Community land Registration in Kenya- Why Government is reluctant to carry out its mandate?

Community Land registration: Why the County Government find it difficult to engage the community? the owners of the land!

The constitution of Kenya 2020 affirmed that all land in Kenya belongs to the people of Kenya collectively as a nation, as communities and as individuals and classified as public, community or private. The Parliament of Kenya enacted the community land Act in 2016 to provide for the recognition, protection and registration of community land rights; management and administration of community land; provide for the role of county governments in relation to unregistered community land. However, the county government shall not sell, dispose of, transfer, convert for private purposes or in any other way dispose of any unregistered community land that it is holding in trust on behalf of the communities for which it is held. The Community land shall vest in and be held by communities identified on the basis of ethnicity, culture or similar community of interest. The Community land shall not be disposed of or otherwise used except in terms of legislation specifying the nature and extent of the rights of members of each community individually and collectively

The Community land consists of the 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; and 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; or land lawfully held as trust land by the county governments.

The parliament passed the community land regulation and it was gazetted by the Cabinet Secretary for Lands and Physical Planning in 2018. Within eighteen months, from the commencement of these regulations, (August 2018) every county government shall, in consultation with unregistered communities, prepare and submit to the Cabinet Secretary an inventory of all unregistered community land within the county. The Inventory shall contain the name of the community occupying the land or laying a claim on that land; the locality of the land; the description of the perimeter boundary; the current use of the land; and any other relevant information. It is now almost three years (36 months), Isiolo county government has fully not complied with this legal requirement.

Instead of embarking on the process of community land registration, during this period, the communities in Isiolo county have witnessed increased conflicting debate and controversies over the community land issues despite interventions of CSOs that includes DLCI to enhance public education and sensitize the community on their land rights and provisions of the community land Act.

These debates and controversies keep on escalating from one issue to another, the most intense one was triggered by a contentious Legal Notice No. 150 of 2019 that issued by the Ministry of Lands setting up the entire area of land in Isiolo county under adjudication programme under cap 284 of the law of Kenya. However, over 90% of the land in the county is former trust land where cap 284 where this law is not mainly applicable.

The county government, which is the trustee (Custodian of unregistered community land) following intense pressure from local NGOs that includes DLCI, and other key stakeholders members of the Pastoralist Parliamentary Group (PPG), various community institutions and the general public in the county demanded the revocation of this legal notice. The County government responded by organizing a delegation that was lead by the Governor and Speaker of the County Assembly that included former members of parliament to visit Nairobi city and meet with the Cabinet Secretary for Lands over the legal notice. The County Government that admitted to having asked the CS Land for the notice, this time requested an amendment to the legal notice in order to reduce the coverage of the area to be targeted by this legal notice. This amendment equally created new controversy as it was seeking to illegally appropriate more than 100km square of unregistered community land for urban and town development without consultation with the communities.

A faction of national political leadership led by the Isiolo Senator and other four legislators including the nominated Senator, County Women Representative and two constituency MPs wrote joint letters to the Cabinet Secretary for Lands and made joint public pronouncement calling for the revocation of the legal notice. The leaders said that there are already too many land disputes in the county and, if the amendment proposal for the adjudication programme in the county proceeds as planned, the community will stand to lose large tracts of their unregistered community lands. Residents of the county also organized a series of angry demonstration to join the advocacy against the legal notice. The community representatives went also to court contesting the illegal encroachment of the community land by the Kenya Defence Forces that through this legal notice is claiming and allowed to set aside part of the community land. The community groups filled other litigations that raised other issues that are related to unresolved boundary disputes between Isiolo county and its neighbours. The county government as custodian of this unregistered community land is not only failing to engage with the communities during this process of intense debate and controversies but are instead concentrated on pushing hard for the proposed amendment to the legal notice through the county assembly that has kept the community members worrying. Every day, citizens in the county made hundreds of phones call to the local FM radios asking the question about what sinister motive is behind the move of the county government to push for the amendment of this legal notice without listening to the voices of the communities?

The Constitution gave the explicit right to the communities especially the marginalised communities to be actively involved in any major decision over their unregistered community lands. The Community Land Act also provides for the recognition, protection and registration of community land rights, management and administration of community land and sets out clearly the role of county governments in relation to unregistered community land. The community land Act gives the communities opportunities to collectively use and manage land as communally owned by forming community assemblies and community land management committees to register their communities and register their land and manage it themselves. A registered community under the community land Act has the right and legal power to freely engage with all those who have an interest in their land that includes entering into direct negotiation and reach agreements with investors. The community land Act is a very progressive piece of legislation and empowering law that was passed by the national parliament within the spirit of the new constitutions that the county government has no power to amend. The Act has the capacity to provide for fixing the remedies of even historical land injustices if it is fully implemented.

