Urbanisation a threat to community land rights

Recently, the Nubian Community was issued with a title deed by the President of the Republic of Kenya. It was a great stride towards them achieving their land rights. I had my reservations since the same was under a Lease regime. Well as it is said better half a load than no bread. My biggest concern however, is how long will the Nubian Community and many other communities continue to have their community land protected. We have seen the various infrastructural projects that have been launched by the Government, from roads to railways to slum upgrading projects, the urban centres are also expanding at a high rate and some areas which were onve residential areas have become Business districts. There have been demolitions of structures in Kibra to pave way for a dual carriage way, soon more buildings will be demolished to pave way for the railway. Is this a red light to the Nubian Community land? What other ways can this expansion be controlled to ensure that community land is protected? What are the ways that the community can be involved to ensure that urbanisation doesn’t affect their land rights?

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This is one of the most sensitive issues that we are still grappling with as a community. The land is unfortunately not registered as a community land. With the infrastructure it’s hard to predict what shall befall our community as the president needs to deliver its promises without any thought of human dignity. The rate of forced evictions is alarming and I am speaking as a victim as where I called home is no more and very soon when my daughter grows up I will be showing her where I used to call home but now is a highway.

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My former home

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I am so sorry to you and other families affected. It buys me that a title deed can be used to gain political mileage and does not truly reflect the security and ownership over the land to a particular Community. More should be done to protect community land. Especially for the future generations.

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Much has been shared and published.but the real feeling how urbanization is swallowing community lands spreads faster than the speed of sound .imagesthese community has been in great threat than any on earth reason being their land is communal

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![FB_IMG_1531938362262|690x459] roads and other big infrastructure

Thanks @Purity_Wadegu there is a lot to be done

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We need to have a national discourse on positive development that adds value to human dignity and wellbeing

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I’d be very interested to learn more about the initial advocacy work that was done before the state and the community came to any agreement about the basis of the legal protection that registering the community might create. Issues can be complex and it requires a very significant amount of dialogue between stakeholders to ensure that all stakeholders fully understand the implications of the registration process. The most simplistic argument is always that registering community land creates better opportunities for informed debate when/if development threatens and further that registration empowers communities by generating better bargaining power with investors and government to improve livelihoods. In truth developing those ‘political’ skills for community members takes time and effort and thus what normally happens is that ‘experts’ are brought in to assist communities. These experts rarely take the time to truly comprehend local interests and thus facilitate a situation whereby community are actually rendered more vulnerable. How so? Simply plotting land interests by whatever means, be it ‘community participation’ or tracing satellite imagery or flying drones, literally puts those communities on the map. That map is typically digital and promoted by whatever agency supported the registration process. In countries with outdated or parlous map records then. of course, decision makers will focus on the mapped areas in which to enforce change - for good or ill. Given that the map generates better data than is available anywhere else in the country it is inevitable that investment will be promoted within the community. Now the expectation of the community is that having been supported by an agency to participate in identifying and mapping their land they will be better placed to negotiate a fair deal in terms of market based compensation for appropriated land, economic opportunities in any new venture and a long term say in the development of the region. But that won’t happen because the people that rushed to support the mapping process typically won’t have created any of the essential mechanisms to improve the negotiation of contracts between the community, the state and the investor. Which is amazing given that every donor agency promotes the VGGTs and the people participating (and profiting from) community mapping programmes pay lip service to the VGGTs. So how did your community registration process evolve in Kenya?

  • Were you promised better legal rights - and if so what process was followed to guarantee that you’d achieve them over and above ‘a map’?
  • Were community members engaged in the dialogue throughout and empowered to advocate for positive impact on completion?
  • Did the government anticipate needing to be involved in more transparent dialogue in pursuit of fairer legal contracts with defined enforcement mechanisms for future projects likely to displace or disrupt communities?

Is it right to continue to promote the simplistic notion that mapping communities will empower them without ALSO ensuring that the necessary enforcement mechanisms are enshrined in legislation?

