Evolution of Lands laws that governed management, administration, and registration of Community land before the enactment of Community Lands Act 2016.

Discuss the provisions of land laws in Kenya for Management, Administration and

Registration of Community land in Kenya in view of the following:

1. Evolution of Lands laws that governed management, administration, and registration of Community land before the enactment of Community Lands Act 2016.

In most respects, the status of community land rights in Kenya before enacting CLA was less different from that in other countries in Africa through the 20^th century. In 1920, reserves were demarcated to enable native to farm and live as it was the norm in British colonies.  Moreover, by1930, security in the twenty-four reserves in Kenya was improved by vesting these lands in appointed boards of trustees, not in the colonial Government. The Native Lands Trust Ordinance, 1938 also required that the Local Native Council be consulted before the Governor issued leases from these reserves to non-natives. Land decisions were to be to the benefit of residents in the reserves, although what constituted a benefit was not defined. Native councils in the 1950s, and then locally elected county councils after Independence in 1963 continued to be the trustees of native lands. They held powers to ‘set aside’ parts of these Trust, which extinguished tribal, group, family, or individual customary rights. The Trust Land Act of 1968 also recentralized control, making the Commissioner of Lands in Nairobi the official administrator, counties acting at ministerial request. By then takings included regular allocations to non-members of communities, and forcible relocation of whole clans to meet the demands of expanding elites and influential tribes, often in the form of settlement schemes. Losses were compounded by compulsory individualization, titling, and registration programmes operating since Independence. This vested homesteads in household heads and cases of wrongful inheritance multiplied. Community rangelands, forests, and wetlands were reallocated to local farmers with means to clear these, or co-opted by Government for disposal to private interests, or turned into local authority wildlife and forest reserves, controlled by the new county councils. Many were, in turn, depleted or sold off, on the instruction of, or with the endorsement of, the Land Commissioner. Excisions of intact national forest reserves mounted through the 1980s and early 1990s, for mainly private purposes.

Moreover, along with other illegal takings from public land became such a concern that a Presidential Commission was established to document the level of wrongdoing in the land sector. Therefore, it was preceded by a review of all land matters. It was also known that many individual title deeds had never been collected, and transfers by inheritance or sale had remained mainly unregistered. In the interim, an effort launched in 1969 to enable pastoralists to share demarcated ‘ranches’ as registered groups quickly became little more than a stepping stone to land capture by elites, through politically encouraged subdivision of these lands. In light of the above, it was not surprising that by the time the content of new land policy and Constitution began to be discussed in 1999, arguments included that the ownership and administration of customary lands should be vested directly in the community in common, including requirements for majority decision-making.

2. Challenges with customary land tenure before enactment of the Community Lands Act 2016.
3. Denial of rights to own and protect the communal land. Besides, the off-farm communal lands were prevented from being defined as community lands. Moreover, there was wrongful interpretation and application of the law, such as during adjudication and demarcation of their respective properties.
4. There were disorganized evolution of the community land laws and so the communities were not identified for landholdings concerning either culture, ethnicity, or the same community of interest. Also, the non-traditional communities were not considered, making it challenging to regulate insecure mass occupancy.
5. Customary laws to ownership of community lands by the communities were not acknowledged; therefore, community lands were not lawfully owned property. Also, unregistered customary land rights were not recognized as real property.
6. There was no double lock security system; thus, the formalization of community lands was poorly promoted. Therefore, registration of customary properties was not compulsory.
7. The security of derivative rights was not well provided. However, the community’s vesting of the title did not prevent derivative rights from being issued for discrete plots within the property.
8. There was indirect provision for communal lands. So some members of the community would decide not to use the community land as one community. Instead, they would opt for the division of land for their benefits and not as a whole community.
9.  Women had unequal treatment over the ownership of land and right holdings. Gender-based discrimination was highly encouraged, and so women were not allowed to own and govern the community land like men.

8.

3. How has the Land reforms in Kenya addressed these challenges?
4. Constitutional Norms Lay the Foundations

Substantively, the CLA is profoundly shaped by the liberation and sanctity of community lands established by the Constitution. However, this includes a strong bill of rights, the right of citizens to seek redress for administrative malfeasance, protection of the rights of marginalized communities, and most directly, protection of property in a new context within which community lands are accorded status as property. As no longer tenants of State but owners necessarily allow them to govern their lands. Also, community lands were defined so that off-farm communal lands were not prevented from being defined as community land. These constitutional provisions set the agenda for the CLA, and from which it could not derogate. Constitutional backing is also vital for challenges against wrongful interpretation or application of the law. Therefore, for many Kenyans, the Constitution provides a haven of rights protection to be turned to when threatened, including government actions.

