Land tenure and biodiversity: An exploration in the political ecology of Murang'a District, Kenya

Human Organization, Fall 2003 by Mackenzie, A Fiona D

Distinguishing between rights of access and control and recognizing the complexity, elasticity, and overlapping nature of such rights, leads to a more nuanced understanding of the relationship to land of people differently positioned with respect to gender, age, wealth, or ethnicity, for example. This distinction is also vital, Okoth-Ogendo (1978:508) argues, in understanding how women's proprietary right in many societies was recognized under customary land law. The separation between rights of access (use rights), the right to allocate (understood by the right of control), and the subordination of the latter right to the economic functions to the former, secured women's "proprietary position" (Okoth-Ogendo 1978:508) in economies that depended so heavily on their labor.

The distinction is also critical in exploring questions of security of tenure, which, particularly in situations where customary law prevails, rest on the resolution not only of rights of access and control within the household, but also of the latent tension between interests of the collectivity and of the individual. Tenurial rights frequently have to do not just with rights of individuals to particular parcels of land, but also rights to land held in common (i.e., land that falls within the territorial jurisdiction of the kin group). These categories of rights may change seasonally or over time as agricultural land reverts to fallow or bush (Leach 1994). Rights to common land may also change through various individual tenure-building practices. Thus, for example, rights to gather nontimber forest products to which the collectivity has use rights may be altered by bringing specific trees or wild food and medicinal plants under individual control-either through clearing the vegetation around them or, in the case of wild plants, by transplanting and domesticating them (Leach 1994: 149-153). Further, in understanding tenure relations, it may be necessary to recognize that farmers differentiate between land and tree tenure and that there are frequently sanctions against women planting trees where these are considered territorial markers.

These rights may be customary, but, as substantial research has demonstrated, that does not mean they are beyond the realm of political struggle. Historically deep analyses of customary law in Africa give incontrovertible evidence of the degree to which custom provided the symbolic resource, or the discursive means, through which people struggled for control of land under colonial rule. People, differentiated by class and gender, claimed custom as a strategic and symbolic resource in the local struggle over land as this contest interrelated with the colonial state's efforts to legitimate its rule (Chanock 1985; Glazier 1985; Moore 1986). My research in Murang'a District, an area of smallholdings in Central Province, Kenya (Mackenzie 1998), illustrates how customary law prior to, as well as during, colonial rule was part and parcel of social change and political struggle.