Principaux aspects des politiques foncières concernant les petites exploitations: tendances passées et pratiques actuelles au Kenya

Au Kenya, la stratégie officielle du gouvernement en matière de politique foncière a pour objectif une utilisation optimale et une répartition équitable des terres, au bénéfice d'une population en forte croissance. Cette stratégie est mise en oeuvre grâce à des programmes visant à transformer les structures foncières coutumières en régimes fonciers de libre propriété, par l'adjudication de terres et la délivrance de titres de propriété individuels.

Dans cet article, l'auteur étudie les régimes fonciers des petits exploitants au Kenya et analyse l'acquisition, la détention et le transfert des terres dans les zones concernées. Selon l'auteur, au Kenya, le régime foncier des petits exploitants est encore largement axé sur le droit coutumier. Les dispositions légales sont en grande partie ignorées, étant considérées comme bureaucratiques et non pertinentes. Pour une mise en oeuvre adéquate de toute politique foncière fondée sur des statuts légaux, il est nécessaire d'analyser et de bien comprendre la situation socioéconomique des petits exploitants, afin que la législation réponde à leurs aspirations, telles qu'ils les perçoivent eux-mêmes.

Cuestiones principales de la política para los pequeños agricultores: tendencias pasadas y prácticas actuales en Kenya

La estrategia oficial del Gobierno en cuanto a la política agraria en Kenya tiene por objeto conseguir un aprovechamiento óptimo y una distribución equitativa de la tierra para su población, en rápido crecimiento. Se ha adoptado esta estrategia mediante programas orientados a transformar las estructuras tradicionales de tenencia en una propiedad de libre disposición a través de la adjudicación y el registro de las tierras con miras a la concesión de títulos individuales de propiedad.

En el presente artículo se examina la estructura de posesión de tierras entre los pequeños agricultores de Kenya. También se analiza cómo se adquieren, poseen y transfieren los intereses relativos a las tierras en estas zonas. Se sostiene que, entre los pequeños agricultores de Kenya, el sistema de posesión de la tierra sigue dependiendo en gran parte de la tradición. Las estipulaciones legales no suelen tenerse en cuenta porque se consideran improcedentes y burocráticas. Las circunstancias socioeconómicas de los pequeños agricultores han de analizarse y comprenderse bien para la aplicación correcta de cualquier política agraria basada en disposiciones legales si se quiere que la ley responda a sus aspiraciones como ellos las perciben.

Major issues of smallholder land policy: past trends and current practices in Kenya

T. M. Konyimbih

Tom M. Konyimbih is a licensed registered valuation surveyor and lecturer in land economics and land taxation at the
University of Nairobi, Kenya. He is involved in research on land tenure changes among resource-poor farmers
in peri-urban areas of transitional economies.

The official government strategy on land policy in Kenya aims to achieve optimum utilization and equitable distribution of land for the country's rapidly increasing population. This strategy has been pursued with programmes to transform customary tenure structures to statutory freehold through land adjudication and registration for the issuance of individual titles. This article examines the landholding structure in the smallholder sector in Kenya. It analyses how interests in land in those areas are acquired, held and transferred.

Among the smallholders in Kenya, the landholding system is still largely custom driven. Statutory stipulations are largely ignored as being irrelevant and bureaucratic. For the proper implementation of any land policy based on statutes, the socio-economic circumstances of smallholders must first be analysed and understood in order to make the law responsive to their aspirations.

INTRODUCTION

The importance of land in an agricultural economy needs no emphasis. It constitutes the primary form of wealth and source of political power. In Kenya, where the majority of people obtain their livelihood directly from agriculture, land ownership and use have always been sensitive issues. The first president of Kenya, Jomo Kenyatta, noted in 1964 that "Our greatest asset in Kenya is our land. This is the heritage we received from our forefathers. In land lies our salvation and survival" (Harbeson, 1971).

Kenyans have therefore maintained a great emotional and psychological attachment to land; it represents their link with the past, the present and the future in addition to being their most important tangible asset. Thus it is considered to be the responsibility of the present generation to conserve and use land wisely, holding it in trust for future generations.

Out of the 576 700 km2 of Kenya's total land surface, 80 percent is categorized as arid and semi-arid, while 2 percent is covered by inland water. Only 18 percent is considered to have high or medium agricultural potential, and these areas support approximately two-thirds of the country's population, (Development Plan, 1994-96).

