By Senator Fatuma Adan Dullo
Land in Isiolo County has historically been trust land and has been utilised communally by the people of Isiolo County. The Constitution of Kenya 2010, specifically Chapter 5, renamed such land as community land which is now governed by the Land Act 2012 and Community Land 2016 as enabling legislation. Pursuant to Article 63 of the Constitution and Section 6 of the Community Land Act, unregistered/unadjudicated community land became vested in County Governments to hold in trust for communities. This is the prevailing situation in Isiolo where most community land remains unadjudicated and have been utilised by the communities inter-generationally for communal purposes such as cattle grazing. Such use is beneficial to the communities because that way, the land gets to be used beneficially by all members of the community. The Cabinet Secretary for Lands issued Land Adjudication (Application) Order 2019) gazetted as Legal Notice 150 of 27 August 2019 which purported to open up community land in Isiolo for adjudication. Consequently, surveyors from the Survey Department have already commenced survey of land in Isiolo County. The implications of this Legal Notice are multiple, and adversely affect the interests of the people of Isiolo County
1. Communities will no longer utilise the land for communal purposes.
The Legal Notice will open up community land in Isiolo to adjudication and the issuance of
titles. In other words, community land will be converted to private land and held by individuals as opposed to being held by the community. Effectively, therefore, the communities will no longer be able to utilise the land for mutually beneficial communal purposes that the land currently serves as they have done for generations.
2. Adjudication exposes community land to illegal and irregular allocation and grabbing by private individuals.
By opening up communal land to adjudication and ownership by private persons, the Legal Notice exposes community land in Isiolo County to land grabbing by individuals to the detriment of communities in Isiolo. Land in Isiolo County in particular, and Kenya in general, is a very controversial and emotive issue which has often led to violent clashes. One of the reasons for this state of affairs is dispossession of rightful owners of land by private individuals who have taken advantage of state machinery to grab and allocate land to themselves. The manner in which this Legal Notice was issued is such that there is reasonable suspicion that it may be exploited by unscrupulous individuals to grab community land in Isiolo.
3. Outstanding boundary disputes with neighbouring counties of Meru and Garissa.
Some areas in Isiolo County, particularly the boundary areas between Isiolo County and Meru County and Garissa County are still contested. In particular, the boundary dispute between Isiolo and Garissa counties has in fact repeatedly led to violent clashes among communities in these border areas, which clashes have led to loss of life, destruction of property including the burning of homes and disruption of social services such as schools and healthcare service provision. By embarking on an adjudication process before these outstanding boundary issues are amicably resolved, there is an increased risk of these disputes escalating into further violence among communities in these border areas (particularly the Isiolo-Garissa border) and increased acrimony between the three counties. Adjudication at this stage would further frustrate the ongoing efforts of the national government and the county governments of Isiolo, Garissa and Meru to find durable solutions to these boundary disputes.
Further, the 2019 National Census results have complicated the situation particularly considering the fact that boundary disputes still exist between Isiolo County and Meru and Garissa counties. The results have been highly contested as not being reflective of the true demographics of the county. This situation has arisen partly because of the controversy surrounding the boundary between these counties. It is therefore ill-advised to embark on an adjudication process while these boundary disputes remain unresolved as this will further complicate the dispute among these counties.
4. Failure to adequately consult and receive approval of the County Government as custodian of community land.
In issuing the Legal Notice, it is unclear whether or not the Cabinet Secretary sought and received the approval of the County Government. As the legal custodian of unadjudicated community land on behalf of communities, the County Government has the responsibility to uphold the interest of the communities in any dealings involving the land. By law, the adjudication process is commenced by the County Government, as custodian of community land, petitioning the Ministry of Land to have the land adjudicated. It is unclear what role the County Government has played in this process so far. Ideally, the County Government should provide direction to the Cabinet Secretary and communicate the wishes of communities before any action that would affect the communities’ interest in the land is taken.
