the promise and feasibility of realizing community land rights in kenya

Presentation byKevin M. Doyle

PLAAS Student and Land Tenure/Land Use Practitioner

The Promise and Feasibility of Community Land Rights in Kenya

Institute for Poverty, Land and Agrarian Studies Seminar University of the Western Cape

Bellville, South Africa30 July 2013

OUTLINE OF PRESENTATION

I. Brief Historical Overview of Customary Rights in Kenya

II. The Promise of the National Land Policy, Constitution and new Land Laws

III. The Current Realities of Community Land in Kenya

IV. Back to the Future?

V. A Model for Recognizing Community Lands

I.Historical Overview of Customary Rights in Kenya

“What greater grief than the loss of one's native land?” ~ Euripides

PRE-COLONIAL KENYA

System of communal land tenure was based mostly on clan solidarity and other lineal heritages

Concept of land fell under the ‘commons’ – i.e. private interests could not usurp a community’s needs

CROWN LANDS & NATIVE RESERVES

Conquest of the territory by the British in the late 1880s and subsequent declaration of the British East Africa Protectorate in 1895

Crown Lands Ordinance of 1902 (revised in 1915)• Preponderance of powers conferred to colonial gov’t

to administer and allocate the area of the colony declared as Crown Land

• Some indigenous Kenyans, referred to as ‘natives’, were declared tenants at the Will of the Crown, while others were displaced from their land entirely and placed in areas termed ‘native reserves’

SUPPRESSION OF A LAND MARKET

1939: Abandonment of land auctions in favor of allocation by direct grant or tender

1951: Policies were formalized and resulted in a system based on a Letter of Allotment

Although mostly applied to white settlers, helped further discourage the ‘natives’ and other non-white communities from participating in the land market

These policies reverberated in practice through Kenya’s post-independence period creating “one of the greatest ironies in the history of land allocation in Kenya…by later facilitat(ing) the massive illegal and irregular allocation of public land by the Government after independence”

THE MAU MAU REVOLUTION

1952: The Mau Mau militant group violently opposed the colonial government and white settlers in an effort to regain some of the richest arable lands in Kenya located in the Central Rift Valley in the environs of Mt. Kenya, referred to as the ‘white highlands’.

“We are fighting for all land stolen from us by the Crown…”

THE SWYNNERTON PLAN

Envisioned the allocation of approx. 10 acres per family for 600,000 African families

Creation of family holdings that would be large enough for self-sufficiency, the premise being that more advanced farmers would be able to access credit while providing land tenure security which would propagate investment and rural development

Recommended that all high-quality native land be surveyed and enclosed; that the policy of maintaining 'traditional' or tribal systems of land tenure be reversed; and all the thousands of fragmented holdings be consolidated and enclosed

Faulted the customary and prevalent African land tenure systems not only for aggravating problems of land fragmentation, but also for hampering the adoption, development, and diffusion of sound and intensified farming procedures

WILLING BUYER, WILLING SELLER

1960: Mau Mau rebellion ends, coinciding with Britain’s agreement to eventually grant independence to its colony

In Lancaster House discussions between Kenyan leaders and Britain, a proposed Bill of Rights to the proposed Constitution guaranteeing property rights proved among the most controversial provisions of the negotiated transition

The British insisted on a ‘willing buyer, willing seller’ approach to redistributing white settler farms, and even provided credit to Kenyans to facilitate the buy-outs

Many opposed this, arguing that there was no rationalization to buy the very land which had been unjustly taken from them

MILLION ACRE SCHEME

Independence: December 1963 ‘Million Acre Scheme’

• Market-based settlement scheme designed to make land available to landless households

• Purchase and redistribution of white settler farms to landless Kenyans

• Customary landowners lacked the capital or outright refused to purchase land which they saw as their ‘own’ property

• Mostly only those with financial means benefited• By1977, about 95% of the former ‘white highlands’ had

been transferred to black African ownership, principally Kikuyu

“TRUST” LAND

After Independence, a majority of the Crown Land was re-categorized as Government Land

Native Reserves - which included customary community land holdings - became Trust Land*

Trust Land was held by County Councils and the Commissioner of Lands rather than directly by indigenous occupants or communities

Individual private ownership rights now derived from the President instead of the Crown

