Divergent attitudes towards property rights security: the
making and unmaking of institutions in Kenya
Ato Kwamena Onoma
Department of Political Science
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
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
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),
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 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-
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,‟ Forbes.com, December 23, 2002, http://www.forbes.com/forbes/2002/1223/320_print.html, (accessed July
12, 2006; and „Ghana to solve mystery of capital,‟ afrol news, October 7, 2005,
http://www.afrol.com/html/News2002/gha021_property_register.htm, (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