By Ronald Matende-Omwoma,
Land adjudication was a landmark land reform policy in Kenya aimed at the individualization of land ownership in rural areas. The process, though hinged on strong political undertones aimed at addressing violent appraising related to land, had very good intentions of converting land into a valuable asset that can leverage capital and stimulate rural development and poverty reduction through agricultural intensification. However, with time this dream seems to have turned sour on account of legislation and implementation policies that failed to acknowledge existing essential elements of traditional land tenure regimes. The resulting scenarios from adjudication are not pleasant. The exotic complexities infused in the adjudication process have failed over time to annihilate the more potent customary land ownership ghost that still governs land transactions from one part to the other. More than 70% of land transactions and succession cases are still undertaken under the traditional rules without the necessity of official titles. This has led to an escalation of land disputes and conflicts which the adjudication process initially sought to eliminate. Having traveled too far with the individualization of community land, landowners find themselves between the desire to adopt or revert back to traditional systems. This paper presents the story of land adjudication in Kenya as a precursor of a combination of uncertainties and paradoxes that contribute towards continued rural underdevelopment in Kenya.
The land is man’s most valuable resource, supporting basic and critical needs of food, shelter and business (Odote, 2013). The question of absolute ownership of land in Kenya has remained a thorny issue, revolving around complex laws and lengthy procedures of adjudication, consolidation and registration of land (Mwangi, 2014). In this paper, we revisit the issue of land adjudication in Kenya and briefly interrogate the results, challenges, and impacts of the process. This brief is aimed at provoking debate on the merits and demerits of individualization of land rights in Kenya and suggestion of probable way forward.
Land adjudication was expected to ultimately contribute towards wealth creation in rural areas through agricultural intensification based on access to credit and improved utilization of agricultural inputs and resources. However, this seems not to have happened. This paper is based on the fear that individualization of rights on community land has failed to achieve the original purpose and instead created other social and technical problems that have constrained agricultural development on small scale farms. The paper intents capture the attention of scholars and practitioners on the socio-economic damages created by an adjudication of community and ancestral land and provoke suggestions on remediation and improvement of future adjudication process through policy formulation.
Land Adjudication has been defined as the process through which existing rights in community land are authoritatively and finally ascertained for the benefits of individual entities. In Kenya this process has been critical in the conversion of land held under customary tenure into individual holdings (Nyadimo, 2006). Historically, the processes and procedures of land adjudication and consolidation were intended to extinguish customary tenure and replace it with statutory tenure (NLP, 2009). Land adjudication is therefore a landmark process of land reform that has far-reaching effects on the socio-economic and environmental elements of the society. According to Smucker (2002), land reform is a way of re-structuring human-land relations and has the effect of changing the entire perspective on land by the citizenry. The subject of land reforms has become the main event around which social-political and economic issues revolve (Kanyinya, undated)
Origin of land adjudication in Kenya
During the pre-colonial and most of the colonial period in Kenya, the Africans lived in their traditional communities where land was communally owned for the individual benefit of all the community members. There was no individual ownership of land as the concept of individual rights did not exist. The land belonged to the community and was held for the benefit of all the people (Wakoko, undated). Equality in access and use of land was guaranteed by customary rules prescribed by cultural norms. The land was allocated to families based on their specific needs. For instance, polygamous families could be allocated more land than young newly married families. The land was administered by traditional law whereby elders, sorcerers and even witch doctors could allocate land and settle disputes arising from the use of land. Each family was allocated exclusive land for residential purposes and arable use. Grazing land was used on a communal basis. When a family no longer required land allocated to it, the land reverted back to the tribe. The land was primarily for allocation to a member of the tribe, and occasionally to people from other tribes (Malatsi and Finnstrom, 2011). In many cases, the residential houses were conglomerated in one place while arable or farmland for each family could be allocated on the periphery.
Prior to the colonial rule, communities in Kenya had their own leadership structures that administered land rights among their members for purposes of activities such as the construction of shelter, farming, grazing, hunting and gathering. Communities lived in harmony and occasional fights over territorial claims were resolved by panels of elders (Mwathane, 2012). The colonial government not only imposed alien land tenure relations but also introduced conceptual, legal and sociological confusion in traditional tenure systems (Odote, undated). This led to far-reaching disruption of African customary land tenure system and laws (Kameri-Mbote et al., 2013).
