Resource Conflict Institute

RECONCILE

COMMUNITY LAND BILLS: GAINS AND LOSSES.

BY
SHADRACK OMONDI.

Introduction
1. RECONCILE Is a policy research, capacity building
and advocacy organization. It is registered in Kenya
with a mandate to operate regionally.
2. The organization works on natural resource
governance through the following themes: Land,
Environment, Forestry, Agriculture, Fisheries and
Pastoralism.
3. Objectives:

The Context of Community Land

66% of land in Kenya is estimated to fall under community land.
Almost five years after the promulgation of the constitution, Kenya
dont have a legal and institutional framework for managing and
administering community land.
Majority of Kenyans who live in rural areas and those in informal
settlements access and still use land and natural resources
communally.
The community land bill is the first attempt to have a comprehensive
legal and institutional framework recognizing, registering,
protecting and promoting community and customary land tenure.
The law will therefore give communities legally enforceable rights
thus addressing vulnerability setting apart of their rights by
government, difficulty in securing development finances using land
as a collateral.

Legal Context of CL
Constitution & NLP

Land Laws & their provision

on CL

Community
land
is
a 1. Land Act 2012:
constitutionally
recognized - Sec 9. Provides for the
conversion of
land category. Art 61(2) CoK.
community land to
It is vested in communities
public and or private
and
shall
be
held
by
and vis versa.
communities identified on the In art 37. it provides
that community land
basis of ethnicity, culture and
shall be managed in
community of interest (Art 63
accordance to the
(1)
community land law.
2. Land Registration Act
Articles 63 to 66 in the
2012
- Sec 8 provisions are made
National Land policy
for the registration of
equally details the policy
community land. It also
makes further
guideline or thinking on
reference to community
community land.
land law in guiding
community
transactions.

The Status of the Bill

The constitution provides for 5 year

period. Only five months remaining for
this timeline.
Currently we have two Bills. Senate Led
Bill and the Ministry Led Bill. The
Senate Bill is to go for the third
reading. The Ministry Led Bill is yet to
be tabled at the Cabinet.
The question is how do we reconcile
the two? Is it by accident or a strategy
to derail and slow down the process of
formulating community land law?
How can we engage with these two
Bills now that they at what we may call
closed space in advocacy?

What were the expectations on the bill?

Clearly define the terms community and community
land.
Articulate and provide for the realization of bundles
of rights in community land.
Provide for the process of registration and the
nature of the title.
Provide for how land transactions, land markets and
investments will be handled
Provide mechanism for dealing with community land
injustices
Provide for institutional frameworks for the
management of community land
Provide for a mechnism for conflict management
and resolution.

Gains and Losses

1. Definition or unpackaging of the terms community
and community land. The bills took a descriptive
approach and outline elements of what constitutes
a community for the purposes of this law.

2. Provisions for Recognition, protection and

registration of community land rights is properly
captured. There is clear articulation of
ownership and tenure systems in 5 (1) and (2)
in TFB, and 7 (1-3) SB.
3. Sec 6 (5) -TFB. Customary land rights are
given equal status with freehold and leasehold
rights acquired through allocation, registration
and transaction

Gains and Losses

4. Participatory and community driven registration of
community land. Through local based constitution,
communities will decide how to manage their land (Sec 8
TFB &SB)
5. Enhanced security for community land. It can not be
acquired at will by either county or national governments
for other uses. A clear procedure for conversion and for
compulsary aquisition is provided.
6. Provision for Community Assembly in TFB is empowering
making communities take responsibility for critical
decisions. SB did away with the Community Assembly.

Gains and Losses

7. Modest attempt to secure women land
rights. Equal representation in
Management Committee, Registered
members in the list etc.
8. Provision for mechanisms of revisiting the
community land that was illegally
acquired
9. Provision for a benefit sharing framework.
Though not detailed.
10. Has emphasized the use of ADR

More about us at
www.reconcile-ea.org

Contact us at:
Resource Conflict Institute
(RECONCILE)
PO Box 7150
Timbermill Road
Nakuru, 20110
Kenya
Telephone: (254)-51-2211046
Fax: (254)-51-2211045
Mobile: (254) 722-256059

Email us to: info@reconcile-ea.org