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Review of African Political Economy

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Reform and counter-reform in Kenya's landgovernance

Jacqueline M. Klopp & Odenda Lumumba

To cite this article: Jacqueline M. Klopp & Odenda Lumumba (2017): Reform andcounter-reform in Kenya's land governance, Review of African Political Economy, DOI:10.1080/03056244.2017.1367919

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Reform and counter-reform in Kenya’s land governanceJacqueline M. Klopp a and Odenda Lumumbab

aEarth Institute, Columbia University, New York, NY, USA; bKenya Land Alliance, Nakuru, Kenya

ABSTRACTFashioned within conquest, Kenya’s current system of landgovernance was designed to facilitate land expropriation for thefew and powerful. Post-colonial elites never fundamentallyreformed this system of concentrated legal and administrativepower over land and continue to benefit from it. This articleexplores both recent efforts at land governance reform and thenumerous ways that counter-reform resistance is occurring andcurrently gaining the upper hand. The authors argue thatpowerful networks of beneficiaries create a strong system ofcontrol and exclusion around land, producing a path dependencyagainst reform. The challenge for reformers is to overcome thesepowerful forces arrayed against change with creative mobilisationstrategies, leveraging not only the 2010 Constitution and thecourts but also public outrage and stronger civil societyorganisation. Overall, an important reform struggle in Kenya is justbeginning, the outcome uncertain and the stakes for the country’sfuture very high.

La politique de la réforme de la gouvernance dufoncier au Kenya

RÉSUMÉElaboré pendant la conquête coloniale, le système actuel degouvernance de la propriété foncière au Kenya était conçu pourfaciliter les expropriations au profit d’une petite et puissanteoligarchie. Les élites postcoloniales n’ont jamais réformé enprofondeur ce système de concentration des pouvoirs juridique etadministratif dans le domaine foncier, et continuent d’en bénéficier.Cet article explore les efforts récents de réforme de la gouvernancedu foncier ainsi que les nombreuses voies empruntées par lacontre-réforme pour y résister, et grâce auxquelles elle tendactuellement à prendre le dessus. Les auteurs affirment que lespuissants réseaux de bénéficiaires créent un système solide decontrôle et d’exclusion de l’accès à la terre, générant unedépendance historique ou une série d’« effets de cliquet »contrecarrant la réforme. Pour les réformateurs, l’enjeu est desurmonter ces forces puissantes, arc-boutées contre le changement,en mettant en œuvre des stratégies de mobilisation créatives,faisant appel non seulement à la Constitution de 2010 et aux coursde justice, mais encore s’appuyant sur l’indignation du public et surune meilleure organisation de la société civile. Globalement, uneimportante lutte pour la réforme au Kenya ne fait que commencer ;son issue est incertaine, l’avenir du pays s’y joue.

KEYWORDSKenya; land reform; counter-reform; land governance;resistance; civil society;transformative change

MOTS-CLÉSKenya ; réforme foncière ;contre-réforme ;gouvernance du foncier ;résistance ; société civile ;transformation

© 2017 ROAPE Publications Ltd

CONTACT Jacqueline M. Klopp jk2002@columbia.edu

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Introduction

Apprehensions of social, economic and political mischief associated with Kenyan landhistory were a vital factor in the dynamics of land reform. This explains the concern to insti-tute a public entity with a land-resource mandate, independent of the head of the central gov-ernment. It also explains the desire to decentralize the land management system, and toestablish checks-and-balances in that regard.

(Supreme Court Advisory Opinion Reference No. 2 of 2014)

Fashioned within British conquest of territory, Kenya’s land governance system was nevermeant to be inclusionary and equitable. The conquest government largely designed it toexpropriate land for a politically powerful minority and to facilitate European settlementand colonial, capitalist development. ‘Social, economic and political mischief’ around landhas led to layers of problematic allocations of land. This, in turn, has generated high levelsof contestation around land (Kenyan Human Rights Commission 2000; Klopp 2001;Truth Justice and Reconciliation Commission 2013), and exclusion as reflected in anincreasing and large Gini coefficient1 in land access in Kenya (World Bank 2008).Given that land inequality is often associated with poverty, political disempowerment,social division, violence and impeded economic growth, this represents a profoundlyserious situation (Deininger 2003; Kahl 2006; Van den Brink et al. 2006; World Bank2006).

Politicisation of land was part of the large-scale violence that convulsed Kenya in 2007–08 leading to mass displacement, economic disruption and over a thousand deaths(Anderson and Lochery 2008; Boone 2012; Kanyinga 2009). This violent upheaval,however, created a ‘window of opportunity’ to implement land law and policy reform.These reforms include the Sessional Paper No. 3 of 2009 on National Land Policy, new con-stitutional provisions (Chapter 5, Constitution of Kenya 2010) and new laws around landregistration and titles, protection of public lands and urban planning. These new policiesand laws and the institutions created out of them reflect an ambitious attempt by civilsociety and government reformers to reorganise existing land governance to dispersepower and bring land issues into a more open realm of ‘public reasoning’ (Sen 1999).

In this article, we ask: what are the politics of Kenya’s land governance reforms and dothey have the possibility of being transformative? Early assessments are pessimistic. Legalscholars point to the hurried, top-down and exclusive nature of the process around writingthe new land laws and the contradictions in and problems with laws that came out of sucha flawed process (Manji 2014, 2015; McAuslan 2013). Concern also exists around the waythese reforms manifest themselves in local politics and decentralisation replicating old pat-terns of dispossession and accumulation (Boone et al. 2016). Finally, some argue from ahistorical perspective that, given the powerful, entrenched interests in Kenya, landpolicy and law reform is bound to be conservative (Van Arkadie 2016). In this articlewe present a brief, historically grounded political institutional analysis of Kenya’spresent land governance system and the current struggle over its transformation. Whilescholarship on Kenya’s serious land problems is voluminous, little political economyanalysis of Kenya’s current land reform process exists in part because it is so new, con-stantly changing and often focused on disputes over laws.

We begin with a discussion of how historically produced bureaucratic and legal mech-anisms have enabled and facilitated unaccountable land allocations and transactions from

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colonial times to the present. We then show how aspects of this historical institutionaldevelopment have shaped current institutional land governance dynamics, privilegingpowerful networks of political brokers and beneficiaries. We argue that these networkstend to push the land governance system into a certain path dependency that does notfavour reform. This is because networks that have benefited and continue to benefitfrom the status quo in the land governance system are in positions of power and activelywork to undermine reforms that would hold them to account or reduce illegal and irregu-lar access to land. However, by generating grievance and exclusionary material conditions,this system provokes efforts to subvert and transform the system (Onoma 2010). Pressuresfor change have emerged among a wide variety of societal actors who lose out in thissystem. We then analyse the state of current reforms produced by this political struggleand reveal the ways reformers are trying to change the rules of the game to dispersepower over land and make it more accountable and how, in response, counter-reformersare using a variety of tactics to resist these changes. The outcome is far from certain buthow this complex historical struggle unfolds will no doubt have wide-reaching impli-cations for Kenya.

