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The EastAfrican

CONFERENCE ON COMMUNITY LAND LAW

MAY 25-31, 2013

Special advertising section

FIFTY (50) YEARS AFTER INDEPENDENCE

EPIC IN AFRICA, ASPECTS OF CUSTOMARYLAW CONTINUE TO GOVERN CUSTOMARY/COMMUNAL LAND IN KENYA LIKE IN MANYOTHER AFRICAN COUNTRIES

he Kenya Land Alliance, theUniversity of Nairobi, Schoolf Law and the Strathmore

University Law School, withupport from the Ford Foun-ation will host a Conferencen Community Land Lawo be held at BOMA Hotel,

Nairobi from 6th -7th June,013. The Conference comesgainst the backdrop of ne-lect of African land rightsystems which were per-eived as inferior to the intro-

uced English Common Lawnd inadequate to deal withhe challenges of a develop-ng nation.

Kenyans are aware of the

challenges in the way of de-

veloping an effect ive com-

munity land law. Indeed, the

2010 South African Constitu-

tional Court decision that the

Communal Land Rights Act

of South Africa is unconstitu-tional serves as a caution to

Kenyans to take the necessary

care to ensure that the same

fate does not meet a Commu-

nity Land Act in Kenya once

enacted. It is within this con-

text that we have organized

to host a Community Land

Law Conference in Kenya.

The conference will draw

participation from stakehold-

ers in national land; natural

resources line Ministries, in-

stitutions and agencies; local,

national, regional and inter-

national organizations work-

ing on land issues; academics

working on land laws andrepresentatives of communi-

ties in an interactive engage-

ment process.

The conference will draw

participation from countries

in the rest of Africa, Brazil in

Latin America where commu-

nity land is recognized.

The Community Land Law

Conference is organized toachieve three four objectives:

To raise awareness and1.

cultivate deeper under-

standing of the compo-

nents of community land

tenure regime that must

be legislated.

To share experiences from2.

other countries on com-

munity land rights re-

gimes.

To take stock of the nature3.

of customary law systems

and the broad significance

of their accommodation

alongside the existing

state law system as an

equal legal system despiteits complexity.

Identify and deliberate on4.

COMMUNITY LAND LAW CONFERENCE ON BEST PRACTICES AND APPROACHES FOR PROTECTIN

COMMUNITY LAND RIGHTS TO BE HELD AT BOMA HOTEL, NAIROBI ON JUNE 6-7, 2013

Best Practices and approaches for the protection of community land rights in Kenya

Despite neglect in

law and policy

over the years,

customary law

is still alive and

well albeit with changes occa-

sioned by its interaction with

introduced modern law.

Indeed, fifty (50) years after

independence epic in Africa,

aspects of customary law

continue to govern custom-

ary/communal land in Kenyalike in many other African

countries. Land law in Kenya

however, systematically subju-

gated customary/community

rights to land by emphasizing

individual rights. Custom-

ary law is now recognized

as a legal order under the

Constitution of Kenya, 2010

and the repugnancy clause

that stigmatized it is now a

historical fact. The Consti-

the challenges and dilem-

mas of formulating com-

munity land law and offer

best pract ices to over-

come them.

From organizers perspec-

tive the following are theexpected outputs and out-

comes:

Better informed stake-1.

holders about community

land law development

process.

Deeper understanding2.

of stakeholders on how

to translate land policy

and constitutional land

provisions into commu-

nity land law capable of

guiding land and natural

resource management.

Strengthened capacity of3.

stakeholders as an in-

service capacity buildingprocess to advocate for

the prudent management

of community lands.

Deepened appreciation of4.

community land rights

In a nutshell the conference

is designed as a two day re-

flection and brainstorming

session at which all par-

ticipants will engage in verytakeholders follow proceedings during the opening of a one day consultative

rum with the Task Force on Formulation of Community Land, Eviction and Re-

ettelment Bills workshop at the Mombasa Continental ResortPHOTO/FILE

University of NairobiTowards Word Class excellence

Kenya Land Alliance

CUSTOMARY LAW

tution requires that like all

other laws, customary law be

consistent with the Constitu-

tional provisions. Within this

broad context, the Constitu-

tion has, for the first time

in history, recognized com-

munity as a legitimate locusfor holding land in Kenya.

This recognition demands a

change in the law governing

land with a view to develop-

ing a statutory community

land law to operationalize

and enforce the provisions of

the community land tenure

regime as provided for in the

Constitution of Kenya, 2010

and the National Land Policy

of 2009.

CONTINUED NEXT PAGE

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Maasai

tribes-peo-

ple travers-

ing, Kajiado

SouthCounty,

MaasailandPHOTO/FILE

The EastAfrican

CONFERENCE ON COMMUNITY LAND LAW

MAY 25-31, 2013

Special advertising section

University of NairobiTowards Word Class excellence

Kenya Land Alliance

robust interactive facilitated

debates to bring out key issues

and resolutions that will be

beneficial to the rest of Africa

and more specifically to theKenya Community Land Law

development process. The con-

ference participants directly

and others who will be reached

by its outputs will benefit from

collective knowledge and ex-

periences of experts and key

guest speakers.

