MAASAI LAND : PART I Continued
"652. After the decision of the Government to continue the move in June 1912, the agitation to return to Laikipia became more acute, and Mr. A. Morrison, a local lawyer, was approached and took up the case on behalf of the Maasai. On 28th June Mr. Morrison addressed the colonial office intimating that he had been instructed by Legilishu to take proceedings against the government on behalf of the Maasai, and an action was brought in May, 1913 against the Attorney General, which was dismissed with costs by the Chief Justice. An appeal to the Court of Appeal for Eastern Africa in December was also dismissed, it being held:
"(1) The East African Protectorate is in relation to the crown a foreign country in which the crown has jurisdiction which is exercisable in accordance with the Foreign Jurisdiction Act 1900, and orders in council thereunder.
"(2) The Maasai, though living in the protectorate under the protection of the crown, were capable of entering into Agreements with the Governor, and such Agreements were in fact Treaties and, as such, claims thereunder are not cognisable in the Protectorate courts."
The British forced the Agreements on to the Maasai. The British think these Agreements, have, by a side wind, conferred the advantage of spasity to the Maasai Reserve in contrast to the congested other Native Reserves. The correct view is to blame that congestion on the British who also took those peoples' lands. The spasity in the Maasai Reserve be looked at in light of what obtains in the British settler Farms which are owned by individuals and run into thousands of acres. The British fair mindedness is able strangely to turn a blind eye on this! The British wished to off load what they themselves were responsible for onto Maasai land.
"661. Such great discrepancies cannot be explained simply by the differences in the quality of the land. Although there are certain arid and waterless tracts in the Maasai country, as is bound to be the case in so large an area, and some parts are fly infested, the greater part of the reserve includes some of the finest agricultural and pastoral land in Kenya, and the Maasai are probably the most wealthy tribe in Africa, both in the matter of land and the stock which they are able to keep on it. The agricultural land compares not unfavourably with that in the neighbouring Kikuyu sub district of Dagoretti, which is densely inhabited."
The initial and spirited praise the British bestowed on the Maasai had waned.
"663. In view of the fact that the Maasai were decaying and decadent race when British administration was established and that the protection given to them, in all probability, saved them from disaster, it seems clear that they have been treated in an unduly generous manner as regards land .."
"664. Under our first term of reference we are required to consider the need of the native population present and prospective, with respect to land, and the questions of distribution, inter penetration, and fluidity are extremely pertinent. But in respect of all that part of the Maasai Reserve to which the Agreement of 1911 applies, the land is declared to be received for the exclusive use and benefit of the Maasai Tribe and government has agreed not to convey any land within the boundaries, as defined in the Agreement, by lease or grant to any person without the consent of the paramount chief and the representatives of the tribe This is clear that not only Europeans, but even natives of other tribes are precluded from obtaining land in the Maasai Reserve on any reasonable security, unless the Maasai themselves agree. This they are unlikely to".
The leases proposed in the Report are like the ones of Areas A and B of Transmara District which at independence, the Maasai found it difficult to retrieve from the Luo fraternity. This was the beginning of the alien concept of non-Maasai people being taken in as acceptees in Maasailand. This concept finds no place in Maasai customary law. It is not the law that a whole community is accepted without conquest and defeat at war.
This thinking is clear :-
"668. When we turn from the interests of the Maasai and consider the interests of other tribes, it is clear that the permanent entail of a vast area of land for the benefit of a tribe which makes little use of it, and left to itself, would certainly not be able to keep it, must appear unjust; especially, when one at least, of the neighbouring tribes living in a state which borders on congestion. Nobody wishes to deprive the Maasai of their land "
"670. It may perhaps be argued that the Kenya annexation Order-in-Council dated 11th June, 1920, had the effect of rendering the Maasai Agreement null and void. But we are not so much concerned with the position in law as with the position in equity, and we are fully persuaded that the Maasai in equity are entitled to all the benefits of the Agreement just as it were still in force. But that does not mean that the Agreement cannot be amended by the elimination or modification of clauses which are not in reality beneficial to the Maasai."
It is not justified to base further takeover of the Maasai Reserve on the uneconomic use thereof. The British forced the Maasai to this area where the presence of tick borne diseases, tsetse fly and teeming wildlife made any economic user out of question. These are acknowledged in the Report.
"674. We have been moved to write this chapter by the necessity of calling attention to the maldistribution of native population, which would certainly be ameliorated if a less exclusive policy were adopted in the Maasai Reserve, the only point to which we have directed our attention is the necessity for securing a better distribution of the native population and a more economic use of the land".
The Kenya Land Commission Report, made it impossible for any future claim by the Maasai to the lands in the Rift Valley, to be entertained both by the British and the incoming African Government. That was their fate at the Lancaster House conference in London. It was the last straw. Other land losses came via gazetted Game Reserves :-
"714. A further point which has to be considered in connexion with the Maasai claims of rights is that a considerable part of their reserve was gazetted Game Reserve at the time of the 1904 Agreement still remain so.
"715. It is evident that the presence of large herds of game diminishes the available pasture and might be prejudicial to the development of the Maasai Reserve as an efficiently managed pastoral country, which we hope it will ultimately become.
"716. The game will not only consume much of the available grazing, but would also break down fences, and any steps which might be taken towards the eradication of ticks would be nullified. "717. But, with matters as they are, and are likely to remain in the near future the abolition of the Game Reserve at the present time would in our opinion be of no advantage to the Maasai and might even be detrimental to them.
"718. If the abolition of the Game Reserve were decided upon it is probable that Europeans would concentrate mainly on lion hunting, with the result that the number of herbivorous game might be increased rather than diminished. If, however, the Maasai in the future show a disposition towards improved pastoral or agricultural methods, any obstacles which the existence of a Game Reserve presented should not be allowed to stand in their way of useful development and the Game Reserve should be limited or abolished as circumstances dictate."
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