Recent development on Kenya's oil exploration brings to the fore some of the widely held observations across the Third World on land concessions and all their attendant risks on host communities.
Generally, governments (in resource rich but poor nations) grant large land concessions with the intent of fuelling national commercial, agricultural or industrial growth and contributing to improvements in gross domestic product and local living conditions.
On the same vein, I have come to understand of Kenya's plans to roll out a pipeline project to connect the oil fields of Lokichar in Turkana County to the port of Lamu. This venture was amplified the other day when President Uhuru Kenyatta echoed the need to integrate community shareholding on land taken for the purposes of building the oil pipeline and any connected infrastructures.
From the face value, this step looks noble and geared towards empowering communities along the oil pipeline path. However, certain factors must be ironed out before the deal is inked: 1) Facilitate the documentation and protection of customarily held community lands through legally established land titling processes; 2) Understand how to best and most efficiently support communities to successfully protect their lands and determine the types and level of support required to support communities in these processes; and 3) devise strategies to guard against intra-community injustice and discrimination during community land titling processes, and to protect the land interests of vulnerable groups.
A closer look into the existing community land regimes reveals glaring gaps on matters land use and management between host communities on one hand and business interests, government and leaders on the other. Communities do not enjoy the autonomy to decide on the usage of their lands. The legal framework providing for land ownership ignores the critical role played by customary laws. Customary land ownership is not captured and/or recognised in documented laws on land.
Which begs the questions: is President Uhuru's call for community land shareholding grounded on laws or is it just another ploy to dispossess the Turkana community of its land? Should boardroom decisions by community leaders override the voices and interests of the masses, the owners of lands?
While investments are critical to any nation's development, it is imperative to take a look at the community's interests and arrive at decisions that foster unity and benefit for all. Investments must reflect the lived realities of communities and adhere to their daily interactions with a view to respecting and holding dear their social constructs. Any deviation from this erodes the purpose of any development.
This, therefore, informs why the land shareholding venture as proposed by the national government stands no chance to succeed if the question on land ownership is overlooked.
It must be remembered that the government's ownership of minerals does not in any way elevate its status vis-à-vis community lands. Community lands, just like private lands, deserve the legal protection of the State. Any decision, agreement, or activity that affects community land cannot happen without the free, prior, informed consent of the community. This means, the community must give its approval before any venture is effected.
And the Turkana community is no exception.
Titling land held by families and communities under customary law may be necessary to protect land rights from encroachment. A possible method is to allow communities to register their lands as a whole by reference to customary boundaries, and then empower them to control and regulate intra-community land holdings and usage.
Titling land in this way can yield several benefits. First, since community land titling facilitates the recognition of communal, overlapping and secondary land rights, it may provide particular protection to poor and vulnerable community members who do not have their own land.
Second, it has the potential to safeguard an entire community’s land at once, hence representing a faster and more cost-effective means of protection than individual titling.
Third, community land titling may help to foster local economic growth and promote sustainable natural resource management.
But to make this a reality several steps must be undertaken. One; the State should stop seating on Community Land Bill and expedite its passing into law. This law should have been passed like yesterday. Two; align customary laws with national laws governing community lands. Customary laws must have the full force of law for its purpose to be felt by the people.
Three; open all deals with respect to lands and seek community's voice. The community itself should be involved in discussing and negotiating all aspects of investment projects. Four; restrictions must be put in place to ensure community health, environmental and cultural protections.
Five; benefits and/or fair compensation must accrue to the community. And finally; the presence of a signed contract committing the parties in question to their obligations vis-à-vis community interests is highly needed.
The writer is an Architect. Twitter: @mlemukol. Email: lemoseh89@gmail.com
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