5. Failure to undertake public participation.
The constitutional principle of public participation binds the national and county governments including all their organs and officers to openness, accountability and public participation in dealing with public interest issues. The Legal Notice was issued without any consultation with the communities whose beneficial interest in the land is affected. The County Government and the Cabinet Secretary should have consulted the communities before proceeding to open up the community land to adjudication and acquisition by private individuals.
6. The legal status of Isiolo Holding Grounds.
Relying on Gazette Notices issued during the colonial period, i.e, the official Gazette of the Kenya Colony of 5 August 1941 and Official Gazette of Kenya Colony by Gazette Notice 1309 dated 6 December 1952 and published on 9 December 1952, the government claims that the land commonly known as Isiolo Holding Grounds was officially set aside as a cattle holding ground (disease-free buffer zone) and was therefore no longer community land, but public land.
The Cabinet Secretary’s Legal Notice also excludes the Isiolo Holding Grounds from adjudication, ostensibly signalling that the Cabinet Secretary believes the land to be public land. Communities in Isiolo County, however, maintain that the Isiolo Holding Grounds is community land. Assuming (at least for the sake of argument) that the land in question is not community land, but rather public land as asserted by the government, one factual and legal question arises. The fact that for decades since it was allegedly set aside, the land has not been utilised for the intended public purpose as a disease-free buffer zone. This means that Section 12(9) of the Land Act 2012 should apply, and the land should therefore automatically revert to its previous status as community land.
7. The legal status of land claimed by Kenya Defence Forces School of Infantry and Combat Engineering in Burat, Ngaremara and Gambella.
The Cabinet Secretary’s Legal Notice also excludes the KDF School of Infantry and Combat Engineering from the adjudication order. This implies that the Cabinet Secretary considers this land to be public land. It is worth noting that the legal status of part of the land claimed by the KDF School of Infantry and Combat Engineering is contested, particularly in Burat, Ngaremara and Gambella. Communities in Isiolo maintain that the contested land is community land, while KDF lays claim to the land as public land allocated to it.
The question of ownership of this land is currently being considered by three government organs, being the National Land Commission (NLC), the Senate and the judiciary. The NLC issued a directive in 2017 to the parties to maintain the status quo pending determination of the dispute.
The suit filed in the High Court of Kenya by the Law Society of Kenya on behalf of communities in Isiolo County is also pending and the court issued a conservatory order on 09 October 2019 ordering the Ministry of Defence/KDF, the Ministry of Lands and indeed any government department to refrain from evicting the communities from the disputed land until such a time as the court will make a determination as to the status and ownership of the land and resolve the dispute between the communities and KDF.
By issuing the Legal Notice that excludes the KDF School of Infantry and Combat Engineering and the Isiolo Holding Ground from the ambit of the Land Adjudication Act (Cap. 284), the Cabinet Secretary is essentially adopting a position on the legal status of the disputed land, that is, implying that the land is public land belonging to KDF. In other words, the Legal Notice is an attempt to sanitise KDF’s illegal claim over the land. This is tantamount to pre-empting the judicial process. Considering the fact that this Legal Notice by the Cabinet Secretary was superseded by the ongoing court case and the High Court Order of 09 October 2019, it follows that the Legal Notice and order by the Cabinet Secretary should be considered unlawful.
8. The legal status of land earmarked for the LAPSSET Corridor and Isiolo Resort City projects.
The Cabinet Secretary’s Legal Notice also excludes land earmarked for the LAPSSET Corridor and the Isiolo Resort City from the adjudication order. Indeed, the LAPSSET Corridor and the Resort City are expected to have immense economic and social benefits for Isiolo County.
However, it should be noted that most of the land earmarked for these projects in Isiolo County was originally community land. In accordance with the legal requirements governing compulsory acquisition, specifically Articles 40, 60 and 66 of the Constitution of Kenya 2010, Sections 7, 107-103 of the Land Act 2012 and Sections 5 and 22 of the Community Land Act 2016, persons whose land has been compulsorily acquired for a public purpose must be promptly and adequately compensated. Communities and persons in Isiolo County whose land was so acquired (or whose land will be so acquired) are yet to receive adequate compensation.
