This essay is part of a study on the development of land law in Somalia from the end of the last century up to present times. In the following pages an attempt is made to illustrate some of the legal problems connected with the grafting of Western law onto an African land tenure system in a colonial setting. Originally agricultural development and exploitation was not the determining aim of the Italian occupation on the Indian Ocean Coast. In the early Italian plans for colonial expansion on the Horn of Africa, Somalia was primarily regarded as an important political and commercial area. The ultimate goal of these plans was the fertile lands of the Ethiopian plateau, towards which Eritrea and Somalia contained respectively, the Northern and Southern access routes. Occupation of the upper and lower regions of what would be the Italian East Africa colony (Africa Orientale Italiana) was the political and military preliminary to conquering the Ethiopian highlands, the produce of which, once the conquest of the whole Horn of Africa had been completed, would find its natural outlets through Eritrean and Somali ports.

How to reform traditional laws of marriage and divorce has proved to be one of the major legal issues facing contemporary Muslim societies. It is a sensitive issue that impinges on many domains—the social, religious, and political as well as the legal. The problems of reform turn more than anything else on the question of how to reconcile fidelity to Islamic law, the shari'a, which remains largely—if not exclusively—controlling on matters of personal status in many Muslim countries, with the demands for change prompted by the process of modernization.

When the State of Emergency was declared in 1952, most Africans in Kenya were living on the land in tribal reserves known as Native Land Units. Land rights within the Land Units were governed by native law and custom, though the demand for individual titles was strong, particularly in the Kikuyu Land Unit. However, administrators were divided about the desirability of hastening the demise of traditional institutions and concentrated their efforts on promoting agricultural development by taking measures against soil erosion and encouraging farmers to consolidate their holdings. It was only when large-scale compulsory land consolidation schemes were initiated in the mid-fifties among the Kikuyu that serious consideration was given to the nature of the title which the owner of a consolidated holding would acquire. Many people saw customary law as an obstacle to agricultural development (after all, the customary law relating to the allocation and inheritance of land was largely responsible for the considerable fragmentation of holdings that had occurred) and recommended that it be replaced by a system based on the registration of individual titles.

In a general survey of Tswana culture, written for the International African Institute twenty-five years ago, I summarized as follows the main features of the bogadi (bridewealth) system:

The Sudan, a vast country of approximately one million square miles, is a political rather than an ethnic unit. Beside the Arab tribes, which are not as homogeneous as their common origin may suggest, there are numerous non-Arab tribes of several racial and linguistic families. In any description of the population one is reduced to such generalisations as “predominantly Arab and entirely Islamic in the north, and predominantly negroid and pagan in the south, but there are so many exceptions and qualifications…”

The judgment of the Supreme Court in Okoiko v. Esedalue brings into prominence once again the question of accountability in the customary law relating to pledge of land. In that case Elias, C.J.N., made the following propositions which call for comment: (1) A pledgee who engages in commercial exploitation of pledged land is liable to account for his use of pledged land.

As the land adjudication and consolidation programme made progress in the Kikuyu Land Unit in the middle of the nineteen-fifties, it became clear that the traditional system of land tenure would have to be replaced by a system based on the registration of individual titles. Customary law was seen as an obstacle to agricultural development. Customary rules of inheritance could destroy the benefits of land consolidation. Moreover, the individual farmer had little incentive to develop his holding under customary arrangements. This point of view was illustrated by the Swynnerton Plan which proposed that “the African farmer … be provided with such security of tenure through an indefeasible title as will encourage him to invest his labour and profits into the development of his farm and as will enable him to offer it as security against financial credits”. Swynnerton hoped that the security of title conferred by registration would create a land market enabling fanners owning unviable plots or unworkable fragments to sell them off to neighbours who would be in a position to develop them more effectively. In this way “… energetic or rich Africans will be able to acquire more land and bad or poor farmers less, creating a landed and a landless class”, a process which he calls “a normal step in the evolution of a country”.