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									Divergent attitudes towards property rights security: the
making and unmaking of institutions in Kenya

Ato Kwamena Onoma
Assistant Professor
Department of Political Science
Yale University

This paper is drawn from a forthcoming book from Cambridge University Press titled Making
and unmaking property rights institutions. Do not circulate. Do you not cite without the author‟s

                                      Page 1 of 31
      Why do political leaders handle institutions that govern property rights in land in
      divergent ways? This paper exploits a case of path switching by postcolonial
      Kenyan leaders who first reinforced and then subverted property institutions in
      two periods of the country’s history to clarify leaders’ preferences towards
      property institutions. Differences in how leaders use land explain their preference
      for strong institutions that guarantee security or weak institutions that perpetuate
      insecure property rights. In early Kenya political leaders involved in the
      productive use of land for agriculture, real estate development, etc., found secure
      rights advantageous and so invested heavily in them. Later, leaders seeking to
      exploit land non-productively by exchanging it for political support, using it to
      influence the voting character of constituencies, etc. found the flexibility afforded
      by weak property institutions invaluable. They thus launched damaging attacks on
      the institutions they had earlier invested in creating. Beyond providing two cases
      for comparison, the path switching here enhances internal validity by allowing us
      to hold constant many potential explanatory factors that largely remain constant
      over the two periods. The clarification of preferences done here has implications
      for literatures on property rights, institutional reform and the transaction cost


       Why do political leaders handle institutions that govern property rights in land in

divergent ways? Increasing demand for raw materials, mineral exploitation, climate change,

population   growth    and   rapid   urbanization     have   instigated   land   scarcity and   the

commercialization of land in many African societies. While some leaders have created strong

institutions that govern property rights in land in their bid to harness these benefits, others have

neglected or even undermined these institutions in their bid to exploit the new opportunities. In

Kenya a new crop of postcolonial state leaders invested heavily in creating and strengthening

title registries, land adjudication mechanisms, survey departments, land control boards etc.

during an early period of the country‟s postcolonial history (1963-1990: Early Kenya). In a later

period (1991-2000: Late Kenya) state leaders fundamentally undermined many of these

institutions. I use this cross-temporal divergence in how Kenya African National Union (KANU)

                                       Page 2 of 31
party-affiliated leaders, who ruled Kenya from 1963 to 2002, handled these institutions to

explain why some political leaders invest in strengthening institutions that secure property rights

in land while others neglect or subvert these institutions.

        This explanatory project is important because it gives us insight into the broader question

of why global processes such as the movement of goods, people and capital that fuel the

commercialization of land coincide with socio-political stability and economic growth in some

societies, but with lack of economic growth and socio-political instability in other places.

Property rights institutions are some of the foundational elements of political order in any

society. They have been heavily implicated in discussions of the economic performance of

developing countries as they impact the ease and profitability of various economic activities.

Further, property rights in land are of major political consequence. Disputes over land rights are

a major contribution of various levels of civil disorder in countries including Cote d‟Ivoire, D. R.

Congo, Zimbabwe, Nigeria, Ghana, Kenya, Sudan and even China. Institutions that govern

property rights in land also have implications for human rights. Efforts at securing land rights are

seen as important for severing the bonds that tie poor people to powerful patrons that they

usually depend on to protect their land rights.1

        Differences in how political leaders used land in these two periods of Kenyan history

explain the divergent ways in which they handled property rights institutions. Leading politicians

and bureaucrats in the early independence period exploited land in productive ways as they

became heirs to the agricultural, real estate and tourism concerns of many white settlers who left

 Nelly Stromquist, “The impact of structural adjustment programs in Africa and Latin America,” in Gender,
education and development: beyond access to empowerment, Christine Heward and Sheila Bunwaree eds. (London:
Zed Books, 1999), pp. 17-28.

                                          Page 3 of 31
the country as it moved towards independence in 1963.2 Their exploitation of land in a

productive manner gave them a deep preference for an environment of secure property rights

akin to those of earlier European settlers. They used their high levels of capacity to reinforce

property rights institutions. But by the 1990s many KANU government officials facing

increasing pressure during the era of re-democratization began to exploit land in unproductive

ways. They began to extract benefits from land in ways that were divorced from the productive

use of land. This included using property rights to influence the voting complexion of

constituencies, exchanging land for political support, and filling their war chests for short-term

political action through fraudulent multiple sales of the same piece of land. To undertake and

profit from these activities, they needed the flexible environment that weak institutions allow for.

They thus launched a spectacular attack on property rights institution.

        The original contribution of this paper lies in its use of how elites extract value from land

to clarify varying preferences for secure or insecure property rights. By exploring differences in

how elites exploit land and linking these different modes of exploiting land to property rights

institutions, I develop an argument that shows why some political leaders but not others benefit

from and so prefer an environment of secure property rights in land. This theory departs in a

fundamental way from dominant market efficiency and revisionist accounts of the origins and

transformation of property rights institutions, which hold that rising land values will create a

universal preference for security among land market participants.3 Persisting insecurity in areas

 James Gatanyu Karuga, Land transactions in Kiambu. Vol. no. 58, Working paper (Nairobi: Institute for
Development Studies University of Nairobi, 1972, p. 15; and Peter Anyang' Nyong'o, “State and Society in Kenya:
The Disintegration of the Nationalist Coalitions and the Rise of Presidential Authoritarianism, 1963-1978,” African
Affairs 88 (351-1989, p. 247.
  Harold Demsetz, “Toward a theory of property rights,” American economic review, 57 (May 1967), p. 350;
Douglass Cecil North, and Robert Paul Thomas, The rise of the Western world; a new economic history.
(Cambridge: University Press, 1973), pp. 19-23; Kathryn Firmin-Sellers, The transformation of property rights in
the Gold Coast (New York: Cambridge University Press, 1996), pp. 11-12; Robert Bates, “Contra Contractarianism:

                                              Page 4 of 31
experiencing rising land values are put down to supply-side problems such as weak capacity and

distributive conflicts. Here, I show why rising land values do not always spawn preferences for

property rights security among leaders. I point out the significant implications of this re-

examination of the preferences of leaders for literatures on the transaction cost economics and

institutional reform.

Study design, data sources and outcomes

        The temporal comparison done here using national units of analysis exploits a case of

path switching by Kenyan leaders. Compared to cross-national comparison, path switching is

particularly good at increasing internal validity in causal analysis. It offers controls for many

potential explanatory variables that remain constant before and after the switch, allowing the

researcher to focus on the causal weight of changing factors. National ruling elites owned vast

tracts of land in both early and late Kenya.4 The Kenyan state‟s heavy dependence on huge

agriculture and tourism sectors that are both land intensive ran through both early and late

Kenya. Further, with its more diverse economy, strong Western financial support, and lack of

civil wars and military intervention, Kenya escaped the drastic decline in state capacity that

afflicted many African countries in the 1970s and 1980s, which could potentially have accounted

for the atrophying of institutions that govern land rights.