The ownership, distribution and use of land in these high- and medium-potential areas (where smallholdings and relatively large holdings coexist) have been a matter of great national interest since the colonial period. This is due to the fact that any group controlling land policy is able to control not only the use and allocation of this scarce economic resource but also the authoritative allocation of social values for the society in general (Harbeson, 1971). Land policy has therefore always been at the centre of national politics, especially in regions that experienced colonial settlement in the early years of the twentieth century.

This article identifies and discusses some of the major policy issues in smallholder areas in Kenya with a view to determining the direction of policy strategy and change.

THE SIGNIFICANCE OF SMALLHOLDINGS IN KENYA

Smallholdings in Kenya are mainly family farms, comprising both the main production and consumption unit. They are worked chiefly by family labour (with occasional and probably seasonal hiring of labour, as resources permit). Subsistence crops and some cash crops are grown. In many areas large farms have been subdivided into individual smallholdings averaging between 0.2 and 12 ha (Statistical Abstract, 1996) with, in some cases, individual title documents.

The continued importance of smallholdings in agricultural production in Kenya is reflected in Table 1, which indicates that over the five-year period 1995-99 smallholdings accounted for an average of 69.54 percent of general crop commodity sales to marketing boards, with the large farms contributing only 30.46 per cent. This large percentage share on the part of smallholdings has been achieved despite the fact that storage, transportation and service facilities are generally of lower quality in areas characterized by small farms.

THE CURRENT LAND TENURE SYSTEM

Although Kenya was one of the first African countries to undertake a major land reform programme, it still maintains a bimodal land tenure system whereby individual ownership of land based on the Western model involving adjudication, consolidation and registration of individual titles exists alongside the communal land tenure system. This coexistence is particularly prevalent in Trust (tribal) Land areas and among the pastoral communities.

Currently, some 80 percent of the total land area in Kenya comprises Trust Land awaiting adjudication and registration to be used by smallholders for cash crops and for peasant farming. These Trust Lands are managed by the appropriate local authorities (county councils) and the Commissioner of Lands under the Trust Land Act.

Only 6 percent of the total land area in Kenya has so far been registered under individual titles (Development Plan 1997-2001).

Areas that were designated as Crown Land during the colonial period (1895-1963) have become government land, while the former indigenous reserves have become Trust Land. Freehold land mainly comprises former scheduled land, some of which has been subdivided into African Smallholder Schemes. Other smallholders' interests arise from the adjudication and registration of land in Trust Land areas.

GOVERNMENT POLICY ON LAND

In Kenya, government land policy has in most cases been linked with agricultural development policies, which include land settlement, land adjudication and registration, marketing, pricing support and credit provision (Peterson, 1986). In virtually all its development plans the government has been concerned with land-use policy that relates to a system of laws, rules, regulations and practices that govern the rights and obligations of land owners, especially family smallholdings, together with appropriate guidelines to ensure the optimum utilization of available land in both rural and urban areas (Agricultural Act).

The government's long-term strategy on land has been to ensure that all land is planned, surveyed, adjudicated and registered with a view to issuing individual titles. By 31 December 1992, 2 127 968 titles had been issued under the Registered Lands Acts, 90 percent of which were issued in medium and high potential areas (Development Plan, 1994-96).

The land consolidation programme, initiated in 1956 and aimed at gathering land fragments into sizeable and shapely plots, has been completed only in Central Province; work is in progress in Baringo, Meru and Taita Taveta Districts while in some districts its implementation has been prevented by customary practices in those areas. The government intends to continue the programme only in areas where its implementation has reached an advanced stage during the current plan period. The programme was initiated during the colonial period and was continued by the independent African government despite the fact that some communities did not favour land consolidation - arguing that fragmented holdings were useful for the cultivation of different crops that need varying soil types. Research undertaken in countries where such a programme has succeeded (for example Japan, the Republic of Korea and Taiwan Province of China) indicate that a suspension of the normal political process - either by direct intervention by an external political or military power or by a strong monarch or military ruler, as in Iran and Peru, or by a socialist revolution or the explosion of peasant unrest threatening the political and social order, as in Bolivia and Mexico (Cummings, 1978) - was necessary for it to be fully implemented.