Methodological note

Studying the politics of Kenyan land governance can be challenging. Land issues aresensitive and subject to rumour (Osborn 2008). Reliable data and information areoften deliberately made scarce. This situation is itself a product of the dynamics ofland governance in Kenya that rely on opacity and manipulation as well as maskingof information. However, Kenya’s policy and legal processes have opened up morerecently in part because of legal requirements for public participation embedded inthe 2010 Constitution and in part because of societal pressures for the governmentto do something to address land problems. This has led to investigative commissionsthat have generated some data and insight into the current situation (Republic ofKenya 2002, 2004). Further, parliamentary records, legal cases and the media havealso generated important records.

In this article, we draw on a number of approaches. As land reform advocates we havewatched the process of land reform unfold since the late 1980s, allowing us to take an‘extended case study approach’ (Buroway 2009). As participant observers, we have hada unique, ethnographic view of the internal workings of the reform process and havebeen able to interview or have off-the-record conversations with a number of key actorson different sides of the struggle. We have also reviewed the new land laws and policies,isolating changes that are areas of dispute. Following Flyvberg’s ‘phronetic social science’(2001), we try to explain these disputes based on historical institutional analysis and pol-itical economy dynamics, taking a look at who wins and who loses, how and why.

Historical institutional background to Kenya’s land

State power and land are intimately connected in Kenya’s history. The British Protectorate(1895) and later the settler colony of Kenya (1920) were products of conquest. Conquestrequired a legal system to legitimise jurisdiction over territory and to govern land as a criti-cal resource for state building. The Foreign Jurisdiction Act (1890) was the first law to set

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out the terms of land appropriation. It gave the British government control over ‘waste andunoccupied land in protectorates where there was no settled form of government andwhere land had not been appropriated either to local sovereign or to individuals’.Unlike the Sultan of Oman, who controlled the coastal strip, the decentralised societiesof Eastern Africa with their complex and diverse land governance systems did notcount as local sovereigns and hence their land became ‘waste and unoccupied’. Claimingoriginal title to ‘waste and unoccupied’ land, the British government could declare themCrown lands and make grants of them to individuals ‘in fee or for any term’.

The 1901 East African (Lands) Order-in-Council created the category of ‘Crown Lands’or public lands, which were vested in the Commissioner of the Protectorate on behalf ofthe British Crown. Within this framework, the Commissioner had the power to dispose ofland ‘on terms and conditions he might think fit’ (Okoth-Ogendo 1991). The 1902 Order-in-Council gave the Commissioner power to sell freeholds in Crown land to any purchaserin lots not exceeding 1000 acres, to lease land for periods not exceeding 99 years and togive licences for temporary occupation to non-whites. What is important in terms of insti-tutional development of land governance is that these laws ‘had the effect of conferringenormous discretion upon administrators with respect to what land they could lawfullydispose of within the Protectorate’; further, ‘the vagueness associated with public landsleft them power to determine more or less what waste and unoccupied lands were’(Ibid., 113–114).

The use of the undefined term ‘public lands’ ‘left the door open for massive alienation’(Mackenzie 1998, 67). Settlers scrambled for high-value land around Nairobi and thefertile highlands, for agriculture, business, residential use and speculation. ‘Asians’ hadaccess to land in Nairobi and other towns, but, like the Africans, were barred from thefertile White Highlands. With a policy of encouraging white settlement, the fledglingland administration was susceptible to lobbying from ‘big men’ and speculation wasrife, creating problems for officials engaged in planning and government works fromthe very beginning. McGregor Ross, for example, argued that the ‘big men’ – colonial set-tlers often of aristocratic extraction – like Grogan and Delamere – opposed him when hewas Director of Public Works (1905–22) because they did not approve of his interferencein their ‘get rich quick’ schemes (McGregor Ross 1927; Wylie 1977). Land speculation didnot always sit well with colonial officials. In 1905 W. D. Ellis of the Foreign Office wasconcerned about ‘grabbers’, ‘early settlers who accumulated as much land as possible onthe easiest terms’ in order to speculate rather than farm (Sorrenson 1968, 89).

Africans were confined to ethnically delineated reserves as subjects of ‘customary law’,effectively deemed ‘tenants of the crown’ (Okoth-Ogendo 1991). By reducing ‘native’access to land, common resources and mobility, this reserve system helped generate press-ures for Africans to search for labour in settler farms, plantations or the growing townsdotting the railway lines. Like the vague idea of the ‘public’, ‘customary’ was also deliber-ately vague to allow political leeway in interpretation and also freedom to appropriatefurther as needed. As John Ainsworth suggested in 1899:

Of course we can stretch such customs to be almost anything within their reasoning; if we sayit means freehold, it means freehold, but in our interpretation of the laws and customs I thinkit wiser not to recognize any system of freehold, we want some control over non-nativeholders of land. (Cited in Sorrenson 1968, 178–179)

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The 1915 Crown Lands Ordinance took arbitrary, centralised governance over land astep further. It concentrated power over Crown lands in the hands of the Governor,who at any time could sell, lease or otherwise dispose of this land. He was now able togrant 999-year leases for agricultural land and had wide powers to create reserves(‘native land’) and manipulate their boundaries. The Governor was also given a vetoover any land transaction as a way to protect segregation. This legislation would havewide-ranging impacts on the evolution of land governance in Kenya; it created the basisfor institutionalising centralised state control over land access. This legal and institutionaldevelopment took place under the influence of a strong settler lobby that wanted freedomto accumulate and speculate on land. While this lobby was periodically resisted by admin-istrators, in the end officials accepted that Kenya would be a ‘“big man’s” country in itsformative years’ (Berman 1990, 56). They justified this by assuming that these large-scale and influential farmers, despite their speculative and hoarding tendencies andreliance on African knowledge and labour, were the productive or ‘progressive farmers’.

This colonial land tenure system, and the legal and administrative apparatus thatupheld it, served to entrench inequality of rights and access to land between ‘settlers’and ‘natives’, which in turn generated stark economic inequalities and discontent. By1944, the amount of land alienated to Europeans including multinational corporationswas estimated to be seven million acres of which only 864,000 were actually in cultivation;the number of settlers was 2000, the number of farms 2700 and the ‘amount of undeve-loped land was so extensive that the government was considering the necessity of introdu-cing a tax on undeveloped land’ (Meek 1949, 79).

