KITUO CHA SHERIA BLOG

Ownership, use and management of land are highly emotive issues in Kenya and were one of the key drivers of the push for a new constitution. In fact going back in history, this was the main reason for the fight for independence.

Land is man’s most valuable resource, supporting basic and critical needs of food, shelter and business. This is particularly true for Africa where economies heavily rely on agriculture, livestock production, tourism and the exploitation of natural resources. Majority of Kenyans highly depend on the land for their livelihood and subsistence; this includes the agricultural communities, the pastoralists and the hunter gatherer community.

The manner in which land is allocated, accessed and managed is therefore central to Kenya’s aspirations to alleviate poverty and create wealth.

HISTORICAL PERSPECTIVE TO COMMUNITY LAND

Prior to the colonial rule, communities  in Kenya  had their own leadership  structures that administered land rights among their members for purposes of activities such as construction of shelter, farming, grazing, hunting and gathering. Communities lived in harmony and occasional fights over territorial claims were resolved by panels of elders. This is typical of what used to happen between the Turkana community and the Pokot. These two communities had a way, a mechanism of solving the differences that arose between them amicably. It was rarely unheard of for Communities to attack their neighbours and kill them. The worst that would happen was cattle rustling.

Therefore the question that then remains is what happened over time? The colonial government not only imposed alien land tenure relations, but also introduced conceptual, legal and sociological confusion in traditional tenure systems. This led to far reaching disruption of African customary land tenure system and laws. Customary law and its attendant rights were treated as inferior to the private formal property rights based on English law, newly introduced as the tenure for white settlers.  The wisdom of this was that private tenure was the most suitable tenure regime to ensure agricultural productivity. This necessitated a dual system of land law with English law applying to areas occupied by white settlers, and customary law applying to the areas occupied by the natives, the “native reserves.”  Therefore late in its tenure, the colonial government initiated a policy of converting customary land tenure to individual private ownership.  The Registered land Act was enacted purposely to remove claims to land based on African customary land law. Both the Trust Land Act and the Land (Group representatives) Act were meant to transition customary to individual tenure in areas where immediate individualization of land could not be undertaken. The practice of undermining customary land rights went on until the resistance movement cropped.  In response to the violent uprising by the local people, the British Government declared a state of emergency in 1952 which lasted for close to 10 years. In 1961/62, constitutional talks took place in London, which led to internal self government in June 1963 and full independence in December of that year.

As  a country, the first ever shot that we had at addressing issues of Customary land tenure system was in 2009 when we came up with the National Land Policy (NLP) and later on the Constitution of Kenya 2010. The NLP notes that individualization of tenure has undermined traditional resource management institutions; ignored customary land rights; and led to widespread abuse of trust in the context of both the Trust Land Act and the Land (Group Representatives) Act.

The constitution vests community land in communities identified on the basis of ethnicity, culture or similar community of interest. It provides that any unregistered community land be held in trust by county governments on behalf of the communities for which it is held. It defines community land  to include:  land  held by groups under the Land (Group Representatives) Act;  land lawfully transferred to a specific community by any process of law; land that is lawfully held, managed or used by specific communities as community forests, grazing areas or shrines; ancestral lands and lands traditionally occupied by hunter-gatherer communities; and land that is lawfully held as trust land by the county governments.The Constitution  requires parliament to enact  legislation on land  within  eighteen months from August 2010 when the constitution was promulgated, and on community land within five years. Whether these timelines are by design or by default, one wonders whether they reflect the prioritization of the three land tenure regimes by the drafters of the Constitution.

Nevertheless, parliament enacted within the specified timelines, the Land Act and the Registration of land Act to govern all private and public land.

LEGAL AND POLICY FRAMEWORK

The National Land Policy

The National Land Policy of 2009 is Kenya’s first ever single and clearly defined land policy since independence.  Before that the land policy in Kenya, while not articulated in a comprehensive national document, had been driven by a conviction that economic growth requires the transformation of customary land tenure to private ownership. This policy was pursued with remarkable consistency by successive governments over the years, and the extent of implementation has been impressive. As such, the vast majority of commercial, residential, and arable land in Kenya (and much arid land as well) was brought under private individual ownership by a process of systematic first registration.  This led to many indigenous people earlier dispossessed of their land remaining landless even after independence. To obtain land, they had to go through the state. This bred a culture of selective land allocation for political support by those in power, inefficiency and corruption.

The Constitution

The Constitution requires land in Kenya to be held, used and managed in a manner that is equitable, efficient, productive and sustainable. It also spells out the principles governing land, which are very important for securing community land rights.

They include: equitable access to land;  security of land rights;  sustainable and productive management of land  resources; transparent and cost effective administration of land;  elimination of gender discrimination in law, customs and  practices;  and  encouragement of communities to settle land disputes  through recognized  local community initiatives consistent  with the  Constitution.

