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UNCLAS NAIROBI 002449 
 
SIPDIS 
 
SENSITIVE 
SIPDIS 
 
E.O. 12958:  N/A 
TAGS: ECON EAGR EINV EAID ETRD PGOV KCOR KE
SUBJECT: LAND REFORM IN KENYA: TRYING TO RIGHT 
PAST WRONGS BUT AT WHAT PRICE FOR THE FUTURE? 
 
SENSITIVE BUT UNCLASSIFIED.  FOR USG USE ONLY. 
 
¶1. (SBU) SUMMARY:  The combination of an ever-expanding 
population, settler legacy, poverty, corruption, elite 
impunity, and an inadequate land law system make the 
ownership, tenure, and use of land one of the most volatile 
questions in Kenya today and one of the most serious 
impediments to economic development.  Ethnic clashes; slums 
and squatters; poverty and a lack of available capital; 
corruption and political malfeasance -- all either reflect 
or are reflected in the problems arising from KenyaQs land 
rights and distribution regime.  The proposed new National 
Land Policy makes an attempt to solve some of these 
problems, but if translated literally into law, could have 
gravely detrimental unintended consequences for KenyaQs 
economy.  END SUMMARY. 
 
--------------------------------------------- ------- 
Demographic Pressures and Badly Skewed Distribution 
--------------------------------------------- ------- 
 
¶2. (U) KenyaQs land mass can be roughly divided into three 
regions:  fertile agricultural; arid and semi-arid (ASAL); 
and coastal.  The fertile agricultural land (roughly the 
central and south-east parts of the country) comprises 
about 17% of KenyaQs surface area and supports some 75% of 
KenyaQs 36 million people; it is the epicenter of KenyaQs 
agriculture-based economy.  About 50% of this rich 
agricultural land is owned by less than 20% of the 
population.  Nationwide, it is estimated that only about 
18% of the population owns more than 1.5 acres 
(approximately 13% of Kenyans are landless and about 69% 
own one and half acres or less).  Within this select 18%, 
it is widely believed that there are a fortunate few who 
own most of KenyaQs valuable property.  While no one knows 
exactly who they are and what they own, a group of former 
and current politicians and power brokers, together with 
the remnants of the white settlers and a few well-connected 
businessmen and farmers, collectively own hundreds of 
thousands and maybe even millions of acres of land.  Tens 
of thousands of these acres were bought legally, albeit 
with the taint of inappropriate political influence. 
Thousands more, however, were acquired illegally, often 
through programs putatively designed to distribute land to 
squatters and the landless.  To add insult to injury, a 
significant portion of these large land holdings are not 
being developed or used; they are being held as speculative 
investments by absentee landlords. 
 
¶3. (U) For the average Kenyan, this situation is simply 
galling.  Land, and the appertaining agricultural, water, 
and grazing rights, are not only the greatest source of 
wealth accessible to them, but are also of enormous 
cultural importance.  For most Kenyans, the possession of 
land, the raising of crops and livestock, and the obtaining 
of mortgages to raise capital for further development is 
the only route out of poverty.  Land ownership is highly 
valued as a status marker for most of KenyaQs ethnic groups 
(cattle ownership, which necessitates grazing land, serves 
the same purpose for pastoralists).  As the population 
increases, owning enough land to prosper, or even to 
survive, is becoming an increasingly difficult proposition. 
The population of Kenya has increased almost 400% in the 
four decades since independence while the amount of land 
has remained the same.  Even under the best land system, 
demographic pressure alone would make land rights a very 
serious issue.  KenyaQs land system is far from the best, 
and the lack of available land is exacerbated by chronic 
uncertainty over who owns what land and perceived 
injustices, both historic and current.  This potent mix 
retards development, contributes to widespread poverty, and 
creates such frustration and anger that violent inter- 
communal clashes over land are common, especially in 
election years. 
 
