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Wives-For-Hire - Revealing the Practice of Imposing Fake Wives in Dispossessing Family Land in Africa.

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WIVES-FOR-HIRE
Revealing the Practice of Imposing Fake
Wives in Dispossessing Family Land in
Africa
COCOON INITIATIVE KENYA PROGRAMME
WORKING PAPER 5
Marcel Rutten & Moses Mwangi
Copyright 2016 Cocoon Initiative Kenya, a programme of the African
Studies Centre, Leiden & South Eastern Kenya University, Kitui, Kenya.
PO Box 9555, 2300 RB Leiden, The Netherlands
All rights reserved
Correct citation: Rutten, M. & M. Mwangi (2016) Wives-For-Hire:
Revealing the practice of imposing fake wives in dispossessing family
land in Africa, Cocoon Initiative Kenya Working Paper No 5.
Cover photo: M. Rutten.
Disclaimer: The young lady shown is NOT a wife-for-hire. She is a young Maasai wife holding
her newborn a generation at risk, and one that will likely face new challenges besides
keeping livestock in a dry region. m.rutten@fo.nl
CIK Logo design: M. Rutten adapted from a painting by Pierre Segoh Le Desert
(2007). Support the artist, buy his work.
1
Introduction
Should African women own land? That question was posed in a booklet by the Kenyan Human
Rights Commission (KHRC) published in 1998. The answer to the topic raised is not as
straightforward as one might think, as it depends on who the question is aimed at as well as
the various tenure regimes, i.e. statutory or customary, that are in existence in a specific area.
The land ownership systems might overlap; moreover they are entangled in a web of use- and
transfer rights. This is a controversial issue, according to the KHRC, since women’s equal access
to land challenges many existing beliefs, practices and traditions (KHRC 1998).
Are women discriminated against in land allocation and ownership? That question is much
easier to answer in the affirmative. While women cultivate the land, take small stock for
grazing, collect firewood and draw water, these user rights are subordinate to the superior
transfer rights that regulate ownership, the right to sell, give, mortgage, lease and inherit
under customary law. Overall, the legal position of women under customary law in pre-
colonial societies in Africa was secondary to that of men. In fact, among the cultivators ‘every
man had to get land for his wife or wives to cultivate for family use. Women were referred to
as “passers-by”, who through marriage would leave the father’s homestead one day. Among
the Kikuyu, women were referred to as “andu a nja, literally those “who do belong” (Karanja
1991). Through marriage, women would gain user rights to land and other property, yet the
male head of the household would be the owner. Byamukama (1985) differentiates between
rights of disposition and rights of use under customary law as two main groups of rights that
can be further differentiated. This results in a legal pluralism that is overlapping and even
seasonal. As Parker Shipton has explained in relation to the Luo of western Kenya, the
importance of membership of a kin group, the labour on the land, or both, are crucial for
acquiring access to land. Rights in a piece of farmland oscillated seasonally between individual
and family cultivation rights during a growing season, and more open grazing rights for a
broader community on the same land after the harvest [...] And rights entailed duties: holding
arable land meant guarding it in custody for members of past and future generations.’
(Shipton 1992: 361).
In this article, we will provide a short historical overview of land policy and land law
development in Kenya and the way these have affected and still impact the position of women
in Kenyan society. Both customary and statutory laws will be discussed as these can be both
beneficial or detrimental to women’s access to land. Moreover, starting from the premise that
access to and ownership of land by women (i.e. the right to control its use, own, administer,
alienate, mortgage) is also determined by other laws such as marriage, succession and natural
resources laws, we will present these as well. Finally, we will take a detailed look at a crucial
aspect of the operationalisation of these laws, which aims to correct the discriminatory
position many Kenyan women find themselves in when it comes to controlling the transfer of
land in a formal setting of willing seller and willing buyer. In particular, we will present detailed
cases of the use of fake wives by cheating husbands, in an attempt to convince the local Land
2
Control Board that the intended sale of part of the family land is conducted with the full
approval of the other household members.
The central question that this article will address is the extent to which the use of fake wives
is a reality. The initial claim was made by, among others, the Gender Programme Officer of
the Netherlands Embassy in Nairobi in 2002 when interviewed by Human Rights Watch. If this
report is correct, what are the particularities of this fraudulent practice?
1
How frequently does
it occur? Who are these fake wives? What benefits are provided to women who become
involved in such a scheme? And what can be done or is being done to stop these practices?
The data presented hear was collected at a former group ranch, the Olkinos group ranch
situated some 60 km to the south-east of Nairobi, in (former) Maasai territory. The
phenomenon of fake wives is known here, and such women are referred to as Wives-for-
Hire. By revealing this information, we hope to contribute to the calls from groups monitoring
women’s land rights for the dissemination of knowledge about questionable practices (see
e.g. Odeny 2013). But let us first turn to a discussion of recently introduced new land
legislation in Kenya.
Women and Land in Kenya
Land was one of the most contested issues in the new draft Constitution of 2005, debated by
Kenyans over many years. In the process of formulation, women submitted several
memoranda to the Constitution of Kenya Review Commission, in which they demanded equal
rights with men, including, among others, equal access to resources and equal protection from
the law. They demanded guarantees for women’s land rights and the outlawing of customary
law and practices that derogate from human and women’s rights. Under the new Constitution,
Kenyan women would have the same right to inheritance, access and management of
property as men. Moreover, any law, culture, custom or tradition that undermines the dignity,
welfare, interest or status of women was to be prohibited (KLA 2006). These demands were
supported by reference to several pieces of international legislation to which Kenya was a
signatory, including the Convention on the Elimination of all Forms of Discrimination against
Women (CEDAW), which was agreed upon in 1985 at the World Conference on Women held
in Nairobi. Likewise, the 1981 Optional Protocol to the African Charter on Human and Peoples’
Rights on the Rights of Women in Africa, which came into force in Kenya in 2005, pays
particular attention to the rights of women to land. Article 19, which deals with sustainable
development, exhorts state parties to promote ‘women’s access to and control over
productive resources such as land and guarantee their right to property. National legislation,
which should improve the position of women, is said to be flawed in this respect as a number
of laws were exempted by Section 82 of the old Constitution that sanctioned discrimination
and application of customary law, which could be used to deny women the right to own land
or other property. One therefore finds that women’s enjoyment of the fundamental freedoms
guaranteed by the Constitution is severely restricted (KLA 2006: 7).
1
Human Rights Watch, interview with Akinyi Nzioki, Gender Programme Officer, Royal Netherlands Embassy,
Nairobi, 7 November 2002; Human Rights Watch, interview with Mary Wambua, Head, Women’s Bureau,
Nairobi, 6 November 2002.
3
The 2006 KLA report also pointed at problems resulting from the outdated (British) 1882
Married Women’s Property Act, which was still in place. Although judicial decisions had
increasingly recognised spouses’ rights to matrimonial property, the absence of firm
anchorage for the positive provisions resulted in conflicting decisions. Until 2014, Kenya had
no local legislation on matrimonial property as the Marriage Bill (1985), which sought to give
equal rights to spouses, failed to achieve parliamentary assent. The Marriage Act 2014 and
the Matrimonial Property Act 2014 replaced the colonial marriage law, which automatically
transferred all property belonging to the wife to the husband (Gaafar 2014). The new
Matrimonial Property Act recognises the equal sharing of matrimonial property. However, the
definition of matrimonial property excludes property inherited or acquired before the
marriage. This will most likely exclude wives and their offspring from claiming (part of) the
family land, unless clearly allocated by the husband before his death. UN human rights experts
have remarked that very few Kenyan women will be able to demonstrate such a situation,
since only a small proportion may have land title deeds in their own names. In fact, the new
Matrimonial Property Act is considered a retrogressive step in the protection of women’s
equal rights to land and property and in violation of Kenya's international and regional human
rights obligations (see http://www.unmultimedia.org/radio/english/2014/02/kenya-urged-to-
repeal-matrimonial-property-act/#.V1lBT49OLcs). Other critics have warned that certain
sections of the new Matrimonial Property Act notably 7 and 8 are unconstitutional and,
like the land laws, need amendment clauses (The Standard 9 July 2015).
The potentially negative outcome of unfair sharing has been pointed at in a 2009 report by
the Georgetown University Law Center, which stated that while Kenyan women face
numerous obstacles during marriage, the burden becomes insurmountable if they get
divorced. The lack of equal property rights upon divorce and the fact that many women
become the sole caretakers of their children often drives them into poverty (GLC 2009:3). It
will take careful analysis of marriage break ups to see whether the 2014 Matrimonial Property
Act will prevent this scenario and provide a truly equal distribution of property. If not, then
the outcome of a divorce could be disastrous for a woman and the effect might be that she
“chooses” to remain in an abusive marriage due to her lack of matrimonial property.
Although the Kenya Land Alliance worked hard to have women’s land rights acknowledged in
the 2005 draft Constitution, as explained in their A Case for Women’s Land Rights in the New
Constitution (KLA 2006), they were keenly aware of existing barriers and that legal changes
would be only a first step when reporting:
gender-neutral laws on property ownership have not resulted in more women owning
land because of structural barriers such as access to credit and general lack of
resources to purchase land. Women are under-represented in Institutions that deal
with land, their rights under communal tenure are not defined and this allows men to
dispose of family land freely. Few have land registered in their names and lack of
nancial resources restricts them from entering the land market. Women have been
of the view that to deal with male dominance in land matters, the law should explicitly
provide for women’s rights to own land and go further to provide for ways of assisting
women to raise capital to purchase land and other property. In matrimonial contexts,
women have argued for a presumption of spousal co-ownership of matrimonial
4
property and specific provisions protecting spouses from sale of jointly occupied land
without their knowledge and consent and protecting women’s interests in the
allocation of land. Women have also demanded that laws regulating the registration
of land and other property rights should be amended with a view to simplifying the
procedures and making them more accessible to women.
