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The Implications of Existing Land Tenure Systems on Land Use and Natural Resource Management in Kenya

The paper considers the effects of existing land tenure systems on land use and management of natural resources in Kenya. Land tenure, since it determines access to land, is a critical variable in the management of natural and environmental resources, soil conservation, water resources as well as wildlife management. The paper advocates for alternative land tenure and land use policies which aim at defining property rights in a manner that incorporates the use of resources in a sustainable manner as well as conservation for future generations.

Key words: Land use, Tenure, Freehold, Leasehold, Customary

Introduction

Concern about land tenure and its impact on land use as well as the management of natural resources is not a recent phenomenon in Kenya. Prior to and after independence, radical changes have been deliberately initiated in tenure arrangements. These have been justified mainly on the basis of the expected improvements in productivity, land use planning and decision-making, which they would generate (Ogolla and Mugabe, 1996). Until recently the debate on the interface between land tenure and land use concentrated on to enhancing agricultural production. However land tenure, since it determines access to land is a critical variable in the management of natural and environmental resources, soil conservation, water resources as well as wildlife management. Land tenure provides the legal and normative framework within which all agricultural as well as other economic activities are conducted. Tenure insecurity, whether under customary or statutory tenure regime undermine the effectiveness of these activities. When tenure rights are secured, they provide incentives to use land in a sustainable manner or invest in resource conservation whether for the individual or group of individuals (Ogolla and Mugabe, 1996). Kenya having an agricultural based economy, the majority of her people derive their livelihood from various forms of agriculture. Different communities practice various forms of land use, based on their social-economic needs and cultural practices, and determined mainly by weather patterns, soil fertility, ecology and level of social development. In the urban areas, there is intensive land use due to high population densities. Zoning laws are enforced to encourage development along pre-determined lines whether for commercial, industrial, residential or recreational purpose. The greatest challenge in urban areas is the occupation of various government trust or people’s lands by other people, especially immigrants from the rural areas. The tenures adopted, having an effect on land use, should aim at providing security of tenure to the persons holding the land sustain and improve the environment; be easily understood; be acceptable to the communities as well as being equitable. It is therefore imperative that the government pursue land tenure and policies that will lead to sustainable land use and development. The tenure policies adopted should therefore strive to satisfy various objectives such as the following:

a) Efficiency in land use by providing a smooth functioning land market and permitting maximum productivity of land resources for all types of uses. The system should also be responsive to various changes in demand.

b) Aim at equity by ensuring that the tenure system provides reasonable access to allgroups especially the vulnerable or low income ones.

c) The system should be comparable with other policy instruments dealing with economic development and must not contradict existing legislation.

d) Continuity, such that it avoids abrupt breaks in the existing political and cultural set up.

These objectives should be achieved whether the land is held in freehold, leasehold, under customary law or in other ways.

Land Use Systems in Kenya

Kenya has a total area of 582,646 Sq. Km and agriculturally can be classified into three broad zones: high, middle and low. The high and medium potential areas cover about 18% of the total land area while the low potential arid and semi arid areas covering about 82% of the total land area (Kenya Economic Survey, 1992). The main economic activity in the high and medium potential areas is intensive agricultural and livestock husbandry while in the low potential areas is pastoral, ranching and wildlife-based systems and in some places, dry-land farming. In urban areas, land use is determined by various zoning laws, which prescribe the areas to be used for commercial, residential, industrial, recreational and public purposes.

Land Tenure Systems in Kenya

Interests in land broadly fall into two groups. Rights that are held through traditional African systems and rights that derive from the English system introduced and maintained through laws enacted first by colonial and later by the national parliament. The former is loosely known as customary tenure bound through traditional rules (customary law). The latter body of law is referred to as statutory tenure, secured and expressed through national law, in various Acts of Parliament e.g. Government Land Act (Cap 280), Registered Land Act (Cap 300), Registration of Titles Act (Cap 281), Trust Land Act (Cap 288) of the Laws of Kenya.

a) Customary Land Tenure

This refers to unwritten land ownership practices by certain communities under customary law. Kenya being a diverse country in terms of its ethnic composition has multiple customary tenure systems, which vary mainly due to different agricultural practices, climatic conditions and cultural practices. However most customary tenure systems exhibit a number of similar characteristics as follows:

First, individuals or groups by virtue of their membership in some social unit of production or political community have guaranteed rights of access to land and other natural resources (Ogendo, 1979). Individuals or families thus claim property rights by virtue of their affiliation to the group.

