The Land Question in Kenya: The Place of Land Tribunals in the Land Reform Process in Kombewa Division; 

Presented To

The Codesria Tenth General Assembly, Kampala-Uganda, 8th-12 December 2002

 

Samwel ONG'WEN OKURO 
HISTORY DEPARTMENT
KENYATTA UNIVERSITY
P.O.BOX 43844
NAIROBI.
okuroh@avu.org

ABSTRACT

In order to redress the land question and to increase security of tenure, the post colonial Kenyan government embarked on an aggressive, ambitious and contradictory land reform programme full of presidential dictates. This was in continuation of the colonial land reform programme initiated during the colonial period under the Swynnerton Plan that envisaged the elimination of indigenous land tenure and imposition of private property rights along the lines of English Law. Although the reform began that early, not much of the land has been adjudicated or registered, few people have title deeds. Reasons for this include among other things disputes among the local people over the different stages of the reform and in particular the demarcation stage which delineates people's rights over land before they are registered. Where land registration has been going on in Kenya, most disputes have been noticed concerning boundaries and ownership of land occasioned by disagreements between and among family members, reneging on previous "informal" and customary land agreements and deaths. To solve the problem, the trend has been towards establishing formal tribunals independent of the judiciary but with recourse to ordinary courts, operating at the local level and in some cases operated by community members. It is against the increasing land disputes in the rural areas that this research paper addresses the place of the divisional land tribunals in solving land disputes in rural Kenya. The paper attempts to elucidate the history behind the formation of these tribunals, their composition and the level of manipulation. It also seeks to examine the conflicts experienced when non-customary tenure ideology and legal provisions confront the customary land tenure system. In doing this the paper will answer the central question "how should unregistered, communal, customary land holding and individualised tenure be dealt with at the local level? ".

Introduction

The struggle over land has taken place in different parts of the African continent and in most countries, the causes of increasing competition and contestation over land have been the same. These include, rapid population growth, environmental degradation, and low rates of economic development. These have left many people dependent on small scale farming, livestock raising and foraging, which all combined to transform Africa from a continent of land abundance in the first half of the twentieth century to one of increasing land scarcity by its end. This pressure not only put land reform as priority where it has not been initiated but also questioned its legitimacy in areas where it had taken shape. For example, the land reform programme initiated in Kenya as from 1956, encountered and continues to encounter myriad problems at the local level. Some of these problems are not new but have existed since 1956 and only exacerbated due to the deepening economic crisis found in most parts of Africa today.

In Africa, competition over land has occurred at all socio-economic levels and followed myriad fault lines, pitting national and local elites against ordinary citizens, neighbours against neighbours, kinsmen against kinsmen and husbands against wives. Equally, local officials, village councils and traditional authorities have vied with one another to sell land to anyone willing to pay for it. Neighbours and kinsmen have encroached in one another's field/farmland or in some cases, have argued fiercely over inheritance and the claims of absentees. Boundaries have fiercely been contested by family members or the whole clan at times generating into deaths. Similarly, in some cases customary rules long honoured in the breach have been revived and reinterpreted to exclude others particularly, descendants of "strangers" from land they have occupied for many years. In the agriculturally rich areas and within the urban centres, land grabbing has become everybody's business. This competition over land has not only driven up prices and sharpened real and perceived inequalities of income and wealth, but has also intensifies public debate over the legitimacy and accountability of institutions relied on during land arbitration.

Thus, these happenings have not only questioned the view that indigenous/communal systems of land rights impede agricultural production and that private right in land boost agricultural production, but also necessitated the need to re-examine the available institutions in solving land disputes. This has become central because the question of land tenure and land reforms and its impact on the poor and vulnerable groups is of vital importance. While there is a rich literature on land tenure and land reform in Kenya, there is inadequate historical analysis of how land disputes arising from to land reforms have been addressed and how to build strong and reliable mechanisms of arbitrating land disputes.

This article addresses the situation by discussing the place of divisional land tribunals in settling land disputes in rural Kenya, particularly in Kombewa. The aim of this paper is to show the limitations inherent in the formal courts and divisional land tribunals in solving land disputes. The article argues that, while tenure security is necessary on viable smallholder plots and constitutes one important precondition for increasing agricultural productivity, supporting and sustaining rural livelihoods and enhancing overall food security, at times when the tenure security is question or contested by others also laying claims to the same land, the time taken to solve or to go through the litigation also determines the productivity of that land. Thus even in places where fully developed property rights have been achieved particularly on land, duration and easy acceptability of the litigation process becomes a precondition for achieving agricultural productivity and food security. The article further argues that land tenure, as in other parts of Africa is very fluid. People get access to land through a variety of means: through their social networks, customary institutions, family relations, through service and renting arrangements and only occasionally through the law. This necessitates that the law should not have exclusive rights in arbitrating land cases. Neither should land tribunals constituted by the Minister of Lands and Settlement be given excessive powers to determine land disputes, rather, the article argues for the establishment of independent tribunal comprising elders of "integrity" drawing their legitimacy and recognition from the entire community. These tribunals should be based on a common understanding of respect for human rights and local socio-economic and political realities.

