Browsing by Author "Odote, Collins"

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    Ours by right
    (Strathmore University Press, 2013) Kameri-Mbote, Patricia; Odote, Collins; Musembi, Celestine; Kamande, Wilson
    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.
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    Retracing Our Ecological Footsteps: Customary foundations for sustainable redevelopment
    Odote, Collins
    The discourse on property rights has been intractable and part of Kenya’s socio-political history since the advent of colonialism. At the heart of the debate lies the relationship between western approaches and views on property and African traditional approaches. Colonialism brought with it, British legal order. African customary practices and rules were largely replaced with these new western rules, based on the underlying philosophy that traditional modes of property and natural resource management were inimical to sustainability. This conclusion was arrived at as a result of the assessment that African customary modes of property regulation was based on open access, a regime without any protection of property rights, one that led to what Garret Hardin famously referred to as the Tragedy of the Commons.