But initially, even this first step, a new Constitution, turned out to be a bridge too far when,
following a national referendum, the 2005 draft was rejected and a new process had to be
started. This culminated in the 2010 Constitution that, among other things, highlighted that:
1. women and men have the right to equal treatment, including the right to equal
opportunities in political, economic, cultural and social spheres (Ch. 2, (3)).
2. parties to a marriage are entitled to equal rights at the time of the marriage, during the
marriage and at the dissolution of the marriage (Ch. 4, (3)), and,
3. elimination of gender discrimination in law, customs and practices related to land and
property in land (Ch. 5, (1f)).
The 2010 Constitution also stipulated that the national government should develop and
review regularly a guiding land policy and put land legislation in place. Work on a new land
policy had already started in 2004 and, in 2007, after three years of deliberations, resulted in
a National Land Policy, approved by the Kenyan parliament in 2009. Finally, in 2012, the
Kenyan parliament passed three land bills on 25 and 26 April 2012. Soon after, President
Uhuru Kenyatta signed the bills into new land laws, which came into force on 2 May 2012. The
National Land Commission Act 2012, the Land Registration Act 2012 and the Land Act 2012
were now the instruments in use. These laws are the outcome of a long process, and some
have claimed that they are watered-down and rushed versions. For example, Mwenda
Makathimo of the Land Development and Governance Institute, stated that too much
responsibility on issues like surveying and registration of land was retained within the Land
Ministry, contrary to the Land Policy, the Constitution and public opinion. He also expressed
fears that a proper handling of community rights to natural resources would be at risk, as
would be putting in place good laws to rectify historical injustices and gender discrimination
on land ownership (The Star 5 April 2012).
2
Indeed, hopes for a definitive settlement of these long-lasting issues were built on a
number of land enquiry commissions and reports (i.e. the 1999 Commission of Inquiry into
the Land Law System of Kenya chaired by Mr Charles Njonjo and the 2003 Commission of
Inquiry into the Illegal/Irregular Allocation of Public Land, commonly known as the Paul
Ndung’u Commission, which published its report in 2004 naming several elite members of
society who had acquired public land in questionable ways). Although critics claim that the
recommendations of these two commissions are still to be actioned, their work contributed
to a key chapter in the new Constitution of Kenya, which was achieved almost 50 years after
Kenya’s independence. It is possible that some reservations were aired following a decision
2
For an abbreviated timeline of the drafting of the 2012 land laws see Manji 2015.
5
by the then Minister for Lands, James Orengo, to gazette a task force as early as 27 July 2012
to identify inconsistencies in the three newly signed land acts. According to the Acting Cabinet
Secretary, Fred Matiang‘i, this was because the laws primarily followed the 2009 National Land
Policy and that the land chapter in the Constitution (Chapter Five) does not represent the
entire radical proposals in the Land Policy [...] [with] the effect of importing into the legislation,
unconstitutional provisions (http://www.mygov.go.ke/?p=4683). Indeed, some flaws or at
least confusion seemed to have arisen as a result of some of the wording used, especially in
relation to the definition of community land. In addition, confusion cropped up between the
Ministry of Lands and the National Land Commission (NLC) portfolio. All of this developed
within a framework whereby both the expectations of the ordinary public as well as the
interests of some who had profited from land allocations in the past were high possibly too
high, given that people close to the centre of power had their hands firmly on these interests.
The mandate of the newly established National Land Commission is drawn from the
National Land Policy of 2009, Constitution of Kenya 2010, National Land Commission Act 2012,
the Land Act 2012 and the Land Registration Act of 2012. The NLC will, among other things,
be responsible for: the management and administration of public land; solve historical land
injustices; conduct research on land and natural resources; recommend a titling policy for all
land in Kenya and ensure that all unregistered land is registered within 10 years after
commencing their task; encourage application of traditional dispute mechanisms in land
conflicts; assess land tax; and monitor land use planning in the country. The NLC will establish
County Land Management Boards to deal with public land, be instrumental in setting aside
land for investment to the benefit of local communities and compensate where needed.
Finally, the NLC, in accordance with the new Land Registration Act, will ensure that land
registration units are established in consultation with counties and the national government.
It will provide advice to the national government about the rules and regulations needed to
conduct the registration of land (see http://landcommission.go.ke/?page_id=68 for more
details).
Odeny (2013) applauds the outcome of the new Kenyan Constitution (2010) for
addressing the issue of women’s land ownership and creating a legal and institutional
framework to ensure the full realization of women’s rights to land and other resources. The
Constitution and the National Land Policy (2009) have adopted the African Union (AU)
Framework and Guidelines on Land Policy a three year consultative process initiated by the
AU, the Economic Commission for Africa (ECA) and the Africa Development Bank (AfDB) and
which had started in 2006 by recognizing women’s rights as well as ensuring equitable access
to land for the landless, women, youth, displaced persons and other vulnerable groups.
However, worries grew rapidly among land law watchers, who feared that tackling
Kenya’s hot potato, i.e. land, would be much easier said than done. To what extent would the
new land laws be applied and land management institutions be able to perform their tasks
within a certain period of time without interference from interested groups among them
the politically well-connected many whom were beneficiaries of past injustices. Would it be
possible in the case of public land, to nullify the grabbing of land by individuals at the expense
6
of forests, national parks, schools, cemeteries or roads. Would the rampant corruption within
the land registries be addressed and corrected? Initial confusion about the allocation of tasks
and even open rivalry between the Ministry of Lands and the National Land Commission soon
lowered hopes that justice in land matters would be achieved within a reasonable time period.
In addition, the definition and, moreover, the operationalization of the new land category of
community land was another important nut to crack.
Setting aside the legal challenges, the implementation of these new land laws and
guidelines will be a test to see if women will benefit from their rights to land, as proclaimed
on paper. For example, it took a 2011 Kenyan High Court ruling to confirm that married
daughters have a right to inherit their parents’ estate (Daily Nation 28 February 2011). Indeed,
as consultant John Bruce (requested by USAID to comment on the law) warned: Legislation
to improve the position of women in land matters will need to be followed through with
extensive public education campaigns and attempts to organize women to campaign for
fulfilment of the promises which such laws represent. (USAID 2009). The need for women’s
empowerment in land rights has gained attention from international NGOs like USAID and
ActionAid and international organizations like FAO and UNDP (see USAID 2009; Forsythe &
Wellard 2013; FAO 2006; Forsythe et al. 2015). Similarly, mention can be made of the launch
of the Landesa Center for Women’s Land Rights (LCWLR) in 2009. Among other things, the
LCWLR aims to analyse formal and customary rights to property as well as the gaps between
law and practice (Landesa 2013: 67). Several Kenyan NGOs, such as Kenyan Land Alliance,
Groots-Kenya, Kenya Human Rights Commission and Kituo Cha Sheria, whose core business is
land matters, also joined hands in a network called Land Sector Non-State Actors (LSNSA), to
pressurize the government and parliament to implement the land reform promises, including
the interests of women and other vulnerable groups.
Indeed, the situation of women in relation to land remains very fragile, with many men
perceiving women’s rights to land as an encroachment into their space. Land rights are
inherent to the patriarchal structures and changing them remains a huge challenge. Moreover,
as pointed out above, law reform through facilitative provisions is only the beginning of a
much longer journey towards gender equity in land matters. Social engineering to change
attitudes is a critical leg of that journey if land rights are to be secured meaningfully for the
women of Kenya (KLA 2006). For the time being, stopping fraudulent practices and restricting
discrimination through the options provided by the new laws are tools that should be used to
address injustices.
Land Laws, Land Transfer Rules and Land Control Boards
Although some observers measure the performance of the National Land Commission (NLC)
primarily in terms of the number of title deeds handed out, others claim that the most
interesting issues to be tackled by the NLC of Kenya are the rectification of historical land
injustices and, importantly for this paper, overcoming discriminatory regulations that prohibit
7
equal land and property rights for women and specific minorities. The position of spouses, i.e.
female co-owners of land, is expected to be strengthened and better protected as a result of
this new land legislation and administration. These topics are also likely to be the most
challenging, as highlighted by John Bruce in his review of the draft National Land Policy for
Kenya (USAID 2009).
A guiding principle for work done by the National Land Commission is the elimination
of gender discrimination in law, customs and practices related to land and property on land.
New provisions in the 2012 land laws are supposed to help this goal as these are established
to protect those who, in the past, were sometimes unaware of the sale of land. The Land
Registration Act 2012, for example, requires a person who wants to transfer or sell (part) of
his land to (a) appear before the Registrar, public officer or other person as is prescribed; and
(b) be accompanied by a credible witness for the purpose of establishing identity, unless the
person is known to the Registrar, public officer or other person. The Registrar, public officer
or other person shall identify the person and ascertain whether the person freely and
voluntarily executed the instrument, and shall complete a certificate to that effect.
Section 93 of the Land Registration Act 2012 clarifies the new regulations, which start
from the presumption that spouses will hold land together, unless specifically stated
otherwise. In addition, if land is registered by one spouse but the other spouse(s) has
contributed to the upkeep and improvement by their labour or other means of productivity,
that spouse(s) shall be considered to have acquired an interest in that land in the form of co-
ownership. Likewise, if the spouse wants to sell or transfer the land or take a land charge on
it, i.e. use it as collateral for a bank loan , the other spouse(s) must be informed, and the
transferor or borrower must enquire as to whether there are other spouses who are owners
of the land. If this is not respected, the transfer or charge will be declared void. This means
that part of the procedure in front of land control boards will be to establish whether the land
owner is married, either by way of civil, religious or customary law. In cases where false
information is provided, a fine of Ksh 10 million can be imposed or imprisonment for up to 10
years, or both. In cases where fraudulent transactions have occurred, the transfer may be
deemed void and the land forfeited to the government. Legal observers have pointed at the
fact that the term 'spouse' has not been specifically defined in the new laws and this is likely
to cause practical difficulties in terms of determining whether or not spousal consent was
obtained for a transaction. Moreover, it is predicted that marriages under customary law,
which are not officially registered, create an opportunity for abuse of the new legal
requirements (Coulson Harney Advocates 2012).
