Image: Copyright Deborah Espinosa

Land 2018, 7(1), 12; doi:10.3390/land7010012

The Community Land Act in Kenya Opportunities and Challenges for Communities

by Liz Alden Wily

Van Vollenhoven Institute, Leiden Law School, Box 9520, 2300 RA Leiden, The Netherlands; Tel.: +254-724-317-836

1. Introduction

1.1. Objective

The aim of this paper is to examine how well Kenya’s new Community Land Act, 2016 lays a foundation for majority rural land security, as affecting communities which hold, use and transact lands under their own, usually customary norms, and whose lands remain un-surveyed and untitled.

This is in the context of a new national policy and supreme law (the Constitution) which signals a dramatic new policy direction; abandonment of the strategy pursued since the 1950s that security of rural tenure lies in extinction of customary rights and their replacement with freehold or leasehold entitlements issued to individuals or corporate entities; this was the only means through which property was legally acknowledged. Registrable family and communal tenure were not provided for. Nor, while tolerated, was community-based jurisdiction as practiced over customary lands legally supported.

All of this is now provided for in Kenyan law, to be reinforced through application of the Community Land Act. Through this, each community may, if it wishes, secure a single collective title over all or part of its lands, and lawfully govern this property. This includes regulating traditionally ‘private’ possession of plots within the community domain, as allocated to individual families for settlement or farming purposes. Customary practices may be applied within constitutional parameters of human and social rights. The law is new, and while already in force, will not be fully applied until Regulations under the law are formally promulgated, anticipated in early 2018. The focus of this first study is therefore on what the law says, its strengths and weaknesses, and pitfalls that require address. Reviews of progress will come later.

1.2. Contribution to the Literature

The nature, and legal and administrative treatment of indigenous or customary tenure has been a major subject in the historiography of social transformation in Africa over a full century, only illustrative examples of which need be given [1,2,3,4]. Anthropological studies have been complemented by official analyses, as colonial administrators laid down paths for indigenous tenure to be replaced with the property norms of Europe, adopting these into the national laws of the colony or protectorate (‘statutory tenure’) [5]. Only exceptionally were these terms abandoned by early post-Independence administrations. Presently, a main track in land and property change in Africa is focused upon improving the legal status of customary land interests.

Therefore, the more pertinent literature is from the 1990s as challenge to conventional paradigms mounted, including whether indigenous tenure systems really do constrain agricultural development [6], how far sustained failure to deliver secure indigenous land rights was limiting investment in Sub Saharan Africa [7], what manner of land reform was needed [8], and whether the World Bank should be changing its influential policies on handling of unregistered rights [9]. Inquiries continue into the present as tenure reforms do (or do not) get underway. The focus is wide-ranging, such as linking customary land insecurity to state order and social conflict [10], migration [11], environmental sustainability [12] food security [13], good governance [14], the land rights of rural women in transforming society [15], and to investigations into how far privatization in communal settings creates or destroys wealth [16].

The intended contribution of this paper is more modest. First, the subject is on that part of present-day land reform advancing paradigms for the recognition of community-based rights, and, given the African context, customary rights in particular. Second, the paper focuses not on the application of new paradigms, but upon the laws establishing these. Third, the focus is on one state. Cursory comparison is made with laws in other jurisdictions, but Africa-wide comparison is not the objective, pursued elsewhere [17,18]. Nevertheless, this paper intends to sufficiently explore the legal paradigms presented by one country’s new community land law to add to accumulating country analysis of their terms and likely effects (e.g.,) [19,20,21,22,23].

1.3. Assumptions

These need to be made explicit. The utility of enabling a community-based landholding regime to flourish is taken as given, as is the necessity for this to be underwritten by formal law. Reasons include the role this plays in social justice and peace in modern agrarian societies, establishment of an inclusive foundation for land-based economic growth by providing a more equitable playing field for rural ownership, installing a stronger bulwark against involuntary dispossession, landlessness and migration in an era of rapid transformation, and a presumption that it is the duty of the modern agrarian state to empower citizens on property matters to the same degree historically availed officialdom and elites, such as a founding implication of now regularly enacted freedom of information acts e.g., [24]. The last is contemporarily relevant as African economies embrace devolutionary democratization as elemental to their transformation [25,26,27].

