Academic journal article Nomadic Peoples

The Dawn of Uhuru? Implications of Constitutional Recognition of Communal Land Rights in Pastoral Areas of Kenya

Academic journal article Nomadic Peoples

The Dawn of Uhuru? Implications of Constitutional Recognition of Communal Land Rights in Pastoral Areas of Kenya

Article excerpt


Despite large portions of land being communally owned in Kenya for centuries, the legal and policy framework on land tenure has, since 1954, focused on private ownership as the best way of managing land. This article assesses the impact that this dominant approach has had on pastoral land uses. Based on the case study of the Northern Rangelands Trust, a registered trust that provides a framework for community involvement in conservation and other livelihood options in the arid and semi-arid parts of northern Kenya, the article looks at the innovations that communities have made to provide legal support for communal land practices. The article argues that the recent land-policy changes heralded by the 2010 Constitution promise greater recognition and support for pastoralism but that, on their own, they are insufficient.

Keywords: pastoralism, group ranches, communal land rights, tenure, Kenya, land use


While land is central to the lives and livelihoods of the majority of the population in Kenya as in most developing countries (Blotcher 2006), the manner in which land is treated in law and policy has not always respected this reality. In Kenya, as in most African societies, land has historically been communally owned (Wily 2008; Kameri-Mbote 2002; Cousins 2009). However, legislation and policy have neglected or sought to replace such communal ownership with private tenurial arrangements (Migai-Akech 2001). From 1954 onwards, official Kenyan Government policy (1) sought to promote private ownership of land as the most suitable tenure regime to ensure agricultural productivity (Okoth-Ogendo 1991; Mweseli 2000). Until August 2010, when the country passed a new constitution (Republic of Kenya 2010a), Kenya's constitution gave recognition to this position. Land, despite its central role, was not given sufficient constitutional protection. In the limited instances when property rights in land were recognized in the old constitution, it was to protect private property rights (Bhalla 1996; Republic of Kenya 1998: Section 75).

Despite this tendency, the reality is that the focus on private property rights has not encouraged sustainability in land or enhanced productivity (Ogolla and Mugabe 1996). Especially in pastoral areas, where land ownership, management and use are inimical to private tenure arrangements, communal management approaches have been favoured. To respond to this reality, the law instituted group ranches as a solution to these communal arrangements (Lenaola 1996; Kibugi 2009). However, due to the lack of a supportive constitutional architecture such arrangements have not been fully successful.

The adoption of the National Land Policy (NLP) in Kenya (Republic of Kenya 2009a) and ratification of a new constitution (Republic of Kenya 2010a) through a referendum on 4 August 2010 promised to usher in a new dawn in the property regime and land-management structure in the country. Pastoral areas, under the old constitutional framework, operated without adequate support for the way the land is held in large tracts by clans and larger communities under customary arrangements. Customary tenure was regarded as transitory, subject to conversion and modernization to more stable tenure regimes like private tenure (Ogolla and Mugabe 1996). The constitutional recognition of communal tenure as a distinct category of equal status to both public and private tenure could mark the beginning of uhuru (2) for land tenure in pastoral areas and lay the necessary foundation for the protection and security of pastoralism as a land use.

This article uses the case study of the Northern Rangelands Trust (NRT), an umbrella organization established in the northern parts of Kenya to provide a framework for communal conservancies, interrogating the tenure arrangements it employs. It analyses the impact of the proposed land reforms on those existing practices and assesses the future of pastoral land use within the context of community land rights under the new constitution. …

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