It is not just a duty of the owners to clarify the status of their land, the buyer or lender
must also enquire. A crucial step to that effect is to conduct a so-called search, which should
provide details of the land from the Land Registry. A search application form, accompanied by
a copy of the seller’s identity card and a copy of the title deed of the plot should provide
confirmation of the ownership of the land, size, and any issues outstanding against the title,
such as court orders, loans, etc.
8
Following these preliminary steps the seller and buyer need to agree on the purchase
price, moment of final payment and moment of transaction. Documents and often a deposit
will be exchanged and should be signed by both parties and stamped at the Lands Office. This
is important due to the rule that unstamped documents cannot be accepted by a court of law
as evidence in the event of a dispute. Duty based on the market value of the property duty
will have to be paid to the government. Part of the documentation is a consent letter issued
by the Commissioner of Land to transfer the property, and an agreement of the sale by the
Land Control Board. The final process of land purchase is the registration of the transfer in
favour of the purchaser.
So how do these new laws differ from the old ones, which long denied men and women equal
access and ownership rights to land? Until 2012, the Trust Land Act (1938), Registered Land
Act (1989) (RLA) and the Transfer of Property Act (1882) were the most important land laws
governing ownership and transfer of (agricultural) land in Kenya. At one time, Kenya had over
75 land laws. This created confusion and, due to its anachronistic legal framework, failed to
recognize women’s land rights (Wamai 2003; GLC 2009:6). Over the years, many of the land
laws have been amended, but the effect of the Registered Land Act on Women’s Property
Rights was primarily to override customary rights, unless a specific note to the contrary was
added upon registration, something that many families did not bother to do. As a result, only
the head of household, often the male head or eldest son would be recognized formally as
owner of the plot of land, which actually meant the expropriation of family rights by an
individual. Women were left at the mercy of the title owner, the Kenya Land Alliance claims
(KLA 2006:9). The Georgetown Law Center summarizes a number of cases that saw husbands
selling land which was mostly worked by the women to produce food and/or earn an income
for the family leaving the spouse with a very small plot to support herself and the children
(GLC 2009:25-26).
Other conditions of the Registered Land Act (RLA) also had the potential to affect
women negatively. For example, the RLA limited the number of people to be registered as co-
owners to five. A number of polygamous Maasai families, however, are composed of more
than four wives, which meant some wives would be excluded.
3
Moreover, the RLA also
empowered the courts to determine succession of registered land in accordance with the
ethnic custom of the deceased, again putting certain widows at risk. Registration has, in
essence, resulted in the increased exclusion of women from access to, control over and
ownership of land. By contrast, Gichuhi (2013:6) is of the opinion that economic stagnation
might be the outcome of the new regulations, as banks might shy away from giving out loans,
fearing that one of the wives might rush to court and seek an injunction to prevent the sale or
charge of matrimonial property.
3
This is less common nowadays. Among Maasai of Kajiado the trend clearly is towards less wives per marriage
and more monogamous relationships. For example, of the 116 plot owners of our sample discussed here, 63
were in monogamous relationships (Rutten field data 2010).
9
A central piece of national land legislation was the Land Control Act (1967), Chapter
302 of the Laws of Kenya. The Act stipulated that any arrangement such as a subdivision, a
transfer, either as a gift or in exchange for money, or a charge of agricultural land needs to be
brought to the local Land Control Board (LCB) for verification and approval. The rationale
behind this is to prevent land from being subdivided into too small holdings. In practice, this
would mean no less than five acres in the case of the Maasai area.
4
According to the Land
Control Act, the members of Land Control Boards are appointed by the District Commissioner,
who must be the chairman, or a District Officer replacing the DC. In addition, the LCB will have
no more than two other public officers as well as two people appointed by the (now defunct)
county councils. The membership comprises a total of three to seven persons residing within
the area of jurisdiction of the board. The boards should consist of at least eight people and a
maximum of 12 people. More than half of those appointed to the board must be owners of
agricultural land within the area.
James Byamukama (1985:20) stated that most Land Control Boards take into account
the land needs of a seller’s family before giving their consent to a transaction. However, he
also pointed at the fact that most people involved in land sales do not bother to seek the land
control boards’ consent. It is therefore an ineffective device for the protection of families from
reckless [male] heads. Another main critique has been the almost total absence of women
members of the Land Control Boards. The KHRC (1998:16) claims that one possible reform
would be to include more women in the Boards. It is certainly the case that most of these
bodies were composed of “big” men within the local society. This is also true for the Land
Dispute Tribunals, composed primarily of local elders practising customary law, and the (now
defunct) county councils, which control (transfer of) Trust Land. That said, some boards did
include reasonable numbers of women (e.g. four in the Kajiado LCB), but it is worth saying
that honesty is not restricted to a specific gender.
5
The KLA (2006: 11) report states:
Owing to the hue and cry of families from different parts of the country whose male
head had sold or mortgaged family property leaving families destitute, a Presidential
decree was put in place for the boards in the 1980s requiring them to confirm proposed
subdivisions were agreed to by all in the family before giving consent. The wives’ and
mature children’s consent is therefore necessary before any sub-division consent is
4
According to Kwamboka (2014), Land Control Boards were initiated in 1967 Due to rising cases of foreigners
owning land outside municipalities.’ Other scholars, though, clearly point out that the risk of landlessness,
especially in cases of an individual owner selling land and depriving his family, was the driving force (see e.g.
Byamukama 1985). The Land Control Act was listed to be repealed during debate in parliament on 26 April 2012.
However, strangely, the LCA was not included in the list of Repealed Acts, prompting speculation as to whether
it was purely a slip of the pen or a deliberate omission (see Gichuhi 2013; Coulson Harney Advocates 2012;
Mwathane 2013).
5
At the 1993 Kajiado Youth Conference, the participants demanded the dissolution of the Kajiado Land Control
Board, claiming that the representatives held offices through “political favouritism”. They also indicated their
unhappiness with the Special Land Board, which they described as a way of doing things through backdoors. They
argued that the youth should be represented in all decision making bodies of the district, including the Land
Control Board (see Kajiado Focus 1993).
10
given, at least in theory. The practice however is different. Firstly, since most members
of the boards are men, they do not give much weight to women’s voices. Secondly, the
guideline has no force of law and remains an administrative device which may be
disregarded. Finally, corruption may lead to the presentation of a ‘fake wife’ who
consents before the Board while the real family is in the dark with regard to the
transaction.
And the Kenyan Human Rights Watch report Double Standards of 2003 states:
[M]en have reportedly bribed land control boards, fraudulently brought imposter
‘wives’ to the boards to consent to land transfers, and threatened their wives with
violence or eviction if they withhold consent (HRW 2003: 33).
A critical issue in protecting women’s rights to land was the denial of representation by a
lawyer and the right to appeal in a Kenyan court to decisions taken under customary law by
the Land Disputes Tribunals. Maybe even more important is the lack of knowledge among
locals, men and more so women, about formal land laws. Officials of Land Tribunals also are
poorly trained in this respect (see GLC 2009: 69-70). Ibrahim Mwathane (2013), a licenced
surveyor, also acknowledges that:
Quite a number of land boards have been accused of corruption. They have been
misused by some members of the Provincial Administration to do favours and on
occasion, the boards have failed to regulate the wanton subdivision of agricultural
land. But the wider picture reveals that land boards have served the purpose for which
they were formed. Any interventions should, therefore, seek to address operational
malpractices without excluding the familiar faces.
He disagrees with the opinion of other land professionals that the functions of Land Control
Boards can be performed by the County Land Management Boards, to be established at
county level, arguing that once established, these boards will take a long time to perfect their
operations and that, as the boards can only have a presence at the county headquarters, it
will be a long time before they devolve into rural Kenya. This creates another blockage for
most rural citizens wanting to transfer their plots, in the form of extra travel and
accommodation costs. He continues:
The county land management boards are also likely to wear a fairly elitist face, and
hence look unfriendly to locals. Landowners appearing in land control boards usually
relax on finding familiar faces of their chiefs and village elders during proceedings. But
more worrying is the constitutional aspect. The county boards are organs of the
National Land Commission, whose mandate is to manage public land. Most
transactions relate to private freehold agricultural land. Attempting to bring such
transactions under the purview of the land commission would bring about unnecessary
legal challenges.
In July 2014, Kajiado County was the first in Kenya, although not without political troubles, to
appoint an eight person-strong County Land Management Board. Three of its members are
11
women. The Governor wished them luck but also told the new appointees to stay away from
issues relating to land cartels stealing public land (The Star 28 June 2014; Kajiado County Press
August 2014).
His worry is likely to short-lived as the 2015 Land Laws (Amendment) Bill calls for
County Land Management Boards to be scrapped, before they have even got going. Following
the rush to put new land laws in place in 2012, and realizing that these laws were primarily
the result of the 2009 land policy, several amendments have been proposed to streamline the
new Constitution and the Kenyan land Laws. In addition, the aim of the 2015 amendments is
to improve internal coherence and clarify the mandate of the NLC versus the Ministry of Lands,
Housing and Urban Development. Yet, human rights watchers might also want to monitor the
extent to which land laws are actually amended, especially in relation to the task of monitoring
minimum and maximum land acreage, to prevent the interests of elite landholders. In
addition, it will be important to follow the extent to which the funding of the NLC meets the
minimum requirements necessary to fulfil its tasks and look into issues such as historical
injustices relating to land. The new 2015 Law (better known as the Omnibus Bill) also clearly
defines spouses and enables them to intervene specifically before completion of a transaction:
‘[…] those with mischief or without legitimate interests could actually frustrate the legitimate
spouses as has been evident in some of the publicised court cases (Mwathane 2015). Another
important Bill that will affect women is the Community Land Bill of 2015. LSNSA partners
wrote a joint petition airing their views on the Omnibus Bill and the Community Land Bill and
reminding members of parliament about the haste with which the 2012 land bills were
adopted. They expressed their fear that the same self-induced pressure with respect to the
two new Bills would undermine public participation, as required in Article 10 of the 2010
constitution, and the ultimate creation of sound Land Laws that reflect the constitutional
values and good governance (see LSNLA 2015).
