Legal Loopholes in Securing Communal Land Ownership
State powers to identify public land that may not be allocated to communities. Despite such lands having been occupied and used by such communities, Subject to Sec. 12(b, e) Land Act, categories of land falling within forests and wildlife reserves, mangroves and wetlands and natural cultural, and historical features of exceptional national value falling within public land are exempted from allocation. Section 24(3) of the CLA is quite un purposed in this regard since it gives the state discretion, to identify and gazette other specific parcels of land that may not be converted to community land aside from those identified under section 12(2) of the Land Act, 2012.
Areas like the Kayas at the Coast, certain community conservancies may be regarded as being natural, cultural and of historical features which are traditionally occupied by these communities. However they fall under the description of lands that may not be allocated to communities. This may make communities to fall victims to eviction from highly contested communal lands that may fall under the category of public land, despite having traditionally used and or occupied this parcels of land. In as much as the Land Act 2016 stipulates the procedures to be followed during compulsory acquisition, unfortunately, most of the time, the processes are done in pretext of promoting public interest and conservation.
Section 8(6) CLA provides that all parcels already in use for public purposes shall be excluded from survey. Over time, communities have made available some of their shared lands for purposes such as; market places, playgrounds among other purposes without premise that they would lose ownership of those areas. The Act under section 13(2) CLA allows a registered community to through reservation of the majority members, reserve a portion of the community, for communal purposes. This can be considered as a strength though it beats logic when it goes ahead and states such land that has been put aside for communal use for public purposes shall be deemed as public land vested in the county and national government. This situation poses the question, is there need for communities to donate their land for such public purposes?
The county government has trustee roles over unregistered community land as provided for under Article 63 of the Constitution. This trustee role ceases upon registration of a community and community land according to the provisions of the CLA section 6(7). While 6(8) CLA prohibits the county government from transacting on unregistered community land, “it shall not sell, dispose, transfer, and convert for private purposes”, section 6(6) CLA provides that “Any transaction in relation to unregistered community land within the county shall be in accordance with the provisions of this Act and any other applicable law.” It is not clear, which transactions this section refers to. Transactions such as short leases have not been explicitly prohibited in the Act. Subject to Sec. 58 of the L.A such a lease is for two years and is not registrable. Such a transaction may not be registered thus monies accruing may not fully be accounted for.
In light of the above, the question in the minds of many remains, does the law as it is guarantee secure Community Land tenure?