ANALYSIS OF FOREST AND LAND LEGISLATIONS AND RESOURCE USE CONFLICT IN THE EASTERN MAU, NAKURU COUNTY, KENYA

ANALYSIS OF FOREST AND LAND LEGISLATIONS AND RESOURCE USE CONFLICT IN THE EASTERN MAU, NAKURU COUNTY, KENYA PAUL THIONG’O WAHOME A THESIS SUBMITTED IN PARTIAL FULFMENT OF THE REQUIREMENT

ANALYSIS OF FOREST AND LAND LEGISLATIONS AND RESOURCE USE CONFLICT IN THE EASTERN MAU, NAKURU COUNTY, KENYA

PAUL THIONG’O WAHOME

A THESIS SUBMITTED IN PARTIAL FULFMENT OF THE

REQUIREMENTS FOR DEGREE OF MASTER OF LAWS OF THE OPEN

UNIVERSITY OF TANZANIA

2017

The undersigned do certify that they have read and hereby recommend foracceptance by The Open University of Tanzania a Thesis titled; Analysis of Forestand Land Legislations and Resource Use Conflict in the Eastern Mau, NakuruCounty, Kenya ; in fulfillment of the requirement for the Master’s Degree Law byThesis

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No part of this dissertation may be reproduced, stored in any retrieval system ortransmitted in any form by any means, electronic, mechanical, photocopying,recording or otherwise without prior written consent of the author or the OpenUniversity of Tanzania in that behalf

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Dedicated to my parents John Wahome and Herina Waithira, my aunt RahabWanjiku, my wife Ann and children Waithira, Njoki and Wahome, my supervisors

Dr Thenya and Dr Kibugi and to all who stood by me through it all

It is very unnerving to be proven wrong, particularly when you are reallyright and the person who is really wrong is the one who is proving you wrong andproving himself, wrongly, right Right?

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I acknowledge the support of the Wangari Mathai Institute of the University ofNairobi for their support and funding and provision of supervisors that made thiswork possible

I also acknowledge the massive support provided by the International StudentsOffice and the Faculty of Law of the Open University of Tanzania for the supportand guidance they provided to make this work possible despite the distance

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Kenya has had a history of conflicts that often turn violent over land and land basedresources Among the most important of these resources are forests Studies havefound that previous land and forest legislations have been aimed at controllingaccess to the forests and facilitate commercial exploitation The legislations thereforehave had little impact on resolving forest resource based conflicts or even protection

of the forests to ensure continued supply of the dwindling resources There havebeen a number of reforms in land and forest laws; includes making a newconstitution and hence redrafting and passing the laws to bring them in tandem withthis constitution The study carried out to assessing the possible impact of the landand forest legislation on violent conflicts and hence provide a basis for legislationdrafters on areas that might need to be changed or things that should be added Sothere might be questions whether it is ignorance of the laws that is causing theseconflicts Hence the research also sought to find out the extent of knowledge offorest and land laws among the respondents The study was done through library anddesk research on previous and current land and forest legislation Also studied werethe views of the people affected by these conflicts in regions around Eastern MauForest This used questionnaires, interviews and focus group discussions This datawas analyzed and interpreted to come with findings that are presented in chapterthree Finally the study came up with recommendations on what reforms may benecessary in the legislation to bring it more in line with the constitution and also tomake it more effective at resolving violent conflicts and hopefully also assisting inconservation of forests in Kenya

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TABLE OF CONTENTS

CERTIFICATION ii

COPYRIGHT iii

DECLARATION iv

DEDICATION v

ACKNOWLEDGEMENT vi

ABSTRACT vii

TABLE OF CONTENTS viii

LIST OF STATUTES xiv

LIST OF CASES xv

LIST OF TABLES xvi

LIST OF FIGURES xvii

LIST OF ABBREVIATIONS xviii

CHAPTER ONE 1

1.0 INTRODUCTION 1

1.1 Chapter Overview 1

1.2 Background to the Problem 2

1.3 Statement of the Problem 2

1.4 Objectives of the Study 4

1.5 Research Questions 4

1.6 Scope of the Study 4

1.7 Literature Review 5

1.7.1 Land Ownership 5

1.7.2 Kenya Traditional African Land Tenure 5

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1.7.3 Colonial Land Tenure 6

1.7.4 Types of Conflict, and Violence 7

1.7.5 Theories of Ethnic Conflicts 8

1.7.6 Legal Pluralism and Conflict in Forest Resources 10

1.8 Historical Background 12

1.8.1 Conflict and Violence in Mau Region 12

1.9 Research Design and Methodology 13

1.9.1 The Study Area 14

1.9.2 Sampling Procedure 14

1.9.3 Instrumentation 14

1.9.4 Reliability and Validity of the Instruments 15

CHAPTER TWO 16

2.0 LEGISLATIVE AND INSTITUTIONAL FRAMEWORK 16

2.1 Introduction 16

2.2 Traditional African Forest Management 16

2.3 Kenya’s Colonial Land and Forest Laws 17

2.4 The Independence Constitution 19

2.5 Constitution of Kenya 2010 20

2.6 Land Legislations 24

2.6.1 The Registered Land Act, Cap 300 24

2.6.2 The Group (Representatives) Act, Cap 287 (1968) 25

2.6.3 Government Lands Act Cap 280 25

2.6.4 Trust Land Act Cap 285 26

2.7 New Legislation Relating to Land 26

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2.7.1 The Land Act (2012) 26