With regard to the Land Laws (Amendment) Bill 2015, LSNSA claim that there is still
confusion regarding: a) the role of several land institutions, other than the Cabinet Secretary
heading the Lands Ministry; b) the way the minimum and maximum land holding prescription
is dealt with and the process being too controlled by the Lands Ministry; c) NLC independence
being undermined by changing the way members are appointed, through the Public Service
Commission instead of a multi-stakeholder selection panel; d) weakening if not abolishing the
provision of a legal regime to deal with historical land injustices; e} devolving Ministry offices
such as establishing County Land Registrars while at the same time abolishing County Land
Management Boards of the NLC; f) failure to protect the poor and marginalized from wrongful
evictions; g) questionable compensation to lessees upon expiry of a lease of public land; and
h) too much power allocated to Registrars to cancel entries that have “ceased to have effect”
(see LSNSA 2015).
Women and Propriety Rights among Nomadic Pastoralists
In discussions about the position of women and land, the situation of pastoral women is often
ignored or limited (KHRC 1998:6; Kameri-Mbote 2005). Whereas this is mostly true, we should
12
also keep in mind that for pastoral men land was not so much a resource held in private
ownership, but was the inclusive result of belonging to a group of nomadic pastoralists. The
customary tenure of the group assured access to land. In addition, the strength of the
pastoralist group in relation to other groups, either cultivators or pastoralists, would be of
importance, as this customary right could be expanded or be lost. Within a single pastoralist
group, boundaries prevailed linked to internal divisions along clan or sub-group lines. For
example, in the case of southern Kenya Maasai pastoralists, belonging to a certain iloshon
(section) would determine internal geographical boundaries available for grazing one’s
animals. Outside this home area, requests for access to another Maasai section’s territory, for
example in times of drought, would often be allowed as long as done in consultation and given
sufficient available grazing. Most sections realized that the very nature of local weather
patterns might result in a reciprocity request in the near future.
For pastoralist groups under customary laws, individual property rights whether
female or male were mostly restricted to cattle, man-made water sources, and small trial
and error cultivation plots, as was the situation among the Turkana in north-western Kenya.
Individual rights to grazing land were limited to small holding grounds next to a family’s
homestead, used to take care of sick and young animals. The wider area would be held in
common by the group. As a group, and often directed by a council of elders, they would
distinguish and set aside certain areas to be preserved for the dry season. Premature use of
the area could result in being fined by the wider community, otherwise individual decisions
about where to graze one’s cattle were self-determined.
This situation of land held in common is changing, especially among the pastoral
Maasai of southern Kenya. Since the 1950s, experiments with private ownership were put in
place, which culminated in the allocation of 2,000-acre ranches to politically well-connected
individuals and the remainder of grazing areas being set aside as group ranches, also in private
ownership but in the hands of a group of pastoralists ranging from 30 to 1,000 households. In
general, members registered were the male heads of households. At times, some group
ranches also allowed a widow to be a member (representing her sons) and put a claim on a
plot of land when the group ranch was subdivided. Allocations of land to women, though, was
not always welcomed by all members. This was also the case with the Olkinos group ranch of
our study, where a plot of land initially allocated to a woman was later assigned to a non-
member instead (Rutten 1992:303-304). In Elangata Wuas group ranch, of 658 members only
two widows were allowed to take up the position of their late husbands. By contrast, one of
the still undivided group ranches, Selengei, updated their register in 1990 allowing each
member to add three more relatives. As a result, several women, both wives and daughters
(some even below 18 years of age), were registered as official group ranch members.
Membership should be a ticket to getting allocated land in situations where the group ranch
is subdivided. Of course, being on the membership list is no guarantee to being allocated a fair
sized, reasonably located, quality plot. Moreover, enquiries about the current situation in
Selengei suggest that women are progressively taken off the list and being replaced by (new
born) sons. This underlines our view that, beyond the power of the (land) law, there are daily
13
life customs and traditions that are likely to conflict with new legislative developments for a
long time to come. Landesa and other advocacy groups also highlight this challenge of putting
theory into practice and they have embarked on the Kenya Justice Project, which, they say, is
giving women more control over family land and other resources (Espinosa 2013).
Following the start of the subdivision of the group ranches, only a few Maasai widows were
allotted a plot based on their membership. These women were mostly the head of a
household comprising a number of young boys. The mother was picked to gain access to land
that would pass to them in the future, once they married. Kenyan law at the time did not bar
women from ownership or control of land, but Maasai women have limited resources for
acquiring land and often have no access to substantial loans to acquire property from banks.
Usually, only non-Maasai women (groups or wealthy individuals) are able to buy land.
Besides statutory legislation, customary rules matter most in Maasai society. Human
Rights Watch quotes a Maasai elder from the Kajiado region who stated that, in Maasai
culture, a woman is not supposed to own property (HRW 2003:34). Several authors have
reported on the position of women in relation to ownership rights in Maasai society, both for
Kenya and Tanzania (Talle 1987, 1988; Mitzlaff 1988; Kipury 1989, 1992; Bohmer-Bauer 1990;
Kidemi 1993; Hodgson 1999; Coast 2006; Ngoitiko 2008; Wangui 2008). These studies provide
detailed insights into gender relations, marriage arrangements and rights and obligations
towards livestock, land and other assets. For a profound understanding of the customary
context, the starting point is that a Maasai woman marries away from the nuclear household
and settles with another family. She will receive cattle from her new husband and become a
resident of this new homestead for the rest of her life (see Mol 1996:206-207). Second, as
highlighted by Hodgson (1999), the cultural perception on the part of many Maasai men, and
by some Maasai women, is that women are equivalent to children. The explanation for this
attitude is, according to this author, the sometimes significant age difference between
husband and wife. Husbands are usually at least ten to fifteen years older than their senior
wives, and sometimes thirty to forty years older than their most junior wife. Moreover,
women are expected, as part of showing ‘respect’, to act and speak like children to men their
own age or older (Hodgson 1999). Such relationships, though, are not static. Changing
economic and political conditions have impacted upon Maasai women most negatively, as
Hodgson shows for Tanzanian Maasai in a study of old and young generations of men and
women in three communities:
[L]ivestock has changed from a resource with multiple, intertwined layers of control
and rights to an individually (male) owned commodity; agricultural crops have been
redefined as primarily food or cash crops; and land is being transformed from a shared,
abundant resource to a bounded, scarce, individually controlled asset. These
processes, promoted since the early colonial period by ‘development’ interventions,
have produced numerous changes in Maasai gender relations, including the creation
of separate, male controlled political and economic domains (Hodgson 1999:118).
14
Other scholars have also stressed that men increasingly take over control of spheres
originally the domain of women (such as the control over milk) due to the need for cash to
pay for school fees and other expenses. Likewise, land access for women is no longer
guaranteed, as only a few women widows, mostly were registered as group ranch
members. As Kipury (1992:32-35) states for Kenyan Maasai:
The exclusion of women created the suggestion that whatever traditional rights
accrues to women toward movable or immovable property, when it comes to land (as
opposed to mere pasture) it is the men in the elder age-groups who will control it. And
they did so selfishly at the expense of others. […] Land became delineated as "family
property" and placed under the jurisdiction of one exclusive owner. This is how men
became owners while women became non-owners. […] Unlike widows, women who
are single, or divorced or separated from their husbands have found themselves in
rather desperate situations. Many have been evicted by their fathers, brothers or
husbands from settlements they had always known as home. Many have moved to
peri-urban slums in search of income from any means they can find. Their living
conditions and those of their children are not always comfortable. Some of them have
indicated that their children are viewed as competitors and a threat to their male kin,
rather than valuable additions to the family unit.
Unfortunately, Kipury provides no details other than “many” in terms of the extent to which
separated or divorced women are victims of this development. We know only that, traditionally,
it was very rare for Maasai women to separate. Elderly Maasai women tell brides on the night
before they marry that they cannot leave if their spouses are abusive (GLC 2009: 47-48). As
explained by Coast (2006:402), who studied marriage among Kenyan and Tanzanian Maasai,
there is no word in Maa for “divorce” and she also states that formal marriage dissolution is
very rare among the Maasai:
The reasons for this are threefold. Firstly, the wife's parents may have to pay back all
or part of the brideprice. Secondly, given the strong affinal relationship that develops
between the two families (wife's and husband's), such a breakup has ramifications far
greater than the individual couple. [...] Thirdly, a wife (unless breastfeeding) is unable
to take her children with her permanently, as children belong to the patriline. The
divorcing of a wife by a husband has historically been referred to in the ethnographic
literature in the cases of sterile women.
Besides separation and divorce, Maasai women may also lose out when it comes to
inheritance (enjung’o). Maasai have no specific hereditary rules for land, in contrast to
livestock. Under Maasai customary law, animals belonging to the male head of the household
are inherited by the eldest son. Younger sons receive livestock during the lifetime of the
father. This leaves the wife dependent on her husband and children, especially if this practice
is translated into the inheritance of land. A widow with no sons, or with sons who did not
inherit land, usually moves with her children to her father or brother’s homestead, and
requests land there (Hodgson 1999:120). In the current situation, where Maasai do own land
15
individually, Maasai daughters who do not marry might be allocated a plot and some fathers
may also include married daughters in the inheritance of his land. Otherwise, the option of
using the statutory law (Law of Succession Act of 1972) is limited as, according to FAO (2006),
inheritance of agricultural land, crops and livestock are exempted from this law, which
stipulates that female and male children have the same succession rights and that widows
have a life usufruct in the estate as long as they do not remarry.
