Context for community land rights in Kenya - PowerPoint Presentation

Context for community land rights in Kenya Dr. Collins Odote

Background When Garett Hardin published his much acclaimed article " The Tragedy of the Commons,”…, he may not have been much aware that a tragedy of major proportions had been unfolding in respect of the African Commons.” ( Okoth-Ogendo - The Tragic African Commons: A Century of Expropriation, Suppression and Subjugation ) Mistreatment of African commons based on colonial legacy African customary law inferior Common property viewed as open access Official property policy based on superiority of private tenure as economically efficient and stable property rights

Emerging trend in africa Over three decades of land policy reform across Africa so as to promote economic growth, encourage sustainable management and reduce poverty Seeks to depart from earlier land reform approach focusing on private rights and titling Recent wave more human centred , recognises customary rights and communal arrangments Tanzania’s experience with Village Land Act most extensive South Africa’s constitutional reform, recognition of communal rights, unconstitutionality of communal law, lesson.

The Kenyan context 1954 Swynnerton Plan Promotion of agriculture thru creation of landed African gentry Post-independence- duality of land tenure and neglect of community rights Group Ranches and Trust Lands as neglected lands up for grabs Land Problems, conflicts/clashes and key constitutional reform issue 2007/8 PEV and KNDR process Land as a long-term issue part of Agenda IV Constitutional reform TJRC Policy Reform

KENYAN CONTEXT (CTD) While social/communitarian aspect of property recognised in property architecture in Kenya, subjugated time Solid anchorage of private & public rights to land resulting in different levels of protection Assumption that neglect would see community land claims fall by wayside “ that tragedy had nothing to do with the intrinsic characteristics of the commons. It was triggered by their expropriation and ruthless exploitation by colonial authorities, fueled by the contemptuous denial of their juridical content and compounded by systematic administrative, judicial and legislative subversion designed to foreclose any possibility of their renaissance”Resilience of the customary property law. 5

Directives from NLP NLP’s summary of land problems: “ deterioration in land quality, squatting and landlessness, disinheritance of some groups and individuals, urban squalor…….” Policy underscores that: land has multiple values beyond economic Plural approach to tenure recognition, protection and security Called for recategorisation of land to Private, Public(from Government) and Community( from trust land) NLP requires definition of community, vesting of ownership of CL on defined communityNLP requires documenting and mapping existing forms of communal tenure

Constitutional context 2010 COK reform to governance framework of Kenya Recognition of importance of Land- Chapter 5 “All land in Kenya belong to the people of Kenya collectively as a nation, as communities and as individuals .” Despite past disregard of community rights, its continuation in practice However lack of recognition impediment to productive use and national development CoK recognizes community land rights. Community land to vest in Communities defined on the basis of ethnicity, culture or community of interest

Constitution(ctd ) Community land to include: Land lawfully registered in name of group representatives under provisions of law Land lawfully transferred to a specific community Land declared as community land by Act of Parliament Land that is lawfully held, managed or used by specific communities as community forests, grazing areas or shrinesAncestral lands and lands traditionally occupied by hunter-gatherer communitiesTrust lands held by county governmentsUnregistered community land to be held in trust by County Governments on behalf of communitiesLaw to set terms of disposal of community land including rights of members and of individuals and collective

CONSTITUTION(CTD) Requirement for development of a Community Land legislation within five years of 27 th August 2010 Adoption of Land Act dealing with Private and Public Land and need for a CL Act Appointment of Task Force on Community Land Release of Draft Community Land by Task Force Debate of Draft Community Land Bill by Task Force. Implications??Majority of Land in Kenya part of community Land.9

Key Indicia of Community Rights Differs from western perceptions of property Title deed does not hold the preeminence place Both a juridical and an integrated social system Based on two aspects Access to land is an incident of membership to a social group Control and management vested in governance organ of the community 10

Critical Legislative Questions How do we define communities?? NLC Act: clearly defined users of land identified on basis of ethnicity, culture or similar community of interest NLP: clearly defined group of users of land, which may be, but need not be, a clan or ethnic community. How do de apply the constitutional criteria of ethnicity, culture and community of interest Place of customary law, in Community Land Rights Law Dispute resolution Place of individual rights Rights to resources 11

Critical legislative questions legal status of community Institutional arrangements(Community Assembly, Committee and Community Land Boards) Linkages with County Governments Protecting marginalized groups Place of Title Deeds 12

Should We Issue Title Deeds?? Hernando De Soto and Dead Capital Contra argument- titling resulting in insecurity Kenyan Constitution and implications of recognition of Communal tenure If we did what would title mean?? Is it the same as individual tenure ( bundle of rights) 13

Some Guiding THOUGHTS Professor Okoth Ogendo points out certain salient features of community land rights: Land rights embedded in multiple and nested social units and levels within the Community Land rights are inclusive rather than exclusiveRights derived from accepted membership to a social unit( birth, affiliation, allegiance)Access and control are distinctSocial, political and resource boundaries stable yet flexible and negotiable due to nested character of social identifies