Defiance and Activism in Kenya during the Colonial Era



The first encounter between Africans and white people can be traced back to the trans- Atlantic slave trade. In east Africa, it is the Arabs who captured or bought slaves that were later sold to Europeans. The Europeans did not settle into Africa until after economic pressures in homeland created interest in the lands that explorers reported about.

Chronology of Events during the Colonial Era

The 1880s

1884-85 -     Berlin conference (the scramble for Africa).
The Berlin conference changed European powers engagement in Africa. They now had territories to protect and plunder in Africa and to do that they started building the systems. In the case of Kenya, the system begins with the 1888 award of a royal charter to the Imperial British East Africa Company to administer the area allocated to Britain. Later in 1895-The East African Protectorate replaced the Imperial British East Africa Company.

1888-           The Imperial British East Africa Company
The company was given a royal charter in order to administer the area allocated to Britain on behalf of the crown

1889- The East African Order-in-Council
It allowed colonial authorities to exercise the substance of law that was in force in England but only to an extent that circumstances permitted.
1890- The Foreign Jurisdiction Act
It was enacted in England and prescribed how power of the crown could be exercised in a protectorate, i.e. through Orders-in-Council. It equally allowed the Majesty to control land, which was not under any form of administration. This partly contributed to emergence of clashed since it locked out the normal pastoral transhumance. It was later amended in 1913. 
 
1890-           An Anglo-German treaty
The boundaries between land allocated to Germany and Britain created a rift between the Germans and the British. The changing geo-political politics led to negotiations between the two countries leading to allocation of the interior of Kenya as well as all of Uganda to Britain while Germany took Tanganyika

1894- The Indian Land Acquisition Act
It provided for compulsory land acquisition of for the railway and a ten-mile zone on each side of the railway for establishment of government buildings and other purposes. It never provided the resale of the land acquired; which limits the government’s power legally

1895-           The East African Protectorate
Growing interest in East Africa led to the British forming the East African protectorate, which replaced the Imperial British East Africa Company. Kenya did not form part of Britain, it was only an administrative district far away and the colonial masters could not access property rights over the region.

1895-           Building of the Kenya-Uganda Railway
The building of the railway was a major game changer because it leads to, between 1896 and 1901, over 32,000 workers being brought from India to work on the railways. Most of the Asians did not return to India upon completion of railway line. The building of the railway line led to 25 years of resistance against the railway line and European settlement. Wars fought by the Nandi, the Giriama, The Agikuyu, the Gusii are all linked to construction of the railway line or what the railway line had facilitated. The occupation of the “White highlands” as Africans are forced into “native reserves” is also linked to the completion of the railway line. 1907-The British colonial administration moves from Mombasa to Nairobi due to railway line related construction effects (urban centre growth).

1897- The East African (Acquisition of Lands) Order in Council
It overwrites the Indian Land Acquisition Act of 1894; by providing for the right to resale the acquired land. Land acquired under the incorporated legislation (the Indian Land Acquisition Act) was vested in the commissioner (head of government) in trust for the crown and was allowed to release it on leasehold or freehold. It aimed at securing land for settlers. This legislation drew a distinction between land in the Sultan's Dominions and land under the Protectorate.  The Commissioner was empowered to sell freehold land owned by the crown, which was not private property of the sultan. For land under the Protectorate, the Commissioner could offer certificates of occupancy renewable after 21 years. 1n 1898 it was extended to 99 years.  These certificates were mere licenses to use land; those holding them could not sell the land.
 1900- Clearing of Forests begins
Between 1900 and 1910 there was a period of intensive forest clearance and cultivation by the Kikuyu; environmental degradation.

1901-The Registration of Documents Act (Cap 285 Laws of Kenya)
It was compulsory to register all documents relating to land. Any document that conferred, limited or extinguished rights, titles or interests in land were to be registered. Definition of land in this Act was defective; it described land by reference to landmarks such as trees.
Crown land is defined as all public land within the larger East African Protectorate was defined (East Africa Lands Order in Council, 1897).

