The EastAfrican

CONFERENCE ON COMMUNITY LAND LAW Special advertising section

MAY 25-31, 2013

Best Practices and approaches for the protection of community land rights in Kenya
COMMUNITY LAND LAW CONFERENCE ON BEST PRACTICES AND APPROACHES FOR PROTECTING COMMUNITY LAND RIGHTS TO BE HELD AT BOMA HOTEL, NAIROBI ON JUNE 6-7, 2013
The Kenya Land Alliance, the University of Nairobi, School of Law and the Strathmore University Law School, with support from the Ford Foundation will host a Conference on Community Land Law to be held at BOMA Hotel, Nairobi from 6th -7th June, 2013. The Conference comes against the backdrop of neglect of African land rights systems which were perceived as inferior to the introduced English Common Law and inadequate to deal with the challenges of a developing nation.
espite neglect in law and policy over the years, customary law is still alive and well albeit with changes occasioned by its interaction with introduced modern law. Indeed, fifty (50) years after independence epic in Africa, aspects of customary law continue to govern customary/communal land in Kenya like in many other African countries. Land law in Kenya however, systematically subjugated customary/community rights to land by emphasizing individual rights. Customary law is now recognized as a legal order under the Constitution of Kenya, 2010 and the repugnancy clause that stigmatized it is now a historical fact. The Consti-

tution requires that like all other laws, customary law be consistent with the Constitutional provisions. Within this broad context, the Constitution has, for the first time in history, recognized community as a legitimate locus for holding land in Kenya. This recognition demands a change in the law governing land with a view to developing a statutory community land law to operationalize and enforce the provisions of the community land tenure regime as provided for in the Constitution of Kenya, 2010 and the National Land Policy of 2009.

Kenyans are aware of the challenges in the way of developing an effective community land law. Indeed, the 2010 South African Constitutional Court decision that the Communal Land Rights Act of South Africa is unconstitutional serves as a caution to Kenyans to take the necessary care to ensure that the same fate does not meet a Community Land Act in Kenya once enacted. It is within this context that we have organized to host a Community Land Law Conference in Kenya. The conference will draw participation from stakeholders in national land; natural resources line Ministries, institutions and agencies; local, national, regional and international organizations working on land issues; academics working on land laws and representatives of communities in an interactive engage-

ment process. The conference will draw participation from countries in the rest of Africa, Brazil in Latin America where community land is recognized. The Community Land Law Conference is organized to achieve three four objectives: 1. To raise awareness and cultivate deeper understanding of the components of community land tenure regime that must be legislated. 2. To share experiences from other countries on community land rights regimes. 3. To take stock of the nature of customary law systems and the broad significance of their accommodation alongside the existing state law system as an equal legal system despite its complexity. 4. Identify and deliberate on

the challenges and dilemmas of formulating community land law and offer best practices to overcome them. From organizers perspective the following are the expected outputs and outcomes: 1. Better informed stakeholders about community land law development process. 2. Deeper understanding of stakeholders on how to translate land policy and constitutional land provisions into community land law capable of guiding land and natural resource management. 3. Strengthened capacity of stakeholders as an inservice capacity building process to advocate for the prudent management of community lands. 4. Deepened appreciation of community land rights In a nutshell the conference is designed as a two day reflection and brainstorming session at which all participants will engage in very
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A section of leaders protest during a meeting held in Olkaria Naivasha after two groups failed to agree on the resettlement of families residing at the local geothermal -rich area on grounds that they were not adequately consulted during negotiations for the disposal of their community land
PHOTO/FILE

CUSTOMARY LAW
FIFTY (50) YEARS AFTER INDEPENDENCE EPIC IN AFRICA, ASPECTS OF CUSTOMARY LAW CONTINUE TO GOVERN CUSTOMARY/ COMMUNAL LAND IN KENYA LIKE IN MANY OTHER AFRICAN COUNTRIES

Stakeholders follow proceedings during the opening of a one day consultative forum with the Task Force on Formulation of Community Land, Eviction and Resettelment Bills workshop at the Mombasa Continental Resort
PHOTO/FILE