Secondly, rights of control are rested in the political authority of the unit or community. This control is derived from sovereignty over the area in which the relevant resources are located. Control is for the purpose of guaranteeing access to the resources and is redistributive both spatially and intergenerational. Its administrative component entails the power to allocate land and other resources within the group, regulate their use and defend them against outsiders (Ogolla and Mugabe, 1996).

Thirdly, rights analogous to private property accrue to individuals out of their investment of labour in harnessing, utilizing and maintaining the resource. Thus the present cultivator of some piece of land has the greatest rights to it. These rights transcend mere usufruct and encompass transmission and in some communities transfer (Elias, 1956). Lastly, resources that do not require extensive investment of labour or which by their nature have to be shared, for example, common pasturage, are controlled and managed by the relevant political authority. Every individual member of the political community has guaranteed equal rights of access thereto. The regulatory mechanisms imposed by the political units such as exclusion of outsiders, seasonal variations in land use and social pressure ensured sustainable resource utilization. This mode of ownership in Kenya is currently governed by the Trust Land Act by which all land in the rural areas which is neither government land nor individually owned is vested in the county council in trust for the residents living there.

b) Statutory Tenures

i) Freehold tenure

This tenure confers the greatest interest in land called absolute right of ownership or possession of land for an indefinite period of time, or in perpetuity. The Registered Land Act (RLA) Cap 300 of the Laws of Kenya governs freehold land. The Act provides that the registration of a person as the proprietor of the land vests in that person the absolute ownership of that land together with all rights, privileges relating thereto. A freehold title generally has no restriction as to the use and occupation but in practice there are conditional freeholds, which restrict the use for say agricultural or ranching purposes only. The colonial settlers who required legal guarantee for the private ownership of land without which they were reluctant to invest, demanded land individualization. The principle for privatisation was hence laid down and implemented as from 1956 mainly in Central Province. To date most of the agricultural regimes with high potential such as western Province, Kericho, Uasin Gishu, Embu, Meru, Machakos and Kisii districts have been completely adjudicated and registered (Ogolla and Mugabe, 1996). With regard to the areas with lower agricultural potential, mostly arid and semi arid parts of the country where the dominant land use was pastoralism, a different registration system was instituted in 1968. This is the regime of Land (Group Representatives) Act. Here the registration of group ranches was viewed as a compromise between individual ownership and the need for access to wider resources in dry lands. Under this system ‘communal lands’ are divided into smaller units ‘ranches,’ which are then registered in the names of group representatives (three to ten members) elected by the members of the group (Wanjala 2000). Every member of the group has rights in the ownership of the group land in undivided shares. The members are entitled to reside therein free of charge with their family and dependants and make exclusive use for the grouped ranches resources. This appears to be a marriage between the need to have exclusive use of an area of land and the communal ownership and use of land in these areas.

ii) Leasehold Tenure

Leasehold is an interest in land for a definite term of years and may be granted by a freeholder usually subject to the payment of a fee or rent and is subject also to certain conditions which must be observed. e.g. relating to developments and usage. For government land the government also grants leases, the local authorities for trust land and by individuals or organisations owning freehold land. The maximum term of government leases granted in Kenya is 999 year for agricultural land and 99 years for urban plots. There are few cases of 33 years leases granted by government in respect of urban trust lands. The local authorities have granted leases for 50 and 30 years as appropriate (GOK, 1996).

c) Public Tenure

This is land owned by the Government for own purpose and which includes unutilised or unalienated government land reserved for future use by the Government itself or may be available to the general public for various uses. The land is administered under the Government Lands Act Cap 280. These lands are vested in the president who has, normally through the Commissioner of Lands, powers to allocate or make grants of any estates, interests or rights in or over unalienated government land. Categories of government land include forest reserves, other government reserves, alienated and unalienated government land, national parks, townships and other urban centres and open water bodies (GOK, 1996). The Government Lands Act does not contain any notion of trusteeship by government of the land on behalf of the people of Kenya. Indeed the government at times acts as a private owner and allocates parcels to those in its favour.

d) Other Interests

These include:

- Reservations of other government or trust land to government ministries, departments or parastatals for their use.

