The Persistence of the Commons: Economic Theory and Community Decision-Making on Land Tenure in Voi, Kenya

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Abstract: Projects to secure land rights for the urban poor have been implemented in Sub-Saharan Africa for thirty years. A recurrent issue is providing sustainable land tenure for settlement residents/project beneficiaries. Commonly, individual titles have been used. Often recipients sell their land rights to more affluent city dwellers, exacerbating the growth of slums. Policymakers are investigating alternative tenure forms including community-based institutions. This paper presents a project in Kenya in which the Community Land Trust (CLT) model was used to provide tenure security as part of a settlement improvement project. The paper seeks to understand community decision-making on land tenure and why settlement residents selected a group or community-based title option over individual title when one theoretical perspective on property rights in Africa, the Evolutionary Theory of Land Rights, would predict a preference for individual ownership. The case study was constructed from qualitative interviews with settlement residents, coupled with informant interviews and document/archival analysis. The paper argues that Voi residents' decision to hold land together reflected their perception of themselves as a powerless group vulnerable to losing land to outsiders. The community, moreover, had a history of shared action to defend their land holdings that served to establish a level of trust which made the group tenure a possibility. The paper concludes that the decision to hold land together was entirely rational--a collective institution better served to protect their individual self-interest than the individual institution predicted by the ETLR. The Voi case underlines the notion that "history matters" in institutional analysis--to really understand institutional change we must understand the embedded context of decision-makers. The study also supports the perspective that there is no one-size fits all approach to land tenure. Policymakers should strive to provide a range of tenure options that can fit the context of the specific community.

INTRODUCTION

In March 2004, the Government of Kenya issued the terms of reference for a national level committee comprised of governmental officials, NGO representatives, private sector members, university faculty, and civil society groups. [1] The mandate of the committee was to resolve the country's land administration and management problems through the drafting of a National Land Policy. Key concerns highlighted for discussion by the National Land Policy group included: insecure land tenure for vulnerable groups such as women, pastoralists and the urban poor; poor land administration; weak dispute resolution mechanisms; and continued land fragmentation.

Kenya's land policy reform, notably, is not an isolated effort. Land policy discussions have been taking place in Sub-Saharan Africa since the 1990s in countries as diverse as South Africa, Ethiopia, Tanzania, Uganda, and Namibia. [2] Common to all these discussions is the question of what to do with customary or community-based land tenures, particularly whether to privatize or reform and retain these institutions.

That customary tenures are even a point of discussion in Kenya is in itself striking. In the mid-1960s when the newly independent Government of Kenya was determining its land reform policies, the question of what to do with community-based tenures was not open to debate--all customary rights and interests in land were to be extinguished. [3] Unabashedly market-oriented, the Kenyan government transformed community-based tenures to individual tenures through a protracted process of adjudication, consolidation, survey, registration, and titling. The rationale for the land tenure reform was simple: indigenous, community-based tenure forms were viewed as inhibiting economic growth because they provided insufficient "security of tenure" to allow for substantial investment in land necessary for agricultural production. …