Author:Witchger, Kathryn E.

"There are opportunities even in the most difficult moments. "--Wangari Maathai (1)


In 2010, Kenya ratified a Constitution that formalized its traditional dispute resolution mechanisms ("TDRMs"). (2) In 2016, the legislature extended TDRM formalization to community land through the Community Land Act. (3) While these mechanisms give greater voice to communities, (4) they are implemented through local leaders, (5) usually limited to male elders, (6) and do not adequately represent marginalized groups. (7) During a typical land dispute, it is the elders that resolve the matter because they have the respect of the community, and the best memory for the boundaries of the land. (8) They will call a "baraza" or gathering in which community members will have a chance to voice their opinions and furnish relevant evidence before the elders make a decision. (9) In practice, this means that the new laws run the risk of formalizing not only TDRMs, but also unequal participation in these important mechanisms. While this Note focuses on the gendered impact of TDRMs, disparate access to TDRMs has a particular impact on unmarried women, youth, and other marginalized groups. (10) The formalization of TDRMs is important because land is crucial to Kenyans: it is "not merely a factor of production; it is first and foremost, the medium which defines and binds together social and spiritual relations within and across generations." (11) It is also a primary source of long-term investment. (12) Thus, as TDRMs gain power in Kenya, there is a risk that the law will embed disparate treatment into the social, political, and legal fabric of a country that has sought to redefine itself in equality.

Kenyan land law formalizes TDRMs and embeds discriminatory practices through the complicated interaction of formal and informal (or customary) laws. (13) Institutional theorists often view formal and informal as both fixed bodies, (14) and path dependent entities that are difficult to change. (15) Conventional institutionalist literature has entrenched these views into proposed solutions to property problems in Africa. (16) This Note will critically examine these theories and argue instead that Kenya is in a moment of institutional fluidity that gives communities in particular a chance to create inclusive TDRMs. (17)

Kenya is at a crossroads. During colonialism, the British government expropriated the best land and Kenyans were regarded as tenants on the land. (18) When the country became independent, it was bestowed with a Constitution that the people of Kenya neither drafted nor ratified. (19) During the intervening years, the Constitution was amended many times in an attempt to centralize political and land-based power. (20) These constitutional developments disregarded "the sanctity of the Constitution through disobedience to constitutional principles coupled with constant mutilation of the document.... [This] created a legal vacuum, which has led to the trivialization of Constitution making in Africa." (21) In 2010, a new Constitution was ratified which vastly restructured the political landscape and empowered Kenyans through the devolution of political and land-based power. Six years have passed, yet there are persistent ambiguities between formal and informal land laws. (22) The Community Land Act of 2016 is an attempt to formalize tenure on land that government officials historically expropriated. (23) Yet as recently as the end of 2016, several significant legal and institutional changes have already been repealed. (24) These changes do not simply impact scholastic legal analysis and development theory. Land matters have a real, lasting, and immediate impact on the lives of all Kenyans, (25) especially the estimated sixty-five percent in rural areas. (26) This is a critical moment in Kenyan history. How the government and communities choose to define the interaction of formal and informal land laws will have a lasting impact on equal participation and equal outcomes in TDRMs. (27)

This Note endeavors to illuminate two interdependent issues: First, it addresses the formalization of discrimination in TDRMs under community land legislation. (28) Second, the Note shifts the scholarly lens Western legal and economic theorists use to analyze the interaction of formal and informal institutions in Africa. (29) The two matters are interdependent because solutions are derived from the framework in which the problem is viewed. Therefore, in order to develop innovative solutions to discrimination, it is necessary to shift the way in which the problem is characterized. Part 1 examines the community land regime in Kenya and institutional theory. Part II addresses the formalization of TDRMs and discriminatory practices in land laws, and the failure of conventional institutionalist theory to adequately frame the problem. Finally, Part III proposes a new lens to interpret Kenyan land institutions and solutions for the legislature, ministries, non-governmental organizations, and the community.

  1. Kenyan Law and an Interpretive Theory

    Kenyan law is at a moment of change. The 2010 Constitution and the 2016 Community Land Act recognize and formalize community-owned land. However, the various levels of dispute resolution mechanisms are still contested spaces because the 2010 Kenyan Constitution and subsequent land laws created a new plural legal context of formal and informal land dispute resolution mechanisms. (30) Section I.A. will provide a framework for understanding and interpreting the many changes occurring. It will describe the formal land laws under the new Constitution and the informal land TDRMs that are common to many groups, with particular attention to the Kalenjin people of Kerio Valley in Western Kenya. (31) These formal and informal means of land dispute resolution connect in a variety of ways: generally, through the various provisions of the Constitution and legislation that call for the use of TDRMs (32) and, specifically, in Land Adjudication Committees, (33) and Community Land Management Committees. (34) Section I.B. gives an explanation of institutional theory as a means to interpret and influence change in plural legal contexts.

    1. A History of Kenyan Land Law

      Historically, TDRMs began with elders who governed a usufructuary property system. (35) Elders served an important function as both regulators of the environmental capacity and keepers of the communal land. (36) These elders and clan leaders had authority over land and women held "secondary rights" to the land. (37) With the introduction of a colonial system, the elder's TDRMs began to exist alongside statutory law as formal and informal came together through the office of Chief, who was included in land decisions as a local administrator for the colonial government. (38) During the twentieth century, the colonial government also began to survey and demarcate many parcels of land. (39) The resulting mixture of land at various stages of obtaining title created a system with many overlapping dispute resolution processes. While those on untitled community land still used TDRMs, these TDRMS were subordinated to the "received" British law. (40) The result was a disempowerment of the elders and TDRMs. Meanwhile, women's role in the TDRMs remained tertiary to that of the elders and chiefs. Women's role was pushed to the bottom of a pyramid with elders and chiefs above, and the colonial government governing all.

      Colonialism also set into motion a system of land ownership predicated on one group taking from others, (41) a practice which continued for much of Kenya's history. (42) After independence in 1963, women continued to suffer under land policy. The many land statutes created a confusing network of over seventy-five laws that used customary rights and formal mechanisms to confer land ownership to men. (43) Shortly before the 2010 Constitution was ratified, the Ministry of Lands released a sessional paper that identified a significant "lack of accountability in land governance leading to irregular allocations of public land." (44) It is precisely these irregularities that colored the current legal and political framework of land dispute resolution processes. They led to the 2010 Constitution, which incorporated community participation directly into land management and mandated the Community Land Act of 2016 to protect the most vulnerable land. (45) The Community Land Act, in particular, allows a group of people to own land communally, in much the same way as the usufructuary property system before colonialization, but with the added protection of legal title. (46)

      Kenyan property TDRMs take place in a plural environment where both informal and formal mechanisms work in tandem. (47) Section I.A.I, herein provides an overview of the constitutional framework. Section I.A.2. focuses on community land dispute resolution in legislation. Finally, Section l.A.3. describes customary dispute resolution processes. The confluence of these three areas of law is important to understanding the formalization of discriminatory practices.

      1. Land Institutions Under the 2010 Constitution

        The 2010 Constitution is, in the words of the Chief Justice, a "transformative constitution." (48) It created a more equitable community land system through developments intended to stop land expropriations by previous governments. (49) It defined the lands' caretakers, devolved national powers to the new county governments, and incorporated TDRMs.

        First, the Constitution multiplied the number of caretakers. The Constitution mandated the creation of the National Land Commission to ensure independent decisions on land matters. (50) At the same time, however, the government left the Ministry of Lands and Physical Planning intact, which created a tension between the mandates of the Commission and the Ministry. (51) The National Land Commission is an independent commission with the power "to...

To continue reading