Heike Pander (1995):
Land Tenure and Land Policy in the Transmara District, Kenya: Situations and Conflicts

Executive Summary

Since the Maasai have moved to Transmara, the area has been used as communal grazing area for livestock. All members of the three Maasai sections living in the area had access in common to resources such as forest, water, and pasture. The land was seen as an integral part of the social system which determined legitimate use by affinity, common residence, social status or a combination of these. The land was the "property" of each Maasai section. Maasai are pastoralists and their migration cycles did not interfere with the migration cycles of wildlife as long as vast areas of grazing were still available. Pastoralism was well adjusted to the particular ecological circumstances of the Mara-Serengeti Ecosystem.

Although pastoralism is over the long run the best adjusted land use for an area like Transmara, the Kenyan government has followed a policy of individualization of communally owned land since independence in 1963. Individual title deeds for the land were expected to provide the owners with more security to the land and give incentives for development. The socio-political repercussions of individualized land ownership such as landlessness and maldistribution were accepted. Advantages were seen in the increase of individual owners´ responsibility for their holdings and in their desire for more development. Individualization of ownership was hoped to create mechanisms and incentives for the most effective and efficient use of the land.

In the early 1970s the concept of group ranches was introduced in pastoral areas like Narok (including Transmara) and Kajiado Districts. A group ranch is a particular form of official right to privatized land. It can be seen as an intermediary step between communal tenure for land and individual tenure. A group of people (usually more than five) are registered under one official legal title deed as the owners of the land. The intention was to preserve large pastures for livestock. Therefore, the traditional system should gradually be adjusted to "modern" forms of management in the form of cooperatives. In the long run, the concept was intended to give way to individual land ownership. (See group ranches) Approximately 40.000 ha of land were turned into incorporated group ranches with title deeds in Transmara. Those who created the concept of group ranches mainly expected a reduction of numbers of livestock and better management of the pastures, among other "improvements".

The concept of group ranches did not show the expected results and was abandoned. At present the remaining land, usually former Trust Land, under communal use is turned into adjudication sections and subdivided without intermediate stage into individual holdings. All of the group ranches except one opted for the subdivision of their land into individual holdings.

Before the group ranches could be created, the Trust Land under the Trust Land Act (Cap. 288) had to be turned into adjudication sections under the Land Adjudication Act (Cap. 284). The process of subdivision starts with the declaration of an area under communal use without legal rights to the land to be an adjudication area. Community members elect an adjudication committee which determines, according to customary rights, who is eligible to receive a plot of land. They also determine the location and the plot size of the land each individual will receive. The land is then demarcated and surveyed. Further steps have to be followed until the title deeds to the land can be issued (see 3.3.1).

The process of subdivision of land provides a once in a lifetime chance for people to get access to land without paying. The transition of Trust Land under communal use is not fully covered by law. The subdivision is supposed to follow customary rules and traditions. As is generally known, Maasai tradition does not have any mechanisms to subdivide communally owned land into individual holdings. Land is not treated as a commodity and there are no rules of how to subdivide land. As a consequence there are no rules of inheriting individual plots of land. Not the land itself is inherited but access to resources and user rights. The law does not give any recommendations on how the subdivision should be carried through. Since the laws leave space for individual interpretation there are too many people who take advantage of this uncertain legal situation. Non-Maasai from other districts as well as Maasai try to get a share of the land although they are not supposed to.

The subdivision of land in Transmara faces several constraints and provides some areas of conflict:

Constraints:

• Land Adjudication Committees (LAC, 3.3.2):

• traditional power structures of Maasai culture are still actively working and contribute to the powerful position of the LAC
• due to lack of traditional and legal guidelines for the subdivision of land some committees subdivide the land according to their will (distribution of land according to ranking of power and wealth)
• corruption

• Lack of Education and Information at a Grassroots Level (3.3.2):

• high percentage of illiteracy, especially among older generations
• restricted flow of information through leaders/educated (taking advantage)
• peoples´ "ignorance of the law" (people do not know about their legal rights and cannot defend themselves adequately)
• group representatives do not inform their community members adequately about their activities
• different understanding of concepts of land ownership at the grassroots level

 

• "Outsiders" (3.3.2):

• Non-members of Maasai groups seek ways to get access to land in areas under subdivision for various reasons:

• intend to benefit from land sales without investing or developing the land
• did not get access to land in their actual area of residence

• Time Factor (p. 36):

• delay of subdivision allows for more encroachment and corruption
• title deeds are only issued once all pending cases are settled
• restricts development. People hesitate to invest in their land as long as they cannot be sure that the land will actually belong to them.

• Legal Support (3.3.2):

• people are not aware of their legal rights
• the majority of people still believes in traditional/customary structures where disputes are settled by a committee of elders.
• complicated legal procedures for complaints concerning unjust subdivision
• land tribunals (committee of elders of the whole district) do not function effectively; mostly elders do not know technicalities of laws; corruption

• "Clanism" (3.3.2):

• Maasai among themselves are dealing with conflicts over access to resources

 

Changes are brought to the Maasai communities in Transmara. The increasing population reduces the available space for pastoralists and wildlife. More people require more food. The people migrating into Transmara are mainly cultivators changing pasture land to a major extent into zones of crop cultivation. The subdivision of communally owned land into individual holdings also brings change.

Economic Change (3.3.3):

• pastoral areas are turned into areas of cultivation

• neighbouring groups take up cultivation
• increasingly Maasai take up cultivation themselves

• change from subsistence to market economy; growing demand for money to cover daily needs
• increased fencing will reduce grazing areas for large herds
• necessity of other sources of income
• individual title deeds can serve as a security for loans
• change of communal use of forest and water resources

Cultural Change (3.3.3):

• migration with livestock reduced; people become more sedentary
• change of construction style of houses; change of diet
• increasing acceptance of education
• restricted education on traditions
• no system of inheriting land as a commodity
• restricted access to land for women
• position of head of household emphasised, his power increased

The changes mentioned above bring conflicts in resource utilization (see p. 42ff) Pastoralism was compatible with the unique Mara-Serengeti ecosystem which is extending into the Transmara area. The area is rich in wildlife and could be utilized as wildlife and tourism facility. As long as Transmara was not densely populated little conflict occurred between Maasai herders and their livestock and wildlife. With an increasing population more and more of Transmara becomes densely populated. People from other districts migrate into Transmara in addition to the increasing population there. An increasing number of people requires increased food production. A major goal of the development plans is increasing the standard of living by increasing agricultural production. Transmara has a high agricultural potential with sufficient rainfall and good soils and is therefore suited for cultivation. This could support agricultural production, one major goal of development, but conflicts with two other important areas. Increasing crop production reduces available grazing. The numbers of cattle do not decrease and, therefore, contribute to the destruction of pastures. Intensified crop cultivation reduces the carrying capacity of the soil after a few years and reduces other means of production. Additionally, crop production conflicts with wildlife. The farmers do not get compensation for crop damage. Increasing cultivation also destroys the dispersal areas for wildlife and reduces the scenic value of the landscape for tourism. Tourists mainly come to see the wildlife. It will gradually disappear as more and more of the area is cultivated. Increasingly, wildlife also conflicts with pastoralism. Pastoralists fear the transmission of diseases from wildlife. Additionally, predators are attracted by wild animals but hunt on domestic animals to an increasing extent. Restrictions in the law limit the utilization of wildlife. People at the grassroots feel that they should benefit more from wildlife if they have to put up with it. The incentives of crop cultivation are presently higher than the benefits from wildlife and people in the communities do not understand why they should protect wildlife when they can earn much more money much faster by cultivating.