\1rOB~

THE POLITICAL ECONOMY OF LAND LAW- An Essay in the Legal Org&~isation

of Underdevelopment in Kenya,1895-1974

by

~\V'~

H.'Il. O!Okoth-OgendoIht G 1.1 t'v .

A Dissertation Submitted in PartialFulfilment of the Requirements for

the degree of •DOC~OR OF THE SCIENCE OF LAW·

at the Law Schuo~Yale Univer~ity"----'1978 .

xxv i.

ABSTRACT

PART ONE: THEORY

This part is concerned with two lssues only,

namely, the definition of the research problem, anda discussion of the theoretical framework within which

that problem 1S analysed. Both of these are treated

in Chapter One.

i) The Research Problem: The study 1S anattempt to define and explain how thepolitical and economic processes of Europ-ean settlement 1n Kenya shaped the evolu-tion of land law and how that law hasinfluenced political and economic choicesin the post-colonial era. A Project Manualdescribing the major hJ~otheses, operationalprocedures, and data collected are reproducedas Appendix I to this study. /

ii) The Argument: The argument that runsthrough the essay i~ that the legal orga-nisation of the colonial econony had oneimpor~t objective, namely, to enable theEuropean sector to develop by under-

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developing the African sector. Further,itis ~rgued that the De~sistence afterindepeBdence of colonial economic relations

situation.

and the legal regime complimentary to ithas aggravated rather than reversed that

XJCVll

iii) Theoretical Fr2~ewo~k: After an examinationof the nature ~~d concerns of the existi~gland use literature, it is s~ggested that afruitful way of analysing the research problemis to avoid conc ep tua.Li.cm altogether andinstead take a sequential approach whichtakes the investigation through five analyti-cal stages. These are:

firstly; an examination of the colonial factorIn so f'ar. as it was relevant to thecontinued viability of indigenouspolitical and social institutions,

secondly, an examination of the nature of thecolonial economy and the developwent

of the legal regime that was necessaryto stabilise it,

'thirdly, an examination of political and econo-mic relationships between the Afric~~and settler sectors of colonial society,

fourthly, an examination of the reaction of thepolitical machinery of the independentstate to the transfer of power part-icularly in relation to land. distribu-tion and agricultural policy, and

'fifthly, an examination of the system of landuse administration in the post-colonialera.

This has the advantage of integrating leEalwith social history such that the forill8~ call be~en more definitely as an organic. patternof normative and institutional response to~pecific problems in colonial and post--- ".colonial society.

PART ;r\{o: • EVOLUTIm~ OF LAND LA\J

This part is-concerned with the substantive questionof bow colonialism shaped the evolution of propertJT andagrariap laws. Chapter Two exam i.ne s the nature of coLon i alismas a factor influencing legislative action. It lS con t end e.I

tbat although British adm i.n i sr cation was based on the theoryvi'I' U18 dual uiand a t e !", this referred. to the struc tural trappings

xxviii'.,

of colonjal administration only. In almost every other

respect, and certainly in respect of land policy,

systematic attempts were made right from the begin-

ning to mould the norms and values of African

society to suit the needs of the colonial economy.

The thrust of early legislative policy, therefore,

was to provide a framework which would enable colonial

admiNistrators to do this within existing institutions

of the African peoples.

Chapter Three carries that argume,:-:-~Lto

the area of property law. It is maintained that

apart from settler belief that only the institution

of private property was consistent with a viable

agricultural enterprise, it was also thought, at

first, that that system of land holding was sufficient

security against. any claims that anybody might make

upon any land expropriated by the settlers. Subsequent

developments show t~at this was to overestimate

African political and economic adaptation to colo-

nialism, particularly to the" native reservesll system

that had been set up to make way for European settle-

ment and facilitate the recruitment of plantation

labour. Pol~ical unrest and agitation within

the reserves, led to the realisation that security",

of settler property depended ultimately on the stability

of.tha re~erves. This realisation led to rapid

changes in land policy du:..~illgthe latter half of

the colonial period leading, firstly, to firm legis-

lative guarantees for " reserve" boundaries and,

secondly, to a comprehensive programme of tenure reform

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that was designed tc incorporate African peasants

full~ into colonial economic relations.

hoped that by putting African agriculture Ifeffi-

It was

ciently on Western lines,fI a sizeable group of con-tented peasantry wo u Ld emerge that wcu Ld act as abuffer between the settlers and political maverickshankering for land distribution.

Chapter Four looks mor e closely at' co !.rmialeconomic relations, particularly the legal organisationof crop and animal development, labour, credit,marketing, and land management - - all of which are re-ferredto collectively as agrarlan law; It isargued that the settlers saw the role of governmentin terms of providing an environment within which theirindividual or collective initiative would have itsfreest expression. That being so, the thrust of agra-rian law was to provide an institutional frameworkwithin which producers could control the adtn i.n i c t rct i.ouof the agricultural industry as a whole. Thus whencolonial policy towards African agriculture changed,as is indicated above, the settlers we r e nonetheless

"-able to ensure that this did not affect their hold on thesystem. Thus .•the political and legislative changes thattook place in the 1950s and ea.rLy 1960s, while admittinga lil11ite.kl~ra.l1geof African par;ticipation in the casheconomy, were largely concerned w i,th the perpetuationof colonial econ~illicrelations .• This is the situationthat existed at independence in 1963.

xxx

PART THREE: CONTINUITY OF LAND LAW

This part deals with the question of independenceand the continuity of land law. Chapter Five deals

with two things. Firstly, 't I Il examlnes the basic

characteristics that made colonial land law especia-lly appropriate as a framework for the under-development of the ye~qant sector. The most impor-tant of these are, t.hat; in scope, the reg~me was highlysectoral and fragmentary, and in content it was ex-tremely authoritarian and almost totally inaccessibleto the African peasantry whose behaviour it was intendedto iLfluence. The question that arises from this iswhy no attempt was made to overhaul this regime whenit was so clearly inappropriate for the execution ofan integrated agricultural policy - - a declared goalof the post-colonial state. We have answered thisquestion'in terms of rhe emergence of an African politi-cal and economic elite converted to the view thatthe continuity of colonial economic relations was crucialto the survival of independence. It follows that thecontinuity of ~e legal and institutional paraphernaliaof the status quo became equally necessary. As Africans

"began to accede to positions of dominance within thate~~y, how~ver, colonial land law became more and TIo~eaccepted as part-of an 0 timum institutional frameworkfor rural development. Secondly, this Chapter examines

I-OJ 14{~~v~ ~~

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the structural changes that occurred in the system

of land administration between 1963-1974, and

suggests that the general trend was towards

centralisation of control and the expansion of

administrative power in agriculture. wnat seems

to have happened in effect is that the structural

framework that had been used to control the

"r-e serve s II througL· ,-..;7. the colonial era, was slowly

being extended to cover the whole economy. But

whereas this implies a decrease in producer

control over the economy as a whole, it is sugges-

ted that in fact these changes strengthened the

position of the large-farm areas, and further weak-

ened that of the small-farm areas. In particular,

it is argued that the small farm sector continued to

be denied access to adequate credit and infrastruc-

ture, and efficient marketing facilities with the

consequence that this sector continued to operate

essentially as a periphery of the large farm-

sector.

Okapter Six and Seven examine the implica-

tions of this argument in terms of the actual style

of land use '~administration and farm-level decision-

making in the small-farm sector. Chapter Eight- ¥

is a summary o~ the basic arguments of the diss-

ertation and an indication of what we consider

to be the major unfinished policy and research

tiSks in this area of leg~l scholarship.