Safeguarding pastoral community land rights in East Africa
Land is a major source of discontent in East Africa. Pastoralist groups such as the Maasai of Loliondo, Tanzania, have cried foul over the government’s treatment of their land rights. The Kenyan Constitution recognises rights of local communities and requires that benefits accruing from resources on their land are shared with them. Tanzania and Uganda also have frameworks for addressing community rights.
In the article “Community land in EA is not a primitive precursor of private ownership” published 1 June 2013 in The East African, Patricia Kameri-Mbote, Dean of the School of Law at the University of Nairobi, argues that the trend to privatisation of community land needs to be reversed through documentation of norms, land-use practices and instances of sustainable land management by communities. The dominant worldview that relegates customary norms of land holding to an inferior status must be challenged. Laws on community land must prevent situations where abundance of mineral resources results in neglect of other economically viable activities such as pastoralism. For example, in Turkana, where oil has been discovered, community land rights must be considered to avoid exclusion of the people as resources are appropriated by others. This requires mechanisms for sharing benefits with communities; identification of speculative deals on communal land concluded with communities that had no knowledge of the value of the land; requiring that benefits from oil be shared with local communities that have lived on that land for years; and transparency and accountability measures to prevent the use of divide-and-rule tactics within communities, as happened in Kwale in Kenya over titanium. She stresses that institutions are critical in securing community land rights. Institutional structural rigidity is not suited to articulate dynamic and living tenets of community rights. There should be investment in building and strengthening community institutions. Professor Mbote regards national constitutions as good anchors for community land rights.