Securing Land Rights

securing Land rights

MAY 2014

Urban elites take control of agricultural land, pose danger to food security

By Arthur Okwemba

News

Uganda’s Minister for Lands, Housing and Urban Development, Daudi Migereko and his Uganda delegation during a session with USAIDS representatives in charge of land matters. Picture: ARTHUR Okwemba

Uganda delegation leaves Washington a happy lot

By Arthur Okwemba

W

F

orget about subsidized farm inputs and reliable rains, Kenya’s food security problems lies with the financially stable middle class, urban-based Kenyans who are buying and hoarding thousands of acres of fertile agricultural land.

A recent study conducted by two Professors at Michigan State University says about 53 percent of the land owned by these middle class Kenyans is not under cultivation. Yet, they are emerging as the major owners for land on which farming can be done.

Those in this class are defined as medium scale farmers who own between five and 100 acres of land.

“Few of the medium-scale farmers in our sample cultivated most of their land. Many had hired relatives as managers who look after their operations,”

Delegates follow proceedings at the World Bank Conference on Land and Poverty in Washington, DC. Picture: ARTHUR Okwemba says Prof Thomas Jayne of Department of Agricultural, Food, and Resource Economics at Michigan State University, when he released the study finding last Month at a World Bank conference.

Instead, these well resourced Kenyans who continue to live in urban areas are using their savings and good earnings to buy fertile agricultural land, but holding it for speculative purposes. Others are holding it for cultural or just as a status symbol.

Of the 300 middle scale holders who were interviewed during the study, about two thirds of them said their land is set to fetch high market prices in future.

Sixty percent of them have acquired their land through

savings or other earnings. The other 40 percent represents those who got land using their farm proceeds or inheritance from their parents. Jayne describes the latter as “relatively privileged rural-born men who were then able to acquire large landholdings as they started out their careers.”

The only difference is that those who acquired their farms through a farm-led strategy are the ones who have greater proportion of their land under cultivation.

Referred to by the study as the wealthy elites, these middle scale farmers are said to buy land and only enter into farming in their mid-life years, when they are about to retire or have retired from active employment.

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hen they left their country to the chilly weather in Washington DC to attend the World Bank conference on Land and Poverty, the Uganda delegation knew they had businesses to accomplish.

The journey was not only about learning and sharing the current developments in the land sector, particularly in regard to securing land rights, good governance around land, and using land as a key resource in economic development.

But how to raise resources to finance the land reforms in Uganda.

At the end of the conference, the country’s Minister for Lands, Housing and Urban Development, Daudi Migereko said they were happy with success they registered on two fronts.

“This has been a very important conference in helping us appreciate the importance of land and the need to speed up land reforms,” he said.

“We have also used these opportunity to meet our development partners and to indicate to them the support we need. This is very critical particularly now that Uganda has a National Land Policy that requires massive resources to implement.”

Migereko and Uganda delegation had discussions with several donors including the USAID, World Bank, World Food Program, and GIZ. The meetings discussed the country’s reform process and the need for resources to make it a success.

Besides these bilateral discussions, the delegation, together with their Kenyan counterparts, held a special session with over 35 donors interested in land matters. During the session, Uganda and Kenya made presentation on the major reforms

being undertaken in the land sector and the nature of support they would need from these donors.

“We had very fruitful discussions with the World Bank and the GIZ on how best to move forward on the many reforms we have lined-up,” says Migereko.

In 2013, Uganda adopted a comprehensive National Land Policy that addresses nine priority areas. These are: n Establishment of NLP

implementation Unit

n Capacity building and training n Women’s access and secure

rights to land n Institutional reforms n Land tenure reforms n Legal and regulatory reforms n Research, studies and land inventories n Policy and Constitutional reforms

In the first three years, the country requires US$ 77 million to successfully put in place structures and implement the activities related to these nine priority areas.

So far, the country has secured a World Bank CEDP funding to a tune of $54 million for land sector.

This money will be disbursed over a period of 10 years (2013-2023).

The money is not part of the US$ 77 million needed to implement other land reforms.

“Land reforms have to happen at all cost because without resolving people’s uncertainty over land and secure tenure, we are going to affect production related to this sector,” says Migereko.

At the moment, the country is putting in place structures required to enable the smooth implementation of the National Land Policy.

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securing Land rights

May 2014

News

Legal experts warn of bad deals for communities in mineral rich areas

By AWC Writer As Kenya and Uganda race against time to get the new-found oil and other minerals exploited, serious concerns are emerging on the nature of compensation the communities leaving on these lands are likely to get.

Legal experts are raising the red flag that without the necessary legislations that grant communities land rights and define benefit sharing, communities existing on land where minerals lie will be left worse off when exploitation begins.

A lawyer working with the United States government, who requested anonymity because he is not authorized to speak to the media, said they are worried that Kenya and other countries in East Africa are rushing to displace populations to exploit minerals without proper legal frameworks in place. These frameworks should stipulate the rights of communities and clear processes of how they will be compensated.

In Kenya, the Natural Resources (County Royalties) Bill, 2013, which proposes that communities share five per cent of the benefits accruing from mining, with 20 per cent of the proceeds going to the county government, and 75 per cent to the national government, is yet to be enacted.

So is the Community Land Bill which

among other things gives communities greater bargaining power and speaks to the issues of compensation of communities on whose land the minerals exist. The other bill that might also speak to this issue is the Evictions and Settlement Bill which is also waiting enactment.

In Uganda, while the 2013 National Land Policy recognizes the rights of communities in cases of mineral exploitation, a law is yet to be put in place to provide a framework on how to deal with and ensure full compensation of the communities that are displaced from land where the minerals exist.

Addressing donors who support land related reforms and investments at the recent World Bank conference on Land and Poverty in Washington, DC, the Kenyan and Ugandan authorities said that sometimes if they wait for the law to be in place, economic progress will be hurt.

“These are very difficult decisions we have to take as governments if our countries are to progress. Economic progress should not be hampered by lack of law,” said Ugandan Minister for Lands, Housing and Urban Development, Daudi Migereko.

He added that “there is however the need to ensure even without some of these laws, mechanisms are put in place to

Prof Patricia Kameri-Mbote, Dean Law School, University of Nairobi (on the right) addressing donors at the World Bank Conference on Land and Poverty. Looking on is Hon Charity Ngilu. Picture: ARTHUR Okwemba result in sufficient compensation for the displaced communities.”

His counterpart, Charity Ngilu of Kenya told the donors at the same meeting that the Community Land Bill is now ready to go to parliament for debate and enactment.

Dr Gregory Myers, the Chief, Land Tenure and Property Rights Division, USAID told the Kenyan and Ugandan delegation at the conference that the United States government does not support forceful displacement of communities to pave way for mineral exploitation. He said this will have a bearing on how the US government supports land reforms in these countries.

“There has to be sufficient compensation mechanisms that ensure the communities being displaced are not left worse-off than they were before the entry

of the mining companies,” he said.

