For years, communities have been outspoken about their insecure land rights due to inadequacies in the previous governing laws under the Land (Group Representatives) Act of 1970 and the Trusts Land Act of 1938. Glaring areas of concerns included:
1) Community member’s exclusion in decision-making processes by group ranch committees;
2) Inefficient management of group ranch committees;
3) Isolation of youth in ownership and governance of group ranches;
4) Community lands considered as “no man’s land” and frequently subjected to illegal dispossession for private or public use without any or prompt compensation to the community; and
5) Absence of clear boundaries, resulting in land disputes over resource sharing, decision-making and communities were essentially made “squatters” on their own lands.
Community Conservancy Policy Support and Implementation Programme (CCSP), jointly implemented with The Nature Conservancy (TNC) has been advocating for the Community Land Act. One of the key aims was to increase the opportunities for development in wildlife endowed areas in Kenya, thus contribute to Kenya’s vision 2030 of a stable, socio-economically empowered communities protecting wildlife, which is as viable tool for poverty reduction.
Kenya is the most recent African state to acknowledge customary tenure as producing lawful property rights, not merely rights of occupation and use on government or public lands.
This analysis researches this new legal environment. This promises land security for 6 to 10 million Kenyans, most of who are members of pastoral or other poorer rural communities. Analysis is prefaced with substantial background on legal trends continentally, but the focus is on Kenya’s Community Land Act, 2016, as the framework through which customary holdings are to be identified and registered.
Subsequently, Whispers from the North deduced to tacit conclusion is that while Kenya’s law is positive and even cutting-edge in respects, legal loopholes place communities at risk of their lands not being as secure as promised ahead of formalization, and at risk of losing some of their most valuable lands during the formalization process. This is mainly due to overlapping claims by the national and local government authorities. Political will to apply the law is also weak. The truism that the law is never enough on its own to secure social change is illustrated. With or without legal protection, the assistance of non-state actors will be needed to help communities secure their lands under formal collective entitlements.
The need for judicial interpretation of disputed legal provisions may also be required to ensure new constitutional principles are delivered. Recently, High court rulings suspended the Community Land Act pending repeal by Parliament within 12 months.
A WIN FOR COMMUNITY CONSERVANCIES
Now for the first time, the Community Land Act gives communities a leading role in the governance and management of community land. What are the key benefits of the Community Land Act?
A. Provides Security of Title
The Act devolves power to the community to own, manage and benefit from their land as they please by limiting the authority of the county governments in matters relating to land.
Once a community conservancy is registered, the county is under obligation to transfer the land to the community, which then assumes the management and administrative functions over the land and the county loses its previous “trustee” authority.
B. Enhances Investment opportunities on Community Lands
The Act recognizes, protects and permits registration of community lands, allowing the land to be registered either as customary, freehold, leasehold or any other tenure system recognized in Law. In turn, communities can use their official title deed as collateral to take out loans for development projects.
Also, investors will make less risky investments, knowing their agreements with a community falls on community-owned land that can’t just be taken away.
C. Administration and Management is Reserved to a Community Assembly
Community members who would apportion a piece of the land to other uses without the knowledge of the community will no longer conduct such malpractices because the Act introduces a community assembly who shall adjudicate decision to do with the community land. The assembly will also be responsible for electing the community management committee in charge of the management and administration of the community land. Made up of all adult community members, the assembly will require a quorum of not less than two thirds of the members to make decisions.
D. Promotes Benefit Sharing Among Community Members
Community members have every right to equal benefit of natural resources found in the community land. The Act facilitates for these natural resources to used and managed sustainable and productively for the benefit of the whole community and future generations. This shall be done with transparency and accountability and on the basis of equitable sharing of accruing benefits.
● While the Act is quite favorable to community land and to the conservation community, there remain weaknesses in the law, especially in that it does not accord women and youth sufficient recognition and affirmation in the governance and management of the community land.
● Community members will thus need to be open and transparent in carefully selecting leaders who would best represent the community’s interest on the use of land.
● Whispers from the North, civil society organisations, environments, right groups and other stakeholders on their part will party with other stakeholders to support the Ministry of Lands and Physical Planning to develop regulations to actualise the Act’s implementation.
● Also, considering community conservancies form a significant constituent of its membership, Kenya Wildlife Conservancies Association (KWCA) will work with landowners and communities to sustainably conserve and manage wildlife and their habitat outside formal protected areas for the benefit of the people of Kenya.
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