Kenya’s Community Land Bill is defective

NAIROBI: On August 11, 2015, the government published the Community Land Bill 2015, triggering the process by which a new statute would be realised to deal with the assorted pieces of community land claimed by various communities across the country.

It seeks to address the disquiet and disputes surrounding various parcels of untitled community land, which constitute more than 67 per cent of Kenya. The Bill’s intention to remove community land from the custody of county governments is quite telling. This problem needs urgent solution because some county governments, as currently constituted, have proved to be shamelessly prone to corruption, wastage, and outright theft of public resources.

Furthermore some county governments have become captives of clan interests. In multi-tribal counties, some county governments have been captured by partisan tribal interests. The manifestation of clan and tribal capture is evident in the skewed employment and procurement policies which reek of nepotism, clanism and tribalism. This leads us to one of the fundamental shortcomings of the Community Land Bill 2015, since it does not specifically define a community in a manner that would be most appropriate for purposes of land ownership.

According to the Bill, a community is defined loosely as any group of people who share a common ancestry or similar culture or socio-economic or other common interest or geographical space or finally, any ecological space. It would have helped if the definition of a community is simply limited to common ancestry alone, for the following reasons.

First, on the criteria of common culture, the question that immediately arises is, which aspects of culture would be considered common enough to justify any claim to a parcel of land? Considering the fact that some cultural traits and practices overlap across various ethnic communities and counties, how sustainable can such criteria be an entitlement for any group of land speculators to form societies, private companies, trusts or co-operatives, to lay claim to a parcel of land, which is located hundreds of kilometers from their ancestral villages?

It would be a travesty of justice to allow land speculators exploit the clause on cultural similarity to claim, alienate and dispose of land that does not historically and rightfully belong to them. It is equally ambiguous that the sharing of a geographical or ecological space can be concrete grounds for the formation of a legal association, which would facilitate the alienation and registration of community land.

In essence, the Community Land Bill 2015 lacks a concrete framework for engagement between members of different communities living within the same geographical space. For instance in a clan-based and polarised area like Wajir County, the Bill does not provide for how the different feuding clans i.e the Ajuraan, the Ogaden and the Degodia shall claim different community zones. Historically, for much of Kenya, different clans assume their ancestral rights to land ownership. It would be explosive if a few clan members would secretly register an association and alienate a portion of the clan land and claim it for themselves to the exclusion of the rest of the native inhabitants.