State Recognition of Customary Land Rights in the Kenyan Rift Valley

Abstract

This thesis is about the struggles of communities inhabiting the Kenyan Rift Valley to assert their customary land rights. I focus on the Rift Valley because its interface of dominance by the state statutory system over the community systems continues to pose an existential threat to the Kenyan state. I chose the Maasai, Kikuyu, Nandi and Kipsigis because the Maasai lost the largest amount of land to European settlement in the Rift Valley, the Kikuyu represent the latest community migrants to the region while the Nandi and Kipsigis claim the Rift Valley to be their ancestral land. I use theoretical concepts of systems theory, social dominance and legal pluralism to test whether the new interface model of recognition by the state of communal tenure will be effective in redressing the unhealthy competition for land resources, instabilities and conflict in the region. The struggles of these Rift Valley communities against the state system date back to 1895 when the British established a protectorate over East Africa and implemented policies that disrupted the equilibrium between the communities and their environments. The colonial state and the neo-colonial state disrupted the customary practices of the Rift Valley communities by dispossessing them of their lands. As a result of this disruption, these communities, as systems, have been pushed to the fringes of the Kenyan socio-economic system. The communities remained resilient and continued to resist the state’s disruption by asserting their customary land rights. They organized local protests that grew so widespread and complex as to pose an existential threat to the state. The colonial state then decided to increase African participation in the integrated Kenyan socio-economic system through an assimilationist policy known as the Swynnerton Plan. The Swynnerton Plan failed to adequately address the disruption because it favoured a progression in the direction of individual tenure and away from communal tenure. The first Kenyan Constitution of 1963 continued the trend toward individual tenure rights as it also failed to recognize communal tenure rights. Shortly after Kenyan independence, the state attempted to confer tenure rights to pastoral communities through the creation of group ranches. However, this effort also failed mainly because of a disconnect between the communities and the individuals that they entrusted with the management of their land. State intervention concerning community land rights in South Africa, Australia, Tanzania and Canada have shown that effective recognition and enforcement of such rights is possible where there is political goodwill. Recent legal developments in Kenya are also encouraging steps in the effort to create a stable interface between the state and community systems. Kenya promulgated a new Constitution in 2010 that finally recognizes communal tenure. It subsequently enacted legislation in 2012 to initiate investigations into historical land injustices and to recommend appropriate redress. Significantly for customary land rights, Kenya enacted legislation in 2016 that defines community land to include customary land. I conclude with suggestions on remodelling and implementation of this new communal tenure framework to effectively recognize the customary land rights of communities inhabiting the Rift Valley.