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ABSTRACT
Constitutional provisions for devolution and land reform sought to address local land grievances and decentralize land administration in ways that would prevent conflict. The article argues that partial implementation of this agenda has intensified local grievances in a context of enduring national control over land administration. Local grievances have intensified as devolution has empowered majority communities and stoked their attachment to homelands, while the constitutional recognition of ancestral land rights has provided them with a legal basis for their claims. The failed decentralization of land administration has left national institutions as the focus of these claims. We examine whether these trends affected the use of land as a political resource and the rhetoric of land grievance during the 2017 elections. Using regression analysis, we find that titles were used patrimonially in the presidential elections, with titles targeted at Kikuyu minorities outside of their homelands. Our qualitative analysis suggests that the rhetoric of land grievances was limited in gubernatorial campaigns, suggesting that continued centralization in land administration retains the focus of land issues at the national level. Overall, our findings suggest that the partial implementation of the Constitution has exacerbated the conditions that led to land-based conflict in the past.
Acknowledgements
We are grateful to all interviewees, who generously shared their time and knowledge with us. We thank Leonard Wanyama for excellent research assistance during field work and Alberto Amador for the help with newspaper analysis, our colleagues at Trinity College Dublin and the Quality of Government Institute, University of Gothenburg, the editors of the special issue and JEAS’s anonymous reviewers for their assistance in bringing this manuscript to fruition.
Disclosure statement
No potential conflict of interest was reported by the authors.
Notes
1 Hornsby, Kenya, 787.
2 Manji, “Politics of Land”; Wily, “Community Land Act”. Public opinion data from 2002 to 4 shows that citizens in Kenya believed that land more than any other factor contributed to violent conflict: 57% in Kenya, compared to 16% in other surveyed countries (authors’ calculations based on Afrobarometer data, round 2, 2002–2004).
3 Burbidge, Shadow of Kenyan Democracy; Branch and Cheeseman, “Decentralization”; D’Arcy and Cornell, “Devolution and Corruption”.
4 Boone, Property and Property Rights; Kanyinga, “Legacy of the White Highlands”.
5 Kanyinga, “Legacy of the White Highlands,” 328.
6 For example, Talai, Pokot, Turkana and Elgon Maasai/Sabaot (TJRC, Volume II B, 187–193).
7 For example, to earn money for tax, the Kikuyu migrated to the White Highlands in search of wage labor (Boone, “Land Conflict,” 79; Kanyinga, “Legacy of the White Highlands,” 327–328).
8 Boone, Property and Property Rights.
9 TJRC, Volume II B, 214.
10 Ibid., 213–214.
11 Ibid., 215.
12 Onoma, Politics of Property Rights, 184–190; TJRC, Volume II B, 215.
13 Boone, “Property and Constitutional Order,” 564.
14 Kanyinga, “Legacy of the White Highlands”.
15 Reuters, “Insight – Separatist Storm Brewing on Kenya’s Coast.” 23 July 2012. https://uk.reuters.com/article/uk-kenya-coast-mrc/insight-separatist-storm-brewing-on-kenyas-coast-idUKBRE86M0H820120723; Willis and Gona, “Pwani C Kenya?”.
16 Kagwanja, “Facing Mount Kenya”.
17 Klaus and Mitchel, “Land Grievances”; Republic of Kenya, Commission of Inquiry into the Post/Election Violence, 30–33.
18 Cornell and D’Arcy, “Plus ça Change”; Cheeseman, Lynch, and Willis, “Decentralization in Kenya”.
19 Akoth, “Challenges of Nationhood,” 15.
20 D’Arcy and Cornell, “Devolution and Corruption in Kenya”.
21 Cornell and D’Arcy, “Plus ça Change”.
22 Daily Nation, “Maasai Leaders Want NLC to Investigate Lost Ancestral Land.” 6 August 2015. https://www.nation.co.ke/counties/narok/Maasai-leaders-ancestral-land/1183318-2821100-seswmiz/index.html%20August%206.
23 Interview 18, Officer, Kenya Land Alliance, Nakuru, June 2017.
24 Boone et al., “Land Law Reform”.
25 Intreview 20, Senior NLC official, Nairobi, June 2017.
26 The Standard, “Rift Valley Counties on the Brink of Chaos as Maasai Lay Claim to Land.” 26 September 2015. https://www.standardmedia.co.ke/article/2000177717/rift-valley-counties-on-the-brink-of-chaos-as-maasai-lay-claim-to-land.