While the national government has demonstrated some respect for this new progressive law and demonstrated some level of commitment to implementing the community land Act, by rolling out the national framework for implementing the community land Act, the County Government is finding it difficult even to consult with communities to deliver on its mandate. The national government (CS lands) has appointed a national working group to oversee implementation of the community land Act, designated more than 100 community land registrars and posted them to the counties; published gazette notices for the appointment of the community land adjudication officers for 24 Counties. The major role of the county government includes providing a continuous public education on community land rights that is not happening. The simple process of submitting an inventory of unregistered community land to CS land has remained hanging with critical issues that range from accepting the names proposed by the communities yet to be resolved. Isiolo county government instead went ahead with hearing the communities made a proposal of different names against those preferred by the communities and suggested using the names of the sub-counties as the community names for registering the community land in the county. they also suggest that the perimeter boundary of the community lands follow the administrative boundaries. The County has not provided any budget to its land department to enable them to facilitate registration of the community over and above these other failures as required by the community land Act etc.

The key question for us is why is the Isiolo county governments finding it difficult to engage with the communities, who are the owners of the community land on the process that require them to transfer the responsibility of community land administration and management to these communities. The constitution and community land act provide for the county government (as the custodian of all unregistered community land) to work closely with the communities to carry out its mandate. There are many cases of abuse by the county government of trusteeship and corruptions over the matters of the community lands administration and management in Isiolo county that is going on unresolved. Isiolo county government most recently introduced a draft county bill to the county assembly that is seeking to contradict the community land act by giving powers to wildlife conservancies to manage and use community land with the permission of the county executives and not the communities. The county government is not only failing to consult with the communities on its major decision and transaction on unregistered community land but is illegally attempting to appropriate and convert community land to private and public purpose without setting up a compulsory acquisition compensation fund for the communities. The county government is required by law to hold in trust for the community any monies that are payable as compensation for compulsory acquisition of any unregistered community land. Failure or refusal by the county government to carry out its legal mandate with impunity is a worrying issue. It has one biggest impeding blocks to recognition, protection and registration of the community land. Isiolo county government is publically very compliant but in its official action portrays a very reluctant attitude towards transferring the power of the community land administration and management to the communities as required by law. the delay in moving forward from the first step to the next step of the community land registration process is very deafeningly.

The communities continue to struggle without coherent legal empowerment strategies and public education on their land rights with insufficient support from a few CSOs that are pushing for fast-tracking of the community land registration in the county. The County government is very nervous about the activities of the CSOs in the county. Up to date the extent and exact size of the community land that is in the county held by the county government are yet to be identified and disclosed to the communities. It is the mandate of the county government to prepare the full inventory of all unregistered community land in the county in consultation with the communities and submit such a report to the Cabinet Secretary to enable the CS in the preparation of a comprehensive community land adjudication programme for the county. in 2019 following intense pressure and lobbying by the CSOs that includes Frontier Counties Development Council (FCDC), Pastoralist Parliamentary Group (PPG) and DLCI and other local NGOs, the Isiolo county submitted an inventory that was done in rush in consultation with the members of County Assemblies excluding the communities contravening the community land regulations guidelines.

There is no justification for the county government to rush for the adjudication of private and public land under the legal notice no 150 of 2019 before identifying, recognising and preparing the communities for the registration of the community lands in the county. The communities fear and are suspicious of the County government action and perceive it as an issue of an underhand dark force (deep state) that is pushing them to extend into unregistered community land territories by the private entities and public interest in the county. If this plan is allowed to succeed, the communities are set to losing unknown large tracks of their community land to private entities and public (state agencies) that includes the military, huge national mega projects like LAPPSET, Resort City and International airport without following the due process as set out in the legal procedures for acquiring and converting the community land to private entities or for compulsory acquisition for the public purpose. The community land Act implementation is clearly being ignored by the county government of Isiolo even it is clear that it was enacted by the national Parliament foremost to recognize, protect and register the community land rights. The County government is not on board with this constitutional aspiration and is seen to be behind schedule by promoting the former legal regime that is encouraging a continuation of the culture of abuse of community land rights in its attempts to convert the unregistered community land to private and public purpose without respect for the required safeguards that are set out by the community land act and not being accountable for its action as set out by the law.

I am excited to be part of the 2021 legal empowerment leadership course. I expect to learn from this inspiring process, learn from experience others in turning the tide for our communities who treated as if they are living outside the protection of the law and lack meaningful access to justice. Our communities, especially the pastoralists people of Kenya are part of those people who continue to unfairly driven from their land, denied essential services, excluded from the mainstream society, intimidated by violence and keep fighting for surviving continuous inter-community conflicts. I am happy to be part of the global legal empowerment team and look forward to contributing through sharing our experiences and learning from others to enable our people to understand, use, and shape the law.

The key question for us is what can be done to stop the county government from continue blocking technically the registration of the community land? Why is Isiolo County Government not accountable and what is likely to be scaring the Isiolo county government from carrying out its legal mandate of transferring the power to the people to manage their own lands? What are experiences out there in other parts of the world that we can learn from to enable us to overcome these challenges?