Using community by‑laws to protect indigenous and rural land rights

A recent IIED webinar explored how developing community by-laws that suit local needs can be a powerful way of protecting the lands of indigenous peoples and rural communities.

Thierry Berger's picture
Insight by 
Thierry Berger
Thierry Berger is a qualified solicitor and Legal Tools consultant at IIED
01 December 2016
David Arach presented Namati's approach to community land protection, focusing on the key stage of community by-laws drafting, in the IIED webinar (Image: David Arach)

David Arach presented Namati's approach to community land protection, focusing on the key stage of community by-laws drafting, in the IIED webinar (Image: Copyright David Arach)

Indigenous peoples and rural communities who rely on customary tenure systems to access their lands face numerous threats, ranging from climate change to large-scale agricultural investments. 

An IIED webinar examined how community by-laws can help secure customary land rights to build community unity, improve local land governance, and strengthen claims to traditional lands.

The need to protect community land

Indigenous peoples and rural communities across the world face many threats including climate change, food and water insecurity, natural resource conflicts, population growth and large-scale agricultural investments.

Communities' rights to these lands depend on customary tenure systems. But these rights are among the least likely to be formally recognised by governments: according to a recent report, only 10 per cent of the world's land belongs to indigenous peoples and local communities while other estimates show that under customary systems, communities and indigenous people hold as much as 65 per cent.

Communities need to be empowered so they can document and protect their customary land claims. Namati, an international organisation dedicated to advancing the field of legal empowerment and strengthening people's capacity to exercise and defend their rights, has been working with local partners in a number of countries across Asia and Africa.

It has developed an integrated approach to protect community land based on strengthening local governance, conflict resolution, participatory mapping, and grassroots legal advocates – community paralegals trained in basic law and skills such as mediation, education, and advocacy.

Protecting community lands 

Unaccountable leaders, unwritten rules and intra-community discrimination are just some of the challenges communities face in protecting their lands. Our first speaker, Namati's David Arach, described how the 'by-laws' process works to address those challenges. 

The process begins by building a comprehensive inventory of rules that apply to the community. This is followed by a meeting where the community is given legal education so they are aware of any national and human rights frameworks that could apply to them and the protection of their lands. 

The rules identified are then 'critiqued' in light of such frameworks and the community is separated into groups including women, youth and leaders. These groups discuss how they would change the by-laws to protect their interests.

Experts review the by-laws to make sure they comply with national law and human rights frameworks. The rules are formally adopted by consensus or supermajority, and after the election of a land governance council, the implementation begins.

Use of community by-laws in Kenya

Our second speaker, John Samorai, program officer for the Ogiek People's Development Program in Kenya, discussed how the indigenous Ogiek forest dwellers community is applying the community by-laws process

The Ogiek community has been facing eviction from its land and is awaiting the outcome of a case against the Government of Kenya lodged before the African Commission on Human and Peoples' Rights. 

Community by-laws regulate governance, use and management of land and natural resources and social and cultural rules. They seek to protect the rights of women and minority groups and increase downward accountability of leaders. Importantly, the by-laws require prospective investors, interested in the community lands, to seek the community's free and prior investment consent. If investors fail to do this, their project will be rejected.  

Enforcing by-laws

For this process to work it must be highly participatory. Rotational village-level meetings can help ensure that all communities, even those remotely located, are reached. Also key is getting buy-in from all stakeholders, including leaders who should be engaged from the beginning of the process.

Copies of the by-laws should be shared with officials and judges to help increase their legitimacy and the by-laws should also be updated to reflect current laws. Holding annual participatory meetings with experts/trained facilitators can help determine whether amendments may be required.

Recognition and legitimacy of by-laws depends on the country's legal framework. Communities can rely on frameworks that expressly support by-laws, such as in Kenya (PDF) or Tanzania. Where no such framework exists, the by-laws can at least be used as a tool for community advocacy.

Community land protection in the Sahel and Tanzania

Similar issues as those described above, including tenure insecurity, arise in many low and middle income countries. For a number of years, local communities in Sahelian countries such as Mali (PDF), Senegal (PDF), Burkina Faso (PDF), Chad (PDF)Mauritania (PDF) and Niger (PDF – all French language) have followed a community land protection process to manage their natural resources through 'local conventions' or 'land charters'.

In Tanzania, the Tanzania Women Lawyers Association is pushing for women's involvement in by-laws to support a more gender-balanced regulatory framework.

The community land protection process can be a powerful tool to address many multiple issues with a view to reaching a more secure customary land tenure and better management of natural resources.

Thierry Berger ([email protected]) is a qualified solicitor and Legal Tools consultant at IIED focusing on law and sustainable development.  

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