On any Friday mid-morning, Bisil market from the air looks like a sandy beach pebbled with sardines and shells among a scattering of blue sunbeds.

On the ground, at the 10-acre yard market in Kajiado County - 60 kilometres from the Namanga border with Tanzania - some 3,000 head of cattle and nearly 4,000 sheep and goats are herded past the county revenue offices to waiting lorries for the journey to the abattoir; or to a rangeland different from where they came.

On Mondays and Fridays, livestock sales at Bisil alone can gross anywhere between Sh200 million and Sh300 million, pooling into the annual Sh150 billion realised from livestock sales in Kenya. Within Kajiado County, there are yard markets at Emali, Kimana, Shompole and Kiserian, but Bisil is significant because it attracts livestock from as far as Magadi and from across the Tanzania border with Kenya.

Livestock business at Bisil has grown frenetic after President Uhuru Kenyatta declared the ongoing drought a national disaster on September 8. Even though Kajiado is not one of the 10 counties considered most at risk, the rainfall this year has been low and pastures have been withering in the crackling heat. So far, Baringo, Garissa, Isiolo, Mandera, Marsabit, Tana River, Samburu, Turkana, and Wajir counties have been classified as being most at risk from drought.

The effects of this year’s the low-volume March-May long rains are being felt especially in the areas designated as arid and semi-arid, the traditional rangelands for pastoralism. By June this year, pastures had already fallen below the average for the period; and distances to water sources had increased by about 40 per cent.

“Only a month ago, we moved the Tanzanian herds back to their lands because their pasture was ready,” says Daniel, a community leader in Elangatawas.

Tensions and conflict over limited access to grazing resources had begun to escalate as pastoralist communities their herds in search of water and pasture within the traditionally negotiated areas and beyond. For example, the drought alert came less than a week after violence broke out in Laikipia County, claiming 12 lives in a conflict pitting herders against cultivators in former pastoralist rangelands. Climate change is exerting enormous pressure on shrinking rangeland resources for pastoralism, with the result that communities are revisiting old claims on land they historically owned.

Laikipia has been the theatre of violent clashes between herders, farmers and ranchers since the historical seizure of pastoral rangelands over a century ago. Days ahead of the September 21, 2021 deadline for lodging claims of historical land injustice, a section of the Maasai community formally petitioned the National Land Commission for the restoration of 6.3 million acres of land taken away from them at the advent of the colonial era in Kajiado, Nyandarua, Laikipia, Uasin Gishu, Nakuru, Nairobi, Narok and Samburu counties. Another group in Oldonyiro in Samburu County lodged a separate claim for restoration of their land in the same month.

Since opening a registry for historical land injustice claims in 2017, the National Land Commission has received 750 petitions. Of these, 395 have been admitted while 340 undergoing analysis and 126 have already been determined.

Previous attempts to reclaim Maasai lands seized by the colonial administration, or at least obtain compensation for them, have been repeatedly frustrated. Colonial authorities, through the Land Title Ordinance of 1899, seized valuable land in the belief that it was unoccupied, leading to the annexation of large tracts in Laikipia and other areas. The land was passed on to settlers because, according to the colonial administration, it was unoccupied and did not belong to anyone.

Pastoralist claims on land have never been staked through fencing, building permanent structures, or even title deeds - hence the misconception that their rangelands were no-man’s land.

The Maasai lodged a case in court in 1913 challenging the legality of an agreement between community chiefs and the colonial authorities to move the community out of Laikipia and to settle it in an expanded southern reserve, thus leading to the loss of their lands. The case was, however, dismissed on technicality and also failed on appeal. The community subsequently petitioned the Kenya Land Commission of 1933 – 34 over the same question, and made representations to the Kenya Constitutional Conference in 1962 ahead of Kenya’s independence. None of their efforts yielded satisfactory results.

Following the election of Mwai Kibaki in 2002, his administration established the Commission of Inquiry into Illegal/Irregular Allocation of Land to investigate the illegal allocations of land and recommend solutions to the government proposed that all illegally acquired public land be returned to the government. In July 2004, the Maasai made fresh petitions seeking to block the renewal of expiring leases on Maasai land.

Subsequently, lengthy consultations produced the land policy of 2009, which provides a framework to address land administration issues, access to land, and historical injustices. The policy also recognised community land and identified measures to protect the rights of pastoralists to resolve the problems of group ranches.

In 2010, Kenya proclaimed a new Constitution, which provided for communal land rights for the first time in the country’s history. Later, in 2016 and 2017, the government enacted the Community Land Act and the Community Land Regulations.

The new legal regime repeals two previous laws that gave control of community land to local councils and group ranches, while requiring that fresh registration be completed by 2021. Although experts have praised the community land law as the most progressive on the continent for recognising communal land rights, its implementation has been beset by challenges.

Writing in the African Journal on Land Policy and Geospatial Sciences, Collins Odote, Rahma Hassan and Husna Mbaruk, find that the new law has undermined the pastoralists’ customary institutions and hastened the subdivision of communal lands into individually held private plots, thus limiting access to communal rangelands.

Rahma Hassan is one of several researchers examining how climate change adaptation strategies are interacting land needs, land conflicts and new land law reforms under the Rights and Resilience (RARE) project. The project has brought together researchers from the University of Copenhagen, the Institute for Institute for Development Studies (IDS) at the University of Nairobi, the University of Roskilde, the Danish Institute for International Studies (DIIS) and the International Livestock Research Institute (ILRI).

