Kenya’s elections showed its fragile state of democracy - much of it the legacy of a land policy now widely out of step with the times.

Below is an article published by John Mbaria of the East African:

As Kenya grapples with how to address the highly complicated land question, the story of one of the country’s most promising lawyers’ struggle to prove land ownership patterns in parts of the Rift Valley province and elsewhere comes to mind.

Elijah Marima Sempeta was murdered in early 2005, just months after he had scoured archives in London for documents the Maasai needed for a suit against both the British and Kenyan governments over the “loss” of its land in the early 1900s. 

That was in early 2004, and Sempeta had, on many occasions, publicly questioned why the Magadi Soda Company (now Tata Chemicals) continued to monopolise the exploitation of soda ash in Lake Magadi. Sempeta’s grouse was that the 222,788 acres it was sitting on had been hived off from what was formerly Maasai land. 

To back up his case, Sempeta had secured copies of a 99-year lease given to the company on November 1, 1924, by then Governor and Commander-in-Chief of the Colony and Protectorate of Kenya, Edward William Macleay Grig. The document indicated that the lease could be extended up to 2023, with the company only required to pay was an annual rent of Ksh20 (29 US cents). Sempeta found it unacceptable that a company reputed to be the largest producer of soda ash in Africa had been paying so little as annual rent for 80 years. 

[…]

In its defence, the company, through then Chief Executive James Mathenge, claimed that besides the said rent, the company had been paying millions of shillings in royalties to the Kenya government and hundreds of thousands more to Olkejuado County Council as rates.

Later, Sempeta engaged in a series of daring acts. Together with fellow activists, he registered the Maa Resources Company with the intention of exploiting soda ash from the lake for possible industrial use by the community. A soft-spoken but eloquent and sharp-tongued man, the 34-year born-again lawyer had also argued — in the full glare of the media — that since the 1904 Anglo-Maasai Agreement had expired (in 2004), it was time remnants of the colonial order returned the lands they still occupied in Laikipia, Nakuru and elsewhere to the Maasai. But this was to remain a dream, for Sempeta was killed on March 9, 2005 near his home in Ngong town. 

But his legacy lives on. Sempeta had secured copies of documents that paint a clearer picture of pre-colonial and colonial land ownership patterns in many areas in Rift Valley Province.

In addition, books on the colonial land situation and other relevant documents show that many areas had — and still bear — Maasai names. There is evidence to show that, just like the colonial settlers, other communities — the Kalenjin, Kisii, Kikuyu and Luhya — came into the picture long after the Maasai. 

In her book, Moving the Maasai: A Colonial Misadventure, for instance, Lotte Hughes has maps showing how areas such as Nakuru (Nakuro in Maa ), Uasin Gishu, Eldoret, Molo (Ilmolong in Maa) and elsewhere, were all part of the expansive Maasai land by 1890. The names the community gave to certain areas signified broad and specific unique geographical formations therein. 

It is also clear from the maps that the land occupied by the Maasai stretched from Mt Kilimanjaro, right across the Anglo-German boundary (Kenya-Tanzanian border) to Laikipia and Baringo. Inhabiting such vast territory, the community was able to fashion its livestock economy around “rational grazing”. This entailed migrating with its herds in tandem with changes in climatic conditions, so they would be in the low lands during wet seasons and move to higher grounds in times of drought.

Meanwhile, the Nandi were occupying the southern part of the plateau west of the Mau escarpment by the time the British arrived in the country. The Encyclopedia Britannica says that it is from here that the community, led by Koitalel arap Samoei, repeatedly raided the railway and telegraph lines. But the community was vanquished in a three-month (September to November,1905) military expedition and it was moved into a reserve in early 1906.

In addition, the community was markedly weakened towards the late 1890s, thanks to intra community conflict and cattle diseases. The community was to lose much of its land in a process aptly called the “tragedy of the commons”. This was after the community’s paramount leader, Oloibon Lenana, together with like-minded clan leaders, made two controversial agreements with British colonial authorities (in 1904 and 1911). 

In one of the documents Sempeta unearthed, History of the Maasai Moves, there is a detailed record of how the community had continued to occupy the relevant areas even after the construction of the Uganda railway. It says: “In 1902-1903, when settlers were first attracted to British East Africa in considerable numbers, the Maasai roamed unmolested on both sides of the Uganda Railway, from Molo to Naivasha and on the south from Nairobi to Kiu (close to present-day Sultan Hamud).” 

This is corroborated by descriptions of the inhabitants of the former British East Africa by Encyclopedia Britannica: “The African races include representatives of various stocks... the Bantu division of the negroes is represented chiefly in the south, the principal tribes (sic) being the Wakamba, Wakikuyu and Wanyika... Nilotic tribes (sic), including the Nandi, Lumbwa (sic), Suk and Turkana, are found in the north-west. Of Hamitic strain are the Maasai, a race of cattle-rearers speaking a Nilotic language who occupy part of the uplands bordering on the eastern Rift Valley.”

Unlike sedentary communities in Kenya, the Maasai moved with their animals in search of fresh pasture. In most places, they left behind huts they would use later. Nevertheless, the British saw this land as uninhabited and ripe for European settlement. “In particular, this was the case in respect of the Rift Valley, an area admirably suited to stock raising and European settlement,” says History of the Maasai Moves. 

Before long, Charles Eliot (a colonial administrator involved in the writing of the Devonshire White paper that prepared the way for massive land grabbing) led other British settlers in arguments — with racial overtones — questioning the Maasai’s right to “monopolise” particular districts.  “I cannot admit that wandering tribes (sic) have a right to keep other and superior races out of large tracts merely because they have acquired a habit of straggling over far more land than they can utilise.” 

To get land in the Rift Valley, British and South African immigrants had to apply for the land to the colonial administration, who almost always granted such requests.

First to make such an application was the East African Syndicate (a South African company), which applied for 320,000 acres in the then Naivasha District in April 1902. Lord Delamere had also applied for 100,000 acres of the best and most favoured grazing grounds of the Maasai between lakes Nakuru and Naivasha. 

The Encyclopedia Britannica says that by the end of 1905, over a million acres of land had been leased or sold by the protectorate authorities. 

And History of the Maasai Moves says: “Lord Delamere’s application was, however, refused and he selected another area on the Molo River.” The early colonial administration appeared to take into consideration some of the objections raised by the Maasai against settling British nationals on their land. At some point, Eliot informed Maasai elders that the colonial administration would not allocate more land between Naivasha and Nakuru, but that did not hold for long. 

Soon, much of the land in the Rift Valley and on the Kinangop Plateau, Kedong and greater part of Gilgil, including the land adjacent to the Njoro River, had been allocated to British and South African settlers. Thereafter, the colonial administration removed the Maasai entirely from the Rift Valley to the Laikipia plateau, then occupied by the Laikipiak clan. 

The scheme seemed to have begun after the Eliot’s resignation and the appointment of Donald Stewart to the administration. Stewart’s first task was to hold a meeting with Maasai chiefs — Lenana, Masikondi, Legalishu and others representing the Purko, Kakonyukye, Loita, Damat and L’Otayok clans on August 9, 1904.

“After explaining the position to them, he asked if it was true that they were agreeable to move to other lands of their own free will and give up the Rift Valley to European settlement.” The document says that soon, Stewart introduced an agreement which the chiefs signed, binding their clans to it “so long as the Maasai as a race shall exist”.

It is evident that by removing the Maasai from parts of the Rift Valley, the colonial administration not only wanted to minimise clashes between them and the community, but also to create room for numerous settlers arriving from South Africa and Britain. That marked the beginning of the country’s unresolved land problems, which remain unresolved.