By Salad Malicha
In the Legal Notice No.150, the Cabinet Secretary in charge of Ministry Lands and Physical Planning, pursuant to powers vested upon her by Section 3 (1) of the Land Adjudication Act (Cap 284) has gazetted an order affecting Community Land in Isiolo County except gazetted areas of Resort City, Isiolo Township, Kenya Defence Forces School of Infantry and Combat Engineering, National Reserves and Isiolo Holding Grounds. The Gazette Notice is dated 27th August, 2019.
This Gazette Notice has caused anxiety, disquiet, tension and fear among community members and hence triggered legal opinion.
To our utter dismay, the Gazettement above is a complete change of land tenure system in the entire Isiolo County. From trust land which was appropriate and suitable to our lifestyle of nomadic pastoralism, the tenure system changed name to Community Land under the current Constitution of Kenya 2010 where we submitted the Community Land inventory form for unregistered community Land (CLA6). We gave the inventory form to the Cabinet Secretary for Lands and Physical Planning (Ms Farida Karoney) to beat the stipulated deadline of 24th March, 2019.
It is clearly stated that, community land in Kenya shall vest in the community save for unregistered community land that shall be held in trust by the county government.
Our submissions of the inventory form for unregistered community land was accompanied by a petition copied to the Principal Secretary Ministry of Lands, Attorney General and Speaker of the National Assembly. Strange as it may be, the above Gazette Notice is declaring Isiolo under Adjudication Act for subdivision into farms and plots.
This is a dangerous move threatening our very existence as pastoralists community. It will never be business as usual as land is an emotive matter.
If you look at Section 3 (1) of the Land Adjudication Act, it States and I quote;
Section 3. Application
(1) The Minister may by order apply this Act to any area of Trust land if—:
(a) the county council in whom the land is vested so requests; and
(b) the Minister considers it expedient that the rights and interests of persons in the land should be ascertained and registered; and
(c) the Land Consolidation Act (Cap 283) does not apply to the area:
Provided that this Act may be applied to an area to which the Land Consolidation Act (Cap. 283) applies where a record of existing rights has not been completed and certified under section 16 of that Act, and in such case, where anything has been done in the course of or for the purpose of adjudication under that Act, the Minister, if she is satisfied that those things have been done substantially in accordance with the principles of this Act, may, by order, order that those things shall be deemed to have been done under the corresponding provisions of this Act.
(2) An order under this section shall define the area to which it relates either by description or by reference to a plan or both.
A) Under Section 3 of the Land Adjudication Act, the Minister’s powers are not couched in mandatory terms. Her powers are limited to the extent that the order may suffice or not depending on how the community may feel. If the community feels aggrieved then they can apply to court to suspend the orders as the orders as mentioned earlier are not couched in mandatory terms.
B) The County Council which is now the County Government, did they request the Minister to publish such an order? If that be the case, can the community then can seek to know from the County Government the intention and purpose of the gazette notice.
Under the Community Land Act, its important to note that all land that is designated as community land belongs to the community but held in trust by the County Governments.
The questons that community should be asking at this juncture are as follows;
(i) Why the gazette notice at this time?
(ii) The purpose of the gazette notice
(iii) Was the County Government consulted?
(iv) Was the community consulted?
C) The areas that have been designated as exempt from the gazette notice, were they part of the community lands initially? If so, when did they cease to be community lands? Could this be a way of denying/ disefranchising the community in Isiolo part of their heritage.
In our honest opinion, we find that the gazette notice has not been done in good faith and it has been advanced to alienate some of the community lands that belongs to the people.
In conclusion therefore, we are advised that the gazette notice be CHALLENGED IN COURT expeditiously.