While the above are not explored here, contributing elements are unpacked for easier recognition of these assumptions. This is in the form of indicators, which this author considers essential to enable majority land security, and against which the attributes of Kenya’s new paradigms are assessed. While these indicators too are axiologically subjective, it is observed that they are quite widely used by others, including assessment tools for local tenure security [28,29].

1.4. A Focus on the Law

The legal focus stems from the reality that the legal treatment of property rights is the ultimate determinant of tenure security. This is irrespective of the fact that many communities succeed to retain their lands as their property without legal support, and also to regulate that landholding with relatively little interference. However, as literature of the present surge in ‘land grabbing’ demonstrates, this security can be easily brought to a rude halt where demand for their lands expands [30].

Related, for new land policies to be effective, legal entrenchment is advisable. Thus, law reform has been an integral part of land reform over the last century, such as embedding the redistributive ‘land to the tiller’ policies that dominated feudal tenure reform in Asia and Latin America between 1917 and 1975, embedding coerced land collectivization in communist states, and entrenching land administration and individualized farm titling as quite widely adopted in Africa from the 1950s [31] (Chapter 1). It is also evident that court rulings have at times been the main force for land policy change. An example is court rulings in 1993 and 1994 in Tanzania [32], triggering presidential review for new land law.

1.5. Hierarchy and Timeline of Laws

For readers unfamiliar with the English common law regime adopted in Kenya (and other Anglophone African states), a note of the structure of the law may be useful. Three levels of national law are cited in this paper; supreme law (Constitution); subject specific laws (or acts) that must be in accordance with supreme law, and Regulations developed by the appropriate Government ministry to elaborate procedures to apply the law. The Constitution and acts are made by parliament, which may also cancel (repeal) or alter (amend) laws. The Community Land Act and Land Act are most referred to national laws, respectively summarized as CLA and LA. Regulations also have legal force.

The 47 local governments in Kenya (elected county councils, each with an executive arm) may also enact laws applicable to their counties, providing these are in accordance with national law on the subject. Kenya’s Constitution specifies land survey and mapping, and boundaries and fencing, as the only two land issues which counties may regulate. While limited, these are directly pertinent to the actions of defining and registering community lands within each county. County governments also have trustee functions over community lands for as long as they are not registered, raising queries addressed later.

National and county laws are termed statutes or statutory law. The term ‘received law’ is also used to describe laws of European origin adopted into local national law, as described earlier. Customary law comprises the rules and regulations that a community historically or presently uses to guide its decision-making, and is accurately increasingly referred to as community law. Kenya’s Constitution accept customary laws as having legal force, provided these are not inconsistent the Constitution or statutes.

A timeline of the key national legislation may also be helpful. Kenya secured independence from Britain in 1963. A first Constitution was enacted (1963). This was replaced in 1969, in turn replaced by the Constitution in 2010. This constitution widely departs from the two earlier constitutions, including on land and property.

The main pre-Independence law referred to is the Native Lands Trust Ordinance of 1938, especially as the post-Independence Trust Land Act of 1968 was modeled on this colonial enactment. While amendments were made since, the Trust Land Act was only repealed in 2016, replaced by the Community Land Act (CLA). Another early law after Independence referred to is the Land (Group Representatives) Act, 1968, also repealed by the CLA in 2016.

Following the directives of the Constitution (CON) in 2010, Parliament has enacted four main land laws: the Land Act, 2012 (LA), the Land Registration Act, 2012, the National Land Commission Act, 2012, and the Community Land Act, 2016. (CLA). Some provisions in the first three laws have already been altered by the Land Laws (Amendment) Act, 2016. This included moving supervising authority over community lands from the semi-autonomous National Land Commission to the Government Ministry in charge of lands. Draft Regulations under the CLA are referred to as relevant. While clauses in the Constitution are referred to as Articles (Art.) in this paper, those in ordinary laws are referred to as sections (s.). The National Land Policy, 2009 is summarized as NLP.