        Primary data was collected during six months of field research in Kenya in 2005. I

conducted 75 deep semi-structured interviews along with many informal discussions with state

officials, civil society activists, farmers, land users, and members of professional bodies. I also

Some Reflections on the New Institutionalism,” Politics and Society, 16 (June-September 1988), p. 394; William
Riker and Itai Sened, “A Political Theory of the Origin of Property Rights: Airport Slots,” American journal of
political science 35 (November 1991), p. 955; David Feeney, “The development of property rights in land: a
comparative study,” in Toward a political economy of development: a rational choice perspective, ed. R. Bates
(Berkeley: University of California Press, 1988), p. 294.
  „Who owns what in Kenya,‟ Weekly Review (Nairobi), March 8, 1991.

                                             Page 5 of 31
worked with and closely observed various land administration bodies. Further, I conducted

archival research at the Kenya National Archives in Nairobi.

        The ways in which political leaders handle institutions that govern property rights in land

constitute the dependent variable in this study. Institutions that govern property rights in land are

those created to regulate the extent to which people enjoy various rights to land. They are best

understood as a bundle composed of four distinct but related components. The first component is

made up of rules that indicate the proper ways of transacting in land rights. 5 The second is a

bundle of institutions like registries that collect, keep and make available to the public

information on interests in and the geographical attributes of land parcels.6 Institutions that

adjudicate land disputes constitute the third component. The final component is made up of

institutions that enforce decisions concerning land rights.7

Efficiency theory and its revisionists

        Much of the market efficiency and revisionist literature on the transformation of property

rights institutions suffers from an assumption of a universal preference for secure property rights

as land values rise. This limits the extent to which this literature can explore the possible

existence and implications of a preference for insecure property rights institutions. Early market

efficiency theories of property rights argued that as land values increase, the potential gains from

transacting in land grow but an environment of insecure land rights impedes the accrual of these

gains. Such an environment increases transaction costs including those associated with seeking

information on interests in land and enforcing rights in land. Because institutions that secure

  Botshelo Mathuba, “Land Administration in Botswana,” (Paper prepared for the National
Conference on Land Reform, Namibia, 1991).
  Callistus Mahama and Martin Dixon, “Acquisition and affordability of land for housing in urban Ghana: a study in
the formal land market dynamics,” RCIS research paper series, 10 (October 2006), p. 38
  L. K. Agbosu, “Towards a workable system of title registration for land in Ghana,” in Land ownership and
registration in Ghana : a collection of studies, ed. A. K. Mensah-Brown (Kumasi, Ghana: Land Administration
Research Centre University of Science and Technology, 1978), p. 33.

                                             Page 6 of 31
property rights reduce these costs and the gains from rising land values can off-set the costs of

building these institutions, efficiency theory concluded that as land values increase, rational

actors will establish institutions that secure property rights.8

         A revisionist literature uses various supply-side problems to explain why, contrary to the

prediction of efficiency theory, stronger property rights institutions are not created in many

places experiencing rising land values.9 But by largely accepting the demand-side claims of

efficiency theory that rising land values give market participants an in interest in security, 10 they

severely curtailed their own ability to consider how political leaders might find weak property

rights useful. Political revisionists focus on factors like the existence of distributive conflicts

among elites, and collective action problems that limit the ability of elites to deliver demanded

institutions.11 Institutional revisionists focus on the low institutional capacity of ruling authorities

and path dependent characteristics of institutions that impede institutional change even in the

face efforts at reform. 12

         The need to re-examine the view that rising land values create a universal preference for

secure property rights is warranted because of events that seem to suggest a preference for weak

property rights institutions among political leaders in various societies experiencing rising land

  Demsetz, “Toward a theory,” p. 350; North and Thomas, The rise of the Western world, pp. 19-23.
  Firmin-Sellers, The transformation, pp. 9-14; Riker and Sened, “A Political Theory,” pp. 953-955; Bates, “Contra
contractarianism,” pp. 387-401; and Feeney, “The development,” p. 294; and Jack Knight, Institutions and social
conflict (New York: Cambridge University Press, 1992), p. 42.
   See the following revisionist works for their embrace of the demand-side account of efficiency theory: Firmin-
Sellers, The transformation, pp. 11-12; Riker and Sened, “A Political Theory,” p. 955; Bates, “Contra
contractarianism,” p. 394; and David Feeney, “The development of property rights in land: a comparative study,” in
Toward a political economy of development: a rational choice perspective, ed. R. Bates (Berkeley: University of
California Press, 1988), p. 294.
   Riker and Sened, “A Political Theory,” pp. 953-955; Knight, Institutions and social conflict, p. 42; and Firmin-
Sellers, The transformation, pp. 9-14; and Terry Moe, “Power and Political Institutions,” Perspectives on Politics 3
(June 2005), p. 1; Mancur Olson, The logic of collective action; public goods and the theory of groups (Cambridge,
Mass.,: Harvard University Press, 1965).
   Douglas North, Institutions, institutional change and economic performance (New York: Cambridge University
Press, 1990); Sandra Joireman, “Enforcing new property rights in sub-Saharan Africa: the Uganda constitution and
the 1998 Land Act,” Comparative politics 39, no. 4 (July 2007), pp. 466-467; Jeffry Herbst, States and power in
Africa: comparative lessons in authority and control (Princeton: Princeton University Press, 2000), p. 193.

                                              Page 7 of 31
values. In Ghana, colonial as well as postcolonial leaders exploited weak property rights

institutions in much of the country to credibly threaten to jeopardize the land rights of errant

traditional chiefs that support opposition figures.13 In Kenya, many politician heads of land

buying company in the 1970s exploited weak property rights institutions to extort money from

peasants, hold these peasants in captive audience meetings, get them to vote in certain ways, and

even move people about to get the right type of voters in certain constituencies.14 Scholars

working on post-Soviet Russian political economy have explored why powerful and wealthy

oligarchs sometimes vociferously oppose efforts at creating public institutions that secure

property rights.15 Rosenthal16 explores the deliberate subversion of property rights in land by

kings in Old Regime France to reallocate lands already allocated by their predecessors. Below I

construct a theory of land use that renders many of these activities comprehensible.

A theory of land use

        To understand elites‟ preference for an environment of secure or insecure rights we need

to look at how they exploit the land. This is because different institutional structures facilitate

different ways of using land and an institutional environment that might facilitate farming for

example might hinder the exchange of land for political support. For instance as noted by a large

body of literature, an environment of secure property rights for instance will encourage greater

   Kwamena Bentsi-Enchill, Ghana land law: an exposition, analysis and critique (Legon: African Universities
Press, 1964), p. 19; and Richard Rathbone, Nkrumah & the chiefs: the politics of chieftaincy in Ghana, 1951-60
(Accra: F. Reimmer, 2000), p. 128.
    “Kihika Kimani to face uphill battle,” Weekly Review (Nairobi), April 27, 1979; “Bogus companies,” Weekly
Review (Nairobi), May 23, 1980.
    Konstantin Sonin, “Why the rich may favor poor protection of property rights,” Journal of comparative
economics 31 (December 2003), pp. 715-731; and Edward Glaeser, Jose Scheinkman, and Andrei Shleifer, “The
injustice of inequality,” Journal of monetary economics 50 (January 2003), pp. 199-222.
   Jean-Laurent Rosenthal, The fruits of revolution: property rights, litigation, and French agriculture, 1700-1860
(New York: Cambridge University Press, 1992), pp. 137-141

                                             Page 8 of 31
investment in farming and increase the gains from such investment. 17 But these same institutions

that guarantee security might wreck the efforts of a politician seeking to raise short term funds

for political action in times of crises through the multiple sales of the same land rights. When

consulted, title registries will alert would-be buyers to the encumbered nature of the land and

increase the chances of a court ruling against the politician if taken to court. The specific uses to

which leaders put land will thus influence whether they prefer an environment of secure or

insecure property rights.

