WHO OWNS THE KENYA COAST?
THE CLIMAXING OF LAND CONFLICTS ON THE
INDIAN OCEAN SEABOARD

(MS Word format)

Saad S. Yahya PhD.

Nairobi
March 1998

CONTENTS
Page

INTRODUCTION 5

PURPOSE AND PROPOSITION 7

CONTEXT AND GEOGRAPHY 8

The People

Urbanisation

HISTORICAL AND NATURAL RESOURCES 9

Historical Sites
Coral Reefs
Mangrove Forests
Lowland and Kaya Forests
National Parks and Nature Reserves

LAND TENURE SYSTEMS 13

Traditional Land Ownership
Modern Land Ownership
The Mazrui Lands Act
Executive Powers to Allocate Land

CONFLICT SIGNALS 15

Rumour and Intracommunity Messaging
Litigation
Media Signals
Imagery, Symbolism and Language
Changing Ownership Patterns
Cultural Intrusion
Voiceless Youth

DISENDOWMENT METHODS 24

Techniques of Dispossession
Environmental Loss

RESILIENCE AND REDRESS 28

THE ACTIVISTS 30

SUPPOSED REASONS 31

EFFECTS 31

REFERENCES 34

LIST OF TABLES

1. Coast Province Population

2. Area Covered by National Parks and Nature Reserves

LIST OF MAPS

1. Population Distribution

2. District Boundaries and National Parks

3. Forests in Southern Coast Province

4. Cattle Population

5. Sheep/Goat Population

6. Elephant Population

ABBREVIATIONS

AFC Agricultural Finance Corporation

Cap Chapter (of the Laws of Kenya)

CDA Coast Development Authority

DC District Commissioner

DRSRS Department of Resource Surveys and Remote Sensing

Govt Government of Kenya

ICDC Industrial and Commercial Development Corporation

IDB Industrial Development Bank

KAA Kenya Airports Authority

KADU Kenya African Democratic Union

KCB Kenya Commercial Bank

KANU Kenya African National Union

KPA Kenya Ports Authority

KWS Kenya Wildlife Service

NMR National Museums of Kenya

PC Provincial Commissioner

WHO OWNS THE KENYA COAST?
THE CLIMAXING OF LAND CONFLICTS ON THE
INDIAN OCEAN SEABOARD
Saad S. Yahya

INTRODUCTION

Nowhere in Kenya has the structure of land ownership and the control of resources changed so drasticaly over the last three decades as in Coast province. The war of liberation was supposedly fought on the highlands. Yet the prize of victory was the whole of Kenya. Independence brought with it vast opportunities for the bold, the enterprising and the powerful to exploit resources throughout the length and breadth of the country. Opportunities were of course greatest in those areas, like the coast, where

a) the population was sparsely distributed and there were vast areas of seemingly empty land.

b) there was a rich endowment of natural resources such as minerals, ocean frontage, forests and tourism - compatible natural features

c) soils were fertile and water plentiful

d) land ownership was ill - defined with few demarcated and registered properties, the rest being held under communal and traditional tenure

e) the local population was friendly and well-disposed towards strangers

f) attitudes and perspectives were largely traditional and not yet awakaned to the rapacious dictates of modern commerce, and where assets (properties, industries, business) were available on the cheap from the retreating Europeans and belaguered Indians. Under the goal - guile in fact - of indigenisation it was easy for the emerging ruling elite to manipulate the land tenure system within the permissible boundaries of the law for the purpose of enriching some groups and disenfrachising others. The powers of land adjudication, plot allocation, title registration and revocation and land acquisition were selectively applied by local officials and their superiors based in Nairobi. This was not necessarily the official policy of the govenment of the time, whose avowed mission was to foster unity, freedom and economic prosperity. It was a clearly articulated hidden manifesto whose execution was facilitated by appointing district governors (provincial and district commissioners) and other top regional officials on the basis of loyalty and commitment to certain causes.

Well-meaning and laudable state policies and structures were amenable to deliberate misinterpretation and abuse. Take for instance trust land. It is an institution designed to protect rural populations from landlessness and destitution, with the county councils - supposedly democratic and responsible organisations empowered to promote the welfare and interest of their electorate - as the custodian of district resources on behalf of the local community or tribal peoples. But the legislation is silent on the definition of community or tribe. The result is that the legislation (Trust Land Act) can be misused to allocate land to people who have no connection whatever with local tribes. This problem is not peculiar to Kenya; it is universal in Africa. Settlement schemes were to be

designed and executed solely for the benefit of people - albeit Kenyans - imported from hundreds of miles away while the local poor go wanting. We will discuss in greater detail later how the distribution of natural and state benefits was done in a similar manner.

The one question that comes to mind and would need to be answered is why should such an obvious and potentially dangerous trend have gone unnoticed for so long? Why was it not checked in time? Did the people deliberately cast a blind eye? Was there a cover-up? Was there nobody to articulate these issues? Where were the intellectuals, the academics, the local leaders? Clear signals were emerging from the mid-1970s, when questions about dispossession and expulsions in Digo-land were beginning to appear in the press and in parliamentary debates.

Who were the immigrant elite who ruled the coast during the decade following independence? They were men who were hand-picked by President Kenyatta to ensure the incorporation and integration of the coast (remote, exotic, and largely Muslim if viewed from Nairobi, and certainly a former KADU stronghold) into the mainstream of Kenya's economic and social life. They were men who had served the colonial government in junior civil service positions such as clerks, district officers and teachers, with a sprinkling of university graduates. They controlled positions in the civil service (especially provincial/district administration, ministry of lands and similar key departments), state corporations, banks and the biggest employment and revenue base in the province, that is the port of Mombasa. In terms of western education they were better educated than the Swahilis (this term is used here in its wider sense to include the Miji-kenda and the Swahili - speaking Muslim population of the Coast), the Arabs and the indigenous tribes such as Digo, Giriama, Pokomo and Taita. Positions of power and influence enabled the members to gain access to choice beach plots, fruit farms, shops and hotels. Asset acquisition and development activities were facilitated by bank credits dispensed by members of the same elite. It was all done in the name and spirit of national development, a high presidential priority. The achievement of this ideal was further supported by universal respect for the president, the desire for unity, harmony and social integration; and the lure of jobs to be generated by new development. In the event the jobs never went to the locals. Upcountry employers imported labour from the native districts of the business owners and personnel officers. The local population had great faith in the civil service which was modelled on the old colonial order with its earned reputation for efficiency, fairness, balanced judgement, integrity and aversion towards nepotism and corruption. They had come to terms with the misdeeds of the British (mainly in terms of cultural dispossession) and were looking toward a period of relative peace and growing prosperity.

In the circumstances ones power, influence and capacity for self-enrichment was directly dependent on proximity or "connectivity" with the president or those around him. Apart from insider clan alliances (Kiambu versus Murang'a versus Nyeri) there was the Alliance - Makerere axis, the old colonial civil service corps, the emerging leaders in the armed and security forces. Immediately outside the caucus of trusted advisers and emissaries there was an outer ring of favoured ministers and local politicians who facilitated policy implementation and execution of presidential decrees. This set-up gives legitimacy to any action, however improper, designed to transfer resources from locals to strangers. If local leaders improve their own positions in the process, however marginally, they are not likely to upset the cart by alerting their followers to the long term threat.

Trusted suppoters and clansmen are also useful in junior positions. A building inspector in town hall could for instance smoothen the approval of controvertial building plans which would not otherwise pass muster. A land adjudication officer could conveniently put aside a few small-holdings for self, relatives, friends and superiors. A trade officer would authorise new licences and a public health inspector condone a hotel or restaurant without adequate sanitary facilities. And so on and so forth. In short, having the right to man in the right place was how to do it. Connections in the customs department, the port and income tax office carried obvious benefits. The point being made here is that under such a massive onslaught of state power, influence and coersion there was little that the Digo fisherman, Mazrui teacher or Giriama farmer could do to retain control over ancestral lands or sacred forests. It was well beyond his worldview and comprehension how the state machinery worked and why the authorities took the decisions they did.

The post-independence ideal of unity, stability, development and a non-tribal society directed venom and resentment backwards towards the colonisers. Misbehaviour by officials and dishonesty on the part of leaders were looked upon as minor misdemeanours not worthy of serious attention. As the Swahili's say, "Kuteleza si Kuanguka", i.e. to slip is not to fall. A slip of the hand or the pen could be tolerated. The region, it was believed, had to modernise, including land demarcation, expanded financial markets, rising indebtedness, wage labour instead of self-employment, cash crops instead of food, tourists from Europe, bars, casions. The focus of this euphoria was the nation rather than nationals. The development ethic was fuelled by aid agencies, bilaterals and development bankers. Sector-specific development banks were established by the government to promote the "Africanisation" of business and agriculture e.g. ICDC, AFC, KCB (a commercial bank with a strong development mission) and IDB. Multinationals were enlisted to assist with oil refining, cement production and hotel investments. The Swahili language was appropriated as the national language, with strong suggestions that it was the language of commerce with no proprietor. The argument went that there was no tribe called the Wa-Swahili. By extension the resources of the Coast were also national resources, available to everybody and belonging to none.