2. Background

2.1. Customary Tenure in Africa

Most of Africa is unregistered community land [33]. Community land means lands acquired, possessed, and transferred under community-based regimes. In Africa this mainly means customary tenure. Founding norms derive from longstanding practices by a village, clan or tribal community. The system survives into the 21st century, because it has not been forcibly extinguished by superimposed property systems, and because its community-based character allows ready adaption of norms as each generation finds necessary. This keeps it vibrant and relevant, including to changing land uses and social relations within the community [34]. Therefore, the rules by which customary tenure operates are a hybrid of traditional and contemporary practices. As community members are also citizens of modern states, they regularly use constitutional bills of rights to reshape less satisfactory elements of custom, such as relating to women’s rights, or to increase the permanency of rights over stable homesteads within the locality. Many rural communities also now govern land relations through bodies they elect or appoint, in which traditional authorities play no or a declining part (e.g., Tanzania, Angola, Liberia).

Community-based tenure regimes may also be state creations. China is a dominant example, where 1 million collectives lawfully own and control defined rural domains [35]. Land cooperatives, and local governments are also often landowners on behalf of community members (e.g., Armenia, Tunisia and Egypt). In this paper, the terms customary and community lands are used interchangeably. Some new land laws including Kenya’s refer to customary or communal lands as community land. Many global initiatives do similarly [36].

2.2. Evolving Global Support for Securer Community Lands

FAO’s guidelines on the subject illustrate global attention on the status of community-based land rights in developing countries [37]. Reasons for this attention may be briefly listed as follows: first, community land tenure remains a major landholding system today, alongside statutory and Islamic property systems. At least 2.5 billion people hold community lands, over 6+ billion hectares, more than half the global land area [38]. Second, the nature of community tenure is also proving more relevant in most of the 130 or so economies which The World Bank identifies as agrarian in the 21st century [39], as a useful framework for devolving authority and decision-making to the grassroots [40]. Third, the community land sector is predominantly made up of resources that have been seriously neglected in property relations—forests, rangelands and swamplands. In fact, three-quarters of the 2 billion hectares estimated as customary/community lands in Africa are neither farms nor house plots, but comprise such shared natural resource lands [41]. This derives from the surprising fact that only 12 percent of Africa’s lands are permanently cultivated [42], and despite absorbing most population, the density of habitation in towns means they cover little area, less than 2 percent of total land in Africa [43].

The ownership of off-farm communal resources is proving more and more contested as their values are exploited, resulting in rising degradation, or the transformation of use for mainly state or private commercial purposes [44]. With exceptions, governments have historically defined off-farm lands as un-owned or government property, a condition tantamount to open access in the eyes of land seekers. For increasingly aware and articulate communities worldwide, claim of their lands as un-owned or government property constitutes wrongful dispossession of often their most valuable assets, and a route to degradation of their lands, which they cannot control, for lack of formal recognition that they are the owners [45]. It is not surprising that the conservation sector is itself increasingly mindful of the role which recognition of community land ownership plays in saving and sustaining important forest, wetland and pastoral land resources [46].

Pragmatism also comes into play in making legal means available through which communities may be recognized as collective landowners. Despite more than half a century of intended conversion of family and communal lands into non-customary individual properties, only 10 per cent of Africa’s lands are under private entitlement in 2017 [47]. One reason is cost, complicated and remote procedures. Another is political will. As Rwanda has recently shown, with a sharp eye for simplest, cheapest and fastest procedures, an entire country can be brought under registered individual or government entitlement in five years [48]. Admittedly, the very small size of Rwanda, the historical setting leading the post-genocide government to declare a virtual tabula rasa on ownership of contested lands, and perhaps most of all, dictatorial facets of present-day governance in Rwanda, have helped drive this success [49]. It should also be noted that around 15 percent of Rwanda’s land, comprising mainly swampy areas lying between hills, and which communities used for seasonal cultivation and grazing, were firmly co-opted by the State in the process, some of which have been reallocated to commercial sugar enterprises, to the chagrin of local communities [50]. Still, there is much in Rwanda’s approach that could be useful for Kenya’s application of community land titling. Other reasons for limitations to individualized rural titling are is that its relevance reaches a natural limit as it confronts resistance by communities, as they see family rights and shared community lands lost, or as it confronts land areas where most of the lands are not farms but shared forests and rangelands, not productively subdivided. This is certainly the case in Kenya, where the greater proportion of lands for which private title is sought, has been registered.