2. ‘Community’ is Defined in a Forward-Looking Manner

A useful aspect of the new law is that ‘community’ is liberally defined. eThis has origins in the National Land Policy, which directed Government to: “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. ” The Constitution, in turn, identifies communities for landholding as those “identified on the basis of ethnicity, culture or similar community of interest.” The CLA defines community as meaning “a consciously distinct or organized group of users who share any of the following attributes: common ancestry, similar culture or unique mode of livelihood, socio-economic or other similar common interest, geographical space, ecological space or ethnicity.” A community of interest is defined as “the possession or enjoyment of common rights, privileges or interests in land, living in the same geographical area or having such apparent association.” The implication for non-traditional communities is essential. For instance, city slum neighborhoods where parcels are so tiny requires a collective approach to registration in which would be advantageous for regularizing insecure mass occupancy. The broad definition locates Kenya’s new law as forward-looking, by presenting collective tenure as a modern form of ownership appropriate for a rapidly changing 21st century.

3. Community Lands Become Lawfully Owned Property

Community lands are regulated by communities, using their own rules, defined as customary or community law. The Constitution acknowledges customary laws, only requiring these to be consistent with the Constitution, as must statutory and religious law. Along with freehold, leasehold, and legally established partial interests in land, customary land tenure is recognized as a lawful and equitable means of owning land and secondary rights to such owned lands. “There shall be equal recognition and enforcement of land rights arising under all tenure systems and non-discrimination in ownership of, and access to land under all tenure systems.” The CLA furthers this by protecting customary rights held immediately before the commencement of the law. It empowers communities to make rules for regulating the management and administration of their land, including based on custom. The issue of individual customary rights of occupancy to community members will be “governed by customary law.” The “customs and practices of pastoral communities” are specifically to be taken into account. Recognition of unregistered customary land rights as real property is also provided in a requirement that county governments will hold unregistered holdings in Trust for their owners only until these lands are formally identified and registered (CLA s. 6). Therefore, the overall effect is that customary property is recognized as existing, whether registered or not.

4. Formalization of Property Parcels Is Strongly Promoted to Double-Lock Security

Kenya’s CLA has made registration of community lands compulsory and set time limits for titles to be acquired. The government is required to develop a particular adjudication programme for community lands and ensure that it will be concluded by 2019 (CLA s. 46). Should this not be achieved, the Cabinet Secretary may gazette new completion dates. Draft regulations under the CLA (June 2017) aim to hasten the process by making a deadline for the required inventory of unregistered community land to start the process. However, neither are there legal grounds for community lands to cease to exist as lawfully owned without registration.

5. Security of Derivative Rights Is Well Provided for

The CLA makes provision for individuals, families, and other customary groups or new groups formed by community members, such as a cooperative or association, to be acknowledged as the owners of rights to particular parts of the community’s domain (CLA s. 14). That is, community members together jointly own the land, but individual members, families, and groups may register title to specific areas, usually for house and farm plots (CLA s. 27). The derivative nature of these rights is explicit. Such entitlements “shall not be superior to community title in any way” (s. 27 (3)). These derivative rights are termed the Customary Rights of Occupancy. Their formalization is possible through the issue of Certificates using a scheduled Form, but this is not compulsory. In Kenya, most pastoralists are likely to find it unproductive and confrontational to subdivide their primary asset, grazing lands. The issuing authority of all derivative rights is the Community Land Management Committee, subject to the community (CLA Regulations, s. 17. Appropriately, the law enables derivative rights to be governed by customary law, meaning rules that the community as a whole prescribes. Only a fee for securing these plots applies when Certificates for these plots are issued (CLA s. 27).

6. Communal Lands Are Directly Provided for

The CLA provides well for the communal property that operates at two levels; the

ownership of all the community land in common and to be held under a formal collective title deed, and collective ownership of derivative rights to specified parts of the property, that do not constitute absolute ownership but access and use by all community members or an agreed subset of members. The Act defines communal land use as “holding or using land in undivided shares by a community” (CLA s. 2). Arrangements will vary. At one extreme, a community may assign its entire property to individuals and families under customary rights of occupancy, certificated or not. In this event, the community land will be a composite of ‘private’ parcels, governed by community rules. Or the opposite may be decided that the property shall be entirely owned, occupied, and used in common by all members with no exclusive occupancy and use rights allocated to individuals, families

, or groups. Other communities may adopt a middle way: defining existing houses and farms as under common family occupation and use, and the remaining areas of the community as communal areas. The law encourages the latter to require that natural resources be used and managed “sustainably and productively, for the benefit of the whole community including future generations, with transparency and accountability and equitably sharing or accruing benefits” (CLA s. 35).

