A primer on historical land rights and natural justice

Part of the more than 5,000 acres that local landowners in Sikinani, Narok West surrendered to set up the only community-owned conservancy in Kenya. PHOTO | GEORGE SAYAGIE | NATION MEDIA GROUP

What you need to know:

  • Kibe Mungai wrote to an unbelievably bellicose article in this very newspaper a week ago by in which he advises the Maasai to take advantage of the standard gauge railway to get rich or get the hell out of the way – to shape up or ship out.
  • The Anglo-Maasai agreements were one of three colonial deals that needed to be transitioned to independent Kenya, the others being the coastal strip and the Northern Frontier District, which the British had administered as a hostile territory since 1902.
  • Of the three, only the coastal strip was formally transitioned to the Constitution.

Her Majesty Victoria Queen of the United Kingdom of Great Britain and Ireland regarding with Her Royal Favour the Native Chiefs and Tribes of New Zealand and anxious to protect their just Rights and Property and to secure to them the enjoyment of Peace and Good Order invite the confederated and independent Chiefs of New Zealand to concur in the following Articles and Conditions.

Article 1

The Chiefs of the Confederation of the United Tribes of New Zealand cede to her Majesty the Queen of England absolutely and without reservation all the rights and powers of Sovereignty.

Article 2

Her Majesty the Queen of England confirms and guarantees to the Chiefs and Tribes of New Zealand and to the respective families and individuals thereof the full exclusive and undisturbed possession of their Lands and Estates Forests Fisheries and other properties which they may collectively or individually possess so long as it is their wish and desire to retain the same in their possession; but the Chiefs of the United Tribes and the individual Chiefs yield to Her Majesty the exclusive right of Preemption over such lands as the proprietors thereof may be disposed to alienate.

Article 3

In consideration thereof Her Majesty the Queen of England extends to the Natives of New Zealand Her royal protection and imparts to them all the Rights and Privileges of British Subjects.

WAITANGI TREATY

This is an abridged version of the Treaty of Waitangi, which was signed between Maori chiefs more than 500 of them and the English Crown in 1840. The treaty, considered to be the founding document of New Zealand, followed three decades of warfare between Maori tribes known as the Musket Wars as well as lawlessness and debauchery associated with informal European settlement. It is in fact Maori chiefs who invited the British crown’s protection.

As we might expect, the treaty did not work as the Maori chiefs envisaged. Despite the unequivocal guarantees, the Maori were dispossessed of land, fisheries and access to natural resources, and relegated to second-class citizens in their own land.

A Maori protest movement culminated in the establishment of the Waitangi Tribunal in 1975 as a permanent commission of inquiry to investigate breaches of the treaty by the Crown by acts of commission or omission and recommend redress.

Although the tribunal’s recommendations are not binding, the Maori have won redress on several claims. Notable among them was recognition of their language as a national language alongside English. In 1995, the Waikato Tainui people received compensation in land and money worth $170 million, and an apology delivered personally by Queen Elizabeth. The Maori have regained land, fisheries, forests and financial compensation worth over a billion dollars, and even a settlement involving Mt Cook, New Zealand’s highest peak, which is sacred to the Ngai Tahu people. The latter settlement entailed symbolically returning it to the Ngai Tahu, who restored its name and donated it back to the country.

“We, the Undersigned, being the Lybons and Chiefs (representatives) of the existing clans and sections of the Masai tribes in East Africa Protectorate, having, this 9th day of August, 1904, met Sir Donald Stewart, His Majesty’s Commissioner for the East Africa Protectorate and discussed fully the question of a land settlement scheme for the Masai, have, of our own free will, decided that it is for our best interests to remove our people, flocks and herds into definite reservations away from the railway line, and away from any land that may be thrown open to European settlement.

'EUROPEAN SETTLEMENT'

“And by the removal of the foregoing sections to the reserve we undertake to vacate the whole of the Rift Valley, to be used by the Government for the purposes of European settlement. Further, that the Kaptei, Matapatu, Ndogalani and Sigarari sections shall remove into the territory originally occupied by them to the south of Donyo Lamuyu (Ndongo), and the Kisearian stream, and to comprise within the area the Donyo Lamuyu, Ndogalani and Matapatu Mountains, and the Donyo Narok, and to extend to Sosian on the west.”

This is an excerpt of the 1904 Anglo-Maasai agreement in which community leaders agreed to vacate large swathes of the central Rift Valley for European settlement, which divided the community into northern (Laikipia/Samburu) and southern (Narok/Kajiado) reserves. In the subsequent 1911 agreement, the Maasai chiefs ceded the northern reserve and were moved to the southern reserve.

The Maori chiefs sought protection of the British Crown to bring order to their troubled land, a fair amount of it self-inflicted. It seems hard to fathom why the Laibons would have seen it in their best interests to give up land for European settlement.