The 1980s saw attempts to reverse the trend, not by empowering the people of the Coast and reinstating their lost wealth, but by diverting the flow of benefits to a new class of rulers. The same methods were used to serve a different set of beneficiaries. Since the choice sites and business opportunities had already been taken, other methods had to be used to create chances. Hence the unabashed alienation of communal lands, facilities and sacred places.

PURPOSE AND PROPOSITION

The business of this paper is to analyse the origin, development and complexity of land-related conflicts on the Kenya Coast with a view to better understanding how and why such conflicts arise and hopefully even mitigate their effects. The ultimate aim is to prevent future conflicts. To reverse the effects of past iniquities would be well beyond the aspiration of any paper, however well researched. Recent events have demonstrated in a dramatic fashion that continuous monitoring of potentially dangerous official and business behaviour is essential. It is a matter of national survival rather than academic enquiry.

The principal argument is that the very values which the country's constitution seeks to preserve, that is unity and stability, are being undermined by inequitable settlement and resource exploitation policies. Conflict generators are meticulously conceived and embellished techniques of dispossession and empoverishment. These techniques are easy to monitor and even measure.

THE CONTEXT AND GEOGRAPHY

The People

The Coast Province supports about nine percent of the national population (Table 1). The coast population increased significantly from 1979 to 1989, rising from 1.34 million to 1.83 million inhabitants. This represents a 37 per cent increase. While precise data are unavailable, the rapid growth in population continues to place significant pressure on the coastal environment, its resources and supporting infrastructure. Population pressure is particularly great in urban centres such as Mombasa, the population of which has doubled in the last 15 years. Map 1 shows the population distribution. People are concentrated along a 30km wide strip stretching from Lunga Lunga in the south to Mambrui in the north; in the immediate environs of Wundanyi/Voi; in the Lamu archipelago; and arround isolated settlements in Tana River District. Vast areas inland are sparsely populated, supporting either nature reserves or a pastoral economy.

Table 1 - Coast Population

Source: Central Bureau of Statistics; Kenya Population Census, 1989, Vol.1

Each of the districts (Map 2) has at least one major urban centre. The demograhic and urbanization statistics for the coast bear a great resemblance to similar data for Kenya's other two high potential and arable regions - the Lake Basin and Central Highlands. Population growth statistics are typical of the countrywide trend. However, between 1969 and 1979 Lamu District registered a 6.9% growth rate per annum, the highest in the country (average 3.8% p.a.).

The urban population in Kenya was estimated at 19% of total population 1989 and is expected to reach the 45.7% mark in 2025. In 1989, the population of Mombasa (272 sq. km.) was estimated at 500,000 people. About 25% of this population lives below the poverty line.

Rural populations are small-holder farmers owning less than a hectare of land or pastoralists. Most are poor. In Kwale District, 22.5% of the population are landless. About 50% of this section of the population earn less than Sh. 600 per month. Rapid population growth has greatly increased the demand for land and the fruits of land. Land conflicts have become inevitable.

Urbanisation

The most urbanised part of Coast Province is the Mombasa metropolitan area. For example the overall growth of population in the Nyali-Bamburi-Shanzu area has resulted in rapid urbanisation. Large numbers of people seeking employment opportunities are moving into the area between the main road and the beach, as well as the surrounding areas. Growth in residential development has been spurred by the Nyali Bridge, conveniently linking urbanised Mombasa Island with the area. This has allowed a significant number of workers to live in the area and commute to the island for work. High-income residential developments are mostly located between the hotel developments along the beach and the main road. Inland and along the north main road, medium- and low-income residential development is increasing. Inland of the road, residential development is displacing indigenous arable agriculture.

Roads and other infrastructure development are not keeping pace with increasing development in the north coast, causing severe shortages of potable water and power. Moreover, hotels continue to develop in plots landward of the original beach hotels and are beginning to encroach on existing residential areas. This situation is complicated by an unpredictable influx and temporary settlement of refugees, creating huge demands on the meagre public facilities and degaradation of the local environment. Although there is a land use plan for the area, administered by the Municipal Council of Mombasa, development has not adhered to the plan. Decisions about land use and new development are not made according to any comprehensive analysis of current supply and future demand for municipal services (CDA 1996 p16).

Increasing commercial and residential development, urbanisation pressures and uncontrolled land use changes have placed a significant strain on existing services and infrasturcture in the area. Trends suggest increasing growth of many sectors within the area, all of which will exacerbate the public service and infrastructure problems already being experienced. Exisitng land use policies and plans have proved inadequate to mitigate the existing development impacts, and will not be able to cope with future demands. Uncontrolled development and the inability of public services and infrastructure to keep pace with development threaten the environment, continued economic prosperity, public health and the quality of life of residents. All of these factors are interwoven and affect one another. Solutions will require a coordinated and very aggressive approach.

HISTORICAL AND NATURAL RESOURCES

The Kenya coast has played an important role for over 2,000 years in East Africa when merchants sailed from Arabia in search of gold, spices, ivory and other goods. Dating back to the seventh century, Arabs settled on the coast, and built trading centres and settlements along it. The Portuguese had established trading posts along the coast since 1498 but were driven out in 1790 by the Arabs. Although many settlements have retained prominent facets of Arab culture, the coastal area has progressively integrated the distinct races of African, Asian, European and Arab people. The coastal culture has provided the country with its national language, Kiswahili. Many of the earlier trading posts have become important urban centres, including Mombasa, Lamu and Malindi.

Historical Sites

Because of its long history of human activity, Kenya's coast has an estimated 70 significant historical sites and monuments. Out of these, 58 have been designated as National Monuments and Reserves. These historical sites and monuments include isolated ruins of houses, mosques, tombs, townships - example, Gede Ruins - and fortified areas such as Fort Jesus. They also include monuments like the Vasco da Gama pillar at Malindi, and urban areas of historical and architectural importance, such as Mombasa Old Town.

The coastal habitats of importance in Kenya include coral reefs, mangroves, Kaya forests, marine and inland reserves, and historic sites. Today, they provide the foundation for Kenya's coastal economy.

Coral Reefs

A fringe reef system spans the length of the coast from the Kenya/Tanzania border to the city of Malindi, with scattered fringing reefs continuing northward to Somalia. This extensive reef system is critical to activities such as fishing and tourism. Kenya took the lead in Africa by establishing protected marine areas and today there are four marine reserves, encompassing five percent of Kenya's reef areas.

Mangrove Forests

Kenya's coastline has about 53,000 hectares of mangroves in nine species, occuring mostly in creeks, bays and estuaries. Some villages still exploit mangroves for their wood both for commercial sale and subsistence use. Depending on the size class, mangroves are harvested for their wood both for commercial sale and subsistence use. Mangrove wood can be used for building purposes, firewood or making charcoal. There are currently many proposals for the establishment of salt ponds and shrimp farms in the mangrove areas, however a number of concerns have been raised about these developments (CDA 1996 p2). Periurban mangrove forests in Port Reitz and Port Tudor (Map 3) are threatened by over exploitation, pollution (sewage, toxic wastes, oil spills, and nonbiodegradable solid waste) and urban development.

Table 2. - Area Covered by National Parks and Nature Reserves in Coast Province.

Source : DRSRS

National Parks

A significant proportion of coast province land is contained in national parks. Table 2 shows the list of parks and nature reserves as well as the marine reserves at Malindi, Watamu, Mpunguti and Kisite. The location of each is shown in map 2. Not suprisingly Tsavo is the oldest, best known and largest. The 13,686 km2 of Tsavo in the province takes up a large chunk (about 66%) of Taita District and a small portion of Tana River District. This has resulted in acute land shortage in Taita, with a high population concentration in the Voi-Wundanyi corridor and another one in Taveta. Intensive settlement along park boundaries was reported as long ago as 1982 (Eriksen et al 1996). Even now the grazing of livestock on park land is quite common. Livestock distribution maps show the presence of cattle at the western edge of Tsavo west (Map 4) and sheep/goat along the southern boundary of the Kora National Reserve (Map 5). These maps can be considered reasonably reliable since they are based on aerial counts by the Department of Resource Surveys and Remote Sensing. Tsavo West also has a sizeable concentration of elephants (Map 6) who are a nuisance to farmers close to the park. Other animals unpopular with the farmer are wild pigs, baboons, porcupines and buffalo. The normal conflicts and problems emanating from current nature conservation policies are well known and need not be repeated here. The impact in Coast Province has been particularly harsh because the people are not as vocal and aggressive as their colleagues in the Rift Valley, where park administration has come under particularly abrasive criticism. The Taitas in particular resent being hedged in by the Tsavo.