1901- The Order-in-Council
The Commissioner was empowered to sell freehold estates in land and sell any land, which was not under Africans "waste and unoccupied land,” without the consent of tribal Chiefs.
 1902- First Crown Land Ordinance
The first Crown Land Ordinance of 1902 provided the settlers with a 99-year lease and subjected them to the control of the State, replacing Ordinance of 1897 that provided for a 21-year lease. Each settler was to be given 160 acres free of charge as an inducement to farm. Sir Charles Elliot used the 1902 Ordinance to evacuate the Maasai from their southern lands, which were alienated for settler use. The LEGCO’s first sitting on 17 August 1907 saw the settlers lobbying to transform the Protectorate into a Crown Colony, which would bring them more powers. Around 1941 most Kenyans were tenants to the crown

The 1910s

1914- The Crown Lands (Access to Roads) Ordinance
It was enacted to enable individuals who had interests in or rights over Crown Land to use reasonable portions of adjacent pieces of Crown land as roads to access their portions. The Governor was also allowed to set aside sections of Crown Land for the Construction of roads.

1915- The Crown Lands Ordinance
It amended the 1902 legislation. This legal instrument redefined Crown land to include Land, which was in occupation of the natives and that, which was reserved for the use, and support of the native tribes.  The natives were thus rendered mere tenants because all land belonged to the Crown. There was no more community land. Customary laws were repugnancy clause; they were subordinate to the British Law. The natives thus enjoyed only the rights of occupancy rights. The Commissioner was empowered to sell freehold title to anybody not exceeding 1000 acres and leasehold titles of up to 999 years. It marked the material introduction of English Property Law in Kenya. In 1915, another Ordinance gave the settlers 999-year leases and declared all ‘Waste and unoccupied’ land in the Protectorate ‘Crown Land’ and subject to the Governor’s powers of alienation. It also demarcated the land into either ‘Scheduled Areas‘(for European settlement) or None Scheduled Areas (for African Reserves)

1915- The Government Lands Act Cap 280 of Laws of Kenya
It Replaced the Crown Lands Ordinance (1902). The main object of this Ordinance was to regulate leading and other forms of disposal of Government Land. It prescribed a system of administration and registration of government land, remedies to instances of defects arising out of the earlier registration under cap 285 and introduced a fair system to issue and register deeds.  There was a provision that all past documents relating to government land were to be applied in accordance with this instrument. The current day Kibera slums were established as a settlement scheme by the Government Lands Act. The government had absolute rights over un-alienated land as well as control over terms and agreements in relation to land. The head of government was given (discretionary) powers to allocate land and this is the provision that was later abused by the different individuals in this position leading to the present day issues.

1919: Aftermath of World War I
World War I was a turning point because it leads to in 1919- Government announces Soldier Settler Scheme, which takes land from African areas and allots it on 999-year leaseholds as reward to British veterans of World War I. The grabbing of African land leads to many uprisings against grabbing of land by the British and agitation from the Indians or Asians who felt they were not enjoying same privileges as British. This led to in 1923- the publication of the Devonshire White Paper that put the interests of Africans above all else. The ethnicity-based stratification of society begins with the attempt to make Europeans first class citizens, then Asians and then Africans considering how society was organized, the jobs the people did, the school system they attended and the rights and privileges enjoyed.

The 1920s


1920-The Registration of Titles Act; Cap 281 of laws of Kenya
It was guided by the case of Pilcher vs. Rawlins in the United Kingdom. It entrenched the Torrens Principles of land registration in Kenya. This is a system in which the register of land was maintained by the state and a conclusive and indefeasible title was granted to those in the register. Any certificates of ownership were to be registered under this Act.

1921- Kenya Colony Order-in-Council of 1921
Kenya formally became a colony in 1920 through the Kenya Annexation Order-in-Council and the Kenya Colony Order-in-Council of 1921; there were rules that enabled the British Protectorate authorities to alienate land for settlers.

