A large majority of the communities living in the land under communal land tenure have used customary laws to manage and utilise the land. Under customary law, communities had established well respected boundaries and did not possess formal titles to land. Formalisation process, which started under colonial rule, introduced the title deed as a formal document recognised under law that sufficed as proof of ownership over land.

From the colonial period, successive government administrations have promoted privatisation on land tenure in areas under communal land tenure. Individuals or group of individuals (in the case of group ranches) were issued with a title deed that guaranteed formal land rights over against such lands. The rest of the land under communal land tenure was classified as trust lands. Under the old constitutional dispensation, these lands were under the local government, while in the new constitutional dispensation are under the National Lands Commission and County Governments.

However, communal lands under trust face the most serious threat in guaranteeing land tenure security. Since 1960s, the trusteeship by local governments had always been abused. For instance, local leaders and politicians and individuals who were well connected with the local elite were able to alienate land and formalise by way of acquiring title deeds in areas under communal land tenure, a fact well documented in the Ndungu Report of 2004. Further, communities were never involved in decision making when plans, both development and land use plans were made. This only served to increase land tenure insecurity with the community fearing displacement every time a project on their land is mooted.

More recently, articles in the print media (standard newspaper 18th and 20th May 2015) suggest that little has changed in this regard. First, in Isiolo, the community is protesting their non-involvement in LAPSSET corridor projects. This is mainly driven by fear of displacement and lack of compensation even where their livelihoods is affected. At the same time, the agents of the State and contractors have always argued that the community does not have formal rights (Title deed) to the land under dispute. Second, in Turkana, the county government seeks to ratify communal land grabbed by “investors” due to the investments already sank in the land. This strategy, intended or unintended, raises doubts as to the successful implementation of the community land bill once passed.

First, although the Community land bill recognises ancestral claims to land, the land is placed under trusteeship of County Governments unless the community can process a title. A large majority of these lands are such that individual land parcels may not benefit the households due to the nature of extensive systems practised. Second, there is need to include in the law the extent to which the community can be perceived to be involved in decision making. For example, can a community pass a vote on a land use plan before it is presented to the county government? This is happening where communities have established group ranches.

To secure land rights under communal land tenure, community institutions that manage the land have to be strengthened. They should be able to enforce rights based on rules whether formal or customary. For this to happen, the formal law should recognise customary laws binding on these communities. In addition, there is need to improve how County Governments interact with communities especially in the utilisation of land under communal tenure. We must learn from past mistakes where a decision by local representatives was perceived to be communities’ decision. Clear consultation mechanisms must be put in place and enforced. Securing land rights under collective tenure will empower communities to make investments and negotiate with investors so that their livelihoods are not threatened.