BY NAISULA LESUUDA
When Kenyans enacted the new Constitution in 2010, one of the crucial areas that we decided to focus on was land reforms. The key target of land reforms as enshrined in the supreme law is the recognition, protection and registration of community land rights.
It is unfortunate that land reforms have now turned into a political process that fails to respect the aspirations of the people occupying this nation. It is especially disheartening that the proposals that were derived by the taskforce on community land have now been trashed and we are presented with land Bills that do not respect the needs of the people.
In the ongoing debate, we fail to appreciate that the community land holdings system exists in over 65 percent of Kenyan land mass, which is endowed with natural resources that are being discovered for spurring economic growth. However, the communities living in these areas depend on the same community lands for their livelihoods.
Thus, gains of the recognition, protection and registration of community land rights as provided for by the Constitution are yet to be felt. Many communities, and especially pastoralists who rely on such lands, are already suffering as community land continues to be taken away from them. We cannot sit back and watch as the little remaining parcels of land continue to be taken away.
We are talking about people who have not enjoyed the freedom of owning land though they have occupied it for years. We are talking of people who have, for the lack of enforceable law, not been provided with title deeds for the land they occupy.
It is not the time to take away whatever little piece of land that belongs to these communities but the time to empower them and give them the control of this land. They should have the say on whether they want to continue administering it as a community or to divide it amongst themselves.
It is therefore curious that the Community Land Bill 2015, which purports to provide for the administration and management of community land, fails to establish a viable institutional framework for the governance of community land as it consolidates regulatory power in the Cabinet Secretary in charge of Lands.
The structure of registered community, whose establishment is provided for in the proposed law is severely limiting and does not lend itself to the expectations of the communities who had proposed a three tier inverted pyramid institutional framework, in line with the social hierarchy of the community informal set up.
The nature of community land title as provided for in the proposed law is tallied on exclusive individualistic private tenure titling without due regard to the flexible and inclusive nature in which communities hold, access, control and use community land.
The kind of community land title we as leaders from affected regions have always proposed is best suited to work with land use planning framework that involves the community in planning. We must realize that these communities take land as part of their livelihood and we cannot therefore turn it into a commercial commodity.
We see that the proposed law diverts heavily from the proposals of the taskforce as it is majorly about converting community land to other categories. The 2014 proposals had a schedule for specific conversion of public land back to community land as a way of dealing with historical land injustices.
The many squatters at the Coast region are victims of this alienation that resulted from converting community land to public land owned by the government. They were then left at the mercy of the government as they were displaced and dispossessed.
Related to this, it is unfortunate that the historical Land Injustices Bill that had been formulated by the constitutional National Land Commission (NLC) has been swallowed by the Land Laws (amendment) Bill, 2015. This former was suited to help Kenyans deal with the long-ranging illegal and irregular allocation of community land across the country.
The reason for the establishment of the National Land Commission was to help Kenyans have an independent body that would deal with land adjudication. It is therefore unfortunate that the proposed land laws are taking away the core mandates of the NLC and centralizing them under the Cabinet Secretary.
One of the reasons we started the land reforms was to decentralize land matters so as to help those who occupy land away from Nairobi get title deeds. The NLC has been working on this but political interests appear to be geared towards reverting land adjudication to the Cabinet Secretary.
The most ideal thing to do is to withdrawal the Bills that are already published and ensure that what goes to Parliament has been harmonized with the views of all those affected. It is not fair to produce laws in boardrooms and send them to Parliament for endorsement.
(Lesuuda is a Nominated Senator)