Pastoral land management: Land Tenure and Natural Resource Management in the Arid Lands Of Kenya

By Michael K. Biamah, Wilson K. Yabann and Elijah K. Biamah

In the arid lands of Kenya, the social structure system associated with traditional pastoralism has evolved useful mechanisms for achieving sustainable resource utilization within fragile dryland environments. The sustainability of traditional pastoralism in Kenya is no longer feasible due to the increasing pressure on a shrinking resource base. This uncertainty with the sustainability of this traditional life style, calls for a radical shift in thinking from traditional to commercial pastoralism. Commercial pastoralism allows for the emergence of dynamic pastoralism which adapts quickly to technological changes and evolving market conditions in a fast changing pastoral environment. Whereas this futuristic form of pastoralism must recognize pastoral communities as legal entities and accord them the rights of control and disposal or transfer, it should also bestow the rights of access and use on individual pastoralists. The individualization of the right of land disposal or transfer in non-enlightened pastoral communities has led to the emergence of destitution and poverty in pastoral areas of Kenya. This book publication provides valuable information on emerging issues and options on pastoral land management in Kenya. It is based on a three year study on Land Tenure and Natural Resource Management in the Arid Lands of Kenya. It also does provide the requisite information for the formulation of a policy and legal framework on sustainable pastoral land management in Kenya.

• Language: English
• Publisher: Publishdrive
• Release date: Jul 14, 2017
• ISBN: 9781911412397

Book preview

Farah

Preface

During the period of 1996 to 1998, The World Bank through the Arid Lands Resource Management Project (ALRMP), Department of Relief and Rehabilitation, Office of the President, Kenya commissioned a a study on Pastoral Land Tenure and Resource Management in the Arid Lands of Kenya. This study was expected to assess whether existing laws/regulations pertaining to the ownership and use of arid lands in Kenya are adequate and protect the rights of pastoralists. In the study period, a field study was conducted in nine Arid Lands Counties of Turkana, Baringo, Samburu, Isiolo, Marsabit, Mandera, Wajir, Garissa and Tana River. The study considered in detail the emerging issues and options pertaining to pastoral resources management and ultimately analysed all the relevant statutes with specific reference to the extent to which they address pastoral land ownership and use.

The findings from this study did show that exisiting laws/ regulations are inadequate and do not protect the property rights of pastoral communities living in the arid lands of Kenya. Thus there is the need to develop and enact policy and legal instruments that protect pastoral lands and pastoral resource utilization. Thus the study critically reviewed this concern on pastoral land tenure with a view to providing detailed information for the necessary legislative action.

This book has documented the proposed policy and legislative options on pastoral land tenure as a prerequisite to the enactment of pastoral land laws. These laws are expected to define pastoral lands vis a vis other lands; recognize pastoral communities as legal entities; bestow the right of access, control, use and disposal on the legal entities; and clearly classify pastoral communities in the light of emerging changes on the resource base. This publication recognizes pastoralism as a production and welfare system and thus should be sustained with time. Thus the sustainability of pastoralism in the future must take cognizanze of the balance between ecological and economic considerations; the significant role played by traditional authority structures in sustainably managing pastoral resources; and that in a future pastoral setting, the variability of the environment in both space and time will be so significant that more legislation on pastoral land tenure will be necessary. Also other considerations such as social equity, food security, personal security, ethnic territorial disputes and political stability may prove to be more important than the demarcation of land per se. The emergence of destitute pastoralists in the arid lands of Kenya was noted in the study and was a clear manisfestation of the risks of landlessness if individualization of tenure in pastoral areas is recommended especially in a non-enlightened community.

Elijah K. Biamah, Wilson K. Yabann and Michael K. Biamah

Chapter One

1.Pastoral Land Management in Kenya

1.1Background of Pastoralism

1.1.1Pastoralism and Pastoral Lands

Pastoralism is the most predominant form of livelihood for arid lands communities in Kenya. Pastoral communities in Kenya belong to closely knit tribal groups with a history of conflicts over pasture and cattle rustling. The people are predominantly semi-nomadic or nomadic pastoralists with a recent emergence of sedentarized agropastoralists. The ability of pastoral communities to survive through periods of drought has been highly dependent on their capacity to spread their risks, to move on to new areas of grazing as resources are depleted (mobility and tracking), and to take advantage of highly diverse dryland environments (riverine woodlands, hilltop forests), and dispersed watering points. Extensive seasonal movements in response to scarcity or abundance of resources have featured prominently as part of pastoral survival strategies.