--------------------------------------------- - 
A History Rife With Unfairness and Illegality 
--------------------------------------------- - 
 
¶4. (U) The history of KenyaQs land problems is rather 
 
complicated.  In broad strokes, from the late 1880s to the 
mid-1950s, the British colonial government took overt 
control of about 50% percent of the prime agricultural land 
(mostly in the middle of the country) and large parts of 
the coast.  In some instances the land was simply taken; in 
others, it was ceded to the British government by treaties 
of questionable fairness, often by leaders who had no 
authority over the land they ceded.  Much of this land was 
either sold or leased to white settlers and became famously 
known as the QWhite Highlands.Q  Estimates of how many 
thousands of KenyaQs people were displaced by this process 
vary; it is certain, however, that millions of acres of 
high-quality land came under direct British colonial 
control and use. 
 
¶5. (U) The rest of Kenya was largely QnativeQ land, which 
was held Qin trustQ by the British government for the 
benefit of its inhabitants and was not as closely 
controlled by the colonial government.  Most of KenyaQs 
ASAL regions and much of the good agricultural land not 
occupied by the settlers fell under this category. 
Finally, some areas were designated as QcrownQ land, which 
reserved the land for the use of the British Government. 
Land one mile on either side of the Kenya-Uganda railway, 
for example, was QcrownQ land, as were large parts of 
KenyaQs coast, forests and riparian areas.  Note:  Legally, 
the QnativeQ lands were also QcrownQ lands and thus their 
inhabitants could be alienated from their lands at any 
time. In practice, this did not happen with great 
frequency, as much of the land was ASAL and thus of little 
value to the settlers.  End note. 
 
¶6. (U) In the lead-up to independence, the British 
government attempted to place land back in the hands of 
indigenous Kenyans through a series of settlement and 
repurchasing programs.  The programs met with mixed 
success; while many thousands of families were resettled on 
the land they had lost, the Kenyans who had become 
politically powerful and/or wealthy during the colonial 
period were able to purchase vast tracts of the best land, 
leaving much of the population with the left-overs or 
nothing at all.  Note:  During the 1950sQ Mau Mau 
insurrection, many thousands of Kenyans, primarily of the 
Kikuyu tribe, lost their lands.  While some of them were 
resettled, many more were not.  End note.  At independence 
in 1963, the newly-empowered Government of Kenya (GOK) 
decreed that whatever land rights were in existence at the 
time would be confirmed and upheld. 
 
--------------------------------------------- ----- 
Actors change, but the colonial status quo remains 
--------------------------------------------- ----- 
 
¶7. (SBU) The decision by the post-independence GOK to 
maintain the colonial period status quo for land rights at 
independence was, in essence, a perpetuation of the land 
rights system used by the British.  The land purchased from 
the settlers or redistributed by the British government 
became QprivateQ land.  The land the British had declared 
QcrownQ land became QgovernmentQ land.  The President, 
through the Commissioner of Lands, took on the powers of 
the colonial governor to allocate that land as he saw fit, 
although ostensibly only for Qpublic interest.Q  Most 
QnativeQ land became QtrustQ land, governed by county 
councils in trust for the inhabitants.  Many of the 
problems of the colonial period also persisted, if with 
different actors.  QPrivateQ land was, and still is, 
largely owned by the rich and powerful and obtained through 
a combination of (often ill-gotten) wealth, luck, and 
influence peddling.  Thousands of Kenyans were, and still 
are, landless squatters. 
 
¶8. (SBU) During the 1980s and 1990s, the GOK badly abused 
its right to dispose of QgovernmentQ land, selling, 
leasing, or simply giving large blocks of it to foreign 
investors, companies, government officials, or well- 
connected businessmen and farmers, often to buy political 
influence or acquiescence.  QTrustQ land was also abused 
extensively during the same period, with allocations to 
those who had no connection to the communities occupying 
 
the land other than corrupt relationships with the county 
councils.  One of the most authoritative studies done on 
land tenure in Kenya, the Judicial Commission of Inquiry on 
Illegal and Irregular Allocation of Public Land (QNdungQu 
ReportQ), estimates that 90% of the land titles issued in 
the last twenty years have been either illegal or the 
result of influence-peddling.  Other estimates state that 
of the 1.5 million registered titles in Kenya, fully 
500,000 are illegal. 
 
