Disputed claims to Land and Post-Election Violence in Kenya
Introduction
Since a political agreement between Mwai Kibaki and Raila Odinga was signed in Nairobi on the 28th February, the international media has largely forgotten about Kenya. However, the agreement and the establishment of a coalition government represent only the start of a long process of nationwide healing and reconstruction that must take place if mass violence is not to be repeated.
While violence has significantly reduced since the agreement was signed, killings have continued through March. In Laikipia District, a patchwork quilt of farms, ranches, and wildlife conservancies inhabited by a wide range of ethnic groups, tensions remain high and more than two thousand people became newly displaced in mid-March. Around Mt Elgon to the West of the country, the army launched a huge offensive against suspected members of the Sabaot Lands Defence Force (SLDF), who have killed hundreds of people in recent months due to grievances over land tenure and forcible resettlement. Though the SLDF's violence pre-dates the elections, they were alleged utilized by opposition politicians to intimidate and even kill the political competition. The use of helicopter attacks on the slopes of the mountain has prompted criticism of the government’s tactics, and journalists have been barred from the area. Nevertheless, the Daily Nation published articles based on interviews with army personnel detailing the murder of local people, whose bodies were then dumped in the forest by the army. On April 4th, Human Rights Watch (in collaboration with Mwatikho and Western Kenya-Human Rights Watch) issued a press release stating that the Kenyan army had tortured hundreds, and killed dozens of people during the operation. One of the alleged 'spiritual leaders' of the SLDF was arrested, amidst complaints from some local people that as an elder, he would be a key witness regarding the contested land claims at the basis of the SLDF violence. When I spoke to Ministry of Lands officials in November 2007, they said that the land disputes were not being addressed by them, as it had become purely a security issue.
These incidents highlight the fact that the violence is not just ‘political’, or ‘ethnic’. Issues related to land rights are one of the root causes of conflict in Kenya, and the country is unlikely to be free from tension or violence until these are addressed. The first priority of the government should be the land and shelter problems of the displaced population, which is estimated at more than half a million people. In the long run, much will depend on a more fundamental overhaul of the land tenure and land administration systems. Under the political agreement, negotiations over ‘historical injustices’ are due to take place later in the year. Despite the risk that these will be politicized and difficult, it is vital that the international community and Kenyan civil society works to ensure that the systemic land-related problems are addressed during these negotiations.
Background: the links between access to land and violence in Kenya
The violence which followed the disputed results of the December 27 elections surprised the international community in its breadth and the speed at which it spread. However, the economic and social tensions underpinning the violence have been evident for decades. The country has seen killings before during previous elections in 1992 and 1997, when the Kikuyu were targeted as perceived enemies of the Moi regime. The distribution of wealth in Kenya is highly unequal. Crime, a symptom of unemployment, unmanaged urbanization, and political frustrations, has been rampant since the late ‘80s. Violence over land disputes has occurred sporadically in different parts of the country, and doubts over the worthiness of land titles almost caused major economic instability a few years ago.
What is now known as Kenya was the scene of migrations, territorial expansions and wars before the arrival of the British. Kenya is a diverse place, encompassing primary rainforest, savannah, coastal and desert ecosystems, and some communities such as the Maasai moved far and wide in their efforts to establish transhumant herding routes. Some 200 years ago, the Uasin Gishu Maasai were vanquished and scattered by fighting between Maasai groups. Further migrations occurred during the colonial era, when some communities were forced to move by the authorities. Some 11,000 Maasai were displaced from the central Rift Valley to Laikipia in 1904, and their land converted to 48 white settler landholdings. In 1911, they signed another ‘agreement’ in which they vacated Laikipia to make room for white settlers, but the Maasai attempted to sue the government in 1913. Laikipia remains contested land today. Land held under customary tenure by Kenyan communities was treated as ‘vacant’ by the colonial regime and appropriated for ranching and farming by white settlers. Even when the colonial government created ‘native reserves,’ land remained under the control of the Crown and hence vulnerable to alienation by the state at any time. This situation has been well-documented by Kenyan scholars such as Professor Okoth-Ogendo, a leading land law expert.
Post-independence
Under the terms of the independence agreement negotiated at Lancaster House, the administration of the first President Jomo Kenyatta (1963-78) pledged to respect ‘private property’, without regard to the mode of acquisition of land. Rather than returning the areas to customary tenure, the government accepted a ‘willing buyer, willing seller’ approach to the question of white settler farms and ranches. Former farm workers, most of them Kikuyu, took advantage of the land-buying schemes offered by President Kenyatta to purchase plots in areas such as Uasin Gishu, Nakuru, Trans Mara, Trans Nzoia, Kericho and Nandi, and villages with Kikuyu names sprung up across the Rift Valley. These areas remain a focus of discontent today, and many have been forcibly renamed by non-Kikuyu locals, following the violence.
