Restoration of Community Land Tenure in Kenya

Restoration of Community Land Tenure in Kenya

Community tenure is the dominant tenure system in rural and peri-urban areas of the African continent. More than 90% of the land in Sub-Sahara Africa is held under customary tenure. In this tenure system, a group of people holds land through the application of community laws, and their land administration procedures are guided by and carried out in accordance with shared values and customary systems. In many developing nations, official legal systems only partially recognize the majority of the agricultural and forest land owned under customary tenure arrangements, despite their importance to maintaining the livelihoods and general well-being of both individual households and large communities. To improve secure land tenure and decrease land inequities, many countries in the African region are making efforts to formally recognize customary land rights. Kenya is one of these countries where more than 60% of land falls under communal tenure. In this article, we shall look at strides made by communities in Kenya regarding tenure security and land rights through two examples viz. the Community Land Act 2016 and the Ogiek community court case where the judgement was handed in 2017 and reaffirmed in 2022.

The Community Land Act 2016 (CLA)

The president signed this law (CLA) on August 31, 2016, and it came into effect on September 21, 2016. The Group Representatives Act (Cap 287) and the Trust Lands Act (Cap 288), which had previously provided for community land, were repealed upon the implementation of this Act.

A further goal of this law was to give tenure security to the 6 to 10 million Kenyans, the majority of whom belonged to pastoral or other less affluent rural communities. The Act outlines how to manage and administer community land as well as the responsibility of county governments concerning unregistered community land. It also recognizes, protects, and registers community land rights.

The Community Land Act 2016 made a few strides in communal tenure which include:

• In terms of ownership, the act defines a community as “a consciously distinct and organized group of users of community land who are citizens of Kenya and share attributes such as; common ancestry; similar culture or unique mode of livelihood; socio-economic or other similar common interest; geographical space; ecological space; or ethnicity.” This open definition of community, allows even those in slum areas, living on indivisible pieces of land, the chance to register the block of land on which they live as a unit.

• The Act has also made communally owned land legal property which is regulated under the community rules and regulations. If a community wants to register their communal land, an application must be made to the community land registrar, who will keep a community land register for each registration unit. The registrar is expected to publish a notice informing the public of such interest as soon as they receive it. The absolute ownership of the land, along with all associated rights and advantages, is transferred to the community upon registration as the landowner. Customary laws are recognized by the government through this Act, provided that these are in accordance with the Kenyan constitution. Following registration, a certificate of title is given to the community, guaranteeing their ownership of the land.

• The Act also promotes the use of alternative dispute-resolution procedures. According to this, any issues that might develop between two or more landowners registered with a community shall be settled through internal dispute resolution procedures outlined in the bylaws of the community. The Act also promotes the use of arbitration and mediation to settle conflicts involving community land. The statute allows parties to a dispute to take the case to court if it is not resolved through the ADR.

• By safeguarding their land rights, the statute also guarantees women's equality as landowners. According to the Community Land Act, applications from men and women must be treated equally. Additionally, the Act stipulates that women must form up to a third of the community land governing body members. This means that women who marry into the community cannot be denied membership or their rights to land unless they divorce and remarry elsewhere. This measure makes sure that women are included in the community land decision-making processes.

The Ogiek Community Land Rights Case

After using all available local channels for redress, the Ogiek community filed a land rights action against the Kenyan government with the African Court on Human and Peoples' Rights. Because of the case, the government was held to a higher standard of accountability and received attention from the world community. To engage the government in obtaining legal possession of the land, the Ogiek Peoples' Development Program (OPDP) established community by-laws, maps, and protocols for managing communal lands during the litigation. The community is celebrating this year what is being hailed as a milestone decision by the East African Court of Justice about the theft of their land by the government.

According to the African Court's ruling, the Ogiek are an indigenous group with equal rights to the land. This decision has helped them realize their land rights and given them the freedom to use, access, and take profit from their natural resources. The African Charter on Human and Peoples' Rights was found to include violations by the Kenyan government in a number of its provisions. Reparations were granted to the Ogiek, and the government was compelled to propose remedies. This judgement was first handed by the courts on May 26 2017 and later affirmed in 2022. The Ogiek community as well as indigenous communities throughout Africa would greatly benefit from this ruling. The Court made the rights of vulnerable populations, that need extra protection, concrete through the reference to the United Nations Declaration on the Rights of Indigenous People. With this ruling, the African Court quashed all justifications for the displacement of the Ogiek people by recognizing that indigenous populations cannot be held accountable for the degradation of forest resources.

The Ogiek celebrate the court ruling on rights and repatriations: Photo by Forest People Program

Even as confidence in communal tenure grows in Kenya, and communities are brought to the table in terms of decision-making regarding their land, a lack of political will has led to the slow effect of appropriate practices to improve the lives of those under the community tenure system. Inconsistent or insufficient political will, a lack of leadership from those in county governments, and different priorities among political actors can detract from the implementation of policies like the Community Land Act meant to change the lives of millions of Kenyans. This lack of political will led to the lack of dispatch of personnel to help in effecting the legislation and the legislation not being publicized for public awareness. This had the detrimental effect of lack of registration by communities who were not aware of the existence of the law allowing them to register their land rights. Fortunately, with the effort of civil and local organisations and NGOs, proper awareness has been created and registration of community land is now taking place.

These two developments viz. the Community Land Act 2016 and Ogiek community winning their land case, show how community land tenure in Kenya has taken significant leaps for the benefit of the communities involved. NGOs and civil and local organizations have taken the initiative to create awareness programs where they teach communities about avenues to harness their land rights. Among them is Namati Kenya, which began training and deploying community land paralegals in 2018 with the help of its partners - Il'laramatak Community Concerns, Indigenous Movement for Peace Advancement and Conflict Transformation (IMPACT), Samburu Women's Trust, and Kenya Land Alliance. They assist communities in understanding the Community Land Act, ensure that they meet the requirements for land registration, and organize them to demand the processing of applications in a timely manner. All parties concerned are hoping that all communities in Kenya will be able to fully enjoy their rights to land with the help of these initiatives. These inclusive initiatives will help communities to be part of the general process of land governance and administration.