The system also created different legal and bureaucratic mechanisms for accessing land.A powerful minority had influence over administrative, legal machinery designed to facili-tate its access to land. Africans, in contrast, accessed land in the reserves via colonialappointees called ‘chiefs’ who had state-backed custodial powers over land. Chiefs main-tained authority and also the dependency of their subjects through their role as ‘allocatorsof land’ (Chanock 1991, 64). Indigenous land governance institutions were eroded, and the‘customary’ shaped by these power dynamics. While these institutions were not necessarilyequitable especially in relation to gender and age, access to land was generally linked tonegotiated use-rights, not exclusive ownership and commodification of land. Further,ensuring that the poor had temporary access to land was part of an indigenous socialwelfare system that was undermined by the new land governance system. Combinedwith the unjust land system, this erosion of local norms under land stress helped createthe growing numbers of landless or what the colonial government called the ‘squatterproblem’ (Meek 1949).

Given the rapid and often speculative accumulation of land in the hands of the whiteminority, ‘fallow’ land was a problem. To make this land productive, white settlers hiredAfrican labourers who were often allowed to farm some of the land. In this way these‘squatters’ put labour into land and, in a somewhat Lockean vein, understood this tomean they had legitimate rights over it (Lonsdale 1992). This bumped up against dualisticcolonial land law that stripped Africans of land rights outside ‘reserves’. A series of crack-downs to enforce this unequal order, including evictions of African labourer-farmers inwhite reserved areas, ultimately precipitated the bloody struggle over land and freedomthat would become known as ‘Mau Mau’ in the 1950s (Kanogo 1987).

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As part of a MauMau counter-insurgency strategy, the state initiated land reform in thenative reserves that extended leasehold land rights to certain Africans. The SwynnertonPlan of 1954 extended land registration, consolidation and leasehold land to the reservesand was implemented in a way that favoured collaborators and punished supporters ofMau Mau (Clough 1998, 217–218; Coldham 1984). The plan still emphasised the roleof ‘wealthy progressive’ African farmers. In political terms, these ‘progressive farmers’ –a rural conservative elite that collaborated and hence were part of the administrativestate structure – had an interest in the legal and institutional framework that was theirsource of land and power.

Rural conservative elites led by the first President, Jomo Kenyatta, stood to benefit fromkeeping the colonial land laws and administrative apparatus intact. As a Kenyan govern-ment commission noted, the colonial legacy in land was not dismantled with indepen-dence, ‘instead what happened was a general retrenchment hence continuity in colonialpolicies, laws and administrative infrastructure’ (Republic of Kenya 2002, 30). The expla-nation for this lay ‘in the process of the decolonization itself and the opportunity itaccorded to new power elites to gain access to the European economy’ (Ibid., 30). ABritish participant in this process noted the degree to which ‘the regime which tookover power at independence was quite committed to the emergence of a new unequalclass structure within African society’ (Van Arkadie 2016, 66).

Most land in the immediate post-colonial period in Kenya fell under the categories ofgovernment (former Crown lands) and trust land (former ‘native reserves’). The arbitraryand highly centralised power of the Governor over these lands was now given to the Pre-sident, who operated via the Commissioner of Lands and the Ministry of Lands more gen-erally. For example, the 1915 Crown Ordinance was replaced by the Government LandsAct, which stated that ‘the President…may, subject to any other written law, makegrants and dispositions of any estates, interests or rights in or over unalienated govern-ment land’. Section 15 of the 1915 Crown Ordinance granting this power was replicatedin Section 12 of the Government Lands Act, ‘where the word “governor” was merelydeleted and replaced by the word “President”’ (Atieno 2016, 18). In the case of formerreserve land, the Trust Lands Act vested local councils with the right over this land, butthis too was open to abuse both at the local level and by the central government, whichappointed or had political power over lower-level politicians. Much of this trust landwas under ‘customary tenure’ which was in practice secondary to property rightsderived from English property law. Common property, gender and youth claims werepoorly protected under both legal systems.

Overall, this legislative framework enabled the President’s circle including politiciansand bureaucrats in the Ministry to give direct grants of land on a fairly arbitrary basis,which made land a useful tool to reward political loyalty. Numerous avenues were avail-able to manipulate formal land allocation processes to favour personal accumulation andpolitical constituencies, as has been widely discussed in relation to the post-colonial settle-ment schemes (Harbeson 1973; Hunt 1984; Leo 1984). Irregular administrative process,for example avoiding critical steps in land allocation and registration, and direct violationof the law, for example through fake title deeds or altering the registry, were facilitated bythe fact that the Ministry2 manages the land registries at the national and local levels withno public scrutiny or oversight. The registries are where critical records of land transfersare made that are used to protect claims to land especially in court. The Ndung’u

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Commission illustrates a number of mechanisms by which these problematic allocationstake place (Republic of Kenya 2004) and detailed examples have been documentedshowing how this works (Kanyinga 2000; Kenya Human Rights Commission 2000;Klopp 2000, 2001, 2008; Republic of Kenya 2004).

Those in a position to benefit from these processes both in terms of extracting pay-ments – legal and illegal – for processing land transactions and directly accessing landare the ‘winners’ in this system. They are the bureaucrats, politicians, and their financersand supporters, as well as the many professionals from lawyers, surveyors and developerswho assist them (Hunt 1984; Kanyinga 2000; Kenya Human Rights Commission 2000;Klopp 2000, 2001; Klopp and Sang 2011; Leo 1984; Manji 2012; Namwaya 2004; Ngauet al. 2010; Olima 1997; Onoma 2008; Republic of Kenya 2002, 2004). Another pointworth mentioning is that the costs of following the land and planning laws are oftenexorbitant and involve so many actors (who can demand bribes) that this often leads tothe ubiquity of informal processes where networks of politicians and bureaucrats in theMinistry of Lands act as gatekeepers (Musyoka 2004; Ngau et al. 2010; Onoma 2008;Republic of Kenya 2002, 2004).

The losers, of course, are the wider public – who are deprived of the value and poten-tially more productive uses of land – and the ever growing numbers of the poor and land-less who cannot access the legal and administrative apparatus, and in any case do not havethe means to pay fees or bribe to regularise or assert their rights to land. They are the oneswho are often dispossessed by irregular and illegal land acquisition, which occurs withouta public debate about the best use of land. However, even middle-class property developersand manufacturers lose out in this system, which makes land expensive, artificially scarceand also liable to costly legal challenge and dispute given the large number of fraudulenttransactions (Ngau et al. 2010; Republic of Kenya 2002).