“Anything that does promote prior consent and discussion on this matter will not receive our support,” he concluded.

Although he did not specify actions that the United States might take if communities are forcefully displacement and poorly compensated; it seemed the US government will be unwilling to support the ambitious land reform plans of Kenya and Uganda if action is taken.

The question for now is, what is sufficient compensation? Currently, communities in Turkana and Tana River are negotiating with investors, some of whom have highly specialized lawyers on such matters. The fear is, these lawyers might get a better deal for the companies, while the community, which might not have highly specialized lawyers, get a raw deal.

Joint ownership is just half of the deal for women

By Arthur Okwemba

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oes recognizing a woman on the title deed as a co-owner of property lead to gender empowerment and protection of women rights? This is a question that generated intense debate at a recent World Bank Conference on Land and Poverty.

While having both spouses’ names on the title deed is a desirable outcome, land experts argue that it is not a sufficient condition to lead to the empowerment of women as many may think. Other factors, rather than joint ownership, determine gender empowerment, they note.

Even with the woman’s name on the title, the gender relations seems to play a greater role in determining how she will use the title to either borrow money or engage in other empowering investments.

Invariably, culture bestows upon the man the power to decide how the title deed will be used, making it difficult for the wife to enjoy the benefits of having her name on it.

“The man seems to have veto powers in cases of co-ownership of property and will want the woman to support him when using the title to get something, say a loan, but not vice versa,” says Timothy Ouma, a land rights advocate.

Even land experts who have used various strategies to get men to accept joint ownership

of property seem to question its impact in advancing the wellbeing of women.

Take the case of Tanzania where men were promised discounts on the cost of the title only if they included the name of the wife or a female as cotitle owners. They respondent positively, with the inducement resulting in many women registered on titles.

“The conditions resulted in making men to agree to have their wives or females names on the title deeds they were getting, meaning simple nudges have impact on female empowerment in land title programs,” says Stefan Dercon, Oxford University while speaking to delegates at the conference.

The question however is, “while we got more women to be joint owners of the property, can we be confident that this led to real empowerment of women,” poses Dercon.

Prof Patricia Mbote, the Dean of Law School, University of Nairobi, says the power imbalances and refusal by men to give women autonomy to make decisions makes it difficult for women to exploit their status as joint owners of property.

“Men in most of the communities, supported by the patriarchal system, are the decision makers on important matters including the title deed.

Women will therefore be happy if they are on a title, and that is where it might end.”

But Prof Mbote is fast to add that having a woman as a joint owner is a first step in the right direction to gender justice and empowerment. “While the joint ownership might not offer immediate empowerment, in our context, it is likely to protect many women from dispossession by relatives when the husband dies.”

Judy Adoko of Land and Equity Movement in Uganda concurs. She however thinks the best design is to have family titles, and not joint ownership, particularly in communities where customary law is practiced. “The more you push for individualization of title deeds, the higher the likelihood of leaving women and their children worse off. Family title will protect the rights of children as well.”

While power dynamics and gender relations are likely to make it difficult for women to enjoy the benefits that come with joint ownership of property, it is not all gloomy. There is anecdotal evidence where gender sensitive men have supported their wives or female partners to use such co-owned titles to realize their dreams.

The only challenge is in communities or families that have very strong patriarchal system.

In such settings, having a woman as a joint owner might not result

in the desired empowerment outcomes.

What is then is the best way forward. One school of thought argues that for women to realize full empowerment in regard to property rights, titles to ownership should be solely in their names. Only when this happens can a woman make independent decisions on what to do with land or any other property without her decision being varied by a male counterpart.

Indeed, a 2010 study conducted in Burkina Faso found that women who had titles solely in their names had much power in deciding what to plant and when to sell the harvest. In such homes, the study found, children were healthy as the women took decisions to plant crops that were high in nutritional values.

“Evidence shows that increased women control of assets positively impacted on the children’s nutrition, education and her own empowerment,” said Mara van den Bold, a Research Analyst in the Poverty, Health, and Nutrition Division at the International Food Policy Research Institute.

This might be one of the reasons why land experts and gender advocates have beseeched Kenya to ensure a strong gender dimension, where single mothers and windowed women, have titles in their names. The Jubilee government plans to issue three

million titles in the next four years, but the issue of gender seems not to come out strongly.

Speaking at the recently concluded World Bank conference on Land and Poverty, Charity Ngilu, Minister for Land, Housing and Urban Development, said that of the title deeds the jubilee government has given out so far, close to 50 percent of them are in the names of women.

Her Uganda counterpart Daudi Migereko said in Uganda, close to 30% of the titles are in the names of women. But land experts from the two countries seemed to disagree with these figures, with those from Kenya saying the percentage is less than 10, while those from Uganda putting the figure at less than 20%.

A recent study conducted in Uganda by Orlova Nadege and Sarah Kulata found that only 8 percent of the titles were owned by women, another 8 percent were jointly owned with husbands, and 30 percent were owned by men.

The researchers said they are witnessing more spouses agreeing to joint ownership of property and supporting each other to use the title productively. But this is happening in communities that have been sensitized on the importance of joint ownership and in families where men have positive attitude towards female empowerment.

AWC-Feature

securing Land rights

Poor people shun title deeds due to costs and bureaucracies

By Arthur Okwemba

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and experts have warned that the high costs and bureaucratic process associated with accessing a title deed is going to sink the poor deeper in poverty, despite the political talk on eradication of the same.

They warn that some of the programmes around land being implemented in East Africa might not deliver the transformation in the livelihoods of the poor people despite the millions of shillings invested in them.

Giving a key note speech at the World Bank conference on Land and Poverty in Washington DC, Stefan Dercon of Oxford University said some of the programmes designed to secure land rights for the poor people “are likely to lead to something like a white elephant”.

Citing Tanzania, he said the move to use titles to empowering poor people has not worked well, with handful of them having received this vital document since the enactment of the 1999 Land Act. “In Tanzania, 15 years of providing the poor people with Certificate of Right of Occupancy has not worked, with only 3 per cent of

those in the unplanned settlements with titles,” said Dercon.

The cost and bureaucratic processes are the two key factors hindering poor people from acquiring secure tenure, he said.

In Tanzania, Stefan noted, a person has to go through 12 steps to get a title. The other prohibiting factor is the cost, with poor people living on less than two dollars a day unable to raise the over US$ 200 required to get a title.

Dr Muhammed Swazuri, the Chairman of the National Land Commissioner concurred that these are challenges being experience in Kenya as well.

A Kenyan looking for a title deed has to go through 14 stages to get one. Each of the stage costs money, which cumulatively calculates to a figure that is higher than what the poor person can afford.

The situation gets even tougher in families where there are complex traditional transfers of land or where succession has to be done first before families start engaging with these stages.

The cost and many stages, land experts content, disenfranchise poor people in such situations from seeking to have title deeds.

