A fortnight ago, I discussed the failure of the Ministry of Lands to develop a manual for public participation on issues of registration of community land.
The law recognises and protects community land and also gives guidelines on the role of county governments.
However, the regulation has created complications that make the management of community land difficult and messy.
The regulation allows the community land management committees to present to the options for benefiting from the resources of the land.
For example, in the event of renting the land to other users, or in the case of corporate social responsibility benefits, or in the case of compensation by the national government or any other entity. But there is a caveat; at least two-thirds of the members of the host community must consent or approve to the proposal.
This is potentially explosive because, practically speaking, asking two-thirds of members of a community to consent is not an easy task.
Assume members of a given community number 30,000. How does a management committee for this group bring 30,000 people together and make them agree? Logistically an impossible task but also something that can cause conflict.
The communities in a particular area are not necessarily homogenous. The heterogeneous nature of some of the communities adds to the complication of bringing large numbers of people together and making them agree on an issue of concern.
The regulation further refers to the Mining Act for purposes of mining on community lands.
The Mining Act, refers to the Lands Act, which gives Cabinet Secretary in charge of Land the powers to compulsorily acquire community lands for purposes of public goods.
Elsewhere, the ministry passed an amendment bill to the Land value index Act, to zero-value community lands where no economic activity is taking place, or where no people have inhabited. Most of the pastoralists’ community land might appear unused because grazing lands are used when there is availability of pasture.
The National Government flagship projects such as LAPSSET and other Vision 2030 projects will require land for purposes of implementing these projects.
A good example already causing huge concern is the planning for the construction of the oil pipeline from the Turkana oil wells all the way to Lamu.
This pipeline is supposed to be a component of the LAPSSET projects. Apparently, without consulting the community as is the case nowadays, the National Land Commission gazetted the land where the Turkana oil wells in Lokichar sit on as public land.
What the law says
The law demands that a two-third acceptance of the community before a community land is converted into public land.
The Turkana County Government on behalf of the affected community went to court and a court injunction directed the National Land Commission to revoke the gazettement.
What complicates matters is that currently, the NLC is without a chairman following the expiry of the term of previous officials. The law gives the powers of gazetting only to the chairman.
In the absence of the chairman, no other official has the power to degazette a gazetted legal notice hence a stalemate on this matter.
In as much as the national government would wish to acquire land without involvement of the local communities, such a move risks undermining the earmarked projects.
Examples abound on this. In Nigeria, the Igbo community are known to have revolted and destabilized the successful evacuation of the oil from the oil fields in the Niger Delta.
The security and the long term sustainability of the oil pipelines depends to a large extent on the goodwill of the local community who own the community lands around where the projects are being implemented.
The Community Lands Act and the Regulations affecting community lands must be amended in consultation with the communities affected by this legal documents.
If the law is not amended to protect the communities, I foresee the danger of full-blown conflict, not just between the communities and the Government, but also between host communities.