        I distinguish between two ways in which political leaders in these countries extract value

from land- through productive and non-productive means. Leaders exploit gains from land in

productive ways when the political and economic gains they get from land are drawn from the

productive use of land for agriculture, tourism operations, real estate development, mining, etc.

The economic gains they get from these concerns are of political consequence because these

personal fortunes sponsor various political activities including funding campaigns, buying votes

and paying militia to intimidate opponents. Leaders exploit land in non-productive ways when

the gains they get from land are not drawn from the productive use of land. Examples of such

uses include the outright sale of land where payment is made up front; the exchange of land for

political support, the use of land to draw voters to certain constituencies, etc.

        This is a distinction between how leaders exploit land. It is not primarily about the

characteristics of pieces of land. This is because multiple people can profit from the same land

simultaneously in different ways that can become increasing abstracted from the land itself as

  World Bank, Building institutions for markets, World development report, 2002 (New York: Oxford University
Press, 2002), pp. 31-35; and Markus Goldstein and Christopher Udry, “The profits of power: land rights and
agricultural investment in Ghana,” Economic growth center paper 929 (November 2005); and Joireman, “Enforcing
new property rights,” pp. 465-466.

                                           Page 9 of 31
shown by de Soto, and also by Cronon in his interesting work on the rise of the future‟s market

in Chicago.18

        Because the political and economic gains of productive land users are drawn from the

agricultural, real estate, etc uses to which these lands are put political leaders involved in such

activities have a strong preference for robust institutions that govern property rights that are

critical for these activities. The links between secure property rights and the profitability of these

productive land uses are the subject of a large body of literature. 19 Insecurity renders these

activities less profitable and difficult. The institutional needs of these productive land uses make

the reinforcement of these institutions a primary preference of leaders.

        Non-productive land use has no such impact on leaders. Because the gains of leaders are

divorced from the productive use to which the land is put, they have no incentive to invest huge

amounts in creating an environment of security that will facilitate these activities. Furthermore,

apart from not imposing serious costs on them, an environment devoid of strong property rights

institutions facilitates and renders more beneficial various non-productive ways in which these

actors use land. I list three micro mechanisms through which this happens below.

1.      Facilitating political exchanges

        Where political leaders exchange land rights for the political support of various parties,

weak property rights institutions play the valuable role of facilitating exchange by enabling the

politician to credibly threaten to punish the grantee by taking back these lands if they fail to

deliver support once the grant is made. On the other hand, it enables grantees to credibly commit

to render support once they get the land. In an environment of secure property rights, it will be

   Hernando de Soto, The mystery of capital: why capitalism triumphs in the West and fails everywhere else
(London: Bantam, 2000); and William Cronon, Nature’s metropolis: Chicago and the Great West (New York: WW
Norton and Company, 1991), ch. 3.
   World Bank, Building institutions, pp. 31-35; and Goldstein and Udry, “The profits of power.”

                                         Page 10 of 31
difficult for the grantee to credibly commit to render support after she receives the land since the

security of property rights will mean that the politician cannot repossess the land once the grant

is made. This is particularly vital in an environment where grantees lack other interests that could

be harmed by political leaders. So where strong property rights institutions exist, we might have

a situation of market failure in which politicians willing to give land for political support and

voters willing to sell their votes for land grants might still find it difficult to consummate such


2.     Allowing short-term fundraising for political action

       In times of political crisis, political leaders often require large amounts of money quickly

to sponsor campaigns, buy votes, mobilize militia against opponents, etc. Where leaders deal in

the outright sale of land or issuance of titles for monetary consideration, weak property rights can

allow them to multiply gains over the short run by engaging in the fraudulent multiple sales of

the same piece of land and in the sale of land in which they have no interests. Weak property

rights institutions are critical here because they raise the information, adjudication and

enforcement costs faced by buyers thus making it more difficult for them to detect fraud before

they buy and for them to seek redress after they buy. These activities are socially costly because

they lead to conflicts and litigation between rival grantees. Further, in the long run, they

potentially reduce the overall gains that politicians can later make from these land sales. Once

buyers notice the uncertain nature of the rights they are purchasing they might lower their bids,

potentially leading to later losses for the politicians. It is important to note that politicians are

often willing to stomach these long term losses for short term gains in times of crises because

without those short term gains, they might not get to see the long term.

3.     Enabling gerrymandering without the redrawing boundaries

                                       Page 11 of 31
        Weak property rights institutions allow political leaders unable to redraw constituency

boundaries to engage in a form of gerrymander nonetheless by settling and evicting people from

various places to get the right voting complexion in a constituency. Weak property rights are

critical for such activities. Leaders have to be able to evict people and grant their rights to others

without the inconvenience of dealing with efficacious titles and functioning enforcement systems

for instance. Further, the precariousness of rights gives people an incentive to follow around

leaders who might promise respect for their rights in the new location.

        State leaders in Early Kenya were heavily involved in productive ways of exploiting land

after they inherited the agricultural, real estate and tourism concerns of many fleeing European

settlers. Like the European settlers before them, the new ruling elite a preference for strong

institutions that govern property rights in land and the security of rights and paraphernalia like

titles that they produce. The strong capacity of the Kenyan state allowed leaders to go a long way

in actualizing this preference by creating and strengthening institutions. In late Kenya, elites

began to exploit land in various non-productive ways including using land to gerrymander

constituencies, filling political war chests through fraudulent land allocations and exchanging

land for political support. They needed an environment devoid of the guarantees that strong

institutions that govern property rights produce. They thus subverted rules on how to transact in

land, title registries, and adjudication mechanisms. The fact that the Kenyan state escaped deep

decline gave elites the capacity to undermine institutions, sometimes in the face of organized

resistance by victims of their activities.

The making and unmaking of institutions in Kenya

        Formal colonization in Kenya, beginning in 1885, was a literal effort at reaping the fruits

of the land through productive land use and it soon led to the creation of institutions that govern

                                        Page 12 of 31
property rights in land. The deliberate encouragement of European settlement and settler

commercial agriculture in Kenya by the colonial administration attracted a settler community

that in 1960 numbered around 61,000.20 To promote commercial agriculture, the British East

Africa Company and the colonial administration went so far as to threaten “forfeiture by the

crown if they [lands granted to settlers] remained undeveloped without reasonable excuse.”21 For

their part, settlers began to argue that beyond very cheap land grants, they needed secure titles to

benefit from investment in agriculture and to enable them use their land rights as collateral to

secure loans for investment.22 The colonial administration responded favorably and efforts at

registering titles of Europeans on a large scale were in progress by 1919.23 Discontent over the

seizure of African lands for European use sparked numerous rebellions that eventually led the

British to grant independence to the country in 1963 under a KANU government headed by

Jomo Kenyatta.24 KANU leaders first reinforced and then subverted institutions that secure

property rights in land.

