Breaking the Mould: Lessons in Implementing Community Land Rights Presentation at World Bank Land Conference, 2017 Dr Collins Odote and Professor Patricia K. Mbote

Context Book part of a continuum of work on land rights and communal land rights in Kenya Hernando De Soto, The Mystery of Capital: Why Capitalism Triumphs in the West and Fails Everywhere else? CoK 2010 and efforts to make Communal Land Rights part of “modern” tenure categories Enactment of a Community Land Act

Ours By Right: Law, Politics and Realties of Community Land Rights in Kenya Giving Meaning to Community Land Rights. Why? How do you ensure that Article 63 is implemented in practice? How do you define communities in aw How do you balance Criteria of ethnicity, culture and similar community of interest? Clarity on the Land, Its estate or proprietorship and its management Ensuring that communal tenure are not treated in an inferior manner Some existing experiences in Kenya Comparative and international past examples Ended with a template of what Community Land Law should contain

Breaking The Mould Task Force on Community Land law and eviction and Resettlement Bill, 2012 June Conference: Best Practices and Approaches for the Protection of Community Land Rights in Kenya, 2013 IDRC research on Access to Justice and Basic Services in Informal Settlements : Mukuru Aim of Conference: (1) To raise awareness and cultivate deeper understanding of the components of community land tenure regime that must be legislated; (2) To share experiences from other countries on community land rights’ regimes. (3) To take stock of the nature of customary law systems and the broad significance of their accommodation alongside the existing state law system as an equal legal system despite its complexity; and (4) To Identify and deliberate on the challenges and dilemmas of formulating community land law and offer best practices to overcome them

Breaking The Mould Two-fold focus: Legislation versus implementation Several Presentations. This edited volume contains the key articles. Several more omitted Five parts: A- Introduction’ B Kenya Kevin Doyle: Communal land rights in Context; Kasighau experience- Mwachengu Mwachofi Mwambi Mwasaru and Dr Celestine Nyambu; Innovating Tenure Rights for Community in Informal settlements- Patricia and Collins odote; Tana Rive Experience- Patrick Ochieng C: South Africa Experience- Wilmien

Breaking the Mould D; Lessons from Brazil E: Gender- Patricia Lessons 3 papers- quiolombolas E: Gender- Patricia Lessons Urgency of Community Land Legislation Clarity on how to balance the criteria Addressing the concern of registration procedures, whether to title or not and avoid elite capture ala group ranches Need to unbundle rights and have a layered rights Institutional mechanisms Book Focusses on the “How” as opposed to the “What”

Highlights of Community Land Rights 21st September CLA came into force Better definition of who communities are distinct and organized users of community land, who are citizens and who share listed attributes, including ancestry, geographical and ecological space, culture, socio-economic interests or ethnicity Clarity on equal status of all tenure categories Registration of communities through institutional agency of community land management committees and community assembly Role of County Governments over unregistered Community land Benefit sharing and sustainable management of land and NR Dispute resolution elaborate provisions

Conclusion Lesson in historical process of enactment of Act Moving from Constitutional provisions to legislative enactment Legal provisions without action is like “Constitutions without Constitutionalism.” Communities require real security of tenure and improved livelihoods