Field work confirmed that after a massive civic education campaign on the new law rolled out between 2019 and 2020 in 24 out of the 47 counties, which were identified as having large proportions of community land, the legislation has been beset by delays and other hiccups.

The law requires the community to elect a committee that manages their land. Elected officials’ roles have come into sharp conflict with that of the respected community elders, who negotiated access to pasture during droughts and resolved conflicts.

Previously, councils of elders comprising only men, managed land issues in pastoralist communities. The new law upsets this traditional system by formally giving equal rights to women and young adults to own and access community land. The new governance structure has raised hackles in among community members, who feel that including young people and women in decision-making committees overlooks a fundamental aspect of pastoralist values and customs.

So far, only five communities, mainly former group ranches, have registered their group ranches as community land, according to Kabale Tache, the acting chief executive officer of the National Land Commission.

The Ilngwesi and Mosul communities were the first to secure registration of community land under the new law; and were subsequently the Sereolipi community in Samburu County. The communities successfully changed the status of their land from previous group ranches to community land.

Recognising community land and customary law was seen as a breakthrough for pastoralists because their mode of production has historically built on undivided shares of land and customary institutions. Even before the advent of the Community Land Act, the structure of communal land ownership among pastoralists had began to collapse from years of state assault, corruption and the seduction of capital.

Group ranches were introduced in the 1970s after the passage of the Land (Group Ranches) Act of 1968, which allowed communities to own large tracts of land as private common property, but they neither increased livestock production nor secured pastoralist rights as intended. Some local elites and influential families, exploiting their knowledge of the registration processes, annexed huge tracts of land for themselves and registered it as individual property. This history has fed fears that the new leaders and elites in the community could similarly use their influence and the advantage of their education to amass land at the expense of other community members.

A great deal is at stake. In Samburu County, for example, public land constitutes 16 per cent of the total area. Historically, freehold land in Samburu used to belong to group ranches. The group ranches are now being dissolved to form community land. Registered community land overlaps with the group ranches. The Samburu County Government estimates that there are between 37 and 43 group ranches of varying sizes. The group ranches, which occupy 40 per cent of the county’s total area, host some 27,000 registered members — approximately 8 per cent of the population. The county government is holding in trust an estimated 8,453 square kilometres — or 40 per cent — of all land in because it is unregistered community land. The people use the land for pasture and other purposes.

Disagreements among different clans whose members have claims over land in the same or adjacent group ranches constitute the main challenge for the county government in Samburu in managing land. It is estimated that some 107,000 individuals (13,400 households) in Samburu are not registered as members with an interest in the community land and could, in principle, be landless.

The demand to subdivide land arises from the need for members to diversify their livelihoods and adopt agricultural practices. Community members who acquire individual ownership of land often fence it to protect their crops from animals grazing nearby. Fencing has, however, blocked the grazing corridors and made it impossible for pastoralists to move their animals in their search of pasture.

For the community in Lorng’oswa, Kajiado County, the bell in the Community Land Act has rung 20 years too late. The 38,261-hectare group ranch was divided among its 814 members in 2001. The new owners began selling their land, with title deeds growing from 940 to over 15,000. Subdividing the land has pushed pastoralism to the rim as the free movement of livestock is limited by fencing.

Many male heads of households sold their land without the knowledge of their children or their spouses. “Women did not know that their land was being sold and did not give consent for the transaction,” says Daniel Matunke, the former chairman of the Lorng’oswa group ranch. His attempt to mobilise the women to challenge the land sales – because their husbands kept their identity cards and used these to infer consent to the sale — cost him his position in the group ranch.

Then, as now, communities were unwilling to include women in decision-making on land.

Most of the land was sold for a song – literally – to local and national elite. At Sololwa, on both sides of the road leading from Bisil to Torosei, a senior government official has fenced off 1,000 acres of land bought from three people and consolidated into one piece for rearing camels.

“Camels are good,” says Moses Lenchasho, a community leader in Lorng’oswa, who has bought one. “They browse on the trees and brush, so they can survive the droughts better.” Camels are considered more hardy and adaptable to the weather. And can live on shrubbery.

The senior government official reportedly paid the registration fees for the group ranch in exchange for some 200 acres. The wire fencing now hems in land the residents reckon is the size of an administrative sub-location or ward. “There is a chief there, but he has no population to administer,” says Daniel, a youth community leader in Torosei.

Group ranches such as Olkeri, Olkirmatian and Shompole, are moving towards converting to community land ahead of the June 2022 deadline: those that will not have been registered as community land will beheld in trust by the county government. Community land is not just registered but a title is now issued for it. But the registration process has been slow, and the costs forbidding.

Digitisatising land registries has so far focused on private land ownership. Communities are required to lodge a claim on their land by initiating and supporting all the processes, including financing the advertisement in one national daily newspaper on their intent, and calling for the election of the Community Land Management Committee by the Community Assembly. The law has placed a huge burden on poor communities, thus resulting in their inability to take the steps to secure their rights.

Torosei, which adjacent to the border with Tanzania, has not been adjudicated for over 13 years because of the conflict between members who want to subdivide the land and those who wish to maintain as community-owned. Group members often disagree on how they want to formalize changing the status of their community land and the disagreements end up in the courts. Some members ostracize those who take matters to the courts of law.

The tension between communal and individual land ownership is emerging from fears of dispossession and loss among some pastoralists. Those who own fewer animals fear that keepers of large herds derive greater benefit from communally owned land than them. Subdividing the land is seen as a cure for unequal access, which would enable those who own fewer animals to lease their grazing areas to the pastoralists who keep more animals.

This article was originally posted The Standard. The second part is here.