Kenyan’s recently got a window into the State’s level of frustration when President Uhuru Kenyatta’s deputy chief of staff Mr. Waita Nzioka warned that cartels out to profiteer from the implementation of ongoing public projects have turned the land compensation programs into a gravy train. A number of these projects are situated in Community Land.
In this article I attempt to bring you up to speed on the provisions of the newly enacted Community Land Act, No. 27 of 2016 (the Act), the structures of engagement among other things.
The Act came into force on 21 September 2016, and aims at:
- Giving effect to Article 63 of the Constitution of Kenya, 2010 (the Constitution) which provides for holding of community land. The Constitution provides that community land shall vest in and be held by communities;
- Providing for:
- The recognition, protection and registration of community land rights.
- The management and administration of community land.
- The role of county governments in relation to unregistered community land and related matters.
The Act repeals the Land (Group Representatives) Act (Chapter 287 of the Laws of Kenya) and the Trust Lands Act (Chapter 288 of the Laws of Kenya).
A. Land Ownership
Community land in Kenya shall vest in the Community. In this respect, the term “Community” has been defined to mean “a consciously distinct and organized group of users of community land who are citizens of Kenya and share any of the following attributes: common ancestry, similar culture or unique mode of livelihood; socioeconomic or other similar common interest; geographical space; ecological space; or ethnicity.” The constitution of a community is therefore not limited to ethnic lines as is the case with the current practice.
The Act provides for the registration of community land and in this case in accordance with its provisions and the provisions of the Land Registration Act, 2012. In this respect, a Certificate of Title issued by the Community Land Registrar shall be evidence of ownership of the land.
The Certificate of Title shall not be subject to challenge, except on:
- grounds of fraud or misrepresentation to which the person is proved to be a party or
- where the certificate of title has been acquired illegally, unprocedurally or through a corrupt scheme.
The Act requires a community claiming an interest in or right over community land to be registered. The registration of a community as the proprietor of freehold land shall vest in that community the absolute ownership of that land. The registration of a community as the proprietor of a lease shall vest in that community the leasehold interest described in the lease, together with and subject to all implied and express rights and privileges.
C. Community Land Registrar and Register
The Chief Land Registrar is required to designate a qualified registrar to be the Community Land Registry responsible for registration of community land. The Act also requires the maintenance for each registration unit, a Community Land Register in accordance with section 8 of the Land Registration Act, 2012.
D. Customary Land Rights
The Act recognizes customary land rights including the customary right of occupancy and provides for their adjudication and documentation. The Act also gives customary land rights equal footing in law as freehold and leasehold tenure. In this regard, the term “customary land rights” is defined to mean rights conferred by or derived from African customary law, customs or practices provided that such rights are not inconsistent with the Constitution or any written law.
E. Compulsory Acquisition
The Act limits the compulsory acquisition by the State of any interest in, or right over community land. Compulsory acquisition is allowed where;
- It is in accordance with the law.
- It is for a public purpose.
- Upon prompt payment of just compensation to thecommunity, in full or by negotiated settlement.
F. Role of County Government in Respect of Community Land
The main role of the County Government under the Act is to hold in trust on behalf of a community with unregistered community land and any monies payable as compensation for compulsory acquisition of any such unregistered community land. Any such monies shall be deposited in a special interest earning account by the County Government and shall be released to the community upon registration of the community land.
Importantly, County Government is prohibited from selling, disposing, transferring, and converting for private purposes or in any other way disposing of any unregistered community land that it is holding in trust on behalf of a community.
G. Community Land Management Committee
The Act establishes a Community Land Management Committee which shall be elected by a Community Assembly consisting of all adult members of the community. Its functions shall be among others to:
- Manage and administer registered community land on behalf of the respective community;
- Coordinate the development of community land use plans in collaboration with the relevant authorities; and
- Promote the co-operation and participation among community members in dealing with matters pertaining to the respective registered community land;
H. Conversion of Community Land
Community land can be converted to either public land or private land and vice versa. The Act provides that at least two-thirds of the community members must approve any change or tenure of community land.
I. Benefit Sharing
An agreement relating to investment in community land should be free, open and a result of a consultative process which should involve among other things stakeholder consultations and involvement of the community. The agreement should provide for;
- the payment of compensation and royalties,
- capacity building of the community and
- transfer technology to the community.
Possible acquisition of community land under the regime of this new Act will take some time before it can be actualized. This is so because;
- Despite the passing of the Act, we await designation of community land registrars and registries.
- The regulations to operationalize the Land Act 2012 and the Community Land Act are yet to be developed. For these reasons ambiguities abound making decision hard and unclear at this point and time.
Much as the enactment of the Act has brought clarity on the available structures and mechanisms of engagement in community land acquisition, project implementers still have a big role to ensure smooth projects execution and implementation. Key to note are: –
- Ensuring that environmental concerns are addressed at the initiation of the projects and prudently managed all the way through the whole project cycle. A case in point is the now stalled Kes. 200billion Lamu Coal Power Plant Project;
- Ensuring and/or enhancingproject buy-in by the community and where necessary the local community leaders through real and meaningful public and stakeholder engagement and participation. Stakeholder engagement is not only a key component for successful project execution and delivery but also a constitutional stipulation. A case in point is the failedKes. 15billion Kinangop Wind Park Limited Power Project;
- Proper Due Diligence on structures, entities and organs they engage in land acquisition
- Addressing stakeholder concerns to preempt possible claims of the community members for instance that they have been disenfranchised and/or defrauded.