Like the colonial Governor before him, the president held great powers over land distribution, with few checks and balances. Land which has not been registered and titled – in other words, all land owned under custom - remains the private property of the government, and pastoralist land supposedly held ‘in trust’ for local communities (known in Kenya as Trustland) is in practice treated as State land, which can be alienated without reference to adequate definitions of the public interest.
Land has long been part of the political patronage system, benefiting the elite. Since President Kenyatta’s time, poor peasant farmers, thousands of whom had been labourers on settler farms for decades, have sought land in new parts of the country, due to population pressure. The smallholder farmer population shifted down the ecological gradient into environmentally fragile drylands, opening up new conflicts and tensions with agro-pastoralist communities that customarily inhabited these areas and grazed livestock in what became enclosed farmland. In the 1960’s and ‘70s, the state bought land from settlers in Rift Valley Province, which was then made available to some of these migrants -- many of them Kikuyu -- rather than to the groups which considered themselves the original customary inhabitants. Government resettlement schemes were affected by corruption, leading to further inequality in land holdings. More generally, corruption became entrenched at all levels of the surveying and cadastral services, casting doubt on the validity of titles and creating serious land tenure insecurity which persist today.
Official policy has always been to do away eventually with customary tenure, and to replace it with a freehold title system. This policy was formalised in the well-known Swynnerton Plan of 1954. This has left many communities, particularly pastoral groups in the Rift Valley, feeling that land customarily held “in common” by members of their ethnic group was vulnerable to alienation. Indeed, the Maasai have seen communal pasture land converted to freehold under the ‘group ranch’ system, and sold by Maasai elders to smallholders from Central Province, including thousands of Kikuyus who were not included in resettlement schemes. There is also evidence to show that those who had customarily benefitted from user rights or other rights associated with the land have lost out as a result of individualization of tenure. Women are particularly affected.
Violence over land and Multiparty Elections
Multiparty elections were introduced in 1992. Daniel arap Moi, who had assumed the Presidency in 1978, has his home and powerbase in the Rift Valley. He and his KANU allies turned the Kikuyu into scapegoats, and organised violence against them in ethnically-mixed areas in order to displace potential opposition voters. Wealthy Kikuyu businessmen dominated the economy from their offices in Nairobi, but it was poor Kikuyu smallholders living in the Rift valley who bore the brunt of discontent, spurred which was organized to varying degrees by members of the administration. Some 1,500 people died in 1992.
Violence occurred again following incitement by KANU politicians during the 1997 elections, and hundreds of thousands of people, most of them Kikuyu, were forced from their homes. However, little was done to find long-term solutions to the displacement problem. The Akiwumi Commission, named after the magistrate who chaired it, recommended that the role of senior administrative and KANU political figures in planning the killings be investigated. Those under suspicion included the then-Trade and Industry Minister Nicholas Biwott and the Minister in the Office of the President, Julius Sunkuli.
In the run-up to the 2002 elections, Moi gave his blessing to Kenyatta’s son, Uhuru, to run for President on the KANU ticket. The fact that Uhuru is a Kikuyu led to new KANU links to the Mungiki sect, a gang-like organization which claims to be inspired by traditional Kikuyu beliefs. The Mungiki, which started out as a social and religious movement,, took on increasingly mafia-like tendencies and used intimidation to control sections of the informal economy. Thankfully, KANU leaders resisted the temptation to use violence following the electoral victory of the National Rainbow Coalition (NARC), headed by Mwai Kibaki. NARC, which was composed of several political groupings including that led by Raila Odinga, had come into power on an anti-corruption platform and had pledged to clean-up the political landscape. Nevertheless, the alleged perpetrators of violence in 1992 and 1997 were not prosecuted, and some were incorporated into the NARC government. NARC also failed to adequately provide for those who had been displaced in political violence, many of whom continued to live in terrible conditions. In 2003, the government stated its intention to identify land for settlement of victims who were unwilling to return to their stolen lands. This was never achieved. Meanwhile, the Mungiki and other gangs such as the (ethnically Luo) ‘Taliban’ ran the slums of Nairobi through intimidation and sporadically engaged in violent clashes between themselves, or with police.