Pastoral land use patterns are predicated upon risk spreading and highly flexible mechanisms such as mobility, communal land ownership, multiple herd species (herd diversity), herd separation or splitting. These mechanisms are both ecologically and socioeconomically viable options in the adaptive and survival strategies of nomadic pastoralists. Nomadic pastoralism in Kenya is epicyclical and based on an intricate information base generated locally and passed through generations. This indigenous knowledge base is dynamic and ever changing through indigenous creativity and innovation. Whereas conventional range management would opt for an adjustment in livestock numbers according to the existing land resource base, nomadic pastoralists would prefer to seek access to natural resources needed to sustain their livestock elsewhere rather than reduce their herd size. This strategy involves seasonal migration of both humans and livestock between distinct wet and dry season grazing areas. This opportunistic process of herd mobility and tracking is a logical and tactical strategy of access to non-exclusive tenure.

All pastoral communities have a traditional and cultural attachment to land. Land is sacred and most pastoral communities believe in equal rights for all land based resources. This ecosystem can only be destroyed when deeply rooted traditional views about land are either violated or ignored.

1.1.2Customary Pastoral Land Tenure

Among the pastoral communities in Kenya, there is the fusion of property rights of the community and those of the individual, which is the traditional hallmark of traditional African land tenure. Under traditional pastoralism, there is co-existence or equilibrium between the right of the individual and that of the community. Whereas it is the community that owns the land and have traditional rights of control, use and disposal of land, individual members of the community have the right of access and possesionary rights (through occupation) over the same piece of land. In traditional pastoralism, access to valued resources (e.g water, salt licks and key production areas reserved for dry season grazing such as wetlands and highlands) was regulated seasonally and spatially.

Customary pastoral land tenure is still considered as a social institution through which a series of rights, duties and obligations between individuals and communities are tackled. Customary pastoral land tenure involves all aspects of pastoralists livelihoods including access, control and use of land based resources. Communal ownership of pastoral resources has guaranteed unlimited access but also ensured some informal control of movements. Equal access to available natural resources by all households has maintained social equity amongst pastoral households and hence checking the advent of pauperism. In the past, poverty was a rare occurrence in pastoral households. However, factors such as drought, insecurity, land alienation and human and livestock population increase have affected the livestock based wealth of pastoralists and increased their vulnerability to famine and poverty.

Customary pastoral land tenure and production systems have ensured that all pastoral households have equal chances for survival. Hence traditional pastoralists have a high socio-economic standard of living and general welfare. The equal access system explains why there are no poor households among pastoral communities compared to sedentarized agro-pastoralist communities.

Changes in pastoral land tenure especially through land alienation (e.g creation of livestock ranches, grazing blocks, national parks and game reserves, and wheat farms in key production areas) have led to disruptions in the pastoralists lifestyle and hence the beginning of poverty and misery. Alongside this collapse of the system, the recurrence of drought; decline in range resource productivity; increasing sedentarization onto pastoral land; increase in human population; famine; land use conflicts; displacements and death have become widespread due to the scarcity of resources and the dire need to survive. And as mobility has decreased and resource use cycle shortened, territorial claims have become more specific as is the case now among many pastoral communities in Kenya.

Amidst these interventions, pastoralists norms, institutions, rules, beliefs and practices for sustainable resource use are no longer tenable because of historical factors which now explain their present situation. Most have been dissolved or declared repugnant to modernity. Traditional values are being lost by the younger generation who now go to school. This western type of education is not appropriate to the needs of pastoralists and their environment. Thus the children who are currently attending school are highly unlikely to maintain the nomadic pastoral lifestyle of their predecessors. Instead they would opt to sedentarize in established centres where infrastructural facilities are available.

Furthermore, this predicament is heightened by another development, that of increasing livestock and human population against an ever shrinking or at best constant resource base. This development largely explains the emergence of famine among pastoral communities and the growth of livestock-less households and accompanying human misery. The emergence of this class of people (e.g mei or meiywon among the Pokot; koole among the Boran and ngikebotok among the Turkana) confirms these changes that are occurring in pastoralist environments.

1.1.3Traditional Pastoral Resource Utilization

Pastoral production systems demand a detailed knowledge of the environment to establish an annual cycle of efficient resource utilization. Longterm productivity and sustainability of pastoral production systems is largely a function of sound environmental management. Thus traditional pastoral resource utilization is predicated upon risk spreading and highly flexible mechanisms such as mobility, communal land ownership, herd diversity, herd separation or splitting. These mechanisms are both ecologically and socio-economically viable options in the adaption and survival of pastoralists.

In the last two to three decades in the arid lands of Kenya, the human support capacity of pastoralism has undergone some tremendous decline due to extrenuous influences (e.g displacement from heightened insecurity, land alienation through creation of protected areas such as national parks, forest zones and game reserves) that have constrained its risk spreading mechanisms. The impact of these influences (e.g by increased sedentarization) manifests itself through ecological degradation. These degradation trends of environmental resources in pastoral systems inadvertently leads to reduced economic productivity of pastoral households and ultimately to social disintegration.

The realization of some sound range resource management and sustainable pastoral production in communal rangelands calls for the restoration of traditional authority structures and socio-cultural mechanisms for regulating access, control, use and management of both grazing and water resources.

Current legal statutes stipulate that land and land-based resources in the whole of the arid lands of Kenya belong to the government. They are state lands and are held in trust by local county councils. Such legislation on land tenure and property rights are a disservice to sound range resource management because of the following reasons: no rationally thinking human being will protect resources that have no security of tenure; and that land belonging to the government has freedom of access and use at any time to all pastoral communities. Pastoral groups consider this freedom of access to land as being in their favour during prolonged drought periods. What belongs to all belongs to nobody, and resources owned in such a context will be inevitably be utilized in a manner that precipitates the tragedy of the commons. This then goes back and creates a situation that comes closely to Hardin’s Tragedy of Commons paradigm. However, such a condition would not operate if traditional structures are restored.

1.1.4Ecological Productivity in Pastoral Areas

In order to sustain if not improve the ecological productivity of pastoral lands, the focus of any resource utilization and conservation efforts must consider the following: (1) Understand and appreciate production goals of pastoralists such as subsistence milk production and contingency meat production; (2) Recognize and consider operational ecological and socio-economic forces that underlie survival strategies of pastoralists(e.g. herd diversity; multiple herd species; herd mobility and tracking; and herd splitting); (3) Focus on sustainable pastoral production that maximizes resource support capacity rather than commercialization of livestock production; (4) Consider flexible resource utilization options in future rangeland policy on improved livestock production; (5) Ensure that there is no managerial control and rigidity of the production system(e.g. the grazing blocks and group ranches); (6) Manage arid pastoral ecosystems on the basis of their adaptability and flexibility rather than stability; (7) Recognize the existence and significance of pastoral organizations in determining the degree of concentration and dispersion of animals with respect to sustainable range resources utilization; (8) A land use policy with clearly stated land tenure and land use framework that adequately addresses the three existing options on property rights of pastoralists(state, communal and individual property). This should be accompanied by appropriate and effective legislation.

Some probable and viable option for sustainable and sound rangeland management in pastoral areas is the restoration of community control over its resources. This calls for some communality of land ownership, establishment of land boundaries on the basis of clan mixture and heterogeneity rather than clan lines; and the education of pastoral communities on methods for maintaining and protecting resources under their control. Such community organizations would ensure that there is some rational and efficient utilization of land-based natural resources and that degraded range resources are rehabilitated and conserved.

1.1.5Pastoral Land Tenure and Property Rights

What is at stake at the moment, in terms of natural resource management in pastoral areas, is the rational and efficient utilization of land-based natural resources; and the rehabilitation and conservation of degraded range resources on the one hand and maintaining sustainable pastoralist livelihoods. Any policy framework on which land tenure and property rights for sustainable pastoral production should consider the following influencing factors: (1) Loss of key production areas(wet and dry season grazing areas) to the establishment of permanent settlements, centres and refugee camps(e.g. Isiolo and Turkana), national parks, forest zones and game reserves( e.g. Isiolo and Samburu), irrigation schemes(e.g. Isiolo, Mandera, Garissa, Turkana and Tana River); and commercial agriculture( e.g. wheat farming in Samburu); (2) Rapid increase in human and livestock populations over the last two decades and consequent ecological degradation; (3) Breakdown in traditional authority structures for regulating access, control and management of grazing and water resources(e.g. among Somali). Pastoral communities possess internal socio-cultural control mechanisms that regulate the use, control, and management of grazing and water resources; (4) Water development that is inconsistent with proper principles of range management (e.g. example of Wajir). The development of watering points should consider spatiotemporal availability of forage and minimize stock concentration and tremendous grazing pressure around such points; (5) Intensive land use in upstream areas of ephemeral and perennial rivers. This causes riverbank erosion and degradation. The negative impacts of this have been:- some steep and progressive decline in duration of water flow and volume of discharge; decline in ground water tables and hence the low water yields from shallow wells; (6) Poor livestock marketing due to limited infrastructure and few livestock markets. Thus there is the need for an increase in off take through establishment of adequate and reliable livestock marketing and infrastructure. This would avoid any overstocking and subsequent overgrazing of rangelands, particularly around settlement locations. Interventions in livestock marketing should also be approached in such a manner that variability is not introduced. Currently, sentiments from pastoralists in northern Kenya reflect that livestock marketing provision may be more transient and variable than rainfall and droughts; and (7) Episodic droughts are becoming more severe and thus threatening the sustainability of pastoralism as a production and welfare system. These droughts have decimated livestock and caused untold suffering to nomadic pastoralists. Some traditional drought coping mechanisms coupled with some sound government policy on drought management are essential.

1.1.6Pastoral Property Regimes and Legal Statutes

During the period of the study (1996 to 1998) on Land tenure and natural resource management in the in the arid lands of Kenya, there were four applicable property regimes (Trust Land, Private Land, Group Ranch, and Government Land) that are recognized through Acts of Parliament. These Acts of Parliament confer rights of ownership and possession while others relate to the regulation of access, control, use and disposal of other lands (exclusive of pastoral lands). The statutes associated with the four property regimes include: Trust Land Act(CAP 288); Registered Land Act(CAP 300); Group Representatives Act (CAP 287); and the Government Lands Act(CAP 280).

Trust land refers to all land that is vested with the local county councils and which is held in trust for the benefit of the residents of the areas of their jurisdiction (see Section 214 of the old Constitution). While the Trust Land Act (CAP 288) does not state what land is or is not Trust Land, it defines a council as a local authority in whom Trust Land is vested. The Act recognizes certain rights under customary law applicable to trust land in relation to occupation. Thus where such land has been occupied under customary law, subsequent acquisition of such land is subject to compensation being made to the occupants. The Act also gives tribes, groups, families and individuals (under customary law) rights of occupation, use, control, inheritance, succession and disposal of trust land subject to the Act and any other law for the time being in force. Thus the Trust Land Act does not give the legal right of ownership and disposal, but merely customary rights whose juridic extent is questionable. Once the land is adjudicated, consolidated and registered to an individual, it ceases to be trust land.

Private Land refers to land whose security of tenure is vested with an individual through freehold and leasehold title deeds. The process of individualization of land results in registration under the Registered Land Act (CAP 300), and confers the right of absolute proprietorship to the individual. This Act confers an absolute title on the proprietor irrespective of the manner of acquisition of the land and any previous right whether customary or otherwise. Thus other prior rights get extinguished immediately after such registration. This Act also allows joint and common ownership of land which is limited to a maximum of five persons to a piece of land.

Group Ranch refers to land belonging to representatives of groups under the Group Representatives Act (CAP 287). This Act recognizes the owners of land under the Land Adjudication Act (CAP 284), and further provides for the administration of such groups. The arid lands counties where group ranches are registered include Tana River, Samburu and Baringo. The Act does not define what a group is and does not confer on it a juridic status. Thus the Act confers a certificate of incorporation to the persons named as group representatives and not the group itself. When ranches are subdivided, they are registered as individual holdings under the Registered Land Act (CAP 300).

