26 October 2008
analysis
Nairobi — In Africa South of the Sahara, history was traditionally passed down the generations orally. Information was acquired gradually throughout life by listening to one's elders in a gentle, unhurried process.
The colonial era, modern technology, and new ways burst upon this scene as cultural tsunami. Suddenly, information was transmitted by writing - a skill that the old timers did not have.
Education gave seniority to the young and the old ceased to be teachers. Life's pace became ruled by the wristwatch. Generations were divorced as the young and educated sought distant employment. Information came from reading which, because they were illiterate, the elders could not correct.
For these and many other reasons, history became a casualty and modern Africa knows tragically little about its unwritten past.
In his review of Louis Leakey's The Southern Kikuyu Before 1903 (The East African, September 22-28), Joe Gichuki recognised the work is a remarkable exception in this historical vacuum.
A white man with a formidable intellect who grew up with the Kikuyu and was accepted as a member of the Mukanda age grade and qualified as a second-class elder, had captured the old customs, traditions and knowledge in writing and immense detail.
Helped by elders, his three volumes make an historical bridge between the unwritten past and modern times. None of Kenya's more than 40 other peoples have anything like it.
Though famous for his work on the origins of man, I think this anthropological record of the pre-colonial Agikuyu was Leakey's greatest achievement.
The three volumes are not an easy read and so full of detail that few can absorb it in a single reading. Written from 1937-38, they were only published 40 years later and another 30 years passed before Leakey's son Richard, Joe Gichuki and The East African brought it back to public attention.
Understanding traditional Kikuyu land law and custom is relevant to modern times.
First, briefly, who are the Kikuyu? A people of this name appear have been established over 300 years ago on the eastern slopes of the Aberdares in Muranga.
Given the similarities of language and custom, they had clear connections with the Akamba, and the people of Meru and Embu. They also had close relationships with the Maasai.
Radiating out from Muranga, the Kikuyu spread north and south along the forested lower Aberdare slopes.
By 300 years ago, some had crossed the Southern Chania river into what are now Thika and Kiambu Districts.
How did they get land? Misty folklore and oral evidence implies that early on the forest-dwelling Agumba were chased away and dispossessed of land by force.
However, Leakey records that south of the Southern Chania land was purchased from Dorobo (probably Ogiek - or a group akin to them?)
By Kikuyu law, buying land was complicated. The currency was goats or their equivalents.
If the seller was not a Kikuyu, before any negotiation could be concluded, the ground had to be set so that the legitimacy of the transaction would be recognised by both the seller's and buyer's societies. So, both had first to become members of one another's societies.
Thus the Dorobo seller was adopted as a Kikuyu and the Kikuyu became a Dorobo, so that both became bound by one another's laws. These steps were directed by the law-interpreting elders on both sides.
Once the Dorobo seller was a Kikuyu, he was protected by Kikuyu law and could appeal to the arbiters of Kikuyu law for protection in the event of any "breach of contract" or agreement. From that point on, while still a Dorobo, he had the rights of a Kikuyu; in effect, he had acquired dual nationality.
These adoption procedures were the route whereby the Kikuyu not only bought land off the Dorobo, but absorbed them and their families into Kikuyu society.
A point of great importance is that if the proper ceremonies supervised by the appropriate elders were not performed, then no land transaction would be recognised or protected by Kikuyu law.
Land was bought from the Dorobo by individual Kikuyu or by several in partnership. Such acquisitions were sometimes substantial - up to 50,000 hectares - and included all the assets such as the trees on them unless (as was the case with certain salt-licks considered essential for the community's livestock) specifically exempted in the sales agreement.
The land bought was known as the new owner's githaka (estate) and he became its mwathi (plural athi).
A landowner could sell or give all or part of his githaka to other individuals or partnerships.
He could stipulate (before the appropriate elders) that upon his death, part or all of should pass into the sole ownership of another person - most usually one son - or other people or specific parts of it to different sons.
Each person became the mwathi of what he had been bequeathed. In this manner, individual private land tenure could be passed down through successive generations.
Where, for example, land was purchased by or willed to several brothers jointly, the right of disposal was vested in the senior brother, though his siblings had some say in the matter, and an individual in a partnership could dispose of a part of the estate proportionate to what he had contributed towards its purchase.
Yet, as in British private company law, he had first to offer his portion to the other owners, giving them the option to keep the estate intact.
Such clear-cut wills and bequests were not common. More usually, a landowner died without making one. When this happened, his estate became the property of his descendants or mbari (sub-clan) and was controlled by the first-born sons of the deceased's widows. They were bound to provide cultivation space for their wives, widowed mothers and younger uterine brothers.
Whether land was owned privately or by an mbari was immediately apparent in its title: that in individual tenure was referred to, for example, as "the estate of Njoroge" while that which had passed into the possession of an mbari would be "the estate of Njoroge's mbari ."
As can be imagined, once ownership was vested in an expanding mbari and controlled by its adult male members acting in council, its management became progressively more complicated and litigious with each succeeding generation.
Kikuyu land law therefore recognised both private individual land ownership and communally owned land in the restricted sense of mbaris only.
In Facing Mount Kenya, Jomo Kenyatta stressed that all land was owned by individuals or mbaris and none was held communally in the sense that everyone had equal access to it.
The Kikuyu people certainly had a sense of what constituted "Kikuyu country," in which settlement by non-Kikuyu would have been resisted, but they did not apparently have commons open to all.
Of extreme historical importance was the fact that ownership was not restricted to land in actual use and did not lapse when lying fallow.
Some githakas contained substantial tracts of virgin forest and the fact that it was undeveloped in no way diminished ownership of the land.
To quote Leakey:
"...Kikuyu law provided for the formation of what would now be called forest reserves... Owners of large stretches of land had the absolute right to prohibit the felling of trees... Another reason for the prohibition of forest felling was the desire of some landowners to retain forest land for the use of their descendants. For this reason, a man who had bought a large area of forest sometimes left a deathbed curse prohibiting any of his descendants from ever bringing tenants onto the estate. This meant, of course, that much more of the forest land could be left undisturbed.
"Among forest patches that were preserved by the Kikuyu by means of definite curses before 1900, and which are still at least partly virgin forest today, may be mentioned the Karura Forest Reserve lying between Nairobi and Kiambu, and the Nairobi City Park. The former was made a reserve by four landowners jointly, their names being Tharuga, Gacii, Wang'endo and Hinga. The City Park was originally preserved by a man whose name was Kirongo, and who, by his own wish, was buried there when he died."
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