There is of course a fundamental difference in terms of power relations as the Laibons were negotiating with a colonial administration already in place, while the Treaty of Waitangi was the deal that allowed the British to govern the territory. In this sense, the Treaty of Waitangi is closer to the deal in which the Sultan of Zanzibar ceded the coastal strip to Britain. It is also peculiar that the British only signed treaties with the Laibons. Gikuyu, Kamba, Nandi, Kipsigis and other communities also lost land but no treaty was involved. But some of the treaty provisions give insights into how the Maa chiefs got themselves duped.

'CERTAIN ACCESS'

“In addition to the foregoing, we asked that a right of road to include certain access to water be granted to us to allow of our keeping up communications between the two reserved areas, and further, that we be allowed to retain control of at least 5 square miles of land (at a point on the slopes of Kinangop to be pointed out by Legalishu and Masakondi), whereat we can carry out our circumcision rites and ceremonies, in accordance with the custom of our ancestors.

“We ask, as a most important point in this arrangement, that the Government will establish and maintain a station on Laikipia, and that officers whom we know and trust may be appointed to look after us there.”

The tone and substance of these pleas suggest that the Laibons thought they were dealing with a benevolent sovereign. The context is aptly captured by Lotte Hughes in her book Moving the Maasai: A Colonial Misadventure.

She writes: “When British administration was first established, the Maasai were recovering from a series of devastating blights – rinderpest, bovine pleuro-pneumonia, smallpox and drought – following in the wake of civil warfare, which had brought them to their knees. These disasters were known collectively as emutai. Whole communities sought refuge in British forts and with neighbouring peoples, while many child pawns were taken in by missions.”

The state of mind and motive of the Laibons are now explicable. In fact, they are similar to those of the Maori chiefs. They were not dispossessing their people. They were trying to save them. It is not difficult to imagine how awed the Maasai would have been with by modern medicine that could cure both humans and livestock.

The Anglo-Maasai agreements were one of three colonial deals that needed to be transitioned to independent Kenya, the others being the coastal strip and the Northern Frontier District (the erstwhile North Eastern Province) which the British had administered as a hostile territory since 1902. Of the three, only the coastal strip was formally transitioned into the Constitution. A pre-election referendum in which the NFD people voted to join Somalia was swept under the rug. A month after independence, the Shifta war broke out.

PLEAS IGNORED

Maasai pleas to have the agreements transitioned were ignored. But as I pointed out in a previous column, Jomo Kenyatta, already Prime Minister, had given the Lancaster Constitution conference “categorical assurance“ that all “tribal land” would be “entrenched in the tribal authority and it would not be possible for anyone to “take away land belonging to another tribe”. As we all know, as soon as Kanu was firmly in the saddle, Kenyatta reneged on this pledge and adopted the “willing buyer, willing seller” policy.

It would be almost 50 years before the Maasai people would be able to make their case, this time in the Bomas constitution conference. A framework for redress was obtained by way of entrenching community land in the Constitution to wit, “Community land shall vest in and be held by communities identified on the basis of ethnicity, culture or similar community of interest (Art 63 (1).” The article recognises use of land as “community forests, grazing areas or shrines” as well as “ancestral lands and lands traditionally occupied by hunter-gatherer communities.”

The Constitution obliged Parliament to pass legislation to give effect to these provisions. One of the first acts of the Jubilee administration was to commandeer and neutralise this legislation by vesting its authority with the Executive, in effect, under the control of the President. As we say in Gikuyu, ruruka rwa kimbu rutithiraguo ni mung’ung’uutu (chameleons will always be chameleons).

This is the backdrop for an unbelievably bellicose article published in this very newspaper a week ago by Kibe Mungai, in which he advises the Maasai to take advantage of the standard gauge railway to get rich or get the hell out of the way – to shape up or ship out.

This is the same message that President Uhuru Kenyatta delivered at William ole Ntimama’s funeral when he snarled at the clergyman who dared suggest that we should give national unity precedence to material development. What we have here is a clash of values between a purely materialistic world-view and an irrational acquisitiveness that a sizeable section of my Gikuyu community is seized by, and the holistic cosmology of the Maa, Maori and many other traditional communities. Increasingly, many people in the West are gravitating towards the latter worldview, what American political scientist Ronald Ingelhart termed as post-materialism, expressed most vividly today by elevation of environmentalism into a secular religion – a yearning for a rational sense of purpose beyond consumerism.

Governor Charles Eliot wrote in April 1904, four months before the first agreement: “I have no desire to protect Masaidom. It is a beastly, bloody system, founded on raiding and immorality, disastrous to both Masai and their neighbours. The sooner it disappears and is unknown, except in books of anthropology, the better.”

In Kibe Mungai, and President Kenyatta I daresay, Sir Charles has worthy successors. My take?

Long after Gikuyu culture has been bastardised into God knows what by avarice and debauchery, “Masaidom” will still be here.

David Ndii, an economist, currently serves on the National Super Alliance’s technical and strategy committee, in which he leads Nasa's policy team.

Twitter: @DavidNdii

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