Area of The Study

Kombewa Division is one of the administrative divisions of Kisumu District, Nyanza province. It was originally called Central Seme Location. It has four locations and borders the Lake Victoria towards the eastern side and Maseno division to the northeastern side. It was curved from the former Maseno division in 1987. It is inhabited by one of the sections of Luo community called Joseme and a few immigrants [Jodak] from neighbouring clans, such as Jo-Asembo, Jo-Gem, Jo-Kisumo and Abaluyia, especially the Banyore. It lies within Longitudes 330 20’E and 350 20’E and Latitudes 00 20’ South and 00 50’ South. Low ridges, seasonal rivers, and scalps characterize the division's topography. There are also hill slopes and granite rocks in most places-for example, granite rocks in Kisian and legendary Kit Mikayi. These granite rocks are exploited by local population to produce ballast while the varying types of soils and riverbed sand deposits are mined for construction and for making bricks.

The division has shorelines to the east. Consequently fishing takes the greatest part of the people’s time. Other economic activities include subsistence farming and rearing cattle. Some of the crops grown here include maize, millet, cassava, groundnuts and cowpeas. The mean annual rainfall is about 1,630 mm. The mean annual maximum temperature ranges from 25 degrees centigrade to 30 degrees centigrade and the mean annual minimum temperatures range from 9 degrees centigrade to 18 degrees centigrade. Economically, Kombewa like other parts of Nyanza province is largely poor, with fishing as the only major economic activity.

Theoretical Framework

In his work on The Land Question in Sub-Saharan Africa, Havnevik (1997) outlines the major theoretical positions on the land tenure in Africa, which this article will draw immensely. Havnevik argues that, the discussions on the land question have revolved around individualised tenure systems verses customary tenure systems with emphasis laid more recently on the so-called community rights. The individualised land tenure system is supported by neo-classical economic literature positing that land tilting or fully developed property rights, including the right to freely dispose of land without approval, is the only way to restore the growth potential of African regions subject to high levels of population and increasing commercialisation of agriculture. Thus due to reduced uncertainty of land transactions, land will more easily be transferred to more dynamic farmers and excessive fragmentations and subdivisions encouraged by traditional land allocation and inheritance patterns will be avoided. More efficient cropping choices and more long-term investments in land will further evolve from enhanced tenure security. Credit supply will automatically increase through, the potential of using land as collateral. This thinking reflected, not surprisingly, in the World Bank's sectoral work and Structural Adjustment Programmes: the bank has been supporting titling efforts on the assumption that this will ensure secure land rights, activate markets and increase agricultural production (World Bank, 1989; Platteau, 1996; Kanyinga; 1998).

However, more structural, institutional and empirically oriented economic theory has shown that very few countries in Sub-Saharan Africa have followed the above path except for the case of Kenya which embarked upon extensive land registration programme as from 1956 to date. The continuous opposition to titling is attributable to the fact that evidence accumulated overtime raises serious doubts about its effectiveness in enhancing agricultural growth and increasing the security of tenure (Hazell, 1992; Bruce, 1993; Bruce and Migot-Adhola, 1994; Cornia, 1994; Havnevik, 1998). The conclusions arrived at by this position comprise among others the following. That land registration creates increased insecurity for vulnerable parts of the population; it does not activate the land market, and if it does, its mainly for speculative reasons, it does not bring about reversal in land fragmentation nor does it improve land allocation, it does not in significant ways improve smallholders access to credit and there is no significant correlation between land tilting and increased agricultural yields. In Kenya the observations are similar as indicated by Kanyinga's report on Re-distribution from Above: The politics of Land Rights and Squatting in Coastal Kenya. Kanyinga argues that in Kenya the practice of individualising public land has created more people without land and has generated new types of disputes over ownership. Equally, titling in Kenya does not appear to have had much effect on credit as few people use titles for loans. Similarly, land titling has not had a positive environmental effect anywhere in Kenya.

The policy implication emerging from this theoretical strand, argues Havnevik (1997:6), is not that land registration is an incorrect measure, but rather that it needs to be accompanied by other types of reforms that can break down various constraints working on African agriculture such as: lack of suitable technological packages, weakly developed infrastructure including roads, poor input delivery services, output marketing system and extension services. The changes brought about by Structural Adjustment Policies, in particular substituting state structures with private sector and withdrawal of various forms of subsidies related to agricultural production, have not realised significant improvement in above-mentioned areas. For some areas, smallholder market access and prices have improved but outlying areas have experienced a worsening situation in the new liberalised context.

Land tenure reform in Kenya particularly titling, is only one factor among a whole range of factors which have to be concertedly addressed if agricultural production, food security and tenure security is to be improved. In Kenya Kibwana (1993:237) advices that we must pay enough attention to technological know-how, agricultural credit, managerial know-how, appropriate training and agricultural labour, establishment of viable agro-industries and existence of favourable prices of primary agricultural commodities in international market. It is in this list that I would like to add the land dispute solution process particularly at the local level because its reliability, acceptability and efficiency also affects not only agricultural production in Kenya but also affects smallholder tenurial security and credit acquisition. Following the above arguments, this study adopts the position that non-tenurial constraints (in this case divisional land tribunals) play an important role in holding back progress in agriculture, and reforms focussing exclusively on establishing formal property rights on land are doomed to fail.

