The USAID-funded Securing Rights to Land and Natural Resources for Biodiversity and Livelihoods in the Kiguna, Boni and Dodori Reserves and Surrounding Areas Project (SECURE Project) works with the Ministry of Lands in Kenya’s north coast region of Lamu to help implement the new NLP. The Lamu environs are recognized as international hotspots for biodiversity and the home to three national reserves that incorporate 2,500 kms² of coastal forest, mangrove, estuarine, and marine ecosystems hosting numerous vulnerable and endangered species. Lands in this region have long been categorized as government lands, but local communities manage them under customary land tenure arrangements.
Land issues have long been critical factors in the economic, social, and cultural development of Kenya. Indeed, land played a central part of the struggle for independence, as well as in the post-election violence of late 2007 and early 2008. With an estimated population of 40 million and an annual growth rate of 2.9%, the challenge of accommodating Kenya’s rapid population growth on its limited arid and semi-arid lands is reflected in high rates of rural-urban migration, land fragmentation, and many land conflicts. The system of land administration inherited from the British colonial era no longer accommodates these forces. Kenya’s new National Land Policy (NLP) recognizes that the country is in need of a new land administration system that engages local communities in land management. The National Land Policy is bolstered by the new Constitution, which endorses its key principles; prescribes a series of legislative, administrative, and structural reforms; and seeks to address such issues as gross disparities in land ownership, gender and trans-generational discrimination, inequitable and extra-legal land allocations, and historical injustices against minority and vulnerable groups.[Insert Image 1]
HISTORY OF COMMUNITY RIGHTS TO LAND
Although provision of secure tenure to land in Kenya has been ongoing since the late 1950s, few concrete measures succeeded at recognizing rights and interests to land claimed communally. Heretofore, citizens’ rights to land and security of tenure were derived from government lands and trust lands; notably among others the Government Land Act (Cap280), the Land Adjudication Act (Cap 284), the Land (Group Representatives) Act (Cap 287), and the Agriculture Act (Cap 318). Apart from the Land (Group Representatives) Act, all the other statutes are geared towards recognition of private property in land, with few or no provisions for recognizing communal rights and interests to land.
The Group Representatives (also referred to as Group Ranches) Act recognizes representatives of groups who are recorded as land owners under the Land Adjudication Act. However, the registration of these groups as owners and occupiers of land occurs through a process of adjudication aimed at extinguishing customary land ownership in favor of individualized or private ownership. The Group Ranches Act is primarily a land use and management tool for pastoralist areas and is not suitable for providing tenure security for non-pastoralist peoples. Unfortunately, pastoralist representatives have often sold off land without proper consultation with other community members.
The Trust Land Act (Cap 288) is intended to reserve state lands for community use. County Councils are vested with the authority to hold and manage trust lands on behalf of the people. In practice, County Council land administration has rarely benefited local communities. Councils lack management capacity on one hand; but on the other, they have lost the trust of local constituencies due to irregular and illegal land transactions.[Insert Image 2]
Particularly along Kenya’s coast, people live in squatter villages and other informal settlements. The Agriculture Act (Cap 318) has been used to recognize individual rights to land through the squatter settlement provisions. Individual letters of allotment have been issued under the Government Land Act (Cap 280) rather than legal recognition of community settlement rights. Admittedly, the subdivision and recognition of private rights to land settled informally is complex. The corpus of land Acts lack a clear method for recognizing group rights, whether those of lands long managed under customary tenure or those settled more recently on trust lands. Guidelines and regulations are not developed for how a village, as an institutional entity, can register and manage land rights.
A WAY FORWARD
In December 2009, the Government of Kenya created the National Land Policy (NLP) as a framework to resolve myriad land tenure issues. The new Constitution in August 2010 incorporates many aspects of the new land policy. The constitutional changes now recognize the new categories of public, community, and private lands. Public lands are to be administered by a National Land Commission with decentralized representation. Former Trust Lands, and some Government Lands along the coast, will be converted to community lands, managed and administered by local residents.
The USAID-funded Securing Rights to Land and Natural Resources for Biodiversity and Livelihoods in the Kiguna, Boni and Dodori Reserves and Surrounding Areas Project (SECURE Project) works with the Ministry of Lands in Kenya’s north coast region of Lamu to help implement the new NLP. The Lamu environs are recognized as international hotspots for biodiversity and the home to three national reserves that incorporate 2,500 kms² of coastal forest, mangrove, estuarine, and marine ecosystems hosting numerous vulnerable and endangered species. Lands in this region have long been categorized as government lands, but local communities manage them under customary land tenure arrangements. Land speculation linked to the anticipated creation of the new port of Lamu is now rampant. Interest in pristine beach plots now fuels illegal land transactions. Entire islands have been allegedly put up for sale. In this era of rapidly rising land prices, indigenous communities have not yet been able to protect their customary rights to land and other natural resources.
The SECURE Project has worked closely with the Land Reform Transformation Unit (LRTU) of the Ministry of Lands to design a participatory customary land rights recognition process—the Community Land Rights Recognition (CLRR) model—that enacts relevant provisions of the NLP. The CLRR approach spells out steps to register customary land rights through community institutions involved in the management of land and other natural resources. Through a transparent and participatory process, the CLRR records the array of community and local rights and land-use practices to land and other natural resources. To secure the customary rights of the local community, the CLRR spells out measures to further protect customary institutions against arbitrary uses of power by local elites and land administrators. The CLRR is being piloted in 2011 in four communities in the Lamu area. Lessons learned from the pilot will then help guide modifications in the CLRR approach, which upon formal approval by the Government of Kenya, will be incorporated into a new Community Land Act. This Act will apply the CLRR not only to coastal lands but to all former Trust Lands (about 65% of the total land area of Kenya), potentially touching millions of lives.
Concurrently, the SECURE Project is facilitating the improved biodiversity conservation and sustainable use of natural resources in partnership with the Kenya Wildlife Service, Kenya Forest Service, and Department of Fisheries. In collaboration with these partners, SECURE will help design and implement co-agreements for community forests situated on public lands. The pilot initiative is launched among the Boni—an indigenous peoples engaged farming and forest product gathering around a national reserve. SECURE will continue to assist its government partners in developing co-management agreements in coastal areas for the sustainable management of fisheries, wildlife, and mangroves.