Equality in Process: Community Land Dispute Resolution Mechanisms in Kenyan Law

By Witchger, Kathryn E. | Columbia Journal of Gender and Law, November 2018 | Go to article overview

Equality in Process: Community Land Dispute Resolution Mechanisms in Kenyan Law


Witchger, Kathryn E., Columbia Journal of Gender and Law


"There are opportunities even in the most difficult moments. "--Wangari Maathai (1)

INTRODUCTION

In 2010, Kenya ratified a Constitution that formalized its traditional dispute resolution mechanisms ("TDRMs"). (2) In 2016, the legislature extended TDRM formalization to community land through the Community Land Act. (3) While these mechanisms give greater voice to communities, (4) they are implemented through local leaders, (5) usually limited to male elders, (6) and do not adequately represent marginalized groups. (7) During a typical land dispute, it is the elders that resolve the matter because they have the respect of the community, and the best memory for the boundaries of the land. (8) They will call a "baraza" or gathering in which community members will have a chance to voice their opinions and furnish relevant evidence before the elders make a decision. (9) In practice, this means that the new laws run the risk of formalizing not only TDRMs, but also unequal participation in these important mechanisms. While this Note focuses on the gendered impact of TDRMs, disparate access to TDRMs has a particular impact on unmarried women, youth, and other marginalized groups. (10) The formalization of TDRMs is important because land is crucial to Kenyans: it is "not merely a factor of production; it is first and foremost, the medium which defines and binds together social and spiritual relations within and across generations." (11) It is also a primary source of long-term investment. (12) Thus, as TDRMs gain power in Kenya, there is a risk that the law will embed disparate treatment into the social, political, and legal fabric of a country that has sought to redefine itself in equality.

Kenyan land law formalizes TDRMs and embeds discriminatory practices through the complicated interaction of formal and informal (or customary) laws. (13) Institutional theorists often view formal and informal as both fixed bodies, (14) and path dependent entities that are difficult to change. (15) Conventional institutionalist literature has entrenched these views into proposed solutions to property problems in Africa. (16) This Note will critically examine these theories and argue instead that Kenya is in a moment of institutional fluidity that gives communities in particular a chance to create inclusive TDRMs. (17)

Kenya is at a crossroads. During colonialism, the British government expropriated the best land and Kenyans were regarded as tenants on the land. (18) When the country became independent, it was bestowed with a Constitution that the people of Kenya neither drafted nor ratified. (19) During the intervening years, the Constitution was amended many times in an attempt to centralize political and land-based power. (20) These constitutional developments disregarded "the sanctity of the Constitution through disobedience to constitutional principles coupled with constant mutilation of the document.... [This] created a legal vacuum, which has led to the trivialization of Constitution making in Africa." (21) In 2010, a new Constitution was ratified which vastly restructured the political landscape and empowered Kenyans through the devolution of political and land-based power. Six years have passed, yet there are persistent ambiguities between formal and informal land laws. (22) The Community Land Act of 2016 is an attempt to formalize tenure on land that government officials historically expropriated. (23) Yet as recently as the end of 2016, several significant legal and institutional changes have already been repealed. (24) These changes do not simply impact scholastic legal analysis and development theory. Land matters have a real, lasting, and immediate impact on the lives of all Kenyans, (25) especially the estimated sixty-five percent in rural areas. (26) This is a critical moment in Kenyan history. How the government and communities choose to define the interaction of formal and informal land laws will have a lasting impact on equal participation and equal outcomes in TDRMs. …

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