2.7.2 National Land Commission Act 2012 26

2.7.3 Land Registration Act 2012 27

2.7.4 Wildlife Conservation and Management Act 2013 27

2.7.5 Forest Act 2005/2015 27

2.7.6 Environmental Management and Co-ordination Act 1999 28

2.7.7 Environment and Land Court Act 2011 28

2.7.8 The Community Land Act 29

2.7.9 The National Land Policy 29

2.7.10 The Forest Policy 30

2.8 Institutional Framework 30

2.8.1 The Forest Department 30

2.8.2 The Environment and Land Court 31

2.8.3 The Kenya Forestry Research Institute (KEFRI) 31

2.8.4 The Kenya Forest Service 31

2.9 Cases 31

2.10 National Commissions 32

CHAPTER THREE 33

3.0 RESEARCH METHODOLOGY 33

3.1 The Study Area - The Mau Forest 33

3.2 Study Population 34

3.3 Data Collection 34

3.4 Data Analysis 34

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CHAPTER FOUR 36

4.0 RESULTS AND DISCUSSIONS 36

4.1 Analysis of Legislation 36

4.2 The Independence Constitution 36

4.3 The 2010 Constitution 37

4.3.1 Government Land 38

4.3.2 Dispute Settlement 38

4.3.4 The Judiciary 39

4.3.5 National Land Commission 39

4.3.6 The Environment 40

4.4 The Land Laws and Resource Conflict in Eastern Mau 41

4.4.1 National Land Commission Act 41

4.4.2 The Land Registration Act (Year) 42

4.4.3 The Land Act 2012 42

4.4.4 The Community Land Bill 2014 44

4.4.5 Environment and Land Court Act 2011 44

4.4.6 Forest Act 2015 46

4.5 Field Study Analysis 47

4.5.1 Introduction 47

4.5.2 Socio-Demographic Characteristics of the Respondents 47

4.5.3 Ethnic Composition 48

4.5.4 Gender Balance 48

4.5.5 Education Level 49

4.6 Land Characteristics 50

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4.6.1 Land Size 50

4.6.2 Mode of Acquisition 50

4.6.3 Period of Land Acquisition 51

4.6.3 Ownership Documents 52

4.6.4 Knowledge of New Land Laws 53

4.6.5 Participation in Discussions on New Land Laws 54

4.6.6 Gender and Knowledge of Laws Comparisons 55

4.6.7 Awareness of the Ndung’u Land Report and the TJRC 55

4.7 V iews on Forest Resource and Conflict 56

4.7.1 Forest Resources Most Valued 56

4.7.2 Forest Resource that caused the Most Conflict 57

4.7.3 Best Arbitrator 57

4.8 Key Informant Interviews 58

4.8.1 Communal Lands 58

4.8.2 Conflict Reporting 59

4.8.3 Proposed Recommended Solutions 59

4.8.4 Dispute referred to Higher Authorities and Elders 60

4.8.5 Cases of Public Land Invasion 61

4.8.6 Awareness of the Constitutional and Legal Aspects of Land Matters? 61

4.9 Focus Group Discussion Points 62

4.9.1 Eastern Mau Indigenous Communities 62

4.9.2 Land Matters 62

4.9.3 Forest Matters 64

4.9.4 Resource Conflict 64

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CHAPTER FIVE 66

5 0 CONCLUSION AND RECOMMENDATIONS 66

5.1 Conclusion 66

5.2 Recommendations 69

REFERENCES 73

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LIST OF STATUTES

Ukamba Woods and Forest Regulation of 1897

The Crown Lands Ordinance 1902 and 1915

The 1919 Registration of Titles Ordinance

The Native Lands Trust ordinance, 1938

The Registered Land Act, Cap 300

The Group (Representatives) Act, Cap 287 (1968)Government Lands Act Cap 280

Trust Land Act Cap 285

New Legislation Relating to Land

The Land Act (2012)

National Land Commission Act 2012

Land Registration Act 2012

Wildlife (Conservation and Management) Act Cap 376Forest Act 2005/2015

Environmental Management and Co-ordination Act 1999Environment and Land Court Act 2011

The Community Land Act

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LIST OF CASES

Joseph Letuya & 21 others v Attorney General & Others

Lake Turkana Trust V Attorney General & 2 Others

Cortec Mining Kenya Limited v Cabinet Secretary Ministry of Mining & 9 othersAfrican Commission on Human and People's Rights Vs The Republic of KenyaPasred Youth Group/Forum & other petitioners as named in the schedule annexed vAttorney General & 5 others [2015] eKLR

Peter Makau Musyoka & 19 others (Mui Coal Basin Local Community) vs

Permanent Secretary Ministry of Energy & 14 others [2014] eKLR

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LIST OF TABLES

Table 2.1: Forest land Excisions 1992-1994 25

Table 4.1: Age Groups in the 3 Regions 47

Table 4.2: Residence and Gender 49

Table 4.3: Residence and Education Level 50

Table 4.4: Land Acreage 50

Table 4.5: Land Acquisition Method 51

Table 4.6: Land Ownership Documents 53

Table 4.7: Knowledge of New Land Laws 54

Table 4.8: Participation in Discussions 54

Table 4.9: Gender and Knowledge of New Land Laws 55

Table 4.10: Gender and Awareness of Ndung’u Land Report and the TJRC 56

Table 4.11: Forest Resources Most Valued 57

Table 4.12: Forest Resource that caused the Most Conflict 57

Table 4.13: Fairest Dispute Resolution Method 58

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LIST OF FIGURES

Figure 1.1: Overlapping Legal Orders Relating To Water 11

Figure 3.1: Location of the Mau Forest complex in the Republic of Kenya 34

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LIST OF ABBREVIATIONS

ADR Alternative Dispute Resolution

CBO Community Based Organizations

CFA Community Forest Associations

CFA Community Forestry Associations

CIPEV Commission of Inquiry on Investigation of Post-Election ViolenceCJPC Catholic Justice & Peace Commission

