Date Posted: 9/27/2015 8:34:22 PM
Posted By: Brendah Aroko Membership Level: Gold Total Points: 3317
Land tenure in the precolonial era in Kenya was based on the assumption that every member of the society could enjoy equal access to the land belonging to the community. All one needed was membership; this meant that every member was entitled to enjoy land rights because land ownership was communal. Under the circumstances, land could not be exclusively owned by an individual and hence no single individual could dispose of land by sale or have exclusive rights to the land. The mutual interests of the community members ranked higher than any individual. The philosophy behind communal land ownership was the justification that land was God-given to all humanity and no one could exclude others from land ownership.In case there were disputes regarding land ownership, the chiefs and community elders were called upon to settle such disputes without disenfranchising any particular community member. This hence brought about a sense of protectionism against persons who were considered non-members. All members of the community were bound to defend and ensure that control of land resources remained in the hands of community members and not strangers. This position came about due to fear of them being rendered landless and vulnerable to a number of problems which would threaten their livelihoods. This gave the community members a role of being watchmen of the community resources. They were entrusted with ensuring that strangers were kept away from enjoying community land access at the expense of community members.For one to be allowed the opportunity or privilege of enjoying any rights regarding land, they had to prove membership to the community except in instances where there was an understanding by community members to accord such privilege to strangers on grounds of humanitarianism but on their qualification. This option was available due to the friendly and compassionate nature of most indigenous communities at that time. They made the less fortunate feel comfortable and welcome in the society. In the luo community, people who had been accorded such generosity to live among a foreign community were referred to as ‘jodak’ meaning someone who did not belong in the community but had come from a place where people did not know.There were different ways in which land was communally owned but this differed from place to place and it largely depended on the tribe or the community. Land ownership was determined by the community with great regards to its mode of life. For example there were communities that engaged in hunting-gathering, pastoralism, fishing or farming therefore each lifestyle determined the mode of land ownership. However despite these different lifestyles, there are certain rights and obligations associated with land that were common from community to community. A perfect example in the communities that participate in pastoralism were rights to grazing areas, pastures, slat licks, shrines or religious grounds for performance of rituals.The main land system in pre-colonial Kenya was communal tenure which is not commonly recognized in the western cultures. This is because in the western world there is an aversion for anything communist or socialist, hence the westerners refused to even recognize that such tenure existed. This rebuttal of communal tenure was further propagated by the ethnographers who were tasked with the job of studying African society and this was due to the fact that they were coming into a new society with a very strange culture to theirs and they therefore could not comprehend the manner in with Kenyans conducted their land ownership affairs.In conclusion, as an African and a Kenyan for that matter it would be prudent to affirm that communal tenure existed and that it still does in some communities and there is evidence of it in areas like Kwale where the Group Ranches Act was enforced to guide this form of communal land ownership. This is also very evident in the way in which the country is divided in tribes for example every province is largely occupied by one community as against the rest. This shows the protectionism that was exercised in the pre-colonial era as well.
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