COLONIAL ORIGIN OF PRESENT ETHNIC TENSIONS IN KENYA

Joseph Ole Simel of Mainyoito Pastoralists Integrated Development Organisation states:

The current Draft Constitution of Kenya 2004 (Bomas Draft) proposes a mechanism to review all claims of unjust expropriation of land at the Coast and in Rift Valley, and to establish how best such claims can be justly, peacefully and equitably resolved.

The Commission of Inquiry into Land Law Systems of Kenya (1999)

In order to deal with grievances of past historical injustices over land as expressed by people in various forums especially at the Coast and in the Rift Valley Provinces. It is proposed that the Constitution be amended to provide that:

Legislation be passed for review of ancestral/historical land claims and disputes including those dating back to 1895 with a view to reaching a just and peaceful resolution of the same, taking into account the nature of the unresolved claim or dispute and the current needs and interests of the nation.

The ancestral claims and disputes shall be investigated by an Historical Land Claims Tribunal to be established by legislation and which shall sit in public and comply with the fair hearing requirements of the constitution and the common law

That legislation must be passed and all such claims and disputes investigated and resolved within (2) years from the date of commencement of the constitutional amendment.

Joseph Ole Simel further states:

The Maasai–Anglo Agreements (1904 and 1911) are not valid treaties. These are legal fictions intended to deprive the Maasai of their rights. The impact of these ‘treaties’ has affected the Maasai community from generation to generation, resulting in dispossession of natural resources and the displacement of the Maasai from their traditional lands.

Consequences include abject poverty, disease and high rates of illiteracy. Traditional cultural institutions have been dismantled and the Maasai assimilated into other cultures. Individual land tenure has been introduced and has contributed to the erosion of the Maasai way of life. The Maasai traditionally hold their land communally, but the necessary social structures are disappearing. The Maasai are losing their identity.

Indigenous peoples have a right to restitution of land, territories and resources which they traditionally owned or occupied or used and which have been confiscated, occupied, used, damaged without their free and informed consent. Where this is not possible, they have the right to just, prompt and fair compensation. Unless otherwise freely agreed upon by the peoples concerned, compensation shall take the form of lands and territories at least equal in quality, size and legal status. (Draft Declaration on the Right of the Indigenous Peoples).

Towards this end, the Maasai need to prove, through documentary, oral and written, and aboriginal titles that the territories concerned had been owned, occupied or used by them. Secondly, that they had not given free and informed consent to their alienation. (See Article 14 and 15 of the International Convention Labour No. 169 (1989) (ILO)). It is interesting to speculate how the Maasai would act if it should be proved that they were a sovereign state. In the meantime, the Maasai will settle for working towards redress of the historical injustices committed in the East African protectorate.

“The Anglo- Maasai -Agreements/Treaties – a case of Historical Injustice and the Dispossession of the Maasai Natural Resources (Land), and the Legal Perspectives” Background paper prepared by Mr. Joseph Ole Simel Mainyoito Pastoralists Integrated Development Organisation

BACKGROUND

Other Attempts by the Maasai to Review the Historical Injustices

The Lancaster Conference. The Maasai raised the issue of lost land before the East Africa Royal Commission and the Lancaster House Conference when the independent Constitution was being negotiated. The Maasai delegation declined to accept the negotiated settlement for a new Constitution.

The report of the conference states thus:

“15. At the meeting between the Representative Group of the Conference and the Maasai Delegation raised a number of questions relating to the Agreements made with the Maasai in 1904 and 1911. Copies of the Agreements are in the appendix.

“17. The Representation made by the Maasai delegation were to the following effect:- i) The lands, which the Maasai vacated in accordance with the Agreements, belonged to the Maasai. The Maasai wanted their ownership to be recognised and to have first claim on these lands when they are vacant by the Europeans who now farmed them... .The Maasai delegation did not accept that they had no claims in respect of the lands which the Maasai had vacated under the Agreements”.

The 1904 and 1911 Maasai Agreements

In order to understand Kenyan history, it is necessary to explain the background of the Maasai tribes. The Maa speaking people are predominantly from the Rift Valley in the East African region. The linguistic evidence and oral traditions of the Maasai point to an original birthplace in the Nile Valley. The Maasai are pastoralists. They depend on livestock keeping and on access to grazing. In pursuit of this, the Maasai are traditionally nomadic.

According to John Lawrence Bersen, “Cattle are the only source of wealth for the Maasai”. The importance of livestock to the Maasai lies not only in the provision of food, but also in its social and ritual functions. The livestock are the source of milk, meat, fat and blood for human consumption. Livestock also provide an indirect source of income through the sale or barter of animals and their produce including hides and skins, manure, horns and wool.