Europeans in Kenya enjoyed the privilege of secure land tenure from 1901 when the Registration of Documents Act was formulated, followed closely in 1902 by the Crown Land ordinance. This resulted in a situation where whites owned secure title to land while Africans had insecure ownership that could be interfered with by the whites at will. This dual land ownership system however started receiving attention from 1923, especially after the controversial ruling by Chief Justice Berth that ‘African were merely tenants of the state and that their absolute claim on the land they occupied had been annulled by the Crown Lands Ordinance 1915, the Kenya Annexation Order-in-Council 1921and Kenya Colony Order-in-Council 1921’. This ruling completely unsettled the Africans and generated reactions from many different spheres.
In reaction to Justice Berths ruling, the Devonshire White Paper, 1923, stated that Kenya was an African country belonging to the Africans and their rights were paramount. The Hilton Young Commission which was set up in 1927, reported in 1929 on matters of cohesion between East and Central Africa and how African interests could be addressed. The Commission recommended that there should be separate reserves for the natives and the Europeans which were to be free from encroachment. The 1930 Native Lands Trust Ordinance implemented this recommendation. The Governor could grant leases of up to 33 years and licenses to the reserves. The main achievement under this legislation was that the Governor was supposed to compensate the natives whenever he set aside part of the reserve for public purposes. This was an achievement but only on paper, the reality was experienced when gold was discovered in Kakamega Reserve; land rich in gold was acquired by the government with no compensation being paid to natives (Wakoko, undated).
Before adjudication of Native land, several commissions had come up with several recommendations to ensure sufficient security of tenure for white-owned land in Kenya before granting ownership rights to the Africans. The Swynnerton Plan of 1954 was an agricultural policy aimed at further developing agricultural practices. Cash crops had been introduced in the colony and the plan was aimed at expanding the scale of farming through improved infrastructure, market, weather forecast, and of course providing secure land tenure methods. This plan encouraged individualization of tenure and issuance of indefeasible titles to Natives. This plan set the stage for adjudication of native land to individuals in Kenya. The East African Royal Commission which tabled its report in 1955 was appointed to run together with the Swynnerton Plan and catalysts the reform of customary land tenure into individual titles.
The efforts by the colonial Government were actually aimed at what they perceived as elements of wastefulness in the customary land ownership regimes. Agricultural experts saw customary land law as an obstacle to development, particularly since the traditional rules relating to the allocation and inheritance of land were largely responsible for the fragmentation of holdings that had occurred (Coldham, 1982). Thus, the Swynnerton Plan proposed that
‘the African farmer… be provided with such security of tenure through an indefeasible title as will encourage him to invest his labour and profits into the development of his farm and as will enable him to offer it as security for financial credits’.
The Swynnerton Plan provides the main purpose behind land adjudication as the intensification of agricultural practices by the provision of enhanced security of tenure ensured by individual titles. Adjudication and individualization of titles may therefore be said to have their origin in the Swynnerton Plan. Kanyinya (undated) however argues that the Swynnerton Plan was mooted to arrest growing peasant unrest, especially in central Kenya. The plan proposed the institutionalization of private property rights by giving individuals control of their individual holdings to make people busy in their holdings and by that prevent them from participating in the growing Mau Mau rebellion (Kanyinya, undated). The plan was therefore a political tool for pacification rather than a strategy for inducing agricultural development among Natives in Kenya.
The commencement of land adjudication in Kenya marked a critical point for shifting the manner in which Kenyans relate and perceive land. Adjudication was seen as a massive land transformation process for creating individuation of land rights from community land held as trust land by the authorities. Land adjudication process was formulated to transform land in trust land areas from the customary land tenure to the statutory freehold tenure (Nyadimo, 2006). The Working Party on African Land Tenure 1957-1958 devised the process of systematic adjudication used in the Special Areas (i.e. Native Land Units hold in trust under the Native Lands Trust Ordinance) with mandate for Ascertainment and Recording of Rights and Interests in Land; Consolidation, and Demarcation; and Creation of Adjudication Register( Simpson, 1976).
