256-comment-balancing-individual-ownership-and-community-tenure

African Woman and Child Feature Service - COMMENT: Balancing individual ownership and community te

For the first time in Kenya’s history, there is now a formal recognition that land represents several values that require protection in policy and law. Despite pursuing many objectives that appear irreconcilable, the Draft National Land Policy is informed by this clear, bold and comprehensive philosophy.

Land is not just a commodity that can be traded at the market. It is also a significant resource to which members of the society should have equitable access. Since it is limited, it must be used in a way that ensures its availability in future. Finally, land is a cultural heritage that should be preserved for future generations.

The land policy sets out programmes and laws that must be put in place to reconcile these values. Where previous policies and laws on land have pursued the goal of economic productivity at the expense of the other equally important values, often with disastrous consequences, this policy places them all on an equal footing.

Since the 1950s, Kenya has pursued policies that individualise land tenure because colonial agronomists believed that certain characteristics of indigenous tenure impeded agricultural development.

One argument colonial administrators, African political elites and aid donors have used is that “only private, freehold arrangements will provide the investment security necessary to make African agriculture more efficient and productive”. They further argue that African indigenous tenure systems hinder increasing agricultural output since they do not confer individual rights that would encourage investment in land. Communal tenure systems among pastoralists were considered a “structural feature of environmental degradation” because of overstocking.

Customary tenure is also considered a hindrance to economic productivity because since land cannot be mortgaged, it is difficult for people to obtain credit against it. Further, the absence of land markets impedes agricultural development. The right to dispose of land is viewed as crucial to efficiency in the operation of the land market.

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African Woman and Child Feature Service - COMMENT: Balancing individual ownership and community te

The communal nature of control, which caused much uncertainty in decision making, and weak user rights, is seen as leading to incessant disputes and inheritance rules that result in fragmentation of holdings into sub-economic units in a short time.

Persuaded by these arguments, the colonial government and the independence one that succeeded it started converting the then native reserves (today’s trust lands) into individually owned freehold property. The idea was to provide “the African farmer with security of tenure through an infeasible title as would encourage him to invest in his farm and enable him to offer it as security against financial credits.”

Indigenous tenure was transformed by adjudicating or consolidating fragmented land holdings and registering the property under the current Registered Land Act. Pastoral communities were reined in using the Land (Group Representatives) Act, which applies the philosophy of individualisation to community-owned land.

Since then, Kenya has pursued individual tenure, expending great effort to convert indigenous tenure into individual tenure through adjudication and consolidation. The resulting legal regime has tended to give individual ownership privileges at the expense of all other forms of tenure, regardless of whether or not those tenure rights were acquired legally.

The upshot of this fixation with individual tenure and economic productivity has deprived many Kenyans of access to land. The process of land adjudication requires that land adjudication officers should only record what they think constitute “ownership” rights, and to register the person who holds such rights as the “absolute proprietor” of the land in question. The effect is to deprive those deemed to have “lesser rights” – that is, rights not amounting to ownership – of their rights, while giving the so-called “owners” greater rights than they are entitled to under customary tenure. These lesser rights include family interests in land, and communal rights to land, such as rights to inkutot land among the Maasai, and rights to kaya forests among the Mijikenda. The newspapers and the courts are, for instance, inundated with reports and cases of (invariably) husbands selling family land without the consent of all other family members, thereby depriving them of a significant means to livelihood. In other words, whenever the absolute proprietor has sold, or mortgaged and failed to redeem the land, the holders of the lesser rights have been the losers.

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African Woman and Child Feature Service - COMMENT: Balancing individual ownership and community te

It is pertinent to ask whether a system that confers upon certain individuals a monopoly over an important resource, at the expense of others who have legitimate customary claims, is justifiable or equitable. This implicates the notion of distributional justice, considering that in Kenya land is still the primary source of wealth.

Secondly, unscrupulous group representatives have used the Land (Group Representatives) Act to dispose of community land at the expense of the other members. Community land disposed of in this manner is invariably registered as private property under the Registered Land Act, which conveniently provides that a first registration cannot be challenged even if it has been obtained by fraud.

