Tighten community land laws, experts say

Nairobi, Kenya: The woes that bedevil such assets are a dime a dozen, and there is need to streamline their management, writes PETER MUIRURI

Stakeholders in the land sector want the Government to tighten community land administration policy.

Speaking in Nairobi during a conference to discuss the forthcoming Community Land Law, they said successive governments have abused community rights, apportioning land that ought to be held in trust on behalf of the community.

According to Patricia Kameri-Mbote, a law professor and dean of the School of Law at the University of Nairobi, proper governance and management of community land is key to cohesive nations and democratic societies.

“In Kenya, for instance, the history of neglect and abuse has led to the individualisation of community land as a defence against perceptions that community land is owned by nobody,” she says.

She adds that the view across Kenya, Uganda and Tanzania is that customary law has no legal weight and hence, not binding needs to be discarded.

“The constitutional recognition of customary law in the three countries has not addressed the historical perception of it as backward and inferior to written law,” says Patricia in a paper presented at the conference.

To reverse the trend, she recommends the need to come up with a clear policy of what constitutes community land while documenting proper land use.

On the other hand, communities need to keep tabs on authorities to make sure they do not infringe the constitution as far as community land administration is concerned.

“Given the opaque way in which community land has been dealt with over the years, there is a likelihood that by the time the Community Land Law is in place, there will be no community land to protect,” she cautions.

According to the Constitution, community land is termed as “land lawfully registered in the name of group representative under the provisions of any law.”

Open to abuse

Experts feel some of these definitions might be open to abuse, especially where identification of community is based on “ethnicity, culture or similar community of interest.”

According to Dr Collins Odote, a senior lecturer at the University of Nairobi, each of the three criteria qualifies any group of people to be termed as a community, adding that the law must come up with a means of qualifying such terms.

Another concern is the recent discoveries of various types of minerals in the region; a matter that will further compound the way community land is handled.

Exploitation of resources without the involvement of affected communities can become a source of constant feuds between the people and the government.

Evictions

Participants cited the discovery of oil in Turkana, a predominantly pastoralist community that has been neglected by successive governments.

In some cases on the continent, governments would forcefully evict people sitting on such land resulting in more conflict as communities fought back.

According to Odenda Lumumba, the national coordinator of the Kenya Land Alliance, such forceful evictions are acts of a bygone era, and bad practices all over the world.

He says the success of the oil industry in Kenya will largely depend on how well the government is willing to share oil benefits with the local community.

“We should bear in mind that such resources are not infinite. Kenya can only exploit the oil deposits for the next 50 years. Turkana should be left with a beautiful environment and a well off community after that period,” says Odenda.

Harness resources

He adds that if the resources are well harnessed, they have the ability to turn around the fortunes of local economies, citing the example of cities such as Johannesburg in South Africa that grew out of the famed gold rush years ago.

According to Odenda, anchoring the community interests in law is the only way of avoiding their exploitation. He says the Community Land Law should capture all pending land issues not enacted in previous pieces of legislation.

“Community Land Law ought to be the umbrella piece of legislation as far as administering community land is concerned. Drafters must make concerted efforts to reach out to affected communities rather that leave it to task forces that are elitist in nature,” he says.