The land adjudication programme has been ongoing in Nyanza, Western, Rift Valley, Eastern, Northeastern and Coast Provinces. By 1991, 6 885 329 ha of land comprising 1 318 988 parcels had been subdivided, adjudicated and registered nationwide. During the 1994-96 plan period, some 9 719 621 ha had been registered. In Kajiado and Narok Districts, 369 group ranches comprising 304 575 ha and 63 189 members were registered (Development Plan 1994-96).

Other major land reforms undertaken by the government after political independence in 1963 were the land transfer and settlement schemes. The most popular programme was the Million-Acre settlement scheme introduced in 1961 by the colonial government and continued by the independent government.

Key issues relating to these land tenure changes include their failure to alter significantly the pattern of land resource distribution; instead they helped maintain the large farm sector and increased the number of smallholdings with very limited sizes. This is because the policies continue to be implemented within a tribal framework; they are thus juxtaposed between those who wish to push them through their logical economic, non-tribal conclusion and those who fear that their own people cannot compete in a non-tribal society based on individual land ownership (King, 1977) and encouraging individualized land transactions.

The land policies have ignored the issue of the recent high population increase in certain tribal areas, for example Kikuyu, Luhya and Luo regions. They have continued to preserve the old ethnic boundaries and social units and have therefore given rise to a skewed population distribution, with some areas experiencing population density as high as 380 people/km2 while in some it is as low as 15 people/km2 (Development Plan, 1989-93). The economic problems caused by this imbalance include reduced agricultural production per capita because in the highly populated areas there is insufficient farmland to engage fully the families who live there.

There is also the practical issue of refragmentation of smallholder lands in areas where consolidation had been completed or adjudication and registration of title have taken place. According to a survey conducted in 1971 (in Nyeri District where consolidation was completed in 1962), it was found that refragmentation has begun to occur such that some progressive farmers once again have more than one non-contiguous pieces of land in the same area. There is fear that land consolidation is unlikely to be permanent. In other instances, siblings without off-farm incomes insist on subdividing their father's land - officially or unofficially - to obtain a portion to farm so that they can feed their families.

Land ownership and use have been complicated by numerous pieces of legislation and complex procedures relating to subdivisions and registrations. Boundary disputes over already adjudicated and registered lands are registered at the rate of about 900 per year under the Registered Land Act. By 31 December 1992 there were 8 844 unsettled cases under the Land Titles Act in Coast Province alone. Unsettled disputes before the arbitration boards and appeal courts continue to grow (Development Plan 1994-96). Table 2 shows some of the cases handled in 1992 by the Land Adjudication Board.

There are numerous cases of land succession and sales cases that go unregistered because they are not reported to Land Control Boards and Land Registrars. This happens because in many communities people still regard land adjudication largely as a means of securing boundaries and continue to deal with their land according to customary principles and not according to statutory procedures. Most smallholders see the statutory procedures for determining heirs as expensive and bureaucratic, particularly when the land is to be divided between two or more beneficiaries. Large numbers of subdivisions, sales and successions have already occurred that have not been registered and this implies continued disputes over land (Coldham, 1979). What this means is that the law in the statutes does not necessarily correspond with the practice on the ground.

Government policy on land has not therefore been adequately comprehensive or practical. Little attention has been paid to smallholder lands, which constitute about 75 percent of the total land area and account for a large proportion of agricultural production. Credit and extension services have mostly been targeted at the few remaining large holdings and ranches (Heyer, 1981).

ACCESS TO LAND

Access to smallholder land in Kenya is mainly through inheritance, purchase, government alienation and gift. The Constitution of Kenya recognizes the importance of customary laws regarding rights in land and therefore embraces these laws within its framework. Section 115 of the Kenyan Constitution states that: "Each county council shall hold in trust the land vested in it for the benefit of the persons ordinarily resident on that land and shall give effect to such rights, interests or other benefit in respect of the land as may, under the African customary law for the time being in force and applicable thereto be vested in any tribe, group, family or individuals."

Customary land tenure is defined as the rights in land of any Kenyan citizen using or occupying land in accordance with the custom or practice of the area that is not repugnant to any written law. The county council can also appoint land-allocating committees with the approval of the district commissioner.