After independence, the new Government appointed a mission on Land Consolidation and Registration in Kenya (1965-66) to find ways and means of accelerating land consolidation. The mission recommended that the ascertainment of land rights be carried through the process of land adjudication. Land adjudication act was enacted in 1968 to provide for the ascertainment and recording of rights and interests in Trust land. Cap 284 was modified to cater for group rights particularly in pastoral and nomadic areas where individualization had little success. Group rights were to be registered under Land (Group Representatives) Act, cap 287, to maintain status quo in semi-arid areas where the way of life was pastoral and nomadic.
The Land (Group Representatives) Act, cap 287 was expected to sustain the Government’s policy for optimum land utilization and equitable land distribution. Group farming became a solution in the drier pastoral areas where traditional land tenure led to the misuse of grazing land. Thus, this Act was aimed at establishing a framework for group ownership whereby communal lands that could not be viably subdivided were foreclosed in to ranches under the management of a committee established, working as trustees of the entire group. The Act provides for the incorporation of representatives of groups who are then recorded as owners of land under the Land Adjudication Act. A Registrar of Group Representatives appointed under the Act is thereafter given the responsibility to supervise the administration of groups constituted under the Act, for optimization of land use (Mwimali, 2006).
Objectives of land adjudication
Although land adjudication in Kenya has a lot of political undertones associated with colonial strategy of divide and rule, the socio-economic goal for land adjudication in Kenya was to provide individuals with security of tenure over the land they owned with the expectation of spurring improved agricultural productivity, land use management and reduced land conflicts. Increased tenure security on the other hand was expected to lead to the commoditization of land as a valuable asset to be exchanged through sale, mortgage and charges. Whether this was an honest or deceitful venture by the colonial Government or not is a matter of another inquiry. The main concern here is to invoke debate on whether adjudication has achieved the objectives of security of tenure, agricultural intensification, sustainable land use management, and reduced land conflicts.
Process of land adjudication in Kenya
The basis for Land Adjudication in Kenya is the Land Adjudication Act chapter 284 of the Laws of Kenya. The process is initiated once the Minister of Lands has given a declaration that a Trust Land area be adjudicated. The minister then appoints an adjudication officer who is then expected to steer the process. The Adjudication Officer appoints demarcation officers, survey officers and recording officers to help administer the process. The Adjudication Officer subdivides the land into adjudication sections and in consultation with the county Commissioner of the area appoints an adjudication committee for the section. The Regional coordinator appoints a panel of officers from which the adjudication officer can form an arbitration board. The adjudication officer with his team formulates the adjudication register, which contains the record of rights and interests to the land in the adjudication section. Anybody having a claim to the land to be adjudicated must be present to show his boundaries to the demarcation officers. Any person who during the adjudication process feels that his rights have not been taken into consideration is required to lodge a complaint to the adjudication committee chaired by the Adjudication Officer. Any complaint on the decision by the Adjudication Officer can further be made to the Land Executive Officer who will submit the complaint to the arbitration board. Any contention on the completeness or correctness of the adjudication register is referred to the Minister of Lands. The Minister makes the final decision on the appeals, but, with orders from the High Court, the Minister’s decision may be challenged.
During the process of land adjudication, the landowners agree on the positions of their boundaries and mark them by planting hedges. Aerial photography is then obtained once the hedges had grown sufficiently to be air visible. The un-rectified aerial photographs are then enlarged and forwarded to the field where Junior Survey Assistants identify and mark the boundaries of the adjudicated parcels on the enlarged photographs. Maps are then produced by making direct tracings of the boundaries as depicted on the enlarged photographs. The boundaries that are not air visible were plotted on the photographs by estimation. Tracings of the boundaries resulted into Preliminary Index Diagrams (PID’s) (Mwenda, 2001). PID’s are used as basis for land registration documentation and titled through the Registered Land Act, Chapter 300.
It should be realized that Kenya had three systems for adjudication of areas of customary tenure. The first system, which was fevoured in areas with high population density, includes consolidation of scattered pieces of land owned by an individual into one piece through compromise with neighbours. The second system for medium to sparsely populated arable areas does not include consolidation. The third system involves ascertaining of rights and interests of the community or trust land under group ownership. All these systems involve different process and procedure but utilize local committee system in adjudicating ownership.
Problems related to the adjudication
Adjudication programme has resulted in the registration of millions of land parcels in Kenya; however, its potential has not been fully exploited due to lack of timely monitoring and evaluation of performance for policy reformulation. Problems resulting from the adjudication programme in Kenya may be categorized into three main classes: field operational problems that have made it difficult to complete the process within the stipulated period; social problems related to disinheritance, complex land successions, and increased family land conflicts; and technical problems related to insufficient provision for government intervention to achieve planned and sustainable land use. We look at each of these problems separately below.