- Minor interest such as easements, wayleaves or temporary occupation licences.

- Non formalised defacto tenure by which people, individually or in groups invade and occupy other people ‘sor government land particularly in the major urban centres of Nairobi, Mombasa and Kisumu.

Some Effects of Registration on Land Use

a) Freehold Areas

Registration transformed land from communal ownership to individual absolute ownership. This process also converted land into a commodity, which can be sold, leased, charged or mortgaged at the absolute discretion of the owner. The rationale was that the registration would enable peasant farmers to have credit from financial institutions, as they would use their lands as collateral. This has by and large been successful but it also caused considerable difficulties to those who defaulted as the financial institutions were given wide powers of sale in the event of default. Many families have found themselves dispossessed of their land due to imprudence of certain members, drought, inexperience and other causes of default. Absolute ownership and discretion on use has resulted in many instances of absentee landlords. Large tracts of land remain ideal notwithstanding landlessness and recurrent food shortages in the country. This is because private property rights have encouraged accumulation and speculation thereby withdrawing land resources from productive use (Wanjala, 2000).

The process of tenure reform and its aftermath caused considerable confusion and insecurity of tenure. In most rural areas, land is still regarded as a collective asset. The predominant belief is that registration did not oust family or clan ownership and in many instances registered land has been challenged on the ground that land is former family or clan land (Wanjala, 2000). Various land use practices, which are based on customary practices of communal ownership, have persisted even in areas where land is registered. This is especially so in areas where the land use practices are driven by the diversity of soil types and related crop diversity. Under such conditions communities have continued to use customary rules of access to multiple sites e.g. salt lakes or water points, instead of relying solely on their registered parcels. The practice of inheritance where normally a father shares out his piece of land to his adult sons (and increasingly to unmarried daughters) has led to subdivision of agricultural land to a very high extent. Apart from increasing the number of boundary related disputes, the subdivisions have created intrinsically small parcels, some of which can hardly sustain a family unit even for subsistence. The small parcels which are over exploited and lose their fertility quickly as a result of overgrazing, soil erosion and other poor farming practices.

b) Areas under Group Representatives

As stated earlier, in the drier regions of Kenya land has been registered as group ranches.In some of these areas there has been considerable pressure especially from the well- educated members of the community to subdivide the group ranches into individual units.This is especially so in Narok and Laikipia districts. This move to subdivide group ranches portends an economic, ecological and cultural disaster for the communities especially the Maasai (Ogolla and Mugabe, 1996). This is because practical experience has demonstrated that faced with adverse climatic and ecological conditions the patoralists do not respect the sanctity of private property (Wanjala, 2000). For example, in 2000 there were frequent land intrusions on private lands including the Nairobi City centre by Maasai herdsmen in search of pasture. At the same time in these pastoral areas, given the existing land use technology the nature of ecological factors in the area and the cultural context, land use in the region will for some time demand wider access to land and other natural resources. Restricting access rights through the subdivision of group ranches and the creation of private property rights will not only imperil the existing pastoral economy but also adversely affect the cultural practices and traditions of the Maasai (Ogolla and Mugabe, 1996). The Land (Group representatives) Act was seen by government as a compromise between individual ownership and granting access to the communities to large tracts of land. This was an attempt to provide customary rules within a statutory framework (Wanjala, 2000).The creation of group ranches with the members having exclusive use of ranch resources has created conflicts and confusion regarding the locus of authority, and Lack of coordination in the use of common resources. Some members have agitated for and have managed to parcel out individual ranches or parcels. This is leading to over parcelation, over exploitation of land due to overgrazing, deforestation and landlessness.