Rules governing transfer of land

        Upon gaining independence the government created many land control boards and

extended the activities of the Department of Land Adjudication and Settlement (DLAS) across

the country to impose standardized rules on how to transact in land. They mediated land

transfers, facilitated acquisition and documented interests.25 In the 1990s other authorities, like

   Arthur Hazlewood, The economy of Kenya (Oxford: Oxford University Press, 1979), p. 4; and Guy Arnold,
Kenyatta and the politics of Kenya (London: Dent, 1974), p. 54.
   Charles Kingsley Meek, Land, law and custom in the colonies. 2d ed. (London: Oxford University Press, 1949),
p. 80.
   Kenya Land Tenure Committee, Report, 1941 (Nairobi Kenya: Government Printer, 1941), p. 41.
   Meek, Land, law, pp. 93-94.
   Bethwell Ogot, “Britain's Gulag,” The Journal of African History 46 (3- 2005), pp. 495-97.
   Karuga, Land transactions, p. 6; and Nyaga Mwaniki, “Social and economic impacts of land reform in Mbeere,”
Vol. no. 391, Working paper (Nairobi Kenya: Institute for Development Studies University of Nairobi, 1982), p. 15;
and “Recent land reforms in Kenya,” (Paper to be given by the Kenya delegate at the seminar on Land Law Reforms
in East Africa, June 4, 1968), Kenya National Archieves, BN/81/87.

                                            Page 13 of 31
district commissioners and divisional officers were allowed to allocate land, thus fundamentally

undermining the authority and functioning of DLAS, and muddying the procedures for acquiring

land.26 Lacking logistics and not receiving their allowances regularly, many Land control boards

stopped operating in the 1990s.27

Geographic information and information on interests

        In early Kenya land control boards, land title registries and the DLAS were gradually

extended into many remote areas of the country. They created maps, recorded interests and

issued titles. The state increased staff levels in the LAS Department by 65% from 1967 to 1968

and Survey of Kenya was well funded by the state.28 In late Kenya, state leaders got institutions

to fundamentally deviate from their normal operating procedures. The non-documentation of
land grants and tampering with land records rendered many title registers defective.                        Further,

the Provincial Administration, an arm of the civil service, was allowed to usurp some of the

allocation and documentation powers of land agencies creating further confusion.30


        In early Kenya specialized dispute resolution mechanisms like the DLAS department and

land registries were reinforced to deal with land disputes. The DLAS deployed several layers of

adjudicatory mechanisms before the creation of final maps and issuance of titles.31 Once titles

were issued, land registrar and normal courts took over the resolution of disputes.32 The passage

    Kenya, Report of the Commission of Inquiry into the Illegal/Irregular Allocation of Public Land (Nairobi:
Republic of Kenya, 2004), p. 132.
   Discussions during a meeting with three land control board members in Nyeri District, (Ken 26), March 9, 2005;
and an interview with official of a divisional office in Nyeri District, (Ken 2), March 7, 2005.
   Kenya, Report of the mission on land consolidation and registration in Kenya, 1965-1966 (Nairobi: Printed by
Print. & Packaging Corp, 1966); and Ministry of Lands and Settlement, “Ministry of Lands and Settlement: an
overview,” (publicity pamphlet, Nairobi, n.d.); and “Recent land reforms in Kenya.”
   Interview with an official in the Ministry of Lands and Settlement, Nairobi, (Ken 1), February 14, 2005.
   Interview with a divisional officer in Uasin Gishu District, (Ken 33), April 20, 2005.
   Interview with an official of Ministry of Lands and Settlement in Nairobi, (Ken 5), February 18, 2005.
   Interview with an official of one of the land administration agencies in Nyeri District, (Ken 7), March 1, 2005.

                                             Page 14 of 31
of the Land Disputes Tribunal Act 18 of 1990, which provided for adjudication mechanisms,

seems to indicate efforts at bettering the adjudication of land disputes in late Kenya.33 But these

tribunals existed only in the books in many parts of the country.34 Where tribunals were created,

governments did not pay the allowances of tribunal members or provide logistical supplies

causing some tribunals not to sit.35 Further, the involvement of the Provincial Administration in

the creation of new settlements and allocation of plots in the 1990s undermined the ability of the

LAS to subsequently resolve disputes in those areas.36


        In early Kenya the administration police under the direction of district officers played a

leading role in the enforcement of decisions made by various land administration agencies. They

evicted squatters, protected occupants of land and separated disputing parties.37 They also

accompanied and protected land administration officials in the performance of their functions.38

In late Kenya, leaders transformed enforcement institutions into instruments for the selective

enforcement of decisions. When it suited state leaders they withheld enforcement from land

users. In the 1990s the security forces did nothing to protect hundreds of thousands of

supposedly opposition party supporters evicted during land clashes across the country.

Explaining divergent approaches to property rights institutions

Inheriting productive interests

        Postcolonial Kenyan leaders inherited a lot of the agricultural, real estate and tourism

interests of departing white settlers at independence and this gave them the settlers‟ preference

   Interview with an official of a divisional office in Nyeri District, (Ken 19), April 3, 2005.
   Interview with an official of a divisional office in Kiambu District, (Ken 31), April 6, 2005.
   Interviews with an official of a divisional office in Nyeri District, (Ken 24), March 8, 2005; and a member of a
land dispute tribunal in Nyeri District, (Ken 28a). March 10, 2005.
   Interviews with an official of a divisional office in Uasin Gishu District, (Ken 33), April 20, 2005.
   There is a multitude of correspondence between various land holders and the Special Commissioner for Squatters
in the Kenya National Archives (KNA) file AVS/1/53.
   Interview with an official of the Ministry of Lands and Settlement in Nairobi, (Ken 5), February 18, 2005.

                                             Page 15 of 31
for secure property rights institutions that would facilitate these business concerns. A series of

factors conspired to enable many leading politicians and senior bureaucrats to acquire some of

the biggest farming, real estate and tourism enterprises in the country. One of these was the

pursuit of a policy of Africanization of the civil service and business. The agriculture, real estate

and tourism sectors were key targets of Africanization. Another was Kenyatta‟s insistence on a

willing buyer-willing seller policy in the transfer of landed interests from whites to blacks.39

        Leading politicians and senior bureaucrats were well placed to exploit this laissez faire

environment. Their education and placement within the state machinery gave them a deep

understanding of and ability to exploit procedures and strategies. 40 Many of the more business

minded of these elites acquired stupendous amounts of landed property through the exploitation

of their positions. The state‟s Settlement Fund Trustees (SFT)41 bought lands from Europeans for

the creation of settlement schemes in many areas of the country. Often, instead of using all of

these lands for such settlement schemes, parts were hived off and given to various politicians and

bureaucrats free of charge.42 For instance 6000 acres out of a 26,000-acre Sukari Limited farm in

Ruiru acquired for the settlement of landless people from Gatundu was hived off and handed to

Kenyatta at his request.43 Z-Schemes provided another opportunity for elites and their allies to

acquire farms and chunks of land. These schemes had plots of a 100 acres and a farmhouse and

were awarded to farmers who demonstrated an ability to act as models to the farming community

around them. With loose criteria like these, influential politicians and senior bureaucrats had a

   Arnold, Kenyatta, p. 66.
   „Moi suspends land allocations, raises hopes about land reform,‟ Weekly Review (Nairobi), September 22, 1978.
   The SFT was a government trust created to acquire lands to create government settlement schemes. Plots in these
schemes will then be given out to people who will repay overtime.
   „No cheer,‟ Weekly Review (Nairobi), August 7, 1981.
   Letters from J. H. Angaine, Minister for Lands and Settlement to the Director of Settlement, January 7, 1975,
KNA, BN/81/135. Letter from