The implementation of the processes of adjudication and consolidation has been slow due to legislative and institutional constraints (GOK, 2009). According to Nyadimo (2006), large areas of the country remain un-adjudicated due to incomplete land registers, pending adjudication appeals or absence of the land adjudication exercise altogether; thus, the land adjudication program that was initially planned to take 10 years is yet to be completed 50 years later. This has led to indifference by the intended beneficiaries.
Delays in the completion of the land adjudication process have also been adduced to the protracted adjudication of claims (Nyadimo, 2006). This occurs in situations in which demarcation and survey have been completed but the field records cannot be processed until pending arbitration board cases and objection cases have been resolved much to the disadvantage of numerous parcel owners. In accordance with the provisions of the Land Adjudication Act, processing of title deeds cannot commence until the Adjudication Register is declared complete and final i.e., upon determination of all Board and Objection Cases. This requirement is certainly not compatible with any meaningful work programme as the determination of the cases largely depends on the convenience and cooperation of the disputing parties (Nyadimo, 2006).
The National Land Policy noted that individualization of tenure on community land has affected traditional tenure in two material respects: one, it has undermined traditional resource management institutions; and secondly, it has ignored customary land rights not deemed to amount to ownership, such as family interests in land, the rights of “strangers” (for example jodak among the Luo and the ahoi among the Kikuyu), and communal rights to clan land (such as, rights to inkutot land among the Maasai and rights to kaya forests among the Mijikenda) (GOK, 2009). This has generally undermined community control over land resulting in many social problems including an uncontrolled sale that ignore family rights resulting in landlessness; and misuse of fragile ecosystems. The ownership system has tended to give absolute power of control to the primary title holder to the exclusion of other deserving interests. As proposed in the NLP, rules for regulating the power of the primary freehold rights holder to dispose of land or to use it in any manner that satisfies their whims should be enacted.
Coldham (1982) notes that the system of adjudication and registration of individuals was based on the English land registration system. No attempt was made to reproduce customary forms of landholdings by providing for some kind of group title or family representative title, (GOK, 1968) nor was consideration given to the possibility of establishing producer cooperatives or state farms. The adjudication and registration systems were based on a purely capitalistic philosophy that ignored the tenets of African culture which were largely communalistic. The individual smallholder was seen as the key player to rural development. Accordingly, registration of a person as proprietor of a piece of land operated to vest in him absolute ownership of that land, free from all other interests and claims, but subject only to registered interests and such other overriding interests in the land( GOK, 1963). This new system was in direct conflict with customary land administration system which revolved around the Chief who was also responsible for development issues within the tribe, for adjudicating disputes such as inheritance issues and basically for holding the tribe together (Malatsi and Finnstrom, 2011). Having dethroned the customary authority, the adjudication and individualization of customary land was left without any visible local custodian authority.
The primacy of male ownership which sometimes works against the interests of the family is engendered on fact that continued adjudication has focused little attention on the gender dimensions of land transformation (Bomuhangi, Doss & Meinzen-Dick, 2001), leading to more social problems related to the disinheritance of girls in the family. The danger opened by adjudication on the family is captured well in the following quote:
Man is the owner of his land … but in so far as there are other people of his own flesh and blood who depend on the land for their daily bread he is not the owner; but the partner, or utmost, the trustee for the others. Since the land is held in trust for the unborn as well as for the living and since it represents in partnership the common life of generations, he will not lightly take it upon himself to dispose of it. (Kenyatta, 1938:27)
Studies have found a strong relationship between land tenure and physical and spatial characteristics of development (Kameri-mbote, 2005; Muinde, 2013; USAID, 2014). Land tenure and property rights can exert a significant influence over land use and land values (Payne, 1997). Olima and Oballa (1987) acknowledge that freehold and customary land tenure systems seem to have made it very difficult for authorities to control development in the urban fringe of most secondary urban centres in Kenya. Okonyo (2008) on the other hand identified weaknesses in the capacity of the state to intervene and foster planned development in peri-urban areas of Kenya dominated by freehold and customary land tenures.
