As far back as our collective memory as a species goes, land has played, and continues to play, an important role as both an economic resource and the basis on which we organize ourselves, be it in ethnic groups, nations, continents and so on. In economics, land comprises all natural occurring resources whose supply is inherently fixed – be it the land itself, mineral deposits, the atmosphere and so on.
In classical economics, it is considered one of the three factors of production, alongside labour and capital, and while we have managed to liberalize the capital and labour markets (to put it simplistically, you are able to acquire external sources of capital, from banks for example, and increase your production while paying an interest for the provision of the capital, and you are also able to hire labour for wages/salaries and benefits), the land market remains far behind in most economies and societies. Land remains one of the biggest causes of disputes and wars, and has played a role in most, if not all, systems of oppression, from slavery, colonialism, tribalism, sexism and so on. Wars continue to be fought over oil and minerals, and land reform remains a utopic dream for many around the world.
So, when I saw that in line with our constitution, we had passed the Community Land Act (2015) just ten days before the prescribed deadline, I breathed a sigh of relief, perhaps prematurely. Land has played a prominent role in all major clashes we have had as a country, and despite the prevalence of customary law in most ethnic groups, before the passing of this law, their community land and resource rights were not protected by the state.
The Act provides for the recognition, protection and registration of community land rights, management and administration of community land, and the role of county governments in relation to unregistered community land. It seeks to move Kenya from a society in which land ownership is individualized to one where the focus is on communal ownership for the larger benefit of communities. It aims to resolve the problem of illegally acquired community land and community land disputes, set apart community land for public purposes and provide conditions for holding of unregistered community land in trust by county governments. Under the (now repealed) Trust Land Act, communities could be dispossessed of their land through irregular allocation by County Councils, especially to individuals.
However, when we drew up the National Land Policy (2009) and the Constitution of Kenya (2010) we took the first bold steps towards correcting these atrocities. According to the constitution, community land consists of land lawfully registered in the name of group representatives under the provisions of any law, land lawfully transferred to a specific community by any process of law, any other land declared to be community land by an Act of Parliament; and land that is either (1) lawfully held, managed or used by specific communities as community forests, grazing areas or shrines; (2) ancestral lands and lands traditionally occupied by hunter-gatherer communities or (3) lawfully held as trust land by the county governments, but not including any public land held in trust by the county government under Article 62 (2).
Under this new law, any unregistered community land will be held in trust by county governments on behalf of the communities, and community land cannot be disposed of or otherwise used except in line with legislation specifying the nature and extent of the rights of members of each community, individually and collectively. This is important, as it vests ownership and dominion over the land in the communities it belongs to, and unlike before, we specify that both individual and community rights must be respected when it comes to the use of the land. Communities in this case are identified on the basis of ethnicity, culture or a similar community of interests.
It affords equal status and recognition of title to community land with other titles, and empowers community members to determine the management and administration of their land, affording all members equal rights, and (hopefully) eliminating discrimination. The National Land Commission will appoint an adjudication officer for every community registration unit who will be in charge of land adjudication, including recording the community land claims. These communities will be vetted to ensure there is no discrimination or registration of illegal communities. Given our history as a country, we need to be very careful with this process so as to not further dispossess people of their land.
Upon adjudication, the title relating to community land will be issued by the registrar. Community land may be registered in the name of a community, a clan or family in accordance with the customary practices applicable, or a community association in accordance with the document constituting the association. During the registration process, a public notice shall be broadcast on a radio station 30 days before the land is registered as community land, as well as in a conspicuous place on said land. The community involved will be engaged and made aware of their land rights, and they will draft and validate of a constitution that will govern community land and natural resources. They will then form the relevant community institutions, and the title will be conferred to them.
The institutions in question are, firstly, the registration of the community as a legal corporate entity (with a common seal and legal powers to sue and be sued, to enter into contracts, to acquire, purchase, hold, charge and dispose of property, and the power to borrow money). A community assembly is also required, and consists of all members of the community. Such an assembly shall then appoint a community land management committee of seven to eleven members to administer the land on a day to day basis. The committee must have gender balance and include person(s) with disabilities.
There shall also be community land management boards established in every sub-county where there is community land. The board will act as a watchdog of the community land management committee(s) and can recommend to the community assemblies to review or suspend a decision of a committee if the committee acted in bad faith, recommend to the community assembly the removal from office of any member of the committee, and make rules of conduct and procedure for the committees. The board will be required to set up dispute resolution mechanisms in accordance with a community’s constitution for resolving disputes. Priority shall be given to alternative dispute resolution mechanisms, and a person can go to court only if aggrieved by a decision of the board, though he/she may first appeal to the community assembly prior to moving to the court.
It is important to note that community land can still be converted to public or private land. It can be converted to public land through compulsory acquisition, transfer or surrender, as long as this conversion is approved by the community assembly. It can also be converted to private land upon approval of the community assembly through transfer, in accordance with the Land Act (2012) any other applicable law. Conversely, both public and private land can be converted to community land as well.
Natural resources found in community land shall be used and managed sustainably for the benefit of the whole community, with transparency and accountability and with equitable sharing of benefits. Every community that finds such resources will prepare a natural resource management plan in consultation with relevant state agencies, and assess and document natural resources within the land. Any investment related to exploitation of natural resources in community land shall also be on the basis of an agreement between the investor and the community.
Many questions have been raised about the Act, including whether the people holding this land in trust on behalf of the community will uphold the best interests of the community, and what we plan to do about the overlaps between community land and public land. What happens when nomadic or pastoralist communities define forests, which are classified as public land, as their ancestral land? And, will the Ministry of Lands co-operate and help this process go over smoothly? As this law was passed recently, we do not have the answer to these questions. What we can do now, though, is act. With over 60% of the land in Kenya qualifying to be community land, this is a very important law. Communities can begin to organize and ready themselves to claim what is rightfully theirs, and in the cases where there are hindrances, they can hold both the state and county governments accountable. This is yet another opportunity to heal and right the wrongs visited upon us by the colonialists, and the subsequent post-colonial governments.