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White Settlers, Black Colonialists and the Landless Majority

13 min read.

The problem of landlessness in Kenya started with the stealing of land by the British colonialists and has been perpetuated by powerful individuals in the top echelons of post-independence governments.



White Settlers, Black Colonialists and the Landless Majority

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.

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Eliud Kibii is a sub-editor with The Star newspaper and writes on international relations, security and electoral processes.


Omissions of Inquiry: Kenya and the Limitations of Truth Commissions

Gabrielle Lynch provides a radical analysis of the mechanisms of transitional justice. Looking at the case of Kenya, Lynch argues that truth commissions which hope to achieve truth, justice and reconciliation also require ongoing political struggles, and substantive socio-economic and political change. While reconciliation and justice may be goals which truth commission can recommend, and sometimes contribute to, they cannot be expected to achieve them.



Omissions of Inquiry: Kenya and the Limitations of Truth Commissions

In today’s world, it is almost expected that a truth commission will be introduced in the wake of conflict or a period of authoritarianism to try and consolidate a transition to democracy and peace. A truth commission generally understood – as per Priscilla Hayner – as a temporary state-sanctioned body that investigates a pattern of past abuse, engages ‘directly and broadly with the affected population, gathering information on their experiences’ and which aims to conclude with a public report.

The underlying idea is that societies need to confront and deal with unjust histories if they are to establish a qualitative break with that past. Proponents of modern truth commissions thus ‘look backwards’, not as interested historians, but as a way to ‘reach forwards.’ As Archbishop Desmond Tutu explained in his foreword to the South African Truth and Reconciliation Commission (TRC) report:

The other reason amnesia simply will not do is that the past refuses to lie down quietly. It has an uncanny habit of returning to haunt one … However painful the experience, the wounds of the past must not be allowed to fester. They must be opened. They must be cleansed. And balm must be poured on them, so they can heal. This is not to be obsessed with the past. It is to take care that the past is properly dealt with for the sake of the future.

Motivated by this desire to render the past ‘passed’ in the substantial sense of being ‘dead’ or ‘over and done with’, modern truth commissions dedicate most of their time to two activities: the holding of public hearings and production of a final report.

This is a relatively recent development. Early truth commissions did not hold public hearings and were largely fact-finding bodies. However, ever since the South African TRC of the 1990s, truth commissions have held hearings as a stage for various actors – victims, perpetrators, political parties, state institutions and so forth – to present their account of past wrongs. The underlying idea is that people will have a chance to speak and be heard, and thus regain their humanity; that a wider (and engaged) audience will bear witness to a new human rights-conscious regime; and the overview provided will feed into, and help legitimise, a final report. The latter in turn intended to record and acknowledge past wrongs and provide recommendations that can help to promote truth, justice and reconciliation.

However, while much hope is often placed, and much time and money expended, on truth commissions and their hearings and final reports, it is evident that these processes generally fall far short of ambitious goals and high expectations. But what explains this gap between aspiration and reality?

This is one of the questions that I address in a new book – Performances of Injustice: The politics of truth, justice and reconciliation in Kenya – which analyses several transitional justice mechanisms introduced following Kenya’s post-election violence of 2007/8 when over 1,000 people were killed and almost 700,000 were displaced.

This includes the establishment of the Truth, Justice and Reconciliation Commission (TJRC). Significantly, the Commission’s mandate recognised that, while the 2007/8 post-election violence was triggered by a disputed election, it was fuelled by more deep-rooted problems.  In turn, the Commission was tasked with investigating a wide array of injustices – from state repression and causes of political violence to perceptions of economic marginalisation and irregular land acquisition – between Kenya’s independence in 1963 and the end of the post-election violence in February 2008.

Established through an Act of Parliament in 2008, and operational from 2009 to 2013, the TJRC sought to meet its mandate, in large part, by collecting statements (with over 40,000 collected in total), holding public and women’s hearings in 35 locations across the country and adversely mentioned person (AMP) hearings in western and Nairobi, and publishing a substantial final report that runs to over 2,000 pages.

Despite such achievements, the Commission was soon mired in controversy with calls for the chairman – who was soon linked to three injustices that the Commission was meant to investigate – to resign, while the public hearings attracted little media attention, and the final report is yet to be discussed in parliament let alone implemented.

The Kenyan experience highlights a range of lessons and insights. This includes the fact – as recently outlined in a piece for The Conversation – that transitional justice mechanisms are not ‘tools’ that can be introduced in different contexts with the same effect. Instead, their success (or failure) rests on their design, approach and personnel – all of which are incredibly difficult to get right – but also on their evaluation and reception, and thus on their broader contexts, which commissions have little or no control over.