Lowland and Kaya Forests

The coastal areas contain important coastal lowland forests which support a high diversity of flora and fauna. These resources are important parts of the coastal ecosystem and also provide additional tourist destinations. The Kaya Forests of the Kenya coast are relic patches of the once very extensive lowland forest of East Africa. Today these forests are protected as sacred places and are still historically used by Mijikenda elders for prayer purposes and other ceremonies (Spear, 1978). These forests are being protected by the National Museums of Kenya as Forest Reserves, especially in the Kwale and Kilifi districts. However, many of these Kayas have been thinned out and are in danger of being lost completely.

The following are the better known coastal indigenous forests:

- Arabuko-Sokoke forest close to Malindi town. The Sokoke scops-owl
is unique to this forest.

- Diani forest which is home to rare species like the Angolan black colobus
monkey

- Shimoni forest which grows on coral rag

- Kaya forest groves which are scared to the Mijikenda community. It is estimated that over 30% of Kenya's endangered species of trees are found in these forests (WCK 1997).

- A rich collection of forests along the shores of the Tana River; here we find
endemic species of primates, four species of threatened trees and fifteen
threatened bird species.

In addition the Taita hills have 45 forest reserves with three endemic birds, plants, an endemic snake and the rare Angolan colobus monkey.

Map 3 shows forest cover in Kwale District. The forests are being rapidly depleted, with the few remaining large forest areas located quite a distance inland, well away from the major centres of population. Escalating land and timber prices and population growth will put even greater pressures on these forests.

LAND TENURE SYSTEMS

Land ownership or tenure refers to the manner in which individuals or groups in society hold or have access to land including the conditions under which such land is held. Several types of land tenure exist. Communal land tenure bestows equal rights of access to land amongst members of a given tribe (community). Membership of a family is the basis of access to land under family control while under feudal tenure access to land is given at the pleasure of the feudal authority. Individual tenure gives exclusive title to hold land to a particular person. Under English/Kenya Law land is held at the pleasure of the state.

The above forms of land ownership/tenure systems are not mutually exclusive.

Traditional Land Ownership System

The Miji Kenda, the dominant African tribe of the coast apart from the Taita, initially settled by the seashore. They were gradually pushed further inland to pave the way for Arab settlements. The term Miji Kenda describes the settlement pattern, which was based on the nine sub tribes of the people. They settled in nine fortress villages, one for each of their tribes (GOK/Gedion Were 1988). Inside the fortress villages, which were located in forests with only one exit, crop farming thrived.

The Miji Kenda believed that the earth was their mother and she was fertilized with rain by a supreme being. All members were her children and had equal rights to her. A stranger could only use the earth at the pleasure of the elders. All members were entitled to cultivate vacant land provided that no one else was tilling the land at the same time. A man who died tilling the land would leave it for the benefit of his children. Land outside the Kaya was used for cattle grazing and hunting. Everyone was equally entitled to benefit from it.

Thus the Miji Kenda practised a blend of communal ownership with recognition of individual title to cultivated land.

The Arabs who displaced the Mijikenda from parts of the seashore were predominantly Muslims. Islam recognizes individual tenure to farmland and land in trading centres; pasture, forests and water points are the properties of the community (Ummah) and are sustained from the bounties of God.

Pastrolist tribes in the arid and semi-arid zones have their own traditional systems for sharing pastures and water in wet and dry seasons. Tana River District for example has a large livestock population (maps 4 &5).

Modern Land Ownership

In a developing economy such as Kenya's where agriculture is the mainstay of the economy, land is a most valuable asset. Owing to the historical development of land laws and land reform there are three categories of land today.

1. Government Land:

This is land owned by the government of Kenya and includes land set aside for public use and forest reserves outside trust land. There is no provision for allocating such land unless the use it was set aside for is no longer a priority. Even then, it can only be availed for development if it has been planned in accordance with the Land Planning Act. Such land is administered under the Government Lands Act Cap 280 if it is registered under the Registered Lands Act Cap 300 and the Registration of Titles Act Cap 281.

The Commissioner of Lands is authorised to act for the Government in dealing with such land. The President can also exercise his discretion to allocate such land.

2. Trust Land

Formerly known as the native reserves, the land is held by the county council on behalf of the people who are ordinarily resident there. Customary land rights are of application here. The relevant Act is Cap 288 (The Trust Land Act). For a detailed analysis of the constitutional, legal and practical problems of administering trust land see Juma and Odhiambo (1996).

3. Private Land

Persons, legal or real, may hold leasehold or freehold interests in land at the pleasure of the state which can compulsorily acquire the land under the Land Acquisition Act Cap 294 and fully compensate them in accordance with the provisions of the Act.

Thus three types of land tenure exist in Kenya today. These are:-

* Customary Tenure : This applies to trust lands under the jurisdiction of the county councils except for parcels alienated to individuals.

* Freehold Tenure: Absolute title is granted to individuals by the government. Such individuals do not pay land rents once the title is registered.

* Leasehold Tenure : Leaseholds are granted by the government, county councils or individuals with freehold titles to land, for definite periods but subject to land rents, special conditions or covenants.

The Mazrui Lands Act.

The Mazrui were at one time the ruling elite in Mombasa and by extension the coast of Kenya. They alongside other Arab families owned large tracts of land in Mombasa, Kwale and Kilifi areas. Other wealthy land owners included the Busaidi family, other Omani families and Swaleh Nguru.

In 1931, the authorities registered a trust of 2,716 areas in Kilifi for the benefit of the Mazrui. Fittingly, the colonial administration passed the Mazrui Lands Ordinance. This latter became the Mazrui Lands Act which was repealed in 1989. The Standard newspaper (16th January 1990) reported that hardly a month after the repeal, there was an influx of new squatters, illegal grabbing of the land, selling of plots to outsiders and quarrying of coral blocks and murram. No compensation was paid to the trust beneficiaries.

Executive Powers to Allocate Land.

The Government through the Commissioner of Lands can allocate land that is not immediately required for public utilities. The Government can also allocate land that is required for development or use that is in the national interest. The procedure for such allocation is to prepare a physical plan and offer the land to the highest bidder at an auction which should be publicised well in advance.

Various categories of land are exempted from this procedure but the Commissioner is expected to put the public interest first in exercising his discretion.

CONFLICT SIGNALS

The ability to identify and evaluate signals of conflict - ongoing or potential - enables one to define and characterise the scope of the conflict and probably to assess possible impacts. The signals are invariably not just hard facts or tangible phenomena, but rather a mixture of truths, trends, sentiments, moods and verifiable reports of occurances. It is not difficult to monitor or even measure these signals, given a competent observer. Here are some indicators relevant to the Kenya coast.

Rumour and Intra-community Messaging.

One of the basic staples of neighbourhood and village rumour is who has sold or purchased what proprety or farm; who has inherited the land left by the recently deceased; how so-and-so lost his farm to money-lenders; why the old man down the road sold his farm to finance the eldest daughter's wedding. This is the raw-material of east African novelists and journalists, based on daily happenings in the "majengos", "ngambos", urban slums, villages and fishing settlements. Layered onto this colourful tapestry is the build-up of family conflict and superstitious beliefs. Muhammed Said Abdulla's Swahili classic Kisima Cha Giningi constructs a plot around the mysterious murder of a wealthy landowner, whose body was discovered in a Kaya-type cave shrine with inheritance as a suspected motive. Thus land conflicts, superstition and violence are closely connected in Swahili-land. Admittedly land-related murders within the family are far less common in Coast Province than in Central Province or Nyanza. But they do occur.

The build-up of resentment, dissatisfaction and disharmony are reflected through the messages exchanged in the barazas (i.e. informal conversation clubs, not the official baraza associated with government business) and mikahawa (coffee-houses); it is picked up by writers, poets and journalists. Local leaders can get involved through complaints voiced by aggrieved parties. Preachers in mosques and churches, taking the cue from the suffering of some parishioners, will start covering these inequities, knowing full well that their pronouncements will be reported to the authorities. Protests voiced through the religious establishment assume a measure of legitimacy and cannot be totally ignored.

Litigation through the courts rather than the chief or community elders is a serious step taken as a last resort. The costs are prohibitive. Both the quantity and type of litigation are important. Numbers have risen drastically over the last decade ( both actual cases and those reported in the media, which are only a proportion) for a variety of reasons, including the increasing awareness of the people, rising educational levels, competition among legal firms seeking work, and the relative breakdown of the land planning, allocation and registration systems. The emergence of socially active NGOs has also contributed to the rise in litigation cases.

The cases fall into six categories:

1. Inheritance
2. Boundaries
3. Ownership/possession
4. Environmental protection and defence of social facilities and common property
5. Change of use
6. Compensation for land acquisition

Each type will be briefly discussed below with specific examples where possible.