Apart from undermining community, clan and family control over land ownership and use, freehold land tenure resulting from adjudication and settlement process seem to have undermined the power of the state to guide and control development on freehold agricultural land. The state’s responsibility to ensure that the use of land promotes agricultural productivity and food security has been diminished by individualization of rights. This has resulted into haphazard development, increased fragmentation hence threatening agricultural productivity and environmental stewardship. Freehold land tenure has been perceived to imply that a registered proprietor may utilize land at the whims of personal preference regardless of policy needs.
Other Studies have found that freehold land tenure encourages subdivision and sell of land without proper consideration of planning standards (Roberts, 2002; Migot-Adhola et.al, 1991; Kola, Onyango & Oindo, 2013?)
Doebele (1987) captured the dilemma of freehold title to planned intervention in a more dramatic manner thus:
‘At the heart of the question of land tenure, at all times and in all countries, lies a paradox. Land is essential to all human activities, limited in quantity, immobile and permanent. Surely it is, by its very nature, a public good. Like water in dry regions, it is a commodity that cries for public management and control. Indeed, in the case of urban land, the value of which is so heavily dependent on socially created demand and publicly provided services, the case is even more compelling for strong public intervention’
Even where adjudication has been successfully completed, many of the resultant titles have become what De Soto (2000) calls ‘dead capital’. This is an asset or capital that cannot legally be used to generate more capital for investment because it’s extra-legal and thus not legally recognized. ‘Dead capital’ is Hernando De Soto’s term for an asset that cannot easily be bought, sold, valued or used as an investment because they lack legal recognition. De Soto gives a detailed account of how an individual title to land can turn into an effective, secure and valuable asset to help generate wealth for land owners by leveraging capital. While adjudication has moderately succeeded in bequeathing individual ownership in Kenya, it has failed to change the farmers’ perceptions of the nature of land rights and the investment value that may derived from it especially through various dispositions and commoditization. It remains to be established through research, why efforts to grant individual titles for land in rural areas though adjudication has failed to positively contribute towards economic development. The main question raised by the De Soto thesis is how to create a legally integrated property system that can help convert individual entitlement into a continuous source of capital for wealth generation. The dead capital scenario results from a situation where many people in rural areas own land for which they don’t have title because of the cost, bureaucracy, corruption and complexity involved in acquiring or inheriting a title.
In concluding this section, it’s good to state that adjudication was expected to result into systematic titling of private rights in land, however after the first registration; subsequent titling processes seem to have run into a strong cataclysm especially in relation to local transfers and inheritance. The titling process has become complex, expensive and elitist and of least value to the poor rural land owner. This has undermined the achievement of the original objectives of secure tenure, agricultural intensification and reduced land conflicts.
Land adjudication process is part of the Colonial and post-colonial land administration systems that have undermined traditional resource management institutions, thereby creating uncertainty in access, exploitation and control of land and land-based resources (GOK, 2009). However, there is need for detailed study to ascertain factors behind differences in achievements of adjudication objectives in different regions and identification of critical constraints to the achievement of the expected results of the process.
current environmental problems related to encroachment of fragile environments through extension of adjudicated boundaries ( general boundary problem); unguided, uncontrolled and haphazard development on rural land; loss of Government power to control development as a result of freehold nature of land; urban sprawl and fragmentation of agricultural land, are all direct results of individualization of communal land without any strategic foresight.
Challenges related to ASAL
Individualization of land ownership in ASAL has indicated need to rethink the whole concept afresh on the basis of eco-climatic conditions. According to Njuki (2001) land adjudication has not taken place in nine administrative districts. These districts include: Tana River, Ijara, Garissa, Wajir, Mandera, Isiolo, Marsabit, Moyale and Turkana. This vast area of 331,370 square kilometres representing 57 % of Kenya’s territory is largely arid and semi arid. This area is occupied by pastoralists who are dependent on communal grazing land for their livelihoods. Wayumba (2005) has argued that ASAL present special challenges which indicate that land adjudication is not a suitable method and recourse of action since the adopted group ranch model has failed to deliver the desired results. Wayumba (2005) further proposes a holistic approach in the ASAL, taking care of the cultural values of the local community and the ecological effects on the environment. This is seen to be only possible through the development of a comprehensive land policy on the group ranches and applying appropriate modern surveying technologies to document and map the land tenure issues
Konet (2014) found that adjudication of group ranches in kajiado has led to subdivision of the ranches to individual members, leading to transfers to outsiders, further subdivision and emergency of wildlife conservancy practices, hence defeating the original purpose of commercial ranching, preservation of cattle culture and minimization of environmental degradation. This has led to increased human-wildlife conflicts and poses a threat to food security and sustainable livelihood in these regions. The original purpose of group ranching concept was achievement of a balance between ecological sustainability, livestock productivity and minimization of inter-clan conflicts over grazing land (Davis, 1971).
