Ours by right
Date
2013
Authors
Kameri-Mbote, Patricia
Odote, Collins
Musembi, Celestine
Kamande, Wilson
Journal Title
Journal ISSN
Volume Title
Publisher
Strathmore University Press
Abstract
This is a pioneering study on a critical, yet infinitely complex subject, in the setting of legal and
constitutional rights in an African country: the subject of property rights. If the property-rights
label appears clear-cut enough, and readily lends itself to market-oriented criteria of assessment,
particularly in the industrialized world, it is quite the reverse in Africa and , especially, where
land is concerned. It is clear from the Constitution of Kenya, 2010 which accords land a full
Chapter', that this subject bears an elevated status over and above the Bill-of-Rights provisions
on "protection of right to property?" .
Clearly, the Kenyan people in their constituent power, have perceived land as more than just
property which readily converts to market value - with relevant injuries being recompensed
conclusively with awards of damages. The Constitution sets out governing principles on land
policy. Finite, yet socially, economically and culturally vital , land in Kenya has merited the
declaration that it "shall be held, used and managed in a manner that is equitable, efficient,
productive and sustainable>."
Public land , community land and private land are the three categorizations made in the
Constitution; and community land, a core sphere of the instant work, refers to land attached,
historically, socially and for beneficial use, to a distinct population group: an ethnic community,
a cultural community, or some other social interest-group.
The Constitution, in its solicitude for social-group welfare, lays a foundation for policy,
programming and juristic openings towards practical solutions. That a governance question so
fundamental in a progressive constitutional order merits legal attention, is the obvious
justification for the instant publication. The work devotes its attention to : community interests
and the land question; Kenya's experiences in relation to community land; and comparative
experiences drawn from further a field.
The authors have drawn a notable distinction between land as a basis of defined private rights , as
known in ordinary practice of law - on the one hand - and , on the other hand, land as a "bundle
of rights", of composite dimensions. In the latter case , as the authors remark, "land is critical to
the economic, social and cultural development" ; land is "linked to sovereignty" ; "land is a
politically sensitive issue [and is] culturally complex"; " [land] has spiritual and religious
. dimensions in communities that perceive it as a host of the spirit of the community and the
residence of the deity". From such a foundation, the authors have then considered the important
question as to whether the bundle of entitlements centred on land should, as in the conventional
property-rights system, vest in one person exclusively.
Description
Keywords
Law, Politics, Community property, Kenya