“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.
By gatuyu t.j
- 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 
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