CKRC Constitution of Kenya Review Commission

CLUB Community Land Board

CSO Civil Society Organization

DC District Commissioner

DLB District Land Board

DLO District Land Office

DO District Officer

EMCA Environment Management and Coordination Act (1999)

FLEG Forest Law Enforcement and Governance

FORD Forum for the Restoration of Democracy

G.D.P Gross Domestic Product

GIS Geographical Information System

GLA Government Lands Act

IDP Internally Displaced Persons

ISK Institute of Surveyors of Kenya

KADU Kenya African Democratic Union

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KANU Kenya African National Union

KNCH Kenya National Commission on Human RightsKNLP Kenya National Land Policy

LSK Law Society of Kenya

MoL Ministry of Lands

NARC National Rainbow Coalition

NEMA National Environment Management AgencyNLC National Land Commission

NTFP Non-timber forest products

ODM Orange Democratic Party

PEV Post Election Violence

PFM Participatory Forest Management

PNU Party of National Unity

SLDF Sabaot Land Defense Force

SPSS Social Package for Social Sciences

TJRC Truth, Justice and Reconciliation Commission UNHCR United Nations High Commission for Refugees

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CHAPTER ONE 1.0 INTRODUCTION 1.1 Chapter Overview

Before Kenya was declared a colony in 1895, the NTFPs were most importantespecially to forest dwellers.1 Forest use was controlled by clans and tribes adjacent

to the forests For example the Ogiek clans had traditional tenure over differentforests The Morisionik had tenure over Nessuit, Elburgon, Bararget, Kiptunga,Mariashoni and Olposimoru forests which is part of Mau forest.2 Some of the forestswere reserved as sacred groves where entry was strictly controlled and resourceextraction forbidden

In pre-colonial times violent conflict over forest resources was minimal partly due tolow population and less competitiveness However after colonization andindependence there has been fierce competition over the recourses due to alienation

of large forest areas, first for railway use by placing land within 1 mile of the railwayunder forest administration,3 and then later the rest under the Forest Department.4 Allthis was done without consulting the natives By 1908, 264,410 acres of prime forestland had been alienated to the settlers.5 Even after independence legislation was used

to oppress forest dwellers and adjacent communities instead of being aimed at forestconservation and conflict resolution Various amendments to the legislations havehowever not succeeded in peaceful resolution of conflicts hence the necessity of this

1 Mirjam A.F Ros-Tonen K Freerk Wiersumthe (2003) Importance of Non-Timber forest Products for

forest-Based Rural Livelihoods: An Evolving Research Agenda -Paper Presented At The International Conference on

Rural Livelihoods, forests and Biodiversity

2 Lynette Obare and J B Wangwe Underlying Causes of Deforestation and Forest Degradation in

Kenya-http://wrm.org.uy/oldsite/deforestation/Africa/Kenya.html accessed on 23/7/2015

3 The Ukamba Woods and Forest Regulation of 1897 (Logie and Dyson, 1962)

4 The East African Forestry Regulations, -1902

5 Esther Mwangi (Research in Public Affairs V590) by (under Land Grants to Settlers regulations - 1902)

study to analysis the legislation and find the community opinions on the legislations

1.2 Background to the Problem

After colonization a series of land and forest ordinances were introduced to Kenyastarting with the Ukamba Woods Act that reserved a mile of land along the railwayline followed by the in 1897, followed by the Crown Land Ordinance 1902 - thatgave the governor powers to allocate upto 1000 acres to European settlers TheForest Act (Cap 385) came into force in 1942 and amended in 1962, 1957 and finally

in 1964 The act provided for establishment, control and regulations of forests It hassince then been used to degazzete forest land for private alienation and even illegalallocations to public officials and politicians.6

In addition Kenya has had 2 constitutions; the independence and the currentconstitution passed in 2010 In addition forest and land laws have been amendedincluding the land and forest acts with the aim of reducing conflict, conservation andbringing them in line with the 2010 constitution Nevertheless forest regions and theneighbourhood continue to suffer conflicts that occasionally turn violent as isevidenced in Eastern Mau, hence the study was important in assessing theshortcomings of these legislations

1.3 Statement of the Problem

In many occasions, forest areas are more prone to conflict due to remoteness, located

on disputed land, inhabited by poor multiple ethnic and minority groups, excluded

6 Report of The Prime Minister’s Task Force on The   Conservation of The Mau Forests Complex See also the TJRC report on ADC land and forest allocation to politicians and administration officials

from national democratic institutions and lack public services.7 Conflicts in suchareas may be sparked by unpublicized, misunderstood or out rightly bad laws It ismore so in such areas that communities should be involved in forest management sothat they can control forest exploitation and ensure fair and equitable sharing offorest resources, hence minimizing resource conflict Competition for forestresources amongst neighbouring communities has resulted in conflicts thatsometimes turn violent.8 Ever since the colonial times, legislation has proveninadequate to protect forest from overexploitation and destruction9.