Customary tenure continued to be extinguished through adjudication of rights and registration of title, however…

*Trust Land Act (Cap 288)

GROUP REPRESENTATIVES ACT (CAP 287)

A number of customary communities registered as Group Ranches thus somewhat preserving an essence of their customary arrangements

BUT, other interest groups i.e. business interests could also register themselves as Group Ranches

Not surprisingly, County Councils, as trustees of all Trust Land, systematically disposed of trust land irregularly and illegally at the expense of customary communities

AND, in the case of many pastoral communities who were registered as Group Ranches, the group representatives entrusted with the administration of that land often disposed of group land without consulting the members of their groups

II. The Promise of the National Land Policy, Constitution, and Land Act

“Nothing is more destructive of respect for the government and the law of the land than passing laws which cannot be enforced.” ~ Albert Einstein

THE LAND PROBLEM

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Arcane, contradictory, superfluous land laws (67!)

Complex and easily corruptible land management and administration system

Overburdened land administration system; wide disparities in land ownership; individual freehold became the only semi- secure form of tenure

Environmental, social, economic and political problems

Deterioration in land quality, squatting and landlessness, disinheritance of some groups and individuals, urban squalor, under-utilization and abandonment of agricultural land, tenure insecurity, political manipulation,conflict and violence, poverty, inequality

LAND DESIGNATIONS

OLD SYSTEM NEW SYSTEM

Private Land

Government Land

Trust Land

Private Land

Public Land

Community Land

NATIONAL LAND POLICY(SECTION 3.3.1.2)

Community land refers to land lawfully held, managed and used by a given community as shall be defined in the “Land Act"

To secure community land, the Gov’t shall:• Document and map existing forms of communal

tenure, whether customary or contemporary, rural or urban, in consultation with the affected groups, and incorporate them into broad principles that will facilitate the orderly evolution of community land law

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CONSTITUTIONAL PROVISIONSCHAPTER 5 (ART. 63)

What is Community Land? • Land lawfully registered in the name of group representatives

(e.g. group ranches);• Land that was lawfully transferred to a specific community;• Any land declared to be community land by an act of

Parliament;• Land lawfully held, managed, or used by specific communities

as community forests, grazing areas, or shrines; • Ancestral lands and lands traditionally occupied by hunter

gatherer communities;• Land lawfully held as trust land by county governments (but not

including certain public land held in trust by County Gov’t)

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CONSTITUTIONAL PROVISIONS CHAPTER 5 (ART. 63)

Who holds Community Land? • Community land shall vest in and be held by communities

identified on the basis of ethnicity, culture, or similar community of interest.

• Unregistered community land shall be held in trust by county governments on behalf of communities.

How Can Community Land be Disposed of or Used?• Community land shall not be disposed of or otherwise used except

in terms of legislation specifying the nature and extent of rights of members of each community individually and collectively.

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CONSTITUTIONAL PROVISIONSOTHER RELEVANT ARTICLES

• All have right to equal protection and benefit of the law

• Women and men have right to equal treatment

• Freedom from discrimination

Equality and freedom from discrimination

(Art. 27)

• Every person has right to acquire and own property

• Parliament shall not enact a law that permits the State or any person to arbitrarily deprive a person of property, limit or restrict enjoyment of any property right

Protection of right to

property (Art. 40)

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CONSTITUTIONAL PROVISIONSOTHER RELEVANT ARTICLES

• Every person has right to clean and healthy environment

• State obligation to ensure sustainable use and management, and ensure equitable sharing of benefits

• Person may seek redress to prevent stop actions harmful to the environment

Environment(Arts. 42, 69,

70)

• State shall put in place programs ensuring participation in governance, educational opportunities, access to employment, development of cultural values and practices, and reasonable access to water.

Minorities and marginalised

groups (Art. 56)

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COMMUNITY LANDS in NEW LAND LEGISLATION

Land Act (2012) – Key Provisions

Mostly defers governance of community lands to future legislation (Art. 37)

Guarantees equal protection of CL as one of three categories of land

Declares that Land Act is applicable to all land declared as CL

Defines term customary land rights* and recognizes it as a form of tenure

Defers legislation on conversion of community land to other categories of land to future legislation

* Rights conferred by or derived from Kenyan customary law, whether formally recognized by legislation or not.

