Law, Land and Identity: Property and Belonging in Colonial Kenya
| Author | Amelia Hopkins |
Law, Land and Identity:
Property and Belonging in Colonial Kenya
Amelia Hopkins*
I. INTRODUCTION
This Article explores the relation between the British colonial presence in Kenya
and the complex negotiations of cultural identity that accompanied it, with
specific reference to the understanding of the law of property, and of
dispossession and displacement. This is discussed in terms of hypotheses about
the experience of the Kikuyu ethnic group, and the Mau Mau uprising. It is
argued that the Mau Mau revolt was neither a race war, nor a heroic nationalist
movement for independence.1 It was, rather, a struggle for identity, spurred by
the loss of land entailed by colonial legislation that underpinned ‘lawfare’2 and
explicit and tacit violence. The unrelenting colonial pursuit of territoriality
resulted in the creation of Kikuyu reserves, forced residence and labour on
European farms, leaving the Kikuyu humiliated and as insecure tenants of their
own traditional property, threatened by further loss of their cultural and
personal identity. The rebellion that followed can be seen as an attempt to
restore and reshape that identity, for which the relation between property, and
individual and group identity, were crucial.
Reliance shall be placed on socio-legal research, human and critica l geography,
and psychoanalytic theory, to argue that an understanding of colonial
dispossession and alienation requires the legal notion of land to be more deeply
conceptualised. Ones’ expe rience of land is far more complex and diversified
than a traditional understanding of property law would propose; the latter
imposing an analysis of land as a neutral asset of possession. In order to
correctly understand the impact of the colonial encounter in Kenya, land needs
to be thought of as space for self-realising action, in which identities are
continually formed and reconstituted. Once land becomes theorised as
* Amelia Hopkins studied for an LL.B at SOAS, University of London.
1 C Rosberg and JC Nottingham, The Myth of ‘Mau Mau’: Nationalism in Kenya (East Afr ican
Publishing House 1966).
2 Nicholas Blomley, ‘Law, Property, and the Geography of Violence: The Frontier, the Survey,
and the Grid’ (2003) 93(1) Annals of the Association of American Geographers 121, 128.
140 Law, Land and Identity: Property and Belonging in Colonial Kenya
www.soaslawjournal.org
constitutive of social relations, we see that what was of concern for the
indigenous Kenyans was not simply property and its relative rights, but the
issue of belonging – the role of place in the constitution of social and cultural
identities, and hence questions as to which identities should be reinforced,
which should be considered out of place, and ‘how the space is to be oriented in
the future’.3
This understanding of property and belonging suggests that land is implicated
within broader networks, giving the law of property substance through the
way in which it regulates people’s activities in space and the way this relates to
their self-representation and identity. The laws regulating property have far-
reaching effects, with the ability to reinforce, o r damage, people’s sense of their
identity and orientation within particular spaces or places. Colonial law
established a foundation of ownership for colonial settlers, against which
stands the indigenous sense of belonging, home and place ‘in its
incommensurable difference’.4 Although much of the research relied upon is
historical, the issues raised should not be viewed as belonging to an era of
history that has now ended – indigenous subjectivity continues to ‘unsettle’5 the
spaces of postcolonial areas such as Kenya.6
This Article will begin by discussing how one may understand property and
the power to exclude as situated in the context of belonging and contextual
continuity, enabling an exploration of the effects of property on identity. It will
then move to discuss the colonial reconstruction of space in Kenya and the idea
that property served as a tool of governance through the ways in which the
British controlled space, and thus where people were allowed to go, and what
they were allowed to do, with far reaching implications for individual and
collective identity.
With specific reference to the Kikuyu ethnic group, this Article will discuss the
contradictory feelings of belonging held by the settlers and the indigenous
residents, with English property law forcefully disseminated to suppress the
latter. This ‘legal’ dispossession is discussed in relation to identity and
3 Sarah Ke enan, ‘Propert y as Governance : Time, Sp ace and Belongin g in Australia’s North ern
Territory Intervention’ (2013) 76(3) Modern Law Review 464, 486.
4 Aileen Moreton-Robinson, ‘I Still Call Australia Home: Indigenous Belonging and Place in a
White Postcolonising Society’ in Sarah Ahmed (ed), Uprootings/Regroundings: Questions of Home
and Migration (Berg Publishing 2003) 23.
5 Sarah Keenan, ‘Subversive Property: Reshaping Malleable Spaces of Belonging’ (2010) 19(4)
Social Legal Studies 423.
6 Interview with Dr Christian Turner, British High Commissioner in Kenya (London, 24
February 2014).
(2014) Vol. 1, Issue 1 Amelia Hopkins 141
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selfhood, with the settlers developing colonial law to ascertain their identities,
to the detriment of the Kikuyu and their various constitutions of self-
representation.
The Article will continue to argue that in order to produce a perceived
hegemonic self, the Mau Mau insurgency transpired as a violent negotiation of
collective identity, inextricably linked to property and the sense of belonging.
The Article will conclude that the Mau Mau uprising demonstrates that the law
of property has a deeper dimension, as it plays a significant role in the
processes by which we assign meanings to our own perceptions and
behaviours. It will therefore suggest t hat the law must engage more deeply
with the spatial to comprehend its centrality, requiring a re-articulation of law
itself.
II. (RE)CONCEPTUALISING PROPERTY
This Section sets out the ideas and unde rstandings of space that will be relie d
upon throughout the Article, discussing legal and philosophical work to
explore the concept of property, and the power to exclude, moving to discuss
its implicatio ns and connections with individual and collective identity. It will
discuss the ways in which property may be understood and will draw on
Hegelian and Lockean theory to situate the self in particular networks and
relations of ownership, allowing us to reconceptualise property centred on
belonging, which fo rms the basis of our analysis concerning the colonia l
encounter in Kenya and the Mau Mau uprising.
Despite exhaustive and extensive legal and philosophical work, ‘property’
remains difficult to define. Indeed, theorists such as Waldron have asserted that
property is an essentially contested concept.7 There is, however, some consensus
that, most significantly, property gives the subject the power to exclude. Thus,
Merrill asserts that ‘the right to exclude others is a necessary and sufficient
condition of identifying the existence of property’. 8 The works of Cohen ha ve
embraced the analysis of those such as Demsetz to argue that the essence of
property is ‘always the right to exclude others’.9 The key to property therefore
lies in the in rem nature of the right to exclude – property is ‘good’ against the
7 Jeremy Waldron, The Right to Private Property (OUP 1990).
8 Thomas W Merrill, ‘Property and the Right to Exclude’ (1998) 77 Nebraska Law Review 730,
731.
9 Adam Mossoff, ‘The False Promise of the Right to Exclude’ (2011) 8(3) Econ Journal Watch
255, 256.
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