The Death and Resurrection of Customary Trusts in Land

“Aye Africa Eh, eh Africa Oh Li panda: Aye Africa Eh, eh Africa Oh Liberté”.  In Africa, land was held by community, by tribe or by family. Some of it was reserved for common uses: ceremonials and rituals. Then, there came land adjudications. Individuals become registered as proprietors of this communal land. Instead of being trustees, they looted it. Customary trust in land was dead. It was dead because courts ruled. That customary trust in land was extinguished by registration. The age for the tragedy of the commons, began. 

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The Supreme Court of Kenya in session. Photo: Courtesy

By gatuyu t.j

  1. The Tragedy of the Commons

There was this piece of land. It was owned by the tribe, communally. The community used it as a field to conduct rituals. It was a venue for circumcision of boys, for public meetings, and a court yard to deliberate and settle disputes.

Along the way, the people were told. They could not use that land. Because someone had registered it under their name. But it was tribe’s land? It does not matter. Somebody, registered it.

The great grand father, left a swathe of land for the use by the clan. It was to be carried down the generations, to be used by all in perpetuity. The grandfather owned it on behalf of all. But in tune of time, there was born in the clan a mischievous son.

This son will go. He will register this family land under his name, depriving all others ownership rights. They will eventually be kicked. But this is our family land? It does not matter. They will be informed. The land belongs to that who registered it first, that who holds the title.

These are some of dire inequities that have flowed from pooh-pooing the concept of customary trusts, where one would hold property for the benefit of all. It has resulted to the tragedy of the commons, piling misery and hue on the people, in view that land in African context was often held communally.

2. Obiero v Opiyo: Misery unchained

Onset of colonialism saw a supplanting of foreign legal regime and wanton disregard of African cultures and civilisation. The white judges who superintended the courts rooms made little efforts to appreciate the complexity of an African society before making their judicial pronouncements. There work was only to impose the will of her Majesty the queen into the people. It did not always augor seamlessly.

Of the most pitiable, and devastatingly woeful judgement ever in context of property law, was by a judge called Bennett, in case of Obiero v Opiyo.

In this case, it was decreed that rights to land under African customary law became extinguished upon registration of the land in question, under the statutory regimes.

The ruling was inspired by the Swynnerton plan, a colonial relic of 1954, that Kickstarted the process of consolidation of land as a colonial governement policy to promote growing of cash crops by Africans.

With that, members of the clan or community lost the rights they had to communially owned property. The commons, were officially opened for a tragedy, in form of grabbing and exploitation.

3. A bench of home-gourds; a bar of zombies

The words of Bennett J in Obiero case, that customary law was incapable of creating a trust, would pass in today’s world as having a racist overtones.

The colonial land tenure policy it was based on had a sole aim of consigning customary land law, and rights flowing from them, into the dustbins. It was an off shot of bankrupt ideology that African customary law, to be applicable had to first to be tested, to ensure it was not ‘repugnant to justice and morality.’ Whose morality?

Unfortunately, for many years, the courts used the Obiero case as a precedent, meaning all the cases with similar facts that were presented, a similar holding was made.

The judges and lawyers continued citing and paying homage to it, like some programed bots. This illustrates the danger of having a legal profession, like we have, chained by a bondage of colonial legacy, which has taken very minimal effort to liberate and Africanise the philosophy of law.

Even to this date, you will see lawyers in court, without an iota of shame, appearing clad in black undertaker gowns and extremely ridiculous looking wigs. These are symptoms of house niggers, a Stockholm syndrome.

This narrow mindedness of the legal fraternity has led to a dearth of liberative and emancipatory jurisprudence, which would incubate the legal developments into unique context and circumstances of African civilisation.

The unthinking application of concept of precedent has only led to creation of sheepfold of bar and the bench. It is common to see able submission being made, furthering an obnoxious holding, because it was so ruled by Buffoon J, in the case of Stupid v Silly (1447) Idiots bench, pg 47.

4. The Supreme Court overturning of Obiero

In arguably its most landmark case ever, this month, our supreme court has eventually overturned the ignoble Obiero case. This was in the case of Isack M’inanga Kiebia v Isaaya Theuri M’lintari & another [2018]

In this case, the respondents (Isaaya Theuri and the rest) were members of a clan, which owned a large parcel of ancestral land. During the process of land adjudication, they agreed that the elder son, Isack Kiebia, may be registered to hold it in trust for them all.

The land in question had passed from generation to another in this family, and it was reserved for clan uses, on events such as burials and other traditional rites. Isack Kiebia, thought he was clever. He registered the land under his name. He kicked others out.