The Constitution also requires all laws relating to land to be revised, consolidated and rationalized within certain timelines.

The Constitution specifically provides for the recognition of community rights to land and designates three tenure regimes:  Public, Community and Private.  Community land is vested in communities identified on the basis of ethnicity, culture or similar community of interest.

Any unregistered community land is to be held in trust by County Governments on behalf of the communities for which it is held.

The Land Registration Act gives provisions for revision, consolidation and rationalization of the registration of titles to land, in order to give effect to the principles and objects of devolved government in land registration, and for connected purposes. The Act applies to registration of interests in land under all the three land tenure regimes established by the constitution.

County Governments Act

The County Governments Act is an act of parliament to give effect to Chapter eleven of the Constitution. It provides for county governments ‟ powers, functions and responsibilities to deliver services and for connected purposes.  It came into operation upon the final announcement of the results of the first elections under the Constitution.  The County governments, established under Article 176 of the Constitution consist of a County Executive and a County Assembly. The executive authority of the county is vested in, and exercised by the county executive committee which consists of the County governor and the deputy county governor; and members appointed by the county governor, with the approval of the Assembly, from among persons who are not members of the assembly.

The  County Governments Act  lists  functions of County  executive committees  which include implementing county legislation  as well as  relevant national legislation; managing and coordinating the functions of the county administration; preparing proposed legislation; and providing  the county  assembly with full and regular reports on matters relating to the  county.

The County governments through the executive committees thus have a very important role in implementing laws related to community land.  The county Governments Act, read together with Article 186 and Fourth Schedule of the Constitution, also assigns the county executive committees a number of roles that relate directly or indirectly to community land. For instance, one of the key functions assigned to county governments is agriculture which has very direct implications for community land.

County planning and development is another county government function which directly affect community land. Under this role the county governments are to perform inter alia, land survey and mapping; boundaries and fencing; and housing.

Another role of the county governments listed  in the Fourth Schedule  is the implementation of specific national government policies on natural resources and environmental conservation, including soil and water conservation; and forestry. A lot of such natural resources do occur on community land. The fourth schedule also mandates the county governments to ensure, coordinate, and assist communities in developing administrative capacity for participation in governance at the local level.  This role can be relied upon to ensure that communities effectively participate in management of community land. Other county government roles with implications on community land are trade, transport and cultural services such as libraries, museums, sports, county parks, beaches and recreation facilities.  In addition to the roles listed in the Fourth Schedule, the Act empowers the county governments to acquire, purchase or lease any land which may include community land, and to implement integrated development planning within the counties as well as within the cities and municipalities therein.

CONCLUSION AND RECOMMENDATION

There is need to challenge the dominant world view that relegates customary norms of land holding and interests to an inferior status requiring uplifting to the more desirable and superior private/individual ownership status.

It is also important to remember that land includes resources such as minerals, wildlife, forests and water. Policies and laws on these resources must take community rights into consideration as entitlements, not charity from the government. Devolved and local governments have a role here to ensure that resources such as wildlife, forests and water are integrated into land rights.

Thirdly and in relation to mineral resources, laws on community land must avert the ‘resource curse’ where abundance of minerals could result in the neglect of other economically viable activities such as pastoralism. Pastoralism has been a neglected land use despite its viability in many arid and semi-arid areas. It needs to be recognised–not delegitimized–as mineral resources and their extraction take centre stage. In Turkana–which has been neglected by successive governments and where oil has been discovered–community land rights and land uses must be considered to avoid multiple exclusions of the people as resources are appropriated through rent-seeking and corrupt deals over the newly found wealth.

Laws on community land can institute mechanisms for sharing benefits with communities; identification of speculative deals concluded with communities who had no knowledge of the value of the land; requiring that benefits from oil are shared with local communities that have lived on that land for years; and transparency and accountability measures to prevent the use of divide and rule tactics within communities as happened in Kwale in Kenya over titanium.

Related to this is the need to address illegally and irregularly acquired community land. Given the opaque way in which community land has been dealt with over the years, there is a likelihood that by the time a community land law is in place, there will be no community land to protect and secure rights over. Scrutinizing dealings on land after the promulgation of the constitution in 2010 in Kenya for instance, can help identify instances of irregular and illegal dealings with community land. The investigation should however also open avenues for redress for community members who have had their rights appropriated illegally and irregularly by powerful members of their communities or by non-members of communities in all the three countries.

Finally, it should be recognised that institutions are critical in securing community land rights. Land is a factor of the legal, political, social, cultural, religious, physical and intellectual body politic in communities. Rigid institutional structures may not articulate dynamic and living tenets of community rights especially where customary tenure is concerned. There should be investment in institution building and strengthening in communities

By:-

Ashioya Biko

AGCP-KITUO CHA SHERIA