Communal tenure rights

For about three years now, the Land Development and Governance Institute (LDGI) has been busy researching on the application of Kenya’s Community Land Act. Focus has been on sites in Isiolo and Marsabit Counties, where community land is vast. As the research progressed, I was amazed by the asymmetry in the appreciation of tenure rights for private landowners and for those living in the communal areas. Here’s what a group I chatted near Chalbi Desert, Marsabit County, had to say about access to water.

“We would uproot the fence, beat you up, and even the Chief himself until our herds access the water. Water belongs to no one. Water is God given”, they told me. I had suggested that I could sink a borehole in my land, fence it off and, to recover my investment costs, charge each of them an entry fee to water their animals. To deter forceful entry, I posited that I’d bring in the area Chief and law enforcement officers.

They were united in unequivocally stating that nothing comes between water and their animals and that they’d beat up even public officers to access water. Water, to them, is a common resource, regardless of individual investments. The same philosophy applies when their animals must access any pasture, they asserted. Cadastral boundaries as we know them elsewhere don’t count for much here. This is profound and intriguing to citizens who have exclusively embraced private property and the exclusive use of resources therein. This helps us to appreciate why we needed to enact an enabling law to govern the lifestyles and norms in community land domains, where pastoralism is dominant.

Inclusive governance structures

The research helps to illustrate that if well guided and empowered, communities in such areas know their priorities and culture, and are hence able to establish the necessary institutional arrangements to govern land use. While working with the Walda Community in Marsabit County, the LDGI research demonstrates that communities in these areas are actually quite inclusive in decision making. After basic empowerment on the provisions of the Community Land Act, the Walda community proceeded to easily establish a community land management committee incorporating elders, leaders, women and youth. They then developed a register of their community members and governing byelaws. They have been able to develop land use and investor guides, the tools they need to manage land use by community members, and to engage with interested investors, respectively.

Government role

Clearly, with some little government push to get over the registration of their community group and the mapping of their land, this group will easily manage its land. This is why it was exciting to read that the Ministry of Lands recently gave the II Ngwesi and Musul Communities in Laikipia their community land titles recently. This motivates. Other communities should take cue, put in place their governance structures and approach government for registration. This way, they’ll be able to protect and manage their land under the new law, while also accommodating their norms and practices.

Dated: 27^th November, 2020