27 Wily, “Fate of Res Communis,” 118.
28 Interview 13, Senior Official, Office of the Chief Justice, Supreme Court, Nairobi, June 2017.
29 Interview 18, Officer, Kenya Land Alliance, Nakuru, June 2017.
30 In some counties, such as in Nakuru, Kalenjin and Masaai minorities claim ancestral rights to the land. In these cases, titling has been seen as a threat to which these minorities have responded sometimes violently. The Star, “Land Disputes Turn Violent in Naivasha.” 29 February 2016. https://www.nation.co.ke/counties/nakuru/Leaders-feel-the-heat-as-land-disputes-rise-in-Naivasha/1183314-3096390-15960dbz/index.html. Other examples of minorities claiming ancestral rights include the Endorois community who were evicted from their ancestral lands in the 1970s in order to establish the Lake Bogoria Game Reserve or the Mau Ogiek community from Mau Forest, each of which were adjudicated by a supra-national adjudication authority who decided in favor of the indigenous people.
31 Kanyinga, Redistribution from Above.
32 Interview 20, NLC official, Nairobi, June 2017.
33 Judiciary of Kenya. 2017. State of the Judiciary and the Administration of Justice 2016–17. Nairobi, 46.
34 Ibid., 25.
35 Ibid., 123.
36 Interview 13, Senior Official, Office of the Chief Justice, Supreme Court, Nairobi, June 2017, June 2017. It is difficult to assess precisely the scale of and speed of land disputes cases prior to the establishment of the ELC as these cases were not treated as a distinct category. However, evidence on the pace of resolution in different courts in the judicial system suggests that the ELC lags behind others: it had the second lowest level of resolved cases as a proportion of all new cases filed in the last four years according to the Judiciary of Kenya’s report “State of the Judiciary,” 25.
37 In November 2017 there were 111 cases of historical land injustices, registered by the NLC. Capital News, “NLC Wants to Resolve Land Injustices ‘Once and for All’.” 3 November 2017. https://www.capitalfm.co.ke/news/2017/11/nlc-wants-resolve-land-injustices.
38 Klopp, “Pilfering the Public”; Southall, “The Ndungu Report”.
39 Interviews 17, Researcher, Katiba Institute (an organization, which reviews the implementation of the 2010 Constitution), Nairobi, June 2017; Interview 18, Officer, Kenya Land Alliance, Nakuru, June 2017. The wrangling between the MoL and NLC is also well documented in Bassett, “Challenge of Reforming Land Governance”; Boone et al., “Land Politics”; Klopp and Lumumba, “Reform and Counter-Reform”.
40 Boone et al., “Land Politics”; Klopp and Lumumba, “Reform and Counter-Reform”.
41 Klopp, “Pilfering the Public”.
42 Republic of Kenya, Commission of Inquiry into the Illegal/Irregular Allocation, 83, as quoted in Southall, “The Ndungu Report,” 147.
43 Southall, “The Ndungu Report,” 143.
44 Boone, “Politically Allocated Land Rights”.
45 Business Daily, “Digital Title Deed Centre Launched.” 11 February 2015. https://www.businessdailyafrica.com/Digital-title-deed-centre-launched/-/539546/2621024/-/ifrv8jz/-/index.html.
46 Jubilee, Continuing Kenya’s Transformation, 58. http://deputypresident.go.ke/images/jpmanifesto2017.pdf.
47 The Standard, “Title Deeds will no Longer be a Campaign Tool, President Uhuru Kenyatta Tells Electorate.” 28 February 2015. https://www.standardmedia.co.ke/article/2000153187/title-deeds-will-no-longer-be-a-campaign-tool-president-uhuru-kenyatta-tells-electorate.
48 See, for example, Daily Nation, “11,000 Set to get Waitiki Land Titles.” 22 December 2015. https://www.nation.co.ke/news/Thousands-to-get-Waitiki-land-titles-/1056-3005638-11n2vka/index.html; The Star, “MP Wamalwa Slams Uhuru over Trans Nzonia Title Dee Project.” 9 June 2017. https://www.the-star.co.ke/news/2017/06/09/mp-wamalwa-slams-uhuru-over-trans-nzoia-title-deeds-project_c1577313; Daily Nation, “Jubilee has Issued 3m Titles, Says President Uhuru Kenyatta.” 28 June 2017. https://www.nation.co.ke/news/politics/Jubilee-has-issued-3m-titles--says-Uhuru-Kenyatta/1064-3990196-i08ghoz/index.html.
