REMARKS BY HON EKWEE ETHURO, SPEAKER OF THE SENATE OF THE REPUBLIC OF KENYA ON THE LAUNCH OF A PUBLICATION ON BREAKING THE MOULD: BEST PRACTICES IN IMPLEMENTING COMMUNITY LAND RIGHTS IN KENYA AT THE UNIVERSITY OF NAIROBI LAW SCHOOL ON 27TH JUNE, 2016 Prof. Patricia Kameri Mbote, Dean of the University of Nairobi Faculty of Law, Parklands Campus, Dr. Collins Odote, Co-editor of this Publication, Ford Foundation representative, Distinguished Guests, Ladies and Gentlemen. I am delighted to join you all today at the Launch of a timely compilation of a Publication on Breaking the Mould: Best Practices in Implementing Community Land Rights in Kenya. I accepted the invitation to grace this occasion because of a number of reasons: Community land is sacred to me being a pastoralist from Turkana County; Secondly, Dr Collins and Prof Mbote are my personal friends as the Speaker of the Senate of the Republic of Kenya as well as a Student of law here at the prestigious University of Nairobi, Faculty of Law and of course the venue, The
University of Nairobi and HWO Okoth Ogendo Boardroom are special to my heart. Prof Okoth Ogendo was my Agricultural Law Lecturer in the University of Nairobi Kabete Campus, or Kabete Ng'ombe as we used to refer to it. Tenants of the Crown, The Tragic African Commons: A century of Expropriation, Suppression and Subversion and all the other publications by the able Prof are therefore not new to me as I encountered them before. Allow me from the outset to whole-heartedly congratulate Dr. Collins Odote, Prof. Patricia Kameri Mbote, the Editors and all those who made this publication a success. The record for the two authors speaks for itself and we not only celebrate you in this area but also look upon you to provide answers to the many questions Kenyans have kept asking in the area of community land management. It is my sincere hope that this book provides insights that will guide our legislative framework as a Senate at this time of critical necessity. The University of Nairobi, my alma mater, has lived to its Vision of being a world-class university committed to scholarly excellence and to its Mission to provide quality university education and training and embody the aspirations of the Kenyan people and the
global community through creation, preservation, integration, transmission and utilization of knowledge. The Publication we are launching today and the many more out there are a true testament of this Vision and Mission of the University of Nairobi. No wonder we have 84,000 students undertaking their education here, with the support of 2,052 academic staff. Not forgetting the now obvious fact that we are the best university in Kenya ranked at Number 1 in the country, Number 7 in Africa and 855 in the world. This is in addition to University of Nairobi being the largest university in East Africa. So far, 184,000 graduates have been produced from the University of Nairobi. Long live the Great University of Nairobi! Chapter 9 of the Repealed Constitution of our Republic and the Trust Land Act Cap 288 (now repealed) protected trust lands by vesting the management of such lands in local authorities designated as councils. Councils managed all the resources within the trust land under their jurisdiction and controlled the development of that land. Article 60 of our 2010 Constitution provides for equitability, efficiency, productivity and sustainability as principles of land policy. Article 61 classifies land as Private, Community and Public.
Article 62 expounds on Public Land as unalienated government land, land lawfully held by a state organ, all mineral and mineral oils among others. In the new constitutional dispensation, Article 63 of the Constitution provides for the basis of managing Community land and states as follows: "Community land shall vest in and be held by communities identified on the basis of ethnicity, culture or similar community of interest. It provides that community land consists of (a) land lawfully registered in the name of group representatives under the provisions of any law; (b) land lawfully transferred to a specific community by any process of law; (c) any other land declared to be community land by an Act of Parliament; and (d) land that is (i) lawfully held, managed or used by specific communities as community forests, grazing areas or shrines; (ii) ancestral lands and lands traditionally occupied by huntergatherer communities; or
(iii) lawfully held as trust land by the county governments, but not including any public land held in trust by the county government under Article 62 (2). (3) Any unregistered community land shall be held in trust by county governments on behalf of the communities for which it is held. (4) Community land shall not be disposed of or otherwise used except in terms of legislation specifying the nature and extent of the rights of members of each community individually and collectively. Article 64 provides for Private land as land held by persons under freehold or leasehold tenure system. Other statutory instruments governing land in Kenya are The Land Act 2012, National Land Commission Act 2012 and the Land Registration Act 2012. None of these statutory laws however comprehensively covers Community land management in Kenya despite community land accounting for an estimated 66.8% of Kenya s landmass. Article 63 of the Constitution requires Parliament to enact legislation to give effect to this Article. It is in this regard, that Parliament is considering Community Land Bill. The Senate through my office and the relevant committees recognizes and values the role of experts and academia in various fields including land and particularly community land.
