Imagining the Kenyan Commons: The Stakes of State Control Over Land in the Formulation of the Community Land Act (2011-2016)

This paper analyses power struggles in the legislation-making processes that produced the Kenyan Community Land Act (CLA), which was called for by Kenya’s 2010 Constitution and drafted between 2011 and 2016. It delves into policy debates and multi-actor negotiations that revolved around the redefinition of authority over customarily-held lands in Kenya. The CLA responded to tenure insecurity resulting from historical land dispossessions and on-going land grabbing with policy provisions intending to register (and thus secure) customarily-held lands as the private property of a community, which was officially recognized as a legal persona. Policy debates held during the reform process often drew on binary narratives about land reforms, presented as either market-promoting or community-protecting, thus obscuring institutional power struggles that actually featured legislation-making, which are dissected in this paper. Although the fast-changing empirical realities of Kenyan customary land regimes often defy the ‘market versus community’ binary, the ultimate policy compromise of the CLA of 2016 was based on the notion of community ownership of land, which hybridizes elements of both these narratives of land reform. The paper argues that studying the power struggles that produced the Act in historical perspective goes far in explaining its hybrid character.