The Promise and Feasibility of Realizing Community Land Rights in Kenya

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Presentation given by Kevin M. Doyle at a Seminar at the Institute for Poverty, Land and Agrarian Studies, University of the Western Cape, Bellville, South Africa, July 30, 2013

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  • Under the old system of land governance, there were three types of land classifications:Government LandTrust Land, andPrivate LandUnder the new Land Policy, Government land will now be considered Public LandTrust Land will be Community LandAnd Private Land remains Private land, but with some significant changes, such as the right of spouses and children, and with incentives to encourage optimal utilization of the land, and to discourage land speculation.
  • Public land exempted include: Unalienated government land;Land transferred to the state by way of sale, reversion or surrender;Land for which no individual (or heir) or community ownership can be established;Land held, used, or occupied by a state organ (except a national organ).
  • Items that must be included in CL register include: cadastral map showing extent of community land and areas of common interest, name of community, register of members of the community, the user of the land, identity of group representatives, names and identify of the members of the group,
  • Community means a clearly defined group of users of land identified on the basis of ethnicity, culture or similar community of interest as provided under Art. 63(1) of the Constitution, which holds a set of clearly defined rights and obligations over land and land based resources.
  • Thank you!
  • Sketch mapping (2 groups of men and women)Consolidation of a unified sketch mapTransfer data onto the satellite imagesGPS data collection of select pointsValidation of printed maps
  • The Promise and Feasibility of Realizing Community Land Rights in Kenya

    1. 1. Presentation by Kevin 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 Africa 30 July 2013
    2. 2. 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
    3. 3. “What greater grief than the loss of one's native land?” ~ Euripides
    4. 4. 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
    5. 5.  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‟
    6. 6.  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”
    7. 7. 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…”
    8. 8.  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
    9. 9.  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
    10. 10.  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
    11. 11. 11
    12. 12.  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)
    13. 13.  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
    14. 14. “Nothing is more destructive of respect for the government and the law of the land than passing laws which cannot be enforced.” ~ Albert Einstein
    15. 15. 15 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
    16. 16. OLD SYSTEM NEW SYSTEM Private Land Government Land Trust Land Private Land Public Land Community Land
    17. 17. 17
    18. 18.  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 18
    19. 19. 19 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)
    20. 20. 20 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.
    21. 21. 21 • 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)
    22. 22. 22 • 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)
    23. 23. 23
    24. 24. 24 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.
    25. 25. 25 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.
    26. 26. 26 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)
    27. 27. “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
    28. 28. 0 10 20 30 40 50 60 Millions Source: "Populstat" website: http://www.populstat.info/populhome.html KENYA‟S POPULATION
    29. 29. 29 Group Ranches Customary Communities On Trust/Community Land On Gov‟t/Public Land
    30. 30. 30 Group Ranches Registered But No Title Registered & Titled Incorporated, Undergoi ng 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
    31. 31. COMMUNITY Common Purpose/ Goals Preservation of Way of Life & Culture Access Rights Right of Development Degree of Self Governance Right of Possessio n/ Dispossession Right of Exclusion Resource Rights Property Rights
    32. 32.  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 34
    33. 33. Public Land (formerly Government Land)
    34. 34. Human Settlement
    35. 35. Human Settlement Public Land / Protected Area
    36. 36. Human Settlement Individual/Family Shambas under Customary Arrangement & Governance Public Land / Protected Area
    37. 37. Human Settlement Public Land / Protected Area Public Land Public Land Individual/Family Shambas under Customary Arrangement & Governance
    38. 38. Human Settlement Public Land / Protected Area Public Land Communal Land Communal Beach Landing Site Public Land Individual/Family Shambas under Customary Arrangement & Governance
    39. 39. 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!
    40. 40. “Never, never and never again shall it be that this beautiful land will again experience the oppression of one by another.” ~ Nelson Mandela
    41. 41. “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.” 44
    42. 42. “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. “
    43. 43. “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.”
    44. 44. “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.”
    45. 45. 48
    46. 46. “The small landholders are the most precious part of a state.” ~ Thomas Jefferson
    47. 47.  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.
    48. 48. 52 Stage A Demand for community land rights recognition The public is informed of the opportunity to secure community land and resource rights via the CLRR process
    49. 49. 53 Stage A Demand for community land rights recognition The public is informed of the opportunity to secure community land and resource rights via the CLRR process Stage B Community Engagement The community is engaged in the process of taking inventory of their land and resource rights.
    50. 50. 54 Stage A Demand for community land rights recognition The public is informed of the opportunity to secure community land and resource rights via the CLRR process Stage B Community Engagement The community is engaged in the process of taking inventory of their land and resource rights. Stage C Recording of Community land claims & governance rules The community‟s land claims and land governance rules are recorded, debated by the community, vetted for legality, and formally adopted.
    51. 51. 55 Stage A Demand for community land rights recognition The public is informed of the opportunity to secure community land and resource rights via the CLRR process Stage B Community Engagement The community is engaged in the process of taking inventory of their land and resource rights. Stage C Recording of Community land claims & governance rules The community‟s land claims and land governance rules are recorded, debated by the community, vetted for legality, and formally adopted. Stage D Demarcation Actual physical demarcation of community boundaries is undertaken with the participation of the community
    52. 52. 56 Stage A Demand for community land rights recognition The public is informed of the opportunity to secure community land and resource rights via the CLRR process Stage B Community Engagement The community is engaged in the process of taking inventory of their land and resource rights. Stage C Recording of Community land claims & governance rules The community‟s land claims and land governance rules are recorded, debated by the community, vetted for legality, and formally adopted. Stage D Demarcation Actual physical demarcation of community boundaries is undertaken with the participation of the community Stage E Validation & Finalization All documents and maps are reviewed and agreed upon by the community and relevant government agencies.
    53. 53. 57 Stage A Demand for community land rights recognition The public is informed of the opportunity to secure community land and resource rights via the CLRR process Stage B Community Engagement The community is engaged in the process of taking inventory of their land and resource rights. Stage C Recording of Community land claims & governance rules The community‟s land claims and land governance rules are recorded, debated by the community, vetted for legality, and formally adopted. Stage D Demarcation Actual physical demarcation of community boundaries is undertaken with the participation of the community Stage E Validation & Finalization All documents and maps are reviewed and agreed upon by the community and relevant government agencies. Stage F Issuance of Title A Certificate of Title of Community Land Ownership is conferred to the community land-holding entity.
    54. 54. 58
    55. 55. 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
    56. 56. 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)
    57. 57. 61
    58. 58.  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
    59. 59.  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
    60. 60. 64 Thank you! Thank you! kdoyle1 bbossoxx Land Tenure Professionals blockisle@hotmail.com
    61. 61. Participatory Resource Use Mapping
    62. 62. 66
    63. 63. 67
    64. 64. Hotspot Analysis Hotspot Analysis of Resource Uses Distances Travelled for Resource Uses

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