legal framework supporting community land for learning for kenya land policiy paper for kla 8th june...

7/28/2019 Legal Framework Supporting Community Land for Learning for Kenya Land Policiy Paper for KLA 8th June 2013

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Legal Framework For Support ToCommunity Land: Lessons fromUganda for Kenya Land Policy.

Paper by Judy Adoko,LEMU- 6/7th June, 2013


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1. Background.

Legal regime for tenure eras.

Pre colonial customary land tenure Colonial Freehold and Mailo tenures

Independence Freehold , Mailo, Leasehold

Amins Regime era Leasehold only From 1995 Customary, Freehold, Mailo

and Leasehold.


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2. Current Land Tenure Systems.

Customary - 80% of land.

Leasehold Mailo

Freehold.

Key Legal framework: 1995 Constitutions,1998 Land Act with 3 amendments in 2001,2004, 2006; Local council courts Act, RTA.


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3. Communal Land Associations.

Sections 15 to 26 of the Land Act caters

support for community land. The sectionscover:

Formation of the Association; incorporation,

land use, rights and responsibilities of

members; dispute resolutions, individualsuccession, powers of the registrar,

punishment of wrong doers, etc.


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3A. The Constitution of Communal

Land Association (CLA)

This should include: name, address, objects,

description of the land, names of members,qualification of members; how disputes will

be resolved, classes of members; rights,

grounds for termination, land use, land

transaction, rights when one dies, electionprocedure, powers of the elected people;

AGM, power of the Association, procedure

for changing the constitution, dissolution,

punishment, etc.


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4. Challenges in Uganda in

applying the law - (1)

1. How is community land defined by the law

and what is it in reality? In Uganda,community land and customary land are

used interchangeably as if they are the

same.

2. Community land is one of 3 types of landunder customary tenure. The others are

Individual and family.


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applying the law Cont. (2)

Community land is best suited for use by

community collectively as grazing, hunting,etc. Why provide for individualisation of it?

Poor implementation of the Laws such as

Land Act due to new and very many land

administrative bodies not funded. Too much power of the Registrar which could

abuse the land rights of community owners.


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applying the law - (3)

Which way for customary land tenure to be

phased out towards a freehold or to evolve inits own right. A Land policy could have

decided this but in Uganda, the land policy

came later.

Also, the land policy did not seem to changethe preference for Freehold as a system

hence the mixed messages legal

recognition but also conversion of C/T.


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5. Lessons for Kenya Land Policy.

To draw lessons for Kenya, one has to first

understand what customary tenure really is(as in the next slide)


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5. What is customary tenure?

Clan government set rules,

protected rightsgave permission for sales

Holding family head toaccount

Using communal clan land

Head of Land Administration held land in trust

Family allocated land in family

protected land

protected members rights

Individuals rights holder had secure rights to use

have permanent right to futureallocation some became HHheads


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5. Lessons from customary tenure.

(1)

Traditional institutions are social land

governors with sovereignty very similar tothe state.

Traditional institutions for managing land

exists for protection of land rights of

vulnerable people, sanctioning land sales,managing community land. The state usually

imposes states over and above these without

knowing it , thereby starting parallel systems.


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5. Lessons from customary tenure.

(2)

Rights are different (not discriminatory):

family land held in trust versus individual landrights; succession, ownership, dispute, etc.

Rights are from either marital home or

maiden home, never both. (See another

document). State owned land (public) also claimed by

the people as the owners. (Land not owned)


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6. Interplay between State and

Traditional.

Confusion created by different systems -

Local council courts and clan courts, etc. Creation of hybridwomen do not own

land

Different laws and meanings: consent,

succession

Forum shopping of systems to suit oneself.


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6. EFFECT OF this is land grabbingfrom women and children within

families and communities.

Clan government set rules,

protected rights

gave permission for salesHolding family head to account

Using communal clan land

Head of Land Administration held land in trust

Family allocated land in family

protected landprotected members rights

Individual title holder had secure rights in perpetuity

some became HH heads

personal property!


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7. Implication for Kenya and

Recommendations (1)

Any reform for community land should first

give support to customary land tenure as asystem to evolve in its own rights and not to

have it phased out through titling as a

Freehold.


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Recommendations (2)

The process should be first recognise

customary tenure Understand and document customary land

tenure systems governance, rights,

principles, assumptions.

Support land rights for individuals, family andcommunity land rights.


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Recommendations (3)

CLA actually brings the state and traditional

worlds together but the understandingshould first be on what customary tenure is

and later what community land really is.

If not, a lot of the support work will be based

on the untrue assumptions made oncustomary tenure that it is: communally

owned, does not give security of tenure,

does not allow women to own land, etc.

legal framework supporting community land for learning for kenya land policiy paper for kla 8th june...

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