Publication: Righting Wrongs: Confronting Land Dispossession in Post-colonial Contexts
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International Environmental Law Research Centre
Abstract
Tension as mobs invade ‘idle’ land at the coast, read the first page of the Daily Nation Newspaper on September 4th 2006. The paper went on to describe how residents of parts of Mombasa, mostly youths wielding pangs and other weapons had invaded plots they claimed belonged to absentee landlords. A few days earlier the Kenyan President had been reported in the local newspapers as having put absentee landlords on notice. This incident as many others in the last twenty years have illustrated how owners of land can lose their land to others who believe that they also have a claim to the property in question. As Cronon has argued, ownership is a complex social institution that varies widely between and among cultures and therefore only makes sense if the people with whom the property rights holder lives recognise that ownership and vest on that person the rights to impose sanctions against the violation of those rights by anyone else.1 Dispossession is a common phenomenon in many parts of the world where colonisation entailed the process of taking over land owned by natives and passing this over to the colonisers and their vasals. The underlying assumption was that the colonised had no rights to land either as individuals or as groups. For instance, in the case of Isaka Wainaina & Another v. Murito wa Indagara & Ors, Chief Justice Barth’s interpretation of the provisions of the 1915 Crown Lands Ordinance in Kenya was to the effect that Africans were mere tenants at will of the Crown with no more than temporary occupancy rights to land.2 This ignored any rights existing under customary law. The nullification of natives’ rights to land in favour of new ‘owners’ through processes that were not understood by the natives created a duality of rights’ systems. Indeed the acquisition of land rights for settlers was mainly done through political processes (declaration of protectorate, designation of land as owned by the coloniser etc) that were followed by legal instruments giving the political acts the requisite binding force. Dispossession from land also entailed dispossession from resources that people depended on for their livelihoods. Wildlife and forest preservation areas were carved out of land previously occupied by the natives but that had been expropriated from them and declared crown land. In other cases, areas were declared protected and the interests of wildlife and forest conservation promoted in total disregard of the concerns of the communities living in them. The boundaries of what was designated as the Southern game reserve in Kenya, for instance, practically coincided with those of the Maasai native reserve.3 Thus communal wildlife and forest resources were formally made state property and managed by wildlife and forestry departments in total disregard of the prior rights of the natives to those resources and products. Some areas were declared national parks because the colonisers saw no other use for them. 4 In this general schema, however the rights of the settler farmers to their land and other resources found therein were rigorously protected. Evidently, the establishment of protected areas entailed the dispossession of people’s land (as the habitat for the wildlife or forests) as well as the animals and forest products. This process severed the connections that existed between the natives and their physical environment. It introduced new values for wildlife and forests based on commercial exploitation which were the preserve of the new ‘owners’ of land and resources. Consequently, the parks were culturally alien to the communities living in and around them.5 The process of dispossession was not uncontested. Communities resisted it but were overpowered and subjugated under the new property ownership systems. Confronting dispossession in many countries thus remains a critical part of the resolution of land and resource crises. This is in a context where such dispossession is not acknowledged and the rights have passed on to new holders. It is also exacerbated by new forms of dispossession through privatisation of resource rights (land, water etc) and the consequential passage of public goods into private hands without securing the interests of all actors that have previously had access to the resources. It is within this context that restitution is discussed.
Description
Keynote Speech at the Conference on Land, Memory, Reconstruction and Justice: Perspectives on Land Restitution in South Africa 13-15 September 2006, Houw Hoek Inn, Cape Town. Published by East African Law Review, University of Dar es Salaam (2009). Pp. 103-124
Tension as mobs invade ‘idle’ land at the coast, read the first page of the Daily Nation Newspaper on September 4th 2006. The paper went on to describe how residents of parts of Mombasa, mostly youths wielding pangs and other weapons had invaded plots they claimed belonged to absentee landlords. A few days earlier the Kenyan President had been reported in the local newspapers as having put absentee landlords on notice. This incident as many others in the last twenty years have illustrated how owners of land can lose their land to others who believe that they also have a claim to the property in question. As Cronon has argued, ownership is a complex social institution that varies widely between and among cultures and therefore only makes sense if the people with whom the property rights holder lives recognise that ownership and vest on that person the rights to impose sanctions against the violation of those rights by anyone else.1 Dispossession is a common phenomenon in many parts of the world where colonisation entailed the process of taking over land owned by natives and passing this over to the colonisers and their vasals. The underlying assumption was that the colonised had no rights to land either as individuals or as groups. For instance, in the case of Isaka Wainaina & Another v. Murito wa Indagara & Ors, Chief Justice Barth’s interpretation of the provisions of the 1915 Crown Lands Ordinance in Kenya was to the effect that Africans were mere tenants at will of the Crown with no more than temporary occupancy rights to land.2 This ignored any rights existing under customary law. The nullification of natives’ rights to land in favour of new ‘owners’ through processes that were not understood by the natives created a duality of rights’ systems. Indeed the acquisition of land rights for settlers was mainly done through political processes (declaration of protectorate, designation of land as owned by the coloniser etc) that