1. Inheritance : Arbitrary application of customary, English and Islamic laws has generated a lot of business for the courts. Customary law is evolving with the written laws, since it is recognised by the govenrment and the legal profession as an important component of family law. The Muslims on the other hand have their own courts, the Kadhi's court to adjudicate inheritance and family desputes, based on well established and universally recognised fourmulae. In fact there has been a long-running battle between the Government and Kenyan Muslims over proposed amendments to the law of inheritance, with Muslims refusing to submit to secular laws in this matter. They want the application of the sharia to be automatic in this context, rather than subject to a written will. This is an issue which is likely to develop into an ugly confrontation unless the government approaches it with tact and an open mind.

2. Boundaries : The land registration system used in Kenya is based on the registration of title rather than documents, which means that both the ownership and plot boundaries are demarcated and registered and the owner is indemnified by government against adverse claims. If the system works there should be hardly any litigation. However of late it has not worked very well. Land surveyors (licensed by law) and the Registrar have been known to demarcate and register plots with contentious boundaries. In the South Coast a common ploy of new buyers from upcountry is to purchase a small plot and then expand the boundaries many times over before registering the plot, leaving owners of adjoining land with much reduced plots. It is evident that the land registration system can work only if there are competent and honest professionals to operate it.

Boundaries next to an existing road or lane can change overnight from a road frontage to a boundary between plots, leaving the landowner without access. There have been cases of road reserves being allocated as plots, without regard to existing land owners. Here is a case reported in Mombasa:

Mr. X is the owner of a commercial property at the junction of Foundary and Likoni Roads in Mombasa Mainland South. Mr. Y is allocated the road reserve and in the process fences off the access to Mr. X's property. Mr. X has filed an injunction in court to stop the Government and the Municipal Council from allocating the land to Mr. Y and prohibit the two from granting Mr. Y a change of user. In the event a temporary injunction was granted

3. Ownership and Possession: This is where the mess is most evident. Disputes can arise between family members; business partners; legitimate owners with title who are confronted by people carrying title documents to the same land; villagers and townsmen on the one hand and developers who are allocated common land on the other; long-term settlers on trust land, which by rights is held in common, and new allotees who by virtue of their newly acquired title can conveniently label the settlers as squatters. In August 1997 residents of Takaungu, a coastal village about 50km north of Mombasa, warned of bloodshed if the Minister of Lands and Settlement did not stop a foreign private developer from occupying their beach plots. The developer had already fenced off 70 acres of prime beach land owned by the residents. Their attempts to discuss the matter with the District Officer had been in vain, leading them to believe that influential individuals were involved (East African Standard Sat, 9/8/97). This is an example of extra-judicial litigation, in that the villagers took their case direct to the Minister through the media. It probably had the potential of greater effect (the outcome is not known) than court action because the courts would have demanded proof of title which the villagers would not have been able to produce. Their claim was that the land had been allocated to them in 1990 by the government.

Another interesting case involves a hotelier and a family in Wasini, both of them in fact indigenous to the island. Wasini lies off Shimoni, about 70 km south of Mombasa, with an ancient Swahili settlement and several historical sites. The hotelier found his title revoked after a long inter-clan battle which ended up in the courts. The land reverted to its "original" owner whose family had held the property for generations, even before adjudication.

The courts themselves have been caught on the wrong foot in that as the custodians of justice and equity they must be seen to be defending the rights of the majority, irrespective of what the law says about documentary evidence to title. In June 1993 Justice Gideon Mbito declared that the court could not be hindered from granting an injunction against the government and that the government had no exclusive right to approve or annul decisions relating to private land ownersip. (East Africa Standard Friday 13/6/1997).

4. Environmental Protection and Defence of Social Facilities : Land for public facilities and public open spaces has traditionally been viewed as sacrosant, enjoying the protection of the zoning regulations as well as local government legislation which requires local authorities to provide schools, play grounds, health centres, libraries, streets, public conveniences and the like. However greed and the failure or at least decline of the two basic institutions (i.e. planning machinery and local government administration) as well as the land management function have meant that these facilities are no longer inviolate. Even land reserved for a DC's house (Mombasa), DC's office (Malindi) and the law courts (Mombasa) has been known to find its way into private hands. In June 1997 three Mombasa advocates sought a court injunction to restrain an Asian businessman from occupying, developing or transfering 0.4 acre of land which had originally been reserved (actually allocated for the purpose by the President) for the expansion of Mombasa law courts (Daily Nation Sat. 14/6/97). The Asian businessman claimed that he had purchased it from well-connected individuals, resident in Nairobi, who in turn had been allocated the land by the Government. Again, it is clear that proximity to top decision makers (referred to above as connectivity) counts and that to get prime plots on the coast one has to be in Nairobi. The Mombasa branch of the Law Society was party to the suit. It is ironical that the Asian businessman was represented by a prominent human rights lawyer, Pheroze Nowarjee. As in nearly all similar cases, a temporary injunction was granted.

Thus the process of individualisation and commercialisation of public land takes the following course:

Government's embarrassment is further compounded - but to no avail - where opposition politicians resort to litigation on behalf of their constituents. When undeveloped land belonging to public institutions in Kwale (exhibition grounds, prison, civil service club) and a public park were allocated to local politicians and quickly flipped over to a hotelier, the National Development Party threatened to go to court to restrain the hotelier from developing the land. The DC pleaded ignorance of the matter. Alleging that politicians had also been allocated land belonging to Diani Police Station and Msambweni District Hospital, the NDP official is reported to have said

The time for Kwale to have leaders who mind the welfare of their people is now. The electorate should vote in people whose interest in politics is not just to enrich themselves". Daily Nation - Thur. 29/5/97.

In the politics of self-enrichment land is a major pawn.

5. Change of use: Irregular allocations are almost always followed by change of use e.g. from public open space to commercial. There are also cases where road reserves as already discussed are converted to residential use, or where single family dwellings are converted to multi-family. An interesting case involves the owner of a house in Nyali, a posh Mombasa suburb, who objected to the adjoining owner building maisonettes (row houses) and a mosque on the grounds that the development would strain existing services and that the early morning call to prayer would interfere with his sleep and privacy.

6. Compensation for Land Acquisition : Compensation cases are few and far between nowadays, unlike the 1970s and 1980s when there were large public investments in tourism infrastructure e.g. airports and roads. In any case it is the rich who would be affected, since poor people live either in squatter settlements or rural trust land. Compensation for trust land is restricted to the value of improvements only as determined by the DC - a good indication of adequacy.

Recent litigation is therefore a good indicator of emerging issues and potential combatants. It offers limited recourse to a few people who can afford to go to court. In fact it is inimical to the interests of the poor since the court places the burden of proof on the agreived party and a likely remedy is monetary compensation for a priceless asset or amenity.

Media Signals

Can we learn anything from media reports? The answer is yes, but. Facts (accurate or otherwise) are mixed with assessment and persuasion. Journalists and editorial staff are hardly impartial when it comes to an emotive subject like land. Information is likely to be couched in readable language for popular comsumption. A few sample headlines will illustrate the point :

- FURY OVER GRABBED LAND
- HURDLES BEFORE CONSERVATION PROJECT
- LAND ALLOCATIONS WORRY OFFICIAL
- MINISTER CANCELS LAND DEALS
- PROBE CLAIM, PC ORDERS
- 400 FANS PULL DOWN WALL ON SPORTS FIELD

Not only are such headlines difficult to ignore but they also help to draw the attention of activists and defenders of the poor to follow up individual cases for further investigation and possible action. Unfortunately there are no Kenyan journalists who have specialised in land matters, like for example economic or political correspondents. The subject has not therefore received objective and analytical scrutiny. University students and researchers in land economy, tenure and law - and there are several from Coast Province are unwllling to jeoperdise their careers through unnecessary exposure.

The radio channels (effectively Kenya Broadcasting Corporation) are almost silent when it comes to reporting land matters except when a goverment minister issues title deeds to villagers or when the president orders in a public forum that the resettlement or rehabilitation of squatters be expedited. It is on the TV that one is more likely to observe critical issues and emerging problems. For instance images of gleaming hotels (complete with nude tourists basking in the sun) and unkempt beach-boys selling trinkets are juxtaposed against makuti houses near-by; so-called squatters are interviewed and take the opportunity to ventilate their pain and suffering; a District Officer demonstrates how a new project will bring development and jobs to his dominion; a harambee meeting for a new school raises only a few thousand shillings; a rusty pipeline carrying water to Mombasa from Mzima Springs runs next to a smouldering rubbish tip on Makupa Causeway. The advertisements in particular tend to emphasise the gap between the good life on the one hand and destitution on the other.

Global TV channels such as the CNN, BBC and Sky help to reinforce the status quo by emphasising the pleasures to be had by tourists in seaside resorts, Shimba Hills or Tsavo.