In addition, individualization has wreaked havoc on indigenous culture and conservation systems.

Thus the Land (Group Representatives) Act for all intents and purposes disrupted the Maasai land management systems. For example, this law does not base group ranches on the Maasai customary political units, which form the basis for resource management. Further, the subdivision of group ranches and conversion to a system of individual tenure greatly undermine the practice of pastoralism. So that the pursuit of the policy of individualization in arid and semi-arid areas does not even respect ecological parameters, which demand that land holdings in such fragile areas should be kept as large as possible to allow room for seasonal adaptation and adjustment.

The shift to pluralism The land policy attempts to address the shortcomings of previous policies and laws. It recognises that these shortcomings are rooted in the neglect of customary tenure, which has been regarded as inferior. The policy adopts a plural approach, in which individual tenure and customary tenure co-exist as equal partners. The reasoning behind this approach is that the recognition and protection of customary tenure will facilitate the reconciliation and realization of the critical values that land represents.

Research by scholars such as J. W. Bruce and Shem Migot-Adholla demonstrate that indigenous tenure systems are resilient and remain the dominant form of land holding in African countries. Africans continue to deal in and transmit their land according to indigenous tenure.

Focus should, therefore, be on enhancing rather than replacing indigenous tenure systems.

Although economic productivity will continue to be a key value of land policy in Kenya, it should be reconciled with other values that Kenyans deem to be equally important.

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African Woman and Child Feature Service - COMMENT: Balancing individual ownership and community te

Systems need to be set up to facilitate marketisation and economic productivity in areas governed by indigenous tenure. Indigenous systems are inherently flexible and allow various forms of land borrowing and leasing.

In calling for the recognition of customary rights to land that have previously been neglected, the new policy is not advocating that all Kenyans should own land. Instead, it emphasizes facilitating access for as many Kenyans as possible, since land remains the primary source of wealth.

There is need for a national development policy to build other mechanisms for improving the economic productivity of the people of Kenya. Developing intermediate technology constitutes one such option, as it would shift focus away from land.

Some of the pertinent provisions of the new policy that seek to reconcile the multiple values of land include the establishment of a new constitutional category of land, to be known as “community land,” which will be held, managed and used by specific communities. A “Community Land Act” would provide for ultimate ownership of such land by “communities,” and the grant and regulation of use rights to members. This new category of land recognises the fact that indigenous tenure systems confer bundles of land rights that individuals can commercialise (e.g., sell, rent out, mortgage, etc) without having to seek individual tenure.

Also, the policy envisages a clear set of laws and procedures for the recognition, protection and registration of customary rights to land and land-based resources.

Land laws will be revised to ensure that the alienation of individual rights to land (that is sales or mortgages) takes into account all other legitimate rights or interests held or claimed by other persons over the affected land, including spouses and children. While such a law will no doubt impede the exercise of individual rights to land, it constitutes perhaps the most practical way of reconciling the goal of economic productivity with the other equally important goals of equity, sustainable utilization and the conservation of culture.

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African Woman and Child Feature Service - COMMENT: Balancing individual ownership and community te

Proper mechanisms to determine appropriate land sizes, according to use and productivity, and the provision of incentives to stimulate the voluntary readjustment of land sizes, will be put in place.

Additionally, mechanisms to enhance the effectiveness and efficiency of land markets and the creation of laws to promote land market operations in community land is critical to the success of this policy.

Also to be put in place will be mechanisms for co-management and rehabilitation of land and land-based resources, recognizing traditional management systems and facilitating the sustainable management of land and land-based resources.

Pursuing these objectives will require effective coordination. It is proposed that a “National Land Commission� be set up with the mandate to carry out land administration and management sustainably, equitably, efficiently and cost effectively. Once established, it is expected that the National Land Commission will set up the administrative systems and structures to enable it to pursue this broad mandate.

The approach adopted by the new policy is not unique to Kenya. England, which is the origin of much of our land law, established various restrictions on private rights to land to deal with the injustices of its Land Registration Act of 1925, the equivalent of our Registered Land Act. The boldness of the land policy is something worthy of celebration.

Dr Akech is a resource person in the National Land Formulation Process.

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