Legitimization Crisis:  Laws, Policies, and Decrees as tools for Maasai Land Appropriation

Legitimization Crisis: Laws, Policies, and Decrees as tools for Maasai Land Appropriation

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November 26, 2014

Pastoralism is the dominant land use in 25 percent of the world’s landscapes and comprises the basic subsistence strategy of 20 million households. These rangeland ecosystems largely occur in regions too dry for rain-fed agriculture and are characterized by recurrent drought and strong intra- and inter-seasonal variability in climate. Pastoralism is an ancient mode of mobile livestock production that makes extensive use of grazing lands in the lowlands of the Great Rift in eastern Africa and the Horn. Pastoralism, which is the life stay of pastoralists, is struggling to find itself space and recognition as a way of life in the so-called mainstream systems. It encompasses livestock keeping, grazing, nomadism and utilization of natural resources by people and their animals. Pastoralism is a demanding occupation requiring the ability to withstand physical hardships, walking long distances in search of water and pasture often exposing people and livestock to dangers of the wilderness. According to Galaty, pastoralists in Africa who include the Maasai of Kenya and Tanzania have historically faced the challenge of land appropriation by “a variety of actors who have used political means to achieve what would normally be socially and economically impossible” (p.1). The introduction of legislations and policies that favored agriculture-based economies at the expense of pastoralism–which has been viewed by policy makers as retrogressive and unproductive– legitimized land appropriation among many pastoral communities in Africa.

According Boone, land politics and policy in Africa have been around the debate over whose rights are to be recognized by the state; this has led to many disputes arising from the processes that the state has used to allocate land. In the regulation of land ownership and land use, governments employ law and policy instruments that–when inappropriately enacted and implemented–have caused conflicts, discrimination, inequality, and poverty. Boone further argued that African governments have used laws, policies and decrees to “consolidate the power of the central state, promote national integration, accelerate the expansion of commercial agriculture, and demobilize rural populations who entered the political arena at the time of the nationalist struggle” (p. 3). The lack of inclusive legislative and policy making processes has been identified as a key driver for continued marginalization and land appropriation in Africa. The fact that legitimizing land appropriation has historically been based on “the national good” the price that local communities have paid and continue to pay has been enormous and in the absence of safeguards and policies to mitigate the impacts of land loss this has led to untold suffering by the communities due to lack of fallback mechanisms.

The Maasai people have been victims of historical, economic and political marginalization. Their pastoral economy has not been fully mainstreamed into the national economy despite its great potential. They have been subjected to acute land loss and misuse, right from the dawn of colonialism in East Africa. Whereas during the colonial era their lands were routinely appropriated because their nomadic and pastoral lifestyle did not require the cool lands better suited for agriculture, in independent Kenya, the Maasai have become victims of the much touted “willing-seller-willing-buyer” capitalist theory. The combined result has been massive loss of land, virtually rendering the affected people destitute. At the root of this serious plight has been widespread ignorance amongst the affected communities regarding their land rights and the obligations they have to ensure good land tenure and environmental management. The continued loss of land has created a Maasai population that is ether landless or squatters on land that has either been sold out by the Maasai themselves without due consideration of the impacts the sales have on their lives and livelihoods, land that has been illegally and corruptly allocated to non-residents, and land that the government has alienated as Trust land, game reserves, forest reserves or national parks.

In Kenya for instance, various Maasai groups have filed numerous cases in courts to either forestall further land alienation or claim back what was illegally appropriated, and in their pursuit for political recognition. Key among the cases that have been heard at the Kenyan High Court is The Ilchamus Constitutional reference case which, even though the court rulings are yet to be honored and implemented, set a precedence in the legal fraternity in Kenya. Other such cases include Olamara (Narasha) in Nakuru, Olooseos Maasai Rural Development Center, Oloololo, Olteyani, Magadi, Inkipikoni Holding Ground, Ngong Veterinary Farm, the Sheep and Goat farm in Kitengela and the latest threat to auction Olkiramatian and Shompole group ranches in Kajiado as well as many other that are awaiting determination in the Kenyan courts. Given the history of the legal regime in Kenya and the provisions provided by the constitution regarding the sanctity of the “title” and corruption within the legal processes, many courts operate within the whelms of political and economic patrons. Such is the example of the recent case where a judged summoned the whole Maasai leadership from Kajiado County consisting of the Governor, Senator, and members of parliament to appear before court on flimsy charges for contesting the auction of Shompole and Ngurman ranches. This was an exhibition of the degree at which the laws are being used to legitimize illegal, inappropriate and unethical processes to justify an illegality to please either the investor or their political god fathers