They went to magistrate court and he was told to return the land. He moved to high court and he lost. He appealed to the court of appeal, and again lost. He further moved to supreme court, where he also lost, settling the matter. “Oh! What A Tangled Web We Weave, When First We Practice To Deceive”

It is at the supreme court where he sought refuge in Obiero case. He argued, it did not matter what rights his clan members had in this land. What mattered, he was a registered proprietor of the land.

And by virtue of such registration, all rights flowing to others from customary trust in that land were extinguished. That moved the supreme court to delve deeper and overturn the doctrine in Obiero case.

5. The resurrection of the commons

The supreme court decision puts a temporary halt, in a small way, on the tragedy of the commons. This ruling comes late, when lands set aside for community events and rituals have been looted.

Other legislative initiatives have been attempted to reign on the issue, such as the enactment of the community land Act. But things are yet to be fine tuned. The customary trust in land, which formed a bedrock of land tenures in African cultures, is again, breathing.

The author is the Managing editor of the Gatuyuriana

Dear Strathmore Law School, Thomas Moore, was a bad man

By g.j

The Strathmore Law School, with assistance from Microsoft, has erected a magnificent building and named it in honour of Sir Thomas Moore. Helen of Troy! Why, would they do that? It is not amusing. Because Sir Thomas Moore, was not a good man. He was a bad man. Nothing should be named after him.

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Sir Thomas Moore. (Source:Wikipedia)

It is Thomas Moore, in his heyday, who presided over the burning of alleged heretics. These were people who failed to swallow the dogma of a triune godhead, that Moore advocated, outlining that there are three gods in one, god the father, god the son, and god the holy ghost.

In those days, Arius of Alexandria, had managed to spread Arianism, which dismissed the concept of triune godhead and trinity. This was before the great convention of bishops at Nicaea, where the pragmatic emperor Constantine, the founder of modern Christianity, tried the stop the great schism in the universal church.

Emperor Constantine would try to bring consensus  among the See of Rome, the see of Jerusalem, the see of Antioch, and the see of Constantinople, and bring an ecumenical unity. It is where the doctrine of trinity arose.

The trinity doctrine failed to sink by way of persuasion. It had to be enforced by way of coercion.

Thomas Moore came. He oversaw the burning of ancient manuscripts, and all writings that were deemed to have ungodly contents. He led in the grand scale destruction of knowledge, more than any other person in his days.

Thus, it is extremely disheartening, to see an institution that seeks to advance learning and accumulation of knowledge, has no remorse glorifying a knowledge villain, even to name a temple of knowledge in his honor. It is akin to resurrecting a Jezebel. Sir Thomas Moore, was an evil man.

Thomas Moore strode like a colossus,  killing alleged heretics and burning manuscripts with purported blasphemy.  Until his fall, came. His fall came when his boss, King Henry VIII, using King’s other evil stooge, Moore’s namesake, Thomas Cromwell, tried to coerce Thomas Moore to accept Anne Boleyn as the new queen of England.

Moore disagreed with King Henry’s on this aspect of getting a second wife. He was beheaded. The manner of his death was fair. He lived by the sword. He died by the sword. Fulfilling what was decreed. ‘Those who live by the sword, shall die by the sword.’

In the run up to Moore’s death, the wife of King Henry VIII, the charismatic Catherine of Aragon, had, unfortunately, failed to bear him a child, a heir. He wanted to divorce her and remarry. He sought the blessings and approval of Vatican. The pope declined.

Just the way, the current England, became wary of EU and incensed with taking orders from Brussels, culminating to Brexit, similar script played. For failing to get an approval to divorce his wife, King Henry was now tired of Rome, time was ripe for churchexit.

King Henry then disowned Vatican. He founded his own church. In that year of the lord 1534, the church of England, or the Anglican church, was founded, and King Henry VIII declared himself as the supreme head of the Church of England.

This resulted in a schism with the Papacy. But the mischievous King Henry, had to ensure he is the leader of this church, to ensure there would be no further hurdles, in his remarrying. So it became, and in remarrying, he did.

The first declaration by King Henry, now doubling as the Archbishop of Canterbury, was to allow his divorce and to remarry. He eventually divorced Catherine of Aragon and married Anne Boleyn. Things, men, do, for love (lust)!

He will into a marriage spree, including marrying one Anne of Cleves, who he married, but weirdly, forgot to consummate the marriage. Anne of Cleves, will be nicknamed the King’s beloved sister.

Thomas Moore opposed king’s separation from the Catholic Church. He refused to acknowledge Henry as Supreme Head of the Church of England. He refused to endorse annulment of King’s marriage to Catherine of Aragon.

He was playing naive games. His stand on this issues, was more political than theological. He did not see the games that were being played. Thomas Cromwell, had to deal with him.

