Pastoralists seasonal land rights in land administration : a study of Northern Kenya

This thesis argues that incorporating pastoral land rights into the formal system requires identifying and securing pastoralists’ rights on migration corridors and dry season pastures in a manner that, first, reflects their customary practices about ‘where’ and ‘when’ they require access to the land, and second, aligning both the ‘when’ and the ‘where’ within the legal framework for property rights and land administration. This approach may facilitate the legal recognition of pastoralists’ seasonal mobility and access to required resources in the formal system. Legal empowerment also gives pastoralists the ability to use the formal law to enforce their land rights, thereby securing their access to required seasonal resources. The main objective of this thesis is to assess how pastoralists’ seasonal land rights could be accommodated within the legal framework for property rights in land administration. Focusing on Northern Kenya, the main objective was divided into four sub-objectives: 1. Investigate whether pastoralism is still active in Northern Kenya and how formal rights can meet the requirements of the pastoralists’ seasonal land use. 2. Understand how non-pastoralist land use actors manage seasonal encounters with migrating pastoralists. 3. Describe how seasonal migrations and access rights could be aligned and secured as rights that overlap with private rights, within the legal framework for property rights and land administration. 4. Assess what tenure options are potentially suitable for securing seasonal migrations and access rights within the legal framework for land administration. Each of these sub-objectives are analysed in Chapters 2 to 5. The chapters are based on a series of papers published in, or submitted to international peer-reviewed journals. Chapter 2 assesses how the existing land laws supporting property rights are able to serve the requirements of pastoralists’ seasonal land use. This chapter forms the basis for the thesis. Data on the degree of livestock dependency among pastoralist communities, the spatial extent and patterns of their dry season migrations, the resulting encounters between pastoralists and non-pastoralist land use actors, and the perceptions of land rights held by actors were collected through a variety of methods and analysed. The results show that pastoralism is still active. The migration corridors reveal that herders maintain extensive dry season mobility, even though some of the corridors currently overlap with areas where land is privately owned by non-pastoralist land use actors. Moreover, the results show that most non-pastoralist land use actors have their land rights registered, but seasonal encounters with migrating pastoralists persist as pastoralists continue to exercise customary rights of communal use. This chapter concludes that existing land laws and property rights in land administration are suitable for sedentary land use, but do not address how to serve pastoralists land rights in time and space. Also, the map of the pastoralist’s migration routes obtained indicated that it is possible to predict where pastoralists will be at a given time/drought period. This information could be used by decision makers as a foundation for including pastoralists’ spatiotemporal land rights in land administration. Chapter 3 looks at the consequences for migrating pastoralists of the adjudication to non-pastoralist land users of exclusive real property rights during the process of setting up a cadastre in a land administration. It examines how non-pastoralist land use actors manage encounters with migrating pastoralists who need to enter their land to follow their traditional migration routes. The results of empirical research show that only a small percentage of non-pastoralist land users are willing to negotiate access contracts with the pastoralists; further, the majority are unwilling to have access arrangements formalized in the process of Land Administration. As land is continuously being adjudicated, surveyed and allocated for private purposes, the imposition of statutory rights on pastoralists’ areas, including migration corridors, permanently cuts out and extinguishes pastoralists’ rights to mobility and their access to required resources. The concluding argument in this chapter is that land adjudication should identify and confer all existing land rights to all users in order to avoid obstruction or renegotiation of pastoralists’ access rights. Chapter 4 explored how pastoral seasonal land rights could be secured through registration as overlapping rights. An opinion survey of experts on pastoral land rights revealed the view that seasonal migrations can be supported, but that access to grazing should be subject to negotiation with landowners. This chapter argues against making access subject to personal agreements, stressing the risk of negotiations failing, mainly because negotiated agreements are only binding on the parties involved. To avoid the risk of failure to acquire access through negotiation, registration is proposed as a legal tool to ensure security of access. The adjudication process for conferring private rights on land should view pastoral rights as being dynamic, because they apply across different areas at different times. The chapter discusses the attributes of pastoral rights within the framework of managing property rights, restrictions and responsibilities (RRRs), and describes how spatiotemporal rights could be aligned and included in the legal system through registration. Chapter 5 explores the tenure options potentially suitable for securing and protecting migration corridors within the legal framework for property rights. It focuses on the various tenure options that allow access to and use of land in Kenya: statutory (ownership and non-ownership rights), government land, customary rights, open access and negotiations. The opinion survey of land professionals led to the conclusion that spatiotemporal land rights can be secured within the legal framework for property rights and that government land reserved for pastoral purposes is a promising tenure option for securing spatiotemporal land rights. Where customary rights have not already been extinguished, migration corridors could be secured as public roads (government land) and dry season grazing areas could be secured as reserved land for the purpose of seasonal grazing. This would give pastoralists limited rights of use on the government lands. Through registration, the limited rights are enforceable within the statutory system of land administration. Where customary rights have already been extinguished, realignment of migration corridors or the establishment of new corridors and grazing areas might be necessary to avoid pastoralists’ seasonal land rights overlapping with private tenures or other land uses. The last chapter reflects on the main outcomes of the thesis. It argues that legal provisions need to be provided to cater for pastoralists’ seasonal land rights on migration corridors and dry season grazing areas. This chapter emphasizes that registration of the seasonal land rights gives pastoralists legal protection of their land rights and thus security of access to seasonal use of the land.&nbsp