Customary land rights are exercised in the country in varying degrees, depending on the tribe. In pastoral communities land inheritance occurs on a clan or lineage basis within a given territorial region. Land is owned communally and individual rights of ownership are very limited, although individuals can exercise full right of use. This practice is still common among the Maasai, Samburu, Turkana and Pokot peoples despite the introduction of group ranches under the Land (Group) Representatives Act.

Among the agricultural communities, even where registration of individual titles has taken place, access to land rights is still being exercised according to customary principles - with inheritance and gifts being the most common. According to a study carried out by Jean Davidson in 1985 in Mathira (Central Province) and Chwele (Western Province), there is gender bias in access to land in these regions of Kenya, typical of practices among other tribes where customary land tenure systems operate. Among many of the Kenyan ethnic communities, women are assigned pieces of land for their use by their husbands. Thus, they acquire the right of access to land through marriage. Women do not customarily inherit land from their parents and therefore divorced or unmarried women may only secure temporary rights of use on a portion of their father's land; ultimately they are at the mercy of legitimate customary claimants - often their brothers or cousins. Government land policies have not fully acknowledged the fact that it is women who are mostly involved in the production of cash crops and subsistence crops in the smallholdings. Land policies since 1963 have mainly favoured men (Barber, 1970), although the Law of Succession Act does not bar women from inheriting land from their relatives.

In most Kenyan communities, male siblings are allocated plots of land for their use when they marry, as a gift from their fathers. They do not, however, have an automatic right to dispose of these plots if the legal ownership rights continue to be held by the father. They subsequently inherit the plots when the father dies and thereafter may have the right to dispose of them. The same practice of giving land as a gift exists even where registration of individual titles has taken place. For example, a person may subdivide his registered portion to give land to a brother who was absent during the time of adjudication and registration. A study carried out by Okoth-Ogendo in 1974 on the occupation of land registered in other peoples' names in South Nyanza and Kisii Districts revealed that the individuals occupying the land felt that they had the right to do so by virtue of the fact that the land belonged to the lineage or family of which they were members and claimed that even those properties that had been registered had been received by inheritance or family partition and not through purchase or gift and therefore the holders had no moral right to exclude others from it if those others were part of the recognized lineage (Okoth-Ogendo, 1976).

Although the customary land tenure system is still recognized in a number of communities, it currently faces problems brought about by social change; for example, the increase in population has led to a decline in community control over the allocation of land because there are not enough cultivable vacant plots to allocate. Socio-economic changes will inevitably lead to some breakdown of lineage or clan control over individuals and their activities in lending or selling land to outsiders. The cultivation of valuable cash crops and more expensive forms of investment in land that require the supervision and protection of land as private property has led in some areas to real feelings of individual ownership of the land because the user has to exclude other members of the society from the land in order to realize the benefits of his investment.

The lack of written wills or sworn statements in the customary laws of inheritance makes it difficult for the subdivisions to be relatively equal in size and economic viability. Among many tribal communities, division of land among sons is based on birth right: the eldest son receives his share first and the youngest receives his last, which means that younger sons sometimes go without land in cases where the family is polygamous and the land held is insufficient, or they may receive only an unproductive piece. This system of right of access to land can be a source of conflict among family members.

THE NATURE OF LAND RIGHTS HELD BY SMALLHOLDERS

The legal conception of land ownership includes all things that are permanently attached to the land and all things that are found under the soil.

In Kenya smallholders hold both customary rights and statutory rights. The Constitution recognizes both types of land rights, thus Section 115 of the Kenya Constitution (1963) vests all rights under the customary land tenure system in the county councils. Any Kenyan citizen using or occupying land in accordance with the customs or law of the area enjoys the following rights:

1. rights of use, i.e. to build upon it, to grow and harvest crops;
2. the right to allocate it;
3. the right to dispose of, sell and alienate it;
4. the right to determine the inheritance and succession procedure.

Rights 2-4 above are subject to the provisions of the Land Control Act of the laws of Kenya.

Under the statutory provisions, smallholders are issued with individual titles to their land after adjudication and registration has taken place and every detail relating to the ownership has been entered into the land register. The land then ceases to be subject to customary law and is governed instead by the complete code of substantive law - as contained in the Registered Land Act.

