In countries across Africa, many people do not have access to formal land registration. Individual and shared property rights have not been properly documented or acknowledged.
Lack of documentary evidence of customary property rights leaves individuals, households, and communities at a disadvantage. Lack of customary land rights has undermined the ability of individuals, households, and communities to protect their traditional access to land for agriculture, environmental conservation and mineral rights. Government and private companies have been able to evict communities or make claims and prospect in areas where rights have only been expressed by oral tradition. Even within communities, undocumented transfers of land have caused confusion. Where a title deed may exist, the deed has not been updated by any subdivisions or bequests and may refer to a deceased party as owner. Land may be grabbed or obtained without challenge, traditional rights of access, usage, and sale values are undermined. Moreover, landowners have no proof of ownership which could allow them to borrow credit.
Getting legal evidence of rights to property has been a lengthy and expensive process which requires precise measurements of boundaries and rights of access or easements of land that can usually only be done by trained surveyors. Also, the types of customary rights which have been declared by communities may not fit the formal legal definition of land title rights.
The current act (2016) gives communities both the right and the outline of a mechanism by which customary land can be legally recognized for the first time in Kenya. As yet, the detail of the registration process is unclear and requisite forms have not been disseminated. This means that registration is currently conducted to the standards required by formal titling. The whole process is limiting and communities are confused as to how to go about the registration process.
Key bottlenecks are assumed to be:
- Lack of affordable tools to empower people to obtain rights to their land.
- Local communities have no access to information.
- Local communities are not able to value their land.
- The registration process is unclear or unknown to the communities.
- The relationships between Kenyan national, community and individuals in terms of property rights is difficult for communities to comprehend.
- Antiquated procedures sustained through inertia in the titling process and an inability to explore, let alone adopt new technologies to replace old methods.
- Technical tools used to capture vital info on mapping are often too expensive, difficult to operate, rely solely on connectivity, and require extensive training/maintenance and complex processing solutions. In some cases, the skills needed to record information accurately often built up over many years of experience including formal qualifications.
So while there might be a perception by the national government that customary titling can move forward, communities struggle to work out a cost-effective path to documented rights. With titling, people can buy and sell land more easily, protect and manage the land more effectively, and conserve the resources on and under that land.
The current limited network of both government and private surveyors would be overwhelmed if all communities rushed to document their land at this time. Professional surveyors fees needed at demarcation and titling stages of the process would be prohibitive for most communities, let alone individual owners within those communities.
Our recent research applied new technologies to the data capture element of registration in order to test whether affordable tools for documentation of land exist, whether these tools can reach the accuracy standards required by the state, and whether communities can fill in the gap and replicate the work of a professional surveyor.
To do this, we looked into the land demarcation process, determined whether new technologies were of quality and met national standards, and gauged the most cost-effective tools which are widely accessible to local communities.
More coming soon.
Authors: Primoz Kovacic, Alan Mills, Michelle Gathigi
 Land Rights Now, 2016.