Thank you to Namati’s David Arach (@davidarach) and John Lengoisa (@SAMORAI) from the Ogiek Peoples Development Program for providing these helpful answers from the Legal Tools Webinar: Using Community By-Laws to Secure Customary Land Rights in Kenya.
Find the full webinar recording here to learn about the structure of the by-laws drafting process and hear stories of communities’ experiences implementing the process.
We encourage you to participate by asking additional questions or answering the ones we have posed for Network members below!
Question Theme 1: Implementation of By-Laws
Drafting of by-laws is a powerful process in and of itself, but the true impact of by-laws comes when they are implemented. Several questions related to how to ensure effective implementation, including:
1. How do you ensure flexibility in the by-laws to accommodate future changes in the economy, or due to population growth, climate change etc.?
2. Can by-laws be incorporated by reference into any benefit-sharing or community development agreements [with investors]?
These are questions shared by Namati and partners. Concerning flexibility, we encourage communities to include specific by-laws about how and when they will revisit their by-laws to evaluate their effectiveness and whether there need to be any revisions or updates. Partly this is to ensure that rules do not become stagnant or irrelevant to the community’s situation. It is also to avoid ‘fixing’ or abstracting customary law away from the lived experience of communities. While the laws may no longer be oral, there are ways to retain some of the flexibility and adaptability in local written rules should be encouraged with practices that keep the rules as a ‘living’ part of the community. A standard recommendation is a by-law along the lines of “The community will meet once a year to review the by-laws, their implementation, progress to community goals, and whether there should be revisions to the by-laws or community plans.”
How do you ensure that community governance or land management interventions continue as ‘living’, adaptable local institutions?
Concerning agreements with investors (such as benefit-sharing agreements or community development agreements), the ideal would be for those agreements to recognize the community’s by-laws – especially any rules that relate to the specific investment project (e.g. rules about pollution, rules about procedures for community decision-making or revenue). And prior to a written agreement, the goal would be for the community to use their by-laws to explain to potential investors the appropriate procedure for engaging with the community (e.g. how to arrange to have community meetings, who needs to be involved in consultations, expectations about the investor’s role and contributions, how the community makes decisions etc.).
Getting community by-laws to be this detailed on questions of investments or negotiations is often a challenge, especially if communities have never had empowered interactions with powerful outsiders like this. Often the first step is several sessions of legal education and negotiations training for the community and leaders, so that communities can write this section of their by-laws from an informed position.
Question for Network Members: In your work, how do you empower communities in negotiations with investors? What strategies have you seen be effective in having community by-laws formally recognized and upheld in agreements with investors?
Question Theme 2: Relationship between Community By-laws and National Law
On a related note, many participants wondered about how national laws and government institutions can recognize and uphold community by-laws and support communities to enforce them:
1. “You say that you try to seek compliance of the by-laws with national legislation and revise the by-laws to this end. What if the national laws do not accommodate the customary practices of the communities? To what extent do you alter the by-laws? Or would you rather advocate for the revision of the national laws?”
This is a great question. I would say it depends on the specific case. If there is a customary practice or local by-laws that support more sustainable or equitable land or natural resource management but it somehow goes against national law, typically the first step would be to assess in detail if there are alternative ways to frame the by-law to avoid contradiction, and assess how likely inclusion of the rule would actually prevent recognition of the community’s land. Next would be to assess the feasibility of being able to advocate for revisions to the national law, and the consequences of the delay required to do so. If it is a serious contradiction – or a strategic advocacy point – and if legal recognition of the community’s land is urgent, a way forward could be to recommend to the community to not include the problematic by-law in the official registration documents and in parallel beginning a conversation with officials about how to accommodate it. If the laws are revised to accommodate the local practice, then the community could amend their by-laws to officially include it.
However, if it is a case of a customary practice or local rule that contradicts with national law because it is discriminatory or exacerbates damaging land or resource use (in the assessment of the facilitating organization), then the approach would be very different. Responses would include discussing with the community: • Why that particular rule or practice is in contradiction with national law or human rights principles; • The origin and history of that rule or practice, to try to unearth if it had an original purpose that could be reframed in a way so as to not be discriminatory or damaging (see more on this in our Lesson from the Field from Mozambique); • What the negative consequences of that rule or practice are for the community and how it could be revised to avoid the negative consequences; • And ultimately, if the community is still resistant to changing the rule, discussion of the consequences of including the rule in what is submitted to the government and the likelihood of the community’s registration process being challenged or denied as a result.
Question for Network Members: In your work, how do you approach customary practices that contradict national law? Do you advocate for the laws to change, or support adaptation of custom? What factors make you determine the best way to respond?
2.Legal status of the by-laws a. Are the by-laws equivalent to a legal title, in the sense that they are defensible in court or against a third party? b. How do you ensure that the by-laws are legally recognized or legitimized or enforced by courts or other judicial institutions? c.How do you legislate the by-laws and build up a land administrative system to support it?
The by-laws are not equivalent to a legal title, but they are powerful evidence of a community’s territorial claim and local land management practices. They are also often a component of what is required to apply for a legal title to community land. As written documentation of a community’s governance procedures, the by-laws can be used in court in cases such as where an investor signs a deal with just a few leaders and does not follow the community’s rules. We have seen this in a case from Liberia – the community used their by-laws to challenge a land lease signed by corrupt leaders and had it overturned.
The goal is not necessarily legislate the by-laws themselves, or create a land administration system. The goal is that the national legal framework and land administration system will create space for communities to create their own local by-laws for themselves, and have those by-laws be linked to a community’s title. However, we have seen interest from some local governments in adopting local by-laws into law, such as in CSRC’s work in Nepal. Our target would be for different levels of government to recognize a community’s by-laws and consult them when appropriate (for example when making a decision about land within a community’s territory, or when adjudicating on a dispute). To that end, we and partners aim to work closely with government throughout the community land protection process to keep them informed and increase the likelihood that they will support enforcement of a community’s by-laws. We often recommend that communities share a copy of their final by-laws with their local government offices, judges, police offices etc., so they can refer to them in interactions with the community.
Do you have ideas about how to ensure legal recognition and implementation of community by-laws by state institutions?
3.Is devolution an opportunity or a constraint to this process? How do you link your work with the work of county government and devolved structures?
In my perspective it is an opportunity – local governments can be a very effective ally in this work if you can establish a good working relationship, and find a way to align your work and the community’s goals with the interests of the local government (for example, presenting the work as helping to address and prevent the land conflicts that otherwise the local government would need to respond to). We generally strive to work closely and collaboratively with local government, and we are adding a chapter to our Facilitator’s Guide all about working with government to share more specific strategies.
Question for Network Members: How do you work with local governments and devolved structures in your work?