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Kenya's newly enacted Community Land Act is long awaited and welcome. It asks communities to define and register themselves and await adjudication, survey and registration. However further challenges lie ahead.
At last Kenya has a Community Land Act. This was enacted just 10 days before a constitutional deadline, and signed into law on 31 August 2016. Regulations under the act are yet to be drafted. As a number of uncertainties remain, their content will be crucial. Helpfully, the law (twice) commits the Cabinet Secretary to draft regulations with public participation.
This law has been a long time coming. The urgency of relieving millions of Kenyans from de facto tenancy to state bodies was brought to the attention of the Njonjo Land Commission in 1999. It was made a key item for constitutional review in 2001. By March 2002 the idea of a distinct class of community land to recognize customary rights was being mooted. Innovations in the 1990s to secure customary/community lands in neighbouring Tanzania and Uganda helped focus minds. Yet it took many years of policy debate for community-derived and sustained rights to gain formal backing. Kenya’s new Constitution in August 2010 marked the turning point. It declared that ‘All land is Kenya belongs to the people of Kenya collectively as a nation, as communities and as individuals’ and announced classes of public, community and private land (Article 61).
Yet this did not bring immediate liberation for customary landowners. Unlike Uganda, Tanzania (and latterly South Sudan, for all its ills), or remoter states like Mozambique and Ghana, community lands in Kenya remain (mainly) vested in local governments until such time as communities secure formal title. They have done so under direction of central government, with a good deal of irregular reallocation to non-community members along the way.
While a new Land Act in 2012 at last assured customary landholders that their rights have equal force and effect with freehold and leasehold interests, the focus is firmly upon formalizing these under community title. The procedure for this is the purpose of the Community Land Act. It asks communities to define and register themselves and await adjudication, survey and registration.
This strategy has been adopted by other African states with mainly poor and painfully slow result, and contemporarily by Malawi in its yet to be assented Customary Land Act. Kenya itself began much simpler individual farm-based titling sixty years ago and it is still not done. With much larger estates to identify and demarcate and many more actors to adjudicate with and satisfy, community titling will be yet slower. In the absence of community level government such as instituted in Tanzania or Ethiopia, Kenyan communities will have to formalise themselves, their land rules, and land governance institutions from scratch. As a major sector of communities are pastoralists with overlapping rights to each other’s domains, this will often be contentious. Nevertheless, in conditions of weakly democratizing and impunity-prone states, the advantage of protectively double-locking community lands in registered entitlements is evident. As bonus, the actions which communities need to take to achieve title are empowering on broader fronts.
Multiple challenges lie ahead. For once a community has agreed boundaries with neighbours, and approached the state for adjudication, the law opens the way for local or national governments to exclude vaguely specified types and quantities of their domains. This is aside from losses engineered in due course through compulsory acquisition. For under the Land Act, 2012 communities could also lose lands along watersheds, lands vulnerable to water logging, or any other land types the state chooses to gazette, irrespective of these being long integral to community lands and livelihoods. Already indigenous forest communities are enduring denial of their rights due to overlapping claims of public and community domains.The Community Land Act reinforces potential losses in at least three different provisions. This adds to existing empowerment of the National Land Commission to set aside land for investment purposes.
Another stumbling block for communities concerns low quorums for decision-making, set at 44 of 100 community members for even some major decisions such as agreeing to investment proposals on their land or deciding to subdivide and privatise part or all of the land. Nor can Kenyan communities be confident of their trustee owners until entitlement. County councils were forbidden by the Constitution to dispose of lands under their trust, reiterated by the Community Land Act, but thus far unevenly adhered to.
Overall, rather too much relies upon the political will and administrative capacity of the Ministry of Lands for community entitlement to what could be half of Kenya’s land area to materialise. Commitment to this has been lukewarm in many quarters. Arguably, the new law has only seen the light of day through constitutional obligation and the threat of dissolution of Parliament should it fail to enact this and a clutch of related laws. This is a stick which Liberians lacks in their similar struggle to see a new land rights law enacted. Once again, Kenya’s Constitution has come up trumps.
Even in face of pressures and shortfalls, a good deal of practicality in the Community Land Act shines through which communities can take advantage of. These include adoption of lessons advised from practical experience elsewhere, such as removing the need for communities to expensively register as cooperatives or other legal entities in which to vest title, creation of community assemblies comprising all adults as the ultimate decision-making body, weaknesses in quorum levels aside, and the right of communities to lawfully regulate land use and allocation themselves, backed up by the courts as necessary. Unlike many other new community land laws on the continent, Kenya’s act also leaves the door open for non-customary groups who share geographical space and common interest to use the law. For the 60% of urban dwellers who live in squatter settlements, this could open a new path to security.
If too much relies upon central government, the more acceptable pressure is upon communities themselves, including to hold the state to account. In this they have substantial civil society support. Although given no formal role by the law as increasingly encountered elsewhere, civil society will get to work. International bodies, more mindful than ever of the urgency of globally securing the landholding of several billion customary landholders for the sake of peace and soundly inclusive development, as well as human rights, will wish to contribute. Today, at least, a bright light shines for Kenyan communities. Now the work begins to keep it burning.
Liz Alden Wily (lizaldenwily@gmail.com) is an independent international tenure specialist, principally resident in Kenya. She is an expert associate of Katiba Institute in Kenya and an affiliated fellow of the Van Vollenhoven Institute of Law, Development and Governance in the School of Law of Leiden University.
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