Contemporary land policy and law reform

The cumulative effect of Kenya’s post-colonial land governance system is more contentionand dispute over land. The strong link between land and power, especially Presidentialpower, and the opaqueness of land transactions, produce politicisation of land. Despitethe clear class dimensions of land grabbing and accumulation, the political class mostoften ethnicises land disputes. This diverts attention away from the need for institutionalreform of a system benefiting politicians who often strive to gain access to it via the ballotbox or political appointment. Nevertheless, in the 1990s a freer press in Kenya allowed formuch more public exposure of ‘land grabbing’ as a civic national issue. An emboldenedpress and civil society began to report on ‘grabbing’ of key public lands and also chronicledthe numerous public protests and mobilisations against grabbing.

In response to mounting public alarm and civil society activism, in November 1999 thegovernment appointed a commission to look into the land law system as a way to defusepublic outcry. The Commission recommended curbing Presidential powers over land,harmonising and clarifying law, and adding more public oversight to land matters, pro-posing a more transparent National Land Authority as ways to counteract the opaquepower of the Ministry of Lands (Republic of Kenya 2002). This report reflected the con-cerns emerging out of countrywide consultations over constitutional review at the time. Asone report on these consultations noted, ‘the majority of those interviewed complained

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bitterly about a repeat of what happened during the colonial period. People in positions ofauthority are grabbing land left, right and centre’ (Kituo Cha Katiba 2002, 24).

In December 2002, an opposition coalition won a historic election, resulting in the firstchange of power from the political party that had been in power since independence(Kenya African National Union). The new President, Mwai Kibaki, promised reform ofthe Constitution. In addition, widespread anger at land grabbing in the run-up to the elec-tion prompted the new President to appoint the Presidential Commission of Inquiry intothe Illegal and/or Irregular Allocation of Public Land (Ndung’u Commission).

Unsurprisingly, the Commission faced many challenges in terms of adequate budgetand also lack of cooperation by the lands administration and provincial administrationunder the Office of the President. Many officials colluded in forestalling investigationsand public hearings on knotty land-grab cases involving the former President, andother public officials. Clearly, these officials had an interest in holding back crucial self-incriminating information. Nevertheless, the final Commission report named many andrevealed an enormous loss of public lands (at least 246,965 ha of trust and governmentlands) in irregular and outright illegal deals, often linked to politicians, bureaucrats andtheir briefcase companies registered for the purpose of acquiring land irregularly (Republicof Kenya 2004; Southall 2005; Syagga 2011). The costs to the public purse are staggering toconsider.3

In 2003, the new government, which included some reformers, slowly moved forwardon a fledgling land policy reform process. Significantly, for the first time this process, ledby the Ministry of Land, engaged civil society organisations. Fourteen regional consul-tations and other stakeholder meetings took place to review and critique emergingissues and recommend their redress in a new draft land policy, which included civilsociety feedback. Key to the process was the umbrella civil society group, the KenyaLand Alliance (KLA), which emerged as a way for aggrieved groups to constructivelyengage in the complex land problems and struggles that had intensified in the 1990s.The KLA led the effort, organising meetings and pushing the government slowlytowards change.

Still, it was only when Kenya was on the brink of civil war in 2007–08 – violence fuelledin part by politicisation of land issues – that substantial progress occurred in the reformagenda. Part of the power-sharing agreement that stopped the violence involved finallydelivering on a new constitution and historical injustices. This crisis created ‘a windowof opportunity’ or a ‘critical juncture’ when the usual workings of institutions wereunder challenge. Under such conditions, space existed for ‘policy entrepreneurs’ like theKLA to influence the reformulation of institutional rules (Ashford et al. 2006).

The National Accord brokered by Kofi Annan and signed by the two warring sides,Mwai Kibaki (Party of National Unity) and Raila Odinga (Orange Democratic Move-ment), stipulated the need for constitutional change including reform of land governance,which was widely seen to play into the political violence (Commission of Inquiry on Post-Election Violence 2008). On 3 December 2009, Sessional Paper No. 3 of 2009 on NationalLand Policy became official policy. Many of the changes proposed in the Sessional Papermade it into Chapter 5 of the new Constitution of 2010, which was popularly seen as a wayout of Kenya’s troubles. The popular pressures to pass this constitution as well as the pol-itical logics of the winning political coalition were strong enough to overcome resistance toland law policy reform during this critical juncture.

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With the new constitution, key land law reforms came into place inspired by theNational Land Policy 2009 and the preceding years of constitutional struggle. Thesereforms aim fundamentally to decentralise unaccountable decision-making powersaround land and also render them more transparent and subject to monitoring and demo-cratic participation by attempting to remove them from the administrative realm to thepolicy and legal realm (Leach 2000). They also aim to redress historical injustices inorder to reverse the trends towards land inequality, environmental destruction andincreasingly violent contestation around land. These aims are expressed in Chapter 5 ofthe Constitution, which states:

Land in Kenya shall be held, used and managed in a manner that is equitable, efficient, pro-ductive and sustainable, and in accordance with the following principles –

a) equitable access to land;b) security of land rights;c) sustainable and productive management of land resources;d) transparent and cost effective administration of land;e) sound conservation and protection of ecologically sensitive areas;f) elimination of gender discrimination in law, customs and practices related to land andproperty in land; and

g) encouragement of communities to settle land disputes through recognised local commu-nity initiatives consistent with this Constitution.

Chapter 5 also spells out the duties of a new entity called the National Land Commis-sion proposed as far back as 1999. The idea behind the National Land Commission is tomove some of the opaque allocation procedures out of the hands of the Ministry of Landsand into a more open and autonomous independent entity as well as create checks andbalances by giving different authorities power over different categories of land, requiringtheir cooperation. Key among these was the National Land Commission, created by theConstitution (and operationalised by the National Land Commission Act 2012) to:

a) manage public land on behalf of the national and county governments;b) recommend a national land policy to the national government;c) advise the national government on a comprehensive programme for the registration

of title in land throughout Kenya;d) conduct research related to land and the use of natural resources, and make rec-

ommendations to appropriate authorities;e) initiate investigations, on its own initiative or on complaint, into present or historical

land injustices, and recommend appropriate redress;f) encourage the application of traditional dispute resolution mechanisms in land

conflicts;g) assess tax on land and premiums on immovable property in any area designated by

law; andh) monitor and have oversight responsibilities over land use planning throughout the

country.