Land Tenure Reform In Kombewa

A lot of confusion exists when describing what exactly was the nature of land tenure in pre-colonial Africa. Many reasons explain this confusion. Deliberate misrepresentation occurred for instance where some Western anthropologists refused to acknowledge the existence of communal land tenure in pre-colonial Africa. Such an admission and evidence could conceivably be used to justify socialism and communism (Kibwana, 1993:231). More generally, colonial efforts to govern Africans according to local customs were complicated by a contested understanding of African social realities. To acquire knowledge of "Native" customs, officials enlisted Africans as informants and commissioned anthropologists to help sort out "authentic" customs from invented ones. Colonial officials also acquired information on "native laws and customs" through their daily interaction with chiefs and commoners, litigants and judges, witnesses and petitioners, labourers and vagrants, taxpayers and defaulters. To ascertain the rules of the customary land tenure, or sort out who did or did not belong to land-holding family, community or "tribe", officials had to ask. And Africans gave conflicting answers, especially when the subject of inquiry was itself a pint of contestation, such as claims to land or a chiefly office. If, as it frequently happened, administrators sought to bypass the confusion and reinforce traditional authority by limiting their inquiries to a few chiefs and elders, they were more than likely to hear complaints not only from rival chiefs, but also from "young men", women or "strangers" who had not been consulted. Officials dismissed individual complaints as based on jealousy or ignorance, but accumulated protests, which were harder to ignore. No sooner were authorities, boundaries and customs established than they had to be revised (Berry, 1992; Gocking, 1994; Ranger, 1999). Traditions were "invented" by many inventors, and were reworked, discarded or simply accumulated as colonial rulers and subjects debated their validity, or their relevance to the dilemmas of the then present. The chiefs, elders and others who were presumed to know customs often told conflicting stories.

As a result of the above, the forty or so ethnic groups presently inhabiting Kenya could not adequately be represented when it came to land tenure. Land tenure during the pre-colonial period presented great diversity since long period of "development" was involved. During such period there existed a great diversity of economic activities, settlement patterns and social and political organisations. Despite the above, it can conveniently be said (with exception of the Wanga, the Nandi and the Swahili states) that before colonialism, land in Kenya was owned communally and governed by customary law, individuals did not own the land. A whole community owned the land with each individual having a right to till it or use it in a manner acceptable to others. Land was not owned to the exclusion of everybody else. Individuals had rights over communal land; for example, the right to graze one's domestic animals, the right to till and the right to collect firewood. Land was abundantly available and thus staking individual claims to land was clearly superfluous. Secondly, at this state of historical development was considerably hostile, and available experience showed that group activity and effort bore better results in productive work.

With the development of social and economic organisation towards settled pastoralism and subsistence agriculture as well as cohesiveness of social units within the ethnic group to wit lineage and clans, land belonging to an ethnic group was divided up into clan land and at the micro-level, family land. The head of the extended family exercised control over such family land. In exercising such powers, the head would, for example, sub-divide the land into nuclear families (often polygamous). In turn, such land was divided into "houses" and /or adult sons for cultivation. However, as time progressed, an individual could acquire personal land by his own efforts-by clearing part of virgin land in his area or accepting a gift or by inheritance. Whereas the individual could not transfer or dispose of family land for self acquired property, the individual had more or less a permanent interest, which was for, his own benefit. However, if one wants to transfer such self-acquired interest, he still had to seek the consent of his family. Thus individual autonomy in land matters was alien to pre-colonial tenure. The above is representative of the nature of land tenure in Kombewa before colonialism.

The establishment of colonialism halted the further spontaneous development of indigenous land tenure system. An alien form of land tenure was introduced in British East Africa Protectorate (as the interior of Kenya was initially named). From the time it was decided that the East Africa Protectorate would become a settlement colony, it became necessary to introduce a land tenure system similar to that existing in Britain so that the European settlers would be motivated to settle in the colony as well as to invest their financial resources without restrain. Thus as early as 1897, individual tenure to land was introduced by the Imperial British East Africa Company but within limited sections in Kenya. Therefore, as colonialism progressed individual tenure to land modelled in English Law was the official policy while in practice dualism in land tenure and agriculture was evident. The indigenous land tenure system continued in the form of family tenure, and indigenous agriculture was for subsistence. Settler land tenure was individual tenure and settler agriculture oriented towards cash crops.

As from 1945, the thinking about the development of African agriculture changed. Prior to this period, Africans had been bundled into native reserves in which land was not only marginal but also grossly inadequate compared to the needs of the African population. Secondly, Africans were viewed by colonial authorities primarily in terms of providers of labour for European farms, and various laws were passed to this end. The official re-thinking about African agriculture and its role, in the whole colony, was based on several factors. The colonial economy had been ravaged by the worldwide depression of the 1930s and the British government required colonies to be self-sufficient in agricultural production. In the early 1930s, demand for labour on European farms slackened, and thus extra labour, which could be expended in African production, was available. Also, it was deemed necessary for the African agricultural sector to augment the settler sector. These realisations were followed by settlement schemes and betterment schemes, which aimed at reconditioning and preserving land. When the above remedies failed, colonial agronomic experts advanced the argument that the best way to correct the problem of land use among Africans was to reform the tenure system (Kibwana, 1993:236).

