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Government's handling of community land issues recipe for chaos

By Mohammed Guleid | April 4th 2019

Hoping not to be a conveyor of bad news, I foresee a dangerous situation arising as a result of conflict over land being held in trust by county governments for communities, particularly those in arid lands. These lands need to be registered before April 23, 2019. The Ministry of Lands was expected to hold public participation as demanded by the Constitution to inform the public about the approaching deadlines and what needs to be done.

In Kenya, land is a very important asset. Ownership of a piece of land is considered a form of wealth. The larger the tracts of land one owns, the wealthier he is perceived to be. Where people are sedentary and the main economic activity is farming, land has been adjudicated and ownership documents have been issued.

The Government has empowered people with arable land in areas that are considered economically high potential. In the arid parts of the country, ownership is considered communal, therefore no single individual can claim ownership. The nomadic form of livelihood becomes viable when livestock farmers are able to move over large tracts of land in search of water and pasture.

Generally, the issue of land is a very sensitive. Most of the conflict in Kenya today is largely driven by land disputes. Last week, scores of people died as a result of a dispute over communal grazing lands along the border of Garissa and Isiolo counties. In virtually all parts of Kenya, lack of clarity and the Government’s failure to make its position clear has created mistrust amongst communities and peoples of different counties.

Forcefully acquired

It is not for nothing people are concerned about land issues. The struggle for independence against colonial powers in Africa and Kenya in particular was centered on land. In Zimbabwe, President Robert Mugabe forcefully acquired farmlands from the white settlers to appease his supporters and to fulfill his pre-independence pledges. There are several forms of land ownership in Kenya. Privately owned land is recognised under Article 62 of the Constitution. Article 64 describes land possessed by non-citizens similar to privately owned land and here also ownership is hardly disputed because the people occupying the land have some form of documentation to prove ownership.

Then there is the community-owned land. In order to protect communities from being deprived of their land, the issue of land held in trust has been addressed by the Constitution of Kenya 2010 through Article 63, which states: Community land shall vest in and be held by communities identified on the basis of ethnicity, culture or similar community of interest.

Totally misleading

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The Community land Act was enacted in 2016 to give meaning to Article 63 of the Constitution. The issue of regulating how community land should be registered as required by the act was gazetted by the Cabinet Secretary for Lands through legal notice 279 special issue no. 2559 one year after the Community Land Act was gazetted. The regulation gives guidelines on how communities are expected to register their land and decide how to use it. Unfortunately most people in the northern parts of Kenya are not fully informed.

The Ministry of Lands, however, in a communication from the Cabinet Secretary’s office claimed that the exercise of informing the people who use communal lands on how to register has been completed. This is totally misleading and could potentially lead to violence. After April 23, all community lands that have not been formally registered shall be put under the respective county governments to hold them in trust for the communities.

This makes communities vulnerable since the national government might decide to appropriate large sections of these lands without any form of compensation to the community. The Land Value Index Act was recently amended silently to deprive pastoral communities any form of rights to compensation in the event of compulsory acquisition.

Upcoming infrastructural projects such as LAPSSET and the construction of oil evacuation pipelines will require the county governments to give way-leave, but because of the amended Value Index Act, people who don’t have land ownership documents are not entitled to any form of compensation. For a community that has been excluded for many decades, this is like rubbing salt into a wound. The Ministry of Lands also seems to have a sinister motive with regard to community lands.

Mr Guleid is the Executive Director of the Frontier Counties Development Council

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