Individualization of group ranches was based on the 1986 presidential decree allowing for a subdivision and adjudication of ranches, into individual parcels, thus allowing the private holding of freehold titles. This form of ownership has led to increases in human population, permanent human settlement; mixed agricultural activities, wildlife conservation and tourism hence putting a lot of pressure to the existing land use (Konet, 2014; Tobiko, 1989). The situation described here suggests an impending social and ecological calamity that should be forestalled by policy and addressed appropriately. Rutton (1995) described the outcome of subdividing the Maasai pastoralist group ranches in Kajiado District Kenya as a major tragedy for the commons.
Some positive impacts of land adjudication
However some positive impacts of individualization of titles on agricultural productivity, income and investment have been reported, this gains differ from region to region (Lawry et al., 2016). Adjudication has achieved formal and informal land rights for individuals in rural areas, which are seen as key to improving the conditions of the poor in developing countries in terms of economic growth, agricultural production, food security, natural resource management, gender-related inequalities, conflict management and local governance processes more generally (Bruce 2012; de Soto 2000; Deininger 2003; Feder and Feeny 1991). In the absence of any systematic research however, the achievement of these benefits remain intuitively perceived in Kenya and may not serve as a trusted foundation for policy formulation.
In their comparative study of different regions of Asia, Latin America and Africa Lawry et al. (2016) found that tenure reform have overall positive results on rural development, they may also have negative social effects, including on women’s access to land and on the displacement of the poor or others facing social and financial barriers to participating in the reformed regime; furthermore, productivity gains may take time to become apparent and the effects may vary substantially across settings. They concluded that that available evidence provides a weak basis for establishing the general effectiveness of land tenure reform. There is need therefore to establish local contexts and criteria under which land reforms may serve as an effective tool for rural development and poverty eradication.
The relations between land tenure security and agricultural productivity, rural poverty, farm investment, land markets and environmental degradation have attracted some studies (Brock, 1996; Burgi, 2008; Chirwa, 2008; Deininger, Ali & Alemu, 2009; Odingo, 1985). While these studies have found some positive impacts of improved tenure security on livelihoods, they have concluded that the outcomes are not as good as they were expected and are not comparable to those in western countries from which the original philosophy originated. The failure of individualization of rights in Africa is found in failure to provide impetus for realization of the benefits of increased investment and wealth creation enshrined in the capitalistic philosophy, rather than in its provision of security of tenure. The importance of individualization of rights on community land is well illustrated by the increased land acquisitions by foreign private companies of communally owned land in Uganda to forestall food insecurity in their own countries (Bomuhangi, Doss & Meinzen-Dick, 2001).
Has the community land act addressed the problem?
In its preamble, the community land act proclaims itself as an act of parliament for the purposes of providing ‘recognition, protection and registration of community land rights; management and administration of community land’. Majority of private land owned by peasants in rural areas are either adjudicated community land or land acquired through settlement process. This type of land has had many administrative and governance challenges especially on issues related to transfer and succession. The complex transitional procedures between parties have resulted into reversion to undocumented customary ownership. It was contemplated that community land policy and legislation will address this procedural bottleneck, however the legal perception of land covered under the Community Land Act tend to concentrate on land previously under group ranches in marginal areas and exclude land in former native reserves. The implication of this is that dealings with this type of land will still be undertaken by the discredited land control boards, while inheritance and intestate succession will still be victims of the long tedious and expensive court processes.
The community land Act was expected to improve governance of land held by different communities by making land administration processes over this land easy, fair and conducive to the context of rural communities in Kenya. While the structure of vestment and ownership seem to have been made clear, the processes of administration have not been well provided for by the act. For instance the legislation fails to provide a clear process of governance and transactions for community land which had earlier been adjudicated into individual titles. Will this land be transacted under the umbrella of the community land act or land control boards? Will succession be determined under community land courts or conventional judiciary procedures?
