Meet Sumayyah Jarso Mokku from Kenya.
Sumayyah is an Advocate of the High Court of Kenya. She holds a Bachelor’s Degree in Law from the University of Nairobi and a Postgraduate Diploma in Law from the Kenya School of Law. Currently, Sumayyah works as a Legal Associate at Bashir & Noor Co. Advocates, a human rights-oriented law firm. This has enabled Sumayyah to participate and litigate numerous PIL cases over the years, including some notable cases such as challenging of the Kenya’s Digital Identity Card dubbed ‘Huduma Namba’ for its exclusion of minority communities on behalf of the Nubian Rights Forum; and ten (10) Double Taxation Agreements between Kenya and other foreign jurisdictions for illegal waiver of taxes payable by foreigners causing revenue loss to Kenyan taxpayers on behalf of Tax Justice Network Africa — to name a few. Sumayyah has always been interested in human rights and the pursuit of an equitable society. Joining the training programme presented Sumayyah a unique opportunity to link her passion for legal aid and social justice with her private sector experience as a litigator. Further, Sumayyah joined the programme to develop the skill set that complements public interest litigation such as advocacy, ability to foster partnerships and community engagement. For Sumayyah, the array of distinguished and experienced trainers and diversity of the fellows was another key factor that drew her to the programme.
Sumayyah is currently hosted by Haki na Sheria Initiative for the practicum. Her experience has been profoundly pragmatic, as her colleagues have exposed her to the nooks and crannies of transforming everyday community concerns into sustainable long-term solutions through PIL, in very diverse areas ranging from access to justice for violation of fundamental rights and freedom, citizenship, refugee rights, digital justice, women and youth empowerment and environmental justice. Everyday at Haki na Sheria Initiative has become an opportunity for Sumayyah to soak in knowledge and develop new skills, whilst seeing social justice come to life.
Sumayyah’s project is titled ‘Protection of Community Land Rights in Kenya: Challenging the constitutionality of amended Sections 2, 107(5A) and 107A of the Land Act (№6 of 2012)’. Sumayyah contends that the underlying problem with the impugned amendment law is that it is discriminatory and denies or makes it nearly impractical for Pastoralist and Indigenous Communities to receive compensation for their land once the same has been acquired by the state for public purposes. Some of the key concerns being that it expands the compensation period up to one (1) year from the date of acquisition of land by the Government thereby redefining what entails prompt payment of compensation. This in Sumayyah’s view is likely to lead to homelessness and massive displacement of communities who have no alternative shelter and are yet to receive compensation to enable them to secure a new abode. The amendment law also introduces a land value index to be used for compensation of land acquired; however the chosen criteria does not take into account non-monetary value that communities attach to land. This has the effect of undervaluing or devaluing community land. Additionally, it describes a sufficient notice of intention to acquire land to mean one which contains a general description of land. This has allowed the government to gazette coordinates as the description of the land it intends to acquire. Owing to the fact that coordinates are not a known way of identifying land especially by lay community members, the notice falls short of serving its purpose of informing accordingly. As a result, communities are subjected to forced evictions because they do not know or understand that their land was designated for acquisition by the government. Lastly, the amendments deny compensation to pastoralist communities living on unregistered land. Article 40(4) of the Constitution of Kenya represents an occupant in good faith as someone who occupies unregistered land. As a result of other underlying factors, nearly all community land in Kenya which covers roughly 70% of Kenya’s land mass remains unregistered to date. The amended law states that an occupant in good faith has to have lived on the unregistered land for an uninterrupted period of six (6) years. Owing to the nomadic lifestyle of pastoralist communities of moving from one place to another in search of water and pasture for their animals, they are evidently excluded from this definition and thus face a high risk of being denied compensation once their land is acquired.
The inspiration behind this case project is that, around the same time the amendments were introduced, the government rolled out the land acquisition process for a mega project known as Lamu Port-South Sudan-Ethiopia Transport Corridor (LAPSSET project) as part of its vision 2030. This mega project consists of seven key transport and logistics infrastructure projects aimed at creating seamless connectivity between the Eastern African Countries of Kenya, Ethiopia and South Sudan. The main counties in Kenya that will be substantially affected by the LAPSSET project are Turkana, Marsabit, Isiolo, Garissa, Tana River and Lamu. The communities residing in these regions are by and large pastoralists. The amendments of the law will therefore gravely affect how land will be acquired for the LAPSSET project and other future projects from these regions. Sumayyah believes that challenging the constitutionality of the amendments is vital to the protection of community land rights, and subsequent failure to challenge these provisions may result in grabbing of extensive parcels of land by the Government who may consider the same free for the taking, contrary to Article 40 of the Constitution of Kenya.
Sumayyah hopes that the outcomes of this project will develop the currently modest jurisprudence on community land. The case aims to set a precedent that just as community land and private land are categorized as different types of land by the constitution then so should their valuation criteria beyond the conventional physical assets and other monetary considerations. Sumayyah wishes to ensure that no community is illegally and unfairly evicted from their land without just, prompt and full compensation, including nomadic communities. To ensure the culture of communities such as pastoralists is understood and taken into account to wit just because the owner of the land is not present thereon and has gone to search for pasture or water on another part of the community land and may return at a later date when pasture has regrown or rivers flow again, does not mean the unoccupied parcel of land at a given time has no owner. Sumayyah anticipates that the case may also encourage provision of support and resources to enable increased registration of community land in Kenya, so that loopholes in the non-registration are not exploited to the detriment of communities.
All work and no play makes Jill a dull girl. During Sumayyah’s free time, she gets lost in history documentaries and books. Sumayyah also enjoys taking road trips to explore the beauty that nature has to offer, pursuing waterfalls, rivers and mountains or spending quality time with her family.
“Change will not come if we wait for some other person or some other time. We are the ones we’ve been waiting for. We are the change that we seek.” — Barack Obama.
We wish Sumayyah the very best in her pursuance of an equitable society.