By Dominic Leparmarai.
SEDF Legal Adviser

LAND CATEGORIES IN THE DRAFT CONSTITUTION

THE COMMUNITY LAND AND PUBLIC LAND
The colonial capitalism led to marginalization of pastoral communities at the expense of agricultural expansion. There are a number of legislative changes introduced by the colonial state, which negatively impacted on the livelihoods of pastoral communities. These include the Cattle Diseases Ordinance of 1902 which prohibited pastoralists from free movement with their livestock, and the establishment of protected areas/national parks and forests. The other historical injustices against pastoralists included: displacement and dispossession by colonial and post-colonial government; inappropriate land tenure system for common pastoral lands; i.e. introduction of so called “Trust Land system”. In Samburu district for example in the current constitution 77.8% of land is considered as Trust Land, 10% Private land and 12% Government land (Forests: Kirisia, Mathew ranges, Ndooto mountains…..)

It is then important to note that, the land tenure system in the current constitution which recognizes land as: GOVERNMENT LAND, TRUST LAND and PRIVATE LAND poses a number of challenges to pastoralism. Which includes: land sub-division within the pastoral areas into uneconomic units; lack of good physical infrastructure in pastoral areas and general insecurity, and large heads of livestock without market outlet (e.g. during drought seasons).

Several researches like “Land ownership and use in Kenya: Policy Prescriptions from an Inequality Perspective, 2007 » by professor Paul Maurice Syagga which recommendations were heavily borrowed by draft constitution; have called upon on improvement of the pastoral production system by increasing productivity, destocking through increasing sales, decreasing land degradation, and improving the welfare of pastoralists through infrastructure support. These strategies can best be pursued in communal grazing lands rather than individual ownership. It is then how the idea of Community Land ownership was introduced in the proposed draft constitution. This was made even urgent by the fact that County Councils which hold this land as trust land on behalf of the communities often mismanage it in total exclusion of the local communities.

Allegations that the proposed Constitution, if passed, would repossess all land are not true as the Bill of Rights guarantees right to property countrywide. Furthermore, land is classified in proposed constitution into PRIVATE LAND, PUBLIC LAND and COMMUNITY LAND and will not be nationalized as alleged by some. The National Land Commission which is highly feared by land elites has only role of advising the State on land matters towards ensuring justice and equity.

According to Proposed draft constitution definition of land ownership is very clear without any ambiguity; article 61. (1) Clearly stipulate that all land in Kenya belongs to the people of Kenya collectively as a nation, as communities and as individuals. Individuals have a right to hold opinions, but it is irresponsible to vandalize facts which are clear, purporting that all land will be repossessed by government when draft constitution passes. People should be careful as these facts are being misinterpreted to score propaganda points against the competition in the referendum.

PUBLIC LAND
Public Land in Samburu as per article 62 (2) shall vest in and be held by a county government in trust for the people resident in the county, which include: National Reserves/Parks, Forests, Lakes, Mineral reserves etc., which part of it is recognized in the current constitution as part of Trust Land. On this regard this land is still going to benefit local population as per provisions of article 66 (2) which stipulate that Parliament shall enact legislation ensuring that investments in property benefit local communities and their economies.

COMMUNITY LAND:
According to draft constitution in its article 63. (1) Community land shall vest in and be held by communities identified on the basis of ethnicity, culture or similar community of interest. In other words all land that a given community lives in today and known ethnically to belong to them geographically (examples: Samburu district, Luo Nyanza, Ukambani (Machakos, Kitui and Makueni), and Turkana district). Exercise their cultural practices in it i.e. nomadism, pastoralism, arable farming and their fellow Kinsmen dwell within it, is considered to belong to them in terms of community of interests example the land of Samburu people of Isiolo, Laikipia, Marsabit or even Samburu district is considered to belong collectively to all samburu people as community of common interest. This one allows free movement of communities of similar interest especially during times of need i.e. during droughts.

Identification of land on basis of ethnicity is meant to stop “Grande” schemes like the one carried out by Kenyatta regime in 1970s; whereby they settled large population from Central province in land considered ethnically to belong to Maasai in Laikipia, Naivasha and Nakuru or the one carried out by Moi regime in Maasai Mau settling people from Kericho, Bomet, Uasin Ngishu in the land belonging to Maasai While many Maasai people remain landless.

Draft constitution define pastoralists or Nomadic community Land as land that is – lawfully held, managed or used by specific community forests, grazing areas or shrines. It also recognizes ancestral land traditionally occupied by hunter-gatherer communities or any other land held lawfully as trust land by the county governments. To assure people from fear that central government will confiscate people land, article 63 (3) stipulate that any unregistered community land shall be held in trust by county governments on behalf of the communities for which it is held. That means that even if our land has not been registered as Group Ranches for the time being this land will remain managed by county government as local communities process the procedures of registering them to Group ranches or transferring them from Trust land to Community land.

Central Government has no power to confiscate this land (Trust Land) under any written law in this constitution leave alone through an act of parliament. Even those who say that parliament will enact law to give Central Government this power to take land from people Article 40 (2) denies it this authority as it stipulate that; Parliament shall not enact a law that permits the State or any person to carry out any such act.