The Constitution reclassified land into private, public (Former Crown then governmentland) and community land (roughly, native and then trust land) and required parliamentto ‘change, revise, consolidate and rationalise existing land laws’.

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Overall, key elements of existing land law reform at the national level include rewritingand harmonising fragmented and overlapping land laws, bringing land-use planningcloser to the people, digitising and rendering land records transparent and accessible tothe public and creating instruments to disincentivise hoarding and irregularly acquiringland (better records and taxation, land ceilings, oversight, democratic input). The Consti-tution also required parliament to establish a court with the status of the High Court tohear and determine disputes relating to the environment and the use and occupationof, and title to, land (Chapter 10, article 162). In 2011, this gave birth to the Environmentand Land Court, which is now in operation in 16 counties (LDGI 2014).4 The Constitutionalso created a new devolved form of government called counties with critical land govern-ance and planning functions. Under the County Governments Act 2012, Kenya’s countiesare responsible for local land use and spatial planning in accordance with the principles ofthe Constitution and in collaboration with the National Land Commission andMinistry ofLands. Overall, the majority’s wish for decentralising the power of President, including thehighly abused allocation powers over land, was given some expression in this new consti-tutional arrangement.

Besides creating a whole new court to help address the large backlog of land andenvironmental disputes, the Constitution has also set in motion an ambitious, complexand contested rewriting of all existing land laws to make them compliant with the newprinciples and clauses in the Constitution. In 2012 key land laws were repealed or partiallyrepealed and replaced by three new Land Acts (The Land Act 2012, The National LandCommission Act 2012, The Land Registration Act 2012). The key piece of legislation tomanage ‘community lands’ including former trust lands known as the CommunityLand Bill was particularly contentious because of the difficulty in defining ‘community’(Kameri-Mbote et al. 2013) and because the rise of oil exploration and discoveries of min-erals on ‘community land’ raised the stakes. In 2016, after much debate, the CommunityLand Act 2016 was finally enacted.

Reform and counter-reform

As Charles Tilly notes in his study of durable inequality, groups that control access tovalue-producing resources like land most naturally ‘set up systems of social closure, exclu-sion and control’ (Tilly 1998, 8). It is critically important to interrogate how this closure isconstructed and maintained politically in Kenya, especially as reformers attempt to under-mine or loosen this control by bringing in new rules and systems of inclusion. In response,beneficiaries of the current system are using concentrated wealth and a variety of tacticsand strategies to buy support and distort democratic constitutional political processes.They are fighting back through allies in parliament and society, and this creates a verysteep barrier to political reform.

Kenya’s presidents have typically been very large landowners who have used the state toaccess and hoard this land wealth as a political resource. The Ministry of Lands, headed bya Presidential appointee, strives to retain control of the land registries, a critical politicaland material resource and the bureaucratic locus of illegal and irregular transactions(Republic of Kenya 2002, 2004). Many, including at the highest levels of governmentwho have gained land through irregular, informal transactions involving these offices,support continued opacity. Thus, while reformers make progress on the policy and

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legal front, counter-reformers – a wide network of beneficiaries straddling governmentand society – actively move to undermine realisation of deeper change to the land govern-ance system.

Some of the more clearly observed counter-reform resistance tactics include: deliberateslowing down of land law implementation; outright violation of the Constitution trigger-ing legal battles; bureaucratic power grabs and infighting; scuttling or amending legislationto recentralise power in the Ministry; creating overlapping jurisdictions to create loopholesor obfuscation; sometimes deliberately creating confusion, misinformation and litigation;and, finally, attempting to compromise members of the new institutions and hence, under-mining public confidence in them. With its new powers and mandate, the National LandCommission is a particular threat as it has the potential to challenge the arbitrary andopaque powers of the Ministry over coveted public lands and to open up thorny questionsof historical injustice.

Resistance emerged early on against the National Land Commission. For example, theNational Land Commission Act (2012) stipulates that the President should appoint theCommissioners in seven days after receiving their names. Instead, he delayed in appoint-ing the Commissioners vetted by parliament. It was only after the KLA and its memberstook the President to court and got a ruling in its favour that the President formallygazetted the Commissioners. The government also delayed the initial budget for the Com-mission and, when it came, it was far too little. The Commission relies on parliament forthe bulk of its budget but parliament consists of many of the ‘old elites linked to irregula-rities and illegalities’, a potential problem for the autonomy and functioning of the Com-mission (Atieno 2016, 43). Defunding is a persisting problem raised by the Commission(interview with Chairman Swazuri, April 15, 2016). The Ministry also pushed early on tohave many compromised bureaucrats seconded as Commission staff, making the newinstitution generally dependent on the Ministry.

Land law review with its complexities also created an opportunity for counter-reform.The Land Law Amendment Act 2016 was pushed to recentralise power in the Ministry,diminishing powers of the National Land Commission especially in relation to thecoveted land registries. The Constitution and National Land Commission Act 2012 givethe Commission the role of advising the national government on a comprehensive pro-gramme for the registration of title in land throughout Kenya. Logically, this meansthat the National Land Commission should have access to and a say over the land regis-tries (as should the public), and this intent appears in the Land Registration Act 2012.However, the Land Law Amendment Act 2016 replaces the word ‘Commission’ withthe word ‘Cabinet Secretary’, which takes away the National Land Commission’s role inland registration, preserving the status quo.

The recent Land Law Amendment Act 2016 also makes other changes that reducepublic accountability and the role of the National Land Commission. First, the amend-ments delete the paragraph of the National Land Commission Act which sets out the pro-cedures for a multi-stakeholder panel to select Commissioners. Instead, counter-reformsreplace the panel with the Public Service, which has a history of being partial to the partyin power and making selective appointments based on political, ethnic or nepotistic cri-teria (Aluoka 2016).

Second, the Commission has the constitutional mandate to initiate investigations intopresent or historical land injustices and to recommend appropriate redress. The National

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Land Commission Act directs the Commission to recommend to parliament appropriatelegislation around investigations and adjudication of claims arising out of historical landinjustices. A taskforce constituted by the Commission developed a draft bill as required(Investigation and Adjudication of Historical Land Injustices Bill 2015) and in July2015 forwarded it to the Commission for Implementation of the Constitution. Ignoringthis work, the Land Law Amendment Act 2016 deletes this responsibility from theNational Land Commission Act. The new law states that: ‘The Commission shallreceive, admit and investigate historical land injustices and recommend appropriateredress’.

