Community land ownership in Kenya: Is the enactment of the Community Land Act a stepping stone towards a sustainable future?

Author: Hezron Kagia

In 2012, Tullow oil, a UK-based company, discovered oil reserves in the Turkana region, one of the poorest areas in Kenya. The discovery was seen as a magic bullet that would improve the livelihoods of the local people. On the contrary, the negative effects caused by the exploration and the drilling have made their lives worse. Loss of grazing land and limited access to pasture has been one of the biggest challenges facing pastoral communities since the oil discovery. The extraction of oil (one of the highest contributors to global warming and climate change) in a community experiencing severe drought and starvation because of climate change is contradictory and a negative cost that puts the community at further risk. In a different case, the government proposed the Lamu Port-Southern-Sudan-Ethiopia Transport Corridor (LAPSET) as part of the Kenya vision 2030. The corridor is meant to enhance the connection between Kenya and her neighbors and open up development prospects in the North-Eastern part of the country. However, implementing this mega infrastructure project comes at a cost for the local populations, which will lose access to land and livelihoods. What do these two and most other development projects have in common? They are located on communally owned land.

Indigenous and rural communities own 50% of the global landmass, with the highest share being in Africa. In Kenya, 64% of the landmass is under community ownership and is still unregistered. Communal land ownership was the default system in the precolonial period and remained the mode of ownership in pastoral communities and selected rural areas. The nature of the land (dry and undeveloped) in pastoral communities gives the impression that it is unproductive and requires better utilization. The perception of unproductivity and the weak ownership structure leaves the land susceptible to the forces of capitalism, which seeks to implement economic development projects with little regard to the communities who have lived in the land for centuries. Most, if not all Kenyan communities hold land in high regard. Their ancestors are buried there, it is a source of medicine, an indication of wealth, a cultural symbol, and most importantly, their source of livelihood. However, due to the lack of ownership documents, the government and other investors can allocate vast chunks of land with minimal compensation, thereby disregarding the needs of the local communities. It is important to note that land grabbing and dispossession is not unique to Kenya but in all indigenous and peasant communities worldwide.

In 2o16, the government enacted the Community Land Act, a progressive law that gives communities a chance to register and own their land within the legal system. Several rights relating to land are enshrined in the Kenyan constitution and the land act, but the adoption of the Community Land Act expanded the scope of the rights to include the communally owned land. The act has not been adequately implemented partly due to the limited awareness by the rural communities. However, in a highly publicized event in 2019, representatives from eleven communities in Kenya marched to the ministry of lands in Nairobi to demand the registration of their land. The move was made possible by Namati and its partner organizations wh0 initiated the process to educate and empower the communities on their rights under the act.

After receiving the government’s attention, the communities were implored to comply with the act’s provisions. The respective communities came up with bylaws that covered climate change resilience, environmental management, and the protection of the rights for women, youth, and marginalized groups. To manage all the issues on the land and utilization of natural resources, a community land management committee with equal gender and youth representation was formulated. This was a positive transformation from the past when the male elders made all decisions.

The demand by the 11 communities is an indication of the power of citizen-led advocacy. It also indicates the multiplicity of actors required to implement the provisions of the Community Land Act. Without the support and legal empowerment by Namati and the other actors from the third sector, the march to the Ministry of Land in Nairobi would not have been possible. While thousands of other communities in Kenya have not had the chance to register their land, the move by the 11 communities will serve as an inspiration and a wake-up call to the rest. However, the government needs to (1) play an active role in educating the communities about their rights and the procedures they should follow, and (2) to engage members of the civil society in this process for a smooth implementation.

What does this law mean for sustainable development?