Because unless the laws are created to enforce the fair treatment of registered communities the likelihood is that community registration will actually make communities more vulnerable.

My hope is that registering the Nubian community took place after a lot of dialogue and engagement with government and the creation of a thorough set of rules and regulations to guide future activities for all likely stakeholders. It’d be great to see that process outlined on this blog and, in particular, any advances made in terms of contracts that would be employed in future development strategies.

So when someone comes to your community and offers to help you map it ask them (a) if they have the capacity to create an outcome that both protects and empowers that community IN LAW or (b) if they actually just want to fulfil a fantasy of sleeping in a village so that they can add some colourful photographs to their personal facebook page without really understanding the implications of their ‘helpfulness.’

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Like Andrew Smith puts it, documentation or issuance of a title deed doesn’t necessarily guarantee security. Actual security lies in community organization and strong local governance structures and systems. Anyone wishing to support community land protection, should prioritise supporting communities to strengthen their organization, governance and decision making frameworks.

A community with no or weak governance systems is typically insecure even though they hold a title. An organized community with strong governance is much more secure even without a title.

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I second both of you. For years our community “the Nubian community” has struggled to title our land but to be honest we failed to create better governance structures, better policies to safeguard the land, better systems on community conflict resolution both internal and external.

This why almost three years after getting the title we still don’t know or if we do just a few elites know what to do with the community land. with a total of over 30,000 community members even if we were to divide the 300 acres equally it is close to impossible.

We are now struggling to reverse engineer everything now. For example now we are setting up the leadership, the mechanisms of community participation etc. It is quite unfortunate that we failed to plan in advance but now we are adjusting everything to protect the land and maybe in the future if we live to see it, develop the land.

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Thanks for responding Mustafa. Your comments are extremely interesting.

In other discussions on this forum I have stressed that I am a huge fan of community rights recording and registration. If done properly it has the potential to truly empower communities and to facilitate responsible and responsive governance by the political powers.

I am becoming massively concerned, however, that the mapping exercises are being pursued as a ‘total solution’ by various actors and that, as a consequence, programmes of community registration are actually making communities more vulnerable. The primary focus seems to be on creating a map, or a lot of individual maps, rather than an improved governance framework. Often there seems to be an assumption that the map itself improves governance. The same names appear with increasing regularity heralding their success in mapping township X, village Y or community Z but what is the outcome? Are livelihoods improved? Are needs met more effectively? Are revenues more transparent and fair? I recently invite comment on a ‘success’ in India whereby it was claimed that the rights of a million people were protected. As far I can see the outcome simply ties people to their existing property and forbids hem from selling it while the government gains the potential to tax them in perpetuity. Is that all we aspire to? Is that a successful improvement in land rights?

Hopefully you are cataloguing your experiences with the Nubian community thoroughly. It has the potential to be an incredible learning resource that will be able to guide others in similar circumstances and/or to create a more informed debate on future approaches.

I am interested in a particular aspect of your experiences. The whole Namati ethos appears centred on improving rights toward legal empowerment. Securing land rights is typically the starting point of that journey and a lot of material has been developed to guide participants toward better opportunities. What was the background of the person that led the process? The majority of the reports I see outlining approaches to community registration centre on the technical aspects of creating the map and people get very excited by the application of technology so all it proves is how easy it has become to map what were previously complex features.

The difficult bit, that seems to be slipping through the net, is the analysis of that map and the local social structures to define a road map for reform that will improve governance, create employment, provide responsible land use and investment and generate inclusive inclusive outcomes across society.

Those debates can be guided by the adoption of basic checklists derived from the principles of sustainable development tailored to suit local needs but these key issues are often lost in the excitement of “we mapped a 1,000 plots” or " we mapped 500 hectares."

Mapping is a relatively minor component in all of this. It is the dialogue and enforcement of the law that is challenging - but possible.

So please let us know more about your experience Mustafa. And maybe we can invite some of those involved in creating the scenario that the Nubian community finds itself in to contribute.