                                             Page 16 of 31
free hand in appropriating large chunks of land at highly subsidized rates. 44 Many politicians and

senior bureaucrats also acquired significant properties through the willing buyer-willing seller

route. In a collateral hungry society, these officials had jobs and influence that could serve as

collateral for bank loans to purchase property.45

         At his death in 1978 Jomo Kenyatta left a vast estate to his family that includes Gicheha

Farms in Bahati (Nakuru district) and Gatundu, (Kiambu district).46 Ziwani Estate in Taveta sub

district covers 24,000 acres and has been used at various periods for horticulture, nursing maize

seedlings, sheep and cattle ranching, and tobacco. It includes an eco-tourism business.47 The vast

Sukari Estate along Thika Road in Nairobi belonging to the family is now prime real estate.48

         The country‟s second president Moi owns farms that are known to be some of the best

utilized in the country. He owns Ziwa Farm in Uasin-Gishu District where he cultivates maize,

wheat and flowers.49 He has a ranch in Ol Pejeta, Samburu district. His most famous farm is the

1600-acre Kabarak Farm in Rongai constituency, Nakuru District where he raises diary cattle

and cultivates maize and wheat.50 Moi further owns a large tea farm in Olenguruoni. The

Kiptakich Tea Factory is located on this farm. His 3,000-acre farm in Bahati on the Nakuru-

Nyahururu road is used for growing coffee.51

    Henry Bienen, Kenya: the politics of participation and control (Princeton, N.J.,: Princeton University Press,
1974),, p. 169.
   Interview with a consultant on and informed observer of the Kenyan elite, (Ken 75), June 18, 2005; „Watch out,‟
Weekly Review (Nairobi), April 4, 1980.
    „Land: Who owns Kenya?‟ East African Standard (Nairobi), October 1, 2004.
    „Land: Who owns Kenya?‟ East African Standard (Nairobi), October 1, 2004; and interviews with an official of
one of the land administration agencies in Taita-Taveta District, (Ken 63), May 13, 2005; and another official of one
of the land administration agencies in Taita-Taveta District, (Ken 58), May 11.
    „Land: Who owns Kenya?‟ East African Standard (Nairobi), October 1, 2004.
    Interview with a divisional officer in Uasin Gishu District, (Ken 35), April 21, 2005; and „A choice of seven grand
homes: which will Moi opt for?‟ Daily Nation (Nairobi), January 28, 2002.
    „A choice of seven grand homes: which will Moi opt for?‟ Daily Nation (Nairobi), January 28, 2002; and „Six
cows stolen from Moi‟s Farm,‟ East African Standard’ (Nairobi), June 4, 2005.
    „Land: Who owns Kenya?‟ East African Standard (Nairobi), October 1, 2004.

                                              Page 17 of 31
        Many other politicians and bureaucrats of that era acquired similar interests. 52 Notable

among them is Kenneth Matiba a man who as permanent secretary in the ministry of commerce

and industry beginning in 1965 pioneered the Africanization effort. 53 In partnership with S. G.

Smith they formed Alliance Investments Ltd. This group owned a string of tourism concerns,

which included African Sea Lodge, Jading Beach Hotel, Outrigger Hotels, and Naro Moro River

Lodge. He also owned the Alliance Schools.54 Duncan Ndegwa, head of the civil service and first

African governor of the Bank of Kenya was part owner of Insurance Company of East Africa

and its impressive ICEA building in Nairobi. He also partly owned the prestigious Riverside

Apartments on Waiyaki Way, Information House, and Hughes Building all in Nairobi as well as

the Kiriani Tea Estate in Kiambu.55 Eliud Mahihu, one of the most influential politicians during

the Kenyatta era and long time Provincial Commissioner (PC) of Coast Province had extensive

interests in African Safari Club, Giriama Apartments, and Bahari Beach Hotel in Mombasa.56

        The involvement of elites in the agriculture, real estate and tourism sectors was on such a

massive scale that it created concerns over conflict of interests and decline in officials‟

commitment to their public duties.57 The Ndegwa Commission created in 1965 to examine the

involvement of politicians and bureaucrats in business recommended in 1972 that public servants

should be allowed to participate in private business activities.58. Duncan Ndegwa, first secretary

to the cabinet headed the commission. The secretary to this commission was Kenneth Matiba.

   „Who is who in the exclusive big land owners register‟ East African Standard (Nairobi), October 4, 2004.
    David Himbara, Kenyan capitalists, the State, and development (Boulder, Colo.: L. Rienner Publishers, 1994), p.
96; and Kenneth Matiba, Aiming high : the story of my life (Nairobi: People Ltd, 2000).
   „Who owns what in Kenya‟ Weekly Review (Nairobi), March 8, 1991.
   „Who owns what in Kenya‟ Weekly Review (Nairobi), March 8, 1991; and interview with a consultant on and keen
observer of the Kenyan national elite, (Ken 75), June 18, 2005.
   „Shake-up in the parastatals,‟ Weekly Review (Nairobi), May 16, 1980; and „Who owns what in Kenya,‟ Weekly
Review (Nairobi), March 8, 1991.
   Nyong‟o, “State and Society,” p. 241.
    Nyong‟o, “State and Society,” p. 246.

                                             Page 18 of 31
Interestingly, Ndegwa and Matiba were two of the most business-minded elites in Kenya that

would go on to build some of the largest business empires in the country.59

Reaping the institutional benefits of productive interests

         The involvement of senior bureaucrats and leading politicians in farming, real estate and

tourism concerns led them to reinforce existing property rights institutions created by colonial

governments to facilitate white settler interests, and establish new ones.60 These efforts at

institutional reinforcement went beyond national bureaucrats and politicians to include provincial

commissioners, district commissioners, regional government agents and district agricultural

officers. Their correspondences were full of discussions of to the need to promote land titling to

secure farmers‟ rights and enable them to use their land as collateral for loans.61 Even though

officials always cited the interests of ordinary farmers and business people, they very much had

their own personal interests at heart. In a revealing letter from the Government Agent in Kilifi to

the Civil Secretary of Coast Province on June 24, 1964, the agent wrote of the need to bring

President Kenyatta to convince the people of Rabai location of the benefits of land registration.

According to him, the Rabai situation “will especially concern him [President Kenyatta]

personally as he himself is going to find it necessary to get his neighbors in Mariakani area to

accept registration so that it will be possible to obtain title for his cattle ranch there. I believe the

RA board has made a stipulation regarding his application for a loan to develop the ranch.”62

   Himbara, Kenyan capitalists, p. 96; and Matiba, Aiming high.
   Bienen, Kenya, pp. 164-170; and M. Tarmakin, “The roots of political stability in Kenya,” African Affairs 77,
(July 1978), p. 307.
   For instance Masai MPs and country councilors wrote a letter to President Kenyatta urging him to bring land
adjudication and consolidation to Narok District so people could get titles that would allow them to secure loans to
develop land, KNA, Murumbi Africana Collection Part III, MAC/KEN/100/2; and a letter from the District
Agricultural Officer, South Nyanza to all assistant agricultural officers directed them to identify and give priority to
areas with high agricultural potential and progressive farmers who would buy titles to secure loans for investment in
land adjudication and consolidation processes, October 22, 1968, KNA, BV/156/2.
   Letter from the Regional Government Agent, Kilifi to the Civil Secretary, Coast Province, June 24, 1964, KNA,

                                               Page 19 of 31
        The very deep commitment of KANU elites to the reinforcement of institutions that

govern land rights becomes apparent when we note the existence of considerable resistance by

various local populations to the efforts of land agencies. Such resistance was common in parts of

the country where people were suspicious of state designs on their lands and objected to the re-

shaping of local realities that was involved in the consolidation and registration of land parcels.