However, the lessons that can be drawn go beyond reception and context and extend to the inherent shortcomings of such an approach.

First, while victims appreciate a chance to speak and be heard, the majority clearly submitted statements or memoranda or provided testimony in the hope that they would be heard and that some action would be taken to redress the injustices described. As one woman explained after a women’s hearing in Nakuru, she was glad that she had spoken and how, having told her story, the Commission would ‘come in and help.’

To be fair, the TJRC’s founders were aware of the inadequacies of speaking, which is why they included ‘justice’ in the title and gave the Commission powers to recommend further investigations, prosecutions, lustration (or a ban from holding public office), reparations and institutional and constitutional reforms.

However, on the question of whether recommendations would be implemented, the Commission rather naively relied on the TJRC Act (2008), which stipulated that ‘recommendations shall be implemented.’ However, such legal provisions proved insufficient. Amidst general scepticism about the Commission’s work, parliament amended the TJRC Act in December 2013 to ensure that the report needed to be considered by the National Assembly – something that is yet to happen.

Moreover, to document and acknowledge the truth requires that one hears from both victims and perpetrators. However, the latter often have little motivation, and much to lose, from telling the truth. This was evident in Kenya where, during the AMP hearings I attended, where I heard little that was new and not a single admission of personal responsibility or guilt. Instead, testimonies were characterised by five discursive strands of responsibility denied: denial through a transfer of responsibility, denial through a questioning of sources, denial through amnesia, denial through a reinterpretation of events and an assertion of victimhood, and denial that events constituted a wrongdoing. However, while AMPs denied responsibility, none denied that injustices had occurred. As a result, while the hearings provided little clarity on how and why a series of reported events may have occurred, they simultaneously drew attention to, and recognised, past injustice. In this way, they provided a public enactment of impunity: Kenya’s history was replete with injustice, but AMPs were unwilling to shoulder any responsibility for it.

This ongoing culture of impunity points to another issue, which is that – for most victims – injustices clearly do not belong to the past but to the present and future. The loss of a person or income, for example, often constitutes a course that now seems beyond reach – from the hardship that accompanies the loss of a wage earner to the diminished opportunities that stem from a child’s extended absence from school. However, the past also persists in other ways, from the injustices that never ended, such as gross inequalities or corruption, to fears of repetition and experiences of new injustice.

Unfortunately, the idea that one can ‘look backwards to reach forwards’ downplays the complex ways in which the past actually persists, and possible futures infringe on the present. This is problematic since it can encourage a situation where small changes dampen demands for more substantive reform. At the same time, it can facilitate a politicised assertion of closure that excludes those who do not buy into the absence of the past, the newness of the present, or the desirability of imagined futures and provides a resource to those who seek to present such ‘difficult people’ as untrusting, unreasonable and unpatriotic.

This is not to say that truth commissions are useless and should never be considered. On the contrary, many view speaking as better than silence, while the commission’s report provides a historical overview of injustice in Kenya and a range of recommendations that activists and politicians are using to lobby for justice and reform.

However, when introduced, truth commissions should be more aware of the importance of persuasive performances and how their initial reception and longer-term impact is shaped by broader socio-economic, political and historic contexts. Truth commissions also need to adopt a more complex understanding of the ways in which the past persists, and possible futures infringe on the present and avoid easy assertions of closure.

Ultimately, such ambitious goals as truth, justice and reconciliation require not Freudian ‘talk therapy’, although catharsis and psycho-social support are often appreciated, but an ongoing political struggle, and substantive socio-economic and political change, which something like a truth commission can recommend, and sometimes contribute to, but cannot be expected to achieve.

This article was first published in the Review of African political Economy (ROAPE).

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The African Union and the ICC: One Rule for Kings, another for the Plebs

The African Union complains that the International Criminal Court is biased only when an African head of state stands accused.



The African Union and the ICC: One Rule for Kings, another for the Plebs

During the five-year-long proceedings at the International Criminal Court (ICC) against former Ugandan rebel commander Dominic Ongwen, there was not a peep from the Ugandan government about the ICC’s bias against Africans.

Uganda’s President Yoweri Museveni did not show any such restraint towards the ICC when he was the chief guest at the April 2013 inauguration of then newly elected Kenyan President Uhuru Kenyatta.

“I was one of those that supported the ICC because I abhor impunity. However, the usual opinionated and arrogant actors using their careless analysis have distorted the purpose of that institution,” Museveni said in his 9 April 2013 speech. The actors he made indirect reference to were unnamed Western countries.

Museveni accused those actors of using the ICC, “to install leaders of their choice in Africa and eliminate the ones they do not like.”

