Patricia KameriMbote

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Dialectics of Humanising Land Rights

• Patricia Kameri-Mbote
• School of Law, University of Nairobi

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Outline

• Introduction
• Multiple Systems, Norms, Institutions Arenas
• Trends in National Land Policies
• Towards Pro-Poor Land Policies
• Conclusion

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Introduction

• Land as a vital resource for rural livelihoods
  national economies
• Establishing and clarifying land rights is a key
  issue in development policies aiming to promote
  more productive uses of land land based
  resources
• Centrality of land
• Politically sovereignty of nations identity
  of communities individuals
• Social well-being
• Economic well-being

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Introduction (2)

• Cultural expression
• Basis for sustainability
• Legal entitlements
• Promoting a pro-poor approach to land calls for
  problematisation of three concepts
• Ownership as overall right over land
• Control of land essential validation of social
  political autonomy
• Access as the right to use as and when needed
• Access to land implies complex legal issues where
  the rights of all including the poor need to be
  fairly, expeditiously, and cheaply represented

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Multiple Systems, Norms, Institutions Arenas

• Different political, social economic systems
  exist for allocating rights to O, A or C land
• Different Normative Institutional Regimes
  influence O, A, Control
• International treaties
• Geopolitical/political-economic terrain
  implications
• International institutions
• Regional Economic Communities norms therein
• National laws systems - Legal pluralism
  diverse juristic norms Statute, Religion
  Custom Intersections

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Multiple Systems, Norms, Institutions Arenas (2)

• Local norms -clan
• Domestic/household
• Interactions between international, regional,
  national local
• Power, gender, generation influence O, C A,
  representation input in decision-making
• Multiplicity of systems, norms institutions
  complicates the terrain in the quest for pro-poor
  policy formulation implementation

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Globalisation

• Globalisation/interconnectedness of international
  community affects O, C A to land and land-based
  resources
• Push for economic liberalisation subscription
  to international treaties without political
  liberalisation within states affects access to
  pro-poor policies even where they exist
• Impact of global treaties on land resource
  rights locally
• Constraining choices at national levelss

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Lack of O, C A as handicap

• Lack of ownership, control or access to land
  causes incapacities livelihood and economic
• Food Security food availability/entitlement
  access to resources link with poverty
• Inability to move from reproductive sphere to
  productive sphere
• Rights to land necessary for enjoyment of other
  rights
• This explains why many countries see land
  policies laws as critical for development of
  nations as well as individuals and communities

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Trends in National Land Policies

• Can be broadly categorised into 4
• Legal
• Economic
• Humanisation
• Ecological sustainability
• Support services
• Each of them has implications for the poor
  provides entry point for pro-poor interventions

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Trends in National Land Policies (2)

• Legal
• Land as property distinct from others in
  Constitutions
• Formalisation of land rights - Adjudication and
  registration of land rights
• Securing tenure for diverse categories
  clarifying rights of ownership
• Regulation of property rights to land
• Land based resource tenure
• Placement of land under National Land Commissions
• Dispute resolution mechanisms
• Devolution of land rights delivery dispute
  settlement

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Trends in National Land Policies (3)

• Economic
• Efficient effective utilisation of land
• Land productivity targets and guidelines
• Land for investment investors
• Land markets efficiency vibrancy
• Land taxation for rural and urban land

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Trends in National Land Policies (4)

• Humanisation
• Human rights based approach to land rights
• Address ethnic, gender, generation income
  differentials discrimination and exclusion of
  socially marginalized indigenous people
• Tenure for communities
• Redressing historical injustices
• Restitution, Redistribution, Resettlement
• Providing for marginalised land uses such as
  pastoralism and informal commercial
  activities/hawking

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Trends in National Land Policies (5)

• Benefit-sharing from land-based resources
• Cognizance of rights of minority communities,
  refugees, internally displaced persons
• Informal settlements/ squatters
• HIV AIDS
• Children Youth
• Gender equity
• Matrimonial property

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Trends in National Land Policies (6)

• Ecological sustainability
• Conservation sustainable management of
  land-based resources
• Ecosystem protection and management
• Environmental assessments audits
• Restoration conservation of land quality
• Land use planning zoning

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Trends in National Land Policies (7)

• Support services
• Land rights delivery services surveying,
  mapping, cadastres
• Land rights delivery Institutions
• Land Information Management Systems

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Towards Pro-Poor Land Policies

• How can national land policies pro-actively
  mediate competing claims agendas in NLPs to
  promote pro-poor agenda?
• 1. Placement of land on a pedestal as a finite
  and very important resource that all need
• 2. Apply the Public Trust Doctrine to land
• A natural cultural resource held by sovereign
  in trust on behalf of citizens
• Not subject to absolute ownership by private
  actors or state
• Some of it not subject to conveyance at all and
  others conveyed with impression (police power
  eminent domain)
• Trustee to be above reproach like Ceasars wife
• Beneficiaries to be in a position to hold trustee
  to account

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Towards Pro-Poor Land Policies (2)

• 3. Unpacking poverty the poor
• Poverty can be political, economic, or
  social/cultural
• Poor people are not one homogenous group
• Women, men, girls, boys, old, young, differently
  abled, ethnicity, religion
• Multiple layers of vulnerability
• Accessing entitlements mediated by positioning
• 4. Empowering the poor to access policy
  provisions
• Individuals, communities, CSOs CBOs
• 5. Differential treatment to take into account
  inequalities in opportunities, wealth or natural
  endowments ethnic, gender, age etc

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Towards Pro-Poor Land Policies (3)

• 6. Participation mechanisms for inclusion taking
  into account possibility of multiple layers of
  exclusion
• Gender, generation, ethicity
• 7. Dispersal of power from central operatives to
  more localised contexts

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Conclusion

• Land is very important and critical to our
  existence it should not be enclosed in any one
  entity
• Too much enclosure of property may lead to the
  tragedy of the anti-commons/ enclosure
• Make property rights institutions inoperable
  considering that property is a social
  relationship
• Need to find cooperative ways of managing land
• Multiple rights layering in light of multiple
  users and to give flexibility and cross-linkages
  between different rights holders

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Conclusion (2)

• We have over-supply of legal and policy norms and
  these need to be matched by demand for real
  change
• Current demand for change is skewed because of
  the power asymmetries between poor and land
  holders favoured by status quo
• Concern to validate and maintain status quo
  reluctance to re-arrange deckchairs on titanic
• Humanising land rights calls for ceding ultimate
  ownership rights to land to higher authority

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Conclusion (3)

• PUBLIC TRUST ESTATE should be curved out for
  inter- and intra- generational equity
• The management of community and private land
  should be predicated on public trust imperatives
• Distinguish between land that is transferable to
  private individuals/entities to use possess
  and land to be held in trust for the public
• Critical ecosystems such as water towers, forests
  wetlands
• Land rights to be largely for use with residual
  ownership vesting in higher authority as guardian
  of the PT to take care of the interests of all
  citizens including the poor who will always be
  with us