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Land Registration Act (2012) – Key Provisions

Establishes a community lands register to be kept in each land registration unit, but no registration of community lands transactions before new Act

Identifies specific items that must be included in CL register.

Requires Registrar to issue certificate of title or lease for registered CL.

Prohibits Registrar from registering any instrument that disposes of community land except in accordance with CL law.

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National Land Commission Act (2012) - Key Provisions

Relevant functions of the NLC related to CL include:• Manage and administer unregistered trust land and

unregistered community land (Land Act gives this function to County Gov’t)

• Develop and encourage ADR and traditional dispute resolution over land conflicts

• Ensure that all unregistered land is registered within 10 years• Investigate historical land injustices and review grants of

public land (Secs. 14 and 15)

III.The Realities of Community/Customary Land in Kenya

“This land is your land and this land is my land, sure, but the world is run by those that never listen to music anyway.” ~ Bob Dylan

1890

1895

1900

1905

1910

1915

1920

1925

1930

1935

1940

1945

1950

1955

1960

1965

1970

1975

1980

1985

1990

1995

2000

2005

2010

2015

2020

2025

2030

0

10,000,000

20,000,000

30,000,000

40,000,000

50,000,000

60,000,000

Source: "Populstat" website: http://www.populstat.info/populhome.html

KENYA’S POPULATION

The Holders of Community Rights

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Group Ranches

Customary Communities

On Trust/Community Land

On Gov’t/Public Land

The Holders of Community Rights

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Group Ranches

Registered But No Title

Registered & Titled

Incorporated, Undergoing

Adjudication Process

Customary Communities

With Some Letter of Support from Gov’t

With No Formal Recognition from

Gov’t

On Trust/Community Land

On Gov’t/Public Land

COMMUNITY RIGHTS’ PERCEPTIONS & MEANINGS

COMMUNITY

Common Purpose/

Goals Preservation of Way of

Life & Culture

Access Rights

Right of Developme

nt

Degree of Self

Governance

Right of Possessio

n/Dispossessio

n

Right of Exclusio

n

Resource Rights

Property Rights

KEY TRIGGERS OF CONFLICT

Competition over control and access to the diminishing natural resources, e.g. pasture and water

Erosion of the traditional governance of natural resource use

Depletion of natural resource base Weak natural resource management institutions Commercialisation of cattle rustling Culture of glorifying conflict/revenge acts Mistrust among the different ethnic groups Inadequate policing and state security arrangements Political incitements

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Public Land (formerly Government Land)

Human Settlement

Human Settlement

Public Land / Protected Area

Human Settlement

Individual/Family Shambas under Customary Arrangement &

Governance


Human Settlement


Public Land

Public Land


Governance

Human Settlement


Public LandCommunal Land

Communal Beach Landing Site Public Land


Governance

Squatters

Plots For Sale Illegally!

Illegal Logging & Poaching

Unsustainable Mangrove Harvesting

Individual/Family Shambas if you are lucky!

Some titled, other customarily held. Largest

plots for the Elites!

Unplanned Development

REALITY!

IV. Back to the Future?

“Never, never and never again shall it be that this beautiful land will again experience the oppression of one by another.” ~ Nelson Mandela

Jubilee Coalition AllianceManifesto

3rd Feb. 2013

“For too long the land debate has been about a small fraction of the land while the fact that two thirds of our country is untitled and has remained unnoticed and never part of the debate. The new Constitution recognizes that there is a problem but it does not provide a solution. It is community land but those communities who live on it have no real rights.”

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“People living on community land…

cannot unlock commercial value of that

land, public bodies are hampered from

providing services as it is effectively no-

man’s land, individuals cannot invest and

develop the land as they do not know

whether one day they may be moved on.

This insecurity means they can’t invest,

even on their own housing. “

“Above all they can’t raise capital or

seek investment from others. We have

turned them into squatters on their own

land – they are condemned to poverty –

living in a kind of economic limbo, while

those who have private titles are able

to get credit, invest in their land and

consequently enjoy the phenomenal

rise in value that we continue to

witness.”

“My Government will be committed to giving people the title to their own land – 60 years after Swynnerton, Kenyans deserve to have that process completed.”