At the time Museveni spoke, Kenyatta and his deputy William Samoei Ruto were due to face trial at the ICC. The case against Kenyatta was terminated in March 2015 before trial hearings began. Ruto’s case was terminated in April 2016 after the prosecution had called its witnesses. In a majority decision, the judges said the case against Ruto and former journalist Joshua arap Sang had deteriorated so much that they could not determine Ruto’s and Sang’s innocence or guilt. The judges said the case deteriorated because of a campaign to intimidate and bribe witnesses.

No sense of irony

During the April 2013 inauguration of Kenyatta, Museveni exhibited no sense of irony when he accused unnamed actors of using the ICC to eliminate leaders they did not like. By the time Museveni was making his speech, his government had already debated and agreed to use the ICC as one way of “eliminating” its problems with the Lord’s Resistance Army (LRA) rebel group in northern Uganda. In December 2003 Uganda formally asked the ICC to investigate the atrocities committed in northern Uganda.

Following that formal request, Uganda shared with the ICC’s Office of the Prosecutor (OTP) several years’ worth of recordings of the government’s intercepts of LRA radio communications. Together with those recordings, the government also gave the OTP the contemporaneous notes made of the intercepts. On top of that, the government also gave the OTP a list of 15 LRA leaders it believed were responsible for the atrocities committed in northern Uganda.

All this emerged during the course of Ongwen’s trial at the ICC for his role in atrocities committed between 2002 and 2005 in northern Uganda. Ongwen, a former LRA commander, was convicted of 61 counts of war crimes and crimes against humanity in February this year and was sentenced to 25 years in prison in May. Ongwen is in the process of appealing against his conviction and sentence.

In his April 2013 speech, Museveni acknowledged that his government had cooperated with the ICC. “We only referred Joseph Kony of LRA to the ICC because he was operating outside Uganda. Otherwise, we would have handled him ourselves,” said Museveni. This statement is only partly true.

When in December 2003 Uganda formally requested the ICC to investigate the atrocities committed in northern Uganda, Kony was based in what is today South Sudan. But he was there with a small group of senior LRA commanders and other LRA members. During Ongwen’s trial, the court heard that by the time Uganda made its referral to the ICC, most of the LRA’s commanders and members had left the group’s rear bases in then southern Sudan and crossed the border back into northern Uganda. This is because Uganda had reached a deal with Sudan that allowed it to cross the border and attack the LRA’s rear bases. Uganda called this military offensive Operation Iron Fist.

African leaders protecting each other

The Ugandan government’s actions may seem contradictory but they fall well within the pattern African leaders have adopted when it comes to the ICC. Whenever there has been a case against an African president or deputy president at the ICC, this has been discussed at the African Union. As for ICC cases against other Africans, the African Union has not discussed them or passed resolutions on them, even if those cases involved former presidents or vice presidents. Despite its contradictory approach towards ICC matters, the African Union has not shied away from accusing the ICC of having an Africa bias.

Ever since, in July 2008, the OTP applied for an arrest warrant against then Sudanese President Omar al-Bashir in connection with the atrocities committed in Sudan’s western region of Darfur, the ICC has been on the agenda of the regular African Union meetings of presidents and prime ministers. ICC pre-trial judges eventually issued two arrest warrants against al-Bashir in March 2009 and July 2010.

African heads of state and government usually meet twice a year as the summit of the AU. Between 2009 and 2020, at each of those summits, they passed resolutions on the ICC or they reaffirmed past resolutions on the matter and directed a ministerial committee to follow up on those resolutions. The resolutions African leaders have passed at these summits have called for the termination or deferral of cases at the ICC implicating serving heads of state or their deputies.

Despite its contradictory approach towards ICC matters, the African Union has not shied away from accusing the ICC of having an Africa bias.

None of the resolutions has mentioned any of the other cases that have come before the ICC such as the one against Laurent Gbagbo, Ivory Coast’s former president, or the one against Jean-Pierre Bemba, a former vice-president and senator of the Democratic Republic of Congo. The ICC has concluded the cases against Gbagbo and Bemba, acquitting both of them.

The African Union has not been the only critic of the Africa-bias in case selection at the ICC. Academics, lawyers and members of civil society have all criticised or highlighted this bias. But the African Union has been the loudest critic. And what the African Union has said on the issue has often been summarised to mean Africa is against the ICC.

Presidents have immunity, ok?

But this paring-down a complicated issue has blurred the African Union’s two-track approach in its relationship with the ICC. Whenever a head of state such as Sudan’s Omar al Bashir is the target of an arrest warrant, the African Union is strident in its criticism of the court. After al-Bashir was toppled from power in April 2019, his arrest warrants ceased to be the subject of AU resolutions.