So far, forest legislation and formal structures like the KFS stations have not beensufficiently effective in protection and conservation of forests.10 This is evidenced bywanton destruction of forests and conflicts in areas neighbouring the forests TheMau region has suffered large-scale deforestation and many violent conflicts that arebelieved to originate from competition for forest resources There have been variousattempts to reform forest legislation These include the Kenyan Constitution, theForest Act 2005 and 2015 Still, forest legislation has proven inadequate to preventresource conflict, guarantee forest preservation and community participation in itsconservation This then brings to question the efficacy of current forest laws toprevent or at least minimize resource conflict and ensure forest protection Is it justthe insufficiency of the law or even ignorance of the law that has contributed to this

7 Kaimowitz, David, 2002:“Why are there so many conflicts over forests?” Speech delivered at the 30th International Forestry Students Symposium, "Forest Conservation: Role and Implementation towards Sustainable Forest Management" in Indonesia.

8 Natural resource conflict management case studies: An analysis of power, participation and protected areas.”

Rome: Food and Agriculture Organization Available at http://www.fao.org

9 Castro, A.P 1991 The Southern Mount Kenya forest Since Independence: A Social Analysis to Resource

Competition World Development, Vol 19, No 12

10 Esther Mwangi (1998) Research In Public Affairs Colonialism, Self-Governance and Forestry in Kenya: Policy, Practice And Outcomes

state of affairs This study therefore was done in order to understand the impact offorest legislations in resource use conflict management and ultimately its impactsconservation attitude among the residents of Eastern Mau The Study can then beuseful as reference point in forest law reform and justification for wider consultationand promulgation of such laws when made or amended

1.4 Objectives of the Study

i To evaluate the utility of these forest legislations to resource use conflictdynamics

ii To identify areas of contradiction or conflict in the legislation

iii To assess community awareness of forest legislation

1.6 Scope of the Study

The study made an analysis of past and current forest laws: - Desk research was done

on what has been the impact of past laws forestry and related conflicts in the past.The repealed forest and land legislations were compared with current laws to see ifthe objective of addressing the shortcomings of the past laws had been achieved.Also analysis was made to determine by how much these new laws provide solutions

to the problems of forest resource conflict in Kenya The study covered the areasneighbouring the Eastern Mau forest in the Nakuru County - Kenya The followingcategories of people living and working in the Mau were interviewed and asked tofill questionnaires:-

i Residents of the Eastern Mau region

ii Land owners in the region

iii Administrators in the region

1.7 Literature Review

1.7.1 Land Ownership

This is the method or process by which a person owns land This varies from country

to country and depends on the customs legislations of the country

1.7.2 Kenya Traditional African Land Tenure

According to Nkrumah K (1967)11, traditional African society was founded onegalitarian principals even though it had various shortcomings The aim in conflictresolution between society members was to avoid tensions in the society so as topresent a united front against external threats An individual African could acquireland through clearing virgin bush; by land transfer; and by inheritance12 To acquireland by clearance the individual required to notify the village headman who in turninformed the tribal chief The society protected his tenure as long as his morality wasacceptable to the society The land continued to be his until he abandoned it and it

11 Kwame Nkrumah 1967 African Socialism Revisited Paper read at the Africa Problems of Peace and

Socialism Seminar held in Cairo Published: by Peace and Socialism Publishers, Prague, 1967, in a volume

titled “Africa: National and Social Revolution”;

12 Conroy, D.W 1945, "Legal Aspects of Land Holding Among the Tonga," in Allan, W et al, Land Holding and Land Usage Among the Plateau Tonga of Mazabuka District: A Reconnaissance Survey, Manchester University Press, pp 89-120.

returned to bush land

The Ogiek have two systems of land and resource tenure. 13 The whole land iscollectively owned and managed However each clan has a strip of and in themontane forests that cover various climatic zones enabling resource harvesting atdifferent times According to Castro (1988) among the Kikuyu land upto 2 miles intothe forest was owned by adjacent clans who authorized its clearance and cultivation.This arrangement ensured minimal chances of conflict

1.7.3 Colonial Land Tenure

Colonial wishes were given priority through the Ukamba Woods that preserved 1mile corridor along the railway line for the Uganda Railway; and Forest Regulation

of 1887 and the East African Forestry Regulations of 190214 that established theForest Department Formation of the Forest Department was detrimental tocommunity rights to access forest resources It established National Forests where allhuman activities were prohibited They could only utilize resources from forestswithin native reserves which resulted in overexploitation and deforestation.Eventually even the forests in native reserves were also gazetted and nationalizedthus denying communities access to forest resources especially firewood and water.15

The objectives of forest legislation in the colonial period was to protect forests fromdestructive indigenous land use practices, to prevent European settlers from

13 Markus J (2012) Hunters or hunted? The Ogiek of the Mau Forest, - Journal of the International African Institute page 61 New York.