In the face of such resistance, state officials talked-up the virtues of land titles, harshly

condemned opposition to titling efforts and denied dissenters a platform on which to express

their views. They even took recalcitrant elders on tours of areas that were seen as success cases

in titling.

        In Lower Mbeere, exasperated government officials blamed local resistance to land titling

and consolidation efforts on the “the laziness and backwardness of the people who do not

understand the value of an individual freehold title.”63 Facing widespread opposition from local

elders to adjudication, consolidation and titling efforts in parts of Kwale and Kilifi District, state

officials sponsored twenty elders from Kwale to go on a tour of far-away Central Nyanza. This

was to make them see first hand the desirability of land consolidation and documentation. Many

elders still remained unconvinced after this tour and the regional government Agent in Kwale

ordered officials involved in organizing community meetings to prevent such skeptical elders

from speaking at local barazas- meetings- held to discuss land registration.64 The elders of Rabai

Location proved particularly troublesome. J.G. Mackley, the civil secretary of Coast region

 Mwaniki, “Social and economic,” p. 12.
 Letter from Regional government Agent, Kwale to Adjudication Officer, Ministry of Lands and Settlment,
November 2, 1964. KNA, CA/10/120.

                                           Page 20 of 31
condemned the “reactionary attitude of Rabai Location” and suggested targeting Jibana Location

which had “an enlightened and energetic chief.”65

         Government officials, however, looked past the sins of Rabai elders and organized a

meeting where they made another effort to convince the community to accept land registration.

According to the government agent present at the meeting, after various speeches “it looked as if

all was well and the land registration programme was an accepted thing in Rabai. However,

when the final showdown came, it was obvious that our four and half hours had been fruitless.

The Kaya elders as usual adamantly rejected the idea” and even refused to select people to go on

the tour of other registration areas in the country.66 The elders stated that “wa-Rabai know their

shamba [farm] boundaries and…they do not feel like the government should put them on the

ground.”67 The Government Agent in Kilifi complained that trouble makers had succeeded in

convincing the people of Rabai against land registration.68 Another suggested bringing in the

influential Coast politician, Ronald Ngala to convince people.69 State leaders were determined to

register titles in and develop institutions that govern property rights across the country.

The transition towards non-productive exploitation of land

         State leaders who had firmly been productive land users increasingly drew benefits from

land that were divorced from the productive use of land beginning in the 1990s as the country re-

democratized. The background to this transition was the pressure of re-democratization in the

1990s. Under pressure from domestic groups and international agencies, President Moi agreed to

   Letter from J. G. Makley, Civil Secretary, Coast Province to Acting Principal Consolidation Officer, Ministry of
Lands and Settlement. KNA, CA/10/120.
   Letter from Assistant Regional Government Agent, Kaloneli to Regional Government Agent, Kilifi, August 18,
1964. KNA, CA/10/120.
   Letter from Assistant Regional Government Agent, Kaloneli to Regional Government Agent, Kilifi, June 11,
1964. KNA, CA/10/120.
   Letter from Government Agent, Kilifi to Civil Secretary, Coast Province, June 24, 1964. KNA, CA/10/120.
   Letter from Assistant Regional Government Agent, Kaloneli to Regional Government Agent, Kilifi, June 11,
1964. KNA, CA/10/120.

                                             Page 21 of 31
reintroduce multiparty democracy in 1991 and scheduled elections for 1992. As many KANU

politicians defected to form opposition parties KANU maintained strong support among many of

the smaller ethnic groups in the country like the Kalenjin, Masai and Turkana who are mostly

still resident in their traditional homelands.70 On the other hand, opposition parties like

Democratic Party and Forum for the Restoration of Democracy (FORD) drew their support

mostly from larger groups like the Gikuyu, Luo and Luhya who are not only resident in their

home areas but have also settled in other parts of the country.71 Thus the situation in many parts

of the country pitted indigenous local populations perceived as loyal to the ruling KANU against

settlers perceived as supportive of new opposition parties.72 Some of these settler communities

almost outnumbered their indigenous hosts and sought to vote for opposition parties and

parliamentary candidates from their own ethnic groups against candidates from the ethnic group

of their hosts.73 For instance, Gikuyu settlers were thought to outnumber Masai in urban areas of

Narok and even in some rural areas like Enoosupukia, Enabelilel, Illaiser and Kojonga.74

        To stave off competition, state officials at the highest levels resorted to non-productive

ways of exploiting land which took various forms. One of these was through the sale of land for

monies that were then used to pursue political action. To multiply the money from such sales the

Commissioner of Lands and the Provincial Administration began to sell multiple allocation notes

   Jacqueline Klopp, “Can Moral Ethnicity Trump Political Tribalism? The Struggle for Land and Nation in Kenya,”
African Studies 61 (2- 2002).
    “Kikuyu settlers in other districts,” Weekly Review (Nairobi), March 1, 1991.
   Rok Ajulu, “Politicised Ethnicity, Competitive Politics and Conflict in Kenya: A Historical Perspective,” African
Studies 61 (December 2002), p. 264.
   „Narok: background to ethnic conflict,‟ Weekly Review (Nairobi), March 1, 1991.

                                             Page 22 of 31
and title to different people for the same piece of land.75 More directly, the practice of granting

land in exchange for political support became pervasive.76

        In an effort to gerrymander constituencies without redrawing boundaries KANU

politicians sought to settle some people in certain constituencies and expel others from those

constituencies. They would give or promise titles to land in a specific area in which they needed

more votes to politically friendly groups. Sometimes these lands already belonged to or were

being claimed by other parties. Many Gikuyu residents in Likia for instance claimed that the

state sought to influence the outcome of voting in Likia by settling 318 Kalenjin families in the

area before the 1997 elections.77 To facilitate these multiple allocations of the same piece of land

to different people for money and political support the Ministry of Lands included a disclaimer

in letters of allotment in 1993 absolving itself of the responsibility to give people alternative

plots of land where parcels indicated by letters of allotment from the Ministry were already

owned by others.78

        This gerrymandering also involved expelling perceived opposition supporters from

certain constituencies.79 With instigation by certain state leaders, some Kenyans holding state-

issued land title deeds were violently evicted from their homes around the 1992 and 1997

elections.80 In Narok, Turkana, Nandi, Kericho, Uasin Gishu, Taita districts among others,

violent clashes led to destruction of property, deaths and mass expulsions of Gikuyu and Luo

   Kenya, Report of the commission of inquiry into the illegal/irregular, pp. 9-14 and 80. Interestingly, the state
simultaneously bought lands at highly inflated prices from allies of leading politicians who had acquired these
parcels from the state at very low prices.
   Kenya, Report of the commission of inquiry into the illegal/irregular, p. 8.
   Internal Displacement Monitoring Center (IDMC), “‟I am a refugee in my own country:‟ conflict-induced internal
displacement in Kenya,” (Geneva Switzerland, December 19, 2006), pp. 13-20. http://www.internal-$file/Kenya%20S
pecial%20Report%20Dec06.pdf, (Accessed June 4, 2007), p. 20.
   Interview with an official of the Department of Lands (Kenya 1), February, 14, 2005.
   Ajulu, “Politicised Ethnicity,” p. 264.
   Klopp, “Can moral ethnicity,” pp. 269-275; and Ajulu, “Politicised Ethnicity,” 264.