These agronomists argued that the African land tenure which was predominantly communal in nature subverted proper land use and rapid agricultural development because the structure of access to land use rights encourage fragmentation, thus cutting down returns to labour and time. It was also argued that the African land tenure was conducive to incessant disputes, thus discouraging long-term capital investment and formed an insecure basis for generating agricultural credit. Lastly, the agronomists argued that the inheritance procedure of communal tenure encouraged subdivisions of holdings, thus leading rapidly to units of sub-economic size. To cure the above ills, the agronomists recommended individualisation of tenure among the indigenous people (Okoth-Ogendo, 1976, 1986). It was also in the same tone that the East African Royal Commission 1953-1955, recommended that individual tenure had great advantages in giving individuals a sense of security in the possession and in enabling by purchase and sale of land an adjustment to be made by the community from the present unsatisfactory fragmented holdings to units of economic size. It was envisaged that under individual tenure, the psychological feeling of owning land would catalyse the owner to work hard. It was argued too that consolidated individual holdings would facilitate proper farm planning on a mixed rotational basis.

In Kenya, therefore, the land tenure reform began during the colonial period. The colonial government introduced individualisation on the assumption that this would spur agricultural growth in the native areas and thereby undermine the ideological basis of the peasants rebellion-the Mau Mau-that land hunger and political repression had aroused. A report in 1954 by the then Deputy Director of Agriculture, R. J.M Swynnerton, on how to, Intensify the Development of African Agriculture in Kenya, inspired the reform (Kanyinga, 1997). The Swynnerton Plan (as the report was widely known) aimed at the displacement of indigenous land tenure system with a system that entrenched private property rights similar to what English Land Law provided. This began by identifying rights in land by way of recording rights over different fragments (demarcation and adjudication). Aggregation (consolidation) of such fragments into single units followed this phase. Registered titles concluded the procedure. This has remained the practice except that consolidation does not apply to all areas (Wanjala, 1990). However, it's important to observe that, disputes over, among others, displacement of holders from one place to another despite their investment in the former location have prevented widespread consolidation (Kanyinga, 1997).

This plan posited that the security of tenure (a title deed) would enable a land-owner to pledge his land as collateral for development capital, that would in turn, enable farmers to pay more attention to their land instead of being drawn into a peasant rebellion. The plan thus concluded that consolidation and farm planning would ultimately generate enough employment to absorb the dispossessed segment of the population. Further, the registration of land would convert African owned land into a marketable commodity, and title to such land would then be freely transferable or chargeable as security for development credit. Registration would also increase the security of title, providing further incentive to investment. It was under this argument that the Land Reform Programme reached Kombewa Division. Kombewa was taken as a pilot scheme for land consolidation from May 8, 1956 in the whole of western Kenya. The DC of Central Nyanza E.H Risley inaugurated the project. In his address he observed "the present system of land holding among the Luo was evolved when the tribe was much smaller in every way that it is now, and when they were constantly pressing forward to new lands. This system is now not suitable to a people now static. It prevents profitable farming, results in more poverty, than is necessary, and is steadily ruining the land. Seme location has been chosen as a pilot scheme since it contains examples of almost every type of soil formation found in the district as well it had a considerable element of progressive minded people" (DC/KSM/1/3/61, Land Consolidation, 1956, KNA; Okuro, 2002).

Women were very central in agricultural production in Kombewa during this time because there were no men in the villages due to male labour migration (see Okuro, 2002). In the same period, the district Agricultural Officer lamented that" the Central Nyanza has been as in the past and is still a hunting ground of labour recruiters who entice away a very large proportion of young and strong men, leaving nothing but old men, women and boys to cultivate the land. The Luo woman lives a life very apart from her husband. She is in matters connected with the running of the home and shamba, the executive partner" (DC/KSM/1/3/61, 1956, KNA; Okuro, 2002). Like any colonial project, land consolidation had certain drawbacks. The Assistant Agricultural Officer at Siriba Agricultural Centre acknowledged several problems arising from the process. He illustrated that some people were forced to destroy their houses or a whole clan lost land if it was required for road construction. Some people were forced from fertile lands to less fertile ones. Also there was the possibility of some people being asked to leave a certain area in which they had been tenant farmers for a long time and be forced to occupy tsetse flies infected areas. In some situations, they could even be moved to areas that lacked water. The other problem identified by the officer, concerned absentee landlord and tenant farmers (DC/KSM/1/3/61, 1956, KNA; Okuro, 2002). The land reform process in Kombewa also witnessed disputes over boundaries. These boundary disputes could only be sorted out by men but since men were away providing their labour on European Plantations, it forced women to be at home not only to protect the crops but also to acquire and protect land rights. Adjudication and consolidation processes demanded that one acquires land if only he/she had cultivated it or was cultivating it. Women and widows could only be given land to cultivate on behalf of the male children. As from the beginning it was observable that the land reform programme in Kombewa was riddled by several disputes requiring institutions for arbitration.