14 Proceedings of The 2nd National Participatory Forest Management Conference, - Held At The Kenya forestry Research Institute (KEFRI) Headquarters, Muguga Kenya, 15th and 16th July 2014

15 Kabugi H (2014) PFM Under Changing Policy and Legal Frameworks- Proceedings of The 2nd National

Participatory Forest Management Conference.

obtaining private ownership, and to generate revenue for the forest departmentthrough the sale of timber and minor forest products.16 The growing discontent of theindigenous forest dwellers and squatters made the colonial government apprehensiveand pressured the Forest Department to permit limited utilization of forest resources.Thus the "Coryndon definition"17 was made that permitted limited access of thenatives to water, salt licks and limited cultivation

Although only applicable to Lembus forest it set up the ground for concessions toother indigenous groups.18 Kenyan and Nigerian illustrations concur with findings bythe UNEP African Environmental Outlook report19 that land degradation,compounded by climatic change, contributes to a general reduction in environmentalquality, which minimizes land use options, and reduces land productivity for thepoor, who mostly rely on such resources Forest conservation is therefore not onlyimportant in ensuring continued resource availability but environmental conservationwhich in turn reduces conflict over competition

1.7.4 Types of Conflict, and Violence

Conflict in Africa has been defined as a violent and armed confrontation andstruggle between groups, between the state and one or more group, and between two

or more states 20 This can be internal conflicts within the state, secessions, coup d

16 Esther Mwangi (1998) Colonialism, Self-Governance and forestry In Kenya: Policy, Practice and Outcomes Research in Public Affairs V590

17 A former Kenya Robert Coryndon governor formulated these regulations

18Anderson, D 1987 Managing The forest: The Conservation History of The Lembus, Kenya, 1904- 1963 In:

Anderson, D and Grove, R (Eds) Conservation in Africa: People, Policies and Practice Cambridge

University Press.

19 United Nations Environment Programme (UNEP)/GRID-Arendal, African Environmental Outlook: Past,

Present and Future Perspectives (Hertfordshire: EarthPrint, 2002) Online,

http://www.grida.no/publications/other/aeo/ chapter 3.

20 Bujra, Abdalla (2002): African Conflict: Their Causes and Their Political and Social Environment,

Development Policy Management Forum (DPMF), Occasional Paper, No 4

etat, rebellions urban conflict and rural conflict over resources

1.7.5 Theories of Ethnic Conflicts

Three theories have been put forward as to the cause of ethnic conflicts Thesetheories are primordialist, instrumentalist, and constructivist Of relevance to thestudy is the instrumentalist and competition for resources

1.7.5.1 Primordialist

According to Vanhanen Conflicts originate from different ethnic identities which areassigned at birth and hence passed on from generation to generation.21 People henceanticipate hospitality and cooperation from members of their ethnic group andhostility and conflict from other groups Hence Heterogeneous societies like Africawill inevitably experience ethnic conflict

1.7.5.2 Instrumentalist

The instrumentalist view is that ethnicity is just a strategic basis for coalitions toseek a larger share of economic and political power This ensures that these benefitsare shared to a smaller set of people with consequently larger shares each Exclusion

is facilitated if the ethnic groups are in the same geographical regions The theoryargues that ethnic conflicts are used only as instruments to power by communityleaders “who used their cultural groups as sites of mass mobilization and asconstituencies in their competition for power and resources, because they foundthem more effective than social classes”.22 Thus ethnic conflicts are only a means to

an end or just instruments This has been cited as a major cause of conflict in Africa

21 Vanhanen, Tatu 1999 ‘Domestic Ethnic Conflict and Ethnic Nepotism: A Comparative Analysis’ Journal of

Peace Research 36 (1), 55–73.

22Anthony Smith (2001) Nationalism: Theory, Ideology, History, Cambridge: Polity, pp 54-55.

It is suggested here that ethnicity per se, in the absence of its politicization, does not

cause conflict There is evidence to suggest that where ethnic conflict has emerged inAfrica, there have always been political machinations behind it.23

1.7.5.3 Competition Over Resources Approach

Another reasons for ethnic conflict advanced is competition over resources Thismakes ethnic groups coalesce so as to advance common interests Scarce resourcesmake it easier for politicians to emphasize ethnic differences and point out lack ofopportunities to their kin As described by Organization for Economic Cooperationand Development (OECD) and United States Agency for International Development(USAID) “These groups are all the more likely to be vulnerable to suchmaneuvering when they find themselves in situations characterized by a lack ofopportunities.” 24

Property rights, jobs, scholarships, educational admissions, language rights,government contracts, and development allocations all confer particular benefits onindividuals and groups Such resources are scarce and therefore sources ofcompetition and struggle between ethnic groups Ethnic groups (and individuals)often feel victimized and blame other groups when under economic difficulties.Theories of “internal colonialisms” have been advanced by disgruntled groups.25Ethnic identification becomes important to provide security and protection both for

23 Okwudiba Nnoli (1998) Ethnic Violence in Nigeria: A Historical Perspective African Concord, Lagos,

the “colonialists” and the victims

1.7.6 Legal Pluralism and Conflict in Forest Resources

Legal pluralism is a situation where several laws govern an activity This situationhas prevailed for long in Kenya forestry sector where customary, regulations,national laws and international conventions like the Ramsar treaty are in force.These include the Forests Act, Environmental Management and Co-ordination Act

1999, Environment and Land Court Act 2011, Forest Act 2005, Wildlife(Conservation and Management) Act Cap 376, National Land Commission Act 2012and the Land Act Traditional and customary laws usually also conflict and this isimportant where different ethnic groups are neighbours and have to share the samenatural resources but have different traditions regarding rights to use and obligations

to conserve these resources The laws may also be interpreted differently depending

on the lifestyles of the people e.g pastoralism or agrarian All these are sources ofconflicts Overlapping laws can be represented as in the diagram below

Traditional and customary laws usually also conflict and this is important wheredifferent ethnic groups are neighbours and have to share the same natural resourcesbut have different traditions regarding rights to use and obligations to conserve theseresources The laws may also be interpreted differently depending on the lifestyles ofthe people e.g pastoralism or agrarian All these are sources of conflicts.Overlapping laws can be represented as in the Figure 1.1