------------------------------------------ 
Coast Province Is Particularly Problematic 
------------------------------------------ 
 
¶9. (SBU) While most of KenyaQs ethnic groups have suffered 
land deprivations at the hands of the British, the GOK, or 
both, the inhabitants of Coast Province, about half of whom 
are Muslim, have arguably suffered the most.  Their 
problems date back to 1888, when the Sultan of Zanzibar 
(who at the time controlled much of the East Africa coast) 
ceded to the Imperial British East Africa Company virtually 
all rights to land in a ten-mile wide strip along the 
entire coast of Kenya.  (Note:  The strip actually went 
from Tanzania to Somalia. End note.)  In 1908, the colonial 
government passed a law stating that all land in the ten- 
mile strip would become QcrownQ land unless the inhabitants 
could assert their rights to ownership during a six-month 
window.  Most coastal inhabitants either could not produce 
the requisite paperwork, or did not even know of the 
requirement.  Accordingly, when the window closed almost 
all of them lost their rights to their land.  At 
independence, virtually none of the land became QprivateQ 
land under the ownership of the indigenous people.  The 
vast majority became either QgovernmentQ land or QprivateQ 
land under the ownership of foreign investors or wealthy 
Kenyans from other parts of the country. 
 
¶10. (SBU) Perhaps as nowhere else in Kenya, the GOK abused 
its authority over QpublicQ land in Coast Province.  In 
just one example, six salt companies were given 10,465 
hectares of QpublicQ land with no regard for the welfare of 
those living on the land.  According to GOK estimates, 
11.3% of the residents of Coast Province have no legal 
rights to the land they have occupied, in some cases, for 
generations.  Other estimates put the number as high as 
80%. 
 
------------------------------------ 
So, Too, Are The Claims of the Masai 
------------------------------------ 
 
¶11. (SBU) One of the other ethnic communities with a 
particularly acute land claim is the Masai.  In the years 
before the British arrived, the pastoralist Masai 
controlled as much as a third of modern Kenya and numbered 
perhaps 400,000.  Note:  The Masai had acquired control of 
these enormous tracts of land by dispossessing other Kenyan 
communities, especially the Kamba.  End note.  In the last 
few years of the 19th century, however, they lost perhaps 
90% of their population to famine after a series of 
diseases decimated their herds.  The British, seizing on 
this weakness, QconvincedQ the Masai to enter into two 
treaties, one in 1904 and one in 1911, which gave the 
British government huge tracts of land in central Kenya 
under what was supposed to be a 99-year lease.  Note: 
These lands formed the lionQs share of the QWhite 
Highlands.Q  End note.  However, during the colonial period 
and after independence, that land was either re-leased or 
sold outright.  When the original 99 years expired, none of 
the land was returned to the Masai.  The population of 
KenyaQs Masai is now somewhere around 500,000 and more and 
more would-be Masai herders have no land for their cattle. 
Illegal land dealings within the Masai community itself 
have caused a large part of their problems, but their 
claims to the land taken from them by the British and the 
GOK have become a lodestone for those seeking to reform 
KenyaQs land system. 
 
--------------------------------------------- - 
Previous Attempts At Reform Have Gone Nowhere 
 
--------------------------------------------- - 
 
¶12. (SBU) The GOK has made several efforts to examine, if 
not address, the inequities and illegalities present in 
KenyaQs confused land system.  In 1972, the GOK set up a 
Special Committee to assess land problems in Coast 
Province.  In 2002, it commissioned a special report on 
existing land law and tenure.  In 2004, the NdungQu Report, 
which concerned the illegal or irregular allocation of 
QpublicQ lands, was published.  The NdungQu Report in 
particular caused quite a stir, as it stated Q[t]he powers 
vested in the President to make grants of [government land] 
have been grossly abused over the years by both the 
President and successive Commissioners of Lands and their 
deputies.Q  The Report also pointed to local authorities as 
being complicit in the Qunbridled plundering of public 
lands.Q 
 
