In Africa South of the Sahara, history was traditionally passed down the generations orally. Information was acquired gradually throughout life by listening to one’s elders in a gentle, unhurried process.

The colonial era, modern technology, and new ways burst upon this scene as cultural tsunami. Suddenly, information was transmitted by writing – a skill that the old timers did not have.

Education gave seniority to the young and the old ceased to be teachers. Life’s pace became ruled by the wristwatch. Generations were divorced as the young and educated sought distant employment. Information came from reading which, because they were illiterate, the elders could not correct.

For these and many other reasons, history became a casualty and modern Africa knows tragically little about its unwritten past.

In his review of Louis Leakey’s The Southern Kikuyu Before 1903 (The East African, September 22-28), Joe Gichuki recognised the work is a remarkable exception in this historical vacuum.

A white man with a formidable intellect who grew up with the Kikuyu and was accepted as a member of the Mukanda age grade and qualified as a second-class elder, had captured the old customs, traditions and knowledge in writing and immense detail.

Helped by elders, his three volumes make an historical bridge between the unwritten past and modern times. None of Kenya’s more than 40 other peoples have anything like it.

Though famous for his work on the origins of man, I think this anthropological record of the pre-colonial Agikuyu was Leakey’s greatest achievement.

The three volumes are not an easy read and so full of detail that few can absorb it in a single reading. Written from 1937-38, they were only published 40 years later and another 30 years passed before Leakey’s son Richard, Joe Gichuki and The East African brought it back to public attention.

Understanding traditional Kikuyu land law and custom is relevant to modern times.

First, briefly, who are the Kikuyu? A people of this name appear have been established over 300 years ago on the eastern slopes of the Aberdares in Muranga.

Given the similarities of language and custom, they had clear connections with the Akamba, and the people of Meru and Embu. They also had close relationships with the Maasai.

Radiating out from Muranga, the Kikuyu spread north and south along the forested lower Aberdare slopes.

By 300 years ago, some had crossed the Southern Chania river into what are now Thika and Kiambu Districts.

How did they get land? Misty folklore and oral evidence implies that early on the forest-dwelling Agumba were chased away and dispossessed of land by force.

However, Leakey records that south of the Southern Chania land was purchased from Dorobo (probably Ogiek – or a group akin to them?)

By Kikuyu law, buying land was complicated. The currency was goats or their equivalents.

If the seller was not a Kikuyu, before any negotiation could be concluded, the ground had to be set so that the legitimacy of the transaction would be recognised by both the seller’s and buyer’s societies. So, both had first to become members of one another’s societies.

Thus the Dorobo seller was adopted as a Kikuyu and the Kikuyu became a Dorobo, so that both became bound by one another’s laws. These steps were directed by the law-interpreting elders on both sides.

Once the Dorobo seller was a Kikuyu, he was protected by Kikuyu law and could appeal to the arbiters of Kikuyu law for protection in the event of any “breach of contract” or agreement. From that point on, while still a Dorobo, he had the rights of a Kikuyu; in effect, he had acquired dual nationality.

These adoption procedures were the route whereby the Kikuyu not only bought land off the Dorobo, but absorbed them and their families into Kikuyu society.

A point of great importance is that if the proper ceremonies supervised by the appropriate elders were not performed, then no land transaction would be recognised or protected by Kikuyu law.

Land was bought from the Dorobo by individual Kikuyu or by several in partnership. Such acquisitions were sometimes substantial – up to 50,000 hectares – and included all the assets such as the trees on them unless (as was the case with certain salt-licks considered essential for the community’s livestock) specifically exempted in the sales agreement.

The land bought was known as the new owner’s githaka (estate) and he became its mwathi (plural athi).

A landowner could sell or give all or part of his githaka to other individuals or partnerships.

He could stipulate (before the appropriate elders) that upon his death, part or all of should pass into the sole ownership of another person – most usually one son – or other people or specific parts of it to different sons.

Each person became the mwathi of what he had been bequeathed. In this manner, individual private land tenure could be passed down through successive generations.

Where, for example, land was purchased by or willed to several brothers jointly, the right of disposal was vested in the senior brother, though his siblings had some say in the matter, and an individual in a partnership could dispose of a part of the estate proportionate to what he had contributed towards its purchase.

Yet, as in British private company law, he had first to offer his portion to the other owners, giving them the option to keep the estate intact.