Another incentive to attend to community land tenure is political. This is best summed up in 21st century admission that sustained legal denial that Africans have always owned their lands is repugnant to natural justice, and a trigger to conflict. This exists against a backdrop of what Professor Okoth-Ogendo described as “a century of expropriation, suppression and subversion” of such lands [51] (p. 1), and “the last colonial question” to be addressed [52] (p. 1). Other legal experts have recorded paradigm shifts, such as Lindsay for FAO [53] and McAuslan [54].

2.3. Reforming the Law

As recently as 15 to 20 years ago, the relations of customary lands with statutorily titled lands focused upon such questions as: how can customary lands be a basis for property if they are not saleable? Is not customary land tenure inferior to statutory tenure? In 2006, McAuslan firmly reminded readers that: “Customary tenure is—and always has been—one of the foundational elements of the land laws of all states in Africa. It is not an add-on to received law: indeed, received or imposed law is the add-on. Received law thus needs to be adapted and adjusted to indigenous law, not vice versa, and proponents of received law should be advancing the case for legal pluralism” [55] (p. 9).

By 2017 such matters had ceased to be contentious in a number of African states. A total of 32 new national lands laws had been enacted since 1990; that is, by nearly 60 per cent of Africa’s 54 states [56]. Most upgraded the status of customary lands, if to varying degrees. Around 20 of the new laws significantly improved protection of customary/community lands, some more than others. Such assessments may be made against selected legal indicators. These were referred to in the Introduction, as axiologically subjective. However, they are also ontologically relevant in that a number of countries have made the overall objective of these indicators—equitable legal status for customary land interests with statutory interests—one of their policy objectives. Any number of indicators of achievement in laws may be used, but the most instrumental used in this study are as follows: that the law acknowledges or provides that

• Customary land interests are real property rights, with equal legal force and effect as provided to non-customary rights (e.g., leasehold and freehold entitlements);

• Customary lands, whether held by individuals, families, groups, or the community as a whole, are protected property, irrespective of whether or not these lands have been formally identified, mapped and registered; this must be taken into account at compulsory acquisition of their lands for a public purpose, and in any national land administration processes affecting their lands;

• Communities are legally enabled to acquire formal collective titles over all or part of their lands without this formalization extinguishing customary incidents of the land or community jurisdiction over it;

• Communities are legal persons for the purposes of land ownership; that is, they are not required to register companies, cooperatives, or other legal entities to own land on their behalf;

• Customary/community lands lawfully include traditionally owned and shared off-farm forests, grazing, swampy lands, and collective title may encompass these properties;

• The community may define membership for purposes of landholding itself, within limitations imposed by bills of rights;

• Communities may govern the distribution of rights of occupancy and use to lands within the property in accordance with their own rules including traditional norms, so long as all community land rules comply with requirements of inclusion, transparency and accountability, and other constitutionally established requirements.

The laws of Uganda, Mozambique, Tanzania, South Sudan and Burkina Faso may be singled out as most comprehensively transformational against above measures, as overviewed by the author in 2017 at reference 16 above, and as documented by LandMark, which provides a download of data for 120 countries including many in Africa [57].

Common shortfalls in other new national land laws are that: (i) above provisions are limited to visibly occupied lands (farms, houses) thereby excluding forests and rangelands; (ii) the law fails to complement improved recognition of customary lands with recognition of community-based governance; or (iii) while recognizing customary/community lands as existing, national laws stipulate that their formalization continues to depend upon their reclassification as freehold parcels, and in ways which diminish existing attributes of held lands and limit community jurisdiction, a crucial foundation of community-based tenure.