Despite the many limitations and disputes, the post-independence Kenyan government simply retained the colonial land laws and pursued the same land reform programme without any major alteration. In fact the 1966-1970 National Development Plan had this to say about land reforms " it had been proved in the past that a significant number of farmers, registration, and where appropriate consolidation, of their holdings stimulates, increases efficiency and output far out of proportion to the cost of the process" (Cited in Kibwana, 1993:236). The legislations vested the radical title, i.e. the ultimate ownership over land in the state, thereby giving it unrestricted powers over control of land-public and private. This has had significant consequences, considering that, with the crystallisation of the reform process, a set of land problems began in earnest. The reform generated more disputes over land ownership and resulted in more skewed distribution of land ownership. It reproduced ethnic based interests on land and made the land question more complex than ever. It further demanded the urgent establishment of sound and reliable mechanisms for solving land disputes in Kenya than before.

Land Tribunals in Kombewa

The road towards the formation of land tribunals in Kenya was initiated considering the inapplicability of ordinary courts of law on issues surrounding land. From independence, three systems of law governing land ownership existed in Kenya. Initially was the customary law, which was unwritten and differed from ethnic group to ethnic group and persists till today. However, the establishment of colonialism ushered in two main acts of parliament and embodiment of the English system of land ownership. At first was the Indian Transfer of Property Act (ITPA), of 1882. This act was used by colonialists to govern land ownership in areas then called the "White Highlands". Much of the land in Kenya is still under the ITPA (Wanjala, 1990). Secondly, was the Registered Land Act (RLA) of 1963 found in the chapter 300 of the laws of Kenya. This act, governs land formerly held under customary law. It was enacted in 1963 as a result of a reform programme started by the colonial government and aimed at replacing the customary law system of communal ownership of land with English system of individual ownership. It is therefore mostly applicable in those areas called "reserves" and later "trust lands". This law is increasingly becoming the governing law even in areas that are not necessarily trust land. For this reason many people are converting their land ownership from ITPA to RLA.

It is however important to observe that before a piece of land is brought under the RLA, there must be registration, where one is issued by a registration and deeds and document or registration of title. This process of registration is accompanied by three important stages prone to disputes. The firstly, is the adjudication. This is the process whereby the relevant officers from the Ministry of Lands and Settlement, with the help of the inhabitants of the area, go about ascertaining the right ownership of a given piece of land in an area. This process only takes place with regard to land, which is unregistered and is still held under customary law. Secondly, is what is referred to as land consolidation. This is the combining of small pieces of land to which rights of ownership have been identified into larger economic units. This process need not necessarily follow land adjudication for the need to consolidate may not arise. Lastly, is the process of registration, where appropriate entries are made in a land register and the land accordingly brought under RLA. Once land initially held under customary law comes under RLA, customary law to that land ceases altogether.

Most of the land disputes are normally experienced as a result of land adjudication. The process of land adjudication initially occurred after a government minister has given a declaration that trust land be adjudicated. The minister then appoints adjudication officer, who will appoint demarcation officer, survey officer and recording officer for the purpose of demarcating, surveying and recording. The appointments are made in consultation with the District Commissioner of the area to be adjudicated. Those appointed should not be less than ten in number and must be persons resident in the area to be adjudicated. Anybody having a claim to the land to be adjudicated must be present to show his boundaries to the demarcation officers. Any person who during the adjudication process feels that his rights have not been taken into consideration complains to the adjudication committee chaired by the adjudication officer who will arrive at the decision based on the customary law. Any complaint on the decision by the adjudication officer can further be made to the Land Executive Officer who will submit the complaint to the arbitration board appointed by the Provincial Commissioner. Any contestations concerning the incompleteness or incorrectness of the adjudication register is referred to the minister of lands. The minister made the final decision on the appeals, but, with orders from high courts, the minister's decision may be challenged.

The first weakness of this procedure is that it gave the minister and the provincial administration excessive powers over land issues. These people were not only government officers appointed by the president but also not best positioned to understand the realities of land cases in the local areas. As such they relied on the adjudication officers and other officials who were not in anyway different. Similarly, it became difficult to accept the decisions of the adjudication officers since those who had claims on the land were not present. At times the customary laws were twisted, re-interpreted and continuously contested particularly concerning tenant landowners or when bastards laid claims on land. These absentee landowners, tenants and bastards (illegitimate children) sought arbitration not through the provincial administration (that they claimed to be corrupt), but went straight to the courts. Thus, land adjudications experienced appeals and counter appeals piling in magistrate courts.

