State has failed Isiolo residents on community land
Tuesday, March 3rd, 2020
Land grabbing can oftentimes be disguised as legitimate when a government gazettement is used to throw some veil of due process over illegalities.
But as the Lands ministry and county governments conspire to illegally appropriate community land, no veil can disguise the use of sovereign power by the people’s own chosen trustees to rob them of what is rightfully theirs.
And so it is with Isiolo and its land.
As it is, land rights have been at the heart of Kenya’s inflamed degree of resource and ethnic conflict, which is why we have poured huge legislative efforts into resolving our historical land “wrongs”.
Yet our Lands ministry seems to have failed to grasp its central role in applying the new laws to create a fairer, stronger and more united nation.
The 2010 Constitution created a new land law, and established an adjudication procedure for disputed lands.
It then created a separate law for community lands, and for a reason—most community land had no registered owner and had been occupied by our pastoral communities, owned by no other, but never registered.
So, by 2016, the Community Lands Act was enacted to put in place the systems and procedures to register community land to its rightful owners; the local communities.
But it took until 2018 to promulgate the regulations to operationalise the law.
And then began the process of mapping our unregistered community land, and registering it. This, by law, should have involved two processes.
From September 2018 and for one year the Lands ministry was charged with educating the public on the new law and raising public awareness. It never did.
At the same time, county governments had until April 2019 to produce an inventory of all their community lands. Not all of the 24 counties with community lands met that deadline, but some of them did, and Isiolo was one of them.
By the end of last August, the ministry was supposed to have processed the inventories and begun the registration process for the identified community lands. It did not play its part, again.
Instead, the Lands Cabinet Secretary took a very different path and on September 3, last year, issued a legal notice moving Isiolo’s community lands out of the process defined by the Community Land Act, and over into the Lands Adjudication Act process instead.
In a single step, the Community Land Act, which the ministry had never educated anyone about, was effectively annulled.
In fact, the breach of law was greater still. The ministry announced that large tracts of the Isiolo community land would not be adjudicated at all, and instead simply claimed them for the government, without compensation, and without any process whatsoever. That is tantamount to land grabbing because the said land did not belong to the government. It cannot, therefore, take it without going through a normal process of government acquisition and compensation to the actual land owners— the pastoral communities.
It is unfortunate the ministry took the land and ignored the land laws.
Certainly, it’s a depressing reflection of our ethical foundation when our ministry cannot grasp the rationale, basis or legality of the Community Lands Act 2016.
This strikes at the heart of our Constitution, our capacity and integrity as a government and as a state.
The Community Land Act does exist, and it should be respected— and applied.
The Isiolo community land registration needs to proceed as defined in law, with the government having the honour and respect for community rights to compensate the owners for any land it would like to own.
We do not live in a new republic where State officers pick and choose the laws they want to apply. We live in a republic bound by the laws it makes, and bound to apply them. —The writer is Nominated Senator