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

Human Organization, Fall 2003 by Mackenzie, A Fiona D

Prior to colonialism, security of tenure in Murang'a depended on the resolution of two sets of tensions. The first was between individual and collective rights to land of the (male) kinship group and the second was between women, as wives and producers but nonmembers of the kin collectivity, and men, nonproducers (as far as basic crop production was concerned) yet members. Rights to land were, in both situations, subject to negotiation. Under colonial rule, customary law provided the means through which individuals or groups, differentiated by race, class, and gender, negotiated access to and control of land. Contradictory recreations of customary law allowed, on the one hand, the state to alienate African land for settler agriculture. Here, customary law became an "ideological screen of continuity," a "language of legitimation" (Chanock 1985:59,4). It may have provided the political space through which Africans resisted colonial rule, but the reworking of customary land law by African men privileged not only male rights to allocate land, but also the interests of wealthier men. As use rights were silenced in this dominant discourse of customary tenure, poorer men lost out, but so did women. Their use rights became increasingly invisible in the growing conflict defined by race and class. It was not a matter of women's, or of poorer men's, total exclusion from rights sanctioned by custom, but their tenurial security decreased and customary land law then provided the symbolic means through which they constructed a discourse of resistance. Customary law was and remains a means through which people, differentiated inter alia by race, class, gender, or age, assert rights to land. Rights to land under such law are malleable and manipulable and are continuously recreated in the resolution of conflict (Mackenzie 1998).

Customary land law does not simply disappear with the introduction of freehold tenure or the establishment of contract production regimes. Research in Murang'a, based on my collection of oral agricultural histories and the analysis of archival material, demonstrates that the new system of tenure-the consolidation of land and then its registration in individual freehold title, imposed by a colonial regime in the 1950s-does not preempt existing rights. Rather, what emerges is a complex picture in which people contest rights to land by drawing-as exigency demands or as financial resources dictate-on whichever legal resource they can. And while it may indeed be the case that women's tenurial security is compromised in situations of legal plurality, and that even where they hold a title deed, they may not be able to exercise tenurial rights to land they "own," evidence suggests that women are highly resourceful in securing their rights (Mackenzie 1990; also, see Davison 1988). Two instances, drawn from personal narratives collected in Murang'a in the 1980s, indicate something of the complexity of the struggle.

In the first, Wacheke and her dying husband recognized her vulnerability in maintaining rights to the land when only their three daughters and no son had survived childhood. Her husband's stepbrother, Bibia, had sold his inheritance soon after land reform and wanted to acquire this land for his son. He was ready to claim it, on his stepbrother's death, on the grounds of "customary" practice (i.e., of ensuring that the land remained in the patriliny). To prevent Bibia from "snatching" the land, Wacheke and her husband decided that she should "marry" a woman with sons. An elderly man explained the political import of this practice of becoming a female husband as follows: