KENYA'S ANTICS AT lliE AU

They were all about PR. not about legality Pg 20

THE DEMONS OF KARUMA

What the Chinese need to do ifthey ever hope to construct a dam there
Pg22

JUNE 1-7, 2013

Fg19

Patricia Kameri-Mbote

Community land in East Mrica is not a 'primitive' precursor of private ownership

any valuable land-based resources are in land held by communities oil in Thrkana; wildlife in Kajiado, Narok, and Ngorongoro in Tanzania - and water catchment areas. Governance and management of land is critical to the quest for cohesive nations and democratising societies. The recently released report of the Truth, Justice and Reconciliation Commission in Kenya identifies land as a major source of discontent in Kenya generally and among communities specifically. Communities have borne the blunt ofthe historical injustices that true reconciliation and justice must address. In Tanzania, the Maasai of Loliondo have cried foul over the government's treatment of their land rights. The recent advert in The EastAfrican (May 2531, 2013) by these Maasais is a strong indication that something is amiss. The Hadza'be and Batwa of Tanzania and Uganda respectively have also expressed their dissatisfaction at Illustration John Nyagah the way community land rights are being handled. of non-discrimination, gender equality, stakeholder The Kenyan Constitution recognises community participation and sustainable development. Second, there is a need to challenge the dominant rights and requires that benefits accruing from resources on their land are shared with them. It world view that relegates customary norms of land also recognises the rights of communities to their holding and interests to an inferior status requiring uplifting to the more desirable and superior private/ language and culture (core to a community's body politic) and has a robust definition of community individual ownership status. This is what is happen that transcends ethnicity and culture to cover "coming in Kenya, Tanzania and Uganda. Investment in munity of interest." This allows for the inclusion of policy, institutional and legal frameworks for community land is imperative. The constitutional recogusers of land that contains commonly available re sources such as wetlands and water sources as part nition of customary law as law in the three countries has not addressed the historical perception of it as of community. The Constitution goes further by providing for backward and inferior to written law. Third, land includes resources such as miner equality of community rights with private and publie land rights, shielding communities from approals, wildlife, forests and water. Policies and laws on priation of their rights by powerful actors within these resources must take community rights into and outside the community. Tanzania and Uganda consideration as entitlements, not charity from the also have frameworks for addressing community government. Devolved and local governments have rights. a role here to ensure that resources such as wildlife, Realising community rights in practice, however, forests and water are integrated into land rights. Fourth, and in relation to mineral resources, laws remains a daunting task. on community land must avert the resource curse Firstly, in Kenya for instance, the history of ne glect and abuse has led to the individualisation of where abundance of mineral resources could result in the neglect of other economically viable activi community land as a defence against perceptions that community land is owned by nobody, even ties such as pastoralism. Pastoralism has been a ne in areas where the suitable land use and cultural glected land use despite its resilience in many arid norms favour community ownership of land. This is and semi-arid areas. It needs to be recognised, not likely to be the case in the other East African coundelegitimised as mineral resources and their ext rae tries as pressure over land and land-based resources tion take centrestage. In Turkana, which has been mounts. neglected by successive governments and where oil This trend needs to be reversed through docuhas been discovered, community land rights and mentation of norms, land use practices and instanc land uses must be considered to avoid multiple ex es of sustainable management of land by communielusions ofthe people as resources are appropriated through rent-seeking and corrupt deals over the ties while subjecting the former to scrutiny to en sure that they do not offend constitutional sanctions newly found wealth.

This needs mechanisms for sharing benefits with communities; identification of speculative deals on community land concluded with communities who had no knowledge of the value of the land; requiring that benefits from oil be shared with local communities that have lived on that land for years; and transparency and accountability measures to prevent the use of divide and rule tactics within communities as happened in Kwale in Kenya over titanium. Related to this is the need to address illegally and irregularly acquired community land. Given the opaque way in which community land has been dealt with over the years, there is a likelihood that by the time a community land law is in place, there will be no community land to protect and secure rights over. Scrutinising dealings in land after the promulgation of the Constitution in 2010 in Kenya for in stance, can help identify instances of irregular and illegal dealings with community land. The investigation should however also open avenues for redress for community members who have had their rights appropriated illegally and ir regularly by powerful members of their communi ties or by non-members of communities in all the three countries. Finally, it should be recognised that institutions are critical in securing community land rights. Institutional structural rigidities are not best suited to articulate dynamic and living tenets of community rights, especially where customary tenure is concerned. There should be investment in institutionbuilding and strengthening in communities. Dealing with land is one measure of governments' success and dealing with community land will determine their ability to forge cohesive nations and pave the way for more solid regional integration. Dealing with actual and perceived marginalisation by communities, requires a radical departure from past practice that is deferential to private property rights however acquired, reducing communities' concerns to issuance of title deeds. National constitutions provide a good anchor for community land rights. Property is a social relationship between the owner of the property and non-owners predicated on acceptance of legitimacy of the owner's rights. Legal recognition of rights is not a measure of legitimacy and is insufficient to guarantee the rights. The challenge with community land in East Africa is to confer legitimacy on legality. Professor PatriciaKameri-Mbote i8 Dean ofthe School ofLaw, University ojNairobi

The EastAfrican
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___J.8QKBM11 l18i1it.itrttli<iii011!-----------------------conterence On Community Land Law

JUNE 1-7, 2013

Best Practices and approaches for the protection of community land rights in Kenya
COMMUNITY LAND LAW CONFERENCE ON BEST PRACTICES AND APPROACHES FOR PROTECTING COMMUNITY LAND RIGHTS TO BE HELD AT BOMA HOTEL, NAIROBI ON JUNE 6-7,2013
The Kenya Land Al liance, the University of Nairobi, School of Law and the Strathmore University Law School, with support from the Ford Foundation will host a Conference on Community Land Law to be held at BOMA Hotel, Nai robi from 6th -7 111 June, 2013. The Conference comes against the backdrop of neg lect of African land rights systems which were perceived as inferior to the introduced English Common Law and tnadequate to deal w ith the challenges of a developing nat1on.
espite neglect in law and policy over the years, customaiy law is still alive and well albeit with changes occa- tution requires that like all sioned by its interaction with other laws, customary law be consistent with the Constituintroduced modern law. Indeed, fifty (50) years after tional provisions. Within this independence epic in Africa, broad context, the Constituaspects of customary law tion has, for the first time continue to govern custom- in history, recognized comaryjcommunalland in Kenya munity as a legitimate locus like in many other African for holding land in Kenya. countries. Land law in Kenya This recognition demands a however, systematically subju- change in the law governing gated customary/community land with a view to developrights to land by emphasizing ing a statutory community individual rights. Custom- land law to operationalize ary law is now recognized and enforce the provisions of as a legal order under the the community land tenure Constitution of Kenya, 2010 regime as provided for in the and the repugnancy clause Constitution of Kenya, 2010 that stigmatized it is now a and the National Land Policy historical fact. The Consti- of2009.

Kenyans are aware of the challenges in the way of developing an effective community land law. Indeed, the 2010 South African Constitutional Court decision that the Communal Land Rights Act of South Africa is unconstitutional serves as a caution to Kenyans to take the necessary care to ensure that the same fate does not meet a Community Land Act in Kenya once enacted. It is within this context that we have organized to host a Community Land Law Conference in Kenya. The conference will draw pat1icipation from stakeholders in national land; natural resources' line Ministries, institutions and agencies; local, national, regional and international organizations working on land issues; academics working on land laws and representatives of communities in an interactive engage-

ment process. The conference will draw participation from countries in the rest of Africa, Brazil in Latin Ameiica where community land is recognized. The Community Land Law Conference is organized to achieve three four objectives: 1. To raise awareness and cultivate deeper understanding of the components of community land tenure regime that must be legislated. 2. To shate expeiiences from other countries on community land rights' regimes. 3. To take stock of the nature of customary law systems and the broad significance of their accommodation alongside the existing state law system as an equal legal system despite its complexity. 4. Identify and deliberate on

the challenges and dilemmas of formulating community land law and offer best practices to overcome them. From organizers perspective the following are the expected outputs and outcomes: 1. Better informed stakeholders about community land law development process. 2. Deeper understanding of stakeholders on how to translate land policy and constitutional land provisions into community land law capable of guiding land and natural resource management. 3. Strengthened capacity of stakeholders as an 'inservice' capacity building process to advocate for the prudent management of community lands. 4. Deepened appreciation of community land rights In a nutshell the conference is designed as a two day reflection and brainstorming session at which all participants will engage in very
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PHOTO/FILE

CUSTOMARY LAW
FIFTY (50) YEARS AFTER INDEPENDENCE EPIC IN AFRICA, ASPECTS OF CUSTOMARY LAW CONTINUE TO GOVERN CUSTOMARY/ COMMUNAL LAND IN KENYA LIKE IN MANY OTHER AFRICAN COUNTRIES

StalleholdersfOllow proceedings during the opening ofa one day consultative fOrum with the Task Foree on Formulation ofCommwtlty Land, Evtedon andResettebnent BDls workshop at the J.\IIombasa Condnental Resort
PHOTO/FILE

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Conference On Community Land Law
JUNE 1-7, 2013

The EastAfrican

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robust interactive facilitated debates to bring out key issues and resolutions that will be beneficial to the rest of Africa and more specifically to the Kenya Community Land Law development process. The conference participants directly and others who will be reached by its outputs will benefit from collective knowledge and experiences of experts and key guest speakers. The conference discussion theme, issues and topics are drawn around African comparative experiences on Customary/Communal/Community land law; international experiences on communityland tenure: Brazilian case, and major case studies from Kenyan communities' on their experiences in exercising community land tenure regime.

Kenya ripe for Community Land Law that guarantees rights of communities
munity successfully argued their claim for the recognition of their community's rights to land and natural resourcessomething nobody could have contemplated within old constitutional legal framework. Thus, the conference will show that communities are not fighting against private, individually held ownership rights, but rather are bargaining to have a law that will give them power to assert their rights to participate in the development discourse and land policy decisions in their country like other landholders. At the forum, all stakeholders will be engaged in the process of law-making. This is important because in the African context, law-making is mainly exclusive and preserve of the elite in the society. Hence the conference will include representatives from land sector line ministries, relevant institutions, national and international NGOs, academic experts and above all communities in a very interactive debate. The following issues are pan of the many areas the conference is likely to look into: The possibility of codifying and regulating over 42 culturally and ethnically based 'customary systems within the community land law Safeguarding the interests of women, whose land rights are far from secure in most customary systems Safeguarding community land rights against traditional leaders who normally represent their communities, but in most cases to the detriment of the community. Finally, it is hoped thatKenya will have the opportunity to discuss and deal with these intractable issues in a manner that will ensure that the land rights of all landholders are secure, regardless of the tenure system they choose.

Methodology and Participants The Conference will be held over two days. Participants will be drawn from land line Ministries, relevant institutions and agencies, academia, lead civil society organization, top leadership of the Land Sector NonState Actors working team plus other strategic partners in land sector, practitioners, eminent legal and opinion leaders, and representatives of communities. Experienced facilitators will guide the Conference by posing key questions that will speak to the objectives and by encouraging and moderating debate around the same. The conference will benefit from collective knowledge and experiences of participants and key guest speakers. We expect a broad range of strategies to emerge to move this agenda forward and to guide a focused engagement towards expected outcomes. Discussion theme, issues and topics The conference discussion theme revolves around African comparative experiences on community land law, international experiences on community land tenure drawing on the Brazilian experience and Kenyan communities' case studies as relates to community land tenure regimes.

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Soudl.Couruy, Maasallalld
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nya failed in its policy hoices made at indeendence 50 years ago hen it opted for customary law as a legal framework for protection of community land rights. But this did not empower communities to assert their rights to property and resources. Before the enactment of the Constitution of Kenya 2010, different notions of property applied to community land. The mischief in this was that the state played a trusteeship role over community land, which those in power used the privilege to set aside community land to benefit the executive. As the country prepares to enact laws to govern community land in line with the Constitution of Kenya 2010, it is important to consider best practices elsewhere.

KE

hold community lands in trust on behalf of communities in the absence of a legislative framework that deals specifically with Community Land as defined in the new Constitution. It is within this worrying context that a Community Land Law Conference will be held on the June 6th and 7th to extensively discuss this issue. The conference will explore best practices and approaches of dealing with the community land issues. Case studies from the rest of Africa, Brazil and Kenya on the struggles of protection of community land rights will be presented. The conference will look into why it has been difficult for communities to assert their land rights on land they have lived on and occupied for a long time. It is worthwhile to note that customary law is important in the new constitutional dispensation for a big section of communities that access and use communal land in Kenya. This is because customary law can provide the basis for community title at least to those who can assert indigenous title. In other words, the existence of a customary system of law regulating a community's access and control of land can provide the basis for the protection of the community's land rights against encroachment

The Mozambique 1997 Land Act, which is the best community land law framework in Africa so far, is case in point. Kenya ought to develop a better legal framework that will securely protect the notion of community land rights by particularly providing for self-definition of communities. It is regrettable that over two years since the promulgation of the Constitution of Kenya, 2010, communal lands in Kenya are still vested in defunct County Councils. The latter purportedly

from the 'outside world: On the other hand, recognition of customary law is important as it implies the recognition of customary forms of governance of land and other resources. What is instructive to note is that since customary law is recognized by Constitution of Kenya, 2010 as an independent source of law, it must also give rise to land rights, such as access and user rights. This speaks to rights of individual members within the community and the community as a whole which can be asserted against people who want to interfere. But, customary law is subject to the constitution like other laws, because the Kenyan Constitution recognizes pluralism of legal systems. This conference therefore, offers the opportunity to assert the fact that customary law though an independent source of law, does not have the same effect when it comes to asserting ownership over land and resources. The conference will further illustrate that in Kenya, the recognition of community notions of community land rights into right to property is now firmly entrenched in the Constitution of Kenya, 2010. This new dispensation indeed gives us a lot of hope. In a landmark case at the African Commission on Human and Peoples' Rights, the Endorois com-

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