1921- Formation of the Young Kikuyu Association
Kenya’s first African political protest movement, was established in 1921 headed by Harry Thuku to assert African rights to among other thing:-
ü  Recover Kikuyu land.
ü  Advocated civil disobedience over new taxes, reduced wages and
ü  The continued loss of land to settlers.
Young Kikuyu Association  was suppressed by the whites in 1925, but quickly regrouped form Kikuyu Central Association to be headed by Kenyatta in 1928 as the general secretary of the and the editor of its newspaper; Muigwithania (The Unifier). During the 1930s, Kenyatta peacefully campaigned on issues, including land rights, access to education, and respect for traditional customs and the need for African representation in the LEGCO. In 1944, Harry Thuku founded the Kenya African Study Union, which, in 1946, became the Kenya African Union (KAU). It saw the demand for access to settler owned land. KAU was soon dominated by Kikuyu and, in 1947; Jomo Kenyatta became its president. The mounting pressure obliged the settlers to broaden LEGCO membership.

1923- The Devonshire White Paper
It stated that Kenya was an African country belonging to the Africans and their rights were paramount.  It followed a landmark ruling the same year in the case of IsakaWainaina v Murito in which The Chief Justice, Barth, held that the native tribes were mere tenants of the Crown. It was mentioned in orbiter that the Crown Lands Ordinance 1915, the Kenya Annexation Order-in-Council 1921 and Kenya Colony Order-in-Council 1921 were to the effect of taking away any absolute rights in land that the natives had.

1927- Appointment of the Hilton Young Commission
The commission reported in 1929 on matters of cohesion between East and Central Africa and how African interests could be addressed. The main recommendation was to have separate reserves for the natives and the Europeans, which were to be free from encroachment.

The 1930s

1930- The Native Lands Trust Ordinance
It was meant to implement the commission’s recommendation. The Governor could grant leases of up to 33 years and licenses to the reserves; in cases of land acquisition for public purposes equal compensation, which never happened in practice. For instance; when gold was discovered in Kakamega Reserve; land rich in gold was acquired by the government and was not compensated.

1932- The Native Lands Trust (Amendment) Ordinance
It stipulated possibility of land exclusions from reserves where minerals were discovered, but the authority could repay the land at will. The same year, The Kenya Land Commission was appointed headed by Morris Carter. The commission was to review the terms of the 1930 Native Lands Trust Ordinance and seek ways to service Africans interests in land as well as settle grievances from past transactions in land.
Legislative recommendations:
ü  The Native Lands Trust (Amendment) Ordinance
ü  The Crown Lands (Amendment) Ordinance 1938
It saw the implementation of the dual policy where Europeans were occupants of ‘White Highlands’ while Africans on ‘African Native Reserves’. Africans only had interests and rights within the reserves and could not claim either of them outside the reserves.

1938-The Native Lands Trust Ordinance
It stated that the Governor with the approval of the Board and the Legislative Council were awarded with the mandate to grant leasehold interests in native reserves to foreigners. He (the Governor) was expected to make a land available for the displaced natives in other areas. The Board was to be consulted where more than 10 acres were to be set aside for public purposes. Under this Ordinance, State Corporations were to acquire land and hold it in the public trust for the community where the land is. The corporations were to operate as trustees and not as real owners though most of them traded in land e.g. KMC and Kenya Railways.

1938- The Crown Lands (Amendment) Ordinance
This ordinance gave legal effect to the dual policy of European “White Highlands” (or high potential areas) and African “Native Reserves” (or marginal lands). Following this policy enactment, all the areas outside the Native Reserves, and any other African claims and interests were extinguished. African customary law was to apply to the “native areas” and the Native Lands Trust Board was to protect “native interests”.