7. Women Have Backing for Equal Treatment as Landowners and Right Holders

Kenya’s Constitution establishes gender equity as a right. These include directives that gender

discrimination in law, and customs and practices related to land and property in land must be

eliminated (CON Art. 60). Enactment of a law to protect marital property and the interests of

spouses in the occupation of land at the decease of the other spouses/s are also obligatory (CON Art. 68). The legislation is required to implement the principle that not more than two-thirds of elective or appointive bodies shall be of the same gender, still not enacted (CON Art. 27 (8)). The Land Act provides that compensation, when community land or private land is compulsorily acquired, is payable to the spouse/s of affected persons and to “any person actually occupying the land and the spouse or spouses of such person” (LA s. 107). The CLA stipulates that there must be “equal treatment of applications for women and men” (CLA, s. 14 (4) (c) (i)). Nor may women marrying into the community be excluded as members, and their rights to land remain unless they divorce and remarry elsewhere (CLA s. 30 (5). Therefore, there is sufficient for a woman to appeal against injustices in land dealings by a community land committee.

8. Institutions for Community Land Governance Are Largely Sound

The CLA establishes two institutions through which a community will manage its land. The

first is the Community Assembly, this comprises a meeting of adult members. This body elects the Community Land Management Committee of 7 to 15 persons to conduct day-to-day administration (CLA s. 7 & 15). The Community Assembly is legally obliged to meet only once a year, and otherwise may hold Special General Meetings, on the demand of not less than tone third of its members (CLA Regulations, First Schedule). The quorum is two-thirds of all adult members (CLA s. 15 (2)). As a simple majority is sufficient to pass or reject a proposed action or decision, as few as 34 percent of adults could make binding decisions (CLA s. 15 (5)). Therefore, this rises to a minimum of 44 percent of all members in matters of disposal or alienation of community land, including when an agreement between an investor and the community is being considered (CLA s. 36). The dubious prospect of less than half of adult members making critical decisions has been raised by civil society. Therefore, it is definite that the drafted Regulations under the Act somewhat liberally interpret the CLA as that 66 percent of adult members must consent to any disposition of community land, or use of the community property as security for a loan for its development (CLA Regulations, Model Rules, 7.9).

9. Access to Community Lands by Investors is Reasonably Addressed

Kenya is in a surge in economic transformation, with oil, water, coal, port, and infrastructural developments flourishing alongside private sector developments. Despite the protection of their lands in law, appropriation of community lands for these purposes is common. Therefore, it is definite that the CLA is specific as to the requirements of investors, including that each request is subject to consultation and agreement with the community, and with payment of compensation and royalties, should an agreement be reached (CLA s 36). A community may also determine terms of any leases, and establish requirements for the investor to conserve and rehabilitate lands (CLA s. 37). The Act presumes that communities will not alienate their land to investors but lease land to them. The draft Regulations go

further, requiring notice of all consultation meetings to be placed in two national newspapers and one local newspaper, posted in all local government offices and affected communities, and allowing 30 days for written submissions to be made.

10. Community Lands Provide an Ideal Framework for Restitution of Lost Communal Lands

Many rural communities in Kenya have long resented involuntary land losses, which the NLP

in 2009 showed was as much by the hand of post-Independence administrations as by the colonial Government. Specifically, the NLP committed the Government to “resolving the problem of illegally acquired trust land” and “reversion of former Government land along the Coastal region to community land after planning and alienation of land for public usage” (NLP Para. 66 (d) (ii) & (iv)). Thus this led to constitutional provisions establishing a National Land Commission to manage public lands and investigate and plan the redress of historical land injustices. Article 67 directed the Commission “to initiate investigations, on its own initiative or on a complaint, into present or historical land injustices, and recommend appropriate redress.” It took the Commission until 2014 to establish a Task Force to draft law governing

this, eventually achieved in 2016, by amending the National Land Commission Act under the Land Laws Act. To date, 111 submissions have been registered, with a call in November 2017 for final submissions, and the Commission is required to act upon it within three years. Claims may be based on injustices occurring between 15 June 1895 (the date Kenya became a protectorate) and 27 August 2010, the date on which the new Constitution was promulgated. Eleven remedies may be considered, of Land 2018, 7, 12 13 of 25, which restitution is one. Thus far, experiences suggest that even where restitution of land to community ownership is viable, the Kenyan State prefers to evict complainants and pay compensation in lieu, a

strategy often fiercely protested by those affected. While the CLA as compared to the National

Land Commission Act does not mention historical land injustices. The collective title it provides for is a useful construct through which to transfer land to community ownership, especially where the claimed lands are presently defined as unallocated or unoccupied public land. There is no excuse for not restoring the property to communities for lack of a suitable mechanism to do so, where this is viable. Political resistance to restitution is a more likely impediment.