So is the corruption, where a

continued on from 1

About 57 percent of them were formerly or currently employed in the public sector; 83 percent had held other jobs other than farming; and they started farming with about 23 hacteres. Majority of them acquired their land between the 1990s and 2000s.

“Many of these farmers lived, and continue to live, in urban areas.

They are relatively well-educated,” the study says.

During the presentation of the study, Odenda Lumumba, the Coordinator of Kenya Land Alliance said many of the former or current public servants acquired their land using corrupt money stolen from government coffers.

Others were given the land by former regimes as a political incentive to get them support and defend the government of the day.

A considerable number had or have no interest in farming.

Although the researchers were not overt on this matter, they skillfully touched on it in their study. “Medium scale farmer growth is the outcome of political and economic processes related to land administration,” says Prof Milu Muyanga, the co-author of the study.

He further hypothesized that the purchases of land in the 1990s might be linked to structural adjustment programmes that saw many civil servants retrenched.

Those who got the popular golden handshake might have gone into

News

May 2014

3

Hon Charity Ngilu, Minister of Land, Housing and Urban Development and Kenya delegation in meeting with the World Bank team to discuss land reforms in Kenya. Below: Dr Mohammud Swazuri, Chair of National Land Commission speaking at the World Bank Conference on Land and Poverty. With him are fellow Commissioners.

Pictures: ARTHUR Okwemba

person has to bribe at every stage to get things moving.

These factors are some of the reasons that might explain why only 5.6 percent of Kenyans have managed to get title deeds in the past 50 years of independence.

In Uganda, the situation is even worse, with only half million of Ugandans having title deeds since the country gained independence.

“Poor people are willing to get titles if the cost is affordable and the processes less bureaucratic.

The current system is good for the bureaucrats and not for the poor people,” said Dercon.

Dr Swazuri said the Commission is exploring ways to reduce the stages one goes through to acquire a title to about half.

“We are seriously looking into this matter. But there are areas where the Commission, together with the Ministry of Land, Housing and Urban Development,

can help, but costs such as survey fees, might be beyond us.”

Ibrahim Mwathane of Land Governance and Development Institute agrees that the current systems designed to deliver land rights for the poor might not be the solution to the problem due to the complexities and cost of the system.

This means that while many countries like Kenya, Uganda and Tanzania talk about transforming the livelihoods of the poor people with the provision of title deeds, this is not likely to work with current system of titling.

One of the interventions land pundits think can help the poor

enjoy secure tenure is for the government and donors to heavily subsidize some of the costs associated with titling.

They are now exploring various methods that would result in increased uptake of title deeds among the poor such as the voucher system. In Tanzania, the use of vouchers where poor people were given discounts on the cost of acquiring titles, witnessed an increase in demand for title deeds.

“People are more willing to get the title when they perceive the cost to be bearable and within their means,” said Dercon.

AWC-Features

farming.

These acquisition and growth of middle scale farmers has serious implications if not managed well.

While Jayne and Muyanga agree that the middle scale farmers have high possibility of increasing food productivity, they are fast to add that: “Continued rapid alienation of land to medium- and large-scale investors is likely to exacerbate localized land scarcity, restrict the potential of smallholder-led development, and put unrealistic pressure on the non-farm economy to absorb Africa’s rapidly rising labor force.”

Jayne in particular warned of a major political problem if this issue is not tackled now. “In the next 10 years, there is going to be unprecedented number of people in rural areas entering into the labour market. If agriculture is not viable to absorb them, they will be a major political problem to Kenya and other African governments.”

Compared to other countries in sub-Saharan Africa, the study found Kenya’s agricultural land is shrinking and it will require the government to provide alternative employment opportunities for young people.

The other implication is that as the wealthy Kenyans acquire agricultural land, the small holder farmers are finding it difficult to find land to buy or if it is available, the cost is exorbitant.

Unable to acquire land, they have resorted to further subdivision to accommodate more family members and other farming activities.

According to the study, between 1994 and 2006, the proportion of Kenya’s farms smaller than one hectare rose from 44.8 to 67.2 percent.

This means to break into the commercialized medium scale farming, small scale farmers have to use other sources of income than proceeds from the farm.

Equally worrying is the government’s policies around agricultural production which are modeled around these middle scale and large scale farmers, posing a great danger to food security.

“You cannot realize significant positive changes in poverty reduction, when the very people you are trying to help are bypassed by enabling policies,” says Jayne.

“Over 90 percent of the Kenya’s subsidies on inputs go to big farmers, with little consideration for the small scale farmers.”

Amplifying this uncomfortable situation, Prof Muyanga cautions food security will remain a pipe dream in Kenya if the country continues to pursue agricultural policies that are not pro-poor.

“What is more worrying is that the focus of the subsidies and purchase of produce is mainly in

one region of the country, the Rift Valley,” he said.

The researchers said that in the past 30 years, those who were in-charge of the Ministry of Agriculture portfolio have been predominantly from the Rift Valley region.

Hence they have designed food production and marketing policies around the medium scale farmers who control farming in the region.

This is to the detriment of the small-scale farmers in other parts of the country.

While these policies favour medium scale farmers, the problem is, not all are interested in farming, with those farming using just a little proportion of their land for that purpose.

But acquisition of land by the wealthy elites is not a bad thing if the land is put to full utilization.

In its conclusion, the report says: “Trends in the performance of medium-scale farms are hence likely to have a major impact on overall agricultural performance in these countries (Kenya, Ghana, and Zambia), and this impact is likely to become stronger over time.”

The study shows that productivity increased as farmers moved into medium class category.

This, the authors of the study note, might require policy and strategy change, if further studies show medium scale farming to be more viable than small scale farming.

Urban elites take control of agricultural land, pose danger to food security

“The rapid rise in the number of farms in the 5 to 100 hectare category represents a relatively hidden but revolutionary change in farm structure, reflecting increased investment in land by relatively wealthy urban-based individuals,” says Jayne, while presenting the study findings at a recent World Bank Conference on Land and Poverty.

The researchers warn that the country is focusing on large scale farmers, when the real problem is the middle class Kenyans who are now the leading owners of agricultural land.

“The Land under control of medium scale farms exceeds that of large scale farms both foreign and domestic,” says Prof Jayne.

In the past couple of years, the number of Kenyans acquiring between 5 and 100n hectares has been increasing at a rapid pace.

Currently, the middle scale farmers own 0.84 million of land compared to 0.64 million hectares of land owned by combined foreign and domestic large scale farmers.

A significant percentage of those in the middle scale farmers level are either former or current civil servants. “A majority of farmers sampled followed a particular pattern: they were predominantly men, their primary jobs were in the non-farm sector, and they were mostly employed in the public sector,” says Jayne.

