Legal Framework For Support To Community Land: Lessons from Uganda for Kenya Land Policy.

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

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.

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.

3. Communal Land Associations.

Sections 15 to 26 of the Land Act caters support for community land. The sections cover: Formation of the Association; incorporation, land use, rights and responsibilities of members; dispute resolutions, individual succession, powers of the registrar, punishment of wrong doers, etc.

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, election procedure, powers of the elected people; AGM, power of the Association, procedure for changing the constitution, dissolution, punishment, etc.

4. Challenges in Uganda in applying the law - (1)

1.

2.

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. Community land is one of 3 types of land under customary tenure. The others are Individual and family.

4. Challenges in Uganda in 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.

4. Challenges in Uganda in applying the law - (3)

Which way for customary land tenure to be phased out towards a freehold or to evolve in its 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 change the preference for Freehold as a system hence the mixed messages legal recognition but also conversion of C/T.

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)

5. What is customary tenure?

Clan government set rules, protected rights gave permission for sales Holding family head to account Using communal clan land held land in trust

Head of Family

Land Administration allocated land in family protected land protected members rights rights holder

Individuals

had secure rights to use have permanent right to future allocation some became HH heads

5. Lessons from customary tenure. (1)

Traditional institutions are social land governors with sovereignty very similar to the 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.

5. Lessons from customary tenure. (2)

Rights are different (not discriminatory): family land held in trust versus individual land rights; 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)

6. Interplay between State and Traditional.

Confusion created by different systems Local council courts and clan courts, etc. Creation of hybrid women do not own land Different laws and meanings: consent, succession Forum shopping of systems to suit oneself.

6. EFFECT OF this is land grabbing from women and children within families and communities.
Clan government set rules, protected rights gave permission for sales Holding family head to account Using communal clan land held land in trust allocated land in family protected land protected members rights had secure rights in perpetuity some became HH heads

Head of Family

Land Administration

personal property!

Individual

title holder

7. Implication for Kenya and Recommendations (1)

Any reform for community land should first give support to customary land tenure as a system to evolve in its own rights and not to have it phased out through titling as a Freehold.

7. Implication for Kenya and 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 and community land rights.

7. Implication for Kenya and Recommendations (3)

CLA actually brings the state and traditional worlds together but the understanding should 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 on customary tenure that it is: communally owned, does not give security of tenure, does not allow women to own land, etc.