Land tenure reform is a priority agenda on the Kenyan socio-political scene. The country's colonial history where land was forcefully taken away from the indigenous populations and privatised by the colonial state in favour of a British settler community led to the rise of the Mau Mau insurgency around the twin agenda of 'Land and Freedom'. The post-colonial situation therefore inherited a land tenure regime that was foreign in concept - individual titles for landholdings as opposed to collective ownership by communities. Security of tenure was provided not by the state guaranteeing a paper title but by the community itself. Access to land was determined not by purchase but by belonging to a community. Land in pre-colonial Kenya was a community resource, not an individual commodity. The post-colonial state continued the process of alienating land to individuals. Trust Land1 was alienated to individuals who were given titles to it, Government Land2 was sold on the basis of market principles of willing seller - willing buyer or otherwise given out as political grants to favoured individuals and groups. Hence land become an economic and political commodity whereby traditional rights of access to land with secure tenure were overridden in favour of capitalist principles and the rise of a landed class which initiated the emergence of a landless peasantry.
The 'land question' therefore poses the thorniest social issue in both the colonial and post-colonial Kenya. Its greatest negative impact is now being felt in urban areas. With increasing urbanization, and cramming of people in slum or squatter settlements in urban areas, the urgent address the question of human settlements in urban areas has been felt for several years now. However the central government, local authorities, NGOs and bilateral donor organic have all been working independently of each other or in limited partnerships with the government to address the issue.
Several experiments at "upgrading" have been attempted by the central government with donor funding. Unfortunately these attempts, have had very limited long term impact. Due to population pressures, poor soon get marginalized and are bought out by the richer elements within the society - thus pushing the poor once again , into other unplanned settlements.
NGOs have, on the other hand, struggled with new paradigms aimed at addressing the issue of settlements holistically from a perspective o social justice and promoting alternative land tenure systems as a fundamental starting point.
GTZ a German government agency, through its Small Towns Development Project has attempted to bring together the various stakeholders to address the complex question of urban settlements within smaller towns in Kenya the early 1980s. Working in conjunction with the Ministry of Local Government, the Voi Municipal Council and the Commoner of Lands, the staff of Kituo Cha Sheria (Legal Advice Center) - an NGO - and the people of the Tanzania Bondeni squatter settlements within Voi Township, have attempted to jointly provide access and security of tenure to the residents o he Tanzania-Bondeni villages and to assist them to develop a sound shelter policy, community education, particularly equity and justice in land allocation. The government in turn has recognized the slum dwellers to secure communal title to land with GTZ and NGOs providing financial, logistical, technical and legal support while parastatal agencies like the National Cooperative Housing Union (NACHU) provide individual credit and organizational support.
- Land held in trust by the state for an indigenous community under the Trust Lands Act.
- Land alienated by the colonial state to the Crown and held by the State in independent Kenya under the Government Lands Act.
Colonial policies did not allow for an African to own land in urban areas. African workers were settled on the peripheries of urban areas - within the 'native reserves' and were granted a Temporary Occupation Licence (TOL) that rendered them tenants at will of the state with no right to build permanent structures. Hence Africans could only build temporary structures using traditional materials like wood and clay with grass thatch or tin roofs. This has continued into the 1990s and the poor who continue to settle on the edges of the towns are still treated as temporary occupants or 'squatters'. Hence the issue of security of tenure becomes important beyond mere access so that people can build and own homes and develop communities rather than live like refugees in their own cities and towns.
The Voi experiment is the first of its kind in the country. Government is now being encouraged to reconsider its land tenure policy in the light of the CLT experience in Voi and to expand creative thinking in the area of land tenure policy based upon an African perspective of land tenure that benefits the community rather than just the individual. Tentative policy acceptance of the Community Land Trust model is contained in the HABITAT II Country Paper for Kenya as well the Presidential Initiative on the Social Dimensions of Development Programme launched in 1994. The success of this project may lead to a situation where land owned by communities could, by hoice, be withdrawn from the speculative market and protected as a collective resource for the benefit of a larger number of people. Its repercussions in the Kenyan context (or the law of perpetuities and its value as a commodity tradeable on the market has yet to be assessed - even theoretically. However it is expected that the debate on community land tenure will not only impact on tenure policy but also agitate a more fundamental debate on the question of property and property value, its social derivation and the ownership of value created by social groups upon sale or transfer of property outside such groups. The issue of community economics versus the integration of communities into the larger international consumer markets would also feature in a discussion over the securing of mere access to land versus property ownership and the concept of value in the African context, both past and present.