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securing Land rights

May 2014

EDITORIAL

Time is now to guarantee land rights to all and sundry

News

Any documentation of customary land system should improve, and not dilute it

By Judy Adoko

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n the past five years, incredible discoveries of minerals and other valuable stones have been made in East Africa, triggering a clamour by multinational companies to control the exploitation of these precious minerals.

While the discovery of the minerals is a very welcome and promising development in a region where economic development has depended heavily on the erractic agricultural production and the unpredictable tourism industry, the challenge is how the new found wealth will be exploited and shared.

Currently, of concern is the communities leaving on the land where this mineral have been found, and who enjoy surface rights, do not have security of tenure to prove ownership and basis for negotiating for higher compensation amounts.

This has triggered panic and fears that these communities might not get sufficient compensation for their land or be forcefully removed from such prime lands. In Kenya and Uganda, two countries where massive exploitation of these minerals is expected to begin in the near future, there is no legal framework providing how the communities who exist on the lands where minerals lie will be compensated.

Kenya’s Natural Resources (County Royalties) Bill, 2013 and Community Land Bill, which protects these communities in matters related to use of natural resources and benefit sharing, are yet to be enacted. In Uganda, the legal frameworks to operationalize the 2013 National Land Policy are just being developed.

Without these legal frameworks, it is indeed worrying if the communities living on mineral rich lands will get sufficient compensation or humane displacement to pave way for mineral exploitation.

The United States through Dr Gregory Myers, the Chief, Land Tenure and Property Rights Division, USAID, has already send a warning that it will not support any country that either forcefully removes populations from such mineral rich land or fails to adequately compensate them.

Besides the mineral exploitation, the broader issue of security of tenure as a precursor to accelerated economic redevelopment and poverty reduction need to be considered with the urgency it deserves. Majority of the people in Kenya, Uganda and Tanzania have no title deeds.

This has made it difficult for poor families to use their land assets as collateral to get loans from banks for business or other investments.

Land experts have pointed at the bureaucratic, costly, and corrupt processes of acquiring a tile deed as the cause the current disturbing situation. It is unacceptable that in Kenya, Uganda and Tanzania, a person seeking a title deed has to go through not less than 10 stages to get one. Sometimes, people take years to get this vital document that should be given as a matter of right and not privilege.

We call upon the governments in East Africa and in particular government institutions dealing with land matters to address the issue of security of tenure urgently. Legal safeguards should be put in place to protect communities living on areas where minerals have been found, particularly in the context of benefit sharing and compensations.

The three East African countries need to move fast to formulate and enact legal frameworks that are still in Bill form. There is also need to urgently review the process of acquiring a title deed in order to make the document accessible to all and sundry.

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ocumenting customary land laws is one of the most important interventions that land experts support in regard to safeguarding the land rights of communities, women and children. But the problem is, the word documentation has not been interrogated sufficiently in the context of customary land laws. What does documentation really mean? On reflection, there are three different “types” of documentation of customary land rights, which are discussed below.

Documenting only customary rules In the first 7 years of LEMU’s work, LEMU documented customary land rights and management of the people of Lango, Teso, Acholi and Kumam. This work involved traditional institutions who researched and investigated the oral customary land management and rights for purposes of putting them into writing. The original intention of LEMU was to work with the district councils to have these customary laws termed Principles, Practices, Rights and Responsibilities (PPRR) passed as “ordinances” under the Local Government’s Act. Fortunately, and with hindsight we were pleased that we did not succeed to have the PPRR passed as ordinances.

The procedure to have this done was expensive and time consuming.

Therefore, the documentation of the PPRR was purely putting customary laws and management in writing, which until then were oral.

In this first documentation, only two things changed – a) the same oral laws became the same written laws; b) one practice (where the traditional authorities could not say with confidence was their law that contradicted the Constitution was changed. This was the freedom a widow was to enjoy in regard to choosing the man to inherit her.

The PPRR stated that the widow could pick a man from within or outside the clan because limiting her choice to the clan would have been unconstitutional.

Apart from the two changes, everything – the governance and the land rights of customary tenure remained the same. If the traditional institutions later wanted to change the laws, they would convene and change the laws.

Delegates keenly follow proceedings at the World Bank Conference on Land and Poverty in Washington, DC. Picture: ARTHUR Okwemba Documentation that leads to Codifying of customary rules The second type of documentation would have been to have the PPRR passed into an ordinance as “state law”.

The other term for this documentation is “codification” of customary law. A lot has been written about codification of customary laws, giving pros and cons. The major change in this type of documentation is that customary law becomes “state law”.

The responsibilities to amend or change the laws then become part of the state responsibilities, and not that of the traditional institutions. The application of it in courts could also give precedence that the traditional authorities might not have wished for. Over time, this documented PPRR will most probably lose its identify as customary law. The greatest challenge though is that it is highly unlikely that the district councils would have amended the PPRR as they were not the original authors.

Documenting rules and registering owners as legal entities to acquire titles The last type of documentation is what Land and Equity movement in Uganda is attempting to do in the Community land Protection Project – CLPP or indeed what happens when customary land tenure is documented as a title or Certificate of Customary Ownership (CCO). For the latter, which governance system applies, the law is not clear.

In this documentation, customary law that is oral is documented for the purpose of registering the owners of the land as legal entities before they can acquire either a title or a CCO. What is the implication of registering for incorporation under the state law and what is the effect of acquiring a title or CCO? In my opinion, this documentation has the potential to change customary land rights and management in the following manner: If owners are left out of the title, and it is very likely because the educated people would have an advantage over the illiterate in this process, they lose their land rights. The rights would have therefore changed in the sense that whilst under customary tenure they had

rights, under the documentation, they have lost land rights.

While under customary land the owners are owners with equal rights. If the incorporation is under the Land Act or the Trust laws, the owners become beneficiaries and, if the trustees are corrupt, at the mercy of the trustees.

The transactions on land are no longer governed by customary laws but by state laws. For example, for any sale of land the stamp duty would need to be paid and the clans no longer give consent or oversee the sale. In case of death of one of the owners in the title, or the death of one of the trustees, letters of administration would be necessary to make the transfer of the title or the change in the name of the trustee. Under customary tenure the procedure would be much simpler.

So, in effect, this last documentation seems to change both the land rights and the management of customary tenure.

If this reflection is correct, would this documentation not tantamount to “conversion of customary tenure?” that our newly approved National Land Policy (approved in February, 2014) has abolished?

Do we honestly believe that in a community who are predominantly illiterate that this last type of documentation will protect the land rights of the community? Are we not setting them up for elite capture and eventual loss of land rights?

I leave the readers to arrive at their own conclusions. My recommendation is that all stakeholders who are advocating for documentation of customary land note the differences above and choose one that is not against our National land Policy that was passed with the approval of all Ugandans for the protection of customary land tenure as a system - a system that is alive in 99 percent of the greater north of Uganda and is good for the poor. We believe that the best documentation is one that improves on customary land tenure system but keeps it within the customary system and does not convert.