Third, County Land Management Boards gave the National Land Commission a pres-ence at the local level. The Boards’ functions included processing applications for allo-cation of land, change and extension of user, subdivision of public land, and renewal ofleases and any functions assigned by the Commission or written law. The Land LawAmendments abolished the County Land Management Boards before they were everproperly set up. Indeed, they were also underfunded and under capacity and some coun-ties resisted them altogether (Boone et al. 2016). This move clearly reduced the reach andpowers of the National Land Commission.

Fourth, the National Land Commission has the role of allocating public land, settingaside land for investments, and placing care and control of public land under differentstate agencies under its coordinated management. Recent amendments deprive the Com-mission of the independence and autonomy to undertake those functions. For instance,the section of the Land Act which reads, ‘The Commission may on behalf of the nationalor county government allocate public land’, now says,

Whenever the national or county government is satisfied that it may be necessary to allocateor alienate the whole or part of a specific public land, the Cabinet Secretary or the CountyExecutive Committee member shall submit a request to the Commission.

Once again the Commission is given a secondary role.Fifth, the Commission has the role of administering historically contentious settlement

programmes which are usually created out of public land (purchased or in governmentpossession). The amendments however assign administration of settlement programmesto the Cabinet Secretary in the Ministry of Lands, who then appoints a sub-countyselect committee to carry out the identification and selection of beneficiaries. Settlementprogrammes have historically been a means to allocate land for patronage, as well as influ-ence future election results. These amendments keep the leeway to use land allocation asPresidential patronage intact.

Finally, without resources and full Ministry cooperation, the National Land Commis-sion appears to be failing in its duties. Land grabbing has continued apace with one of themore shocking incidents being the very public attempted appropriation of Langata Rd.Primary School’s playground in Nairobi by the Deputy President (Africa Centre forOpen Governance 2009; Atieno 2016; Society for International Development 2016).However, despite these failures, the National Land Commission has been typically associ-ated with reform and the Ministry as the problem. This is clearly depicted in the cartoonby Gado, a popular cartoonist, which shows the then suspended and dismissed CabinetSecretary unfavourably compared to the National Land Commission Chairman (seeFigure 1).

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The National Land Commission took its case to the media, the public and the SupremeCourt. Given that the struggle over change is at this point heavily concentrated in the legalrealm, the courts will most likely become an increasingly important venue for this struggle.Further, many of the amendments in the Land Amendment Act 2016 are clearly open tochallenge on constitutional grounds. Indeed, the struggle between the Commission andthe Ministry over responsibilities and jurisdictions eventually ended up before theSupreme Court, which issued an advisory opinion (Supreme Court Advisory OpinionReference No. 2 of 2014 [2015] eKLR). The Ministry argued that the National LandCommission was an ‘advisory body’, clearly trying to reduce its powers. While theSupreme Court did not agree with the extent of the powers the National Land Commissionwas arguing for, it did not accept the government’s argument and reaffirmed the Commis-sion’s important constitutional mandate, the importance of its autonomy and the urgencyof checks and balances and decentralisation in land governance.

Recently, the High Court of Kenya at Nairobi (Constitutional and Human RightsDivision) ruled in relation to Petition No. 54 of 2015 that the three million titles issuedby the government since 2013 were in contravention of the Land Registration Act 2012.The High Court informed the government that if it wishes the new land titles to bevalid, it has a year to consult with the public, seek National Land Commission inputand get parliamentary approval although, as Manji and Ghai (2017) point out, whatthis means in practice and the implications remain unclear. The court ruling reinforcesthe idea that if the government wishes its public creation of private property rights tobe respected, the spirit and laws derived from the Constitution must be upheld.

Figure 1 The struggle between the Ministry of Lands and the National Land Commission as seen bypopular cartoonist Gado, 20 March 2014. Reproduced with permission.

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However, after some consultations the government was busily issuing land titles before theAugust 2017 election. In addition, with one year left to their mandate, a number of Com-missioners of the National Land Commission including the Chairperson have beenembroiled in corruption scandals, seriously weakening the functioning and legitimacyof the body designed to create some ‘checks and balances’ to Kenya’s deeply entrenched‘mischief’ around land.

Conclusions

Reformers in Kenya seek to transform a profoundly flawed and entrenched land govern-ance system. The numbers of people losing out from the system and land inequality aregrowing with politically destabilising effects. Despite the power of numbers among theaggrieved and the general awareness of suffering and injustice around land in Kenya,reformers are finding that challenging the ‘social closure, exclusion and control’ (Tilly1998, 8) over land is a profoundly difficult task. Losers in the system tend to be disparate,often poor and dispossessed and more easily pitted against each other, constituting aserious collective action problem. In addition, middle-class Kenyans invest heavily inland and do not necessarily want to risk any disruption of the system even as they toooften suffer adverse consequences. Reformers also do not constitute a coherent movementthat has captured the imaginations of everyday people and are battling an entrenchedadministrative legal order that, as we have shown, has the power to stymie implementationof new rules and overturn laws. Finally, little global support exists for land reform in thiscurrent moment.

Given the high stakes and path-dependent dynamics, transformative reform was nevergoing to be an easy or simple task, and de-politicisation of land through policy reform wasnever a likely scenario (Boone 2012; Boone et al. 2016). In fact, most substantive changesin Kenyan land governance have historically come out of violence. Still, the changes thathave emerged through a difficult process of constitutional reform do create an opportunityfor a more peaceful, incremental transformation. The challenge for reformers is to over-come the powerful forces arrayed against change with creative mobilisation strategies,leveraging not only the 2010 Constitution and the courts but also public outrage andstronger civil society organisation. Such organisation must work harder to stitch togethera coalition of the diverse groups losing out in the current system. The reform struggle inKenya is in many ways just beginning and the outcome uncertain. However, if Kenyawishes to avert a future much like its past, full of turmoil, violence, inequality and injusticearound land, transformative reform, however difficult to achieve, is the only way forward.

Notes

1. The Gini coefficient in land measures the extent to which the distribution of land amongindividuals or households within an economy deviates from a perfectly equal distribution.A Gini index of 0 represents perfect equality, while an index of 1 implies perfect inequality.

2. Now the Ministry of Lands and Physical Planning, but for simplicity we will continue to useMinistry of Lands.

3. For one calculation of some of the monetary losses linked to lost forest, see Kenya NationalCommission on Human Rights and Kenya Land Alliance (2006). Note that the many rec-ommendations from this Commission have not yet been adopted.

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4. The Environment and Land Court Act 2011 was passed without major problems. The lack ofresistance to these new courts might be explained by the fact that they create a new venue toargue and struggle over land and environmental issues and do not directly challenge existingland governance systems.