1939- The Kenya (Native Areas) Order-in-Council
It was brought to book by the Carter Commission. Land was divided into; Native areas: - native lands, temporary native reserves, and native leasehold. It further entrenched the Native Lands Trust Board to protect the natives’ interests. 

The fifth, and final, legislation that followed Carter's Commission was the Kenya (Highlands) Order-in-Council. Highlands were defined; there was provision that the boundaries to the Reserves and Highlands were to be maintained as drawn out in the 1930 Crown Lands Ordinance and the 1938 Native Lands Trust Ordinance. This was a key piece of legislation because it put in place the Highland Board, which was to protect the interests of the settlers


Role of Media in Struggle against Colonialism
One of the problems faced by colonial rulers was how to disseminate information. They had to convince the subject population to accept their overlords and point out the futility of resistance. The first settler publication, The Weekly Mail, began to appear in 1899; it and its peers and successors, were devoted to settler interests. It is ironic that the very group of people – South Asian working class -brought in by Britain to consolidate its rule in Kenya was the very class that brought in anti-imperialist ideologies and experiences from South Asia. South Asian publishing reflected both the contradictions facing the community: the external contradiction with the capitalist, colonial situation and the internal contradictions within South Asian communities based on economic and political differences

The first national paper to oppose racial differentiation and to publish commercial and government information was started by an Indian, A.M. Jeevanjee. The first paper in Kiswahili, Wahindi, which ‘reflected the growing links between the progressive Asian and African peoples’, was closed down and its publisher, Chatrabh Bhat had to move to Dar es Salaam to continue publishing. Manilal Desai in 1919 started publishing the first bilingual (Gujarati-English) paper, the East African Chronicle. Manilal Desai supported Harry Thuku to begin publishing Pamphlets and articles in Kiswahili. Many other publications came up including one that was edited by Kenyatta (Mwiguthanio)

The colonialists are said to have mastered the art of divide and rule. Through ethnic profiling, they treated members of different tribes differently. The arbitrary administrative borders introduced became a major borne of contention later on. Additionally, marginalization of groups like the Kikuyu that were singled out in response to Mau Mau planted the seeds for present day ethnic bigotry. Within the individual tribes, in the struggle for independence, there were those who resisted and fought against the colonialists while others collaborated.

Kenyatta as a Political Activist
 Jomo Kenyatta is one of the Kenyans who used writing as a tool for agitation against colonial rule. For instance, as quoted by Mutua and Gonzalez (2013), Kenyatta wrote the book “facing Mount Kenya” in order to provide an ethnographic account of the way the kikuyu of central Kenya organized themselves into a seamless system of governance.  For Kenyatta, the traditional Kikuyu system of governance was inclusive and very democratic.

Jomo Kenyatta was born in the mid 1890s and was named Kamau wa Moigoi (Mutua and Gonzalez, 2013). He went abroad for studies between 1931 and 1946 through the support of missionaries. While in Europe, Kenyatta metamorphosed from a simple domestic worker and student into an ardent activist for an end to colonialism. One of the issues he passionately advocated for was a return of land back to the indigenous people. On this issue, he wrote numerous letters and joined many other African students in Europe in demonstrations demanding the queen to grant independence to African states.

When Kenyatta returned to the country, the Mau Mau movement had started. He was torn between supporting the Mau Mau and agitating for civil liberties and independence through civil and legal means. In 1952, Kenyatta and five others were arrested and a state of emergency declared in Kenya. Kenyatta remained in detention until 1959 when he was released owing to pressure from African leaders.

Some of the people who agitated for Kenyatta’s release from prison were Jaramogi Oginga Odinga. Odinga refused to negotiate with the British and demanded that independence would not be possible unless the British released political detainees. Having failed at convincing Jaramogi, the British turned their interest to Kenyatta. Running of colonies was no longer sustainable for the British but they wanted African leaders who would take care of their interests despite handing over power. Unlike Jaramogi who was a steadfast socialist, Kenyatta entered an agreement with the colonialists whereby he was to become president but safeguard their interests. According to Mutua and Gonzalez (2013), Kenyatta thus was a good compromise who would facilitate western interests while remaining appealing to the nationalistic movements.