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The EastAfrican

CONFERENCE ON COMMUNITY LAND LAW Special advertising section

MAY 25-31, 2013

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robust interactive facilitated debates to bring out key issues and resolutions that will be beneficial to the rest of Africa and more specifically to the Kenya Community Land Law development process. The conference participants directly and others who will be reached by its outputs will benefit from collective knowledge and experiences of experts and key guest speakers. The conference discussion theme, issues and topics are drawn around African comparative experiences on Customary/Communal/Community land law; international experiences on community land tenure: Brazilian case, and major case studies from Kenyan communities on their experiences in exercising community land tenure regime. Methodology and Participants The Conference will be held over two days. Participants will be drawn from land line Ministries, relevant institutions and agencies, academia, lead civil society organization, top leadership of the Land Sector NonState Actors working team plus other strategic partners in land sector, practitioners, eminent legal and opinion leaders, and representatives of communities. Experienced facilitators will guide the Conference by posing key questions that will speak to the objectives and by encouraging and moderating debate around the same. The conference will benefit from collective knowledge and experiences of participants and key guest speakers. We expect a broad range of strategies to emerge to move this agenda forward and to guide a focused engagement towards expected outcomes. Discussion theme, issues and topics The conference discussion theme revolves around African comparative experiences on community land law, international experiences on community land tenure drawing on the Brazilian experience and Kenyan communities case studies as relates to community land tenure regimes.

Kenya ripe for Community Land Law that guarantees rights of communities
munity successfully argued their claim for the recognition of their communitys rights to land and natural resourcessomething nobody could have contemplated within old constitutional legal framework. Thus, the conference will show that communities are not fighting against private, individually held ownership rights, but rather are bargaining to have a law that will give them power to assert their rights to participate in the development discourse and land policy decisions in their country like other landholders. At the forum, all stakeholders will be engaged in the process of law-making. This is important because in the African context, law-making is mainly exclusive and preserve of the elite in the society. Hence the conference will include representatives from land sector line ministries, relevant institutions, national and international NGOs, academic experts and above all communities in a very interactive debate. The following issues are part of the many areas the conference is likely to look into: The possibility of codifying and regulating over 42 culturally and ethnically based customary systems within the community land law Safeguarding the interests of women, whose land rights are far from secure in most customary systems Safeguarding community land rights against traditional leaders who normally represent their communities, but in most cases to the detriment of the community. Finally, it is hoped that Kenya will have the opportunity to discuss and deal with these intractable issues in a manner that will ensure that the land rights of all landholders are secure, regardless of the tenure system they choose.

Maasai tribes-people traversing, Kajiado SouthCounty, Maasailand

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enya failed in its policy choices made at independence 50 years ago when it opted for customary law as a legal framework for protection of community land rights. But this did not empower communities to assert their rights to property and resources. Before the enactment of the Constitution of Kenya 2010, different notions of property applied to community land. The mischief in this was that the state played a trusteeship role over community land, which those in power used the privilege to set aside community land to benefit the executive. As the country prepares to enact laws to govern community land in line with the Constitution of Kenya 2010, it is important to consider best practices elsewhere. The Mozambique 1997 Land Act, which is the best community land law framework in Africa so far, is case in point. Kenya ought to develop a better legal framework that will securely protect the notion of community land rights by particularly providing for self-definition of communities. It is regrettable that over two years since the promulgation of the Constitution of Kenya, 2010, communal lands in Kenya are still vested in defunct County Councils. The latter purportedly

hold community lands in trust on behalf of communities in the absence of a legislative framework that deals specifically with Community Land as defined in the new Constitution. It is within this worrying context that a Community Land Law Conference will be held on the June 6th and 7th to extensively discuss this issue. The conference will explore best practices and approaches of dealing with the community land issues. Case studies from the rest of Africa, Brazil and Kenya on the struggles of protection of community land rights will be presented. The conference will look into why it has been difficult for communities to assert their land rights on land they have lived on and occupied for a long time. It is worthwhile to note that customary law is important in the new constitutional dispensation for a big section of communities that access and use communal land in Kenya. This is because customary law can provide the basis for community title at least to those who can assert indigenous title. In other words, the existence of a customary system of law regulating a communitys access and control of land can provide the basis for the protection of the communitys land rights against encroachment

from the outside world. On the other hand, recognition of customary law is important as it implies the recognition of customary forms of governance of land and other resources. What is instructive to note is that since customary law is recognized by Constitution of Kenya, 2010 as an independent source of law, it must also give rise to land rights, such as access and user rights. This speaks to rights of individual members within the community and the community as a whole which can be asserted against people who want to interfere. But, customary law is subject to the constitution like other laws, because the Kenyan Constitution recognizes pluralism of legal systems. This conference therefore, offers the opportunity to assert the fact that customary law though an independent source of law, does not have the same effect when it comes to asserting ownership over land and resources. The conference will further illustrate that in Kenya, the recognition of community notions of community land rights into right to property is now firmly entrenched in the Constitution of Kenya, 2010. This new dispensation indeed gives us a lot of hope. In a landmark case at the African Commission on Human and Peoples Rights, the Endorois com-

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Kenya Land Alliance