                                             Page 23 of 31
communities.81 The political motivation behind these clashes was laid bare in post-election

negotiations where indigenous KANU politicians made the return of clash victims dependent on

respect for the political positions of their hosts.82 The late Nandi parliamentarian, Kipkalya

Kones in 1997 vowed not to allow title-bearing Gikuyu clash-victims to return to Nandi district

until political questions between the communities are settled.83 By 1993 these clashes had led to

at least 1500 deaths and 300,000 displacements.84

Constructing a facilitating institutional environment

         Such manipulation of land rights depended on the existence of facilitating weak property

rights institutions and KANU leaders deliberately undermined institutions to facilitate these new

ways of exploiting land. Strong institutions that govern property rights in land hindered these

new non-productive ways of exploiting land. These institutions would hamper the ability of

politicians to credibly threaten to punish people who took land but later refused to render

political support. It would also hinder the ability of voters willing to sell their support for land to

credibly commit to “correct” political behavior after the grant. If rights are secure, they would

have little incentive to render support once they get the land knowing politicians will not be able

to repossess lands. Generally, politicians will be unable to motivate people to behave in certain

ways by threatening their property rights. The judicious creation of records and proper issuance

of land titles would make difficult the fraudulent multiple sales of property rights by elites for

political ends because land buyers would be able to check reliable land registers before they

make purchases. An environment of insecure property rights would better facilitate these non-

productive modes of exploiting land. Problematic title registers and unrecorded grants would

    Kenya, Report of the judicial commission appointed to inquire into tribal clashes.
    „The indegenous and the natives,‟ Weekly Review (Nairobi), July 9, 1993; and „The end of tribal talks,‟ Weekly
Review (Nairobi), September 15, 1995.
   „End of tribal talks,‟ Weekly Review (Nairobi), September 15, 1995.
   IDMC, “ „I am a refugee,‟” p.13.

                                             Page 24 of 31
make it difficult for those sold fake rights or evicted from their lands to seek court action. Flawed

title registers and selective enforcement by enforcement agencies also allowed politicians to

credibly threaten land holders with eviction if they engaged in “deviant” political behavior.

         One of the most vocal of the leaders that led the assault on property rights institutions

was William ole Ntimama, Minister for Local Government and redoubtable long-time Narok

North KANU MP. He proclaimed to the consternation of many Kenyans in 1993 that land title

deeds were “mere pieces of paper.”85 Ole Ntimama was in effect creating an environment devoid

of institutional guarantees that would allow KANU officials to manipulate land rights in the

ways noted above. Ntimama‟s verbal assaults on titles were accompanied by deliberate efforts at

compromising the validity and utility of title registers by the very officials that were in charge of

these registers. Entries into the register were changed, new ones inserted and some removed, and

many transactions were simply not recorded, compromising the ability of registers to reflect

social realities.86 Apart from making the tenure of people less secure and so increasing their

dependence on politicians, this also made it possible for politicians and bureaucrats to grant

already-allocated land to others without much legal consequence.

The red herring of capacity

         One could object that the decline of property rights institutions was simply the result of

declining state capacity and the subsequent inability of the state to maintain these costly

institutions. Such an objection would tie in neatly with a huge literature on the political economy

of Africa that decries the weak capacity of African state.87 The slight decline in the capacity of

   “The indigenous and the natives,” Weekly Review (Nairobi), July 9, 1993; and “The end of tribal talks,” Weekly
Review (Nairobi), July 9, 1993.
   Kenya, Report of the commission of inquiry into the illegal/irregular, p. 75.
   Herbst, States and power, p. 18; Merilee Grindle, Challenging the state: crisis and innovation in Latin America
and Africa (New York: Cambridge University Press, 1996), p. 1; and Robert Jackson, Quasi-states: sovereignty,
international relations, and the Third World (New York: Cambridge University Press, 1990).

                                             Page 25 of 31
the Kenyan state could be used as evidence for this argument. The focus on how elites use land

would then be mistaken or at best redundant for explaining changing outcomes. I argue that the

slight decline in the capacity of the Kenyan state means that we can essentially hold state

capacity constant. Further, I present theoretical and empirical reasons showing that elites wanted

weaker institutions and deliberately strove to achieve this.

        The country did not totally escape the decline that impacted most African countries.

Funds for land reform dried up in the 1980s. This along with falling commodity prices and the

oil crises impacted state revenues.88 Moi‟s succession of Kenyatta also posed the challenge of

taming the military and the paramilitary General Service Unit that were headed by Kenyatta

loyalists.89 The reintroduction of multiparty elections in 1991 created room for an official

opposition posing a challenge to KANU legislative authority. All of these factors potentially

compromised state leaders‟ ability to maintain institutions.

        Compared to Ghana, which was on the brink of collapse in the late 1970s, the decline in

the Kenyan state‟s capacity was very slight, reducing any possible causal impact of declining

capacity. As the bastion of capitalist stability in a very troubled region, Kenya continued to

receive abundant Western financial aid assuring state leaders of revenues.90 It‟s more diverse

economy, particularly its robust tourism sector and burgeoning manufacturing sector, made sure

it did not suffer the worst effects of falling agricultural commodity prices.91 Further, by replacing

top officers with his loyalists, Moi was able to bring the country‟s military machinery under his

control ensuring that there were no successful coups and only one coup attempt in the country in

1982. Even after the introduction of multiparty elections, KANU defeated the opposition at

   Nyong‟o, “State and Society,” p. 245-246; and Holmquist, Weaver and Ford, “The Structural Development,”
   Ajulu, “Politicised Ethnicity,” p. 262.
   Stephen Brown, “Authoritarian leaders and multiparty elections in Africa: how foreign donors help to keep
Kenya's Daniel arap Moi in power,” Third World Quarterly - Journal of Emerging Areas 22 (5-2001), p. 726.
   Holmquist, Weaver and Ford, “The Structural Development,” p. 79.