The ineffectiveness of legal processes coupled with corruption in the government legal systems has created a legitimization crisis where courts have made rulings in disregard of primary evidence from Maasai communities who have inhabited such lands like Loliondo, Kamorora, Shompole and Olkiramatian where court rulings have not duly considered Maasai arguments of land ownership and gone by the principle of “registered land title” as opposed to the processes that were used to get the land titles; which in many instances are obtained through corrupting land officials by the interested parties to legitimize land ownership, government policies and presidential decrees. While common sense is said to be not common to all, the case of the purported sale of Shompole and Ngurman group ranches in a case of trespass by the Maasai on their own land, and as the saying goes that the law is an ass, courts in Kenya have been used as conduits to “illegitimately” legitimize land appropriation by those that have the money and connections to the powers that be. Unfortunately the courts have been blinded by corruption to a point where a judge ruled that over 40,000 Maasai families should lose land because “Stayn”, a well-connected political investor from South Africa, felt that Maasai dry season grazing areas to which he fraudulently acquired a title deedis a no go zone for the Maasai. The case has been in contestation by the Maasai for the last 20 years.

Similarly, in Tanzania, the Maasai have been fighting continued threats of land appropriation to increase agricultural land and create conservation areas and hunting blocks meant to be for the exclusive use by the rich and affluent in global tourism. There are several conservation and land related conflicts in Tanzania that have adversely affected the general well-being of the Maasai there. One such case is the Sukenya farm conflict which is pitting the Masai against the government and the US-based tour company Thompson Safaris, otherwise known as Tanzania Conservation Ltd (TCL). In 1984, Tanzania Breweries Limited (TBL) acquired 10,000 acres at Sukenya Farm, without the consent of the local communities. The villagers claim that the acquisition was never legalized because TBL did not follow required conditions, such as compensating the landowners, and in any event used only a tiny fraction of the land, leaving the local pastoralists to continue grazing their cattle as they always had done. By continuing to use the land without disturbance for over 19 years, they believe that they had legally become the landowners again. But TBL sold all 10,000 acres, plus an additional 2,617 acres of land, to TCL in 2006.

The Maasai in Loliondo have continued to suffer incarceration, killings, and displacement with the burning of their homesteads to create room for sport hunting; denying them the rightful use of their God given resources at the expense of “happy hunters” who derive their pleasure in killing the wildlife that the Maasai have preserved from time immemorial. Worse still, even global financiers like the World Bank are proposing safeguards to allow countries an “opt out” clause in investment. This is, in essence, why Tanzania has applied to be the guinea pig in testing how the mechanism is going to work. Despite the dismissal and denial by Tanzania’s minister for Natural Resources, evidence from the Maasai themselves in Loliondo speaks volumes in the manner at which Ortello Business Corporation (OBC)–while fighting legal battles with the Maasai–has increased surveillance, arrests and destruction of Maasai villages on the said piece of land.

The dilemma in such a situation is that, as the political elite and their surrogates identify the grazing land of the Maasai community in East Africa as the next frontier for land grabbing, Maasai personalities are being compromised. While Maasai NGOs that are now known to be “professional attendees” of global human rights forums continue to use the predicament of the Maasai as a source to finance their operations, very few of them have come out to clearly defend the people without the compromise of the funding they get for the Maasai case. Apparently the status quo is being facilitated by indigenous people’s funders that keep on funding Maasai land rights and have fallen into the trap of the cyclic proposals that the organizations present to funders who have turned out to be “ friends and accomplices” in the process. Rarely do you find the affected communities in such forums like the United Nations Permanent Forum, the World Bank Consultations forums, climate change (this has become the new cash cow for African Indigenous peoples NGOs), with no impact on the lives of the communities that they purport to represent.

