Which Land Rights for Pastoralists in African Rangelands? An assessment of the Kenyan Community Land Act 2016

By Flora Vern

3 November 2023

In September, I had the chance to take part in a workshop on the Kenyan handling of community lands, especially insofar as they are used by pastoralist and nomadic communities across the country. The workshop was held in Nairobi by non-governmental organisation IMPACT Trust Kenya, which supports indigenous peoples.

Kenya is home to numerous indigenous communities of pastoralists, small farmers, hunter-gatherers and fishers, who are considered indigenous insofar as they were particularly despoiled during the colonial period and lost most of their customary lands on that occasion. After a long (and controverted) history of trying to right those wrongs through a system of land held in trust for the community under the now repealed Land (Group Representatives) Act (Cap 287) of 1968 and Trust Land Act (Cap. 288) of 1938, the Kenyan Constitution of 2010 introduced a special category known as ‘community land’ (s63), ownership of which vests directly in communities that went through a registration process. This special form of ownership, which is neither public nor private, is further defined in the Community Land Act 2016, that formed the object of the workshop. It grants communities the right to manage and administer their lands, which are also subject to community bylaws and governance structures.

Several important elements came to light during the workshop, one of them being the profound attachment of communities to autonomy over their land, and – more paradoxically – the idea that it should take the form of land ownership. Certainly, customary law predating colonisation did not recognise anything akin to a freehold, which has no equivalent in societies that are not organised around individualism. However, these communities were essentially left out of land ownership under the past and current tenure systems, and seem to have developed a profound desire to right the wrong by becoming land owners, on par with all other actors – while rejecting individualism.

This stems, in part, from the fact that communities lost their land through processes such as compulsory acquisition by government or sale of land by group representatives, both of which happened without the consent of communities. In very simple terms, claims to ownership by others being the source of the wrong, community ownership appears to be the remedy.

Beyond the notion of a remedy, however, it transpired from some of the discussions that the community believed themselves to be the owners of land because of past injustices – on account of their illegitimacy –, when public bodies claimed, from a very legalist standpoint, to be the actual owners of land until ownership was formally passed over to the registered community.

This reaction is, in fact, very common in pastoralist communities from legal systems which treat land ownership as the most elementary form of relationship to land. In a very different context, I have observed the exact same reaction from French shepherding communities with respect to lands on which they had been deprived of ownership in a context which they considered illegitimate. The debate therefore always tends to crystallise around the idea that ‘the land is ours’.

Yet, is ownership the right solution to the problem from a technical standpoint?

Other participants discussed the context of community lands in neighbouring countries, namely Tanzania in which the land is public and communities have customary rights of occupancy, and Ethiopia in which the land is also public and possession of rural land is allocated on a personal basis to the people who effectively occupy it.

This was instrumental in showing that ownership of community lands should not be seen as the one and only option on the table, although the choice of a legal framework is, in this respect, also a much wider societal and political choice.

More to the point, a lot of the debates showed that community land ownership in Kenya has not always yielded the results that could have been hoped for. In particular, there seemed to be numerous issues with the community registration process and with mapping the boundaries of each community’s land claims. In all legal systems, granting community rights of ownership requires either expropriation of private persons or the willingness of public bodies to give away lands that belong to them. On top of the legal intricacies of registration, this process – when conducted on a large scale – is bound to generate friction and draw local politics into the picture.

One of the goals of the workshop was, therefore, to evaluate the extent to which community ownership could cure the ongoing process of marketisation of communal land and resources. It was noted that the Kenyan Community Land Act 2016 does not require communities to bind their newly acquired lands to a specific purpose, such as grazing or hunting. The community is effectively treated like a large private owner who can, provided that the conditions for making a valid decision are met, convert the land to different uses, sell it or divide it into small plots and grant exclusive rights of use over these to community members. Effectively, the community is free to behave like joint-owners or a corporate body. This has led, in certain communities, to a decrease in pastoralism and to the fencing of smaller plots.

These specific provisions from the act are quite problematic when compared with those found in other statutes on community lands, especially in the context of pastoralist lifestyles. In most legal systems, community lands – no matter the form of tenure – are bound to a certain purpose, and are made inalienable, imprescriptible and indivisible by law. Community land is thus held as a qualified right, and not an absolute one; current members of the community are not so much owners of the land as (metaphorical) usufructuaries holding it in trust for future generations.

Another drawback of using ownership as the sole conceptual framework for community rights lies in the fact that pastoralism essentially requires community members to move through the land and – inevitably – through the land of others from time to time. This is all the more true with nomadic communities. However, community ownership of land needs to remain manageable and, in particular, community assembly meetings would become impractical over huge tracks of land. This resulted in the division of land into smaller ‘manageable’ plots, and the need for communities to enter into formal agreements between themselves over land use – which, in Kenyan law, would amount to mere personal rights of use, and not real rights other the land of another community.

A lifestyle that is based on motion is inherently ill-suited to fixed geographical boundaries, and it is paradoxical to bind pastoralist communities to a specific plot in the land register, turning land ownership into a gilded cage. In order to use only their own land, each community would need an immense area, which would necessarily overlap with certain ancestral uses of the land by other communities, including in the all too common case of seasonal occupancy of land. It is, in fact, frequent for one community to use the land for a certain purpose some months of the year, then move out and let other communities use the same land for a different purpose over the remainder of the year. This form of time sharing on the land, which is very common in African rangelands, has many equivalents both in European pastoralist communities and in swamp farming. Land ownership, at least in its exclusive form, conflicts with this reality.

In pastoralist systems, communities de facto have certain rights over each other’s territory, granting them passage through the land with their livestock, access to water or pasture, the right to collect resources of little worth, etc., on top of all sorts of seasonal rights which usually involve grazing at defined times of the year, with one community getting the better grass while others get a share in the second or third growth. It is generally the case that such rights cannot be conceptualised directly as easements or servitudes for lack of a dominant tenement: community lands may overlap, and communities do not always own the land they possess. In countries such as England and France, these rights are usually acquired through covenant or immemorial use, precisely because real burdens (for lack of a more specific term) evade definitions and can benefit a community instead of a specific plot of land. They are not so much a legal category as a void that was luckily filled by courts to maintain ancient rights. Such rights, while ancestral, are not formally recognised in Kenya as they do not fall within the existing framework of property law. The object of my contribution was therefore to describe the mechanism behind these rights, which could help pastoralist communities secure real rights over each other’s land – instead of personal agreements –, and perhaps also help them acquire use rights as a way to bypass the barriers that exist to community ownership in the context of private conservancies or occasional uncooperative public bodies.

The workshop itself was a very rich human and intellectual experience, although it inevitably left much for us to discuss in the future. As a myriad of market-driven interests directed at communally owned lands, coupled with unresolved past historical injustices, denote how precarious the communal land legal framework really is.

Dr Flora Vern is a Lecturer in Property Law at the University of Glasgow and a member of the School of Law’s Private Law Research Group.

Photo credit: Kenyan rangelands (Saverio Krätli)