13 (SBU) The NdungQu Report was widely praised and was 
adopted in full by the GOK Cabinet.  However, very little 
has been done to act on any of the problems it cataloged or 
the recommendations it made.  In the first two years after 
the Report was published, a paltry 133 titles of illegally 
or irregularly allocated public land were given back to the 
GOK.  While there have been some unsubstantiated rumors 
that the Ministry of Lands has recently begun to accelerate 
its implementation of the Report, notably canceling a 
rumored 600 illegal titles, it is not doing so publicly. 
 
--------------------------------- 
The New Land Policy Means Well... 
--------------------------------- 
 
¶14. (SBU) The proposed National Land Policy (NLP) is the 
most recent of the GOKQs land reform efforts.  It is the 
penultimate step in a process that began in 2004.  The GOK, 
working with a group of donors and NGOs, has created a 
document designed to not only reform KenyaQs land laws, but 
also to substantially reorient the priorities of KenyaQs 
land system.  It is at its heart a policy designed to help 
the poor and vulnerable and to end violent conflict over 
land, all laudable goals.  The donor group describes the 
NLP as Qpro-poorQ, focusing more on equity and recognition 
of a basic right to land use than on individual ownership 
rights. 
 
¶15. (U) In broad strokes, the NLP is designed to fix the 
following ills: insecurity of tenure, skewed distribution, 
widespread gender-based and class-based discrimination, and 
historical injustices.  It would do so by amending or 
repealing virtually every land law currently on the books 
and replacing them with a single set of legislation, 
enforced by a new governmental entity, the National Land 
Commission.  The Commission would have broad-ranging powers 
to manage, oversee, redistribute, and determine the use of 
land in Kenya.  It would also establish tribunals to right 
historical wrongs and injustices dating as far back as 
¶1895.  Note:  1895 seems to have been chosen because that 
date is often cited as the inception of the colonial 
period.  Thus pre-colonial land disputes between indigenous 
communities would not be heard by the tribunals.  End note. 
 
--------------------------------------------- ---------- 
But Could Have Serious, Harmful Unintended Consequences 
--------------------------------------------- ---------- 
 
¶16. (SBU) The proposed NLP is a bold document, one which 
borders on the utopian.  It can be argued that such a 
radical shake-up is necessary to root out the illegalities 
and gross inequalities in the current system; however, the 
NLP has a number of provisions which could have highly 
detrimental effects on the investment climate and the 
Kenyan economy.  Take, for example, the proposal to Qrepeal 
the principal of absolute sanctity of first registrationQ 
of title to land.  In essence, this proposal would allow 
any registered land title to be reexamined and litigated 
without the need to show it was obtained through fraud or 
other illegal means.  While the proposalQs intent is to 
provide a means to overcome illegal titles, it would also 
dramatically weaken the security and confidence of every 
 
landowner, and every bank, in the land rights they hold or 
use as collateral.  The effect on the availability and 
value of mortgages, and thus on the ability of any 
landowner to raise capital, could be dire. 
 
¶17. (SBU) Another provision (mentioned above) would create 
legal and administrative QmechanismsQ to resolve historical 
land QinjusticesQ arising as early as 1895.  Note:  Some 
claim that non-Kenyan NGOs, particularly ActionAID, are 
responsible for this particular item in their efforts to 
help the Masai.  End note.  Historical QinjusticesQ is a 
slippery term at best, and considering that land issues in 
Kenya tend to be tied to often-volatile ethnic tensions, 
attempts to resolve the QinjusticesQ in favor of one ethnic 
group over another could be disastrous.  Another provision 
states that non-Kenyans would no longer be allowed to own 
property in Kenya: QforeignersQ would be limited to 99-year 
leases.  Those QforeignersQ who own land, or who have 
leases longer than 99 years, would see their rights reduced 
to 99-year leases with no obvious means of reimbursement. 
Yet another troubling provision would require the GOK to 
Qcompulsorily acquire all land on which mineral resources 
have been discovered before allocating such land to 
interested investors...Q  While the intent is to prevent 
local communities from being exploited, the GOK itself has 
a badly checkered history concerning corruption and misuse 
of resources. 
 