This is what our new land policy is also about.

securing Land rights

News

May 2014

5

New wine in old wine skins:

a case of failed or still born land reforms

By Prof. Patricia Kameri-Mbote

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s the country struggles with the massive wage bill, another time bomb that seems not to be making headway is the land issue. One thing is clear, the 2010 Constitution and its precursor, the National Land Policy 2009 are yet to deliver what Kenyans clamoured for in the land sector. The land issue is a core part of the political, economic, social and legal ethos of our country. Newspaper reports are awash with laments on the failed reforms. The current attacks by the Chair of the National Land Commission on the Cabinet Secretary indicate that there is trouble at Ardhi House. We all know that the land issues need to be dealt with for social, economic and political reasons.

Both the Constitution and the National Land Policy have proffered solutions to deal with the problems. Unfortunately, we are yet to realise the promises of these documents, namely: tenure security for all land holders; transparent, cost effective and responsive land administration and management systems; conservation and protection of ecologically sensitive habitats; and elimination of gender discrimination in land matters.

Land therefore remains a very explosive issue. It was the point of content ion in the independence struggle and has formed the subject of various commissions of inquiry at different junctures including the aftermath to the 2007-2008 Post-Election Violence.

The expectation would be that four years after the promulgation of a most progressive Constitution devoting space to land issues, we would now have moved from the biblical Egypt to Canaan. Yet this is not the case. One might say that the more things change, the more they remain the same.

The key question is the extent to which the normative and institutional changes have altered the operations in the land sector for the better as defined in Kenyans’ clamour for land reforms. Have they delivered security of tenure

for individuals, communities, women and youth? Are they securing our critical wildlife habitats? Is there synergy in the institutional framework designed for their implementation?

These are hard questions that must be answered in light of what I consider a very radical moment in 2010 when Kenyans decided that it was not enough to devote one section to property in the Constitution and devoted a whole chapter to land and environment.

This was in addition to provisions on security of land rights in the Bill of Rights and provisions on dealing with land holding by non-Kenyans. In my view, the independence Constitution dealt with land in a very timid way compared to the 2010 Constitution.

Kenyans knew what they wanted and they ensured that this found its way into the 2010 Constitution which devotes considerable attention to provisions on tenure security for all; reversing illegal and irregular allocation of public land; linking land rights to productivity and sustainability; and redressing dispossessions predicated on gender and other marginalizations. The inertia in the implementation of the changes required by the Constitution is, in my view, attributable to putting new wine in old wine-skins. If this is not addressed, the reforms may not see the light of day.

The problematique is at the normative and institutional levels.

At the normative level, there are two issues - using land rights to achieve broader goals of justice and equity on the one hand and protecting legal titles to land however obtained to serve utilitarian purposes.

The latter supports the protection of land rights for protection’s sake while the former (supported by the Constitution and Land Policy) seeks to restructure land rights’ holding taking into consideration the gross disparities in land ownership and gender and

trans-generational discrimination in succession, transfer of land and land decision making processes.

The laws passed under the Constitution have not addressed these issues adequately. It is for instance, a matter of great concern that while the Constitution provides for three categories of land holding – community, public and private – there is still no law governing community land which is documented as larger than private and public land.

Related to this is the fact that tenure to this land has historically been very insecure prompting some communities to defensively register their land as private land changing the way in which the land is held. In pastoral areas, this has created tension between pastoral and other incompatible land uses such as settlement and agriculture.

Another issue of concern is with regard to elimination of gender discrimination in matters related to land. While the Constitution is clear on the principle of gender equality and the requirement that matrimonial property should be recognized and protected during and on the termination of marriage, the Matrimonial Property Act passed by Parliament blatantly contravened these requirements. It takes us back to the position where a spouse needs to establish their contribution to the acquisition of the matrimonial property to benefit from it, a very problematic situation that has seen women being described by judges as ‘being on their husbands’ backs with their hands in the husbands’ pockets’.

The inclusion of the principle of equality should have informed the law and provided for division of matrimonial property in equal shares to avoid introduction of difference on account of gender division of roles within a marriage which leads to discrimination as some roles (normally those performed by men) are more highly valued than those performed by

women.

At the institutional level, the anticipation of Kenyans was that the National Land Commission would be empowered to carry out the functions assigned to it in the Constitution. This was hinged to the expectation that the Ministry responsible for land would work closely with the Commission in implementing the land reform agenda. Judging from reports in the media in the last year since the Commission was put in place, this has not happened. There was inordinate delay in institutionalizing the Commission during which time the Ministry entrenched its position as the main actor in the changed legal terrain on land. The Commission fitted into the space that the Ministry created for it both literally and figuratively – the Commission occupies the corner assigned to it by the Ministry and can only do what it has resources to do.

It is constantly seeking to assert its mandate and angling for resources to perform its roles.

Unless the Commission is adequately resourced, it is unlikely to effectively discharge its mandate. In the dealings between the Commission and the Ministry, we have witnessed clashes of mandate, denial of fiscal and physical resources. Some of these clashes have gone to as far as Parliament for resolution. The question one asks is whether the mis-steps on the part of the Ministry have been honest mistakes or part of a calculated scheme to ensure it is business as usual.

The Commission’s mandate is to manage public land which includes wildlife and forest habitat. It is also supposed to monitor and oversee land use planning throughout the country. We are currently experiencing great loss of wildlife through poaching and while we hear a lot being said about the need to enhance penal sanctions for poaching, the Commission is silent on what measures can be taken to secure wildlife habitat in the face of competing

to school or obtain other government services, like agricultural credit or inputs, because they are not landowners.

As a result, they lack opportunity and are vulnerable to displacement, exploitation, and calls to extremism. Without a fundamental change, their children and grandchildren face a similar future.

Creating a better and safer future for us all depends upon giving these modern-day serfs the opportunity for better life.

Land is at the center of both the problem and the solution.

Where land ownership is limited to the privileged few, poverty and

instability are much more likely to exist. But broadly providing secure land rights pays dividends. It allows desperately poor agricultural laborers to grow the food to feed themselves and their families and it facilitates economic growth, improves the status of women, improves environmental conservation, and prevents unrest and conflict.

Consider Shakti’s tiny field of dreams in a small village in the Chitoor district of India’s Andra Pradesh. As a landless farm laborer, Shakti earned less than $1 a day.

She and her children lived a life of hunger and vulnerability.

Then, with the help of a govern-

ment subsidy, she was able to buy a tiny plot of land to live on and farm.

Now, her plot provides her and her family with fruit, vegetables and a small income that has allowed her to take her children out of the fields and put them into the classroom.

Recognizing the potential, a handful of Indian states have launched micro-plot-with the understanding that plots as small as one-tenth an acre can help families bootstrap themselves out of extreme poverty.

The democratic, market-friendly programs that rely on distributing government owned land when it is available and private land

The Case for Land Rights

and more lucrative land uses.