Land disputes did not stop at the adjudication level, disputes between registered owners to land and other people claiming an interest in the registered land also came to the fore. These disputes symbolised the clash between the English Law and the Customary Law. These disputes were experienced due to the fact that certain people got registered as owners of the land, which was actually family land. The RLA provides that up to five people can be registered as owners of a piece of land. But families or houses can also avoid future problems by dividing the land between themselves during the adjudication exercise so that there is finality of individual titles straight away. These cases were common where people did not understand the legal effect of registration. As a consequence, many people have found it difficult to accept the legal positions. Long after registration, families, houses, brothers and relatives initiated endless cases in courts over land registration, land distribution and boundaries. As a consequence of land registration, the land disputes arising were reported to the magistrate courts. Similarly, these courts were unable to come up with a firm and final statement on the position of the law on land cases. At times the cases were customarily arbitrated, by evoking the concept of customary trust. An example of customary trust is where the eldest son is registered as the owner of the land but is presumed to hold the land on trust for the younger sons in the family. In other situations, the magistrates interpreted and enforced the law as it was.

It was as a result of the above that in 1981 parliament passed a law called the Magistrates Jurisdiction Amendment Act, which established what is called elder's courts or panel of elders and vested in them the power to hear and decide on some land cases. These cases included, beneficial ownership of land, the division and determination of boundaries of land, a claim to occupy or work on land and cases involving trespass to land. This panel comprised the District Commissioner as chairman or any other person appointed by him, two to four elders agreed upon by the parties involved in dispute. The decision of the panel was then passed to the resident magistrate court that is entrusted in making the final decision. Appeals can be made, in which case a fresh tribunal is constituted. The law defines an elder as persons in the country or communities to which the parties by whom the issue is raised belong, who are recognised by the customs in the community or communities as being by virtue of age, experience or otherwise, competent to resolve issues between parties. Where there are no such alders, the law defines an elder as meaning such person as the District Commissioner appoint (Wanjala, 1990).

It is clear from the above and I agree with Wanjala that the law contemplates an elder of the olden days who is presumably incorruptible, impartial and respected by the society. Such an elder is fast disappearing with the changes of society. In fact the elders found in these panels are those persons appointed by the District Commissioner as contemplated by the second part of the definition. The District Officer who is the chief elder is usually quite a younger person. Similarly, the whole process was intended to be simple, cheap, fair and democratic, however, this has not been the case because of four reasons. These include limited jurisdiction of the elder's panel, corruption by panel of elders, unclear provisions of the law and peoples lack of knowledge about the workings of the panels. As a consequence a majority of cases determined within the elder's panel were returned to the resident magistrate courts with litigants hiring lawyers.

But, from the 1990s land disputes become numerous in every location with parties refusing to accept the verdict of the elders. The rise in the numbers of these cases is attributable to many occurrences, notably, population pressure, land degradation, poor agricultural yields, unreliable rainfall, HIV/Aids pandemic and structural adjustment programme. Of all these causal factors structural adjustment programmes deserves a brief explanation. Structural Adjustment Programmes (SAPs) were initiated in Africa in the early 1980s. Through the programme and its instruments developing countries were expected to harness the benefits of globalisation by pursuing policies that "open" their economies to global competition, foreign investment and technology. In a much wider context, adjustment packages included: devaluation of overvalued currencies, increase in artificially low food prices and interest rates, a closer alignment of domestic prices with world prices, an emphasis on tradables/ exportables and the gradual withdrawal of restrictions on competition from abroad (trade liberalisation), privatisation policies (of parastatals or large scale government monopolies), a decrease in government spending, wage and hiring freezes, reduction in employment in the public sector or the minimum wage, the removal of food and input subsidies, and a cross-the-board reduction in budget deficits as ways to invigorate stagnating economies (Okuro, 2002). These policies have been formulated and advocated for by the Bretton Woods Institutions since the 1980. The programme involves the disbursement of trenched support in the form of SAPs or Sector Adjustment Loans, typically on concessional terms, which are condition upon policy reform. In fact trade reforms are absolutely central to SAPs because there are powerful economic arguments in favour of free trade particularly. In Kenya the demand for trade reforms were accompanied by political reforms.

The introduction of Structural Adjustment Programmes (SAPs) in Kenya, imposing strict austerity measures have served to worsen the situation when it comes to land and land reforms in Kombewa. As indicated earlier, the people of Kombewa since the colonial period have to urban areas to gain employment, but the SAPs were marked by a freeze on real employment and retrenchment for those already employed. The casualties arising from the SAPs turned to farming and non-agricultural activities to survive. Land came under intense pressure for domestic food production. Those who initially had little interest in land saw its acquisition a matter of urgency. New land disputes emerged as most people saw land as the only available resource to lay hands on. Land infertility arising from overproduction also started being experienced. Those who had money started buying and renting land for food production, while those who could not, sought help from relatives for land. Migrant labourers who for some time did not consider land an important resource and even absentee landowners started laying claims on land seeking for its adjudication and registration. Those who had many male children and were holding family lands for the other young brothers demanded the possession the whole piece of land to the exclusion of others. Others who wanted to enter informal sector activities also required title deeds as collaterals to be advanced credits. The women who prior were not culturally allowed to have a direct claim on land also joined the fray, particularly the case of widows who demanded their equivalent share of the land for production of food for subsistence and that of their children.

