The history of land governance in Kenya has been one of official policy trying to subdue customary and communal ownership of land at the expense of private ownership.
Despite this official policy, communities continued to manage land according to their traditional rules. This was until 2010 when the adopted Constitution decreed that community tenure was a recognised mode of holding and dealing with land just like private and public land was.
Despite this, translating this constitutional directive to actual practice took long. It took six years to develop a law to provide for the procedure of identifying community land, communities and eventually registering community land. However, there have been concerns that despite the law, no tangible process is occurring on the ground.
On February 24, 2020, I was excited to attend a stakeholder meeting on the status of implementation of the Community Land Act. At the meeting were representatives from the Land ministry, National Land Commission, counties, local communities and civil society. The discussions demonstrated the action that had been taken to ensure that the provisions of the law were actualised.
Some of the highlights included the appointment of community land registrars and capacity building. Efforts to form community land management communities to manage community land is ongoing across the country. These are great first strides. There is a need though to expedite the process. A few areas require to be dealt with.
First, the meeting was informed that the government had focused on only 24 counties.
The reason given for this is that these are the counties that have community land. While this may sound logical, it misses a fundamental aspect. Every community in the country can claim that their land is community or that they would like to convert it to community land. It is, therefore, inaccurate for the government to predetermine that its roll-out of the Community Land Act will be undertaken in only select counties.
Secondly, the involvement of counties and their interface with the national government is critical for implementation efforts. The reports at the meeting demonstrated that in some parts of the country, counties were either not engaged or their engagement was not supportive of the implementation. For example, while the Act gives counties responsibility for preparing an inventory of community land, very few had done so.
There are also cases pitting communities against a county or a devolved unit against the national government. This issue must be addressed. One of the concerns with previous arrangements was government interference in the communities managing their land.
Thirdly, real progress will be realised when communities get registered as owners of community land. The question of issuance of the certificate of title for community land is controversial with one school of thought holding that it increases insecurity by making it easier to dispose of community land. The opposite argument holds that such registration enables owners of the land to protect themselves against unscrupulous persons who may want to acquire it illegally.
The reality is that the country chose titling for community land. True progress will thus be when communities who are entitled to have their land mapped, adjudicated and the title for such land issued in the name of the agreed community.
The levels of awareness of the law are also low.
Listening to concerns by participants at the meeting. Information provision could solve a lot of the issues that participants raised. It is important, therefore, that a structured and sustained framework for creating awareness on the community Land Act and its implementation is necessary.
This should ensure that everybody is clear about the procedure for developing an inventory and commencing the registration process. This will ensure that communities that are keen on undergoing the process do not get frustrated by institutions in the middle, be they State agencies or civil societies.
It is positive to note though that the progress that has been realised has been due to the concerted effort of civil society groups.
The efforts already underway require to be accelerated to ensure that community land is secure and that the threats it has continued to suffer over the years are halted. Unless this happens the complaints and the pain of communities will continue to the detriment of the Kenyan nation.
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