How ‘Mwambao’ concept bore coastal land problems

By Harold Ayodo

Emotive coastal land issues emerged as a result of the passing of the Land Titles Ordinance in 1908. Today, even as the wealthy construct lavish beachfront homes and hotels, ‘Mwambao’ (the ten-mile coastal strip) has never shied away from controversy.

The ten-mile strip represents a 5,480 square kilometres (2,116 square miles) of land strip from Kipini in the North to Ruvuma River in the South.

The strip covers 1,128 parcels of land in more than 80,000 hectares in Kwale, Mombasa, Kilifi, Malindi, Tana River and Lamu districts. 

Historical legal documents show that the colonial government introduced the Land Titles Ordinance to identify available land for disposal to prospective settlers.

legislation

According to the legislation, everyone who claimed land ownership within the ten-mile strip was required to make legal applications within six months.

Majority of natives ignored the call to register their ‘ancestral’ land before the more educated newcomers took the initiative. The ownership applications were to be made before the Land Registration Court presided over by a recorder of titles.

A certificate would be issued after the recorder of titles was satisfied that the ownership claims were valid. The certificate was evidence of legal ownership of coconut trees, houses, and buildings on the land.

Property lawyer Njora Waweru says the ordinance introduced a new concept of land that was unknown to locals. “The ordinance introduced a British conception of land that whatever is attached to the soil, also became part of the land,” says Waweru.

Africans at the coast, says Waweru, lost all rights to land but continued occupation as the registered landowners were absentee landlords.

In the run-up to independence in 1963, locals agitated and demanded secession of the coastal strip from the mainland as some residents of the coastal strip engaged in debate on whether or not to join the mainland.

Through correspondence dated October 5, 1963, which also acted as an agreement between the governments of Kenya and Zanzibar, the independent government of Kenya undertook to safeguard interests of the inhabitants of the coastal strip in terms of religion and practice of their faith, and their freehold land.

The agreement stated in part: “The freehold titles to land in the coast region that are already registered will, at all times, be recognised; steps will be taken to ensure the continuation of the procedure for the registration of new freehold titles, and the rights of freeholders will, at all times, be preserved, save in so far as it may be necessary to acquire freehold land for public purposes, in which event full and prompt compensation will be paid.”

Agreement

Waweru quotes from several historical sources and legal documents that on October 8, 1963, then Prime Minister of Kenya, Jomo Kenyatta, on behalf of the Government of Kenya and the then Prime Minister of Zanzibar, Mohammed Shamle on behalf of the Republic of Zanzibar and the Right Honourable Duncan Sandys, MP, one of Her Majesty’s Principal Secretaries of State, agreed to certain undertakings when Kenya became independent.

The agreements stated: “The territories comprised in the Kenya Protectorate shall cease to form part of His Highness’s dominions and shall thereupon form part of Kenya. The agreement of June 14, 1890 in so far as it applies to those territories and the agreement of December 14, 1895 shall cease to have effect.”

“The independence government undertook to respect the land titles under the colonial regime hence maintaining the status quo, which was then unfavourable to Africans,” says Waweru.

Colonial roots

Waweru says the problem of the land at the coast bears a strong connection to colonialism.

“When the Portuguese first arrived at the coast in 1500, they gained control of the entire region. Trade flourished until 1698 when the sultans of Oman attacked and conquered Fort Jesus and the entire Kenyan coast,” he says.

According to a report titled, Report of the Select Committee on the Issue of Land Ownership along the Ten-mile Coastal Strip of Kenya, chaired by M Mathai, the problem of landlessness at the coast is not new.

“Land issues at the coast dates back to the Land Titles Ordinance in 1908, which later became the Land Titles Act, which consolidated it,” says the report.

Dawning reality

After passing of the ordinance, locals continued to occupy and develop land in the belief that they still possessed property rights until the eve of independence.

“Reality struck natives at the coast when Arabs, Europeans and Asians started evicting them that they realised they were landless,” Waweru says.

According to the 1971 Coast Province Regional Physical Development Plan, there were between 75,165 and 100,000 ‘squatters’ occupying approximately 6.5 per cent of government or private land in the Coast Province as a whole.

“The number of landless people at the coast stood at more than 130,000 in 1978,” says the Coast Province Regional Physical Development Plan.

Similar statistics are detailed in a legal paper titled, Coastal Land Issues and the Way Forward, which Waweru presented at a recent continuing legal education seminar.

According to Waweru, the British and Germans entered into a treaty, which created a ‘Mwambao’ (ten-mile coastal strip) with all rights vested in the Sultan of Zanzibar.

“This was a form of bribery to the Sultan to win his support and other selected African ethnic groups for the colonisation of Kenya,” Waweru explains.

On the other side, the Sultan found a patron who would protect him and help maintain the feudal status, composed of the immense land.

“Rights over all land in the coastal strip were vested in the Sultan and his Muslim subjects after the legal agreement,” says Waweru.

Consequently, the land rights of the indigenous Mijikenda, Bajuni and other native communities that owned land based on traditional tenure systems were trashed.