Consequently, by implying that the land earmarked for LAPSSET Corridor and the Isiolo Resort City is public land, the Cabinet Secretary is attempting to circumvent the legal process of compulsory land acquisition and dispossess communities and individuals in Isiolo County of their rightful property.
9. Development of towns and market/trading centres in Isiolo County.
Notably, the County Government of Isiolo has embarked on a development project by planning
its towns and market centres in accordance with the Physical Planning Act 2019. In this regard, it issued a Notice of Intention to Plan on 17 September 2019. This is expected to enable residents of these towns and centres to acquire land titles, promote orderly development of Isiolo’s towns and market/trading centres and spur economic growth in the county.
Significantly, the County Government is emphatic that this process will be restricted to areas
within the towns and market/trading centres and shall not extend to lands outside these areas
which shall remain community land.
Ideally, therefore, the Cabinet Secretary’s Legal Notice should also have been restricted to those areas identified by the County Government’s Development Plan as being within towns and market/trading centres. Instead, the Legal Notice has opened up almost all community land in Isiolo County to adjudication and titling.
DEMAND: REVOCATION OF THE LEGAL NOTICE
Notably, the Cabinet Secretary met with Isiolo County political leaders and the leaders expressed their concerns as enumerated above and sought cancellation of the Legal Notice.
However, the Cabinet Secretary subsequently met with a group of elders from Isiolo County after which the Cabinet Secretary indicated that the Legal Notice will be amended to limit its scope. The Cabinet Secretary also indicated that the ongoing survey and demarcation of Isiolo will proceed. While we appreciate the fact that the Cabinet Secretary has shown willingness to engage with Isiolo County leaders and elders, we are, however, still concerned by her response which we consider insufficient and a misdirection.
Communities in Isiolo County have expressly requested the Cabinet Secretary to revoke the Legal Notice. We believe that the Legal Notice is incurably defective and the communities’ concerns cannot adequately be addressed and their interests protected by a mere amendment to the Legal Notice. Consequently, we demand the following:
a) Legal Notice 150 of 27 August 2019 and Land Adjudication (Application) Order 2019) be immediately revoked.
b) The ongoing survey and demarcation of land in Isiolo County should immediately be halted until all outstanding issues as mentioned above are satisfactorily resolved.
c) In relation to land in towns and trading centres, adjudication should be undertaken in accordance with the County Government’s Development Plan and the Physical
Planning Act 2019.
d) In relation to all community land in Isiolo County, an orderly process should be adopted where communities, residents and other stakeholders are adequately consulted through a robust and inclusive public participation process, and their approval sought and received; areas strictly needed for settlement identified, including beneficiaries; proper mapping undertaken; and mapped areas marked for adjudication.
e) Areas utilised for communal purposes identified, protected, registered and managed in accordance with the Community Land Act 2016.
f) Prompt and adequate compensation should be paid to communities and persons whose
land is earmarked for the LAPSSET Corridor and Isiolo Resort City before these projects can proceed.
g) The Isiolo Holding Grounds should immediately be released to Isiolo County Government to hold in trust for communities as community land.
h) The ongoing court process aimed at determining the legal ownership of the land in Burat, Ngaremara and Gambella whose ownership is disputed by KDF and communities in Isiolo should be respected.
As members of the Kenyan Parliament (both National Assembly and the Senate) from Isiolo County, we hereby reassure the people of Isiolo County of our unrelenting efforts to ensure that this matter is sufficiently addressed to the satisfaction of the people of Isiolo County. We intend to continue our concerted efforts to engage with relevant national and county government organs with a view to ensuring that the people’s concerns are taken into account and that community land in Isiolo is accorded the due protection of the law.
Document on the Statement by Senator Dullo
Senator Fatuma Adan Dullo, CBS, MP, Current Senator, Isiolo County, Deputy Leader of Majority Senate of the Republic of Kenya.