Community Land Bill needs thorough debate by Senate

By Mohamed Guleid

The Community Land Bill 2013 broadly provides for the recognition and protection of community land, the establishment of governance institutions and conversion of community land to private or public and vice versa. It also provides for the management of natural resources, investments on community land and the settlement of disputes.

Recently, the Senate passed the first reading of the Bill. The paradox, however, is that a task force by the Ministry of Lands also proposed another draft Bill on community lands that was circulated mid-November. This issue caused uproar from different quarters such as the Kenya land Alliance, the Commission on Implementation of the Constitution and other interested parties.

So far, there has never been much noise from the county governments, which, according to the Constitution, are to be the custodian of the unregistered community lands in the counties. The process of debating land issues requires a thorough public debate. The concern of the stakeholders is mainly the lack of input by the public through the county governments. The Bill states that community land would be under the trustee of community members and any transfer of ownership of the land shall be done through these representatives of the community.

The catch here and the concern of the stakeholders is that there are no proper definitions of the community representatives. The said representatives, if they collude, might defraud their people of the land and transfer ownership to other parties. My concern, however, is much broader. The concept of land ownership in Kenya is still very rudimentary and needs good reforms. In Kenya, we tend to emphasise more on ownership than the use of land.

Being an agrarian society, people in Kenya value land not because of its productivity but for prestige. Others keep land for speculative purposes. The persistent shortage of food in Kenya is caused by lack of proper land management and inability to maximise on productivity. European countries had to learn painfully that in order to feed increasing populations land tenure systems had to be reformed. In densely populated counties like Kiambu, Meru and Kisii, individuals and families own small patches of land.

Even if, optimistically, these patches are able to support these families, they still contravene the Malthusian theory. This theory explains the difficulty of a small piece of land to continue producing enough food for a rapidly growing population. Even for larger tracts of land owned by communities has to be subjected to higher threshold of productivity. 

Of course the Community Land Bill by the Senate encourages formalisation of land ownership rights, but it lacks the component of maximising land productivity. The use of land should be prioritised in terms of its ability to feed Kenya’s growing population. By 2050, Kenya’s population is expected to double to 70 million people. In 1980, Kenya had only 16 million people. That is growth by more than 400 per cent in less than a century. The ministries of Land and that of Agriculture need to focus on these aspects.  

The management and ownership of land should be based not only on individual or community, but should also peg on how much people can our land support and feed. Again, lessons learned from Europe suggests that less and less people should live on the most arable lands to allow mechanisation and large scale production of agricultural produce, the modern technology would help maximise on large pieces of land rather than depending on small patches of land that get overused.

In dry areas of Kenya where pastoralism is still a dominant form of livelihood, we need to borrow ideas from the neighbouring southern part of Ethiopia, where community land management has been put under the segments and managed by community elders.

The choice and the adjudication process are under the elders’ community itself and not under any government agency. This will potentially reduce suspicion.

The community land Bill should therefore be widely debated before it is passed into an Act.