Generally, the land is a crucial element in the achievement of various Sustainable Development Goals (SDGs). However, the SDG framework does not explicitly address communal land but the enactment of the Community Land Act works towards achieving other related SDGs. First, the act gives a voice to women in the community thereby promoting equality in decision making and more specifically achieving SDG 5 (gender equality). Traditionally, women did not have an opinion on the management of land and resources, but with the enactment of the act and the constitutional requirement to have equal gender representation in the management committee, women have the power. Along the line of equality, the young people and marginalized groups in the community also get a voice in the management of resources. Second, secure tenure gives the community confidence when utilizing their land, leading to increased food production, both for consumption and selling which improves their livelihoods and nutrition. As such, guaranteed tenure directly contributes to SDGs 1 (No poverty), 2 (Zero hunger), and 8 (decent work and economic growth). Third, proper land management positively influences biodiversity management, maintaining essential ecosystem services, and tackling climate change, thereby contributing to Goals 13 & 15 (Climate action, life on land). Finally, the act recognizes and represents community/indigenous culture and customs, and generally contributes towards empowering communities.

Further, securing tenure is a huge step towards the prevention of land grabbing and dispossession. The ownership structure established after the land registration gives communities a better position for negotiations in case private investors have to acquire land for development purposes. The act dictates that land can only be transferred if at least two-thirds of the community approves. While communities are not homogenous and interests might vary between individuals, the majority will have to be on the same page if the land is to be transferred or put to a different use. This raises the need for enhanced community empowerment and sensitization on sustainable land management.  Empowerment should work towards assisting the community in the decision-making process.

However, there are some overlapping issues and negative trade-offs within the sustainability debate that still need to be addressed in the context of communal land. For instance, in recent years the reduced population of fauna has been on a steep increase creating the need to conserve biodiversity and wild animals by establishing parks and protected areas. Globally, setting up protected areas is a challenge due to the tensions between the conservation agencies, governments, and communities. In most parts of Kenya, the protected areas fall under communally owned lands. Suppose proper mechanisms are not followed (as in previous years) to establish the protected areas, the result is a negative tradeoff where the community loses livelihoods, access to land, and part of their culture. While the act gives the community a chance to be part of the process of creating a protected area, the national government, through the 2012 Land Act still holds overriding power over the utilization of land. Despite the requirement to offer compensation in such a situation, this unequal power relation is a precursor to the conflicts that emerge within the establishment and management of protected areas. The disfranchisement of the community leads to negative attitudes towards the conservation agenda and works against the protection of biodiversity.

Conclusion.

A sustainable future requires consistent and progressive improvements within different areas of society. As it was evident when the 11 communities demanded the right to register their land, the implementation of the Community Land Act has the potential to contribute to a sustainable future. The guarantee of land tenure gives rural communities power over their land. The effects of this power are reflected in other sectors such as the economy through improved livelihoods, the environment through the steps toward climate change adaptation, and the society through empowerment to the community. The registration of the community land belonging to the 11 communities is an example of what lies ahead for similar groups if the provisions for the act are implemented.

However, as it was evident in the empowerment and registration process, communities are not aware of their rights. Therefore, successful implementation requires concentrated efforts from different actors. The government’s action was only triggered after the communities marched to the ministry offices. While it shows the power of citizen-driven advocacy, in the future, the government should take an active role in the process as it holds the authority to register the land and has the tools and means to drive the process. In collaboration with civil society, communally owned land within Kenya can be registered efficiently and effectively.

This is a call to the state agencies to fast-track the registration process and for the communities to continue fighting for what rightfully belongs to them.

References

Mainnah, L. (2016, October 14). Simmons & Simmons | A brief overview of the Community Land Act No.27 of 2016. Simmons – Simmons. https://www.simmons-simmons.com/en/publications/ck0bfc1xho5070b36rrr9wigi/12-a-brief-overview-of-the-community-land-act-4fr1ca

Ndiku, K. (2014, December 10). A corridor of opportunity? The LAPSSET project in local context — Peace Insight. Peace Insight. https://www.peaceinsight.org/en/articles/kenya-lapsset-conflict/?location=kenya&theme=

UNCCD. (2015, August 12). Land and Sustainable Development Goals | UNCCD. https://www.unccd.int/issues/land-and-sustainable-development-goals

Vogelsang Jaron. (2019, July 30). A Historic Step Towards Securing Community Land Rights in Kenya. https://namati.org/news-stories/historic-step-towards-securing-community-land-rights-kenya/