CO129-491 - Public Offices - 1925 — Page 225

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the policy of His Majesty's Government to restrict any section of His Majesty's subjects from holding any land in British Protectorates; but he thought, in view of the comparatively limited area of the East Africa Protectorate suitable for European cultivation, that a reasonable discretion should be exercised in dealing with applications for land from natives of India or other non-Europeans. The principle which had been acted upon by the previous Commissioner, namely, that agricultural land in the Highlands should be granted only to Europeans, was approved.

Lord Elgin confirmed his decision in 1908, stating that, while it was not consonant with the views of His Majesty's Government to impose any legal restrictions upon any section of the community, grants in the upland area should not, as a matter of administrative convenience, be made to Asiatics.

It has been claimed on the side of the Indians, first, that Lord Elgin's decision only related to the initial grant of Government land in the Highlands, and that it has since been stretched so as to preclude the transfer of land from Europeans to Indians in that area, and further, that Lord Elgin's statement that no legal restrictions should be im- posed has been varied by the terms of the Crown Lands Ordinance of 1915.

At the time of Lord Elgin's decisions, Government land in the East Africa Protectorate was alienated by allotment by the Lands Office, and the Commissioner had the power of veto on all transfer of land between private holders. In view of this general veto, it was unnecessary for Lord Elgin to deal specifically with the question of transfer, and, although no public statement was made on the point, it is clear that the question of land in the East Africa Protectorate was considered by his successors and the local authorities on the basis that the reservation of the Highlands to Europeans must cover transfer as well as original grant from the Crown.

In the consideration of land policy which led to the enactment of the Crown Lands Ordinance of 1915, it was decided :-

(a) To substitute for the system of selling land by allotment the

system of selling leases at public auction.

(b) To abolish the Governor's general power of veto on transfer, which was found to interfere unduly with the lessee's ability to deal with his land by mortgage, &c.

In order to apply these decisions in a manner consistent with the principle of the reservation of the Highlands to Europeans, it was found necessary to provide that, in announcing the conditions of the sale of particular farms, the Land Officer should state (in cases where the point arose) whether the bidding at the auction was limited to Europeans or not. To deal with the case of transfer it was necessary to retain, in a modified form, the Governor's power of veto, and this matter was very fully considered by Mr. Harcourt (the late Viscount Harcourt), who was Secretary of State at the time. He refused to agree to a veto on transfers between Europeans and Asiatics involving

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a definite racial discrimination; but, in order not only to deal with the particular case of the Highlands, but at the same time to secure protection for non-

n-European land-holders (particularly in the coast strip which now forms the Kenya Protectorate) against their being victimised by concession hunters, he approved of provision being made to retain the power of veto on transfers between persons of different

races,

It will be observed that the passages in the Crown Lands Ordinance of 1915 which have been complained of raised no new principle, but merely maintained the principle of past practice. Nor can it be claimed that they amount to legal discrimination against Indians, for it would be possible for the Executive Government to grant land in the Highlands to an Asiatic, or to approve of the transfer of land from a European to an Asiatic, without any alteration in the existing law.

In adhering to the position adopted by his predecessors in this matter, Lord Milner, when Secretary of State, made it clear that the reservation of a certain area for Europeans implied that a similar reservation should be available for Indians who wished to take up agricultural land, and he contemplated a reservation of such land in the Lowlands of Kenya, on the understanding that the land offered to Indian settlers would be examined as to its suitability and adequacy by a representative whom the Indian Government might send.

After reviewing the history of this question and taking into con- sideration the facts that during the last fifteen years European British subjects have been encouraged to develop the Highlands and that during that period settlers have taken up land in the Highlands on this understanding, His Majesty's Government have decided that the existing practice must be maintained as regards both initial grants and transfers.

An area of land in the Lowlands which can be set aside without infringing on native reserves and without conflicting with native requirements will be temporarily reserved in order that it may be ascertained by experience what demand there is for agricultural land on the part of Indians who will give suitable guarantees of their intention to develop the land themselves. After the expiration of a limited period, the reservation of this area in the Lowlands will be reconsidered in the light of the experience so gained.

9. Immigration.

Finally the question of immigration into Kenya has been canvassed both by the Europeans and by the Indians. It is sufficient to say that the line taken has varied with the point of view, and it is not necessary to present the arguments which have been advanced.

It may be stated definitely that only in extreme circumstances could His Majesty's Government contemplate legislation designed to exclude from a British Colony immigrants from any other part of the British Empire. Such racial discrimination in immigration regula- tions, whether specific or implied, would not be in accord with the

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