Similarly, the Commission should contribute in guiding the country on how to achieve and maintain a tree cover of at least ten percent of Kenya’s land area.

Unless the institutional foundation of the Commission is solid, it will continue to concentrate on mundane contests and issues denying the Kenya Wildlife Service and the Kenya Forest Service much needed guidance on issues related to land.

If land reforms are to deliver what the Kenyans expect effectively and holistically, the normative and institutional incongruences need to be addressed taking into consideration economic, social, cultural, environmental, political and ethical dimensions. Land is indeed a very critical resource in Kenya, has multiple values, and as the basis of Kenya’s territorial sovereignty, needs to be addressed in such a way as to secure those diverse values.

More fundamentally, land has to be dealt with in a way that embeds the greater public interest which is the maintenance of the country’s social, political and economic integrity for the best interest of all Kenyans. Other broad issues that require consideration relate to fairness, inclusion and equity.

There are categories of persons that have been excluded from land ownership and access such as women and youth.

It is important that these categories are addressed in land reform programmes. Pastoralism as a land use has also been marginalised despite its persistence and it needs to be addressed. Forest dwelling communities have also been marginalised in development policy discourses. Moreover, if we value our wildlife and forest resources, it is imperative that we provide habitat to sustain them.

Design new ones to nurture and cushion the gains in the Constitution with regard to land.

Prof Mbote is Professor of Law and Dean, School of Law University of Nairobi

By Tim Hanstad

M

ore than one billion of the world’s poorest people share three traits: they live in rural areas, rely on the land to survive, and they lack secure legal rights to the land on which they depend.

Most either toil in other people’s fields for pennies a day or struggle on land which they temporarily control, but insecurely — with the constant threat of displacement.

The coins they earn can never stretch far enough to allow them to buy their own plot, and they have little long-term incentive to improve the plot they currently farm.

Often, they can’t send their children

bought at market rate when it is not, have helped hundreds of thousands of Indian families escape extreme poverty.

Still, too few countries are tackling the issue of land rights. Yes, it’s difficult to implement land rights programs that provide broader access to the poorest, stronger rights for all, and harnesses the power of markets.

But it can be done.

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securing Land rights

May 2014

News

Context is Crucial for Impacting Land Rights

By Dr. Jolyne Sanjak

W

hen people like me speak about land rights and access or when we write project descriptions for advocacy and research pieces, we typically will assert that strengthening the security of land rights through measures like land titling is important to achieving rural development goals such as increased yields, investment, environmental conservation, and access to credit.

While there is clear evidence, in my view, to support this story line, I’m also convinced that, in both theory and practice, the type and magnitude of impact is context-specific.

The particular issues that need attention, the particular solution tools, and the particular expected results vary a lot by context. Sometimes, there might not even be a need to intervene to improve land rights and sometimes results of an intervention may be different or smaller than expected, or even negative.

That reforms to strengthen land rights and improve land access patterns matter -- economically, socially, and politically -- to the agenda of sustainable rural development is not hard to believe if one stops to think about one’s own life and things going on

around the globe. Yet, this topic is multi-faceted, multidisciplinary, and messy. It is not only hard to simplify; simplifying too much can be unhelpful.

In opening a paper I authored recently for USAID, “USAID Issue Brief: Land Titling and Credit Access,” I say that: “People often look for the proverbial ‘silver bullet’ to take down a roadblock on the path out of poverty.

All too often, land titling is seen as this kind of solution to credit access and a means to rural poverty reduction.

Unfortunately, silver bullets of this sort aren’t found often in reality.

While land titling can help to expand access to credit in some circumstances and can be an important part of a poverty reduction strategy, in most developing world environments, the ability to leverage a title for credit is limited for a variety of reasons.”

Likewise, a new Systematic Review published by Steve Lawry and five colleagues shows how the impact of certain measures to formalize land rights such as titling affects productivity and farmer wellbeing similarly pointing out that context matters.

The review explains the complexities of land rights in a

straight-forward and relatively simple manner -- something I and others often struggle to do.

From the research reviewed (20 quantitative studies and a range of qualitative studies produced from 1980-2012 that met their standard of rigor), they affirm that strengthening land rights, including through issuing formal individual land titles, can have significant positive impacts.

These authors found that such impacts are particularly evident in the research that covers countries in Latin America and Asia. The impact of titling was less dramatic in Africa. These authors hypothesize that the lack of results rigorously detected in research on African countries might be due to relatively wellfunctioning customary and informal land rights systems, which they refer to as an ‘Africaeffect.’

Although the idea of the ‘Africa-effect’ is interesting, I think we need to be cautious in thinking this way. Even though it is likely that formalizing tenure will have little impact in settings where customary and informal tenure is working pretty well, this type of thinking would mask important variations across Africa, within each country in Africa and, in

fact, around the Americas and Asia too.

A recent paper by Benjamin Linkow posted on Landesa’s Focus on Land in Africa provides early quantitative evidence that in Burkina Faso perceptions of tenure insecurity (i.e., perceived risks of disputes) are positively correlated with large decreases in productivity.

This study is not directly comparable to the body of research that Lawry, et al. review because the recordation of rights has not happened yet in the communities that Linkow studied. His study was done very early in an MCC-supported project lifecycle; evaluations will be conducted after its program ends and will reveal more about the interventions and their success in achieving expected outcomes.

In the meantime, Mr. Linkow’s work provides one example in Africa of a country where customary tenure is still strong and often provides both social and economic security and, at the same time, where the need to harmonize customary rules and practices on land rights with statutory law and administrative practices is emerging. As rural development and demographic change happens, measures like formalizing land rights

and improving related public services matter more.

In the context of a multidimensional thing like land tenure where the specific issues and tools to resolve these need to be tailored to context, nuance matters.

Evaluations that are not careful to capture nuance in defining the intervention to be tested and the expected outcomes run the risk of being rigorously irrelevant.

I am happy to relay that more and more rigorous, relevant research is being done and it is helping us to understand better in which context a given formalization intervention is appropriate and when intervening might not be important. At the end of the day, I think we are safe in saying that the issues of land rights and access matter for small farmers even if in different degrees and ways over time and across geographies.

Dr. Jolyne Sanjak is the Executive Director of the Land Alliance Inc.

Securing Land Rights Amidst a Rising Demand for Land in Africa

By Jennifer Duncan

W

hile the vast majority of Africans rely on land-based livelihoods to survive and cite land as their most important resource, rights to this land are often unclear and insecure. Ninety percent of Africa’s rural land is undocumented and many countries lack basic legal protections for customary rights to land.

There is growing recognition, however, that weak landrelated laws, policies, and institutions have hobbled Africa’s development. What’s more, the recent trends of rising food prices and increasing demand for “flex crops” (those that can be used alternatively for food, fodder and as bio-fuels) have spurred global demand for cheap “underutilized” land.

This global demand dovetails with a rising local demand for land that can be farmed by growing rural populations. In many areas of Africa, fertile land is already in very short supply.