Especially in a rural setting and among groups such as the Maasai that have a long
history of relatively low school attendance rates for girls, the position of women is wanting in
these respects (Kidemi 1993). We do know, though, of cases where daughters are treated
equally. Indeed, in one such case an 80-year-old Maasai widow with one (deceased) son and
daughter was able to arrange that the daughter, who was set to inherit all of the property,
would not move away from the household on marriage. In this unusual case, the husband had
to move to the wife’s compound.
With, an apparent further marginalization of Maasai women in today’s society, we do
see a counter reaction, either by individual women or organized in a group. These acts of
resistance by women relate to land, but also to other resources and spheres of daily life, such
as circumcision and wildlife menace. Lukumay (2015) reports, for example, of Tanzanian
Maasai wives who, without the husband knowing, buy plots through their brothers in order
to secure access to land. The denying of control over agricultural produce is also challenged,
but often by sons and wives collaborating to steal the produce from the fathers land before
he can profit from it.
Ngoitiko (2008) reports on the Pastoral Women’s Council (PWC) established in 1997 in
Tanzania to promote the development of Maasai pastoralist women and children by facilitating
their access to education, health, social services and economic empowerment. PWC also fights
to prevent loss of land to outsiders, such as conservation groups and large-scale farmers. Its
approach is to empower communities to secure their natural resources and maintain their
access and rights to it, especially where Maasai leaders have taken bribes and have become
part of the problem. In doing so, PWC has also helped women gain confidence, skills,
knowledge and respect. In Kenya, too, we see Maasai women increasingly speaking out on
these topics and recently, in addition to peaceful demonstrations and legal action, they have
also been taking more blunt forms of action, including road blocks and even storming bars to
challenge their husbands drinking away the proceeds of their lands sales with sex workers (see
below for details). It is wise, though, to keep in mind that frequently these lobby group
organisations are largely composed of a few frontrunners and that, in addition to gender,
other identities will be of importance in terms of judging how effective these groups are in
reaching out to less well-placed Maasai women in the interior.
In the 1990s, the Kajiado Arid and Semi-Arid Lands Programme organized a number of
conferences, attended and contributed to by the present authors. The Second Conference on
the Future of Maasai Pastoralists in Kajiado District was held from 18 to 21 August 1991 and
brought together over 125 participants, including many Maasai leaders. We recall fierce
debates on the issues of land sales, but also the position of women. Land sales were
16
considered an evil that threatened prosperity. There was a plea for joint title deeds and a
request to Land Control Boards to monitor actions by those individuals that put entire families
at risk. Maasai women should be better informed about their rights to family land, including
mortgage arrangements, and should be able to take out court injunctions in cases of lack of
consultation by the husband (Klinken 1992). However, participants also differed on gender
aspects, although all acknowledged that women had been ignored in the whole process of
group ranch subdivision, land rights and education. Some participants aired the view that
married Maasai women owned land automatically, and widows would inherit land. Others felt
that it was in bad taste to set aside some special land for women. The view was that this would
encourage divorce and single parenthood. Therefore, it was felt that the only problem to be
addressed was the position of unmarried women (Klinken 1992).
Indeed, at that time, plot allocation in group ranch subdivision saw women, notably
widows, being given land. For example, according to a survey presented at the 1993
Conference in Kajiado, which focused on the position of Maasai women, a total of 1,407
women were registered in Kajiado group ranches, out of a total of 26,481 members, i.e. some
1 in 20, or 5.3%. Within Kajiado County this figure ranged from 3.7% (Loitokitok division) to
7.5% (Mashuru division).
6
The report also had figures on the male/female ratio for title deed
ownership for a selected group of Kajiado regions that suggested 8.1% female ownership (534
out of 6,535 titles). It should be noted, though, that of these female titles, 52% were Maasai
and 48% non-Maasai women. In addition, 20 titles were joint ownership by husband and wife
(Kitengela region only) (see Nganga 1993).
Ethnicity is another important factor that must be taken into account when studying
gender and natural resources among the Maasai. Non-Maasai wives are often considered to
be better educated, knowledgeable cultivators and, in general, more enterprising qualities
valued by many Maasai husbands. Often, the second wife is from outside the Maasai
community, e.g. originating from the Kikuyu or Kamba. However, when these women become
widows, there is a risk that the Maasai brothers of the deceased might claim the land; her
Maasai co-wives might also be less than welcoming.
Besides a split along ethnic lines, we also need to make a differentiation in terms of
age among Maasai wives. When searching for an opinion among Maasai women about the
process of subdivision, Tobiko (1989:15-16) explained that elderly women feared that
subdivision would create landlessness in the long run and that it might destroy harmonious
communal life and boost land sales, whereas the young and middle-aged women favoured the
subdivision of the ranch wholeheartedly, arguing that land parcelling is necessary for speedy
development and the creation of a more comfortable life.
Although, for the reasons explained above, formal individual ownership of land has
long been a rather rare issue for both Maasai men and certainly women in comparison to
6
We had to correct some tallying mistakes for a few areas, notably Loitokitok (see Nganga 1993). Also note
that, e.g. in 1991, Selengei group ranch (still not subdivided) was said to have no women on the register of 440
members. In later years, Selengei officials recorded many women, including under-age girls, albeit often without
them knowing they were put on the list.
17
sedentary cultivator groups, this situation has now changed. Statutory land rights are fast
spreading among the Maasai of Kajiado, and it is time we clarify the effects of these changes,
especially those for women.
Elsewhere (see Rutten 1992; Rutten 2008), the process and outcome of the subdivision
of group ranch land among the Maasai of Kajiado has been reported and explained in detail.
It was concluded that initially positive opinions among most of the households interviewed in
repeated surveys from the late 1980s until 2010 have since become negative. Predicted
positive effects of land titling have hardly materialized and especially the original landowners
have been faced with a rough situation, either because they sold their land at throw-away
prices, or because their water sources have dried up and the air has become polluted as a
result of new activities started in the area once land became a commodity. Let us now turn to
the land transfer practices as conducted by the Maasai in the former Olkinos group ranch.
The Practice of “Wives-for-Hire” in the Olkinos Area of Kajiado County, Kenya
Our research location is a former group ranch named Olkinos. Members of the group ranch,
formed in the early 1970s, decided to subdivide the ranch among its 116 members in the mid-
1980s. A total of 11 plots were allocated to female owners, which is high compared to other
regions. All women were widows and in three cases the ownership was shared between two
women (co-wives). The average plot size for this group of women was below the overall mean
size of plots allocated: 38.5ha and 46.7ha, respectively (Rutten 1992). Otherwise, these
parcels were spread out over the Olkinos ranch and were of average quality. Most of the
female owners were positive about the process of subdivision and the plots allocated at that
time (Rutten 2016b).
Following the subdivision which in itself was challenging, as some members, notably
the elite group ranch committee members, were much better off in terms of the location, the
size and the quality of the plot allocated a land market was created that did not so much
enable the use of land as a collateral to acquire loans, as those scholars and policymakers
favouring land titling predicted would be the case, but primarily saw a transfer of land (both
legal and later also illegal) under the willing seller-willing buyer formula. This went hand in
hand with negative stories of speculation, fraud, destruction of natural resources and
conflicts. Families that had suffered from these practices often found themselves in long-
lasting feuds; some tried to settle their differences in court.
Only plot owners whose investments were productive in developing or improving
water sources were able to get out of poverty. Following the development of affordable and
guaranteed water, these households had the ability to grow vegetables for a local
supermarket or keep better cattle breeds that produced substantial amounts of milk for sale.
As a result, among these households, the overall opinion about the process of subdivision was
positive. Especially women embraced the individual ownership of land, mostly because of the
improved food situation for the household members. However, those households that were
confronted with a husband and father who had become used to selling small portions of land
started to realize that this practice would eventually come to an end. And when almost all of
18
the Olkinos wells started to dry up as a consequence of the drilling of deep boreholes by
commercial agricultural companies, which had moved into the area to profit from the cheap
land and the proximity to Nairobi and its airport (e.g. flower farms), opinions changed
dramatically for the vast majority of Olkinos inhabitants.
Officially, the Land Control Board will not allow the sale of land without the consent of the
wife, but daily practice differs. The gender biased access to and control over land has acquired
a profound negative effect following the commoditization of this basic resource. Kajiado
County Senator Peter Mositet blamed the LCBs for abetting cases of irregular sale or transfer
of land by irresponsible individuals without the knowledge or consent of their immediate
families. He accused the boards of presiding over the land mess in the county and re-named
them Land Selling Boards. That is why you find old men selling hundreds of acres of their land
by colluding with these boards. An old man will even present a prostitute before the board to
pose as his wife and he is given consent to sell the family land (Nation.co.ke 28 April 2016).
In a bid to ensure that the transfer of land is not opposed by wives or children, Maasai
husbands often keep quiet about their intentions and seek assistance from land brokers.
These brokers find a willing buyer or have already been commissioned by somebody
interested in acquiring land in Olkinos and its surrounding areas. Elsewhere we will discuss in
detail the characteristics of this group of brokers (Rutten & Mwangi 2016), but for now it
suffices to state that some of the brokers are (young) locals who either individually, or in
collaboration with a non-Maasai partner, have entered into the lucrative business of brokering
land between the Maasai and interested outsiders. The latter are seeking assistance in
locating land available for sale and in the negotiations with the original Maasai owner, many
of whom do not speak English or even Kiswahili. In some cases, Maasai urbanites, often well-
off individuals active in politics and business, also make use of local Maasai brokers to pre-
arrange the transfer of land. These brokers are mostly educated Maasai, some of whom make
a living from this business or who hold key positions in society, such as pastors, chiefs or
government officials (see Kajiado County Press March/April 2015). Non-Maasai land brokers
are also active, either formal players based in Nairobi or smaller towns in the area such as
Kitengela, Ongata Rongai or Ngong, or local non-Maasai, mostly Kikuyu or Kisii rural
inhabitants. Some of them had bought land in the Olkinos area in the early 1990s and have
made land brokering their main source of income.
