Issuance of title deeds will maximise land use
By Simon Mordue and Carla Mucavi | November 24th 2020
On October 30, a major event was convened in Laikipia County. For the first time in the history of the country, the Ministry of Lands and Physical Planning issued title deeds under the Community Land Act 2016, to two pastoralist communities, Ilingwesi and Musul.
As an important pillar for productivity, there is a need for transparency in the ownership of land. Inefficiencies in land transactions can hamper development, investments and conflict resolution, among others.
Title deeds – the legal documents that show ownership of land or property - are critical for the security of ownership, inheritance and collateral for loans, more so for youth and women who currently own less than 10 per cent of registered lands in Kenya.
The biggest chunk of unregistered land in Kenya is in the 24 counties with community land. Most of these unregistered lands are in Arid and Semi-Arid Areas (ASALs). Before the promulgation of the 2010 Constitution, there was no legal framework for the recognition and protection of the land rights of these communities. The provision for community land in the Constitution is a significant game-changer. The Community Land Act, 2016 gives effect to Article 63 of the Constitution.
The Community Land Act places the administration and management of land in the hands of communities, as it recognises, protects and provides for their registration. Critical decisions on the allocation of portions of community land to individuals, or any other transactions, must be approved by two-thirds of the community assembly, which comprises all adult members of the community. The law has set this high threshold to ensure that agriculture and pastoralist activities are sustained.
The definition of ‘community’ in the Constitution goes beyond the narrow confines of ethnicity. The establishment of the Community Land Management Committees gives a clear legal framework for regulating the governance of community land. In particular, women and youth now have an opportunity to participate in land management.
Communities will have a stronger security of tenure, and can eventually use their title deeds as collateral for bank loans for investments to improve their livelihood, or for legal protection in case of partnership with investors. County governments are required to deposit proceeds from investments in unregistered community land to profit-making accounts, pending registration. Once registration is completed, these monies must be transferred to the rightful beneficiaries.
This historic feat is a result of the collaboration and partnership between the Ministry of Lands and Physical Planning, the National Land Commission, the Council of Governors and Food and Agriculture Organisation (FAO) of the United Nations, through the European Union (EU)-funded Land Governance Programme.
Globally, under land governance, the EU funds 18 individual country-level projects in Africa, Asia and Latin America, all which address tenure issues and are implemented alongside various partners, including government agencies, civil society organisations, bilateral and multilateral organisations and private contractors.
The EU, through the Land Governance programme, is working with the Ministry of Lands and the National Land Commission to enhance efficiency, transparency and accountability in land administration and management. The expected outputs of this partnership include the digitisation of land records and processes, strengthening of land dispute resolution mechanisms, improvement of access to land-based information and inclusion of marginalised communities in land governance and natural resource management, as well as ascertainment of community land rights and active participation in sustainable physical and land use planning.
Improving land governance calls for the concerted efforts of the Kenyan government at national and county levels, the communities, civil society organisations and the support of development partners. The Judiciary, especially the Land and Environment Court, needs to be strengthened to reduce the backlog of cases.
Seventy per cent of the cases in the formal judicial system are related to land and natural resources, with more than 17,000 pending in the Environment and Land court. Vulnerable groups, including women and youth, are still the biggest victims of marginalisation. The EU and FAO, through the Land Governance Programme supported the development of the ‘Alternative Justice Systems’ policy, which will go a long way towards resolving disputes and conflicts and unlocking lands for productivity.
Verification and digitisation of land records and processes will restore the confidence of investors in the land sector. The ministry should press on with the development of the National Land Information Management System to allow for online land transactions.
The realisation of this significant milestone should reignite our collective desire to ensure that all communities are registered. We want to go beyond the nine counties that are under the Land Governance Programme - Tana River, West Pokot, Turkana, Baringo, Marsabit, Samburu, Nandi, Laikipia and Vihiga - to reach the rest of the country as well. We are committed to life-changing partnership.
Mr Mordue is the European Union Ambassador to Kenya. Ms Mucavi is the Kenya Country Representative of the Food and Agriculture Organisation of the United Nations
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