Revocation or amendment – Has Isiolo County Government abandoned its people?

Revocation or amendment – Has Isiolo County Government abandoned its people?

By Ali Edin and Mohamed Haji
In recent years Isiolo has witnessed the increased encroachment on its land and muted debate over the sensitive issue. This has escalated over the past weeks after a legal notice was released by the Ministry of Lands setting up the whole of Isiolo County as an adjudication area. The County Government who are trustees of community land in Isiolo then paid a visit to the Cabinet Secretary Hon. Farida Karoney and requested an amendment to the legal notice in order to reduce the coverage area for the adjudication process. Other elected and nominated national assembly members from the county led by Hon. Fatuma Dullo (Isiolo County Senator) came out strongly to oppose the legal notice and called for its complete revocation. Their concerns are the fact that there are too many land disputes in Isiolo and if the adjudication is implemented, Isiolo people stand to lose large tracts of land. As of now, Burat ward residents are in court contesting against illegal encroachment of their land by the Kenya Defence Force, there are unresolved border disputes between us and our neighbors (both Meru and Garissa) and setting up the whole County for adjudication is ill-advised and ill-timed. A proper land registration system is a must for a proper adjudication procedure to exist and with the level of corruption in the Lands ministry there is a genuine cause for worry.
For clarity, Land adjudication is “the process of final and authoritative determination of the existing rights and claims of people to land.” One may ask how much we can trust the national government with its colonial land philosophy as regards NFD to be that authoritative determiner and have the final say on land in Isiolo. There is a bleak history behind our land problems and while the country at large grapples with the land grabbing demons, its a lot bleaker for Northern Kenya. It is worth remembering that prior to the colonial rule, communities in Kenya had their own leadership structures that administered land rights among their members for purposes of activities such as the construction of shelter, farming, grazing, hunting, and gathering. Communities lived in harmony and occasional fights over territorial claims were resolved by panels of elders. The colonial government not only imposed alien land tenure relations but also introduced conceptual, legal and sociological confusion in traditional tenure systems. This led to a far-reaching disruption of African customary land tenure systems and laws. Europeans in Kenya enjoyed the privilege of secure land tenure from 1901 when the registration of Documents Act was formulated, followed closely in 1902 by the Crown Landordinance. This resulted in a situation where whites owned secure title to land while Africans had insecure ownership that could be interfered with by the whites at will. This dual land ownership system, however, started receiving attention from 1923, especially after the controversial ruling by Chief Justice Berth that‘African were merely tenants of the state and that their absolute claim on the land they occupied had been annulled by the Crown LandsOrdinance 1915, the Kenya Annexation Order-in-Council 1921and Kenya Colony Order-in-Council 1921’.  In the main, the post-colonial administration had a similar approach to land issues in NFD and its this dark history that informs the reactions of the denizens whenever the emotive land issue comes up. The land Ministry not only failed in sensitizing the locals on the adjudication process, but its actions also raise eyebrows. Its approach is that of a land grabber and its what rattles the locals.

Why is Isiolo County Chief pushing hard for an amendment to the legal notice and not asking for a full revocation of the adjudication process which is replete with dangers beggars belief? Is there a sinister move behind the amendment? And if there is who is benefitting?

The promulgaters of the new constitution in 2010 went a step further to classify land under Article 61-62 as; public, community or private. This gave a right to the locals and especially marginalized communities to have a right over their land. The Community Land Act of 2016 went ahead and provided for; the recognition, protection, registration of community land rights, management and administration of community land, and the role of county governments in relation to unregistered community land. In addition, the Act gave the communities opportunities to collectively use and manage land communally owned by forming community assemblies and community land management committees. This would eventually give a right to the community to freely enter agreements with investors to enable environmental, economic and social impact assessment, land rehabilitation, capacity building and transfer of technology.

SEE ALSO:

* Lands-ministry-on-the-spot-over-community-land-act

* The-looming-deadline-for-submitting-land-inventories-by-county-governments

Can we trust the trustee?

The Community Land Act in itself is an amazing piece of legislation and as such should be lauded for the remedy it will evidently provide if fully implemented. Section 6 (1) and (7) provides that upon registration of the community land the trusteeship role of the county government to manage and administer the registered land ceases to exist. The unregistered land currently falls under the County Government and the worry is that with the corrupt system this important role stands to be abused. The County Government deliberately failed to take seriously the efforts of registering community lands. Public sensitization and awareness to enlighten communities were not undertaking by the Lands Ministry which raises serious questions of intent on the part of the ministry and complicity on the part of the county chief. The Community is yet to register their land and the extent and exact size are yet to be identified despite this being the mandate of the County Government.
The County appeared reluctant in undertaking the important task and someone slept on the job. After the lapse of time to register community land, the Ministry of Lands released a Legal Notice No. 150 in August 2019 setting up the whole County for adjudication. The move raises several concerns; what happens to the existing land disputes, who helps to resolve the boundary issues and who will protect the interests of these vulnerable communities?. Isiolo is majorly a pastoralist community and losing their land means losing their livelihood. The constitution has sought to protect the interests of the marginalized communities by protecting their homes. However, since most of these communities lack a legal title to their communal land, governments may consider these lands empty and allocate them to companies or private developers. This appears to be the case in Isiolo and the imminent fear is that the land has already been given out to corporations with the assumption that the land is idle or underdeveloped. In reality, community land is the backbone of rural life and is the only thing that supports the lives of thousands of people and by taking it away thousands of people are set to face immense livelihood changes and subsequent adverse challenges.
What is the extent of communal land? And why undertake adjudication to issue titles to individuals when communal land is already at stake? It’s simple, this gives a chance for land to be allocated to the highest bidder while already weakening the role and rights of local communities. In the mix of these are the land sharks masquerading as conservancies, the KDF suspected to be a front for national elites and boundary disputes.
There are apparent dangers to the rushing the adjudication process and must be stopped until at least all pending issues are resolved. It is important that we give time for a more collective discussion on the way forward and the total revocation of the legal notice no. 150 released in August by the Ministry of Lands is the only way this can be achieved. Let us engage with the main stakeholders ( local communities) and give them time to understand and comprehend why they need to get titles for their communal lands. The earlier we get to resolve all the underlying issues the better chance we have of avoiding future land-related conflicts. The Maasais should be our immediate point of reference since they lost most of their lands because they didn’t have a legal claim over it. The focus should be on protecting communal land rather than forcing residents to participate in an adjudication process that will disadvantage them.
Isiolo residents should be awake to the realities of this action and its consequences. Probably for the first time the denizens of the county have majority of their elected representatives on their side and despite the gross failures of the county government that has accepted to play an extortionist tune that will ease the selling off of the county’s land to the highest bidder, the local communities must stand up with their leaders to stop it.