The Players in Family Land Losses
The practice of cheating husbands presenting fake-wives to Land Control Boards when seeking
permission to sell land is operated through a number of stakeholders. Wives-for-Hire (WFH)
stand in for the real Maasai wife of the head of household who wants to sell a piece of land to
a willing buyer. To verify and allow the transfer, the Land Control Board must hear the request
to transfer (part of) the land of the seller to the buyer. A condition for approval by the Land
Control Board is that family members agree to the sale. Fearing the wife might not do so, some
husbands seek assistance from land brokers who arrange for the stand-in wife. Wives-for-
19
Hireare approached directly or indirectly by the male head of a household willing to sell part
of the family land. The imposter wives can also be arranged by the land broker assisting the
seller or buyer. The Wife-for-Hire is needed to stand in as the real spouse during one of the
monthly meetings of the (divisional) Land Control Board, and is expected to say that she agrees
to the transfer or charge of the land in order for the LCB to approve the transaction. In the
booming rural towns of Kitengela and Isinya there are women willing to take part in such a
scheme for a substantial fee. They are either paid a percentage (e.g. 10%) of the land sale
value or a fixed amount of money. The “Wives-for-Hire we have come across in this research
were all non-Maasai.
A good spot for finding potential sellers of land is in the local bar
The information obtained came from the families that were tricked by the male head of the
household. The stories were revealed reluctantly and with much pain, partly also because
people felt ashamed. We also approached the “Wives-for-Hire but, unsurprisingly, no one
was willing to collaborate. Information was also gathered from (former) land brokers, who
revealed and clarified some of the practices.
An overview of the 13 cases we were able to gather is presented in Tables 1, 2 and 3.
Besides information on the original land owner, the seller (and his or her education,
occupation, family composition) and the wife-for-hire involved, we also present data on the
buyer, plot size and date of transfer. To protect the persons involved, we have decided not to
reveal their names. We have more information available about these specific families, but it
is not presented here in order to prevent knowledgeable people from tracing the identity of
the seller. From Table 1 it becomes clear that the group of 13 sellers of land is dominated by
the second generation. The initiative was mostly taken by the seller, although brokers were
20
also involved. It is also important to note that these sellers, in general, are reasonably
educated, in particular in comparison to their fathers.
Table 1: Seller details in Wives-for-Hire land transfers Isinya area, Kajiado County 20062013
Case
Year
of
sale
Orig.
owner
alive/dead
at time of
sale?
Seller
Age
seller
at
time
of sale
Household
members
seller:
wives &
children
Level of
education
seller
Primary
occupation
seller
1
2006
Dead
Son
32
2 & 6
Form 2
Slaughterho
use
employee
2
2010
Alive
Owner
74
1 & 5
No
education
Beans/maiz
e
Cultivator
3
2010
Dead
Son
23
1 & 1
College
Taxi driver
4
2010
Dead
Son
44
1 & 5
Form 4
Livestock
trader
5
2011
Alive
Son
37
2 & 2
Form 4
Water
vendor
6
2012
Alive
Son
32
1 & 3
College
Mechanic
7
2011
Alive
Son
41
1 & 4
Stand 8
Land broker
8
2010
Dead
Son
23
1 & 2
Stand 8
Sand
harvester
and
bodaboda
operator#
9
2006
Dead
Neigh
bour
39
1 & 4
Form 4
Farm
produce
salesman
10
2010
Dead
Son
31
1 & 2
Form 4
Land broker
11
2011
Alive
Son
21
1 & 2
Form 4
Matatu
(minibus)
Conductor
12
2007
Alive
Son
37
1 & 2
Form 4
Water kiosk
vendor
13
2013
Alive
Owner
56
1 & 6
Stand 8
Pastoralist/l
and lord
Source: fieldwork 2013-2015 *part bought from Case 7 # motorbike taxi
Moreover, although we speak of the son selling, we are not necessarily dealing with unmarried
youngsters. At the time of sale, these WFH sellers had reached an age ranging from 21 to 44
and were married and had children. Besides keeping livestock, many were occupied in other
businesses such as butcher in a slaughterhouse, motorbike driver, water vendor or land
broker. In short, WFH is an instrument used by reasonably educated Maasai sellers aged
21
around 30 years of age, who besides keeping livestock were making a living in other
businesses.
Table 2: Wives-for-Hire details involving land transfers Isinya area, Kajiado County 20062013
Case
PLOT
WFH
Residence
Ethnicity
Arranged
by
Broker
officially
involved?
Reward
1
1
A
Businesswoman
in Kitengela
Kamba
Seller
Broker was
the fake wife
Ksh 50,000
2
2
B
A Kitengela
businesswoman
in land broking
Kikuyu
Seller
Broker
10% of value
of land sale
3
3
B
A Kitengela
businesswoman
in land broking
Kikuyu
Seller
Seller only
Ksh 100,000
from seller
4
4
C
Isinya resident
involved in land
broking
Kikuyu
Seller
Seller only
“a fair treat
and money for
upkeep”
5
5
D
Isinya
businesswoman
in land broking
Kikuyu
Seller
Seller only
10% of value
land sale
6
6
B
A Kitengela
businesswoman
in land broking
Kikuyu
Seller
Seller only
10% of value
of land sale
7
6
B
A Kitengela
businesswoman
in land broking
Kikuyu
Seller
Seller only
10% of value
of land sale
8
7
D
Isinya
businesswoman
in land broking
Kikuyu
Broker
Broker
Ksh 100,000
from seller,
unknown
amount from
buyer
9
8
D
Isinya
businesswoman
in land broking
Kikuyu
Seller
Broker
10% value of
land from
seller, ??
amount from
buyer
10
3
B
A Kitengela
businesswoman
in land broking
Kikuyu
Seller
Seller only
Ksh 100,000
from the
seller
11
9
B
A Kitengela
businesswoman
in land broking
Kikuyu
Seller
Seller only
Ksh 100,000
from seller
12
10
D
Isinya
businesswoman
in land broking
Kikuyu
Seller
Seller only
10% of land
value from
seller
13
11
B
A Kitengela
businesswoman
in land broking
Kikuyu
Seller
Broker
10% of land
value from the
seller
Source: fieldwork 2013-2015
22
Table 2 provides details of the Wives-for-Hire used in the transfers of plots. Four names have
been operative, in particular two kikuyu ladies active in Kitengela and Isinya towns. Brokers
were involved in about half of the cases, yet the contracting of the WFH is mostly done by the
sellers themselves, i.e. over 90% of the cases under review. For most cases we have details of
the arrangement offered to the WFH, but care should be taken as people interviewed were
reluctant to reveal details or, at times, were not aware of all the details involved. It is fair to
conclude, though, that sellers take an active role in looking for WFH. In our view, this shows
their determination to transfer the land in secrecy. They typically offer 10% of the value of the
land sale as a reward and thus pay for the costs involved, although in a number of cases buyers
also seem to reward the fake wife by indicating that they were integral to the arrangement.
This was the case when a flower farm acquired land through a land broker (cases 8 and 9).
Table 3: Buyer details Wives-for-Hire land transfers Isinya area, Kajiado County 20062013
Case
Year
Original plot
size 1986
Buyer
Ethnicity
Acreage
Influential/
wealthy
buyer?
Acreage left
for seller
2015
1
2006
Plot 1:
76 acres
Several
individuals,
Marble
company
Three
Kikuyu,
Kisii and
N.A.
12, 2, 1,
30 and
18 acres
Influential
and
wealthy
0.5 acre
2
2010
Plot 2: 69
acres
Lecturer
Luo
35 acres
Influential
buyer
2.0 acres
3
2010
Plot 3:
98 acres
Manager
steel comp.
Kikuyu
5 acres
Wealthy
buyer
5.0 acres
4
2010
Plot 4:
74 acres
Poultry farm
N.A.
8 acres
Influential
buyer
2.0 acres
(elsewhere)
5
2011
Plot 5:
64 acres
Flower farm
Indian
15 acres
Wealthy
buyer
5 acres
6
2012
Plot 6 (Bought
from Case 7):
60 acres
Individual
Luo
15 acres
Influential
buyer
45 acres
7
2011
Plot 6:
106 acres
Individual
Maasai
20 acres
Influential
buyer
20 acres
8
2010
Plot 7:
28 acres
Local
politician &
flower farm
Maasai
and
Indian
15 and
4 acres
Influential
buyer
1.0 acre
Plot 8:
51 acres
Flower farm
Indian
20 acres
Wealthy
Buyer
10 acres
(elsewhere)
10
2010
Plot 3:
98 acres
Manager
steel comp
Kikuyu
20 acres
Wealthy
buyer
5 acres
11
2011
Plot 9:
93 acres
Poultry farm
N.A.
10 acres
Wealthy
buyer
0 acres (stays
in town)
12
2007
Plot 10:
64 acres
Flower farm
Indian
15 acres
Wealthy
Buyer
5 acres
(elsewhere)
13
2013
Plot 11:
59 acres
Individual,
poultry farm
Somali,
N.A.
