This is a presentation by David Arach, the community land protection program's East Africa program officer at Namati, introducing Namati's approach to community land protection, focusing on the key stage of community by-laws drafting. The presentation was made during a webinar hosted by the International Institute for Environment and Development (IIED) on 16 November 2016 discussing how communities can use by-laws to secure their land rights. A video featuring Arach explaining his presentation during the webinar is available in the third slide or via https://www.youtube.com/watch?v=SnjY5mQVXio. More details: http://www.iied.org/using-community-laws-protect-indigenous-rural-land-rights

1. PROTECTING COMMUNITY LANDS AND NATURAL RESOURCES:
Arach David James
Community Land Protection Program, Namati

2. The need for community Land
protection
Climate change, food and water
insecurity, population growth,
limited natural resources 
3 “levels” of land grabs:
1. Large scale land concessions
2. National elites
3. “Stronger” community or family
members grabbing from “weaker”
 Urgent need to empower
communities to document and
protect their customary land claims

3. Farms – past use, future use
Communal grazing land
Communal forest
The ENTIRE AREA is
community land
Farms – used today
(0) Defining the “community” and ensuring participation

5. Strengthening community governance of
lands and resources
 Land documents can be dangerous without accountable leaders
and participatory governance!
 Unwritten rules can be manipulated by the powerful to claim or
transact land without community approval.
 Intra-community discrimination weakens rights of women and
minorities.
Process:
• Drafting by-laws for good governance of community lands and
natural resources
• Making a zoning plan (linking rules to the landscape)
• Electing Land Governance Councils

6. The by-laws drafting process
• A community-wide brainstorming or “shouting out” of past and current rules (1st
draft).
• Legal education.
• Community analysis, discussion and revision of old rules; addition of new rules
in light of evolving needs (2nd draft).
• Facilitators convene meetings re: women’s rights, zoning, transparent financial
management, other necessary topics.
• Legal & technical analysis of by-laws to ensure that they align with national law.
• Community revision of any rules that violate the law (3rd draft).
• Formal adoption of a FINAL draft by consensus or super-majority vote.
• Community immediately elects Land Governance Council, using the new by-
laws.

7. Suggested by-laws structure
I. Rules About Governance Of Land And Natural
Resources
• Community definition, land ownership/land
holding, Land Governance Council, community
decision-making processes, women’s & minority
groups’ rights, keeping documents safe,
interactions with investors, financial
management etc.
II. Rules about use and management of land
and natural resources
• Food resources, water, community forests and
grazing lands, harvesting and gathering
resources, sacred areas, cultural areas,
protected areas and restricted areas,
commercial use of community resources,
zoning plan, ecosystem regeneration plan
III. Social and cultural rules

8. Good practices for by-laws drafting
• Let the community set the pace and content of the by-laws
• Make sure the process is fully participatory while ensuring healthy
debate! The by-laws are in the community’s own words, not “legalese.”
 Women challenge perceptions that land is “men’s business” by
showing their wisdom within women’s “spheres of expertise”
• Handle the process of writing down customary rules carefully – what is
not captured may be lost.
 Necessary to work with customary justice institutions to ensure
application of by-laws in family land conflict resolution.
• Take care to ensure that existing leaders will implement and enforce the
by-laws and concede power to the new Land Governance Council.
 Important to work with men and leaders to remind them to protect
and provide for women and children = ensuring women’s rights.

9. Goals of the by-laws process
• Protections for women and minority groups’ rights.
• Increased accountability of leaders.
• Greater democratic participation by community members in
land and natural resources management decisions.
• Increased conservation and sustainable natural resources
management.
• Alignment of customary rules with national law.
• Strong foundations for future community prosperity.

10. Ensuring implementation and enforcement of
by-laws
• Ensure process is highly participatory  rules
reflect the community’s will, not leaders’ will.
• Involve all leaders, especially those who
arbitrate land conflicts.
• Ensure the by-laws are widely known.
• Give copies to local officials and magistrates;
invite them to support enforcement.
• Create a list of practical next steps to make
the by-laws “real” (during or after drafting).
• Ensure that by-laws include a plan for
managing collected fees and fines.
• Create “Watch Dog” groups.
• Hold annual, highly participatory by-laws
amendment meetings.

11. Thank you so much
Arach David James
davidarach@namati.org
Skype ID: namatidavidarach
+254 791 922 097
www.namati.org
Namati
Kenya