The introduction of cost-sharing in public education and health services also added on parents and the entire population a burden never experienced before. Low cost public schools for example, expected parents to pay tuition fees, building fund, and development fund among others. This amounted to about US$ 30 per child and US$ 400 per child per year for primary and secondary schools respectively. University education is about US$ 2000 per student per year. This is too expensive for many parents (Munguti et al, 2002:15). SAPs therefore, have been responsible for the poverty, unemployment and socio-economic inequalities experienced in many parts of Kenya today. It is in this regard that Moyo (2002:1), remarked that the political and economic reforms on the continent since the mid-1980s have been accompanied by massive rural social dislocations, further poverty, growing insecurity over land and natural resources, property rights, and numerous violent conflicts over the control of resources and the state. Neo-liberal economic policy reforms imposed from above in the context of "choiceless democracy", have added to the erosion of the basic social and political rights of Africans.

As population pressure on land continues to mount and soil fertility declines, more and more labour has been forced off the farm to ensure household survival, further undermining agricultural production. The eventual result of this process is typically the sale of part of the homestead land to meet some immediate family crisis (e.g., severe illness particularly HIV/Aids, school fees and food for consumption). Those who are succeeding in purchasing this land eventually differentiates the rural society into landed and landless groups further complicating claims over land. These land buyers at times pay instalments hoping that the economic situation will improve to enable them pay in full. But realising that things are not any better, the buyers end up unable to paying for these lands in full. Such occurrences normally end up becoming land disputes in urgent need of arbitration in an independent and reliable land tribunal or court of law.

As a result of the above, in 1990 the government of the republic of Kenya through parliament re-examined the issue of the rising number of land cases and created the Land Dispute Tribunal Act No. 18 of 1990. This act was given assent by the president on the 14 January 1991, and maintained the definition of an elder. Its date of commencement was by notice of the Minister of Lands and Settlement. As with the other acts creating the previous elders panel, this act demanded to limit the jurisdiction of the magistrate courts in certain cases relating to land in rural areas. The act demanded that land cases in court be sent back to the land tribunals for mediation. The act gave provision for appeals by creating the lands dispute appeal committee appointed by the Provincial Commissioner (PC) and consisting of the Chairman appointed by the PC and not less than five people appointed by the minister. The act clarified that, the minister may make rules prescribing the procedure of the tribunal in particular, the form in which any decision, order or determination of the tribunal shall be given or the evidence which may be admitted in proceeding before a tribunal and taking of such evidence.

It is in this regard that Kombewa Division Land Tribunal was created in nineteen ninety-nine. I had the privilege to interview all the eight members of the tribunal. The Kombewa Division Land Tribunal (KDLT) was initiated due to several reasons including the fact that the government was getting concerned by the rising number of land cases in courts, many people were hiring lawyers exhausting them of a lot of money. The government once again realised that the elders in the village had the much needed knowledge on land and land disputes. With this recognition, a meeting of district land adjudication officers demanded that elders of a good record forward their names for eventual appointment to the tribunal. Six people were appointed following the above criteria and included

It should be indicated that before a case is forwarded to the KDLT, the litigant must exhaust the procedure of first taking his or her case to the village elders, then to the sub-location elders and lastly to the location elders for arbitration. Only if he or she is dissatisfied then the case can be forwarded to the KDLT. Such a person must be issued with a letter by the chief introducing him or her to the members of the KDLT Committee, and must each pay an equivalent of US$ 4 as sitting allowance for the elders. A provision also exists in which a person may just walk to the District Officer to put his/her claim. This situation forces the tribunal to write to the chief for briefings before the case can be put forward for discussion. At least three quarters of the members constitute a full tribunal. The tribunal discusses the issues with all the parties present and are at times required to visit the land under arbitration and do certain observations before determining the case. The verdict of the tribunal is normally typed by the District Officers secretary and handed over to both parties concerned. In the case of a boundary dispute, the tribunal members must implement their verdict by visiting the disputed land and then re-draw the boundary with the assistance of the assistant chief. If the parties are not satisfied by the verdict of the tribunal such a person is given a letter (after paying equivalent of more than US$ 25) to appeal through the appeals committee at the date and time agreed upon by the two or so parties. The appeals committee comprise three elders but from different areas. The judgement of the appeals committee is final. The tribunal has presently over 100 cases pending and can only listen to (and not determine) a maximum of two cases a day, and sits twice a month.

Nature of Land Disputes at KDLT

These are some of the disputes that have been reported to the KDLT in the last two years of its existence. With the varied nature of cases reported to the tribunal, an analysis of the challenges facing it seems necessary.

Challenges Facing Kombewa Division Land Tribunal

The involvement of the members of the Provincial Administration in land issues continue to work against the aims of the land Tribunals everywhere in Kenya. The provincial administration in Kenya include the Provincial Commissioners, District Commissioners, District Officers, chiefs and their assistants. All these persons are civil servants, well schooled in state bureaucracy and directed by the office of the President. They have continuously been involved in the affairs of the ruling party Kenya African National Union (KANU). They have also been used to clear party meetings throughout the country and isolate dissenters. They have also been instrumental in mobilising the ruling party support in the country (Adar et al., 2001). Since the ruling party has used land for the purposes of maintaining political patronage relations and securing political loyalty (Kanyinga, 1997), it is not surprising that the tribunals equally became centres of isolating non-party supports. This explains why as from 1980s President Daniel Moi continuously complained that the courts should not interfere in land matters (see Amnesty International Report on Violation of Human Rights in Kenya, 1997). The tribunals were not truly to serve the people but to serve the political establishment in mobilising support. It is not surprising that politicians allied to KANU and the Provincial Administration have interfered with the decisions of the tribunals on many occasions.

