Towards the Systematic Individualization of African Land Tenure
| Published date | 01 October 1959 |
| Author | L. Branney |
| Date | 01 October 1959 |
| DOI | http://doi.org/10.1002/j.1099-162X.1959.tb00145.x |
Towards
the
Systematic
Individualization
of
African Land
Tenure
The
Background to the Report
of
the Working Party
on African
Land
Tenure in Kenya
by L.
BRANNEY,
African
Studies
Branch,
Colonial
Office
ELSEWHERE
in this issue1
an
account is given of the
Report
of the Working Party
on African
Land
Tenure
in
Kenya
(1957-58) which awriter in the
Journal
of
African
Law
has described as
"an
historic
document".
As the first compre-
hensive
attempt
to prescribe in detail both the practical means for
the
conver-
sion of native 'communal'2 tenure into one of individual title
and
amodern
substantive law to give effect to this
and
govern such tenure thereafter, it may
well prove so. A glance
at
the
long history
of
this question in British colonial
policy
and
in
Kenya
in particular, certainly lends support to this view,
and
the
present article is intended to provide abackground against which the Working
Party's measures can be seen in their historical perspective.
I t is well known
that
for most of the time
during
which we have
had
responsi-
bility in the African territories (and for
that
matter, in other tropical territories
as well) it has been consistent British policy not to interfere with, or even
encourage change in the indigenous customs
and
manner
of life, personal or
religious, social or economic, except where they were clearly
repugnant
to
Western conceptions of justice or morality; so
much
so in fact
than
an
Indian
critic has recently averred
that
this "religious
and
social neutrality of the
British Government has stood in the way of effective legislation" for the reforIll
of
many
important
matters in these fields.P
In
the earliest days, however, this
was
not
so
and
'advanced'
ideas were boldy advocated, especially in regard
to
the
native tenure of land,
and
indeed, in this
particular
field, they have
commanded
much
support since.
In
the
early days
it
was the policy of both
the home government
and
colonial governors to encourage
and
facilitate
the
development of individual or (as it was sometimes called) personal title
for those natives who aspired to it or showed economic enterprise.
This
attitude
was no
doubt
in
part
areflection of
the
deep-seated belief in property of 19th
century England, combined
of
course with its similar belief in individualisIll
as the key to economic progress. This
attitude
was strikingly reflected, though
perhaps unconsciously, in a Colonial Office letter to
the
Foreign Office in
1894, referring to the limitations
under
which its
land
policy
had
to operate
in backward dependencies whose inhabitants
"had
not
acquired
the
ideas of
full private dominion in the soil or in
the
minerals
under
the soil which are
---------------------------------
1
P.2
15.
2
The
term
communal
tenure
is really
both
inaccurate
and
misleading. Cases
of
real communal
tenure
are
exceedingly
rare
in history.
Tenure
has practically always been individualized
a~~
what
is really
meant
is
communal
ownership.
The
term
has arisen by its adoption from
~nghs
I
law in which historically (and still theoretically) no
land
can
be owned except by
the
Km~.
AI
interests
are
therefore technically tenures (even now the so-called
landowner
is
technJc~!y
a
"tenant
in fee simple")
and
the
term
therefore describes all interests from
outright
owners IP
downwards.
3K. M.
Pannikar,
"The
Afro-Asian States and
their
Problems",
London,
1959.
208
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