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Community Land: Which Way Kenya

The Endorois further lodged a petition with the African Commission on Human and People’s Rights (ACHPR) in Gambia after the Kenyan courts ruled against their petition. The ACHPR ruled in favour of the Endorois, with their recommendation being that the State should recognize the rights of ownership to the Endorois and return their ancestral land; ensure that they have access to Lake Bogoria and the surrounding sites for religious, cultural rituals and for grazing their cattle; pay adequate compensation for the loss suffered; and pay royalties from the existing economic activities.

Prior to colonial rule, communities in Kenya had their own leadership structures informed by local values that administered and regulated land rights among their members for purposes of activities such as construction of shelter, farming, grazing, hunting and gathering. Any disputes, be it conflicts over land were resolved by a panel of elder that would impose fines on the offender in form of livestock. The regulation and administration of community land rights by the panel of elders was weakened by colonization leading to division of land.

The constitution mandates the National Land Commission (formed after the passing of the National Land Policy) to redress land injustices that occurred during and after the colonial era. The National Land Policy recognizes that individualization of tenure has undermined traditional resource management institutions; ignored customary land rights; and led to widespread abuse of trust in the context of both the Trust Land Act and the Land (Group Representatives) Act.[1]

The Constitution of Kenya (COK) 2010 categorizes community land as land held by groups under the Land (Group Representatives) Act; land lawfully transferred to a specific community by any process of law; land that is lawfully held, managed or used by specific communities as community forests, grazing areas or shrines; ancestral lands and lands traditionally occupied by hunter-gatherer communities; and land that is lawfully held as trust land by the county governments. It further stipulates that any unregistered land will be held by the county government on behalf of the community. Communities are defined on the basis of ethnicity, culture or similar community of interest in the COK[2].

Although the COK and the National Land Policy necessitates the enactment of the Community Land Bill, competing interests in the land sector has slowed the passing of the Bill. Those opposed to the bill have continued to find faults in its provisions. In addition emerging contradiction and open conflict between the Chairman of the National Land Commission and the Cabinet Secretary for Lands has played out in public, with each blaming the other for the slow implementation of the policy[3]. It has also emerged that both the ministry of Land as well as the NLC have draft land use plan frameworks, which they both intend to disseminate. It is evident that there is limited political will for reforms generally and even more so for land sector reforms.

Its imperative that parliament passes the Community Land - Bill as community land makes up more than 55 per cent of the country's stock of land. It is vital that the different stakeholders, especially the National Land Commission and the Ministry of Lands ensure that there is complementarity, coordination and collaboration in the efforts that are being undertaken in enacting the community land rights law in Kenya.

[1] GOK: The National Land Policy 2009

[2] The Constitution of Kenya 2010

[3] Michael Ochieng Odhiambo (2015).
Securing Community Land Rights in the Kenyan
ASALs: Available Legal Option. Nairobi Kenya