were followed by legal instruments giving the political acts the requisite binding force. Dispossession from land also entailed dispossession from resources that people depended on for their livelihoods. Wildlife and forest preservation areas were carved out of land previously occupied by the natives but that had been expropriated from them and declared crown land. In other cases, areas were declared protected and the interests of wildlife and forest conservation promoted in total disregard of the concerns of the communities living in them. The boundaries of what was designated as the Southern game reserve in Kenya, for instance, practically coincided with those of the Maasai native reserve.3 Thus communal wildlife and forest resources were formally made state property and managed by wildlife and forestry departments in total disregard of the prior rights of the natives to those resources and products. Some areas were declared national parks because the colonisers saw no other use for them. 4 In this general schema, however the rights of the settler farmers to their land and other resources found therein were rigorously protected. Evidently, the establishment of protected areas entailed the dispossession of people’s land (as the habitat for the wildlife or forests) as well as the animals and forest products. This process severed the connections that existed between the natives and their physical environment. It introduced new values for wildlife and forests based on commercial exploitation which were the preserve of the new ‘owners’ of land and resources. Consequently, the parks were culturally alien to the communities living in and around them.5 The process of dispossession was not uncontested. Communities resisted it but were overpowered and subjugated under the new property ownership systems. Confronting dispossession in many countries thus remains a critical part of the resolution of land and resource crises. This is in a context where such dispossession is not acknowledged and the rights have passed on to new holders. It is also exacerbated by new forms of dispossession through privatisation of resource rights (land, water etc) and the consequential passage of public goods into private hands without securing the interests of all actors that have previously had access to the resources. It is within this context that restitution is discussed.
Tension as mobs invade ‘idle’ land at the coast, read the first page of the Daily Nation Newspaper on September 4th 2006. The paper went on to describe how residents of parts of Mombasa, mostly youths wielding pangs and other weapons had invaded plots they claimed belonged to absentee landlords. A few days earlier the Kenyan President had been reported in the local newspapers as having put absentee landlords on notice. This incident as many others in the last twenty years have illustrated how owners of land can lose their land to others who believe that they also have a claim to the property in question. As Cronon has argued, ownership is a complex social institution that varies widely between and among cultures and therefore only makes sense if the people with whom the property rights holder lives recognise that ownership and vest on that person the rights to impose sanctions against the violation of those rights by anyone else.1 Dispossession is a common phenomenon in many parts of the world where colonisation entailed the process of taking over land owned by natives and passing this over to the colonisers and their vasals. The underlying assumption was that the colonised had no rights to land either as individuals or as groups. For instance, in the case of Isaka Wainaina & Another v. Murito wa Indagara & Ors, Chief Justice Barth’s interpretation of the provisions of the 1915 Crown Lands Ordinance in Kenya was to the effect that Africans were mere tenants at will of the Crown with no more than temporary occupancy rights to land.2 This ignored any rights existing under customary law. The nullification of natives’ rights to land in favour of new ‘owners’ through processes that were not understood by the natives created a duality of rights’ systems. Indeed the acquisition of land rights for settlers was mainly done through political processes (declaration of protectorate, designation of land as owned by the coloniser etc) that were followed by legal instruments giving the political acts the requisite binding force. Dispossession from land also entailed dispossession from resources that people depended on for their livelihoods. Wildlife and forest preservation areas were carved out of land previously occupied by the natives but that had been expropriated from them and declared crown land. In other cases, areas were declared protected and the interests of wildlife and forest conservation promoted in total disregard of the concerns of the communities living in them. The boundaries of what was designated as the Southern game reserve in Kenya, for instance, practically coincided with those of the Maasai native reserve.3 Thus communal wildlife and forest resources were formally made state property and managed by wildlife and forestry departments in total disregard of the prior rights of the natives to those resources and products. Some areas were declared national parks because the colonisers saw no other use for them. 4 In this general schema, however the rights of the settler farmers to their land and other resources found therein were rigorously protected. Evidently, the establishment of protected areas entailed the dispossession of people’s land (as the habitat for the wildlife or forests) as well as the animals and forest products. This process severed the connections that existed between the natives and their physical environment. It introduced new values for wildlife and forests based on commercial exploitation which were the preserve of the new ‘owners’ of land and resources. Consequently, the parks were culturally alien to the communities living in and around them.5 The process of dispossession was not uncontested. Communities resisted it but were overpowered and subjugated under the new property ownership systems. Confronting dispossession in many countries thus remains a critical part of the resolution of land and resource crises. This is in a context where such dispossession is not acknowledged and the rights have passed on to new holders. It is also exacerbated by new forms of dispossession through privatisation of resource rights (land, water etc) and the consequential passage of public goods into private hands without securing the interests of all actors that have previously had access to the resources. It is within this context that restitution is discussed.
Keywords
land injustices, post colonial era