It was with this realisation that the government under intense pressure from the opposition admitted that the District Land Control Boards were being misused and should be streamlined. The members of parliament informed the Minister of Lands and Settlement that before one is appointed to the tribunal or the Land Board, he "must be a KANU sycophant". The Kisumu Town East Member of Parliament also informed the house that the tribunals were dominated by retire chiefs "who are deadwoods" (Daily Nation Thursday, November 2, 2000.

The second challenge facing the land tribunals in Kombewa concerns corruption. This challenge is not only facing the tribunals in Kombewa but it is impacting on the very social and economic foundation of our country. Corruption is everywhere in Kenya. It was admitted to me by the chairman of the KDLT, that at times the members of the tribunal disagree particularly when the parties concerned have corrupted one of them. My respondents confirmed this and even explained that the tribunal at times charges excessive fees in terms of transport to observe (at times not necessary) the land under arbitration. The chairman indicated that since they are not entitled to any salary or allowance the litigants must always meet the cost of each meeting. If the meeting is postponed, the cost becomes higher as elder normally demand that the parties pay for their transport. It is in this process that manipulation gets in particularly when one of the parties is financially able. Such a party will try to corrupt the member to get a fair trial. In some cases, the members of the tribunal have been accused of harassing parties, asking them to summarise their submission hence leaving out vital information, which would have helped determine the case.

Thirdly, the members of the tribunals lack adequate knowledge in basic law. The tribunals comprising village elders were created to settle land disputes on the understanding that they were knowledgeable about local issues. Some of the local issues involving kinship and land inheritance, it was felt, would best be handled with the elders who understood the issues well. But now this is proving unworkable as land disputes are becoming complex. With increased population and urban rural migration, the demand and cost of land has increased. There are some fraudulent land transactions that lead to disputes that the elder cannot unearth or resolve. Cases of mistrust among family members have increased and in some instances, rich members dispose the others without regard to kinship ties. The Central Provincial Commissioner Zachary Ogongo for instance admitted that "members of the tribunal should be knowledgeable on customary law. However, this is inadequate in handling emerging land disputes which required vast knowledge of law and fraud" (Kinyungu Cyrus: Daily Nation, Land Tribunals Under Criticism Over Ruling, 2000).

Fourthly, the tribunals have been under intense pressure from the Law Society of Kenya, who contend that they cannot handle land disputes and are thus a waste of resources and time since most of the cases they handle end up in courts. Due to this, the Law Society of Kenya has described the land tribunals to be responsible for the many cases before the local courts awaiting arbitration. Lastly, other minor challenges have included the inability of the tribunals to ensure that the parties concerned are all present. In a case in which one party is absent, the tribunal normally postpone the hearing. In some situations, violence normally arises when the tribunals are implementing their decisions. It has always required that they hire at least two police officers who also demand some allowance.

Solutions to Challenges Facing Land Tribunal in Kenya

Conclusion

The centrality of land to economic development and social welfare is unquestionable. Land has been used from time immemorial to promote economic growth and human development. More than half of the world's population live and earn a living out of tilling land. Further, the centrality of land to African economic development has been tied to the significance of land resources to cultural and traditional practices. The significance of the land question in African societies is bound to increase given that it is embedded in a dynamic and broad socio-political context. It also has a bearing on the pattern of social relations in the society. How land is held and specifically how access to land is regulated and determined are dimensions of importance to the organisation of economics and politics of that particular social organisation (Kanyinga, 1998).

However, the land reform programme initiated during the colonial government together with the economic reforms initiated by the World Bank and the International Monetary Fund, have added new dimensions to the land question in Africa and Kenya in particular. The reform of land tenure has generated new types of disputes over ownership of land never experienced before, while the economic liberalisation with its emphasis on the private sector and the concomitant weakening of the state has on the other hand opened up new and intensifying contestations over the right to land, in fact the struggle over land emerged into the open. This is particularly so because the economic reforms have not halted the deepening spread of poverty and has not provided a basis for supporting meaningful livelihoods for the rural people. The reforms have thus opened space for the dynamic process of change, which has led as well to the re-emergence of the land question on a broad front. In the process, the state has been rushing in establishing policies, laws and legal systems for land ownership and arbitration that can meet the claim for legitimacy without losing control of the process. As indicated the establishment of land tribunals as they are is not enough. The tribunals must reflect and incorporate economic, political, cultural, social and power related issues if they are to operate efficiently and draw a wider legitimacy and acceptability. Further, local realities of drawing legitimacy must be the guiding principle in the appointment of the tribunal elders not sycophancy. By the end of the day it is the elders who are knowledgeable on land matters at the local level.

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