombasa and Lamu to move cargo through Ethiopia and onto other destinations in East Africa. 

While Mombasa has established traffic at its facility at Kilindini, Lamu may struggle to attract new customers due to the depressed economic demand in South Sudan, Ethiopia’s reliance on ports in Djibouti and Somaliland, and ongoing security concerns in Lamu.

In this context, Kenya may need to reach trade deals with Somalia and Somaliland to maximize the amount of investment and returns tied to its domestic ports. Otherwise, there is a significant risk that China could seize control of the Kenyan ports where it has financed upgrades, as the government may not be able to pay back the high-interest commercial loans that were used to finance them.

Future of the maritime border

The fight over the demarcation of the maritime border between Kenya and Somalia has hobbled the bilateral relationship for over a decade. Both nations are fighting for a right to exploit rich offshore oil and gas resources.

Somalia has insisted that the border should be drawn as a diagonal continuation of the southeastern border while Kenya seeks a horizontal frame that would greatly expand the country’s maritime territory.

Somalia filed a case with the International Court of Justice (ICJ) in 2014. Just days before the last round of arguments this March, Kenya withdrew from further participation in the case after the court rejected appeals to delay the proceedings to bring in a new legal team. Kenya also had sought a Somali judge on the panel to recuse himself to reduce the risk of a biased decision in favour of Somalia.

Somalia’s legal team ultimately made its closing argument in the absence of its Kenyan counterpart. It may be years before a decision is reached due to the number of appeals filed.

In the interim, Kenya will almost certainly push for the next Somali administration to settle the matter out of court – an idea backed by the US and the African Union.

However, the FGS will have very little room politically to negotiate a deal out of court. Many Somalis already believe the ICJ will rule in their favour. Even rumours in May that President Mohamed Abdullahi Mohamed Farmaajo’s administration was considering an out of court settlement prompted a quick and forceful denial from his office.

Somaliland’s new Emirati-financed port at Berbera will compete with Mombasa and Lamu to move cargo through Ethiopia and onto other destinations in East Africa.

Even if Kenya loses the case, Somalia has few possibilities of enforcing the decision. The ICJ has no means to do so. Kenya has sufficient allies within the five permanent members of the United Nations Security Council that would object to any punitive action that would force Kenya to abide by a final decision.

As a result, there is no likely scenario in which a mutually agreed solution can be reached in the near term, and any attempt to do so could provoke a political controversy in either country.

Security cooperation

Kenya and Somalia must prioritize security cooperation over other bilateral matters because it has the most significant implications for both nations’ peace and economic progress.

In particular, the two governments need to convene a unique forum that includes elites from the Jubaland region, to regularly discuss the transfer of security from Kenyan forces to Somali troops and other border-related security issues.

To reach an agreement, both sides will have to compromise on key demands. The next Somali government may request that Kenya refrain from leveraging its relationship with Jubaland to interfere with its management of affairs in Somalia. And the FGS will almost certainly want Kenya to be more accountable for any civilian casualties incurred in security operations in the country.

On its part, Kenya will push the next government to open up miraa markets to Kenyan farmers and pressure new leaders to form a better working relationship with Jubaland so that they can use their collective resources to create a more effective buffer zone for Kenya on the border.

The urgency to resolve these issues should be high since there will be a short honeymoon period for the next Somali government that will be inaugurated in October.

What can be accomplished in the first year will have significant implications for how the leader of Kenya’s next government approaches the relationship following the country’s own general election in August 2022.