15 and
20 acres
Wealthy
Buyer
15 acres
Source: fieldwork 2013-2015
23
Table 3 provides details of the parcels sold and the buyers involved. It is important to realize
that some of the individuals mentioned as buyers in fact acted as managers of companies (e.g.
a steel company cases 3 and 10). Other bulk buyers are flower companies (5, 8, 9 and 12)
and chicken farm enterprises (cases 4, 11 and 13). In short, the buyers are commercial
companies, some with politically powerful shareholders, that often receive a lot of support
from the authorities to facilitate production, including land, electricity and water. That said,
some of these companies, willingly or unwillingly, are involved in deals that deprive Maasai
families of their security. Such companies have gatekeepers who do all the footwork. These
people are on their payroll and earn from their work. The costs involved are also funded by
the wealthy. The broker seeks the seller, organizes all the paperwork and earns a commission
from the total transaction. This explains why the land brokers are very rich. The other group
of buyers is mostly composed of well-off individuals of a non-Maasai background, who operate
their business as speculators or absentee landlords for commercial food production. Others
bought for residential purposes.
The total land held by the original land owners at the time of subdivision was 684 acres,
or some 62 acres per household.
7
Their off-spring, who engaged in using WFH, now hold
106.25 acres in total or some eight acres on average per family. Although we disregard land
held by other descendants of the original plot holder, it is an indication that Maasai society is
losing ownership and access to land at a fast rate. This is exemplified by the two original plot
holders that used WFH in cases 2 and 13. Some 30 years ago, at the time of subdivision, the
two of them were allocated 128 acres. Now they are left with only 17 acres. In addition, one
in three of the WFH sellers has relocated to other areas, including urban environments.
The loss of land has put some families in total disarray, especially those whose only skills are
keeping livestock and where family relationships have suffered from the destructive
behaviour of misusing land proceeds. We want to stress, though, that, in other cases,
(members of) families left pastoralism and are now engaged in white-collar jobs in Nairobi or
other areas and seem to do rather well. See Box 1 for three typical anonymized stories of these
two scenarios. “Wives-for-Hire” are approached directly or indirectly by the male head of a
household willing to sell part of the family land. The imposter wives can also be arranged by
the land broker assisting the seller or buyer. The “Wife-for-Hire” is needed to stand in as the
real spouse during one of the monthly meetings of the (divisional) Land Control Board, and is
expected to say that she agrees to the transfer or charge of the land in order for the LCB to
approve the transaction. In the booming rural towns of Kitengela and Isinya there are women
willing to take part in such a scheme for a substantial fee. They are either paid a percentage
(e.g. 10%) of the land sale value or a fixed amount of money. The “Wives-for-Hire” we have
come across in this research were all non-Maasai. The information obtained came from the
families that were tricked by the male head of the household. The stories were revealed
reluctantly and with much pain, partly also because people felt ashamed. We also approached
7
The total is for 11 parcels as one parcel appeared twice in the list of WFH sales, and one seller (6) had bought
land in Olkinos from seller 7, while, residing in a neighbouring area.
24
the “Wives-for-Hire” but, unsurprisingly, no one was willing to collaborate. Information was
also gathered from (former) land brokers, who revealed and clarified some of the practices.
BOX 1: How are they doing?
Source: fieldwork 2013-2015
For Olkinos, since 2002, it is the divisional Land Control Board of Isinya that has taken on land
transfers in the area. In earlier years it was done at the central LCB in Kajiado. In 2010, LCB
membership in Isinya stood at three women out of a total of six members selected from the
public. In addition, three representatives from the provincial administration (District
Commissioner and District Physical Planning Officer) and the Lands Office (District Lands
Registrar) and two local councillors made a total of twelve members (see Kenya Gazette 2010).
All of these were men. The councillors were replaced the year after, including by the brother
of a well-known land broker in the area. In July 2016 new LCB members for Isinya were
Case 1 (Plot 1: 76 acres)
Like many others, this husband started selling his land in bits. The wife, though, also enjoyed the
proceeds from the sale. This created conflicts as he gave his sons only two acres. He sold the rest
to a non-Maasai cabinet minister and he then moved to Nairobi. He was a soldier and he had never
lived on the land he owned. He lived at the army barracks most of the time. He also separated from
his wife so the children were on their own. One of the sons sold his one acre and moved to live in
Kitengela; the other lived on his one acre with his wife and children, but later sold 0.5 acres using
the WFH method.
Case 8 (Plot 7: 28 acres)
The husband started selling land in bits which caused quarrels and fights between him and his wife,
which led to a divorce. They had only one daughter who was married and lived with her husband
and children. The land was bought by a non-Maasai minister and a local politician, among others. A
small portion of the money from the land sale was used to construct a small mbati house to shelter
the family. Poverty was a daily theme for the family as they had to get food at the local shops on
credit and, at times, could not pay. The husband continued selling the land till he sold almost all of
it. He used the money to drink alcohol in Isinya and Kitengela. He died in 2002 and left nothing to
either his wife or daughter. He was sick before his death and spent most of his last days in hospital
and when he passed on there was a very big hospital bill that was left. The family paid the bill so
that the body could be released for burial. He was buried on his brother’s land because he had no
land left.
Cases 3 and 10 (Plot 3: 98 acres)
The widow passed away in 2006 after a long illness and left six children aged 37 to 22, five boys and
one girl (she is married and stays with new relatives in Olkinos). All but the youngest of the sons are
married. The youngest (22) stays at the home along with two other sons. The eldest sons stay in
Ngong (municipality employee) and Nairobi (Kenya ports authority). The mother sold several
parcels of land before she died. Most of the initial buyers subdivided the land into small plots of
0.125-0.5 acres and then resold them. Some buyers have fenced and settled there. The land that
remained within the family after the death of the mother was about 63 acres (out of the original 99
acres), which was divided equally among the five sons. Each son got about 12.5 acres. They too sold
land: 2.59 acres each and one son sold 7.5 acres, leaving only 5 acres. Besides some brothers being
in wage employment others are in shopkeeping.
25
appointed by the Ministry of Lands: five men and two women. Other land control boards in
Kajiado County also saw only one or two women appointed (see Kenya Gazette 2016).
Although we agree that a gender-balanced Land Control Board is important, it also
matters to what extent members are able to effectively exercise control. It has often been
stated that LCBs are owned by the Provincial Administration officers and politicians. The latest
appointments, likewise, were 100% political one land broker interviewed claimed. As transfers
cannot be vetoed it will be hard for honest members to block the practice of WFH. The
operation of parallel boards also does not help in this respect.
The rates of divorce among Olkinos original owners are above those found by Coast
(2006). Among the Olkinos original land owners, we found five households that had
experienced a break up. In three cases, this was of a monogamous marriage. In two more, it
was one of the co-wives that was divorced or separated. In the case of the monogamous
marriages two out of three were non-Maasai wives. In the two polygamous marriages the wife
divorced was Maasai. Likely, HIV/Aids was among the reasons involved for the divorce in at
least one instance. Thus, where Coast (2006) found only 0.2% of men divorced, in Olkinos this
was almost 3.0%. The outcome of these split marriages is often tragic. In most cases, the wives
were left with almost or completely no land due to an indiscriminate sale of land by the late
husband or son(s). As one writer to The Standard newspaper stated Land selling astonishingly
is now an economic activity in Maasailand! [...] It is common to see men selling off everything
and then proceed to live with relatives exposing their families to untold suffering. [...] The land
control boards are inactive because they have been replaced by unlawful special boards that
in reality are controlled by provincial administrators. These special boards fast-track illegal
transactions (The Standard 15 March 2011).
As for the latter claim, we have also heard rumours that this use of shadow LCBs has been
a practice employed especially by well-connected people to speed up the process of land
transfers and circumvent problematic questioning. Of course, this implies collaboration by
powerful members within these Land Control Boards. In addition, during fieldwork in the area
over the last thirty years, we have come across a significant number of land plots being sold
illegally without the consent of the LCB. This means a potential for future conflicts and that
buyers are at risk.
Finally, based on an analysis of inheritance practices of land left by the original owners in
Olkinos, the customary practice of transferring property to the sons, usually the eldest, is still
common. In a few instances, we have come across a family that did include daughters in the
division of the original plot, but this is a rare practice. In most cases, it is sons who inherit and
frequently when they do there is hardly any land left. The Maasai who once held vast pastures
have now become a generation that is more likely to witness two sons splitting the remaining
two acres their father left for inheritance.
Counter Actions
The tragic situation some families find themselves in following death or divorce is one of many
challenges confronting the Kajiado people. Whether one is a buyer or seller, Maasai or non-
26
Maasai, many stories have emerged over the years of fraudulent practices, not just involving
the Land Control Boards, but certainly also at the Kajiado Land Registry (see Rutten & Mwangi
2016). The new Constitution brought along a devolvement of Kenya’s central government,
putting in place newly elected county governments. In Kajiado, the new governor and his
administration sought, among other things, to address corrupt practices involving land,
including: the malpractice of Land Control Boards; corrupt practices involving land allocation
and grabbing of public land (e.g. livestock holding grounds, road reserves and school
playgrounds); poor management of land records; double allocations and re-sale of the same
plots; and issuance of title deeds without green cards (The Standard 11 December 2014;
interviews with land brokers; interview Kajiado deputy governor; Kajiado County Press
December 2014-January 2015). In the court of the accused are the provincial administration,
Ministry of Lands officials and land speculators. The Maasai community leaders, some
moonlighting as land brokers, and the people themselves are as much culpable, one Maasai
observer wrote to a national newspaper (The Standard 15 March 2011).
The Kajiado governor banned land transactions in September 2013. Subdivision of land was
prohibited and the Land Control Boards were put on hold. Protests by Kajiado politicians,
holding a majority in the Kajiado County Council, were aired regularly, but the governor
maintained his ban. He ordered a clean-up of the Kajiado Land Registry and also announced,
towards the end of 2014, that women would benefit from a new county land policy that would
follow the new Constitution and ensure equal rights for spouses in land matters.
On 10 December 2014, while speaking at a gathering in Machakos town, the Speaker
of the Kajiado County Assembly, Johnson Osoi, stated that there should be no gender
discrimination. Hence the need to make a policy that allows registration of land for both men
and women. We know this will not go down well with our male counterparts, but we have to
follow the law which now allows women to acquire land contrary to our traditions. (The
Standard 11 December 2014; Kajiado County Press 21/12/2014-05/01/2015).The new law
would be in place two weeks from the meeting. The meeting was organized by the Mainyoito
Pastoralists Integrated Development Organisation (MPIDO), one of the NGOs that has been
fighting legal battles for the annulment of illegally acquired plots in subdivided areas of Mosiro
and Loodariak from the early 1990s onwards.