c) Areas under Public Tenure (Government Land)

Government lands are often invaded and occupied by individuals or groups of people especially in urban areas and in forest reserves. Due to insecurity of tenure and lack of any registrable interest in the occupied lands, the occupants have a tendency to over exploit the resources therein, leading to severe environmental degradation. The law in Kenya does not recognise the type of tenure called squatting and it is in fact regarded as trespassing. In land registers, such lands are treated as vacant. However, more than 50% of the urban population in Kenya has lived in these settlements for more than two decades. These squatter or informal settlements are characterised by inadequate basic services and widespread poverty. They are subjected to constant harassment by local authorities as their dwellings are under constant threat of demolition. It is generally acknowledged that widespread poverty in those settlements is accentuated by lack of security of tenure. The problem of squatters is widespread also in forests where there are constant incursions not only by the poor and landless but also the by ‘high and mighty’ for farming or expropriating high value timber and other forest products. This has contributed to massive soil erosion and its disastrous consequences downstream, displacement of wild animals from their natural habitat and other negative environmental consequences. With time the squatters demand to be allocated the occupied lands and have in the past, out of political expediency, succeeded, thereby encouraging further and further incursions. A bigger problem in these forest areas is the cultivation of various drug crops especially ‘bhang’ (cannabis sativa) and government efforts to stamp out this out of ‘its own’ lands appears lukewarm. There are hundreds of acres of this crop deep in the forests of Mt. Kenya.

At the same time, the land allocation process prescribed in the Government Lands Act has largely failed in that it rarely incorporates the ancestral rights of the people. The process is by and large insensitive to the landless. Allocations are often to the powerful, leaving the local people landless and very angry.

Conclusion

Land tenure types and policies tend to determine the nature of agriculture and influence other land use practices in Kenya and other parts of the world in general. In order to achieve sustainable agriculture the country needs to adopt policies and strategies that promote conservation of natural resources. This should be by devolving the natural resources to local communities and encouraging local level sustainable resource management. Alternative land tenure and land use policies should be sought which aim at defining property rights in a manner that incorporates the sustainable use of resources as well as conservation for future generations. The control of natural resources should be vested in local communities who should be educated on sustainable resource management (Ogolla and Mugabe, 1996).On privately registered land, laws should be made which would allow the government to intervene on private land for the purposes of sustainable resource use or conservation for the common good. This should be done through legal mechanisms, which maximise the public good and minimize the potential abuse of authority (Ondiege, 1996). There are no easy solutions and the land questions can be ignored only at our own peril. Some demand immediate answers while others require careful thought by both government and all other stakeholders. A participatory approach is a must but the government must be prepared to make tough political and economic decisions.

References

Elias T. O. 1956. The Nature of African Customary Law, Manchester University Press.

Kenya Economic Survey. 1992. Central Bureau of Statistics, Nairobi.

Ministry of Lands and Housing. 1991. Handbook of Land Use Planning, Administration and Development Procedures, Republic of Kenya.

Ogolla, B. D. and Mugabe, J. 1996. Land Tenure Systems. In: Land We Trust. Initiative Publishers, Nairobi Kenya.

Ondiege, P. 1996. Land tenure and Soil conservation. In: Land we Trust. Iniatives Publishers, Nairobi, Kenya.

Okoth O. 1979. Land Tenure and its Implication for the Development of Kenya Semi-Arid Areas, Nairobi, Institute of Development Studies, University of Nairobi

Okoua, B. and Mwangi, A. M. 1996. Land Tenure and Forest Resources. In Lland We Trust. Initiative Publishers, Nairobi, Kenya.

Wanjala, S. 2000. Essays on Land Law: The Reform Debate in Kenya. Faculty of Law, University of Nairobi.

Wily, L. A. and Mbaya, S. 2001. The Impact of Land Relations on the Role of Communities in Forest Future: Land Peoples and Forests at the beginning of the 21st Century. IUCN, Nairobi, Kenya

* Faculty of Natural Resources and Environmental Studies, Department of Geography, Egerton University, P. O Box 536, Njoro, Kenya, E-mail: mmironga@yahoo.com

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