Quickly rising demand, when combined with outdated legal tenure frameworks, is now understood as a great threat to rural African food security, livelihoods, sustainable resource management, and even peace and stability.

These recent trends have

renewed calls from communities across the continent to have their land rights protected and documented. Rural communities are demanding greater protections for their rights, which can be achieved through improved land laws, policies and institutions.

Creating this tenure security framework is a threshold step that allows families to safely make the sort of long-term investments and improvements to the land that reduce conflict and boost food production and food security. In rural Africa, securing rights to the land for small– hold farmers—and particularly women farmers—is essential to lifting individuals, families, and communities out of poverty.

This has prompted a flurry of promising government activity supported by the development community. Mozambique, Botswana, Kenya, Uganda and Ghana are among those countries that have recently undertaken reforms to secure greater protection of customary and community lands.

The quest to map, formalize and protect community and customary lands in Africa, however, must be undertaken with great caution. As governments, CSOs, and nonprofits work to fill in the

blanks in Africa’s land tenure map, what is becoming clear is that the very actions taken to protect communities and boost investment in land, improve food security and reduce conflict – identifying, clarifying and formalizing customary land rights – can have unintended consequences that undermine the rights of vulnerable groups, compromise food security, and create conflicts between communities.

Women are among the most vulnerable in this process. They often have little, if any, ability to participate meaningfully in community-level decision making, and in some cases they are not formally considered to be members of the community at all. Very few women hold positions of power, such as traditional chiefs or elders.

Often women’s movements are restricted by customs or duties (child care in particular) that further limit their ability to participate in community efforts to clarify and protect communal or individual land rights. Concrete efforts to ensure that these community decisions occur in a time and at a place where women can attend can be helpful, but are rarely made.

Likewise, using existing representative bodies to help

identify land users can mean that certain vulnerable groups are not included in these important processes. Land use rights of women, migrants, youth and other groups traditionally excluded from customary governance bodies may therefore never be identified or recorded, and their claims and rights compromised as a result.

In many cases, titling of customary lands involves a two-step process, whereby the community’s boundaries are first mapped and recorded, and then individual or household plots within this area are plotted and recorded. But such efforts to individually title or record land within customary land governance systems often prove dangerous for women, who seldom hold primary rights to land.

For these women, access to land depends on use rights granted by their husband or father. Formalizing individual or household land rights in this context—to the officially recognized (male) landholder— can mean that the women who farm the land and depend on it to feed themselves and their families are never recorded as owners or primary users. Instead, the formalization of these household rights within a customary tenure

context can further entrench women’s unequal control over the land for posterity.

With this in mind, should efforts to clarify and establish new land-related legal frameworks, institutions, and policies in Africa be halted?

Absolutely not. As the demand for land across the continent increases, it is difficult to imagine how customary and community-held lands will be protected if they are not identified and formally recognized. But governments and the development sector should take pains to ensure that women and other vulnerable groups are not further undermined in these efforts, lest they result in more harm than good.

Jen Duncan is a senior attorney and the Africa program director at Landesa, a global development non-profit that works to secure land rights for the world’s poor women and men.

securing Land rights

News

May 2014

7

Cola Cola company to investigate land grabs in its supply chain

By Arthur Okwemba

C

oca Cola Company has announced that it is going to investigate the actions of its suppliers following an outcry over unethical practices by some of them.

The company’s Director of Global Workplace Rights, Ed Potter, said in the next six years, the organization is going to undertake studies in 30 countries to establish land rights practices of its suppliers.

The studies, which run upto 2020, come on the backdrop of several accusations about how companies that supply Coca Cola with sugar and water are engaging in behaviour that does not respect land rights, especially of poor communities.

This includes displacement of communities to acquire land to set-up bottling companies, sugar plantations or diverting water from poor communities to run the operation of these companies.

In focus are the bottling companies that are at the core of the Cola Cola’s complex supply chain and successful franchise strategy.

“Our thinking of land rights is limited to bottling companies which require huge tracks of land and access to water,” said Potter during a recent address to delegates attending the World Bank Conference on Land and Poverty.

He said that Coca Cola Company has declared zero tolerance to land grabbing and the suppliers will be required to commit themselves to this as well.

“We will no longer do business with suppliers that violate ethical land issues.

What we are now asking ourselves if we

have land grabs in our supply chain,” he said.

In the planned studies, Potter admitted that the company is likely to find “explicit land grabbing in our supply chain.”

The company has committed Kenyan Delegation at the World Bank Conference on Land and Poverty meeting some of the donors itself to respect free and prior supporting work around land reforms. Picture: ARTHUR Okwemba consent of communities before acquiring land for its activities in line with the Voluntary Guidelines before signing the financial support few community members and then hold on the Responsible Governance of Tenure agreements. discussions with them on matters of land. of Land, Fisheries and Forests developed Companies seeking loans or bonds It is then considered the entire community

by Food and Agriculture Organization need to be made to commit, by signing, has participated and agreed on their land (FAO) of the United Nations. to respect a set of human rights issues, being sold. The most excluded in such The guidelines require investors to before the deal is closed. processes are women, who play little or no ensure their investments do not cause “As a bank, we have decided to put strict role in the critical discussions. Yet, the very people to be dispossessed of their tenure requirements which have to be met by the women have a major stake in ensuring food rights. When they propose to acquire companies in land acquisition before the security and livelihoods of the family. tenure rights to land, fisheries and forests, money is released to them,” says Berry Oxfam International has established they should ensure that all relevant Marttin, the Executive Board Member that areas which are at risk of land grab people are informed and engaged in the responsible for the International Rural and and exclusion of communities in land deals negotiations.

Retail Division at Rabobank International. are those with weak governance system, But participants at the conference The Bank has launched the Green Bond high levels of corruption, and where the wondered how Coca cola is going to principles which require potential seekers communities have poor knowledge of how enforce ethical land practices among its of loans and bonds to adhere to before to safeguard their land rights. suppliers located in over 150 countries. their requests are processed.

Human rights lawyers have also During discussion at the forum, it It is routine behaviour by multinational complained that although these emerged that Coca Cola and other major companies together with their franchise multinational companies claim to have beverage and soft drink companies were outfits not to discuss with communities undertaken impact assessments, the not the only ones under scrutiny. Banks when they want to acquire community criteria they use is not based on the that lend money to companies that engage land for development purposes. current high standards of protecting in land grabbing and displacement of the “The scenario we have witnessed is community land rights. communities are too under focus. these companies talk to public officials Many get away with weak reports Land rights and human rights advocates who allocate them land without consulting because the local communities or their want banks to conduct due diligence communities,” says Odenda Lumumba of representatives have no idea of the by establishing the land dealings of the Kenya Land Alliance. new standards that have to inform such companies seeking financial assistance In other cases, these companies pick a assessments.

