Los medios y su agenda

Land in Kenya is acquired through purchase, inheritance or by way of gift. In the Nyando basin the most important way of acquisition in the ancestral lands is inheritance from fathers to sons, while in the newly settled areas it is through purchase (as in other parts of Kenya). Respondents in the research (see figure 2) confirmed that most land is owned by the head of the household (59%) or the father of the household (19%). Land is a male- dominated resource with 78% of the respondents’ land owned by male members of household, inherited under customary laws or purchased under statutory laws.

The number of landless people in ancestral lands is small compared with other lands: only 10 % of respondents in the ancestral lands knew of a landless person. In the ancestral land every man - but not a woman - has a customary right to inherit land from his father. Land inherited from parents is occupied and put to use with or without formal documentation and the boundaries shown by the fathers who are bequeathing the land, publicly in the presence of the family members, and marked by live fences or other natural land marks. Nothing is put in writing, and security of tenure is guaranteed by the community, who respect the source of authority used to make the allocation. Family members and clan leaders are important witnesses to such allocations, and are called upon from time to time to verify boundaries and allottees. These rights are formalised on registration.

Customary rights to land can be transferred within the community before formalisation, with formal documentation sought subsequently to strengthen security of tenure, especially if the new owner is not part of the family. Fathers show their adult sons their land inheritance, but most will wait for many years before formally subdividing the family holding to provide each individual son with land in their individual name. This can be a bone of contention between fathers and sons, with the fathers feeling their sons are not responsible enough to be held totally accountable, so

Valuation for Ratings Act

Cap 266 X X O O O O O X Ratings Act Cap 267 X X O O O O O X Sectional properties Act

(20 of 1987) O X O O O O O X Indian Transfer of

Properties Act (ITPA) O O O O O O O X Key: O=does not apply X=applies

want to retain the final say for as long as possible. When a man dies while his children are still minors, the wife can hold his land on behalf of his children. When both parents die while their children are still minors, their land can be used/held by other relatives, and when they are old enough they can claim it back. This is increasingly endangered by the statutory system when the custodian transfers the land to his name and later refuses to transfer it back to the children, making the children very vulnerable on the death of both parents.

All land within the Nyando basin has been adjudicated, but most is still registered in the names of fathers and grandfathers. In other cases the land has been purchased but the procedures are not complete, the urgency to complete being absent where customary rights are strong and processing by governments is slow. Where customary rights are weak, there is an urgency to complete the procedures because statutory rights are the source of legitimacy.

Share-cropping arrangements between farmers are not documented but based on customary norms. Farmers who need more land for cultivation can use land belonging to others. Customary land rights do not provide for women to inherit land from their fathers, but women can access land for cultivation from their husbands, each married man being obligated to provide his wife with a piece of land to cultivate, which she can cultivate but not transfer. Thus women can participate in agricultural production, but not use the land as collateral, a disincentive for development which places the woman in a disadvantaged position. The customary rights of inheritance, which stipulate that each son has a right to inherit land from his father, has worked to fragment the ancestral lands and created uneconomical parcels. This fragmentation does not improve access to land for women since it is done in favor of the male members of the household.

Customary rights do not offer exclusive ownership over natural resources. Fencing of property is done in a manner that does not deter access to the property, since it is expected that everyone allows other community members to obtain resources such as water, wood fuel and pasture. This is, however, changing as resources become scarce, live fences (rarely barbed wire) being the commonest form of fencing.

The most important function of ancestral land is the provision of a place called home, a social function perceived as more important than the productive functions. Ancestral land acts as a social base, and its sale is not traditionally encouraged because it infringes on a basic right – the right to have a place called home. Selling ancestral land is seen as denying the next generation their inheritance, and children can appeal to community elders to prevail upon parents who want to sell all their ancestral land. Every man is expected to marry and provide a home for his wife and unmarried women have no place in the traditional setting, being considered social

misfits and not allowed to build a house in their father’s homestead (only live in their mother’s house). The increasing number of unmarried women is creating a social dilemma: 3% of women over 40 years of age in the study were unmarried. Young men are expected to build a house within their father’s homestead, but when they grow old, are expected to establish their own homestead on land provided by the father. Section 3(1) of the National Land Policy recognises that land represents multiple values, being ’a significant resource to which members of society should have equitable access for livelihoods’ and a cultural heritage to be conserved for future generations, which should be protected by policy and law.