Many land disputes: weak and poor often lose

Rather dumbstruck, I sat pensively listening to narratives from Embu County bigwigs from the administration, security and national land commission. Their message was clear but worrying. That people tend to take every small land matter that pops up to the courts for judicial determination. Subsequently, the county has numerous land cases in court which take long and give mixed results. The weak and the poor often lose, exhausted and beaten by process costs and rigour. Unfortunately, the resultant bitterness at times later manifests itself through violence, or even murder. So what was their point? That county residents be urged to consider the use of alternative options in resolving some of these land disputes. Such alternative options are likely to reduce complainant emotions, reduce process costs and time. Ultimately, the results will enjoy better support and ownership by the affected individuals and families, and are hence less likely to precipitate acrimony and violence afterwards.

I may have heard such messages through other forums before. But this time round it was different. Coming from a team of senior and seasoned administration, security and land management officials who have had opportunity to advise, arrest and even prosecute offenders in the context under discussion, this message was ominous. So political, community, professional and traditional leaders in Embu County had rather take note. The earlier the residents are dissuaded from taking all manner of land disputes to the courts, the better for social harmony. I am sure that in earlier days, these disputes were easily resolved through traditional arrangements with much better results.

Judicial systems complex and expensive

But this Embu County narrative could perhaps echo untold experiences from other Counties. With the advent of modern land administration, traditional community based structures through which land and boundary disputes were resolved collapsed in most jurisdictions. In their place came other structured processes like courts and quasi-judicial tribunals, or the boundary dispute resolution processes under land registrars. From experience, these institutional processes are least understood. Indeed, the processes are only best figured by conveyancing lawyers and land professionals. Outside these, even the elites find themselves lost on the critical red flags to watch out for when faced with simple land and boundary disputes. But while able elites can commission the services of lawyers and land professionals, the poor and the weak remain overexposed. That is why they easily lose such cases on simple technicalities or, where costs overbear, failure to attend hearings or to facilitate crucial witnesses. And often, they lose because our land management and registration laws contain provisions that are difficult to interpret and navigate where not guided by experts.

It is for these reasons that our land policy, constitution and laws provide for alternative methods of seeking solutions where disputes arise. Our land policy encourages the use of alternative dispute resolution mechanisms to facilitate expeditious and affordable access to justice. Such mechanisms include negotiation, mediation and arbitration. The constitution anchored the principle further. It encourages communities to settle land disputes through recognised local community initiatives and requires the national land commission to encourage the application of traditional dispute resolution mechanisms in land conflicts.

Harness accessible, cheaper alternative dispute resolution methods

In addition, the constitution requires our courts and tribunals to be guided by, among others, the principle of alternative dispute resolution where this includes reconciliation, mediation, arbitration and traditional dispute resolution mechanism. In line with these policy and constitutional principles, the Environment and Land Court Act, under which land disputes are determined, allows parties to a dispute to adopt any alternative methods of dispute resolution including reconciliation, mediation and also traditional mechanisms. Notably, the 2016 Community Land Act fundamentally incorporates the use of alternative dispute resolution. It requires that disputes between members of registered communities be first resolved using any of the internal dispute resolution mechanisms set out in their bye-laws. Only where all efforts to resolve a dispute through traditional dispute and conflict resolution mechanisms provided under the Community Land Act fail may parties refer such disputes to Courts. It will be interesting to watch how the application of these provisions works. What’s not in doubt is that the prescribed system will be more accessible and less intriguing to the affected communities and if well implemented, will certainly save them agony in judicial protocols and costs.

Sensitisation and champions

So leaders and communities in Embu County, and in other affected parts of Kenya, have sufficient constitutional and legal anchor around which to seek alternative options of resolving land disputes. It is also instructive to note that the judiciary through retired Chief Justice Dr Willy Mutunga and now the current Chief Justice David Maraga have at different moments encouraged the use of alternative dispute resolution options to expedite cases and free court time. It’s therefore incumbent upon the Lands Ministry, the land commission, the judiciary, community leaders and land sector civil society groups to devise public programmes to sensitise and popularise the use of alternative land dispute resolution mechanisms in Kenya. Champions in each of these institutions would help. The verdicts so delivered will be more easily understood and accepted, and are much more likely to promote peace and coexistence.

Dated: 15th December, 2018