The 1940s

1945: Aftermath of World War II
This was another turning point. To deal with challenge of war veterans, in 1945 the colonial government formed European Settlement Board supported that   settled over 493 white settlers in the white highlands. The participation of Africans in the war is credited for the superb military organization skills and courage to engage colonialists in guerilla warfare. In 1951, The Mau Mau Uprising begins.

The 1950s


While colonialist chose to grant Kenya independence because of economic constraints and prevailing global consciousness about injustice in colonialism, the Mau Mau made an important contribution to independence in Kenya. The Mau Mau was effective because they purged from among the community those seen to be sympathetic to the colonialists as well as targeted colonialists or white settlers. The movement was supported almost exclusively by Kikuyu.  “We are fighting for all land stolen from us by the Crown...according to which Africans have been evicted from the Kenya Highlands....”

1952: State of Emergency
On 3 October 1952, Mau Mau probably claimed their first European victim when they stabbed a woman to death near her home in Thika. Later on 9th of October, Chief Wariuhu was shot dead by the Mau Mau leading to Evelyn Barring declaring the state of emergency. In response to a spate of killings perpetuated by Mau Mau, the colonial administration declared state of emergency in colony of Kenya in October 1952. During the state of emergency, NAZI like, concentration camps were created to hold people. In the camps, people were tortured and maimed in bid to identify the Mau Mau and their sympathizers. It is estimated that over 150,000 Kenyans died during the state of emergency.

In 1953, Kenyatta was convicted and sentenced to seven years in prison; and more Africans were pushed further into the reserves. Between 1954 and 1956, the whites confiscated land belonging to 3,533-suspected militants. The impact was; about 11,000 Africans died due to internal struggle and British forces and about 100 Europeans died in the violence. The British made a number of concessions in response to the Mau Mau revolt. They embarked on agricultural reforms that empowered Africans and stripped settlers of some of their protections, such as allowing Africans (with a license) to grow coffee, the major cash crop.

During the state of emergency, the colonial administration banned political associations like KAU and political leaders including Kenyatta were jailed for seven years for alleged involvement in Mau Mau. Mau Mau was defeated in 1956, after the capture and death of its leader Dedan Kimathi. The creation of concentration camps, arrest of over 150, 000 Kenyans including the Kapenguria Six, the deaths and tortures led to worldwide outcry against Britain. It turned even many British people against their own government. The likes of Dennis Pritt wrote and agitated against actions by the colonialists. The state of emergency also helped in defeating the Mau Mau because they were deprived of supplies and sympathizers among the people were neutralized.

The state of emergency marks a turn towards the end of the colonial rule. In 1953, the Swynerton plan is adopted towards addressing grievances over land and agricultural concerns. Sustained internal and external pressure, largely reacting to the state of emergency, led to colonial government ceding ground and allowing African representation in the LEGICO in 1957.

1953- The Swynnerton Plan
It is t proposed that after consolidation and demarcation of land, the soil in each plot was to be conserved. That is the necessary mechanical measures for soil conservation were to be introduced at the outset. However, punitive measures were used in some areas to force the Africans to conserve the soil. Soil conservation was thus rejected and so after independence the initiatives collapsed. Due to wrong introduction of the soil conservation policy, it still affects the present day conservation practice.

This was an agricultural policy aimed at further developing agricultural practices. Cash crops had been introduced in the colony, the plan was aimed at expanding the scale of farming through improved infrastructure, and market, weather forecast, and of course providing secure land tenure methods.  This plan encouraged individualization of tenure and issued indefeasible titles. The first stage was adjudication; which made Customary Land Law obsolete and ascertained individual or group rights amounting to ownership. Land Consolidation and enclosure was done to thousands of fragmented land. The final stage was registration of land, which was to show the interests in land that the owner had and title deeds were issued. At this point, land was converted into a trade item and could be sold; even at individual level.