Breaking the Mould: Best Practices in Implementing Community Land Rights in Kenya captures critical issues that are central to the Community Land Debate in Kenya: Definition of community land, the legal framework on the management of land in Kenya, experiences on community land management from other parts of the world, nature of customary law systems, components of community land tenure regime that must be legislated, identification of the challenges and dilemmas of formulating community land law and best practices to overcome them among many others. I am aware your contributions and those of other policy makers and stakeholders had already shaped the Community Land debate in the country. But more will even be required now that Parliament is trying to develop a version of the Bill that is agreeable to the two Houses. Let me stress that as experts please give the politicians the requisite guidance and leave the politics to us the politicians. I am sure all shall be well. The issues that have been considered contentious in the Community Land Bill include the following: 1. The technical definition of Land in relation to environmental laws; political economy and land use; privatization of land and land holding among others. 2. The definition of community land may be clear but who controls access? What constitutes a community? Is it a clan? a group of
inhabitants? How can we profile a community in our current set up? 3. The registration and adjudication of Community land? On whose name will the land be registered? This is taking into account some historical manipulations that ended up benefiting a few members of the society? 4. Natural resources found in the Community land and how the said minerals can be extracted and how profits can be shared? 5. The special rights of pastoral communities and hunters and gatherers in the sense that grazing fields and forests have cultural significance that go to the core of land tenure in the regions where such communities are dominant. 6. How to marry the common law principles of land management, use and disposition with Kenyan customary Community land rights 7. The definition of indigenous and marginalized people and linkage of communal land rights to natural resource rights and equally determine the resource sharing formula This Publication has attempted to provide answers to some of these contentious issues but a lot of engagements and discussions need to be done. Despite the above challenges, I wish to assure you all that all is not lost and the Senate will make its contribution and that contribution will be informed by the experts, academia and its own wisdom.
This timely publication is one of those sources that the Senate will use in processing of legislations that concern land. I therefore laud and commend the authors and all stakeholders that made it possible. This publication will inevitably be useful to a larger audience than just Parliament including law and policy makers, scholars and Kenyans at large. Ladies and Gentlemen! It's been said that After the Constitution, Land is the Next Best Thing. In almost all communities in Africa, including Kenya, land is considered to be the main asset in as far as livelihoods and culture is concerned. The land question in Kenya has been emotive and the fact that there have been historical injustices on land in Kenya cements the argument that there is need for policy makers and academia to straighten land related laws especially those relating to community land. In another Article Titled: The Legal and Policy Framework Regulating Community Land In Kenya: An Appraisal (2013), Dr Collins Odote discusses the legal and policy framework governing community land in Kenya and points out that prior to colonialism, communities in Kenya had their own systems of land ownership. He states; The land law in Kenya has thus focused on individualization of land rights at the expense of customary/community rights to land. This has undermined indigenous culture and conservation systems, and destroyed traditional resource management
institutions. Despite this however, many local communities in Kenya continue to manage land. This is attributable to the resilience of customary tenure, which has withstood sustained subjugation, suppression and denial of juridical content in official parlance". I have seen the truism of this statement in my home county Turkana which is a pastoralist community with deep ties to land, culture and tradition. There is therefore need for us to tread carefully in the search for a Community Land Law to avoid installing private land tenure regimes to such communities who own land communally under the traditional communal land tenure system. That, and many others, has been captured in the Publication we are launching today. As the Speaker of the Senate of the Republic of Kenya, I am happy to be part of the team in the 11 th parliament that is crafting the Community Land Bill and despite the fact that it has not seen the light of day as expected due to debates and fine-tuning by Senators and Members of National Assembly, it is a priority on our agenda as parliament to keep this land debate vibrant and all-inclusive. Sooner, our country will finally enact the Community Land Bill into Law. We are determined to use this valuable time and the expert advice we get from academia to make a better Community Land Law. Once again, allow me to specially commend the Dr. Odote and Prof. Patricia Kameri Mbote for their dedication and commitment to the Kenyan dream. Their contribution to the vision 2030 is evident all
these works and many articles and books. The list is long and I cannot purport to list them. Most of you may have benefitted from their scholarly works in one way or another. I also wish to express my profound gratitude to Ford Foundation for its financial support at the different stages of the compilation and edition of this Publication and for being a readily-available partner in the quest for development of our country and, most importantly, for aiding efforts to propel the community land debate forward. When history will be written in this country in the area of Community Land Rights, a footnote will indeed be reserved for Ford Foundation so that posterity knows the role they played. It is my sincere hope that this exemplary partnership between scholars such as Dr Collins and Prof Mbote on one hand and the Civil Society on the other, will continue especially at this critical time in Kenya when discussions on community land rights in the National Assembly and the Senate are in top gear. The need to urgently recognize, protect and reg ister Community Land Rights in Kenya cannot be overemphasized. Once again, allow me to thank all those that made this project a success including those that attended this occasion and declare that this book is now officially launched. I thank you all.
SEN EKWEE ETHURO, EGH, EBS, MP. Speaker of the Senate