Such clear-cut wills and bequests were not common. More usually, a landowner died without making one. When this happened, his estate became the property of his descendants or mbari (sub-clan) and was controlled by the first-born sons of the deceased’s widows. They were bound to provide cultivation space for their wives, widowed mothers and younger uterine brothers.

Whether land was owned privately or by an mbari was immediately apparent in its title: that in individual tenure was referred to, for example, as “the estate of Njoroge” while that which had passed into the possession of an mbari would be “the estate of Njoroge’s mbari .”

As can be imagined, once ownership was vested in an expanding mbari and controlled by its adult male members acting in council, its management became progressively more complicated and litigious with each succeeding generation.

Kikuyu land law therefore recognised both private individual land ownership and communally owned land in the restricted sense of mbaris only.

In Facing Mount Kenya, Jomo Kenyatta stressed that all land was owned by individuals or mbaris and none was held communally in the sense that everyone had equal access to it.

The Kikuyu people certainly had a sense of what constituted “Kikuyu country,” in which settlement by non-Kikuyu would have been resisted, but they did not apparently have commons open to all.

Of extreme historical importance was the fact that ownership was not restricted to land in actual use and did not lapse when lying fallow.

Some githakas contained substantial tracts of virgin forest and the fact that it was undeveloped in no way diminished ownership of the land.

To quote Leakey:

“…Kikuyu law provided for the formation of what would now be called forest reserves… Owners of large stretches of land had the absolute right to prohibit the felling of trees… Another reason for the prohibition of forest felling was the desire of some landowners to retain forest land for the use of their descendants. For this reason, a man who had bought a large area of forest sometimes left a deathbed curse prohibiting any of his descendants from ever bringing tenants onto the estate. This meant, of course, that much more of the forest land could be left undisturbed.

“Among forest patches that were preserved by the Kikuyu by means of definite curses before 1900, and which are still at least partly virgin forest today, may be mentioned the Karura Forest Reserve lying between Nairobi and Kiambu, and the Nairobi City Park. The former was made a reserve by four landowners jointly, their names being Tharuga, Gacii, Wang’endo and Hinga. The City Park was originally preserved by a man whose name was Kirongo, and who, by his own wish, was buried there when he died.”

Leakey's use of the word “curse” does not have the wholly dark connotations of its English usage, but more the sense of a binding commitment with penalties for those who broke it.

The curses had to be made publicly in the presence of the appropriate elders. An oath or curse broken would deeply offend the spirit world in which the Kikuyu believed implicity.

Spirits would punish not only the person who broke an oath or curse but also that person’s relatives as well. Consequently, all relatives tried to make sure that a person did not make curses and oaths lightly and once made, that they were not broken.

Thus, while not having written contracts, the Kikuyu had an effective system of making sure agreements and wills sealed by curses were not broken.

Obviously, the number of people any githaka could support was limited. Increasing numbers produced pressure to move elsewhere.

Young men hoped to become wealthy enough to buy land – either from the Dorobo or another landowner, and found their own mbaris.

Yet in relative terms, becoming a mwathi was always expensive, and beyond most men’s means.

Those who felt crowded on their natal mbaris had the option to become a residential tenant (muthami = tenant-in-residence, plural athami) of a rich man or of an mbari that had vacant land, or to cultivate on someone else’s property as a muhoi (tenant-at-will, plural ahoi).

New githaka owners usually wanted to develop them and needed manpower on hand for defence.

Consequently they were keen to have athami living on their properties. Both landlord and residential tenants had responsibilities to one another that were recognised in customary law.

Of particular importance, a muthami could only be evicted if he or his family were guilty of serious offences, or if the land was needed by the landlord’s family.

In the latter case, the tenant was entitled to ample notice and allowed to reap standing crops. A muhoi had less security and had to make certain regular but not onerous donations to the mwathi or mbari on whose land he was allowed to cultivate.

As a safeguard against eviction merely so the landowner could benefit from the tenant having cleared land and made it ready for cultivation, landowners had to let such land revert to bush before it could be cultivated again.

A tenant’s rights expired upon his death and had to be renegotiated with the landlord by his family if they wished to continue the tenancy. If a landowner sold his land to another party, his tenants had to negotiate new tenancies with the new owner. Overall, though, customary law afforded tenants security.

The foregoing is a brief synopsis of Kikuyu land tenure. It was simple in theory, becoming complex in practice when mbaris increased in size.