The conference discussion

theme, issues and topics are

drawn around African compar-

ative experiences on Custom-

ary/Communal/Community

land law; international experi-

ences on community land ten-

ure: Brazilian case, and major

case studies from Kenyan com-

munities on their experiences

in exercising community land

tenure regime.

Methodology and Partici-

pants

The Conference will be held

over two days. Participants will

be drawn from land line Minis-

tries, relevant institutions and

agencies, academia, lead civil

society organization, top lead-

ership of the Land Sector Non-

State Actors working team plus

other strategic partners in land

sector, practitioners, eminent

legal and opinion leaders, and

representatives of communi-

ties. Experienced facilitators

will guide the Conference by

posing key questions that will

speak to the objectives and by

encouraging and moderating

debate around the same. The

conference will benefit from

collective knowledge and ex-

periences of participants and

key guest speakers. We expect

a broad range of strategies to

emerge to move this agenda

forward and to guide a focused

engagement towards expected

outcomes.

Discussion theme, issues

and topics

The conference discussion

theme revolves around Afri-

can comparative experiences

on community land law, inter-

national experiences on com-

munity land tenure drawing

on the Brazilian experience

and Kenyan communities case

studies as relates to commu-

nity land tenure regimes.

Kenya failed in its policy

choices made at inde-

pendence 50 years ago

when it opted for cus-

tomary law as a legal framework

for protection of community land

rights. But this did not empower

communities to assert their rightsto property and resources. Before

the enactment of the Constitution

of Kenya 2010, different notions

of property applied to community

land. The mischief in this was

that the state played a trusteeship

role over community land, which

those in power used the privi-

lege to set aside community land

to benefit the executive. As the

country prepares to enact laws

to govern community land in line

with the Constitution of Kenya

2010, it is important to consider

best practices elsewhere.

The Mozambique 1997 Land Act,

which is the best communityland law framework in Africa so

far, is case in point. Kenya ought

to develop a better legal frame-

work that will securely protect

the notion of community land

rights by particularly providing

for self-definition of communi-

ties. It is regrettable that over

two years since the promulga-

tion of the Constitution of Kenya,

2010, communal lands in Kenya

are still vested in defunct County

Councils. The latter purportedly

hold community lands in trust on

behalf of communities in the ab-

sence of a legislative framework

that deals specifically with Com-

munity Land as defined in the

new Constitution.

It is within this worrying con-text that a Community Land Law

Conference will be held on the

June 6th and 7th to extensively

discuss this issue. The confer-

ence will explore best practices

and approaches of dealing with

the community land issues. Case

studies from the rest of Africa,

Brazil and Kenya on the struggles

of protection of community land

rights will be presented. The con-

ference will look into why it has

been difficult for communities to

assert their land rights on land

they have lived on and occupied

for a long time. It is worthwhile

to note that customary law is im-

portant in the new constitutionaldispensation for a big section of

communities that access and use

communal land in Kenya. This is

because customary law can pro-

vide the basis for community title

at least to those who can assert

indigenous title. In other words,

the existence of a customary sys-

tem of law regulating a commu-

nitys access and control of land

can provide the basis for the pro-

tection of the communitys land

rights against encroachment

from the outside world.

On the other hand, recognition

of customary law is important as

it implies the recognition of cus-

tomary forms of governance of

land and other resources. What

is instructive to note is that since

customary law is recognized byConstitution of Kenya, 2010 as

an independent source of law, it

must also give rise to land rights,

such as access and user rights.

This speaks to rights of individual

members within the community

and the community as a whole

which can be asserted against

people who want to interfere.

But, customary law is subject to

the constitution like other laws,

because the Kenyan Constitu-

tion recognizes pluralism of legal

systems. This conference there-

fore, offers the opportunity to as-

sert the fact that customary law

though an independent source of

law, does not have the same effectwhen it comes to asserting own-

ership over land and resources.

The conference will further il-

lustrate that in Kenya, the rec-

ognition of community notions

of community land rights into

right to property is now firmly

entrenched in the Constitution of

Kenya, 2010. This new dispensa-

tion indeed gives us a lot of hope.

In a landmark case at the African

Commission on Human and Peo-

ples Rights, the Endorois com-

Kenya ripe for Community Land Law

that guarantees rights of communitiemunity successfully a

their claim for the recog

of their communitys rig

land and natural reso

something nobody coul

contemplated within ol

stitutional legal framew

Thus, the conference

show that communiti

not fighting against p

individually held own

rights, but rather are

gaining to have a law

will give them power

sert their rights to parti

in the development disc

and land policy decisi

their country like other

holders.

At the forum, all stakeh

will be engaged in the p

of law-making. This is i

tant because in the A

context, law-making is m

exclusive and preserve

elite in the society. Hen

conference will includ

resentatives from lan

tor line ministries, re

institutions, national a

ternational NGOs, aca

experts and above all

munities in a very inter

debate.

The following issues arof the many areas the c

ence is likely to look int

The possibility of c

ing and regulatin

42 culturally and

cally based cust

systems within the

munity land law

Safeguarding the

ests of women,

land rights are far

secure in most cu

ary systems

Safeguarding co

nity land rights a

traditional leader

normally represen

communities, but in

cases to the detrim

the community.

Finally, it is hoped that

will have the opportun

discuss and deal with

intractable issues in a

ner that will ensure th

land rights of all landh

are secure, regardless

tenure system they cho

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