Land Reform in Kenya

It is hard to get lost in London nowadays. GPS can tell you what side of the road you are on. If you miss it come to Kibera and I will get you lost within 15 minutes. Another place where you can easily get lost in Kenya is anywhere flat in Nyanza Province. This is what happened to me while trying to walk from Lwak village to Kamito in Asembo. I had two hours to kill before I needed to be in Kamito and although the boda boda drivers couldn’t understand what I was doing I turned down their invitations to join them on the back of their bike in favour of the well-trodden path.

When you get off the road, Nyanza is a maze of millions of one acre farms all interconnected with non-sequitur paths and hedgerows; a washing place here, a thatched hut there and every so often the moo of a cow that ambushes you from behind. When you can see your destination in the distance you have a hope of reaching it, even though you might well be put off course by a surprise swamp or a ploughed field which is keen not to be disturbed. When it is flat you have no hope.  Even though they were not used to seeing an odiero wandering around shambas asking for directions, there was no element of hostility from the Luo’s who plot by plot guided me to Kamito. For my part I was not used to asking which tree or plume of smoke I should aim for as my next landmark – something they are probably quite accustomed to. 

The muddle of the shambas is intrinsic to Luo and Kenyan culture. There is a strong sense of ancestral inheritance of the land but that does not mean it can’t be shared in many ways. There are no barbed wire fences to prohibit trespassers and unless you have grown up knowing there is no way of telling each family’s plot from another.  Each farmer will share and barter what he has to his advantage – land is for grazing one year in place of land for arable the next. Work animals and labour are rented out when they are in excess and hired the next season when in high demand. This breeds a strong sense of community and interdependence. 

However, underneath the surface a lack of trust and a fear of letting go means farmers such as these are facing increasing levels of poverty. Most farmers in Nyanza are subsistence farmers who generate extra income by selling excess harvest and working on neighbouring farms in peak season. Therefore for many their only tangible asset is their land, yet often there is nothing on paper that gives them the right to that land. In traditional Luo culture, a chief or ‘weg lowo’ would act as patron to large areas of land that had diverse soil types and terrains and he would lease it out to families who wanted to specialise in working that kind of terrain – often the terms for the these leases could be in the form of livestock or labour. In the 1950’s after many centuries of long term leases an unpaid adjudication committee was set up to register land to one individual or another and naturally the winners in such a system were the ones who could provide the biggest informal payment to the committee. As a result many farmers decided not to alert land transactions to the committee and just conducted deals amongst themselves. After a short time the registered title deeds fell out of sync with local understanding of who owned what land.

As Kenya modernised, this disparity created more and more opportunities for exploitation. People used the committees to acquire title deeds for land which they were not occupying and blamed the disorganisation of the system if there were any complaints. When there weren’t complaints these title deeds could be used as collateral on a loan, or even sold to multiple buyers at once in front of different members of the committees. By the mid 1980’s, when corruption in Kenya was at a peak, very few subsistence farmers trusted the title deed system at all, and over time there was a campaign for recognition of ‘customary ownership’ of land, enabling the potential for complications to increase further.  By the end of 2012, up to 75 per cent of landin Kenya was unregistered 

Although not fool-proof, the safest way of holding rights over inherited land is to occupy it. This does not just mean farm it, but also live on it and bury your dead in it. In traditional culture, each son must build his own hut in the compound while still a teenager, and then when he marries he should set up his own compound outside the perimeter of his father’s space. Within two generations, 25 houses may have been built around the original one, constituting a mini village. The maze I stumbled upon was effectively several of these mini villages which over time have merged together to form a mega shamba complex. This could be OK if all the gardens and small fields could be used efficiently, but often the open space is actually a dedicated burial ground for the ancestors.

The consequence of this over-population of the rural areas of Kenya has led to massive migration to Nairobi (I havewritten before about why they come to Nairobi instead of other cities). However, this is not helping to develop Nyanza which still lags far behind most other provinces. For example, Nyanza is the province with the highestprevalence of HIV, domestic violence, and child mortality, and 63% of the population are living in poverty.

Nyanza is not famous for having the most productive land in Kenya, but if farmed efficiently it has potential to feed the whole region.  It is not possible to farm the land efficiently if it is becoming more and more congested with huts and graveyards. People need to congest their living quarters into centralised areas (such as towns) and common burial grounds need to be allocated at affordable prices. As part of co-operatives or larger private businesses, workers commute daily to work in the fields from this urbanised location, which in itself becomes an opportunity for new businesses, services and general economic development. Meanwhile the land can provide anywhere between 5 – 20 times the crop it yielded when farmed inefficiently with poor resources. Of course, this is not a new argument and I am no expert in it so I will not discuss it further, but anyone in the ‘peasant romantic’ wing should read this blog by Duncan Green and consider that the land reform I am referring to is a model that was adopted across the industrialised world, starting with Sweden in the 1700’s. (see)

For this land reform to occur, title deeds will need to be exchanged, and/or people will need to be happy to not live on and bury their dead in the land that they own. This is something that was recognised in Kenya’s vision 2030, completed in 2008, and elevated in the new constitution of 2010. It was for this reason that the constitution stipulated the establishment of a strong independent commission that would wipe the slate clean on land rights and clarify the rights of land-owners. (http://www.klrc.go.ke/index.php/constitution-of-kenya/117-chapter-five-land-and-environment/part-1-land/234-67-national-land-commission) Its independence was a vital attribute as land grabbing had been clearly associated with the politicians who were closest to the ministry of lands and it was seen that ending the corruption could not be done from the inside.

This suggestion was supported a few weeks ago when an independent audit was called without warning for the Ministry of Lands. The independent audit found no less than one million files that had mysteriously disappeared while on the same day staff from the ministry were caught and arrested for sneaking title deeds out of the building. But to be strong is just as vital an attribute. The National Land Commission has pledged to create three million title deeds for Kenyans in the next five years, and these title deeds must be undisputed and unduplicated.  

The NLC has said that to be strong it needs a budget of Sh14.8 billion, but instead it was given just Sh 779 million. For this it has to rely on the Ministry of Lands that administers the budget. Despite considering themselves their ‘mother ministry’, Ministry of Lands insists that the NLC should no longer operate within Ardhi House and should not be overstepping its mandate but issuing title deeds but should exist to offer advice to the ministry  and offer other roles delegated by the government. This has led to a stand-off and increasing delays in the issuance of title deeds.

The recent war between the National Land Commission and the Ministry of Lands (above) shows that this administration does not want the NLC to be strong, and in effect this means that they are less interested in pursuing Vision 2030 than increasing their own power. To make this point clearer, the president paid a visit to the ministry in what was slated as a sign of solidarity with the minister Charity Ngilu. This stance will ensure that Nyanza and other congested rural areas of Kenya will remain poor with all the effects that come with it.

In her chapter on land reform in her book ‘The Challenge for Africa’, Wangari Maathai writes this: ‘I would like to see not poor farmers scrambling to produce tea or cassava on a piece of land that long ago lost its productivity, but rather cooperatives that provide farmers with accurate and timely information about their crops… The government will need to make a commitment to rooting out corruption in parastatal agencies that further exploit and impoverish small farmers.’  She did not live to see it, and it is still a long way off, but it will never happen in Kenya if the National Land Commission is not strong and independent.