It illustrated that the Kikuyu were not a classless society. Through their land tenure, society was stratified between landowners, athami tenants-in-residence who could nonetheless be men of substance and the ahoi tenants-at-will at the bottom end of the scale.

There were, however, no barriers to a diligent muhoi moving up the social scale to become a landowner. While obviously not codified in writing, Kikuyu land tenure had many similarities to British land law.

Many early colonial administrators believed that because most African farmers practised slash-and-burn agriculture and had to move to new land every few years, they would not have evolved long-term land ownership.

Whatever ground they had for thinking that the absence of a cultivator in residence meant land was not owned, they were fundamentally wrong where the Kikuyu were concerned.

Yet on that false assumption, in 1903/4 the government allocated some Kikuyu land to the white settlers it had invited to come to Kenya, establishing a taproot for the Mau Mau rebellion 49 years later.

Another potent fuel for Mau Mau was the “squatter problem.” White settlers were invited by the colonial government to bring capital to Kenya and develop large-scale agriculture.

In 1903 tractors, bulldozers and combine harvesters were still tools of the future; large-scale farming rested in the main on abundant manual labour.

The new settlers felt that as the government had invited them to come to Kenya, it must help provide the labour without which they could not farm on a large scale. However, the government was ambivalent about this and because it had not foreseen the need for labour, it dithered.

This led some settlers to address the problem themselves by approaching the Kikuyu directly.

In return for providing specified quotas of work, they would allow Kikuyu and their families to live on their farms, grow crops and keep livestock.

Those making this offer were unaware that, to the Kikuyu, it was tantamount to becoming athami with access to the wide acres that had previously only been grazed by Maasai, under the protection of the white athi.

Many Kikuyu jumped at the opportunity and became athami on white-owned farms.

That the wazungu called them “squatters” didn’t change the reality. Initially, the relationship worked well, though because they stuck to crops they knew well, the squatters actually did better than their landlords.

The whites did not know the Kikuyu procedures for setting up binding agreements.

Without the appropriate ceremonies demanded by Kikuyu law, some athami were not too particular about sticking to agreements and brothers and their families arrived under guise of being sons etc. to share in the squatter opportunities.

It was not long, though, before there was friction between the two parties as some settlers began to suffer competition from squatter livestock and cultivation on their own land.

The government could see what was happening and introduced a succession of Resident Labour laws that sought to control and restrict squatters.

The detail of these laws would take a book to explain, so suffice it here that they were disliked by the squatters and not followed closely by the settlers either.

Whatever the competition between them, it is obvious that the system was beneficial to both as by 1933 there were over 110,000 Kikuyu living outside the Kikuyu districts – most of them on white farms.

By 1945 there were 121,181 Kikuyu squatters in the White Highlands – that is, for every one of the 3,000 or so white settlers, there were 40 Kikuyu.

Mechanisation, which developed rapidly after 1920, reduced the white farmers’ need for labour, while giving them the ability to cultivate more of what they owned.

Both trends put the athami under growing pressure to either become simple employees without farming rights, and/or to return to Kikuyuland.

By now, many squatter children had not only been born on the white farms, but had grown to adulthood on them.

Not unnaturally, this developed, if not a feeling of actual ownership, then at least the strong athami sense of belonging on that land and the expectation of the protection that Kikuyu land and social law would have provided for tenants.

With neither side understanding the other’s basic position, bad feeling was inevitable, contributing strongly to what ended in Kikuyu rebellion. Ignorance was at the centre of what happened in the 1950s.

The 1933 Report of the Kenya Land Commission is still one of the most reliable historical records in Kenya.

Yet where the Kikuyu were concerned, it reflects profound ignorance of their culture, and land tenure.

It complained bitterly about what it saw as Kikuyu untruthfulness, not knowing that without due ceremony and ritual under Kikuyu law, it was consistent with their ethics that when presenting evidence one could say what one felt would best serve one’s own or one’s mbari’s interests.

Indeed in 1954, Leakey criticised his fellow Kikuyu elders for not having been truthful, pointing out that it led the Land Commission to underestimate the amount of Kikuyu land originally alienated.

Ignorance is central to the loss of Kikuyu land around 1903, the mismanagement of “squatters” and the Land Commission’s difficulties.

It is tragic that Leakey’s The Southern Kikuyu Before 1903 has been virtually unknown to Kenyans for 71 years. Had it been available as soon as it was written, it might have averted much misery.