1957- The Local legislative Council (LEGCO)
Due to continued pressure from activists pressurizing the colonial administration, the African members are elected to the legislative council on a limited franchise for the first time in 1957. Membership of the LEGCO was altered to accommodate eight Africans elected under a weighted franchise based on education. In 1958, this was increased to 14 elected African members, while four of the 12 Specially Elected Members chosen by the LEGCO were Africans. Nevertheless, this did not appease; African nationalists, who demanded democracy on the principle of “one man, one vote.”

1959- Indian Transfer of Property Act
The 1882 Indian Transfer of Property Act was introduced to Kenya. The Act governed the various ways of land tenure and registration.

The 1960s

1960-The Land Order-in-Council
It provided for the conversion of leaseholds into freehold. By virtue of this, Africans were allowed to exercise absolute rights under freehold. The legislation also permitted Africans to acquire land in the Highlands. Due to high poverty levels in the country, those who accessed this land were political affiliates and those of a higher social class. Most people were still squatters and the moved to the towns in search of employment; credit facility could not be accessed due to lack of collateral. The government launched a project of buying and distributing land among the landless to counter this problem as in the cases of 1962 Million Acres Settlement Schemes and the Squatter Settlement Scheme. 


1960: Lifting of the State of Emergency

1960- Lancaster House Conference
In January 1960, the first of several Lancaster House Conferences was convened in which Kenyans for the first time were party to constitutional negotiations as a step toward independence. A proposed Bill of Rights to the Constitution guaranteeing property rights proved among the most controversial provisions. The African nationalists wanted land reform and resettlement, but the settlers argued that their land rights should be protected. There were fears that Kenya’s landless would reassert the land redistribution aims of Mau Mau movement. A modification to protect the crown added; a right of appeal directly to the highest court in Kenya. The question of which “public purposes” justified government acquisition was not resolved.

In subsequent Lancaster House conferences, the British pressed Kenyans to accept a “willing buyer, willing seller” approach to distribute land from settler farms to Africans, and provided a small load to assist in this effort. Many nationalists, former Mau Mau militants and communities opposed this, arguing that there was no justification for Kenyans to buy land that had been forcefully taken from them.

Jomo Kenyatta, president of the Kenya African National Union (KANU), complied with the British position (betrayal). The Kenya African Democratic Union (KADU), the other emergent African political party, advocated majimbo, a form of federalism in which regional assemblies (based on ethnicity, given local government boundaries) would oversee land administration (some politicians warned that majimbo would amount to “ethnic balkanization” of the country).

1961: Release of Kenyatta
As the colonialists contemplated leaving Kenya, they sought to leave the country in safe hands. Despite being socialist leaning, the colonial administration thought they can broker a deal with Oginga Odinga and he was offered the opportunity to become prime minister. However, he declined and with others agitated for the release of Kenyatta[1]. Kenyatta is released from detention in 1961

1962- One Million Acre Scheme
In the early 1960s, a program of settlement schemes, including the “One Million Acre Scheme,” was established to defuse tensions, but also ensure that the colonial land-holding structure dominated by large farms could be preserved without a radical redistribution. Most of the schemes negotiated by the departing colonizers were designed for relatively small numbers of carefully selected farmers.

The 1962 One Million Acre Scheme was designed to accommodate 35,000 land-poor and landless African families. The colonial administration negotiated terms for the purchase of approximately 1.2 million acres of land from white settlers at a cost of 25 British pound million. Many white settlers sold their farms and left Kenya either before or shortly after independence.


[1] Koigi Wa Wamwere, Why Jaramogi should have become Kenya’s second president. Saturday Nation of May 31st 2014 available at http://www.nation.co.ke/oped/Opinion/Why-Jaramogi-should-have-become-Kenya-second-president-/-/440808/2333474/-/gx62co/-/index.html


 

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