Acknowledgements

We would like to thank the many people who have shared their ideas and critical thoughts on landgovernance reform, including the anonymous reviewers for this journal who provided very helpfulfeedback on this article. Thanks also to Gado for allowing us to use his always brilliant cartoons.

Disclosure statement

No potential conflict of interest was reported by the authors.

Notes on contributors

Jacqueline M. Klopp is an associate research scholar at the Earth Institute, Columbia University andhas been a research associate at the University of Nairobi. She has written extensively about landpolitics in Kenya in numerous academic journals and the popular press. She holds a BA fromHarvard and a PhD in Political Science from McGill University.

Odenda Lumumba is a land rights activist and a founder co-ordinator of the Kenya Land Alliance, aPolicy, Land Laws and Institutional Reforms Advocacy Network. He is enrolled for a PhD in Landand Agrarian Studies, and holds a Masters of Philosophy in same field from the University of theWestern Cape. He has co-authored book chapters in Land and Sustainable Development in Africa(edited by K. S. Amanor and S. Moyo, Zed Books, 2008) and The Global Land Grab: Beyond theHype (edited by M. M. A. Kaag and E. B. Zoomers, Zed Books, 2014).

ORCID

Jacqueline M. Klopp http://orcid.org/0000-0002-3284-1715

References

African Centre for Open Governance [AFRICOG]. 2009. Mission Impossible? Implementing theNdung’u Report. Nairobi: AFRICOG.

Aluoka, Atieno. 2016. “The Social Foundations of State Fragility in Kenya: Challenges of a GrowingDemocracy.” In State Fragility and State Building in Africa, edited by D. Olowuanf and P.Chanie, 21–38. New York: Springer International.

Anderson, David, and Emma Lochery. 2008. “Violence and Exodus in Kenya’s Rift Valley, 2008:Predictable and Preventable?” Journal of Eastern African Studies 2 (2): 328–343.

Ashford, Lori, Rhonda R. Smith, Roger-Mark De Souza, Fariyal F. Fikree, and Nancy V. Yinger.2006. “Creating Windows of Opportunity for Policy Change: Incorporating Evidence IntoDecentralized Planning in Kenya.” Bulletin of the World Health Organisation 84 (8): 669–672.Accessed March 23, 2016. doi:10.1590/S0042-96862006000800021.

Atieno, Betty. 2016. “Assessing the Effectiveness of the National Land Commission in AddressingIrregular and Illegal Allocation of Land in Kenya.” Unpublished Masters of Law thesis,University of Nairobi.

Berman, Bruce. 1990. Control and Crisis in Colonial Kenya. London: James Currey.Boone, Catherine. 2012. “Land Conflict and Distributive Politics in Kenya.” African Studies Review

55 (1): 75–103.

REVIEW OF AFRICAN POLITICAL ECONOMY 15

Dow

nloa

ded

by [

185.

169.

74.7

0] a

t 05:

35 0

4 O

ctob

er 2

017

Boone, Catherine, Alex Dyzenhaus, Seth Ouma, James Kabugu Owino, Catherine Gateri, AchibeGargule, Jacqueline Klopp, and Ambreena Manji. 2016. “Land Politics under Kenya’s NewConstitution: Counties, Devolution, and the National Land Commission.” London School ofEconomics Working Paper no. 16–178. Accessed February 1, 2017. http://www.lse.ac.uk/internationalDevelopment/publications/Working-Papers/WP178-Catherine-Boone.aspx.

Buroway, Michael. 2009. The Extended Case Method: Four Countries, Four Decades, Four GreatTransformations, and One Theoretical Tradition. Oakland, CA: University of California Press.

Chanock, Martin. 1991. “Paradigms, Policies and Property: A Review of the Customary Law ofLand Tenure.” In Law in Colonial Africa, edited by Kristen Mann and Richard Roberts, 61–84. London: James Currey.

Clough, Marshal. 1998. Mau Memoirs. Boulder, CO: Lynn Reinner Publishers.Coldham, Simon. 1984. “The Settlement of Land Disputes in Kenya – A Historical Perspective.”

Journal of Modern African Studies 22 (1): 59–71.Commission of Inquiry into the Post-election Violence. 2008. Nairobi: Government of Kenya.Deininger, Klaus. 2003. Land Policies for Growth and Poverty Reduction. Washington, DC: World

Bank.Flyvbjerg, Bent. 2001. Making Social Science Matter. Cambridge: Cambridge University Press.Harbeson, John. 1973. Nation-building in Kenya: The Role of Land Reform. Evanston, IL:

Northwestern University Press.Hunt, Diana. 1984. The Impending Crisis in Kenya; The Case for Land Reform. Aldershot,

Brookfield, VT: Gower Publishing Co.Kahl, Colin. 2006. States, Scarcity, and Civil Strife. Princeton and Oxford: Princeton University

Press.Kameri-Mbote, Patricia, C. Odote, C. Musembi, and M. Kamanda. 2013. Ours by Right: Law Politics

and the Realities of Community Property in Kenya. Nairobi: Strathmore University Press.Kanogo, Tabitha. 1987. Squatters and the Roots of Mau 1905-63. London: James Currey.Kanyinga, Karuti. 2000. Re-distribution From Above: The Politics of Land Rights and Squatting in

Coastal Kenya. Uppsala: NordiskaAfrikainstitutet.Kanyinga, Karuti. 2009. “The Legacy of the White Highlands: Land Rights, Ethnicity and the Post-

2007 Election Violence in Kenya.” Journal of Contemporary African Studies 27 (3): 325–344.Kenya Human Rights Commission [KHRC]. 2000. The State and Land: Case Studies in Corruption

and Mismanagement. Nairobi: KHRC.Kenya National Commission on Human Rights and Kenya Land Alliance. 2006. Unjust

Enrichment: The Plunder of Karura, Ngong Road, and Kiptagich Forests. Nairobi: Kenya LandAlliance.

Kituo Cha Katiba. 2002. Report of a Fact-finding Mission of the Kituo Cha Katiba on the Progress ofthe Constitutional Review Exercise in Kenya. http://www.kituochakatiba.org/index2.php?option=com_docman&task=doc_view&gid=29&Itemid=36.

Klopp, Jacqueline. 2000. “Pilfering the Public: The Problem of Land Grabbing in ContemporaryKenya.” Africa Today 47 (1): 7–26.

Klopp, Jacqueline. 2001. “Electoral Despotism in Kenya: Land, Patronage and Resistance in Multi-party Politics.” Unpublished PhD thesis, McGill University, Montreal.

Klopp, Jacqueline. 2008. “Remembering the Muoroto Uprising: Slum Demolitions, Land andDemocratization in Kenya.” African Studies 67 (3): 295–314.