This system of registration was designed to put an end to boundary disputes, to make titles secure and to introduce safe, simple and cheap systems of conveyancing. It was also hoped that it would encourage farmers to invest labour and capital in their holdings and enable them to offer registered titles as security for credit (Coldham, 1979).

This bimodal land tenure system has resulted in much of the confusion over the nature of individual rights in customary land that can be witnessed in Kenya today.

There are three criteria that a land tenure structure must meet in order for it to allocate land efficiently. These are:

1. Land rights must be clearly defined and have legal and tenure certainty.
2. Benefits and costs must be internalized in order to prevent divergence between private and social costs.
3. Individuals must be free to enter into contracts that are enforced by an efficient legal system (Ault and Rutman, 1979).

The major problem that occurs when both the customary rights and statutory rights are applied is when land transfer or disposition of interests in land is due to be undertaken by an individual. In such cases customary law is given preference under the Land Control Act. The individual has to consult with his or her relatives when contemplating disposing of an interest in land and seek their consent under customary rules. According to the statutory provision, the title of the registered proprietor is paramount - a person with such a title needs no further proof of their ownership. This is a policy issue that has not been addressed fully.

METHODS OF DISPOSING INTERESTS IN LAND

Given the bimodal nature of the land tenure system in Kenya, disposing of an interest in land is at times regulated by both statutory provisions and customary principles. The methods of disposal include inheritance, sale, gift, exchange, alienation, lease and subdivision.

Under the statutory provisions, an individual with a registered title has exclusive control over the disposition of his plot of land, including the right to transfer the land to another person at his own discretion. Any transactions or transfer of land must be submitted to the Land Control Board (under the Land Control Act) for its consent and to be registered. This does not always occur as most dispositions are still arranged informally. The inheritance of land continues to be determined under customary principles. A father subdivides among his adult sons a single piece of land of which he is the registered proprietor, without submitting the details of the transfer to the Land Control Board for its consideration and approval. For instance, among the Luo and the Kikuyu, when a man marries or reaches adulthood he is allocated a piece of land to cultivate or on which to build his house. While in practice this transfer is seldom revoked, the son's statutory power of subsequently transferring the land is very restricted. The procedure of succession as laid down by the 1963 Registered Land Act for the ascertainment of heirs and registration of succession is both expensive and legally complicated and therefore most people tend to avoid the procedures as required by the statutory law and instead resort to customary rules. If such land disposals continue to take place without the knowledge of the Land Control Board then the courts will increasingly be called upon to settle disputes about the ownership of registered land. In effect, the courts will be readjudicating land titles (Coldham, 1979).

As noted above, statutory provisions concerning sales of land require that the parties to the transaction go to the local land registry to fill in forms applying for the respective Land Control Board's consent. Their application is entered into a presentation book and they are asked to attend the following board meeting (meetings are held once a month). The Land Control Board may approve the sale after considering the views of the seller's next of kin and especially if he has another piece of land for subsistence. This procedure of land sale is bureaucratic and costly and therefore discourages the parties concerned; sales are normally carried out without seeking the consent of the Land Control Board. These unregistered sales are unfortunately devoid of legal effect and have the potential to create problems because a dishonest person could sell the same piece of land to a third party and if this second sale is registered then the first (unregistered) buyer stands to lose out.

The exchange of land is not very common, although a person may seek to exchange land to obtain land that is more appropriate for its intended use; for instance, if he has land in a valley that sometimes becomes swampy during the rainy season and he would like to build a home he may look for a neighbour who has land on hilly ground and is willing to exchange. In most communities land exchange is carried out on the basis of a mutual understanding and is rarely reported to the Land Control Board for approval as is required by section 6 of the Land Control Act.

CONCLUSION

Land policy is a very important determinant of land distribution, allocation and use in any country. The realization of the objectives of land policy is dependent on the response and cooperation of those involved - thus both the government and the smallholders (whom the land policy is supposed to guide so that they can gain optimal benefits from the land) should cooperate in order to ensure that the policy is properly implemented. The nature of tenure rights should be well defined within a particular land tenure system. In the case of land policy in Kenya, there are anomalies that need to be addressed. This is because despite the attempts to bring customary land rights within a new statutory tenure system based on the registration of individual titles and therefore limiting the effectiveness of applying customary laws in land ownership and transfer, smallholder behaviour on the ground has not changed so as to incorporate the new statutory system.

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