--------------------------------------------- ------------ 
Private Sector Cries Foul, And The Elite Will Not Like It 
--------------------------------------------- ------------ 
 
¶18. (SBU) The NLP was created with virtually no input from 
the wealthier side of the Kenyan private sector, including 
its landowners and companies, or from the banks. 
Representatives from this section of the private sector 
have stated that they either did not know of the various 
forums and symposiums that were called to discuss the NLP, 
or were rebuffed when they attempted to give their views. 
Many of those involved in the NLP process, however, told 
Econoff that these representatives simply chose not to be 
involved.  Whatever the case, the landowners have recently 
started to make their voices and many criticisms heard. 
 
¶19. (SBU) Furthermore, if taken literally, the proposals 
the NLP makes would require a serious investigation and 
probable reallocation of the lands held by the rich and 
powerful of Kenya, including the three families widely 
rumored to be amongst the countryQs biggest landowners: 
the Kenyattas, of the first President, Jomo Kenyatta, who 
are said to own approximately 500,000 acres; the Mois, of 
the second president, Daniel arap Moi, who are said to own 
about 114,000 acres; and the Kibakis, of the third and 
current president, Mwai Kibaki, who are rumored to own at 
least 44,000 acres.  Note:  Some estimate that the families 
of KenyaQs first three presidents collectively own as much 
as 11.5 percent of Kenya.  End note.  The Kenyan elite are 
unlikely to allow this to happen.  Furthermore, most 
scholars believe that enacting the NLP would require a 
constitutional amendment and the repeal or amendment of 17 
different pieces of legislation.  Based on prior history, 
the Kenyan Parliament would be tied up for years doing 
nothing else.  Finally, many of the provisions of the NLP 
were also in the draft Constitution that was rejected in a 
national referendum in 2005.  While they have been 
repackaged as part of the NLP, they still carry the taint 
of public rejection. 
 
--------------------------------------------- ------- 
Land Reform Is Needed, But The NLP Is Not The Answer 
--------------------------------------------- ------- 
 
¶20. (SBU) COMMENT:  The likelihood that the NLP will become 
law in its current form is small.  It is something of a 
mish-mash of desires and goals from a widely disparate 
group of concerned parties.  Parts of the NLP seem to be an 
attempt by a small and radical group to up-end land rights 
in Kenya in favor of a redistributionist scheme which has a 
quaintly utopian flavor; the more concerned landowners 
believe it could actually result in a Zimbabwe-style 
 
meltdown.  The donors say that much of the NLP is an 
aspirational document that they hope will be crucial to 
Kenya overcoming its ever-worsening land shortage; they 
assume that the deeply troubling legal problems it contains 
will be worked out through the legislative process.  There 
are provisions which seem to be a genuine attempt on the 
part of the GOK to reform the Kenyan land system; there are 
others that are so unworkable and unrealistic that they 
smack of a cynical attempt by the current administration to 
win votes by pandering to the poor in an election year. 
 
¶21. (SBU) There is no great reason for hope that KenyaQs 
land system will change soon, despite the great need to do 
so; past attempts to right land wrongs in Kenya have been 
almost completely ignored by the powers that be.  Even if 
the GOK were to decide to take real steps to fix KenyaQs 
thorny land problems, it must be well aware that as history 
elsewhere has shown, attempting to make right historical 
wrongs is fraught with risk and danger.  While the public 
discussion engendered by the NLP is a step in the right 
direction, it seems that for the foreseeable future, talk 
will be the NLPQs only constructive contribution to KenyaQs 
land problems.  END COMMENT. 
 
RANNEBERGER