                                            Page 26 of 31
presidential and parliamentary elections in 1992 and 1997 and thus maintained a firm grip on

policy making. Further, Moi and many of allies enjoyed widespread legitimacy among many

smaller ethnic groups fearful of Gikuyu domination of the country.92

           This paper has already provided a theoretical argument for why leaders in late Kenya

preferred weaker institutions that govern land rights. The detailed empirical evidence provided

also indicates actions and pronouncements by state leaders that are clear testament to a deliberate

effort at undermining property rights institutions and cast doubt on an argument that would

attribute their behavior to weak capacity. There was a clear verbalized logic to the subversion of

property rights institutions. When ole Ntimama said land titles are “mere pieces of paper,” he

was not commenting on the incapacity of the state to enforce rights. He was trying to shake

opposition-supporting Gikuyu in his constituency out of the dangerous delusion that their mere

possession of state-issued land titles will save them from violent eviction even if they continued

with their anti-KANU activities. Ntimama was driving home the point that the state was willing

to guarantee the rights only of those involved in “correct” political behavior, and that the efficacy

of rights would now depend on such “correct” political behavior instead of autonomous

institutions like title registries and courts. In similar vein Ntimama also warned the Gikuyu

people in his constituency in 1991 to “lie low like an envelop or face grave consequences”

(eviction).93 Again, he was not pointing to a lack of state capacity to enforce rights, but a

willingness of the state to use its capacity to abuse the rights of those involved in opposition


           Contrary to the objection raised here, the subversion of property rights was in many ways

a clear exercise in coercive and administrative capacity in the face of organized and sometimes

     Ajulu, “Politicised Ethnicity; Klopp, “Can moral ethnicity.”
     „Masai hawk,‟ Weekly Review (Nairobi), March 1, 1993.

                                                Page 27 of 31
armed resistance by many communities singled out for eviction. Klopp is right in noting that in

the struggle between state agents seeking to evict people and the victims of such evictions, the

former had a big advantage- “monopoly on violence.”94 They used their control over the security

forces to very selectively enforce property rights, withhold protection from hundreds of

thousands, and forcefully transport these evictees to areas more acceptable to state leaders.95

They also used their policy-making capacity to make policy changes that further muddied the

rules on how to transact in land and issue multiple titles for the same land parcel.96


        Increased political competition forced Kenyan elites to switch from productive to non-

productive ways of exploiting land. But this switch was only partial. What we ended up with in

late Kenya was a situation in which elites were straddling the two ways of using land. Leading

politicians like Biwott, Ntimama and Moi still own significant agricultural, real estate and

tourism concerns.97 The challenge these elites have since faced was been the difficulty of

subverting institutions that govern property rights in land without undermining their productive

interests in agriculture, real estate, tourism etc. The willingness of these elites to jeopardize the

institutional needs of their productive interests to create a facilitating institutional environment

for the non-productive ways in which they exploited land for political ends reveals a dynamic

that Bates98 has high lighted. Political leaders are sometimes willing to sacrifice economic

efficiency in their pursuit of political ends.

   Klopp, “Can moral ethnicity,” p. 287.
   IDMC, „”I am a refugee,” p. 14.
   Kenya, Report of the commission of inquiry into the illegal/irregular, p. 75.
   „Who is who in the exclusive big land owners register,‟ East African Standard (Nairobi), October 4, 2004; „A
choice of seven grand homes: which will Moi opt for,‟ Weekly Review (Nairobi), January 28, 2002; and „A story of
wealth and power,‟ Weekly Review (Nairobi), November 22, 1991.
   Robert Bates, Markets and states in tropical Africa (Berkeley: University of California Press, 1981), p. 4.

                                            Page 28 of 31
        By focusing on how elites use land this paper gives us a clear way to understand why

rational, well-informed and capable actors would prefer weak property rights systems. This helps

us to make further sense of North‟s99 path dependent argument by showing why some actors

seek to perpetuate weak property rights institutions even in the face of rising land values. Some

revisionists like Riker and Sened, and Feeney100 have conditioned the delivery of demanded

property rights on the willingness of political leaders to deliver them. The belief in a universal

preference for security has, however, prevented these scholars from exploring why political

leaders might not be willing to deliver such institutions. This paper sheds light on this. The break

down of some of the foundational structures of political order such as property rights institutions

are sometimes due to deliberate choices by state leaders to institutionalize states in ways that

they find politically conducive but that are socially costly to society.

        This paper exposes a serious but avoidable flaw of much of the existing transaction cost

literature. By focusing on only on a subset of the ways in which people use land, the transaction

cost literature has adopted the flawed view that an environment of weak property rights always

raises transaction costs while an environment of strong property rights lowers transaction

costs.101 Such analyses efface people involved in many other ways of exploiting land from

theorizing on property rights. As I show in this work, for some ways of exploiting land, weak

institutions, faulty and non-existent title registries, inefficient and corrupt courts that raise

information, adjudication and enforcement costs are a boon. Weak property rights institutions

lower the transaction costs of actors involved in the use of land to gerrymander, the multiple

   North, Institutions, institutional change, pp. 95-101.
    Feeney, “The development,” p. 274; and Riker and Sened, “A Political Theory,” p. 955.
    Christopher Clague, Philip Keefer, Stephen Knack and Mancur Olson, “Institutions and
economic performance: property rights and contract enforcement,” in Christopher Clague ed. Institutions and
economic development (Baltimore: Johns Hopkins University Press, 1997), pp. 68-69; Demsetz, “Toward a theory,”
p. 350; North and Thomas, The rise, pp. 19-23; North, Institutions, institutional change, p. 48; World Bank, The
state in a changing world: World development report 1997 (New York: Oxford University Press, 1997), pp. 5-7;
and de Soto, The mystery, p. 58; Joireman, “Enforcing new property rights,” p. 466.

                                            Page 29 of 31
sales of land, and the exchange of land for voters. The question we have to pose when we make

statements about whether certain institutional arrangements lower or raise transaction costs is:

“Whose costs?” This question allows us to explore the conflictive and highly contested nature of

struggles over the very question of whether an environment of secure property rights in land is

desirable in any society.102

        This insight into divergent preferences towards property rights security is of consequence

for scholarship and policy-making on institutional reform. Two of the main instruments

employed by international agencies in the promotion of property rights reform have been

proselytism and capacity building. It is believed that strong property rights institutions are in the

interests of all and that those who lack such institutions are either ignorant of their beneficial

effects or lack the capacity to put these institutions in place. Thus efforts at preaching the

benefits of secure property rights institutions have come to include UNDP-sponsored speaking

tours by de Soto in various parts of the developing world.103 Various capacity-building programs

that fund institutional reforms are also being undertaken. In Ghana, for instance, the World Bank

along with other donors are funding a 15-year Land Administration Project aimed at furthering

title registration, introducing land tribunals, etc.104

        By drawing attention to divergent attitudes towards these institutions, this work shows

why such reform efforts might not always bear expected fruits. If weak property rights

institutions provide some (powerful) actors with real benefits as I suggest, then merely preaching

    This conflict is prior to conflicts over what design institutions should take once actors agree that they want a
certain environment as pointed out by Firmin-Sellers, The transformation, pp. 11-12; Knight, Institutions and social
conflict, p. 42; and Moe, “Power and Political Institutions,” p. 1.
    „A new kind of entitlement: Peruvian economist Hernando de Soto has radical ideas about how to end world
poverty,‟, December 23, 2002,, (accessed July
12, 2006; and „Ghana to solve mystery of capital,‟ afrol news, October 7, 2005,, (accessed July 12, 2006).
    See the World Bank page
=P071157 (accessed June 25, 2007).

                                             Page 30 of 31
to them the benefits of secure property rights might not change their minds. Even more

importantly, rampart capacity building efforts that involve empowering local actors and

constructing institutions such as title registries will not necessarily bear the desired fruit. Elites

involved in non-productive land use might transform such registries into instruments for the

further subversion of property rights as shown above in the activities of the Commissioner of

Lands in Kenya in the 1990s. 105

      Kenya, Report of the commission of inquiry into the illegal/irregular, pp. 74-75.

                                                 Page 31 of 31

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