Klopp, Jacqueline M., and Kipkosgei Sang. 2011. “Maps, Power and the Destruction of the MauForest in Kenya.” Georgetown Journal of International Affairs Winter/Spring Issue: 125–134.

LDGI [Land Development and Governance Institute]. 2014. An Assessment of the Performance ofthe Environment and Land Court: 16th Scorecard Report. Nairobi: Land Development andGovernance Institute.

Leach, Adam. 2000. “Land Reform and Socio-economic Change in Kenya.” In Essays on Land Law:The Reform Debate in Kenya, edited by S. C. Wanjala, 192–225. Nairobi: Fotoform Limited.

Leo, Christopher. 1984. Land and Class in Kenya. Toronto: University of Toronto Press.

16 J. M. KLOPP AND O. LUMUMBA

Dow

nloa

ded

by [

185.

169.

74.7

0] a

t 05:

35 0

4 O

ctob

er 2

017

Lonsdale, John. 1992. “The Moral Economy of Mau Mau: Wealthy, Poverty, and Civic Virtue inKikuyu Political Thought.” In Unhappy Valley, Book 2: Violence and Ethnicity, edited byBruce Berman and John Lonsdale, 313–504. London: James Currey.

Mackenzie, Fiona. 1998. Land, Ecology and Resistance in Kenya 1880–1952. Portsmouth, NH:Heinemann.

Manji, Ambreena. 2012. “Lawyers, Politics and Public Land in Kenya.” Journal of Modern AfricanStudies 50 (3): 467–492.

Manji, Ambreena. 2014. “The Politics of Land Reform in Kenya 2012.” African Studies Review 57(1): 120–121.

Manji, Ambreena. 2015. Whose Land Is It Anyway?: The Failure of Land Law Reform in Kenya.http://www.africaresearchinstitute.org/newsite/wp-content/uploads/2015/06/ARI-Counterpoint-WhoseLandIsItAnyway-download.pdf.

Manji, Ambreena and Yash Paul Ghai. 2017. “Land Politics Come Before Kenya’s Courts Again.”African Arguments. Accessed September 10, 2017. http://africanarguments.org/2017/01/23/land-politics-in-the-kenyan-courts-again/.

McAuslan, Patrick. 2013. Land Law Reform in Eastern Africa: Traditional or Transformative?London: Routledge.

McGregor Ross, W. 1927. Kenya from Within: A Short Political History. Oxford: George Allen andUnwin.

Meek, C. K. 1949. Land Law and Custom in the Colonies. London: Oxford University Press.Musyoka, Rose. 2004. “Informal Land Delivery Processes in Eldoret, Kenya.” Working Paper no. 4.

Birmingham: International Development Department of School of Public Policy, University ofBirmingham.

Namwaya, Otsieno. 2004. “Who Owns the Land?” East African Standard, October 1.Ngau, Peter, Jacqueline Klopp, Musyoka Rose Musyoka, and Jeremiah Ayonga. 2010. “Challenges

in Urban and Peri-urban Land Governance in Nairobi: Dynamics, Tactics and Issues.” Reportprepared for the World Bank Finance, Economics and Urban Development Department,Sustainable Development. Unpublished manuscript.

Okoth-Ogendo, H.W. O. 1991. Tenants of the Crown: Evolution of Agrarian Law and Institutions inKenya. ACTS Legal Studies Series no. 2. Nairobi: African Centre for Technology Studies.

Olima, W. H. A. 1997. “The Conflicts, Shortcomings, and Implications of the Urban LandManagement System in Kenya.” Habitat International 21 (3): 319–331.

Onoma, Ato. 2008. “The Use of Land to Generate Political Support.” African Development XXXIII(3): 147–155.

Onoma, Ato. 2010. The Politics of Property Rights Institutions in Africa. Cambridge: CambridgeUniversity Press.

Osborn, Michelle. 2008. “Fuelling the Flames: Rumour and Politics in Kibera.” Journal of EasternAfrican Studies 2 (2): 315–327.

Republic of Kenya. 2002. Report of the Commission of inquiry into the Land Law System of Kenya(Njonjo Commission) Nairobi: Government Printer.

Republic of Kenya. 2004. Report of the Commission of Inquiry into the Land Law System of Kenya(Njonjo Commission). Nairobi: Government Printer.

Sen, Amartya. 1999. Development as Freedom. New York: Knopf.Society for International Development. 2016. Exploring Kenya’s Inequality Pulling Apart or Pooling

Together? Online report. Accessed September 10, 2017. http://inequalities.sidint.net/.Sorrenson, M. P. K. 1968. The Origins of European Settlement in Kenya. Nairobi: Oxford University

Press.Southall, R. 2005. “The Ndung’u Report: Land and Graft in Kenya.” Review of African Political

Economy 32 (103): 142–151.Syagga, P. M. 2011. “The Land Sector In Kenya: A Study On Political Economy Constraints On

Land Reforms In Kenya.” Unpublished manuscript.Tilly, Charles. 1998. Durable Inequality. Oakland, CA: University of California Press.Truth, Justice and Reconciliation Commission [of Kenya] [TJRC]. The Final Report of the Truth

Justice and Reconciliation Commission of Kenya (2013). 2013. Nairobi: TJRC.

REVIEW OF AFRICAN POLITICAL ECONOMY 17

Dow

nloa

ded

by [

185.

169.

74.7

0] a

t 05:

35 0

4 O

ctob

er 2

017

Van Arkadie, Brian. 2016. “Reflections on Land Policy and the Independence Settlement in Kenya.”Review of African Political Economy 43 (51): 60–68.

Van den Brink, Rogier, Glen Thomas, Hans Binswanger, John Bruce, and Frank Byamugisha. 2006.Consensus, Confusion, and Controversy. Selected Land Reform Issues in Sub-Saharan Africa.Washington, DC: World Bank.

World Bank. 2006. World Development Report 2006: Equity and Development. Washington, DC:World Bank.

World Bank. 2008. Kenya Poverty and Inequality Assessment. Volume I: Synthesis Report. Reportno. 44190-KE. June. Washington, DC: Poverty Reduction and Economic Management Unit,Africa Region.

Wylie, Diana. 1977. “Norman Leys and McGregor Ross: A Case Study in the Conscience of AfricanEmpire 1900-39.” The Journal of Imperial and Commonwealth History 5 (3): 294–309.

18 J. M. KLOPP AND O. LUMUMBA

Dow

nloa

ded

by [

185.

169.

74.7

0] a

t 05:

35 0

4 O

ctob

er 2

017