Instead, the AU has now turned its focus on the issue of the immunity of heads of state and other senior government officials. Under the Rome Statute, head of state does not have immunity if that person is charged with a crime under that Statute. What’s more, the ICC regularly communicates with member states when the court has been informed that a person for whom there is an outstanding arrest warrant is traveling to those member states.

This was the case with al-Bashir when he was Sudan’s president. Some countries chose to ignore the ICC’s communication. Others advised al-Bashir not to travel to their country and risk arrest. And some have argued they could not arrest al-Bashir because he was in their country to attend an international meeting they were hosting and that, under international customary law, al-Bashir enjoyed immunity for the purpose of the meeting. This is what South Africa and Jordan argued when the issue of immunity for heads of state was litigated before the ICC.

The most recent AU summit resolution on the ICC was issued in February 2020. In it, AU member states are called on to “oppose” the ICC Appeals Chamber judgement in a case Jordan had filed. The resolution said the decision by the ICC Appeals Chamber was, “at variance with the Rome Statute of the International Criminal Court, customary international law and the AU Common Position.”

The judgement referred to in the AU resolution dealt with the question of whether Jordan, as an ICC member, should have arrested al-Bashir when he went to Jordan in March 2017 to attend a regular summit of the League of Arab States. The ICC Appeals Chambers was unanimous that Jordan should have arrested al-Bashir when he visited that country.

After al-Bashir was toppled from power in April 2019, his arrest warrants ceased to be the subject of AU resolutions.

The five-judge panel also agreed that customary international law gave heads of state immunity in certain circumstances such as immunity from another country’s jurisdiction. But the Appeals Chamber concluded that such immunity did not extend to executing ICC arrest warrants.

The AU’s call to oppose the ICC Appeals Chamber’s May 2019 judgement on Jordan ignores one thing: the AU made submissions to the Appeals Chamber before it reached its judgement. The AU made its submissions at the invitation of the Appeals Chamber. The AU’s chief lawyer, Namira Negm, led the team that argued its submission during the hearings on the Jordan case that were held between 10 and 14 September 2018.

In the February 2020 resolution, the AU also asked African members of the ICC to raise before the court’s membership issues that concern African states such as “the rights of the accused and the immunities of Heads of State and Government and other senior officials.” The resolution further asked African members to “propose necessary amendments to the Rome Statute within the ambit of the ongoing discussions on the reform of the ICC,” by its membership.

Making peace without al Bashir

One reason the AU gave against effecting the arrest warrants against al Bashir was that he was key to bringing peace to Sudan’s western region of Darfur. The AU was involved in negotiations for peace in Darfur, a process that has been on and off over the years. Ironically, once al-Bashir was removed from power in April 2019, the transitional authorities who replaced him were able to initiate and conclude peace deals on the Darfur conflict last year.

In August this year, the Cabinet in Sudan resolved to hand over al Bashir to the ICC in execution of the two arrest warrants against him. This is a significant step since the transitional government took office in 2019 and indicated that Sudanese authorities were considering reversing the previous position that al Bashir would not be handed over to the ICC. The next step is for the overall transitional authority in Sudan, the Sovereignty Council, to discuss the Cabinet decision and decide whether to endorse it.

Ignoring victims

The criticism levelled at the ICC that it is biased against Africa often ignores a key issue: the victims of conflict on the continent. When a conflict is at its peak, victims will receive emergency aid. The more prolonged a conflict becomes, the less aid victims receive. Rarely will such aid be from the victims’ government. And often that foreign-donated aid is all that victims of conflict can expect.

The perpetrators of the conflict that made them victims are rarely held to account for the atrocities they committed. Yet, victims live with the consequences of those atrocities for the rest of their lives. This was the constant refrain of the victims of the northern Uganda conflict who testified during the Ongwen trial.

The criticism levelled at the ICC that it is biased against Africa often ignores a key issue: the victims of conflict on the continent.

Women testified about their families rejecting them because they returned home with children they gave birth to while with the LRA. One person testified about having to change schools several times because teachers and students abused him when they found out he had been in the LRA. Another person testified about wanting to resume his education that was interrupted when he was abducted by the LRA but he did not earn enough to do that and also educate his children. So he has focused on educating his children.

These and other victim stories are rarely spoken about whenever the ICC is criticised of having an African bias.

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Uganda Mailo Land Reforms: Disentangling Landlord From Tenant

Debate in Uganda has recently been dominated by the question of reform of the mailo land tenure system. Will reform put an end to the rampant land evictions?



Uganda Mailo Land Reforms: Disentangling Landlord From Tenant

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. 

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