In 1904, white settlers started penetrating Maasai land from Laikipiak district (Olomuruti). They beseeched the Maasai to let them settle where the land was fertile. However, the settlers did not consider the nomadic, warlike Maasai as desirable neighbours. The Maasai presence near the recently constructed railway was deemed inconsistent with the settler’s public interest.

At this time the succession of the Maasai ritual expert (the Oloiboni) was disputed. The Maasai were weakened by division and by natural calamities including sickness of people and cattle, (East Coast fever, rinderpest), drought and famine. The settlers took this opportunity to penetrate the region. The British authorities arbitrarily selected one Olonana, a candidate for the disputed ritual succession, as being hereditary ‘Chief” of the Maasai people. They declared Olonana to be administrative chief of the Maasai despite the fact that the Oloiboni was a traditional medicine man without administrative responsibilities or executive power.

On 15th August 1904, Olonana signed an agreement with the colonial administration; the treaty declared the Maasai state to be a sovereign power represented by himself. The agreements held that the Maasai had decided of their “...own free will…that is for our best interests to remove our own people, flocks and herds into definite reservations away from the railway line and away from any land that may be thrown open to European settlement under this agreement”.

Around 11,200 Maasai and 22 million cattle were transferred southwards into harsh semi-arid lands where livestock diseases were rampant. Two reserves were established in Kajiado and Narok districts. They measured 4,770 square miles and 4,350 square miles respectively. The former Maasai territories were left for white settlers. This was despite a white paper on the Maasai, written by Deputy Commissioner Jackson, which suggested, “...Let those who advocate for (the taking of) the Kedong Valley and the south of it visit the country in the dry weather. No sane European would accept a free gift of 500, 000 acres in such a place. Why, then, try to force such a place on the Maasai? Higher ground, and considerable area of it, is absolutely necessary, and it is impossible to deny that the Maasai are entitled to it”.

In 1911, the white settlers decided to further expand. There was a continuous influx of settlers who were calling for rapid opening of these “unsettled” areas (i.e. areas under pastoralist cultivation). A section of the Maasai community was persuaded to sign the 2nd Anglo- Maasai Agreement. The Maasai were required to abandon their newly acquired settlements and move further into the arid North. The move was forced; Her Majesties Commissioner Sir R. Sadler remarked that, “...No European in the country imagined for a moment that the Maasai on Illakipiak wished to leave it. The area, though small, is fine piece of a country as there is in Kenya, with rich soil and perennial streams, vastly superior in every way to the country south of Rift Valley”.

In the harsh reserves, thousands of cattle died of East Coats Fever, pleuro-pneumonia and rinderpest, and hundreds of young people were carried off by flu, malaria and pneumonia. This can be proven by Colonial records; Maasai elders still remember that “The soldiers who escorted the move said ‘Go to the south and die of ECF and hunger…drop dead”. The Maasai were threatened with guns and many people died while moving. Sleeping sickness, anthrax, cold on the Mau, lack of food and water for cattle and food, water and milk for humans all took there toll. 97, 910 cows and 298, 829 sheep died, and with them the prosperity of the Maasai. The herds were valued then at 200,000 pounds. Depreciation of stock cost approximately Pounds 100,000 and the Laikipia land was worth around one million sterling.

The Anglo- Maasai -Agreements/Treaties – a case of Historical Injustice and the Dispossession of the Maasai Natural Resources (Land), and the Legal Perspectives” “Background paper prepared by Mr. Joseph Ole Simel

Mainyoito Pastoralists Integrated Development Organisation presented at the EXPERT SEMINAR ON TREATIES AGREEMENTS AND OTHER ON STRUCTIVE ARRANGEMENTS BETWEEN STATES AND INDIGENOUS PEOPLES Geneva, 15-17 December 2003, Organized by the Office of the United Nations High Commissioner for Human Rights

References.

“How Europe Underdeveloped Africa”

“Entepen E Maasai” – S. S Sankan

“Herding into the New Millenium; Continuity and Change in the Pastoral Areas in Kenya” - Abdi Umar

“Public Law and Political Change in Kenya – A study of the legal framework of Government from Colonial times to the present” – Prof – Yash Pal Ghai and Prof. J. P W. B McAuslan

The Doctorate of Philosophy Thesis by Lotte Hughes

The Memorandum submitted to the Constitution of Kenya Review (CKRC) by MPIDO

“The Making of an African Statesman” – Andrew Mortan

“Not Yet Uhuru” – Oginga Odinga

The UN Draft Declaration on the Right of the Indigenous Peoples.

The Articles 14 and 15 of the International Convention Labour No. 169 (1989) (ILO)

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