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Colonial Township Laws and Urban Governance in Kenya

  • Robert Home

Abstract

Rapid population and urban growth in Africa pose severe challenges to development planning and management. This article argues that weak urban governance in Kenya results from the colonial legal order's shaping of urban form. Kenya's colonial laws, drawing from those in other British colonies (especially South Africa) and British statute law on local government, public health, housing and town planning, controlled African labour and movement, and Africans' relation to towns. These laws included ordinances on registration, “master and servant” and vagrancy, while detailed township rules enforced racial segregation and exclusion; the Feetham Commission (1926) led to a hierarchy of local authorities, with no African representation until the 1950s. The dual mandate ideology resulted in different land tenure in the white-settled areas and trust lands; the late introduction of individual land ownership in the trust lands created problems of peri-urban, unplanned development outside the old township boundaries.

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1 Rakodi, C (ed) The Urban Challenge in Africa: Growth and Management of Its Large Cities (1997, United Nations University Press).

2 Blomley, N et al. (eds) The Legal Geographies Reader (2001, Blackwell); Robinson, JThe Power of Apartheid (1996, Butterworth-Heinemann); Darian-Smith, E and Fitzpatrick, P (eds) Laws of the Postcolonial (1999, University of Michigan Press); Hasian, MColonial Legacies in Postcolonial Contexts: A Critical Rhetorical Examination of Legal Histories (2004, Peter Lang); Home, ROf Planting and Planning (1997, Spon); McAuslan, PBringing the Law Back In: Essays in Land, Law and Development (2003, Ashgate).

3 Berman, BControl and Crisis in Colonial Kenya (1990, James Currey); Berman, B and Lonsdale, JUnhappy Valley (1992, James Currey); Furedi, FThe Mau Mau War in Perspective (1989, James Currey); and Kanogo, TSquatters and the Roots of Mau Mau (1987, Heinemann).

4 See, however, Kanyeihamba, G and McAuslan, P (eds) Urban Legal Problems in Eastern Africa (1978, Scandinavian Institute of African Studies).

5 For Kisumu see Anyumba, GKisumu Town: History of the Built Form, Planning and Environment: 1890–1990 (1995, Delft University Press). For Nairobi, see Barnow, F et al. Urban Development in Kenya: The Growth of Nairobi 1900–1970 (1983, Aurora Publishers); Hake, AAfrican Metropolis (1977, Chatto & Windus); Nevanlinna, AKInterpreting Nairobi (1996, SHS Helsinki); Ross, MHGrass Roots in an African City (1975, MIT Press); and Werlin, HHGoverning an African City (1974, Africana). For Mombasa, see Stren, RHousing the Urban Poor in Africa: Policy, Politics and Bureaucracy in Mombasa. (1987, Berkeley); Cooper, FOn the African Waterfront: Urban Disorder and the Transformation of Work in Colonial Mombasa (1987, Yale University Press).

6 Griffiths, JWhat is legal pluralism?” (1986) 24 Journal of Legal Pluralism and Unofficial Law 1 at 6.

7 “Introduction” to the first published reports of the East African Protectorate Law Reports (EAP Law Reports) (1906, Stevens & Sons) at 1. The Foreign Office took over the East African Protectorate from the Imperial British East Africa Company in 1895, with Uganda added in 1902, and transferred responsibility to the Colonial Office in 1905. The Kenya colony and protectorate came into existence in 1920. See Ghai, Y and McAuslan, PPublic Law and Political Change in Kenya (1970, Oxford University Press), especially chap 1.

8 Native was defined as “a native of Africa, not being of European or Asiatic origin and including any Swahili or Somali”: “Introduction”, ibid.

9 The Application to Natives of Indian Acts Ordinance 1903 related to some 30 Indian acts. It reflected the importance of Indian immigration into the protectorate, India's role as imperial Britain's most important colonial possession, and a laboratory for utilitarian law-making and social management. See Stokes, EThe English Utilitarians and India (1959, Clarendon).

10 Cotran, ECasebook on Kenyan Customary Law (1987, Professional Books).

11 An average of 47 ordinances a year were passed in Kenya between 1925 and 1934, and 42 between 1935 and 1944 (derived from reports in Journal of Comparative Legislation and International Law).

12 In 1929 Africans comprised 97.6%, Indians 1.9% and Europeans 0.5% of a total population of just over 3 million. See Okoth-Ogendo, HTenants of the Crown: Evolution of Agrarian Law and Institutions in Kenya (1991, ACTS Press) at 48.

