COMMUNITY LAND: WHAT ARE CUSTOMARY LAND RIGHTS?

1. WHAT IS A “COMMUNITY” ?

A Community is a group of people with common ancestry, culture, language or similar interests (Community of interests).

2. WHAT IS “COMMUNITY OF INTERESTS” ?

This is group of people enjoying common rights, privileges, interests or living in the same place.

3. WHAT ARE CUSTOMARY LAND RIGHTS?

They are rights derived from customary law, customs or practices.

4. WHAT IS COMMUNITY LAND AND WHAT CONSTITUTES COMMUNITY LAND?

Community land is all land used traditionally or historically for communal purposes and land used as Community Settlement area. It is identified on the basis of ethnicity, culture and similar community of interest. It also includesland lawfully held, managed or used by specific communities as community forests, grazing areas, shrines, Ancestral lands and lands traditionally occupied by hunter gatherer communities or, land lawfully held as trust land by the County governments .

5. HOW WILL COMMUNITY LAND BE MANAGED?

i. There will be a register of all Community lands in Kenya.

ii. Communities will be registered as corporate bodies and a register maintained.

iii. Registrations will be done in the name of the community.

iv. Community Assemblies will be held annually in which every member of the community shall be entitled to attend and participate.

v. Community Land Management Committees will be formed during the community assembly to manage every parcel of community land.

vi. Community Land Boards present in each sub – county will work with the Community Land Management Committees.

6. CAN THE TRUSTEES DISPOSE THE LAND?

Community land shall NOT be disposed of or otherwise used except in terms of legislation specifying the nature and extent of the rights of members of each community individually and collectively.

7. IS IT POSSIBLE TO CONVERT COMMUNITY LAND TO PUBLIC OR PRIVATE?

Yes! Community land may be converted to public or private land through compulsory acquisition, transfer, surrender, or allocation by the Community Land Management Committees but this has to be agreed upon through a County Assembly.

8. WHAT ARE THE SOME OF THE SPECIAL RIGHTS UNDER COMMUNITY LAND?

A Committee may upon application and with approval of the community assembly may allocate part of the community land to a member or a group of members of the community for exclusive use and occupation but no separate title shall be issued for such parcel e.g. grazing rights, cultural or religious rights.

9. HOW WILL THE NATURAL RESOURCES, LAND USE PLANNING AND INVESTMENTS IN COMMUNITY LAND BE MANAGED?

• Natural resources within the community should be managed sustainably, with accountability and transparency and should benefit the whole community on the basis of equitable sharing.

• Any investment relating to exploitation of natural resources shall be agreed between the investor and the community according to Article 71 of the Constitution.

• Benefit sharing will be at 30% of the income of the investor.

10. HOW ARE DISPUTES IN RELATION TO COMMUNITY LAND HANDLED?

• Dispute resolution mechanisms under traditional and customary laws

• Mediation

• Arbitration

• Courts e.g. the Land and Environment Court.

11. HOW DOES THE COMMUNITY LAND BILL ENSURE THAT THE INTEREST OF WOMEN ARE TAKEN CARE OF?

• The community land bill provides that all natural resources will be managed sustainably to and should benefit the whole community on the basis of equitable sharing.

• The Constitution introduced the principle of 1/3rd gender rule which will apply in all the committees formed to manage community land.