Imagery, Symbolism and Language

The absentee landlord, the tycoon and the developer are stereotypes which are convenient culprits for land-related misdeeds on the Kenya coast. They are terms which are invariably and indiscriminately applied to Arab and Asian businessmen without any verification of the facts. In fact an absentee landlord is more likely to be an European (English or Italian) with a beach villa in Diani, Nyali or Watamu than an Arab or Indian with land on Mombasa Island or Changamwe. There is a long tradition of owning houses separately from the land, especially in Mombasa, and landowners are anything but absent. They collect monthly or yearly ground rents personally or through agents. In the unplanned settlements landlords are Swahili, Arab or Kikuyu, with only limited participation in the market by other ethnic groups (Yahya and Nzioki 1995).

On the north coast, especially in the Kilifi-Watamu-Malindi-Mambrui corridor references to "Wataliana" are associated with Italian businessmen, investors, agents and landlords. There have even been media reports of Mafia connections and gang activity. Thus "Wataliana" has become a collective pejorative nomenclature describing all white businessmen of doubtful pedigree.

In architectural terms the "Wataliana" culture is symbolised by the steep thatch roof (without a ceiling) over exposed coral walls, copious verandah, lush bouganvellia. These villas are attractive to look at and symbolise an alternative (southern Europe/east Africa commuter corridor) life-style. From the point of view of the municipality and the government such investment represents progress, development and a leisure-based economy. However the social impacts and poverty-inducing consequences are seldom seen.

Changing Ownership Patterns

Dispossession results in impoverishment and destitution. All three are indicators of potential conflict situations. The actual techniques of dispossession will be discussed later, but for now we need to note that the initiator is either an official agency (government department, parastatal or ruling party) or private entity. Collusion between the two is also common, in that government officials (e.g. chief, DO, land officer or minister) have been known to use their position to evict people and annexe land in a private capacity. However to the observer of conflict, three factors or trends are important. First, the volume of ownership changes tells us how much land is involved and how many people have been affected. Such data are available in urban areas, settlement schemes and other demarcated zones where land is registered and transactions recorded; however this is only a small proportion of the total land area. We know for instance of the ownership changes in the leisure enclaves of Likoni, Diani, Galu, Msambweni and Shimoni in the south; Watamu-Malindi-Mambrui in the north; or the settlement schemes in Kwale (Diani), Kilifi (Magarini) and Lamu (Kenyatta) Districts. However there are vast areas of trust land where farms and buildable plots change hands informally. Rather than outright sale which has to be approved by the local land control board, transfers take place through the mechanism of rental. Such arrangements have for instance been in use in the Rift Valley for three decades, thus enabling "telephone farmers" to grow wheat and barley on land rented from Maasai tribesmen on yearly tenancies with the blessing of farm credit institutions such as the Wheat Board and Kenya Breweries. In Coast Province there are no land data on the extent of such conversion from subsistence to externally-controlled commercial farming. Another variant of this is the mining concession (for precious and semi-precious stones) in Taita/Taveta/Wundanyi.

Secondly we should be interested in the speed at which land ownership changes take place. The faster the pace the greater is the impact. The rapid growth of Ukunda, Kikambala, Kilifi and Malindi for instance could be due to the massive population displacements in the surrounding regions as land is acquired and settled upon by commercial farmers and leisure industry developers. The sense of shock and emotional stress caused by the overnight disappearance of neighbours, of ancestral icons, of familiar trees, thickets and buildings, of mosques, chapels, graveyards and other symbols of time and continuity, can be overwhelming. For example trees feature prominently in the coastal repertoire of place-names. The baobab, tamarind, mango, tangerine and lime have all lent their elegant Swahili names to places. Mkomani ( a variety of palm commonly found on the beach) in the northern suburbs of Mombasa has been supplanted by Ratna Square and assorted shopping malls. It is a matter of numbers. When towns grow at 6 - 8 per cent a year the result is that the community has to regenerate or reproduce an equivalent size of infrastructure, assets and places every ten years, either on virgin land or on top of the existing structure.

The third factor when analysing the impact of dispossession and ownership changes is compulsion. Was there any forcible eviction? Or intimidation and blackmail? Was land compulsorily acquired by government for public purposes? Although statutory compulsion is sweetened by conditions relating to fair compensation, disturbance and prompt settlement, poor people lack the knowledge and resources to take full advantage of their statutory rights. I have discussed this problem in great detail in another work dealing with land acquisition in Mombasa (Yahya 1976). Cases of forced evictions by new purchasers are common.

Squatters are a permanent feature of the coastal land scene. Ugly confrontations between the so-called squatters and land owners are reported regularly in the media, but this is only a minor portion of the problem since there are many instances of a symbiotic and mutually beneficial relationship between the squatter and the landowner. In these situations the squatter helps to look after the farm and provides labour in exchange for the privilege of cultivating temporary crops, keeping his own animals or building a house on the farm. What is distressing though is when people who have settled on trust or state land for generations are suddenly declared squatters because the land has been allocated to an individual or a public facility has to be built. For example Malindi has a long-standing squatter problem which goes back many years. This issue featured prominently in the 1997 electoral campaign. The incumbent KANU MP, who subsequently retained his seat, has among his credentials a strong record of championing squatters' rights. From time to time government promises resettlement or the issueing of title deeds but little happens in spite of the fact that rural and forest squatters appear to wield greater collective power and influence than their urban counterparts. Large squatter colonies in Mombasa - Chaani, Likoni, Mtongwe, Kisauni and Kongowea to name but a few - and several others in Malindi town seem to have been effectively pulled into the ambit of the urban economy, albeit at great economic and social cost. That is whereas land ownership and control is the primary purpose and source of security for the rural squatter, the urban squatter is motivated by access to urban services and employment. Urban squatters are pacified by slum upgrading projects, of the type successfully executed in the early 1980s in Chaani with the help of the World Bank. No such formula has been discovered by the government to help alleviate the public problems and private pain caused by rural squatting. Even settlement schemes (Bura, Lake Kenyatta, Diani, Kipini, Magarini, Gedi, etc.) have not been that successful, since it is not the local squatters who stand to benefit but immigrants from other regions. Minister of Lands Katana Ngala gave out title deeds in November 1997 (appropriately timed and placed, being weeks before the general elections) at Jumba Primary School in Malindi and he took the opportunity to announce the government would provide titles to all squatters on government land in Coast Province. He was accompanied by his permanent secretary, Mutuma Kathurima (KBC TV 15/11/97). The government had started preparing title deeds for Ramada, Aden, Kikomeni and Kikombe Tele areas. In future only genuine squatters would benefit from fresh allocations. At the same time the Minister nulllified the allocation of 100 acres of land at Malindi Sabaki Livestock Holding Grounds, then occupied by more than 2000 squatters.

Exploitation is accompanied by a general perception among the poor and even not-so-poor that the livelihood of the many is being sacrificed for the gain of the few. Because of the manner in which the media sensationalise land grabbing cases, the ensuing resentment is especially directed towards politicians and some prominent businessmen. The sale of a farm in Kwale to a hotel caused a lot of bitterness and even violence, since it displaced many local families. In another case 300 squatters in Diani have sued the Attorney General and five private developers over a piece of land which has been in dispute for four decades. The land, consisting of two parcels with a total area of 2269 acres, was allegedly bequeathed to the local Digo community when the lease expired in 1958. It probably reverted to the state, whatever that would mean in real terms.

A proposal to convert part of the Tana River Delta, a wetland of international importance, into a private prawn farm in the mid-1990s was vehemently opposed by local residents including leaders and politicians. There were also protests from leading conservationists world-wide, and ultimately the president had to intervene and cancel the project, and a national steering committee was formed to oversee the conservation of the wetland (Eriksen et al 1996).

Cultural Intrusion

The percolation of alien life-ways and values into the coastal cultural fabric has already been alluded to. The change process is a useful indicator of social disorientation and stress. One could well argue that society is enriched by immigrant communities. However there has always been a strong resistance in the coast to western education and influences from the interior. This factor, together with material dispossession, has reinforced perceptions of cultural invasion especially among the Swahilis. When familiar landmarks and ancient shrines like Kongo Mosque and numerous Kayas are appropriated by individuals for commercial development there is general alarm and sense of insecurity. On August 2nd 1997 Dr. Charles Maranga Bagwasi, Secretary General of the National Development Party demanded the nullification of illegal land allocations in Msambweni and Daraja in Kwale District. He wrote to the Kwale DC complaining that the local community had been given a raw deal, since the on-going allocation was benefitting not the rightful owners but cabinet ministers, parliamentarians and government officials (Sunday Nation 3/8/97). Two months before that, Coast PC Timothy Sirma had ordered the provincial forest officer to investigate allegations that some people were destroying forests; mangrove and Kaya forests were being invaded and trees cut down. The PC issued a strong warning, saying "we are not going to allow that to happen" and waving the stick of the law (Daily Nation 4/6/97). He warned of impending ecological disaster if forests were destroyed. He especially singled out Arabuko Sokoke and Kararachi Mpendakula forests in Kilifi District, both gazetted forests. However official concern was counterweighed by pleas by Kilifi squatters who, claiming that they had been landless since independence, urged government to degazette part of the two forests for their settlement. But they gave the government the alternative of resettling them elsewhere once and for all. Only a few weeks earlier veteran Kamba politician Mulu Mutisya, Chairman of the Presidential Commission on Soil Conservation and Afforestation had also urged forest officers to ensure that Kayas and mangrove forests were not violated by developers. It is quite evident that the Forest Department is ill equipped to protect gazetted forests in the country. In any case the demographic and economic pressure are too strong and well beyond the technical competence of foresters.