13 Maxon, RThe Devonshire Declaration” (1991) 18 History in Africa 259.

14 Parliamentary answer on 6 July 1926 in CO 533/606 (Kew).

16 Who Was Who (Oxford University Press) records the service of some of them. JW Barth (1871–1941) was registrar, then attorney-general and chief justice in the East African Protectorate and Kenya between 1902 and 1934; he chaired the Labour Commission in 1912–13 and edited the first edition of Laws of Kenya. Sir William Morris Carter (1873–1960) was registrar, judge and chief justice in the East African Protectorate, Uganda and Tanganyika between 1902 and 1924; he chaired land commissions in Southern Rhodesia (1925) and Kenya (1932–33), and subsequently served on the Royal Commission on Palestine (1936–37). Sir Walter Huggard (died 1957) served in Nigeria and Trinidad and Tobago before being attorney-general in Kenya (1926–29); he subsequently worked in the Straits Settlements and South Africa, retiring to live in the latter. Sir William Hamilton (1867–1944) served in Dominica and Lagos, then in the East African Protectorate from 1897 to 1920, becoming chief justice; he was secretary to the Land Committee in 1904.

17 Minute by Bottomley, 25 May 1926 in CO 533/605 (Kew).

18 Dilley, MBritish Policy in Colonial Kenya (1937, Frank Cass) at 18.

19 Two governors, Girouard (1909–12) and Northey (1918–22), had married white South Africans while serving there. Kenya's chief land surveyor, Arthur Baker, was the brother of Herbert Baker, the architect of union public buildings in South Africa. Christiaan Felling, a South African originally from German South-West Africa, was general manager of Kenya railways from 1922 until his death in 1928.

20 Kennedy, DIslands of White: Settler Society and Culture in Kenya and Southern Rhodesia, 1890–1939 (1987, Duke University Press) at 210, note 41.

21 Following protests from Africans and pressure upon the Labour government of the day, the so-called kipande laws were repealed in 1947, only to be re-introduced during the state of emergency to control the movement of those labelled as insurgents.

22 Clayton, A and Savage, DGovernment and Labour in Kenya 1895–1963 (1974, Frank Cass) at 12. For South Africa, see Hindson, DPass Controls and the Urban African Proletariat in South Africa (1987, Ravan Press).

23 The Registration of Natives Ordinance followed an earlier Master and Servants Ordinance 1906, itself based upon Gold Coast and Transvaal legislation: Anderson, D (2000) “Master and servant in colonial Kenya, 1895–193941 Journal of African History 459.

24 Circular 1 of 1905 EAP Law Reports, above at note 7 at 156.

25 Parker, MPolitical and Social Aspects of the Development of Municipal Government in Kenya (1950, School of Oriental and African Studies) at 122 and 129.

26 Hodges, GThe Carrier Corps: Military Labour in the East African Campaign 1914–18 (1986, Greenwood Press).

27 Parker Political and Social Aspects, above at note 25 at 160. In 1947, 328 Europeans and 71 Indians were recorded as earning over £2,000 each per annum, but not a single African.

28 Regulations for townships were first made under the East Africa Order in Council 1897.

29 Gazette notice of 7 September 1903: Township Rules in Laws of Kenya (1928, Waterlow) at 43.

30 In Laws of Kenya (ibid), the largest of 22 titles was IX (local government) which comprised 427 pages (28%) out of a total of 1504 pages; by contrast title XVI (native affairs) was only 36 pages long.

31 E Sockett Township Law of the East African Protectorate (1918, Government Printer Nairobi).

32 Lord Lugard The Dual Mandate in British Tropical Africa (1922, Frank Cass). In Kenya the “dual policy” after 1922 had a somewhat different meaning, referring to the “complementary development” of African peasant farming alongside white plantation agriculture: Dilley British Policy, above at note 18 at 179.

33 Kenya Townships Act 1902.

34 CO 533/711 and CO 533/513/1 (Kew).

35 Governor Grigg to Colonial Secretary Amery, 25 June 1926 in CO 533/605 (Kew).

36 Hyam, RBureaucracy and ‘trusteeship’ in the colonial empire” in Oxford History of the British Empire (1999, Oxford University Press) 250 at 255.

37 Telegram of 21 May 1926 in CO 533/605 (Kew).

38 Letter from Governor Grigg to Colonial Secretary Amery, 23 July 1926, in CO 533/605 (Kew).

39 W Logan “A paper on local government in Kenya”, id at 5.

41 Bottomley, 25 May 1926, in CO 533/605 (Kew).

44 Letter to his mother of 14 December 1926 in Feetham papers (in Rhodes House Library). Sir Richard Feetham (1874–1965) had worked in South Africa since 1902, first as town clerk of Johannesburg (1903–05), then as a barrister and politician; in 1923 he was appointed to the bench of the Supreme Court (Transvaal Division). He had served on the Southborough Committee on Constitutional Reform in India (1918–19) and the Irish Boundary Commission (1924–25): Who Was Who, above at note 16, and Dictionary of National Biography. The other two members of the commission were Attorney-General W Huggard and Lands Commissioner H Martin.

