Risks to the sanctity of community lands in Kenya. A critical assessment of new legislation with reference to forestlands

Important new legislation protects community lands in Kenya. Delivery is principally dependent upon each community securing formal collective entitlement to its land. Many factors may impede this. While some are experienced in all titling programmes, others are specific to Kenya, exacerbated by low confidence in the readiness of the state to embrace new approaches to property after a century of subordination of traditional land rights. Forestlands, customarily shared by members of a community, are a likely early casualty, needlessly retained by the State. This paper focuses upon loopholes in new laws that could exclude forested lands from collective entitlement, impairing constitutional advances in the process. Ambiguity within the Constitution itself plays a role. Therefore, while lesser impediments to land justice may be remedied through clarifying regulations and parliamentary removal of offending clauses, judicial interpretation of constitutional intentions is required. This is better sought sooner than later to limit wrongful land takings and evictions of vulnerable forest communities, active until the present.