Newest land laws impacting on community lands are those of Benin, Malawi, Kenya, and Mali. Ghana, Liberia, South Africa, Zambia and Namibia have draft new laws in hand. At least 10 other countries are working towards this objective, including Sierra Leone, Senegal, Morocco and the Democratic Republic of Congo.

Nevertheless, it is a mistake to conclude that most African community lands are securely tenured today. Most are not. This is because many other states have not made this an objective, or because changes made are limited in ways exampled above, or because key requirements according to the particular law, are yet to be met, so the law does not get beyond being a piece of paper. There are also cases where customary tenure has been formally abolished (e.g., Mauritania, Senegal, Eritrea), although replaced to an extent with arrangements that allow communities to regulate the use of local resources.

2.4. Registering Community Property

Different legal routes for the recognition of customary/community property appear in these laws. Declaration that these have equal legal force and effect with statutorily secured rights is a critical step. For remote communities who do not face incursions or claims to their lands, such declamation is sufficient in the short to medium term. This is not the case for thousands of others, who confront local and international land rushes as integral to surges in growth, as explored by Patnaik and Moyo [58] and Byamugisha for The World Bank [59]. Therefore, it is rare for new laws to recognize untitled lands as owned without also providing titling mechanisms to better identify, survey and register these properties.

However, the path to formalization is always more difficult than anticipated. Procedure may be too weak or costly for communities to adopt, or roadblocks may linger in the law. Drawing fair legal distinction between the rightful property of the State and communities is frequently problematic. Administrations that have been used over a century or more to assuming customarily held land is un-owned and disposable at will by the State, find surrender of this paradigm difficult. Devolving official control over untitled lands to citizens also meets resistance. Even where reformed, laws may leave loopholes, limiting progress. This paper examines Kenya’s new Community Land Act with these concerns in mind.

3. The Kenyan Case

3.1. Background to the Community Land Act

In most respects, the status of customary land rights in Kenya prior to the CLA was little different from that in other African countries through the 20th century. As became the norm in British colonies, reserves were demarcated in the 1920s, wherein natives could live and farm. By 1930, security in the 24 reserves in Kenya was improved by vesting these lands in appointed boards of trustees, not in the colonial government [60]. The Native Lands Trust Ordinance, 1938 also required that the Local Native Council was to be consulted before the Governor issued leases from these reserves to non-natives. Land decisions were to be to the benefit of residents in the reserves, although what constituted a benefit was not defined. Native councils in the 1950s, and then locally elected county councils after Independence in 1963 continued to be the trustees of native lands. They held powers to ‘set aside’ parts of these Trust Lands (as they were by then known), a process which extinguished tribal, group, family or individual customary rights. The Trust Land Act of 1968 also recentralized control, making the Commissioner of Lands in Nairobi the official administrator, counties acting at ministerial request. By then takings included regular allocations to non-members of communities, and forcible relocation of whole clans to meet the demands of expanding elites and influential tribes, often in the form of settlement schemes [61].

Losses were compounded by compulsory individualization, titling and registration programmes operating since Independence. This vested homesteads in (usually male) household heads, and cases of wrongful inheritance multiplied [62]. Community rangelands, forests and wetlands were reallocated to local farmers with means to clear these, or co-opted by government for disposal to private interests, or turned into local authority wildlife and forest reserves, controlled by the new county councils. Many were in turn depleted and/or sold off, on the instruction of, or with the endorsement of, the Land Commissioner [63]. Excisions of intact national forest reserves mounted through the 1980s and early 1990s, for mainly private purposes [64]. This, along with other illegal or irregular takings from public land became such a concern that a Presidential Commission was established to document the level of wrongdoing in the land sector (the ‘Ndungu Report’) [65]. This was preceded by a review of all land matters [66]. By then it was also known that many individual title deeds had never been collected, and transfers by inheritance or sale had largely remained unregistered [67].

In the interim, an effort launched in 1969 to en