Native Lands and British Policy page 3

The Ormsby-Gore Commission of 1924 was followed by another under Sir Edward Hilton Young, and this Commission was in turn followed by the visit and report of Sir Samuel Wilson. The work of these Commissions was examined and consolidated in 1930-31 by the Joint Select Committee of both Houses of Parliament upon closer union in East Africa. This Committee sitting in the House of Lords was composed of ten Members of the House of Lords and an equal number of Members of the House of Commons. The Committee included the late Lord Stanley of Alderley as its first Chairman, Lord Passfield, Lord Cranworth, Lord Lugard, Mr. L. S. Amery, Mr. Charles Buxton, Sir Robert Hamilton, Lord Stanley and Mr. Ormsby-Gore. There was thus no lack either of talent, experience or authority.

What was the land position of Kenya when the Joint Select Committee was appointed? The best available material is supplied by Mr. Ormsby-Gore in his Report. It is important to bear in mind that the land policy adopted in Kenya must be to a considerable extent the key to any East African Land Settlement. The distribution is as follows:

(a)	Native Reserves in Colony	46,837 sq. miles
(b)	Forest Reserves in Colony	2,980 sq. miles
(c)	Land surveyed into farms	11,859 sq. miles
(d)	Area of Protectorate	2,200 sq. miles
(e)	Coast Province Extra Protectorate	13,980 sq. miles
(f)	Jubaland	36,740 sq. miles
(g)	Northern Frontier Province	92,180 sq. miles
(h)	Turkana	7,920 sq. miles
(i)	Remaining area	30,364 sq. miles
	Total	245,060 sq. miles

The white population is to-day about 12,000, of whom less than 3,000 are settlers. The Indian population numbers about 25,000, of whom most are colonists. The natives are about 2,500,000.

It will be seen from the foregoing table that whilst the natives outnumber the immigrant white and coloured races by more than 2,400,000, there is reserved for them only 47,000 square miles out of a total of 245,000 square miles.

Under the land expropriation by the Ordinance of 1915, and the consequent removals, the natives of Kenya Colony had become increasingly nervous even as to their occupancy rights in the reserves, for as Mr. Ormsby-Gore said: There is probably no subject which agitates the native mind to-day more continuously than the question of their rights in land, both collectively as tribes and individually as owners or occupiers. In this disquiet they are actively supported in their claims by the missionary bodies of all denominations. Uncertainty in regard to future land policy is certainly the principal cause of disquiet among the natives, more particularly of Kenya and Nyasaland.

It was emphasised by successive Commissions, and realised by the general public not only in England but in Kenya, that this situation could not be prolonged without real danger in East Africa, and it was decided in 1930 to vest the native areas in a formal Trust. These lands were so vested that they were declared to be for the use and benefit of the native tribes for ever'. (Italics mine. - J. H.) The natives could not lease any of the land, but the Governor might do so under certain very rigid conditions, but even then only after submitting the proposal to the Native Councils. Then followed the usual clause with regard to the minerals previously declared to be the property of the Kenya Government - namely, that if the Government should so lease any reserve land it could only be done on condition that an equivalent area were added to the native reserve area. There was also to be compensation for disturbance.

But the Joint Select Committee of 1930-31 was obviously uneasy, for in their recommendations upon the land question they urged upon the Colonial Secretary that: In view of the nervousness among the native population as regards the land question, a full and authoritative enquiry should be undertaken immediately into the needs of the Native population, present and prospective, with respect to land within or without the reserves, held either on tribal or on individual tenure. Pending the conclusion of this enquiry, no further alienation of Crown land to non-natives should take place except in exceptional cases with the sanction of the Secretary of State.

Alas, how soon were their obvious misgivings to be justified, for within three years legislation was introduced into and passed by the Legislative Council of Kenya Colony for the variation of the Trust in order to permit of the winning of gold in the native reserve areas, and that without the promised reference to the Native Councils.

With such a land record in Kenya Colony it can be no matter for surprise that the Joint Select Committee found strong aversion in neighbouring territories not only by the natives, but by white people, to any proposal to unite in 'closer union' Uganda, Tanganyika or Nyasaland with Kenya, for as they said in the Report: Both European settlers and Chambers of Commerce have expressed themselves as adverse to the making of any constitutional changes at the present moment of economic difficulty. The European witnesses from Uganda, both official and unofficial, consider that any union with Kenya would be most unpopular, and the native evidence was very hostile to it.