Government land refers to land that is vested in the President who has powers inter alia to make grants or dispositions of or over unalienated government land. Categories of government lands include: National Parks, Game Reserves, Townships, Forest Reserves, alienated and unalienated government land, and open water.

1.2Pastoral Environment, Resources and People

1.2.1Pastoral Lands Environment

The pastoral lands of Kenya are classified into two agroecological zones (AEZs VI and VII) covering a land area of 392,000 km² (68% of Kenya’s total land area). The arid lands ecosystem is subject to long periods of drought due to an erratic rainfall regime. These harsh and unpredictable ecological conditions dictate on pastoralism as the most rational production system under the prevailing socioeconomic and technological circumstances. However, emerging problems of demographic pressure(due to human and livestock population increase); changes in key production areas(e.g due to the creation of protected areas); and prevalence of episodic droughts and insecurity(due to climatic change and ecological degradation, and expansion of grazing territories by intruder pastoralists using the power of the gun dictate upon most pastoralists to change their lifestyles by sedentarizing and diversifying their sources of livelihood(e.g by changing to irrigated agriculture, fishing and making of handicrafts).

The pastoral areas of Kenya are non-equilibrium environments due to temporal and spatial variabilities in rainfall, soil types, and vegetation. Thus there is that coexistence between wildlife and livestock and also there are distinct grazing and browsing areas and associated animal species (e.g. camels and goats as browsers; and cattle and sheep as grazers).

1.2.2Pastoral Resources

The resources of concern to pastoralists include: water points, migration routes, trees and key production areas (wet and dry season pastures). The distribution of water points in pastoral areas and timing of their use have direct impacts on range utilization. Likewise vast areas of rangeland may remain relatively under-utilized if there is inadequate water. Mobility or transhumance between regular wet and dry season grazing areas in search of pasture and water, are traditional forms of pasture rotation. This system maintains ecological balance and resource sustainability at the community level through enforcement by local traditional leadership (authority structure). The ability of pastoralists to continue with this traditional lifestyle has come under increasing pressure in the last two decades, as access to the dry season grazing areas has been lost to irrigated agriculture, commercial wheat farming, grazing blocks, group ranching and the so called protected areas(national parks, game reserves and forest zones). Also because of insecurity and severe episodic droughts in the arid lands of Kenya, pastoralists are increasingly sedentarizing in established settlement centres. These settlement centres are ill-equipped to serve as drought mitigation centres or to support post drought recovery.

Figure 1.1. Agro-Climatic Zones Map of the Arid Lands of Kenya.

1.2.3Land Resource Base

All pastoral communities have a traditional and cultural attachment to land. Land is sacred and most pastoral communities believe in equal rights for all land based resources. This ecosystem can only be destroyed when deeply rooted traditional views about land are either violated or ignored. Pastoral areas are characterized by a declining ability to ensure basic subsistence to an increasing population through pastoralism at existing levels of technology. In fact herd numbers have increased with population increase to the point where the rangeland’s carrying capacity is fast approaching the limit. Despite this noted trend, the majority of households have too few livestock units to cover both their food consumption and their growing cash needs. A study of livestock distribution on a group ranch in Samburu Countyrevealed that 47% of the households own under 20 heads, and 73% own under 40 heads, while a small elite (7%) owns 180 head of cattle or more.

In pastoral systems, the critical factor at household level is milk supply during the dry season. When the livestock units per capita are too few to give enough milk for subsistence, households are forced to supplement the traditional pastoralist diet (milk and blood) with grain to make up the shortfall. This dependency on grains has been observed among the Turkana, Samburu, Rendille, and Orma. Due to increased market dependency, the cash needs of pastoralist households are growing. Thus they need to sell more animals (especially goats) each year to buy grain and other goods. This market dependency can be reduced by encouraging crop production so that the households have enough grain to subsist on. Households which grow most of their own grain are able to conserve their herds and hence have no milk shortfall. Pastoralists sell their milking stock as a