Figure 1.1: Overlapping Legal Orders Relating To Water

Source: Meinzen-Dick and Pradhan, 2002

In addition African customs conflict with modern laws since they usually do notdistinguish between land and water rights An example is land adjudicationprogramme initiated by the government in Kenya This triggered violence betweenthe Pokomo and the Orma pastoralists who had shared land and water resourcespeacefully previously 26 Legal pluralism also encourages people to pick and choose

as many authorities may have the power to allocate and arbitrate land rights, andbasing on different rules, they can decide in contradictory ways

Africa is the world laboratory for legal pluralism.27 There coexists modern law andtraditional African laws and norms This is sometimes seen as backward.28 Most

26 Weiss, T (2004) Guns in The Borderlands, Reducing The Demand for Small Arms Monograph No 95, Institute for Security Studies, Pretoria, South Africa

27 Jacques Frémont (2010) Legal Pluralism, Customary Law And Human Rights in

Francophone African Countries

volume-viii,-2008/Fremont.pdf

https://www.victoria.ac.nz/law/research/publications/about-nzacl/publications/special-issues/hors-serie-28 Apostolis Papakostas - Why is there no clientelism in Scandinavia A comparison of Greek and

African countries were previously colonies of European countries The colonialmasters imposed on these countries not only their legal systems but also theirreligions, customs and traditions These were carried on after independence Theywere mostly associated with the educated and rich elite Indigenous customs andnorm were looked upon as primitive but nevertheless persisted and even continued to

be enforceable in courts of law A lot of indigenous traditions and customs have beenabandoned in favour of European lifestyles

1.8 Historical Background

1.8.1 Conflict and Violence in Mau Region

Even before independence ethnic tension was already starting This was caused bysettlement of the Kikuyu in areas the Kalenjin regarded as their ancestral lands(Londiani, Kipkelion and Fort Tenan)29 the Kikuyu were seen as outsiders whodominated new land allocations This tribal distrust was exploited by politiciansduring the 1992, 1997 and 2007 elections to encourage the indigenous Kalenjin toevict the Kikuyu through demands for federalism The same script was used inNakuru country in the districts of Molo and Njoro

As early as 1961 there was already tension over the million Acre scheme that sawtribal based land buying companies having membership wholly from the same tribe;and most of these were the Kikuyu.30 In Nakuru, settlement farms were bought bytribal-based land-buying companies and societies with the result that in those farmsone would find occupants wholly from one community Based on the firmly held

Swedish Sequence of Development.

29 Akiwumi Commission of Inquiry into Tribal Clashes Commission, 1999)

30 Ibid

beliefs by the kikuyu and the Kalenjin that they were the rightful owners of the Mauregion it was possible for politicians to use them for personal gain In these areas,political objectives were used to stir up and spur on the Kalenjin desire to regaintheir land.31

Conflicts were alleged to be with 2 aims One of the aims was to displace opposingethnic communities and therefore prevent them from voting Customary land lawswere then used as basis for pro-government politicians to call for evictions of

“outsiders” The other was to intimidate them into voting for Kanu’s presidential,parliamentary and civic candidates Conflicts were engineered by incitements andallegations of historical injustice.32 Finally sufficient numbers of the Kalenjin weresettled to challenge the Kikuyu in violence and together with political orchestration;conflict and violence have been experienced in the region every election year.33

1.9 Research Design and Methodology

The researcher used descriptive research methods specifically survey design method.Survey design was chosen appropriate because variables would not be manipulated.This design also enabled the researcher to study large and small populations Inaddition Sharma34 says that survey is the best design as it is the one where theresearcher can carry out an inquiry in large number of people where bothquestionnaires and interviews will be used Questions used both in the questionnairesand interviews were basically the same; albeit with the interview questions being

31 Commission of Inquiry into Tribal Clashes - 1999

32 GOK, (1999) Report of the Judicial Commission Appointed to Inquire into Tribal Clashes in Kenya 31st July,

1999 (The Akiwumi Commisssion), Nairobi: Government printer.

33 The notable exception was the 2012 elections when the Kalenjin and the Kikuyu united in the much admired and much maligned “tyranny of numbers.”

34 http://www.phdthesis.in/testimonials/chetan-sharma/

open Interviews were used with local leaders and opinion shapers who providedmore information and insight than was possible to get from the questionnaire Somequestions in the questionnaire were closed ended using the Likert type scale due tosimplicity in statistical analysis.35 Open ended interviews were done with keyrespondents In addition library research was also done The researcher also usedsecondary data from legislation, analyzed cases, books, research papers, newspapersand magazines and the internet

1.9.1 The Study Area

The study was carried out in Eastern Mau Region of Nakuru County in Kenya

1.9.2 Sampling Procedure

Random sampling was used to select samples of farmers, workers, tenants,administrators and students According to Sharma36, random sampling allows eachitem in the population an equal chance of being included in the sample Specifically

3 areas in the study area were chosen These

were:-1.9.3 Instrumentation

Questionnaires were used in the research The questionnaires were designed by theresearcher to collect information on age, gender, education level, occupation, landownership, attitude on legitimacy of title to the land, causes of conflicts, knowledge

of old and new law related to land and forests applicable to Kenya, attitude towardsthe justice system in Kenya, past experience of conflict and violence, readiness to