Land allocation controversion in the Tana delta and adjoining coastline are likely to cotntinue well into the next century, since it is part of the wild north" and one of the last areas where land is there for the taking. Kipini beach plots were the subject of an acrimonious exchange between elected leaders (members of parliament and councillors) and KANU activists, implicating in the process the Permanent Secretary in the Office of the President (Daily Nation Sat. 21/3/98).

Apart from the destruction of venerated forests the cultural landscape has been severely affected by the mutilation, defacement or adaptation of other cultural symbols such as ancient and historic buildings, monuments and public open spaces. For instance Mombasa's Ocean Drive was not only renamed Mama Ngina Drive but has been under severe attack from developers and church groups. To Mombasa residents the drive is more than a scenic promenade. It is practically the only public open space with a view of the ocean; it also contrains ancient baobabs and the remnants of an extinct Swahili village. Attempts to allocate the land have met with outcries from the public; nonetheless a small portion has already been developed with luxury villas and office blocks.

Voiceless Youth

In may 1997 a group of angry young people pulled down a wall which a developer had built around a volley-ball field in Changamwe. The grounds had been used for local, national and international tournaments since the beginning of this century, producing some of the best players in the country. The youth were led in the demolition effort by the area councillor and the Secretary of the Coast Volleyball Association while police on the ground, outnumbered, looked on (Daily Nation Sat. 31/5/97). Thus playing fields and school grounds are being indiscriminately allocated, depriving children and young people of essential amenities. Unskilled jobs, such as tourist guides, vendors and beach boys are becoming increasingly scarce and inaccessible to school leavers since the authorities are under pressure from hoteliers to clear the beaches. In the Malindi resort region the tourism, transport business is dominated by hotels and travel agencies, many of them foreign owned. Many jobs in the tourism industry - waiters, cooks, guides, travel staff - need sophisticated college training which is not available to local youths. The result is that these jobs are taken by outsiders.

DISENDOWMENT METHODS AND NASCENT IMPACTS

The people of the Coast have lost control of the rich natural endowments bequethed by their ancestors. Hundreds of thousands are landless or squatters, with access to neither land nor water, since routes to the ocean have been blocked by land demarcation and private fences. Fishermen have a problem getting access to the ocean. In fact this is one of the many problems taxing the minds of CDA and KWS, who have proposed the establishment of designated and protected fish landing sites. These two organisations, together with NMK are the only institutions which seem to be able to confront and analyse the problem in a reasoned manner devoid of ulterior motives. They have three things in common: a semi-autonomous status; leadership by renowned and dedicated scholars committed to the public good; and a competent planning and management capability. Government departments proper are burdened with so many impediments that they cannot effectively do their work. For example no structure/strategy planning has been done for many years. Even Mombasa does not know where it is going, in spite of an annual growth rate of 5% or thereabouts. Socio-economic and environmental data are not available except where a project has recently been implemented or is on the drawing board. There is a strong case for compiling a provincial atlas to incorporate the main types of data necessary for not only land management but also infrastructure and land use planning. The capacity already exists in DRSRS but somebody has to design the project, mobilise the funds and excite the interest of policy makers. But data can be misused, and no amount of planning can help the people unless it is accompanied by competent, effective and honest management and programme implementation.

Native observers of coast land problems believe that although there has been an undesirable (from their point of view) trend since independence, things started to get out of hand around 1988. Before that all allocations had to be considered by the DDC and plots were advertised. But there have been hardly any advertisements since 1986. Only people who have access to the higher achelons of government are allocated plots, which really means people who are from outside the province. Among the locals it is only the ruling party officials and die-hards-the so-called "Kanu hawks" - who have benefitted, while ordinary men and women are ignored. The decree promalgated in the 1970s requiring presidential consent for all allocations and transfers of land near the beach still stands, making it even more difficult for the vast majority of the people to transact in such land. The decree, an administrative fiat with no statutory basis, is prone to gross abuse by top-level officials and politicians. A welcome development is that whereas after independence allotees came from mainly one tribe, since 1978 the range of beneficiaries has been widened to include other tribes, although this could hardly be consolation to coast people.

Techniques of Dispossession.

A highly centralised system of land allocation which was the problem all along, has seemingly given way to local structures in that another presidential decree in mid-1997 provided for allocation within the districts themselves by committees of local representatives. Unfortunately the majority of "local representatives" are not-indigenous coastal people, nor are the overseers, i.e. the district and provincial commissioners. As a result the vast majority of the allotees are upcountry people. Effectively it is the provincial commissioner who allocates, while the committees merely endorse his decisions. Recent allocations show overwhelming numbers of upcountry beneficiaries, with token Mijikenda, Somali, Luo and Taita civil servants. This trend is causing alarm and resentment among local people who question the motive believed such large scale dispossession and impoverishment. As one interviewee wondered, "Is ther a hidden agenda?" No wonder that in those areas where land is largely undemarcated e.g. Mariakani, Kaloleni and the islands of the Lamu archipelago the people have rejected settlement schemes. The belief among economists and development planners that registerable title to land brings economic prosperity - almost a - truism needs close scrutiny when it comes to the situation on the Kenya coast. The whole of the coastline, from Shimoni in the south to the Somali border to the north, has been allocated. Could that have been the intention of the Trust Land Act? How are these allocations going to benefit the local communities? In Tana River there was only one title deed in 1991, owned by a prominent local politician, the rest of the land being trust or state land, hence available to the people. Now most of the beach - front land is in private lands.

The second method of dispossessing the local people and the government is to condemn a government building and sell it to a "private developer". As there are many old and dilapidated buildings in the various administrative outposts, this is an easy ploy if you can get the local provincial works officer to cooperate. It happened to Kwale Civil Service Club. These officers carry enormous responsibility on their shoulders. For instance a "part development plan" i.e. local area plan can pave the way for change of use and reallocation by the district plot allocation committee.

Yet another method used by officials based in Nairobi is to collude with local politicians and agents for the purpose of identifying "vacant" plots. Title deeds are then issued praudulently without the original owner's knowledge. The existence of dual titles is no longer a rarity and potential purchasers have to be very careful. Untitled vacant land outside villages is presumed ownerless and appropriated.

The fourth technique, of which several examples have already been given, is to privatise public facilities e.g. school land, playing fields, government farms, offices and so on. What this means is that at some future date the government will have to find the money to acquire land to provide the same facilities if currently acceptable standards of provision are to be maintained.

Fifth, the market is heavily weighted against the small, poor and probably illitrate land owner. He can easily be persuaded or even conned into selling his farm for pittance. There are agents whose job is just that. Sixth, we have already mentioned the widespread practice in Kwale district of immigrant purchasers traudulently enhancing their small plots by staking a claim on neighbouring land.

The seventh tactic is to buy out "squatters". Again the people have no choice but to accept whatever money they are offered, knowing full well that the administrative police could be mobilised any time to evict them. Poor people are easily lured with cash to give up their customary land rights.

Finally a successful developer or businessman can be deliberately provoked by creating a new plot on the road reserve in front of his property, thus denying him access. This normally results in a prolonged legal battle, but in the end he is forced to buy out his new neighbour in order not to lose more money. The allocation of road reserves is yet another indicator of not only professional ineptitude but also insensitivity to the present and future needs of society.

Environmental Loss

This brief analysis of dubious title creation methods has not touched on another parallel process which is equally harmful. The rate of environmental loss in the province is quite alarming. While detailed information can be found in recent reports and publications from KWS, CDA and NMK, the following are the main trends.

Beach Access. Members of the public and fishermen find it increasingly difficult to gain access to the beach, as already discussed above. In Mombasa nearly all fish landing sites have been allocated to KPA, KAA and private individuals. CDA and DDC are seeking solutions to the problem. Thus both recreational and economic opportunities are being severely curtailed by inadequate planing of subdivisions and allocations, and by the inability to protect existing facilities.

Urban Wastes. Solid waste, sewerage and industrial effluents are a major problem, especially in the major cities and surrounding areas, such as Mombasa, Malindi, Watamu and Lamu. Alll the solid waste from say Mombasa Island is dumped on Makupa Causeway, where reclaimed land has acquired market value and speculators have started fencing off large areas for possible future industrial use. Such land would have been better used for recreational purposes as playing fields and public parks, which are scarce on the island. The CDA has made some attempts to plant trees in the area, but a proper structure plan is needed for this unique area which combines a transportation corridor, land reclamation, mangrove forests, and the eastern extremes of Tudor estate. It is in fact the interface between two important harbours, Kilindini and Tudor.

