Reclaiming ancestral land

In 1904 the first Anglo-Maasai agreement on land was signed between the British and the Maasais, as sovereign nations. A hundred years later, the Maasais claim that the leases have expired and that their ancestral land should fall back to them.

By Dorthe Skovgaard Mortensen

According to the agreement the Maasai would hand over land to European settlers, and the land to which the Maasais were resettled was not to be taken away by Europeans. The Maasais were compensated for crops and would be given a corridor for their cattle. The treaty was signed without any date of expiry, but would stand for as long as the Maasais remain as a race.

After signing the treaty the British government gave out leases to white farmers settling on former Maasai land. Today, a hundred years later, the Maasais claim that the leases have expired and that their ancestral land should fall back to them.

Land belongs to the state

Reflecting on technicalities in reclaiming land and possible solutions to the problem professor in land economics at University of Nairobi Paul Maurice Syagga stresses that “the leases are not between the government and the Maasais. They are between the government and individual farmers, to whom the land was given for the purpose of development. Initially the leases were 999-years in the agricultural areas whereas 99-years in urban areas”.

According to professor Syagga, the Kenyan government took over all assets and liabilities from the British colony at independence. This parallels the situation where, after elections, a government takes over from a previous, but the institutions of the state remain. “The Kenyan government did not repel the Land Act or revoke any leases inherited from the British government. Therefore, all leases given out under the government Lands Act enacted in 1915 have continued”, says Syagga.

The fact that the government of Kenya inherited the so-called “head-lease”, to which all leases will revert when they expire, makes the government the official owner of the land. Therefore, the question of original owners does not arise. “The state reserves the right to decide to whom land can be leased or sold, depending on the development proposals that the government considers reasonable at the given time”, says Syagga.

Restitution or redistribution

Professor Syagga emphasizes that the government must have two considerations in mind when deciding on whether to renew the lease or reallocate land. One is political/economical: What is the highest and best use of that land at the particular moment of time? Is there a need for resolving or reallocating the use of that particular land? The other is practical implementation: is the allocation of land feasible? Have the parcels of land for example been developed with infrastructure and buildings?

Ethical considerations should arise in another manner. “The Maasai should make a presentation to the government indicating to what extent injustices have been committed and a request for restitution and/or redistribution”, says Syagga who holds this very strongly. “By restitution, I mean seeking some kind of compensation, not necessarily relating only to the value of land but also to other losses emanating from expropriation by the colonial government”. Syagga stresses that it is important to agree on a date from which a compensation should be considered, 1904, 1911 or 2004?

By redistribution the professor denotes finding a way to allocate the Maasais some land. “The Maasais can request the government to arrange for a fund like the Settlement Fund Trust that enabled some Kenyans to buy out the settlers after independence, to enhance negotiations with present land owners who wish to sell their land to the Maasai community on the basis of a “willing-seller, willing-buyer” principle”, that is according to Syagga the most logical solution.

Who owns the land?

The people occupying ancestral Maasai land were given the right by the government, the same government that protects ownership of private property. Syagga, therefore, emphasizes that rectification of any wrongs that may have been done, must be dealt with either by restitution or by redistribution. “The people occupying land are not necessarily foreigners. Due to the 1 million acres scheme only a relatively small amount of land in Kenya is owned by the white. In the highly potential agricultural areas of Rift Valley, Kithale, Nakuru and Eldoret, for example, land is by and large in the hands of local Kenyans. The question of who got it and how they got it is a matter for the government to answer”, says the professor.

Professor Syagga appeals to the Government and the Maasai to find a modern solution. “The Maasai should not perpetuate invasions of ranches and the government should state its position; not out of spite and not by ignoring the fact that Maasai are making a claim, but by facing it squarely by putting up appropriate arguments that convince not only the Maasai, but all Kenyans who are sympathetic with the Maasai cause”, concludes Syagga.