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Securing communal land rights in Kenya

OPINION
By Judy Kimani and Timothy Njagi | November 21st 2016

Pastoralist societies around the world are currently facing more pressures on their land than ever before.

Contributing to the land pressure, especially in sub-Saharan Africa, is the stance taken by policy makers who are pursuing policies that have sought to transform pastoralism into sedentary and intensified production systems.

Simply put, stop the migratory and extensive nature of livestock production, which require large sizes of land.

In Kenya, after devolution, the demand for individualisation and privatisation on community land has increased as people seek to speculate in land markets and make huge returns by betting on the expanding urbanisation that is expected to follow devolution and development of mega projects, some of which are part of the Kenya Vision 2030 projects.

However, it is important to note that most of the pastoralist areas change in use of land from extensive livestock production to other uses is very expensive. Second, pastoralist communities now face pressure from increasing population and climate variability.

As a result, land available for pastoralists who have maintained the large herds of animal herds has been declining. Similarly, the fragmentation of land in pastoral areas has complicated sustainable use of resources in these areas.

For example, pastoral communities in the country resort to violent conflict, many times fatal, due to competition for diminishing resources.

Research now shows that communities are efficient in the use of land, making most of scarce resources found in pastoral areas. They achieve this by adapting their productive activities to the high climate variability and uncertainty of pastoral areas.

This makes their production systems to not only be the most suited but also the most sustainable compared to alternative uses. This make the understanding of how these communities manage their land and utilize land to be critical especially to policy makers who seek to enact policies that have far reaching effects on their livelihoods as well as the sustainability of the ecological environment.

A study by Tegemeo institute showed that the country’s legal framework and institutions that govern community land have in the past disadvantaged pastoral communities. First, the country’s legal framework did not recognize community laws.

As such, the customary laws mainly used by communities were not enforceable. Second, the communities’ institutions of governance were not strengthened and instead a large proportion of community land was place under trusteeship under local governments.

Therefore, the enactment of the Community Land Act 2016 provides a fresh start for communities whose land the law will adjudicate.

The Act allows for county governments to hold in trust all unregistered community land on behalf of communities as well as any monies that may be paid in compensation for compulsory acquisition of such land in a special interest earning account.

The county government may not sell, dispose, transfer, and convert for private purposes or in any other way dispose of unregistered community land that it is holding in trust on behalf of the communities for which it is held. This will check the previous abuse of trusteeship by local authorities. The Act also recognises the customary laws among communities and their interest in the land.

As regulations for the Act are drafted, priority should be given to strengthen community land governance institutions, to ensure that the objectives of this law are realised.

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