There have also been reports of the dumping of toxic wastes imported from Europe, which poses serious threats to public health in the future.

Since only a small proportion of the urban population is served with sewerage treatment works, large quantities of sewage are released into the creekes and open seas. The result is already becoming evident in say Malindi.

Beach Hotels. Pollution from beach hotels through solid wastes, sewarage and detergents is taking a heavy toll on the beaches and fisheries. It is not in the interest of hotel keepers to invest in expensive waste management facilities, while the local authorities lack the capacity to monitor infringements and enforce the law. On Funzi Island for example it is feared by local fisheries experts that sewage from a new hotel will pollute fisheries and threaten the livelihood of fishermen. The beaches and marine life are also exposed to oil spills from passing tankers.

Mangrove Forests. It is becoming increasingly difficult to protect mangrove forests. Politicians can misinform the Lands Department and get forest allocations. For instance land under mangrove forest has been allocated in the name of the Diani Settlement Scheme. On Funzi Island 4 ha. of gazetted mangrove forest was allocated to a politician and subsequently sold to an Italian. He cleared half the land and translocated sand from a nearby beach in order to create a new beach on the mangrove swamp. When the forest officer from Kwale went to investigate the incident he was arrested and held in custody for several days. When his boss in Nairobi heard about this he sent askaris to demolish the fence erected by the Italian. Subsequent events did not auger well for the future of conservation, for the Provincial Forest Officer was transfered, the Italian produced a title deed in court to prove sovereignty and construction work was proceeding in mid 1997 in spite of a court injunction.

Kayas and Indigenous Forests. The enormous cultural and ecological significance of Kayas has already been alluded to. Their decimation deprives future generations of an important cultural asset; robs the nation of a resource rich in plant and animal life and renowned for its biodiversity; and dipletes local biomass reserves as well as weakening the ability of local communities to deal with environmental stress. The forests complement agricultural, pastoral and fishing activities. For example only certain types of trees are suitable for building boats, and those trees are becoming scarce by the day. Fortunately the omnipresent mango trunk also makes good dugouts and outriggers.

Water Catchment Areas. Mombasa's perenial thirst is well known. Its water has to come from hundreds of kilometres away. Public water sources have not been immune to wanton allocation. Lamu Town's water catchment was allocated to two companies in 1996, although it had been gazetted (Kenya Gazette Notice no. 606 of 24/3/93) as a water catchment area under the Water Act. The DC described the reserve as the town's lifeline and promised to revoke the allocation if confirmed.

Industrial Pollution. Haphazard location of industries, without adequate preparatory studies and environmental impact assessments, has resulted in extensive damage and human discomfort at the local level while promising to be an even greater problem in the future as more minerals are found and manufacturing moves out of Mombasa. Villages within a 50km radius of Mombasa are already budding industrial towns. Mazeras and Kilifi are expanding fast. Kaloleni is the unfortunate recipient of a highly polluting cement plant which showers dust and fumes over a large inhabited area. Residents have protested but to no avail. Since the authorities are unable or unwilling to prosecute, legal recource for the local people lies in civil action, and the drawback here is that if for whatever reason the court rules in favour of the industrialist/developer, there is nothing further that can be done; and in any case even if an injunction were awarded, it could be ignored with impunity.

Illegal-Reclamation. Beach-front plot owners build unauthorised sea walls to prevent erosion or to reclaim more land from creekes and the beach. This not only interferes with marine life e.g. turtle breeding areas but also distorts natural water flows and could have an impact on another part of the sea-shore through accentuated erosion or sand deposits. Such walls also prevent fishermen from beaching their boats and the public from getting beach access. Setback requirements by MMC and KWS (100ft or 37.7m) are not enforced (CDA 1996).

Finally there are the historic sites and monuments including whole built-up areas in Lamu and Mombasa, not to mention numerous strategically located beach sites. Of course developers would have to love their hands on such sites, gazetted or not, and NMK has had to be on the alert. Greater cooperation between NMK, local communities and developers could result in innovative mutually beneficial methods of exploiting the full potential of these assets (Yahya 1997).

RESILIENCE AND REDRESS

The Kenya Coast was recently engulfed in violence emanating from Likoni (Mombasa District) and spreading to Kwale District. This violence lasted about two months, claiming the lives of many and shattering an important sector of Kenya's economy. The chronology of events is as follows:

August 1997.

13/8/97

On that day13 people including 6 police officers were confirmed to have been massacred when about 100 raiders unleashed a night of terror at Likoni, Mombasa. They stole 30 guns and 5000 rounds of ammunition and later petrol-bombed the police station among other buildings. In addition they freed the people who were in police custody and kidnapped three policewomen.

The raiders were suspected to be holed up in Shimba Hills which are close by and in fear of more attacks, several Likoni residents fled Likoni Estate to seek refuge elsewhere.

15/8/97

The attackers raided the predominantly Luo slum of Maweni in Kongowea, Mombasa. Ujamaa and Shika Adabu villages were also invaded. This called for the scouring of the Simuani caves, Kaya Waa and Kaya Bombo forests where 10 members of the gang were arrested by Administration police and General Service Unit personnel.

Over the next few days, as the violence moved on north to Mtwapa, and the death toll increased, people continued taking refuge at the Likoni Catholic Church where the Kenya Red Cross Society extended aid. Some of the 69 suspects already arrested started appearing in court.

18/8/97

A Mombasa politician Emmanuel Karisa Maitha was arrested in connection with the violence as bloodshed spilled over to Kwale in the South and Kilifi District in the North. By this time, the pressure exerted on the government by opposition leaders, lobby groups and religious leaders was so great that a high level security meeting was held to draw up new strategies to counter the violence.

The violence continued as is depicted by a stampede at the church when unknown people lobbed stones into the area. By then, the death toll had risen to 36 and destruction of property continued as 400 waterfront kiosks were brought down to ashes in Malindi. By 20/8/97, the number of suspects in police custody stood at 309 including Mr. Omar Masumbuko (East African Standard August 21st 1997).

22/8/97

Raiders attacked the Likoni Catholic Church shooting two people dead. President Moi orders the police to curb the violence before issuing a week's ultimatum.

September 1997

1/9/97

Uncertainty reigned over the re-opening of primary and secondary schools in both Mombasa and Kwale districts following the displacement of approximately 100,000 people. These schools included Ng'ombeni Primary, Matuga Primary Schools and Noor Islamic Orphanage and Education Centre (Daily Nation 1st September, 1997). The Kenya National Union of Teachers said that some teachers had applied for transfers.

4/9/97

Armed raiders killed a man in Likoni while two houses were burnt down at Kona ya Mtongwe. Over the next few days six more people were killed at Msambweni and Shelly Beach.

9/9/97

President Moi's notice/ultimatum ended causing residents to flee in fear of brutal reprisals from the General Service Unit personnel. However, masked raiders staged a lightning attack at Likoni.

11/9/97

Twelve people were killed at Ukunda and Diani on the south Coast where more property was set on fire. In addition, some raiders are seen disappearing into the Kaya Kambe in Kaloleni division.

15/9/97

The death toll rose to 67 after a gang of more than 70 robbers staged a day- light raid at Mkomani and stole sh 3 million. Two people suspected to have been administering oaths to the violence perpetrators were arrested.

Soon after three churches were burnt in the Kikoneni area of Msambweni division, Kwale District. Then 68 of the 300 suspects arressted were released without being charged (Daily Nation 23/9/97).

6/10/97

Between 30 and 50 armed gangsters raided Majaoni village in Mombasa North and stole property estimated at sh. 500,000. A lawyer told of a plot in which prison warders allegedly attempted to kill some of the 170 remanded suspects whom the government (prison department) had earlier failed to produce in court. The total number of those arraigned was 204 while the death toll was 67.

31/10/97 - 3/11/97

Eight armed raiders connected to the Likoni violence, were killed and four arrested following a shootout with police in Similani caves and Kaya Bombo area of Kwale District.

THE MAIN ACTIVISTS

To date, there has not been any suspect proven in court to be a perpetrator of the Coast violence. Therefore those mentioned below are but suspects or persons mentioned in the media as having some connection with the events.

a) Ex-Servicemen and Former Policemen

These are suspected to be behind the Coast violence. One of the reasons given is that the marauding mobs attacked with military precision. The ex-servicemen alleged that their families were harassed by policemen who were holding more than 30 ex-servicemen as on 20/8/97 (Daily Nation 20/8/97).