Hi @AndrewMSmith,

I like your argument. At Namati Kenya our niche is legal empowerment, I thought I should expound a bit on it. Our work currently in Kenya is purely focused on strengthening of local governance mechanisms. We haven’t even done any mapping. Like you rightly put it, a document/map/title in the hands of a poorly governed community could instead lead to more harm than good. Strengthening of governance takes precedence over mapping/titling.

Strengthening of governance forms the core of the Community Land Protection approach. It involves communities drafting, debating, and adopting local bylaws, and electing committees to implement the bylaws to govern their land and natural resources. Bylaws drafting meetings typically begin with the facilitator training communities on the national laws. This increases their knowledge and puts them at a better position to draft bylaws that are in harmony with the national laws. In a nutshell, they are made to know law, and use that knowledge to create their own local laws. This is what we mean by legal empowerment at Namati.

If community land documentation efforts are undertaken without empowering communities to establish good governance over their lands and natural resources, documentation may create more harm than good because leaders with a title and no downward accountability can sell or transact community land much more easily. Community land documentation initiatives that do not support communities to establish systems for transparent, just, and equitable land governance may invite or worsen mismanagement, corruption, and capture by local elites. They may also weaken women’s land rights by entrenching discriminatory practices that exclude women from land governance and community decision-making.

A well-facilitated, participatory, careful process of drafting, adopting community rules and electing a committee for land and natural resource management often results in empowerment.

The next question is who is this facilitator. The facilitator is a paralegal, who is selected by community members and trained and supervised to work with the community. The paralegals receive comprehensive training on basic law and in skills on mediation, organizing, education, advocacy, and how to facilitate community activities in a legally empowering way. This ensures that they can apply rights-based legal education activities to support women to demonstrate their key role in land management, and then support community members to think critically about rules that violate rights – and change them so they are legally compliant and do not infringe on women and other minority groups’ rights.

Regards,

David

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Thanks, @davidarach for weighing. Just a clarification, I speak based on my personal experience as a community activist and my community’s experience. The unfortunate bit is we never strengthened our systems at the community level before getting our title. Our mapping process was developed with minimal participation of the community.

I strongly believe in the CLP approach and our community has been trying to reverse engineer everything as we later realized we jumped a lot of steps in terms of even protecting the youth and women who are the most vulnerable.

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Thanks Mustafa. Your phrase “Our mapping process was developed with minimal participation of the community” is particularly interesting.

I remain interested to learn how that mapping process evolved. Who advised? Who led? Was there a belief that it was ‘job done’ once that map had been created?

Presumably the paralegals also follow some sort of engagement manual to ensure that community support is structured, positive and focused on a particular goal. I would love to see that engagement manual to get a better understanding of the training given to the paralegals to help them understand and mitigate any potential risks that may arise from formalising community rights.

Ideally I would like to see that engagement was pretty light touch in the beginning as the paralegals gained a better understanding of the situation and that, perhaps more importantly, the ensuing debate identified core areas of concern that could be addressed by creating engagement mechanism between the community, government and investor to generate responsible and inclusive but commercially driven outcomes. Neither community nor state have funds to address the problems but there are always opportunities to attract investment that, if correctly managed, can improve livelihoods and quality of live.

Never forget that formalisation is inevitable as demand for land grows but lets ensure that it takes place on the best possible terms and in pursuit of the best possible outcomes for everyone. That can only be achieved through meaningful dialogue in pursuit of consensus. Mapping for its own sake achieves relatively little. Recording communities’ boundaries and land-use for its own sake without a definitive legal framework needs thought. But understand your boundaries, understand the community and use that data to improve negotiation in pursuit of a defined objective and enlist ethical investments? That allows you the creation of credible legal contracts within national legal frameworks that equate to improved land rights and which will mature over time to the sort of regulatory frameworks that allow effective governance in developed countries.

Please note for my community we never used the paralegal model. For mapping the ministry of lands sent their own mappers and the role of the community was to merely provide security for them on ground. That’s why I said we had minimum participation if any. For the paralegal model I would advice you read @davidarach’s comment above


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