It is to be hoped that the Kenya settlers will learn from colonial history that again and again it has been demonstrated that the march alike of freedom and of justice cannot be arrested.

If West African land policy be heresy, it has priceless advantages without which East Africa can never be peaceful or prosperous - two of which are contentment among the native population, and co-operative effort in political and industrial progress between white and coloured people. What is that West African 'heresy'? The West African 'heresy,' as it is often called by East African settlers, is set forth with authority and in all its fullness by Lord Lugard in his masterly work, 'The Dual Mandate.' The guiding principles of the policy begin with the conception that ' the land belongs to the people' of the Colony and that the duty of the chiefs is to act as trustees. It then becomes the function of the Administration to see to it that this trust is carried out honestly. In the early chapters of this book emphasis has been placed upon what were at the time regarded as the 'visionary' principles of Buxton and his colleagues. In point of fact those 'visionary' principles were so instinctively sound that fifty years later the fundamental theories of Fowell Buxton were being put into practice by Sir John Rodger, Sir Hugh Clifford and Lord Lugard.

These principles reposed upon a right conception of relationship between white and coloured people - namely, that the African was at his best as a producer and a merchant, and not as a servile labourer. To give a definite illustration. The West African 'heresy' has covered the Gold Coast Colony and a large part of Nigeria with native cocoa plantations capable of supplying the whole world with cocoa at a price which gives these colonies a prosperity without parallel in colonial history. The East African 'heresy' forbids to the native the right to grow coffee on any land occupied by himself and his family! Lord Lugard first gives a picture of the native mind with which every student of Africa, and indeed, of most other primitive regions, will be familiar: 'To the native mind, uninfluenced by foreign ideas, land is an unsaleable thing. "We have power to dispose of the land; we cannot sell the land; no chief can sell the land," said a Lagos chief in evidence before the Supreme Court.' (Cd. 5103, p. 32.)

The West African policy next accepts the doctrine of Trusteeship, under which the Governor becomes the trustee and must only allow land transactions to take place within the limits of native law and custom, as Lord Lugard says: When a European Power succeeds to the domination hitherto wielded by a native conquering race, the control of the land, in so far as it was exercised by the latter, passes, if publicly claimed, to the new suzerain, and should be exercised in accordance with native law and custom. If the dominion was not vested in a conquering race, the controlling Power should interfere still less with customary law. Private and communal rights must be respected.

But the function of government does not stop with this guardianship of native land rights; the West African policy has always meant in practice 'the encouragement of small holdings, and their preservation against absorption in large estates, or alienation for debt; the utilisation of the land to the best advantage by permanent improvements; and the curtailing of shifting cultivation.'

The Administration of course possesses the right to take charge of bona fide vacant lands, and lands not in beneficial occupation, but as Lord Lugard says, this should only be done in the capacity of trustee and the proceeds from any development of waste land must be devoted to the public services.

It may be objected that such a land system debars the stranger from overseas from placing his energies and capital at the disposal of the Colony. It does nothing of the kind. The first principle of native ownership precludes the sale of the freehold, and quite properly so, because it is fundamental to native law and custom that the ownership shall not be alienated. Lord Lugard places the strangers seeking native land into a threefold category:

1. those who intend to identify themselves with the tribe, and by inter-marriage become merged into it in the second generation (these require no special protection);
2. those who settle on the land, but remain aliens to the tribe, and
3. land speculators, who are generally absentee landlords, and may perhaps have acquired title to land from a chief who had no right under native law to grant it, but did not understand the effect of the deed - probably drawn by a native lawyer - conferring individual ownership.

Native law and custom which is embedded in British West African legislation provides for class (a) and class (b), but every effort has been made to exclude from the West African Colonies those who come under class (c). The Colony of Kenya has reversed the order - pride of place has been given to class (c), namely, the land speculator, whilst little encouragement has been given to classes (a) and (b), who are primarily concerned with linking themselves in friendly and loyal co-operation with progressive natives and tribes.

If British East African land policy is theoretically sound, it cannot be denied that it is a pretty bankrupt one in practice.

If British West African land policy is a 'heresy,' then it is a sound economic heresy for all concerned in its usage.