45 Letter from Governor Grigg, above at note 38.

47 The other municipalities at the time were Nairobi, Mombasa, Nakuru, Naivasha and Kitale.

48 Councillor Giles in 1924, quoted in Parker Political and Social Aspects, above at note 25 at 184.

49 Minority report to Select Committee (1931): CO 533/414/3 (Kew).

50 Myers, GAVerandahs of Power: Colonialism and Space in Urban Africa (2003, Syracuse University Press).

51 Parker Political and Social Aspects, above at note 25 at 1.

52 Hobley, CKenya: From Chartered Company to Crown Colony (1929, reprinted 1970, Frank Cass) at 230.

53 Parker Political and Social Aspects, above at note 25 at 99.

54 “Memorandum on legislation and regulations in Kenya affecting natives living in municipalities and townships” (1931): CO 822/37/9 (Kew).

55 The principal advocate of racial segregation through town planning at the time was Prof WJR Simpson. See his report “Sanitary matters in the East African Protectorate, Uganda and Zanzibar” (1915): CO no 1025, and Simpson, WJRPrinciples of Hygiene as Applied to Tropical and Sub-Tropical Climates (1908, John Bale). See also Baker, R and Bayliss, R (1987) “William John Ritchie Simpson (1855–1931)31 Medical History 450.

56 Laws of Kenya, above at note 29 at 254.

57 Kisumu Township Rules, sec 85.

58 Id, sec 87.

59 Colonial annual report, quoted in Anyumba Kisumu Town, above at note 5 at 100.

60 Williams, GReport on the Sanitation of Nairobi, and the Townships of Naivasha, Nakuru and Kisumu (1907, Wellcome Foundation Library: WA670, HK4).

61 Id at 11.

62 Id at 8.

63 Id at 13.

64 Parker Political and Social Aspects, above at note 25 at 71.

65 Williams Report on the Sanitation, above at note 60 at 12.

66 Parker Political and Social Aspects, above at note 25 at 100.

67 Swanson, MThe Durban System: Roots of urban apartheid in colonial Natal” (1976) 2 African Studies 159.

68 “Memorandum on legislation”, above at note 54.

69 Employment of Natives Ordinance 1910, sec 24.

70 Williams Report on the Sanitation, above at note 60 at 12.

71 Parker Political and Social Aspects, above at note 25 at 103.

72 EAP Law Reports, above at note 7 at 99.

73 Hay, A and Harris, RShauri ya Sera Kali: The colonial regime of urban housing in Kenya to 1939” (2007) 34 Urban History 504; Hay, A and Harris, RNew plans for urban housing in Kenya, 1939–1963” (2007) 22(2) Planning Perspectives 195; Harris, RFrom trusteeship to development: How class and gender complicated Kenya's housing policy, 1939–1963” (2008) 34 Journal of Historical Geography 311.

74 See Okoth-Ogendo Tenants of the Crown, above at note 12.

75 A land registration system introduced in South Australia in 1858 by Robert Torrens, in which the government is the keeper of the master record of all land and its owners.

76 Annual Report of Commissioner for Local Government (1945, Government Printer Nairobi) at 20.

77 Id (1947) at 30.

78 Id (1946) at 31.

79 Parker Political and Social Aspects, above at note 25 at 101.

80 Swynnerton, RA Plan to Intensify the Development of African Agriculture in Kenya (1954, Government Printer Nairobi).

81 Coldham, SThe effect of registration of title upon customary land rights in Kenya” (1978) 22 Journal of African Law 91 at 110.

82 Ndungu Commission Commission of Inquiry into the Illegal / Irregular Allocation of Public Land (2002, Kenya Government Printer); Southall, AThe Ndungu Report” (2005) Review of African Political Economy 103 at 142. Ndungu conservatively estimated that some 200,000 illegal titles were created between 1962 and 2002, mostly after 1986, while the extended families of the past three presidents allegedly hold a tenth of the productive farmland in Kenya.

83 Kisumu City: A Strategic Framework (2007, UN-Habitat) at 18; Kisumu District Development Plan 2002–08 (2008, UN-Habitat).

84 Similar methods were used during the enclosures movement in Britain for landowners to enlarge or engross their holdings. See Neeson, JCommoners: Common Right, Enclosure and Social Change in England, 1700–1820 (1994, Cambridge, University Press).

85 Situation Analysis of Informal Settlements in Kisumu (2005, UN-Habitat) at 15.

86 M Baker “Citizenship on the septic fringe: Urban social policy and peri-urban development in Kisumu, Kenya” (2002, unpublished PhD thesis).

87 Derrida, J (2006) Specters of Marx (2006, Routledge).

88 See Van Der Walt, AProperty in the Margins (2009, Hart).

89 Constitution of Kenya (2010, Kenya Government Printer), secs 62–65.

90 Id, sec 68(a).

91 Id, sec 67(2)(e).

92 United Australia Ltd v Barclays Bank Ltd [1941] AC 1 at 29.

* Professor of land management, Anglia Ruskin University, UK. The author wishes to acknowledge the help of Bob Awuor and Leah Onyango during his field work in Kisumu in 2010.

Colonial Township Laws and Urban Governance in Kenya

  • Robert Home

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