The recognition by the Constitution that all land belongs to the people and that such land can be held by the people as communities has sought to correct a historical fallacy that has existed in Kenya since the start of the colonial period.
The Colonial Government introduced laws and policies whose effect was to disregard communal approaches to land-ownership and use. It was argued that communities were not legal entities capable of having property rights in land.
When land was vested in communities, so the fallacy went, the land would be mismanaged since there was no sufficient control, with access being open to everyone. The resultant situation would be chaos and open access, what a famous scholar, Garett Hardin, referred to as the Tragedy of the Commons.
Colonial laws and policies, gave false premium to private property rights to land, focusing all efforts towards individual ownership. This policy was used to give Europeans access to and control of the most productive land, and to disinherit Africans.
On attainment of independence, the laws and policies on land, continued with this approach, viewing private property as the most economical mode of land-holding. The law gave very little attention to customary land holdings
Despite this, communities continued to own and use land through communal arrangements. In essence, the country had a dual tenure arrangement, one recognised by the law and another existing in spite of the law.
The National Land Policy and the adoption of the Constitution in 2010 have corrected this error. Henceforth, communities can own and use land. However there are several hurdles still to overcome to make community land rights a reality.
First, identifying and defining the “community” for purposes of vesting legal ownership is a difficult task. The Constitution states that a community shall be identified on the basis of ethnicity, culture or similar communality of interest. Each of these criteria qualifies a group of people to be identified as a community.
The difficulty arises where the three criteria sit side by side and lead to different results in terms of defining the community. The law would have to specify how you reconcile such issues.
Secondly, land ownership has been one of the causes of conflicts in the past. The application of the criteria must be alive to this and seek to avoid enhancing ethnicity by promoting the right of every Kenyan to own land in any part of the republic.
Debate also exists regarding the process of identification of members of the community and the rights they are entitled to. Should the basis of membership be birth, marriage, assimilation or a process of either registration or census?
Others suggest that the solution should be that once you determine the unit of the community, you register the land in the community’s name and ensure its availability for use and avoid the complicated process of census to determine membership.
The law should also balance between communal rights and the rights of individuals within the community. Historically, communal rights included a layer of rights shared among various levels within the community, with the political leadership having the rights of control, the clan having some rights, the family having others, and the individual another set of rights.
A useful law and policy to implement the constitutional provisions on community land rights must protect both the rights of the community and those of individuals. Special attention must be paid to ensure that groups like women and children that have traditionally been disadvantaged under customary rules receive equitable treatment.
The Constitution also encourages the use of traditional dispute resolution mechanisms. In communal land rights, the role of traditional institutions, like the council of elders will be imperative. They will free up the newly established Environment and Land courts from mundane cases that are better resolved at the community level.
The ongoing efforts to develop a Community Land Law gives the country an opportunity to deal with some of these issues in a manner that is fair and just and results in security of tenure.
To ensure that the resulting law is in accord with the National Land Policy and the provisions of the Constitution, more robust debate on the proposals from the Task Force on Community Land Rights is imperative.