One of the most important outcomes from this CLT project (and hopefully a long lasting one) is the change not only in the material conditions of the urban poor as far as shelter is concerned but also in their perceptions of their own capacity vis-a-vis that of the dominant or prevailing system. The fact that their -exclusion" from the means of life or rather access to these basic amenities can be re-molded within the contours of the existing system to largely their benefit for once is very empowering for not only the community itself, but the surrounding neighbours as well. The fact therefore that equity is possible to achieve if the negative effects of the market economy are curtailed and if the community’s cohesion is maintained is a heartening lesson to all those involved so far. It is an impetus towards further solidarity and adherence to the principles of project membership.
In addition, the self-resourcing effort on the part of the community to finance the main requirements of the project further proves that the poor in the Third World do not need to depend on bourgeois charity or welfarism in order to uplift their conditions of life. It also underscores the view that women especially, when it comes to the self-provision of shelter under communal schemes, are often at the helm of it. But if it works for one half of humanity, then it can work for the society as a whole. Equity as the driving principle can thus progressively bring those living on the fringes of society into its core even as it acts upon the guiding relationships that sustain this core e.g. that between the state and the people. The cumulative effect of the replication of this model for the rest of society will mean that the capacity of the land-poor, in both the urban and rural areas, to act as economic and social entities in their own right will be multiplied in a given span of time. They will no longer be labelled or recognized as “deprived-cum-disadvantaged" elements who are the subject of spurious external assistance or inadequate welfare arrangements by their own state. They will be able to act and intervene on their own behalf and propel their own agenda. This can have long-term implications for governance and the distribution of power internally and thus necessarily entails re-thinking the vision of future society by all.
In the immediate period however, an all-encompassing tenurial reform i.e. at the national level is necessary in order to sustain equity enhancing models. The CLT cannot be sustained in pockets of 'liberated zones in the midst of stormy seas. Therefore a national review of both traditional and existing land tenures in order to extract community-enhancing elements is vital.
The latter will hopefully trigger off a larger policy review in the same spirit and which will gradually fill the existing policy vacuum with more opportunities for intermediary actors such as NGOs, CBOs and "sensitized" local authorities. The latter will help to channel skills and supplementary resources towards these efforts for the critical take-off period. This will expand the parameters of self-reliant civic action in the country, without falling into the old trap of creating dependency among the people.
Questions of human rights also become central to the governance debate as attempts are made to posit the shelter question within the core of the constitutional guarantees and human rights issues. The need therefore, within the CLT concept, is how best to marry the
competing interests of security of tenure for sheltering the economically marginalized and the need for control and governance of the urban environment.
Presently it may not so much be a question of democracy as a matter of first carving out some space to experiment with and fine-tune the concept in practice before using it as a model for enhancing the human rights of the economically and politically marginalized populace. It is at present a question of the best possible entry point give the level of powerlessness of the poor.
A CLT arrangement that has the support of a defined and fairly homogenous community, a receptive and sympathetic local authority and a committed group of shelter professionals and financial backers is best poised for success with the experiment for nurturing a traditional tenurial system in an otherwise harsh politico-economic environment. That conjuncture of positive forces outlined above was present in Voi in 1991 when the CLT experiment was first mooted. Fortunately it still exists as the residents of Tanzania-Bondeni wait for the one single title deed over all the community lands to be issued by the Commissioner of Lands. In the meantime the community building work continues and several income-generating projects and upgrading of individual plots and houses continues apace.
Whether the CLT model would survive (or even grow as far as the Voi experiment) in a more hostile environment remains to be seen. Tanzania-Bondeni had less than 30% of the residents as tenants: Mathare, Korogocho or Kibera in Nairobi or Majengo or Kisauni in Mombasa has over 80% of the residents who are tenants. Whether structure owners who make large profits from rental properties would be willing to promote a communal tenure arrangement or whether such large numbers of tenants would be willing to join hands with their exploitative landlords to promote a communal tenure arrangements remains a moot point at this time.
What premium people put on communal life and its advantages in the African context, on security of tenure without a documentary title and on the safety and security of habitat without the opportunity to speculate on land prices will determine the push from below. The potential threat to land grabbers and the private sector lobbies will determine the willingness of the state to promote policies aimed at supporting communal arrangements.