Seeking legal redress for land dispossession, evictions and human rights violations in East Africa is not easily given the political intrigues that are involved and the fact that the development of the common law has long been influenced by case law from other common-law jurisdictions (Wachira, 2008). The land predators have used courts to adjudicate the cases and with the absence of laws that protect the original inhabitants, high costs of filing responses, distances from the courts, lack of information, and corrupt legal systems, the Maasai have perpetually been losers in almost all the cases that have been filed against their interests by the land grabbers. While it is a known fact that the Maasai were the first Indigenous community to use legal processes to challenge the British colonial regime, and given the outcomes of the case, it is evident that without an independent judicial system that is free from political influence, the Maasai case has several challenges. In order to understand and contextualize local and international human rights instruments and their application in the Maasai claims, such instruments will require legal and constitutional interpretation that will apply in the East African context.

It is also the onus of donors that have continually supported human rights in Africa to sit back and evaluate their impact in terms of Returns On Investments (ROI) especially where continued funding of certain organizations whose goals are to address land rights in Africa have had any significant impact. This is especially given that, despite having been funded for over 20 years, land loss has continued without any sustainable solutions to either stop the land loss or mitigate the impacts of the losses. In comparison to the American and Asian indigenous people who have achieved tremendous results in the rights of their people, African indigenous peoples’ representatives are yet to awaken to the realization that their unity is vital and that they need to feel secure by building the capacity of local communities that are facing land and resource challenges to become voices of their own causes rather than becoming gate keepers as the situation is currently. It is also important to note that, while donor support is meant for the good of the human rights processes, an in-depth evaluation by supporters of the movement should move from the current situation of dealing with “the only trusted friends and NGOs” to the grassroots.

In order for the Maasai in East Africa to be able to address such grievances, their civil society should change from being “THE BIG BROTHER” and “SAVIOR” of the community to critical analysts of existing laws and policies that have continuously exacerbated land loss and with support from the donors develop alternative mechanisms to challenge the existing laws and policies both at the country and global level to address the situation. Policy analysis is determining which of the various alternative policies will most achieve a given set of goals in light of the relations between the policies and the goals. Analysis for policy is prescriptive—i.e., it is involved with formulating policies and proposals (e.g., to reduce increased rates of landlessness). Analysis ‘of’ policy is more of an academic exercise, conducted by academic researchers, seeking to understand why a particular policy “was developed at a particular time” and the effects, intended or otherwise, of that policy. Such is what is missing within the African indigenous people where there is seldom use of empirical research to support the claims. Over reliance on NGO reports that only respond to donor requirements seldom creates an impact on national policy making processes and is more often than not viewed by governments as mere rhetoric by NGOs to continue attracting donor funding as quoted by the president of Tanzania Jakaya Kikwete during the USA-Africa Summit held in DC.

Such will probably result in local mechanisms that will empower local authorities to allocate funding to identify and compulsorily repossess land that was irregularly appropriated through purchasing at the current markets rates or institute legal processes to have the land revert back to the aggrieved communities. One other strategy that could be examined by support entities is a land ‘buy back’ proposal that will enable the Maasai and particularly the women (where land sales are involved, Maasai women are never consulted and they are the most affected by land loses) to buy the land that individuals are selling or even buying back what has already been sold out. This could work very well in Kenya with the devolved government structure where the county governments can allocate financial resources to buy land and legislate it as community land. The need to work together for a common cause by all stakeholders adds in value by the creation of critical mass as opposed to the current situation where individuals and organizations see each other as competitors as opposed to allies in the quest to alleviate the problem. Credence of such policy analysis will be added when organizations elicit the support of indigenous scholars to undertake research that will validate the claims, which apparently is currently missing.

Koissaba, B.R.Ole. MASE, PhD (c). Institute on Family and Neighborhood Life, Clemson University SC and founding chair Maa Civil Society Forum

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