Management of land issues under the Kibaki administration
Kibaki’s government did commission an inquiry into illegal allocation of land, known as the ‘Ndung’u’ Commission’, which recommended that ultimate responsibility for land rest with a National Land Commission, rather than the president, and that a review of land titles be initiated, due to the huge number of irregular or illegal deeds in existence. The findings of the Commission were largely welcomed by Kenyan land specialists. However, as is often the case in Kenya, most of the report’s recommendations were ignored. While the fundamental and systemic aspects of the land problems identified by the Commission’s report have been left to fester, evictions of communities from ‘gazetted’ (protected) forest areas such as Likia, Mau Forest, Mt. Elgon Forest, Mt. Kenya Forest and Eastern Mau Forest have been implemented with excess force and without resettlement of many of those evicted. In some cases, evictions exacerbated local ethnic and political tensions. Resettlement schemes in places such as Mount Elgon made the situation worse, due to corrupt officials offering plots to non-beneficiary groups in exchange for bribes, land-grabbing by officials, exclusion of some ethnic groups from the process, lack of consultation, and poorly-managed evictions of customary occupants of lands earmarked for settlement schemes. Prior to the 2008 violence, groups such as the Sabaot Lands Defence Force (SLDF) killed over 150 people and displaced tens of thousands around Mount Elgon. The SLDF, made up of members of the Sabaot ethnic group, say that they want to reclaim land alienated during the colonial period from local communities in Trans-Nzoia, though in practice their attacks have often seemed indiscriminate. As mentioned above, the military embarked on a violent large-scale operation against the SLDF in March 2008.
The worst of the recent violence centres predominantly on multi-ethnic areas in the Rift Valley. where Raila Odinga’s Orange Democratic Movement (ODM) campaign sought to capitalise on strong support for ‘Majimbo’ (as it did in other areas, such as North-East Province). Majimbo is a decades-old concept which can be interpreted in different ways. A liberal interpretation sees it as a type of local decentralized governance, albeit with a ‘communal’ or ethnic foundation. However, an extreme form of majimbo would see people forced to return to their ‘areas of origin’, although this is unconstitutional: the Kenyan constitution provides all Kenyans with the right to settle in a place of their choosing.
Raila Odinga’s ODM did not specify what form Majimbo might take under their administration. In the aftermath of the disputed polls, political opportunists or ‘conflict entrepreneurs’ have taken advantage of this ambiguity to mobilise violence, ostensibly in protest against electoral fraud, but in reality in pursuit of an extremist form of Majimbo.
What Now?
Some three weeks after the political deal was signed, the government pledged to release plans for resettlement of IDPs, with a reminder that, “all Kenyans have a right to settle, buy property, travel, own land and engage in income generating activities in any part of the country despite of where they come from or their ethnic background.” Both Raila Odinga and Mwai Kibaki were due to visit IDPs in the Rift Valley in the last week of March, but it seems that the visit didn't happen. Both leaders were occupied with negotiations over cabinet posts, which threatened a political stalemate in Nairobi. A Kshs 31 billion (almost $600 million) national Reconciliation and Emergency Recovery strategy has been developed, which apparently includes plans to resettle IDPs.
Meanwhile in Mt Elgon region, the security forces use the usual tactics, which we have already seen used against the Mungiki gang in the slums of Nairobi - indiscriminate violence. One wonders when the government will realise that this approach is counter-productive, and will only further radicalise local people. Initially, most local people are likely to have opposed the SLDF's use of violence. Now, with the army allegedly torturing and killing at will, the violence committed by the SLDF will seem less odious. Meanwhile, the land issues remain unresolved.
But what of the substantial issues which have been outstanding for decades?
A national land policy, drafted in 2006, has yet to be tabled in parliament. The policy, which is seen by many as a progressive document responding to gender inequalities as well as protections for those using land under communal tenure systems, calls for compensation and reparation for historical injustices.
Under the political agreement, land and other ‘historical grievances’ will be discussed over the coming months. Experience suggests however that some politicians will be use the land issue to leverage more influence at the national level, through manipulating local constituencies. There is a risk that debate over the legal basis and ethical implications of historically-documented transfer and appropriation of land will give way to emotional and simplistic sloganeering. Land experts and other advisors supporting the process (including any representatives of the AU and Kenya’s international donors) must do everything in their power to maintain attention on ways to implement the findings of the Ndung’u’ Commission and the draft land policy. Some large-scale redistribution of land may be necessary, though this will of course involve many risks. Those who have been displaced must be given security and other guarantees necessary for them to reclaim their homes and farms, or must be resettled and compensated by the government for their lost income over the past months. It is also vital that Kenya establishes a robust system of procedures, checks and balances, as this will help in the long term to guarantee more equitable access to land and land-use classification.
While the land question is only one of a range of difficult issues that Kenya will seek to address, it is a key element of ‘good governance’, and a fundamental part of the current economic and political inequalities which have contributed to mass violence. If further bloodshed is to be avoided, the international community must help Kenya to manage the land issue.
Note: Thanks to Debbie Nightingale and Jeremy Lind for their incisive comments on an earlier version of this text.
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