49 Daily Nation, “President Uhuru Kenyatta issues title deed to Kibra Nubians.” 2 June 2017. https://www.nation.co.ke/news/Uhuru-issues-title-deed-to-Kibra-Nubians/1056-3953204-9jfwvk/index.html.
50 This figure was calculated using data on population per county and main community share of population from Weisman, Kiteme, and Mwangi, Socio-Economic, 32, 56.
51 Mueller, “Political Economy”; Branch and Cheeseman, “Democratization”; Wrong, Our Turn to Eat.
52 Weisman et al., Socio-Economic Atlas.
53 Ibid., 116.
54 Horowitz, “The Ethnic Logic”.
55 Kenya Today, “Official Election”.
56 reports estimates for Largest minority: Kamba, Luo, Luhya and “Other Ethnic Minorities”, which suggest that counties where these ethnicities are the largest minority do not receive on average more titles than other counties.
57 Kanyinga, “Legacy of the White Highlands”; Boone, “Politically Allocated Land Rights”; Lynch, I Say to You.
58 Further research is needed to investigate whether land grievances played a significant role in the campaigns of Members of County Assemblies (MCAs), a task which is beyond the scope of this paper.
59 The Star, “Governor Mandago Kicks 3,000 Street Children and Beggars out of Eldoret.” 15 December 2017. https://www.the-star.co.ke/news/2017/12/15/governor-mandago-kicks-3000-street-children-and-beggars-out-of-eldoret_c1684846.
60 With county governments having no meaningful role in lease renewal, local politicians have limited ability to deliver on these promises. Daily Nation, “Blow for Locals as Tea Firms get back Land Leases for Land.” 5 September 2017. https://www.nation.co.ke/counties/Blow-for-locals-as-tea-firms-get-back-land-leases-for-land/1107872-4084110-4h9ow8/index.html.
61 Fox, “Maasai Group Ranches”; The Times, “Outrage at Odinga’s Threat to ‘Rationalize’ White Ranches in Kenya.” 13 June 2017. https://www.thetimes.co.uk/article/outrage-at-odinga-s-threat-to-rationalise-white-ranches-in-kenya-ncm78b56m; BBC, “Are Kenya Ranch Invasions Driven by Drought or Politics?” 4 February 2017. https://www.bbc.com/news/world-africa-38866389; The Guardian, “As Drought Sweeps Kenya, Herders Invade Farms and Old Wounds are Reopened.” 19 March 2017. https://www.theguardian.com/world/2017/mar/19/kenya-range-war-reopens-colonial-wounds; The Star, “Is Rebellion the Next Phase of Laikipia Violence?” 5 June 2017. https://www.the-star.co.ke/news/2017/06/05/is-rebellion-the-next-phase-of-laikipia-violence_c1574344.
62 Interview 13, Senior Official, Office of the Chief Justice, Supreme Court, Nairobi, June 2017.
63 The Star, “Nandi Blocks Lease Extension on Tea Plantations, Sang Says.” 17 March 2018. https://www.the-star.co.ke/news/2018/03/17/nandi-blocks-lease-extension-on-tea-plantations-sang-says_c1731199.
64 Jubilee, Continuing Kenya’s Transformation, 58.
65 A typical example is handing title deed to Kibra Nubians at State House on 2 June 2017.
66 Daily Nation, “11,000 Set to get Waitiki Land Titles.” 22 December 2015, https://www.nation.co.ke/news/Thousands-to-get-Waitiki-land-titles-/1056-3005638-11n2vka/index.html; Daily Nation, “President Kenyatta’s family gives 2000 acres to Taita Taveta squatters.” 21 January 2016. https://www.nation.co.ke/news/Kenyatta-family-land-squatters/1056-3042742-10s5xsx/index.html.
67 Daily Nation, “Nasa’s Manifesto.” 27 June 2017. https://www.nation.co.ke/news/politics/nasa-manifesto/1064-3990154-82ht34/index.html.
68 Daily Nation, “Raila to Face Probe over Claims of Divisive Remarks – Nkaissery.” 18 June 2017. https://www.nation.co.ke/news/Raila-to-face-probe-over-claims-of-divisive-remarks/1056-3976522-fnjgop/index.html.
69 D’Arcy and Cornell, “Devolution and Corruption”; Kelsall, “Going with the Grain”; van de Walle, “African Economies”.