News story: Communal land good for pastoralists in Kenya

Found this article to be an interesting read about the history of pastoralism and communal land tenure in Kenya - including the introduction of the group ranch system in the 1960s and 1970s to move communities towards privatization.

Although the formation of group ranches was inconsistent with the pastoral communities cultural norms, they did not oppose the formation of group ranches mainly because they wanted to protect their ancestral land from “outsiders”. Despite the establishment of group ranches, the communities used customary laws to manage the land.

And this reminded me of Namati’s emphasis on governance in community land protection efforts:

Maintenance of collective land tenure provides an opportunity to improve livelihoods in pastoral communities. However, this can only happen if communities’ mechanisms to manage land are strengthened. One way of achieving this is by incorporating customary laws in the legal framework. The community land bill, currently in Parliament, provides for this.

Original article here.

What do you think? Do you agree? Is the draft Community Land Bill good for pastoralist communities?

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Perhaps there are also lessons from other countries, like Tanzania or parts of West/North Africa, about legislative efforts to protect pastoralist lands and ways of life? Do we have anyone from other countries who would like to add their thoughts?

How customary tenure is incorporated into the legal framework and whether historical uses of land fit with current realities will determine the success of the community land bill in protecting pastoralist communities.

Kenya’s current legal framework recognizes the legitimacy of customary tenure and community ownership, but it does not currently explain how courts and other government bodies are expected to incorporate customary laws into statutory laws.

With the diversity of customary laws and likely the questioning of the legitimacy of those laws (such as customary laws that prohibit women from owning/controlling land) courts are placed in a difficult position of learning of all of these laws and checking their legitimacy. It might be that disputes over customary tenure and community ownership are best left to customary tribunals such as village councils. These bodies often already have local legitimacy and could relieve much of the burden on a still young Environment and Land Court. The community land bill might then recognize these bodies and install oversight mechanisms to prevent elite capture.

Another difficulty that the community land bill will need to address will be how to resolve disputes between formal/privatized land owners and the customary/communal owners. As mentioned in the article, the colonial government and the government after independence both emphasized privatizing and titling land. This led to today’s situation where there are many conflicting claims to land between those with private title (acquired legally or illegally) and those with claims based on custom. Whose right takes priority, what body will determine this, and how will the loser be compensated are difficult questions that the community land bill or the NLC/Ministry for Lands must resolve.

Finally, the community land bill will need to set up a flexible framework to deal with the changing realities of rural Kenya. Much of the land that has been privatized in Kenya is fertile farmland. Pastoralist communities have generally lived in arid and semi arid climates where farming was difficult, if not impossible. But with climate change making certain areas more difficult to live in and technological growth that allows for agricultural production will put significant pressure on pastoralist communities attempts to preserve their historical land use.

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