Historically, community lands were sacred, used for a common good and preserved for generations to come. Land was a natural endowment that was neither bought nor sold. The 2016 Community Land Act was designed to protect this approach to community lands. But could shoddy implementation of the Act do more harm to community lands than good?
Thousands of rural and indigenous communities rely on community land to graze their animals, collect water, and celebrate their culture. Among many tribes, a large swath of the land is used to perform the practice of male circumcision, an important initiation ritual marking a boy’s transition to adulthood.
The lands on which this customary practice takes place are considered sacred and have been revered through generations. Now, these hallowed grounds are in danger.
The Samburu set aside a large ceremonial settlement called lorora where circumcision is done. But many communities today must rent space to perform this deeply sacred ritual, sometimes from private ranchers.
The same goes for grazing their livestock: with less community land available, they have little choice but pay to access private ranches for pasture. This growing threat to culture and livelihoods is a result of a land tenure system that continues to propagate the subdivision of land that is communally held and managed.
The first attempt to provide rural communities with some form of formal tenure over their land came with the Land (Groups representative) Act in 1968. Under the Act, pastoral communities, mostly in arid and semi-arid areas, registered their lands as “group ranches”.
Group ranches provided these communities with a formal land holding, which enabled them to restrict outsiders’ access to their land. If pastoralists who were not part of the community wanted to graze their animals on these group ranches, for example, they had to negotiate access rights.
Many scholars argued that this was an initial attempt to privatise the commons. Others argue that group ranches were intended to confine pastoralists within given defined areas and minimise the disruption of their nomadic lifestyle to other non-pastoral communities.
Within 10 years of incorporation, countless group ranches were subdivided into small, private parcels of land that were distributed among each family in the community.
Official government records show that in 2006, in Kajiado alone, 32 of a total of 52 group ranches were subdivided, and 15 more were in the process of subdivision. The decision to subdivide was typically unilaterally made by a small group of group ranch committees.
The privatisation of the commons through subdivision intensified environmental degradation and increased poverty in counties across the country.
The small parcels of land herders received after subdivision could not support their livestock, and it quickly became overgrazed, threatening pastoral livelihoods, lives, and the delicate ecosystem. When a drought hit — such as the current one -- the situation worsened. They had nowhere else to graze their cattle.
Subdivision also eroded culture and identity. Parcels of land were sold to people with a higher purchasing power but with little or no connection to the heritage treasured by many indigenous and local communities.
And now history is at risk of repeating itself. Instead of enhancing protections, the Community Land Act, passed in 2016, might lead to further disintegration.
The spirit of the Act is to ensure that communities can govern their own land and natural resources, eliminating previous mismanagement under group ranches.
The Act requires that decisions are made by an assembly that brings together at least two-thirds of all registered members of the community. This is a shift from group ranches where decision-making was centered among a few powerful men. But subdivision remains a real and grave concern.
I spent a week visiting communities in West Pokot that have transitioned their legal status from group ranches to community land as required by law. Sentiments from these newly registered community lands point to a huge interest to proceed with subdivision.
A false belief persists that individual land tenure will free them from rogue leadership and bring them more prosperity.
Elites, political leaders, and other agencies keen to buy land from communities are encouraging subdivision of communal lands for selfish reasons. As was the case in the subdivision of group ranches, the elite members of the pastoral communities are likely to secure the best land by buying out the less empowered members, pushing them to urban areas or leaving them to work as herding laborers.
The law offers a strong framework, but that alone is not enough. Any support to communities that focuses on community titles without focusing on the need to strengthen local land governance and improve accountability is unconsciously or otherwise a broker of subdivision. Insecurity, instead of security of tenure, is the likely outcome of such interventions.
Pastoralism remains an important livelihood for most indigenous and local communities. To achieve sustainable livelihood strategies, grazing lands must be protected. Communities should be encouraged to strengthen their by-laws to limit or eliminate any efforts towards subdivision for their communities and generations to come.