35 Allen, Elaine and Seaman, Christopher (2007) "Likert Scales and Data Analyses" Quality Progress 2007,

64-65. http://asq.org/quality-progress/2007/07/statistics/likert-scales-and-data-analyses.html

36 Sharma (1997) Intertwining Design Research with Futures Studies for Revered Innovations - Trends Strategist, Culture Science Lab Arts & Technology Dept., University of Texas at Dallas, USA.

resort to violence to resolve conflicts and reasons for the method chosen to resolveconflict and also desirable methods of dispute resolution Questionnaires were used

so as to cover as many respondents as possible and make coding easy Thequestionnaires were administered by the researcher and assistants/enumerators37 tothe population sample either directly or read to them in case of illiteracy

Interviews and focus group discussions were also held in each of the study locations.Interview subjects were carefully chosen with the help of the enumerators and thevillage guides to get those with some leadership position and also those who wereexpected to have more knowledge on the study issues Interview subjects thereforeincluded local chiefs, foresters, teachers and agricultural officers In addition deskresearch was done on the laws governing forests to check for ambiguity, conflict andincomprehensibility Scholarly articles on African customary laws governing landmatters especially those related to tribes settled in the Mau were also studied

1.9.4 Reliability and Validity of the Instruments

A pilot study was done prior to the actual field study The pilot study establishedwhether the questionnaire would be understandable, would get the relevantinformation and doable within the given timeframe Expert opinion was sought fromthe LLM supervisors on what questionnaires may need to be changed, added ordeleted altogether The pilot study was also useful as training ground for theenumerators to ensure that they themselves understood the questions they would beadministering

37 To ease communication and willingness to cooperate, each of the enumerator was chosen from the local community and had a local village elder as a guide appointed by the local chiefs

CHAPTER TWO 2.0 LEGISLATIVE AND INSTITUTIONAL FRAMEWORK 2.1 Introduction

This chapter looks at the various land tenure systems that have prevailed andcontinue to prevail in Kenya ever since the pre colonial to post independence days Itlooks at the colonial and independence constitutions and their impacts on forestcommunities and also on the communities neighbouring the forests It also assessesthe efficacy of these legislations in solving forest related conflicts especially in thestudy area

2.2 Traditional African Forest Management

Traditional African land tenure in Kenya recognized community land ownershipunder trust In addition there was a distinction between rights of control and rights ofuse and access This is unlike the English concept of land ownership that includeeverything on it For example land by the Kikuyu was acquired on the basis of firstuse usually based on hunting and trapping rights The hunter then established his

Ngundu (Claim) and passed them on to his descendants The rights were

strengthened by forest clearance and cultivation The land under which ownership

could be established was called githaka The boundaries of the githaka were

recognized by other clans.38 This was also the situation that prevailed in many parts

of Africa including Nigeria39 Customary law respected primacy claim of first

38Dewees P ( 2009) Social and economic incentives for smallholder tree growing A Case Study from

Murang'a District, Kenya Food and Agriculture Organization of the United Nations, Via delle

Terme di Caracalla, 00100 Rome, Italy

39Kajoba G (1995) Land Use and Land Tenure in Africa : towards an evolutionary Conceptual

Framework

occupants; communal access to resources linked to the land, relatively easy access tocultivation rights by incomers/the landless and cultivation rights secured throughcontinuous use hence preference of “autochthons” over newcomers.40 According to J.Markus (2012)41, The Ogiek have two systems of land and resource tenure Thewhole land is collectively owned and managed However each clan has a strip of and

in the montane forests that cover various climatic zones This enables them to collecthoney at different times depending on the flowering seasons of plants in the variousclimatic zones

2.3 Kenya’s Colonial Land and Forest Laws

A series of colonial land laws although, not actual forest legislation had a majoreffect on land tenure system, displacement of people and dispossession of communalland some of which were forests The applicable land laws are enumerated below

2.3.1 Ukamba Woods and Forest Regulation of 1897

The Ukamba Woods and Forest Regulation of 1897 was the first forestry legislation

in Kenya.42 Its purpose was to reserve forests within 1 mile along the railway line forrailway use to guarantee wood fuel for the locomotives Forest beyond were putunder the local colonial administration under the District Officer's management.43

2.3.2 East African Forestry Regulations (1902)

40 Chauveau, J-P., Colin, J-Ph., Jacob, J-P., Lavigne Delville, Ph., Le Meur, P-Y., 2006, Changes in

land access and governance in West Africa: markets, social mediations and public policies: Results

of the CLAIMS research project, London, IIED.

41 Markus J (2012) Hunters or hunted? The Ogiek of the Mau Forest, - Journal of the International African Institute 61 New York.

42 Logie, J.P and Dyson, W.G 1962 Forestry in Kenya: A Historical Account of The Development

of forest Management in The Colony Government Printer, Nairobi.

43 Logie, J.P and Dyson, W.G 1962 Forestry in Kenya: A Historical Account of The Development

of forest Management in The Colony Government Printer, Nairobi.