It took a bit longer, but by mid-March it was announced that a new land law seeking
to protect the Maasai community in Kajiado from selling land to investors was in place. Among
other provisions, the Kajiado County would buy land from locals and ring-fence it to prevent
sale to developers with the aim of protecting pastoralists, the environment and wildlife. For
urban areas, plots allocated by the government could not be sold without first developing
them (Nation.co.ke 14 March 2015). Finally, subdivision of land would be vetted by the county
government before proceeding to the Land Control Boards. In addition, by the end of March
2015 a new county land policy entitled Land Policy and Strategy for 2015-2020 was adopted.
27
Whereas in the past protests against land injustices, such as fraudulent land
acquisitions of group ranch land, were spearheaded by NGOs such as MPIDO, Neighbours
Initiative Alliance, or Dupoto-e-Maa, the current Kajiado County government seems to be
determined to clean up the mess. Making institutions function on limited budgets is
challenging. It requires political will that extends beyond lawmaking into areas of both
enforcement and public awareness (Joireman 2011).
In addition, women themselves, as those who bear the brunt of bad practice, have
stood up and aired their frustrations over land and other issues (e.g. FGM and wildlife
menace). From 2014, reports appeared in local newspapers of Maasai women protesting
peacefully and increasingly violently throughout Kajiado County. In April 2014, a group of
Maasai women in Sajiloni and Enkorika towns invaded beer joints and destroyed the liquor on
the counters. Several people were injured. The female bar attendants were accused of stealing
their husbands. The men had moved away and were selling land without consulting their wives
and children, while spending the money on prostitutes and beer, so the invaders claimed
(Kajiado County Press April 2014). More invasions by groups of 100 and more women followed
in places like Kibiko town in early 2015, destroying property worth hundreds of thousands of
Kenyan shillings, and Mashuuru town in late 2015. In the latter case, protests were also aired
against the use of miraa (khat) and poor service provision in the local hospital. The most
furious attack occurred in August 2015 in Isinya town when scores of people were injured
when some 2,000 Maasai women carrying sticks and other weapons stormed the local bars
and hair salons, chasing the girls and accusing them of having turned their husbands into
alcoholics. Property worth several million Kenyan shillings (reports range from 1.5 to 30
million) was destroyed. Teargas was fired by local police officers. The women claimed that
some of the bars belonged to policemen and threatened to burn the local police headquarters.
The invasion destroyed some 40 out of 70 bars. The women threatened to return until all the
bars were closed. They demanded from the Governor that he shut any remaining ones, but
that request was denied as he argued that licensed bars had the freedom to conduct their
businesses (Kajiado County Press October 2015).
One month after this attack, four families living in the nearby area of Nkito, all non-
Maasai, who had recently bought land in the area, were attacked in their homes. One victim
claimed there was a connection between the attack and what happened in Isinya, because the
10-men gang invaded houses that were occupied solely by women. Police, though, denied the
link (Kajiado County Press August 2015; Kajiado County Press September 2015).
The series of attacks by the women has become known as “Operation Linda Mabwana”
(Operation Protect the Husbands), following the Kenyan army invasion of Somalia in October
2011 code-named “Operation Linda Nchi”, which pursued Al Shabaab terrorists that had
attacked and kidnapped French tourists at the Kenyan coast. Time will tell if violence is the
only way to curb the massive sale of land.
In October 2015, the women seemed to have cooled down somewhat and around
1,000 of them gathered on the outskirts of Isinya and apologized for the chaos, albeit claiming
that some bystanders took advantage of the opportunity of free beer. Their key message
28
remained, though, that they would make Kajiado County ungovernable if the bars were not
closed down. Their leader, Mama Keisa, listed several Maasai youngsters who had become
drug addicts and blamed husbands for letting families down in land matters. They accused
Land Control Boards all over the county of colluding with land brokers to “steal” and sell land
at the expense of widows. One of the elders reported that, as elders, they had decided to
consult their women on all issues regarding the sale of land and management of resources
(Kajiado County Press October 2015).
Whether this assurance will be a good enough remains to be seen. Elders might assist
and compromise or even curse certain individuals, but women might prefer to seek legal
redress in a statutory way if customary rules fail to do so. One such success was reported in
early 2016, when a Maasai woman won a court case in a succession battle with her younger
brother. The woman and her husband had separated years before and the lady had returned
to her father’s home to take care of her ageing father. In his will, the old man left a 200 acres
farm to each of the three wives, but also named the children, including the Maasai woman.
The brother disagreed and faked documents that allowed him to sell the land belonging to,
among others, his sister. She was advised to lodge a court case, which she won (Kajiado County
Press January 2016).
Conclusion
The process of subdividing group ranches that started in the mid-1980s in Kajiado County,
which made land a commodity, has brought us to a worrying state of affairs in Maasai society
whereby Maasai women are ambushing bars to hunt down so-called ladies of the night who
are accused of snatching their Maasai husbands and preventing them from performing their
duties. This is precisely the poverty we feared would spread among the Maasai as a result of
selling their wealth, i.e. their land, at throw-away-prices. The Kajiado Lands Registry has been
described as a den of corruption, where laws are broken at will. This seriously questions those
scholars propagating for individual tenure to be able to obtain loans for investment in
developments that aim to uplift the families well-being. In contrast, young Maasai boys have
become drug addicts, and some husbands are cheating on their wives by secretly selling land
using “Wives-for-Hire in order to get the consent of (corrupt) Land Control Boards. It would
be too easy to blame the current situation on outsiders and paint a picture of pastoralists
being the victims, as is often done. The Maasai community are as much culpable and has
adopted an attitude that, if not corrected soon, will result in a very bleak future.
We need to analyse this practice in a political economy setting of winners and losers
in the process, and conclude that besides the powerful in the individual family, it is the
powerful in society, be they former group ranch leaders, politicians, businessmen or high
ranking civil servants, that have taken the largest chunks of land, either as speculators or as
(co-) investors in agricultural commercial companies. These are the members of society we
found most involved in the practice of using fake wives to transfer land, leaving families in
disarray and (near-)landlessness. To short circuit family members, the broker normally
convinces the land owner to adopt a stand-in wife. In the documentation, the name of the
29
real wife appears. This raises questions about the Land Control Board meetings that sanction
the land disposal. The blind spot might be caused by a disease called corruption. A determined
effort to turn around this habit is needed and is a major challenge one that calls for the use
of all legal and policy options available. The current Kajiado governor has repeatedly
expressed his willingness to find a cure. He is championing digital registration and, for the time
being, has halted land transfers and stopped the functioning of the county’s Land Control
Boards.
In April 2016, his example was copied by the National Government, which, using the
same argument of corruption, cancelled Land Control Boards throughout Kenya. New boards
were to be installed within two weeks, however, comprising new members selected using the
two-thirds gender composition rule and restricting the period of tenure to three years,
renewable once, to eliminate cases of malpractices and complacency. Re-appointments took
longer, though, as only by 1 June 2016 a total of 17 Kenyan counties only, including Kajiado,
saw their Land Control Boards re-instated by the Ministry of Lands for a period of three years.
Besides a political will to monitor and stop these “Wives-for-Hire” practices, as well as
training programmes to educate local people on the new land laws, there is need for societal
cohesion and fairness, starting from the matrimonial alliance. Having joint ownership of land
through co-registration is only a first step to raising legal opportunities for women, albeit more
as a weapon to defend family property from a cheating husband than as a means for acquiring
capital for investment. Time will tell if the devolution of power to the counties, the most
recent protests by Maasai women and the imposition of new national and county land laws
will be sufficient steps to stop the malpractice of side-lining women and youngsters in land
matters. The previously mentioned replacement of women with men in the Selengei group
ranch members list underlines the fact that it takes more than putting in place new land tenure
legislation to achieve equal rights.
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Article
Full-text available
The Counterpoints series presents a critical account of defining ideas, in and about Africa. The scope is broad, from international development policy to popular perceptions of the continent. Counterpoints address " Big Picture " questions, without the constraints of prevailing opinion and orthodoxy. The arguments are forward-looking but not speculative, informed by the present yet concerned with the future. In publishing this series, Africa Research Institute hopes to foster competing ideas, discussion and debate. The views expressed in Counterpoints are those of the authors, and not necessarily those of Africa Research Institute. ACKNOWLEDGEMENTS
Article
A lack of easily understandable, formal property rights, Peruvian scholar Hernando De Soto argues, explains why people in developing countries have not been able to transform their (natural) resources into productive capital. His claim has been welcomed by national and international policy-makers struggling to improve developing countries' economies over the last fifty years. This chapter is based on longitudinal research carried out among Maasai pastoralists in Kajiado District, Kenya since the late 1980s. The findings seriously question De Soto's claims that formalized property rights will result in investments, the sustainable use of resources and, ultimately, wealth creation. By contrast, the opposite effect might be the rule in cases where key conditions such as reasonable interest rates, the trustworthiness of the land register, a friendly natural environment and security are not met, resulting in serious poverty for former property holders.
Conference Paper
The Counterpoints series presents a critical account of defining ideas, in and about Africa. The scope is broad, from international development policy to popular perceptions of the continent. Counterpoints address " Big Picture " questions, without the constraints of prevailing opinion and orthodoxy. The arguments are forward-looking but not speculative, informed by the present yet concerned with the future. In publishing this series, Africa Research Institute hopes to foster competing ideas, discussion and debate. The views expressed in Counterpoints are those of the authors, and not necessarily those of Africa Research Institute. ACKNOWLEDGEMENTS
Article
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