Continued adjudication of community land was after the promulgation of the new constitution expected to be undertaken under the new community land act. Community land is vested in communities identified on the basis of ethnicity, culture or similar community of interest. The new constitution states that any unregistered community land is to be held in trust by county governments on behalf of the communities for which it is held. The Constitution defines community land to comprise: land lawfully registered in the name of group representatives under the provisions of any law; land lawfully transferred to a specific community by any process of law; any other land declared to be community land by an Act of Parliament; land that is lawfully held, managed or used by specific communities as community forests, grazing areas or shrines; ancestral lands and lands traditionally occupied by hunter-gatherer communities; and land that is lawfully held as trust land by the county governments.(GOK, 2010) The constitution also predicates any disposition or use of community land on legislation specifying the nature and extent of the rights of members of each community individually and collectively.
From the above it’s clear that the constitution and the community land Act fails to strongly recognize adjudicated and registered freehold rights on community land as part of the broader definition of community land in Kenya; however, it opens up a leeway for more legislation to bring in more entities in the definition of community land. For instance, part V section 27 (3) states that under the community Land Act, individual title to land shall not be superior or cannot override community title in any way. Does this imply that custody for all individualized titles derived from community land is vested in community land administrative structures? The policy lacuna concerning improved governance and administration for adjudicated private land owned by peasants in rural areas of Kenya call for continued policy dialogue towards achieving flexible land administration system suitable for different the rural contexts. The ownership uncertainty emanating from adjudicated land owned by peasants need to be addressed in order to open up rural land ownership to asset leveraging and capital creation. Given that this type of land affects more than 70% of the rural agricultural population, and is the major asset for improved food security and rural poverty reduction, there is need for urgent reforms targeted at stabilizing the system of ownership and transactions.
Problem emanating from the jumbled land ownership documentation by peasant farmers in Kenya is so immense and may require the creation of a special vehicle approach to arrive at lasting solutions. Creating a credible institution to administer transfers, sales, mortgages, charges, leases, rentals and to control land use on this type of land will go a long way in invigorating productivity and positively contributing to the food security and rural housing. Control of use and transactions on freehold rural agricultural land has since the study by Wilson (1972) attracted very little scholarly attention. Wilson (1972) justified the need for land control boards as the only instrument for ensuring that the scarce land remains in the hands of those who wish to utilize it intensively. The boards were therefore in the earlier perception associated with increased and sustained agricultural productivity rather than a transfer of land. The issue of guiding and controlling the development of freehold land has resurfaced recently through a proposal by Matende-Omwoma (2016) on how to utilize land tenure model to achieve this purpose.
While the community land Act fails to clearly bring on board previously adjudicated freehold titles under its umbrella, it provides a substantive leeway on how the use and disposal of freehold land may be dealt with. The idea of community land management committee is admirable and may be extended with modification for this purpose through another act of parliament. Such a committee may be instituted at the clan or village level and granted legal powers to oversee the administration of individualized titles including disposals, usage and succession. Borrowing a leave from Tanzania, we may have to enact a village land act to take care of these issues.
According to Nyadimo (2006), Land adjudication should not be seen just like any other routine land administration task. The people must be shown that land adjudication actually pays. In this regard, the land adjudication program should move away from the narrow point of being a first step of land registration to cover aspects of acknowledgment of traditional land ownership regimes, infrastructure planning, protection of the environment and as a sincere way of improving rural people’s lives. This calls for the inclusion of community elders, physical planners and environmental experts in the process. Land adjudication should then be seen as providing for a basis for rural development, poverty alleviation and wealth creation rather a weapon for defensive ownership if title.
Given the discomfort, uncertainties, paradoxes created by individualization of ownership rights on former communal land; and the continued misunderstanding of its implications by rural folks, it is here suggested that ways of re-incorporating the customary norms and institutions to administer transactions on individual titles at the local level be urgently sought. The feasibility of this recommendation rests on the fact that the traditional system, given its resilience, still plays a central role in the administration and management of adjudicated communal land in Kenya (Odote, undated). Most transactions, including succession, sales, inheritance and use have failed to escape from the firm grip of the traditional norms and institutions. To this extent, village land succession and dispute resolution courts are contemplated and recommended.
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Land administration expert and practicing Physical planner
Email: [email protected]