It is why, after refusing to take the Oath of Supremacy, Thomas Moore was convicted of treason and beheaded. Of his execution, he was reported to have said: “I die the King’s good servant, and God’s first.” He had spent his life burning religious heretics. He was beheaded for being a political heretic.

Pope Pius XI canonised Moore in 1935 as a martyr. The declaration was shambolic, for Moore was a martyr of no shade. In 2000, Pope John Paul II declared him the “heavenly Patron of Statesmen and Politicians.” The Soviet Union honoured him for the purportedly communist attitude toward property rights expressed in Utopia. These were mere rhetorics.

History of catholic church is littered with villains being declared servants of god. In the past, the process of canonization did stink. Pope John II had to issue a public apology, including being sorry for other atrocities committed by Vatican. Sainthood of Thomas Moore was one of those bogus events.

As GR Martins, in his Game of Thrones fantasy would note, Thomas Moore refused to bend the knee, and paid with the price of death. There may be some honour in him being a man who stood by his convictions, however naive. He knew the price of refusal to bend the knee.

Moore’s Johnny come lately antics do not cleanse his murderous and inglorious reign. His evil nature and deeds, in presiding the massacre of heretics and destruction of knowledge, by burning manuscripts. His legacy is so rotten, no revisionist history can assuage, no detergent can cleanse.

Thomas Moore, was an evil man.

It is therefore extremely unfortunate, Strathmore law school would name their campus in honour of such a villain, who contributed towards destruction of knowledge. Even a remote association with Thomas Moore, is defamatory.

Had a law school in a public university (or a gangster law school), been the one that named a building in Moore’s honour, we would have called for the fall of such naming. But we cannot do so. For we are informed, this school, has well mannered lads and lasses of finer breed, who only want to excel and get recruited by white shoe firms, and live happily thereafter. Other things, are unmannerly and less rosy.

We will not impute anything that may be connoted as calling for a defilement of such cherished decorum. But it cannot be hidden. It cannot be disguised. Thomas Moore, was a bad. Nothing, should ever be named in his honour.

The end of cryptos

bitcoinThe scalability of Bitcoin has burst. The trust in Ether is toast. All other ‘shitcoins’, released in dodgy initial coin offerings, have hit the dust. It is the end of crypto mania. Why so?

Your blogger will have a unit in one of the cryptos. He will be given a key upon purchase, to secure the wallet. He will jot down the key in a piece of paper. He will misplace the paper. With that, all his crypto wealth, will vaporize.

The value was minimal, there was no mourning. But it shows the treadmill life of the crypto millionaires. Ensuring security of their wealth, is akin to a game of roulette.

Vatalik Buterin, the founder of Ether, a crypto, has recently formulated the ‘inconsistency trinity’ theory of cryptos. He avers that it is impossible, at the same time, to assure scalability, decentralisation, and security of cryptos. This admission, unfortunately, herald the eventual end of cryptos.

For cryptos have to be scalable, to create value and utility. They have to be decentralised, to be out of regulatory control. They have to assure security, to be trusted. None of these pillars can be sacrificed and have a tenable crypto ecosystem.

But this is not possible, as Vitalik admits. The crypto mania is deal. All cryptos, apart from the first mover Bitcoin, are just shitcoins, created by carnival backers and scammers, with price manipulated by criminal insiders, with lots of front running and insider dealings. They are useless heaps of sh*t. Even the so called tokenisations are just con schemes.

However, Bitcoin may remain for a while, not as a currency, but as a digital commodity. Bitcoin will survive because Satoshi Nakamoto, the inventor of Blockchain, seems to have been driven by good ideals, of removing financial transaction from controlled financial system.

Bitcoin is also not scalable, and has little value on life of humanity.  Efforts to ensure that Bitcoin is used as a unit of measure have failed. There have been two hard forks, where they have created SegWit2 (Segregated Witness two), birthing Bitcoin Cash and Bitcoin Classic. This, too, has failed. Transaction costs with Bitcoin are just ridiculous. The mining is a an economic disaster, due to high energy consumption.

Patrick Njoroge, the governor of the Kenyan central bank, has hailed the technology behind Bitcoin, as having utility. Blockchain is overrated junk. Your blogger has attended workshops, where frenzied pretenders, are hailing blockchain as the solution to all problems facing humanity, from fighting poverty to financial inclusion. Like what a hell? Its just distributed ledgers. Just a fancied spreadsheets.

We come back to crytos. These scams have met the end of the road. Bitcoin may remain as a commodity, for the supply is capped to only 21 Million units. But all other scam coins, the shitcoins, rest in peace.