Need for a Fresh Radical Approach K enyans want the land reforms they clamoured for to deliver. Our Constitution is a good starting point but there is need for fidelity to the spirit and the letter of the Constitution.

The Jubilee government should honour the commitments in its manifesto on the Constitution generally and land reform specifically by ensuring that the normative and institutional framework is implemented.

It must resource the Commission to do what it is tasked to do and work closely with Parliament to ensure that laws passed do not negate Constitutional provisions.

Secondly, granting of title deeds should be predicated on land use plans to discourage speculative holding of land and sale of land by persons who ostensibly seek titles to secure land holding but sell the land without

considerations of occupation and livelihood.

For land speculators, in the event that land is not used productively and sustainably according to agreed plans, the regulatory powers of the state should be applied to revoke the title or enforce the planning requirements following democratic processes.

For those seeking land rights as a way to secure occupation and livelihoods, there should be fetters to wanton selling of land in the first five years after acquisition of title.

Thirdly, the governance, administrative and management of land should be streamlined to enable citizens to access land information easily and enable them to assist the state in detecting and dealing with unproductive and unsustainable use of land.

Finally, there is need to take stock of the normative

and institutional tenets of the Constitution relating to land and evaluate their realization with a view to identifying the barriers to the attainment of the land reform as envisaged in the Constitution and the Land Policy.

Uganda delegation during one of the meetings with donors to discuss land reforms in Uganda. Picture: ARTHUR Okwemba If the old wine-skins are unable to contain the new wine, it is probably time to discard them and design new ones to nurture and cushion the gains in

the Constitution with regard to land.

Prof Mbote is Professor of Law and Dean, School of Law University of Nairobi.

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May 2014

securing Land rights

News

Kenya’s agriculture policies hostile to poor farmers

By AwC Writer

L

and experts at a global forum have torn into shreds Kenya’s policies around agriculture saying they are missing the mark in uplifting the poor people from poverty.

A new study conducted by two researchers from Michigan State University on the country’s land ownership system and policies that guide food production show that those enjoying subsidies on inputs such as seeds and fertilizers are not the small holder farmers, but the medium and large scale farmers.

And when it comes to harvesting time, the public funds that are channeled to National Cereal and Produce Board to buy maize for strategic reserves benefit the already well-off farmers.

Presenting the study findings at the World Bank Conference on Land and Poverty in Washington, DC., Thomas Jayne of Michigan

State University said: “You cannot realize significant positive changes in poverty reduction, when the very people you are trying to help are bypassed by enabling policies.”

“Over 90 percent of the Kenya’s subsidies on inputs go to big farmers, with little consideration for the small scale farmers,” he added.

Dr Milu Muyanga, who was part of the research team, said food security will remain a pipe dream in Kenya if the country continues to pursue agricultural policies that are not pro-poor.

“What is more worrying is that the focus of the subsidies and purchase of produce is mainly in one region of the country, the Rift Valley,” he said.

The researchers said that in the past 30 years, those who were in-charge of the Ministry of Agriculture portfolio have been predominantly from the Rift

Valley.

Hence they have modeled food production and marketing around the medium scale farmers who control farming in the region.

This is to the detriment of the small-scale farmers in other parts of the country.

The researchers found that while the policies favour medium scale farmers who own between 5 and 100 hacteres of land, not all in this category are putting to use their agricultural farm. About two thirds of their farms were not put in productive use but held for speculative purposes, posing a challenge to increased output of the sector.

This means the country is not utilizing its agricultural land at optimal levels, which is a prerequisite for food security and employment creation. It is a scenario the Michigan State University researchers said is worrying.

“In the next 10 years, there is going to be unprecedented number of people in rural areas entering into the labour market. If agriculture is not viable to absorb them, they will be a major political problem to Kenya and other African governments,” said Jayne.

Jayne further warned that compared to other countries in sub-Saharan Africa, Kenya’s agricultural land is shrinking and it will require the government to provide alternative employment opportunities for young people.

But an interesting aspect of the study is that 60 percent of those who are now medium scale farmers are mostly over 40 years of age and former or current working class who have purchased farms using savings made from their white color jobs. Majority of these farmers live in urban areas and not on their farms, leaving farming activities to be led by relatives.

When analyzed further, 68

percent of those classified as medium scale farmers were former or current civil servants.

Majority of them said they acquired their land in the 1990s and 2000s.

The researchers hypothesize that the purchases of land in the 1990s might be linked to structural adjustment programmes that saw many civil servants retrenched. Those who got the popular golden handshake might have gone into farming. But other thinks is a confirmation of looted money from public coffers channeled to buy land.

According to Jayne, increase in medium scale farmers is not a bad thing if the land is put to productive use. Their study shows that productivity increased as farmers moved into medium class category. This, he notes, might require policy and strategy change, if further studies show medium scale farmers to be viable.

Uganda and Kenya delegates to the World Bank Conference on Land and Poverty when they were hosted for dinner by Ford Foundation and Landesa. Pictures: ARTHUR Okwemba

The Case for Land Rights The fact is, secure land rights enables sustainable structural reform. Education, health, micro-credit, and a variety of other smart aid interventions are all made more effective when families have secure rights to land. Anyone working in international development – from NGOs to governments – should partner with experts who are working to advance secure land rights, especially for women, into their own poverty reduction and growth strategies in order to achieve systemic change, not just

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short-term relief.

The tools necessary to do this are increasingly available. The UN’s Food and Agriculture Organization established an on-line database which offers up to date information on the status of property rights in almost 80 countries.

The UN’s Global Land Tool Networkpromotes the issue of land rights and tenure security.

USAID’s Land Tenure and Property Rights Portal provides country-specific land tenure and property rights issues. The Mille-

nium Challenge Corporation, and the World Bank continue to expand their land rights work. And WRI and Landesa have partnered to create the online tool Focus on Land in Africa, which helps development practitioners working in Africa recognize and understand the influence of land tenure in their work.

Landesa also supports Landwise, a free on-line library of women’s customary and formal land rights around the world. Landesa has also launched fellowships to expose more professionals around

Contributors: Arthur Okwemba, Judy Adoko, Prof. Patricia kameri-Mbote, Tim Hanstad, Dr. Jolyne Sanjak and Jennifer Duncan

the world to the issue of land rights and women’s land rights in particular.

But more needs to be done.

Countries such as Liberia, which is stymied in its recovery by extreme conflicts over land, need to be supported in their efforts to build effective dispute resolution institutions to deal with the millions of cases of conflicting land ownership claims that normally arise following a conflict.

Other countries, such as Pakistan, need to be supported in their

Design & layouT: Noel Creative Media Limited

efforts to diminish the siren call of extremists through broad-based economic development based on pro-poor land rights programs.

At the same time, corporations working in developing countries can speak with government leaders in the countries in which they work about the need for broad-based land ownership to encourage stability, broad educational gains, and the type long-term growth that will benefit everyone’s bottom line.

Tim Hanstad is President and CEO of Landesa.

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