This set up the Forest Department It aimed at controlling pastoralists and shiftingcultivators to prevent their perceived destruction of forests It outlined forestoffences and introduced issuing of licenses for certain forest activities and use ofdeadwood for fuel It also facilitated allocation of forest land to colonial settlers.44

2.3.4 The Crown Lands Ordinance 1902 and 1915

These legislations were interpreted to mean that all reserve land was crown land andthat the natives were actually tenants of the Crown hence did not recognize Africancustomary land tenure45 The 1902 ordinance gave power to the commissioner to sellcrown land within Kenya protectorate in lots not more than 1,000 acres enablinggrabbing of native land that appeared idle

2.3.5 The 1919 Registration of Titles Ordinance

The legislation had the objective of securing private land ownership by issuing titledeeds This rendered many pastoralists communities with traditional communal land

ownership dejure landless Eventually it led to a section of the society that was

regarded as squatters on their own land.46

2.3.6 Forest Ordinances

Later Forest ordinances were passed in 1911, 1915and 1916 that provided forrecruitment of forest guards The colonial regulations resulted in gazzettement oflarge areas as forest land By 1930, 4812 square miles had been reserved and by

44 Upto 264,410 were allocated to the settlers by 1908 (Logie and Dyson 1962)

45 Land Tenure Commission - Colony and Protectorate of Kenya - Report of The Commission Appointed to Enquire Into The Laws Relating to The Crown Lands in East Africa.

46 Kanyinga, K ( ) Re-Distribution From Above - The Politics of Land Rights and Squatting in Coastal Kenya Nordiska Afrikainstitutet Uppsala.

1932, and by 1940, government forest land had had increased to 1 050 000hectares.47

The Legislations also introduced the Shamba system was introduced due torecommendations by a colonial forestry expert Hutchinson in 1909 copied from theTaungya system of S America where squatters were permitted to grow crops andtend tree seedlings in forest land.48 Subsequent amendments in 1949 and 1954transferred forestry from the governor to a member of the legislative council andfinally to the cabinet minister Forest legislation therefore entrenched centralizedmanagement, reducing more and more the role of the local communities

2.4 The Independence Constitution

This was a negotiated document signed between Jomo Kenyatta and the British atLancaster house The country was a multiparty state headed by a Prime Minister;Jomo Kenyatta However in 1964 the constitution was amended to make Kenya arepublic headed by a president with authority to appoint the Prime Minister and otherMinisters Later the Senate was abolished (1966) leaving only he NationalAssembly More watering down of the constitution was done including giving thepresident powers to appoint the chief justice and judges without consulting thejudicial service commission and removal of regional bodies powers to collectrevenue in their areas Finally the regional assemblies were abolished to be replaced

by councils and the regions themselves were now called provinces headed by aprovincial commissioner appointed by the president

47 (Logie and Dyson, 1962).

48 Oduol, P A 1986 The Shamba System: An Indigenous System of Food Production From forest Areas in

Kenya Agro forestry Systems, Vol 4.

In addition a number of amendments were made to reduce security of tenure ofimportant offices including the chief justice and Public Service Commission, HighCourt judges and Court of Appeal judges In 1982 section 2A was inserted to makeKenya a dejure one party state with KANU as the only permitted party UnderPresidents Jomo Kenyatta and Daniel Moi, Kenya had experienced major abuse ofthe legal process with allocation of government land to individuals49 who in turn soldthe same land to state corporations50 After Moi’s KANU lost the general election in

2002, the new president Mwai Kibaki appointed the Ndung'u commission51 toinvestigate land issues dating since independence

2.5 Constitution of Kenya 2010

This constitution was drafted and passed after the violent conflict of 2007.52Recognizing the importance of land and the environment in ensuring a peacefulcoexistence of Kenyan tribes a whole chapter was dedicated to the environment andthe land (Chapter 5 – Land and Environment) The first step in reforming the landlaws in Kenya was taken by the new constitution It classifies land into public,private and community and states that all land in Kenya belongs to the citizenscollectively as a nation, communally or individually.53 Government land is the landthat was vested in the government of Kenya by sections 204 and 205 of the 1963-

2009 Constitution54 that was contained in schedule 2 to the Kenya Order in Council

49Ogiek Welfare Council and Towett J Kimaiyo (2004) Ogiek Land Cases and Historical Injustices

-FreeAfrica.Tripod.com/ogiekland Visited on 17 the April 2015

50 For example between 1990 and 1995, NSSF spent Kshs32 billion in land that turned out to be useless as it included designated road reserves.

51 The Ndung’u Commission, which was gazetted on July 4, 2003

52 Commonly referred to as “land clashes”

53 Chapter 5 Sections 60 – 68

54 That constitution has now been replaced by the 2010 constitution

1963 and sections 21, 24, 25 and 26 of the Constitution of Kenya (amendment) Act1964‘government land in turn comprises of two sub-categories i.e un-alienatedgovernment land and alienated government land.

Public land is any unalienated land used or occupied by a state organ, land whichneither an individual nor a community owner can be identified, all minerals,government forests and gamer reserves Also included are water catchments areas,roads, rivers, water bodies, territorial sea and the exclusive economic zone, thecontinental shelf and land between high and low water marks Community land island held by communities on the basis of ethnicity, culture or similarinterest. Community land comprises land registered in the name of grouprepresentatives, transferred to a specific community and land held, managed or used

by communities as community forests, grazing areas or shrines Also included areancestral lands and land traditionally occupied by hunter-gatherer communities.Such land will be held in trust by county governments and managed by the NationalLand Commission Protection of community land will not only preserve the culture

of the community but also ensure protection of forests which sustain thecommunities

Private land is land held by an individual or company under freehold or leaseholdtenure Non citizens can only hold leasehold tenure which has been reduced to 99years from the former 999 years Of special relevance to forests and the environmentare the environmental articles in the 2010 constitution These are in Chapter V Thechapter outlines the obligations of the national government in respect ofenvironmental issues Article 69 has eight requirements of the state regarding the