This article so far has dwelt on the past. Kikuyu society in the 21st century is so different to what it was in the 19th century, that today’s Kikuyu would find it hard to imagine those of the earlier period being of the same people, and vice versa.

This impression clearly struck Joe Gichuki, himself a Kikuyu, very strongly.

Indeed, so different are the people of modern times from their great-grandfathers’ generation that one wonders if Leakey’s book has any relevance at all beyond being an interesting historical record. I believe that it does.

The one area in which a 19th century Kikuyu would feel relatively at ease today would be where land is concerned.

He would perhaps be surprised by the disappearance of the family-owned mbari holdings in favour of privately owned githakas.

Yet he would understand the logic because the division of a growing mbari’s land into ever-smaller divisions had traditionally been the main pressure on young men to seek new land of their own.

It drove the expanding Kikuyu to cross the Chania and buy up Dorobo forests in Thika and Kiambu, assimilating many of the Dorobo in the process. Land hunger would be nothing new to the 19th century Kikuyu – although the current pressure might surprise him.

The similarity to Kikuyu traditional law with its private tenure explains why adopting British land law was easy.

It would not be stretching a point to say that the adoption’s most obvious feature was that oral records were changed for written title deeds.

The politics of this transition made for a rough passage in colonial times, but now that it has been made, a comparison of Leakey’s records with what now exists shows little, if any, change of principle.

It is this common ground between the old and the new that has made the acquisition of land from other people by Kikuyu over the past 50 years so straightforward.

In keeping with their customs, they have, after all, been buying land for at least the past 300 years.

Today, almost all land owned by Kikuyu is held under private tenure, with freehold title deeds. Kenya’s combined total of such private titles (most issued after Independence), exceeds 3,000,000, the largest proportion owned by Kikuyu.

My Kamba friends confirm that under their land laws, there was truly communal ground (weu), from which private grazing lands (kisese) could be claimed and held as long as they were used, and which in the event of non-usage could revert to weu status.

One could also take private farming land (ng’undu) out of the weu that, thereafter, was held through private, individual, inheritable tenure.

The difference between pre-colonial times and the present is that there is now little useful weu left.

Consequently, over the past century, ng’undu holdings have come to predominate. In the conversion from an oral record system mediated through the Utui elders to a written title deed system, the Akamba now share much in common with the Kikuyu.

I know little about Kenya’s other traditional systems of land tenure.

Nevertheless, a recent national Steadman Poll on the matter casts an interesting current light on the subject.

Broken into rural and urban classes, 85 per cent of rural folk and 23 per cent of urban live on land that is privately owned.

Over 90 per cent of both groups felt the government should protect their rights to land.

Over 70 per cent of both believed that owners should be entitled to dispose of land as they saw fit.

These answers imply that the population in general has broadly the same modern values as the Kikuyu and Kamba where land is concerned, regardless of what their traditions may have been.

Naturally, I am aware of the Draft National Land Policy that has been so much talked about lately.

In para 4 of its Executive Summary, it states that it “recognises and protects customary rights to land.” Notwithstanding that it is unwise to refer to customary rights without defining which customary rights, one such customary right would be the Kikuyu’s to sell private land.

Yet para 77(b) reads:

“Regulate the power of the primary rights holder [which means the owner] to dispose of land in order to ensure that such disposal takes into account all the other legitimate rights held or claimed by other persons over the affected land, including family rights. In particular, the law shall impose an obligation on the primary rights holder to obtain the written and informed consent of all secondary rights holders before disposing of the land.”

This means that no one may sell or otherwise dispose of their property without the written consent of all members of their families and anyone who makes a claim on the land concerned.

In effect, there will be no freedom to sell. Instead, land sales will become conditional on the permission of others. This would contradict not only Kikuyu customary rights, but also their present rights under Kenya’s land laws.

The drafters say the public approves their policy. The Steadman Poll indicates that 80 per cent of Kenyans are unaware of it.

To propose removing both the customary and current statutory right to sell land freely and to make it conditional, then claim the people back the proposal when 80 per cent know nothing of it, is surely playing with fire.

In January, we were reminded how dangerous land is.

The worst violence Kenya has had in 110 years has all arisen over land and largely out of ignorance.

Louis Leakey’s legacy in this regard is the knowledge that private land tenure is something ancient and central to Kikuyu life. Mess with this without their support and there are rough times ahead!