Resource information
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.
