Challenges and progress with community land registration in kenya: should cla 2016 be reviewed?

The quest for land reforms in Kenya has been characterised by different shades that are fashioned from both judicial and political interests in more than two decades ago. Like many other countries in Sub-Saharan Africa, Kenya has multiple tenure regimes that have acquired political meanings in the past. But in the everyday life at the micro level, these tenure regimes are still interconnected to modes of social organization for production. In 2009, the country delivered a National Land Policy. In 2010, Kenya promulgated a new constitution setting the stage for radical change within the governance structures, changing the centric governance system to a decentralized structure through devolution. These two major policies, set the stage for legal reforms in the land sector leading to the delivery of a set of laws in 2012 and 2016.

However, the debate on land reforms seems to have taken on the last stretch of the ongoing community land registration. This has led to the establishment of a Community Land Working Group. There are a host of CSOs contributing to the registration process with support from agencies like the UN-FAO. While there’s progress, there are still challenges! A robust discussion has not been convened and even when they are convened, discussions are lost in the air filled with different perspectives and often louder is the call to review/amend the Community Land Act. However, the missing point in all this is the reflection on the progress based on both history and politics in the land questions that are the target of the registration. This is probably what the most celebrated professor of Land law, Prof. Okoth Ogendo called “the unfinished colonial question.” Ogendo had always complained that land relations that were structured in colonial Kenya persist and, in some cases, the post-colonial administrations have even expanded the scope of colonial land policy and law. Could this be the reason for or lack of robust progress with regards to the registration of community lands as expected 6 years after the legislating the CLA?

The importance of community land registration

African systems of land tenure are based on the principle that everyone within the community of origin has rights to land but that individual rights are balanced against their obligations to the social group. Community land registration/titling is a means of enhancing the tenure security and safeguarding the livelihoods of rural communities. Tanzania for example secures such through the Certificate of Customary Rights of Occupancy to protect, access, ownership, use and management.

Many countries have passed laws that make it possible for rural communities to register their lands as a single entity and act as decentralized land administration and management bodies. These laws have the power to protect community lands according to customary paradigms and boundaries including all family land, forests, fishing areas, grazing lands, water bodies, and other common areas critical to community survival. However, due to various political, financial and constraints, these laws are often not widely or successfully implemented. (Knight et al, 2012)

Registration of community land Rights

In order to have a successful or a viable registration of community land rights, there should be laid down procedures or steps/guidelines established to help in the process. Most communities are not aware of their rights hence the need for a sensitization, education, awareness raising of the relevant issues related to land.

One potential method is to allow communities to register their lands as a whole by reference to customary boundaries, and empower them to control and regulate intra-community land holdings and usage. Such a system effectively allows a line to be drawn around the perimeter of each community, thereby creating a “tenurial shell” within which parcels of land can be held individually, by families, or communally as determined by each community. This procedure is referred to as “Community Land Titling”.

Processes such as the Participatory Rangelands Management concept has proved to be giving communities confidence as confirmed by the intervention by RECONCILE in Baringo, where institutional governance strengthened, livelihoods improved and opportunities, cohesion and co-existence are defined and agreed upon collectively. It supports the notion of participatory appraisal and map making by the communities. The process enables local communities define their history, culture, social organization, land use, population dynamics and land conflicts and possible conflict resolution mechanisms.

Formulation of CLA was seen as a roadmap to secure customary and pastoralists tenure and its implementation in 2016 was anticipated as a route to ending shared resource conflict. On the other hand, CLA has increased conflict among communities. Conflict has resulted where identity portrays and cause problem especially where smaller communities want to be recognized as well. Conflict is still an issue in the northern area and Community land registration is not well capacitated to handle conflict issues thus slowing down the registration process. CSOs therefore, need to play a proactive role in solving conflict and promoting public participation by continuing to push for the government to act on their roles on triggering inventory process.

It is imperative to take a candid look at the risks involved in community land registration. It has been argued that formal registration restricts or freezes changes in communal tenure systems. In most communities, customary mechanisms for land allocation in communal tenure systems may not be in line with government goals of gender equity and general principles of fairness. Further the demarcation of boundaries of communally held lands may create inter-community conflicts, particularly when members of the communities have different access to resources as well as bargaining power. Legal provisions regarding communal lands might not be implemented since rights of local communities are subordinated to commercial development interests and large-scale land-based investments which is a current phenomenon in Africa.