V. A Model for Recognizing Community Lands

“The small landholders are the most precious part of a state.” ~ Thomas Jefferson

A tenure assessment tool designed to capture and record all the layers of customary and local practices of land rights and land relations in a participatory process.

The Model sequences specific actions to be undertaken for the recognition of community land rights

Model is designed to respond to Article 68.c (ii) of the Constitution, which requires that legislation be enacted to regulate the manner in which land may be converted from one category to another. CLLR is not that legislation but will contribute towards development of that legislation.

The CLRR Model itemizes required activities in six stages, a combination of which may be undertaken concurrently.

THE COMMUNITY LAND RIGHTS RECOGNITION (CLRR) MODEL

THE CLRR STAGES

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Stage ADemand for community land rights recognition

The public is informed of the opportunity to securecommunity land and resource rights via the CLRR process

THE CLRR STAGES

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Stage BCommunity Engagement

The community is engaged in the process of takinginventory of their land and resource rights.

THE CLRR STAGES

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Stage CRecording of Communityland claims & governance rules

The community’s land claims and land governance rules are recorded, debated by the community, vetted for legality, and formally adopted.

THE CLRR STAGES

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Stage DDemarcation

Actual physical demarcation of community boundaries is undertaken with the participation of the community

THE CLRR STAGES

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Stage DDemarcation


Stage EValidation & Finalization

All documents and maps are reviewed and agreed upon by the community and relevant government agencies.

THE CLRR STAGES

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Stage DDemarcation


Stage EValidation & Finalization

All documents and maps are reviewed and agreed upon by the community and relevant government agencies.

Stage FIssuance of Title

A Certificate of Title of Community Land Ownership isconferred to the community land-holding entity.

ESSENTIAL ELEMENTS OF THE CLRR

i. Provides for the establishment of community land holding and governance entities early in the process; these entities can take various legal forms which communities must be assisted to clearly identify

ii. Acknowledges that customary land rights may incorporate overlapping claims of land rights that may be enjoyed sequentially and/or concurrently, sometimes by different entities

iii. Ensures that all layers of overlapping claims are captured, while at the same time serving to provide evidence for any conflicting land claims that require special attention to be resolved

ESSENTIAL ELEMENTS OF THE CLRR (cont’d)

iv. Recognizes the need and provides steps to divest targeted lands from their previous tenure category to community land as stipulated in the Constitution

v. Envisages the need for a speedy, cost-effective, dispute resolution mechanism to help resolve boundary and other land related disputes among community members as well as with outsiders.

vi. “Customary tenure represents an intact system of economic and social rights “under our feet,” where the policy task is less to create rights that don’t exist, but to protect and deepen rights that already do.” (S. Lawry, 2013)

WHY THE CLRR?

Ensures that community land rights are equal in weight and stature to conventional statutory land rights. Second Class is not acceptable! Prima facie evidence is necessary for defending their otherwise legally recognized land claim. (See Mozambique!)

Allodial (or ‘ultimate’) rights to the land need to be truly vested in the community, not some gov’t agency (See Tanzania!)

Recognizes existing community land institutions’ right and authority to govern community lands. Existing Wildlife Conservancies prove that it can work. (See Kenya!)

The CLRR fosters the resolution of boundary disputes and could even compel new access/use agreements between neighbors

WHY THE CLRR?

More formal individualization of property rights within communities is achievable if necessary (see UNHABITAT’s Social Tenure Domain Model)

Communities should be free to enter into agreements, transactions or negotiations in respect to their land. This is tantamount to participation in the land market and economic development

Can set the stage for community co-management, as land tenure security is a motivation and perhaps a pre-condition

Regulatory frameworks still needed, i.e. Comm. Land Act, topographical survey procedures, institutional admin…

Communities can use the process to prepare their claims even while legislation and regulations are pending

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Thank you!

Thank you!

kdoyle1

bbossoxx Land Tenure Professionals

[email protected]

Participatory Resource Use Mapping

Hotspot Analysis

Hotspot Analysis of Resource Uses

Distances Travelledfor Resource Uses

the promise and feasibility of realizing community land rights in kenya

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land market

land available

land tenure security

history of land allocation

highquality native land

national land policy

new land laws

abandonment of land