Mr. Omar Masumbuko , the self-styled chairman of the Coast Youth for Kanu was arrested on 20/8/97. The prison department failed to produce him in court on 3/10/97. He was charged with robbery with violence, burning the Likoni Police Station and taking oaths that bind him to kill when called upon to do so. A Ugandan newspaper "The Crusader' claims that his real name is Ali Mulungi, a Ugandan who served in the army of the deposed dictator Idi Amin.

b) Mr. Emmanuel Karisa Maitha

He was a Mombasa based Kanu politician charged with possession of offensive weapons and preparing to commit a felony. He was remanded in custody twice due to a withdrawal of a 'habeas corpus' application. On 9/9/97 he was moved to Manyani prison which is in a remote semi-arid area about 200 kilometres from Mombasa. He had been arrested in Mombasa on 18/8/97. On 19/9/97 he was released on a sh. 2 million bail and two surities of the same amount.

c) The following were arrested for allegedly being involved in the violence
on 16/8/97.

Safina founder Member - Mr. Mohamed Khelef Khalifa
Chairman Human Rights Commission Coast Chapter - Prof. Al- Amin Mazrui.
Chairman of National African Democratic Union Party - Mr. Ali Chizondo.
Imam of Masjid Jihad - Mr. Hamisi Juma.

Mr. Khelef Khalifa and Prof. Al- Amin Mazrui were granted a bond of sh. 100,000 with a similar surety but Mr. Chizondo faced a capital offence which was unbailable.

On 7/9/97, the magistrate ordered the officer commanding Shimo la Tewa Prison to take Mr. Ali Chizondo and Imam Banda to hospital.

d) Other suspects included Mr. N. Biwott, a cabinet minister and Mr. Rashid Sajjad a nominated MP and assistant minister who were accused in parliament on 20/8/97. Mr. Sajjad defended himself and Mr. Biwott made a personal statement in answer to the allegations.

Several months later on 20/3/98 a 95 year old traditional medicineman appeared before the Mombasa Senior Resident Magistrate accused of administering an oath to Omar Masumbuko and his colleagues binding them to kill; of robbing a police constable of a rifle and ammunition; and setting ablaze Likoni Police Station and other government buildings.

The Law Society of Kenya had already written to the Attorney General urging them to prosecute those responsible for the raids; it would otherwise seek justice through other means. The Mombasa Catholic Bishop John Njenga also called on the government to arrest and prosecute those implicated (Daily Nation 13/1/98).

SUPPOSED REASONS

The general view is that the violence was a political move spurred on by socio-political pressures. This was deduced from the fact that the marauding raiders tended more to inflict pain rather than to steal. The following theories have been forwarded:

Firstly, the violence may have been a fight for Majimboism (federal government) as indicated in various leaflets circulated in the area written 'Majimbo juu, pwani kwa Mijikenda' (Daily Nation 25/8/97), i.e. Long live Federalism, the Coast is for the Mijikenda.

Secondly, witnesses interviewed confirmed that the raiders aimed at flushing out all non-coastal people (Sunday Nation 17/8/97).

This was reportedly due to 'land grabbing' or acquisition of coastal land by well-connected non-coastal people at the expense of the local people who were rendered squatters on their own land. Employment opportunities are also slim for the local people as the government has not set up as many training institutions as they have in non-coastal regions. Therefore the skilled workers from up-country are at an advantage. In addition coastal land owners from up-country set up businesses but do not employ the locals. They import labour from their home areas.

Thirdly, the Opposition blamed the government for masterminding the wave of violence in order to derail the pressure for constitutional reforms thus forestalling the constitutional debate that was going on at that time. Slogans painted on walls near Matiga pointed to a political motive exacerbated by tribal and land tensions (Sunday Nation 17/8/97).

EFFECTS

Many innocent people were killed and others seriously injured. In total over 70 people died in the orgy of violence including policemen, civilians and raiders. Thousands of people were rendered homeless as their residences were destroyed or burnt down by the arsonists.

The tourism industry suffered drastically following live coverage by international media of the Likoni attack. For instance at least twelve tourist hotels in Malindi closed down as tourists left abruptly or cancelled their reservations. Other hotels were burnt down. Domestic tourism suffered just as much as international tourism. Losses of at least sh. 1 billion were incurred in the industry in August and September (East African Standard 16/10/97).

There was an increase in crime and there was no place to report crime.
Apart from Likoni other police stations were torched whilst traffic police were removed for three weeks from the Ukunda - Likoni road thus letting matatu (taxi) operators rule (Daily Nation 1/9/97).

Local people lost confidence in the security system as the police were unable to quell the violence immediately. Residents also complained of police harassment and alleged brutality.

Some economic effects/results of the violence include :

¥ Business premises were destroyed thus halting some commercial activities.

¥ Public transport, telephone services and other utilities were
disrupted.

¥ Matatu fares and grocery prices shot up in Kwale following
the disturbances.

¥ There was a low turn-out at the Agricultural Society of Kenya show which is normally a landmark event in the Mombasa business and social calendar.

¥ More than 100 hotel workers were suspended or sent on
leave due to booking cancellations. Thus temporary/seasonal
unemployment was experienced.

These were the immediate effects which touched the daily lives of the people. At the political level however the violence signalled the arrival of a new era in coast politics. Not only did large numbers of up-country people leave the affected areas, thus tipping the balance of electoral power in favour of KANU, but a new awarenes and militancy was aroused among the Miji-Kenda, especially on the south coast. A new federalist political party called Shirikisho was formed by Digo and Duruma intellectuals, and although registered barely a month before the Dec 20 1997 elections, it managed to mobilise so much support that KANU's prospect in the region appeared quite poor. In the event Shirikisho bagged the Likoni seat and narrowly missed another two.

The analysis of the 1997 general election results is beyond the scope of this paper. The point being made is that the land question contributed significantly to the new coast politics, a situation which has in fact just unfolded and whose long term effects are not certain. The forces behind the 1997 conflicts will probably never be known, in spite of vigorous efforts by the Law Society of Kenya, which mounted its own investigation and urged the Attorney General to prosecute the Mombasa businessmen and four politicians (Daily Nation 13/1/98) thought to have been involved. The Law Society threatened to take private legal action if the AG failed to act.

Transgenerational justice demands that the circumstances fuelling potential conflicts be corrected. Massive dispossession, environmental loss and destruction of cultural assets have to be arrested and even reversed. The very institution of trust land has to be revaluated and such questions asked as, who should be the trust beneficiary? Have the trustees done their job well? How can the concept of trust be reconciled with freedom of movement and of settlement? Are trusts incompatible with equitable investment and development? Are private trusts feasible? There could well be a case for empowering the county councils to manage all land within their boundaries, and in the process restricting the powers of the Lands Department and the district administration. Thus the councils would have the power of preparing land polies, strategies and land use plans for the whole district as well as implementation. At the same time CDA, KWS and NMK will have to assume even greater responsibility in terms of advocacy and facilitation. For now they are the people's experts and defenders.

Continuation of present policies and practises will almost certainly trigger similar turbulence on the north coast, which is a much longer and more complex stretch. There are several potential conflict zones which need individual and localized attention e.g. the Gede-Mambrui-Magarini triangle, Witu, Lamu mainland and archipelago, and the Tana delta. If we move inland, the future of the Tsavo National Park needs to be re-evaluated in the context of the land needs of the Taita.

Further conflicts must be expected within Mombasa itself, which is growing at a pace far in excess of the city's capacity to provide jobs, housing, school places and other services. The urgly cycle of invasion, evictions, court injunctions and media images of homeless families will become a common occurance, as it is in Nairobi.

All these trends call for greater policy making, planning and monitoring capacity in central and local governments. They also place a special burden on the civil society and scholars, the burden of observing, recording, analysing, prognosticating and warning. There is no sign that is happening.

REFERENCES

Coast Development Authority 1996. Towards Integrated Management and Sustainable Development of Kenya's Coast : Mombasa CDA.

Daily Nation. (various dates) Nairobi.

East African Standard. (various dates) Nairobi.

Eriksen Siri et al 1996"Land Tenure and Wildlife Management" Juma C. and Ojwang J.B. eds. In Land We Trust, London: ed Books.

Kenya 1995. Statistical Abstract. Nairobi: Government Printer.

Kenya 1991. Population and Human Resources Development Planning in Kenya. Nairobi. Ministry of Manpower Development.

Spear T.T. 1978. The Kaya Complex: A History of The Mijikenda Peoples of Kenya Coat to 1990. Nairobi: Kenya Literature Beareau.

Were Gideon ed. (undated). Kilifi District Socio-cultural Profile. Nairobi: Inst for African Studies

Wildlife Clubs of Kenya. Komba, no.2 1997.

Yahya S.S. (forthcoming). Taming Delinquent Markes: An Analysis of Unregulated Housing Submarkets in Kenya. Helsinki: Helsinki University of Technology.

Yahya S.S. 1976. Urban Land Policy in Kenya. Stockholm: Royal Institute of Technology.

Yahya S.S. 1997 "Conservation and Developer: Friends or Foes?" Proceedings of The International Workshop on Urban and Monuments Conservation. May 1997 National Museums of Kenya, Nairobi.