customary tenure

In an important decision clarifying the law for people claiming rights over communal land, Namibia’s highest court has found in favour of a woman in the remote Zambezi region. Agnes Kashela claimed she had inherited the right to part of the communal land held by the Mafwe Traditional Authority. At independence however all communal land became the property of the state, and part of the Mafwe land had been transferred to the local town council at Katima Mulilo.

Statutory recognition of rural communities as collective owners of their lands is substantial, expanding, and an increasingly accepted element of property relations. The conventional meaning of property in land itself is changing, allowing for a greater diversity of attributes without impairing legal protection.

Kenya is the most recent African state to acknowledge customary tenure as producing lawful property rights, not merely rights of occupation and use on government or public lands. This paper researches this new legal environment. This promises land security for 6 to 10 million Kenyans, most of who are members of pastoral or other poorer rural communities. Analysis is prefaced with substantial background on legal trends continentally, but the focus is on Kenya’s Community Land Act, 2016, as the framework through which customary holdings are to be identified and registered.