1. Legal, policy and institutional reforms necessary in order to
safeguard and promote effective access to land and land
based resources by ‘indigenous peoples’ in Kenya
The decolonisation processes in most African states transferred state power to the dominant
groups in the territory. Certain groups remained vulnerable primarily due to their close
attachment to their traditional cultures and reluctance to assimilate and embrace western
development paradigms that were adopted by the post-colonial state.1 It is some of these groups
who today self-identify as indigenous peoples and demand recognition and protection of their
fundamental rights in accordance with their culture, traditions and way of life.2
In Africa indigenous peoples face a lot of challenges ranging from marginalization and non-
recognition by governments and other ethnic groups, to poverty, AIDS/HIV, and illiteracy.3 At
the same time there have been remarkable achievements by indigenous people in the last 10
years, especially in South Africa, Kenya, Tanzania, Morocco, Central Africa, Nigeria, and other
eastern and central Africa communities.4 Arguably, indigenous people can be classified into two
major groups, namely livestock pastoralists and hunter-gathers. Some communities also exist
known as the blacksmiths and potters.
‘:Discrimination, domination and marginalisation violates their human rights as peoples/communities,
threatens the continuation of their cultures and ways of life and prevents them from being able to
genuinely participate in deciding on their own future and forms of development.’
It is on the basis of uncertainty in the legal and policy framework that indigenous communities
such as the Endorois, Ogiek and Sengwer continue to suffer eviction from their ancestral land. It
1 I Brownlie Treaties and indigenous peoples (1992) 56.
2 See art 1 ILO’s Indigenous and Tribal Peoples Convention, 1989 (169); see also Report of the African
Commission’s Working Group of Experts on Indigenous Populations/Communities, submitted in
accordance with the ‘Resolution on the Rights of Indigenous Populations/Communities in Afric a’ (Report
of African Commission’s Working Group of Experts) adopted by the African Commission on Human and
Peoples’ Rights at its 28th Ordinary Session, 2005, 93.
3 practicesJanetPritchard,Feja Lesniewska,Tom Lomax, Saskia Ozinga and Cynthia Morel,Securing
community landand resourcerights in Africa:A guide to legal reform and best practices
4 IUCN – International Union for Conservation of Nature Submission to the 10
th
Session of the United Nations
Permanent Forum on Indigenous Issues New York City, 16 – 27 May 2011

2. has been observed that the broad conceptualisation of public land under the Constitution may
contribute to severe tensions between the interests of some minority communities and
conservation efforts of government In addition, some of the laws that may be used to bar
indigenous communities from inhabiting or accessing their ancestral land.5
The Kenyan government has acknowledged that issues of minorities (this is the term Kenya
seems to prefer to address indigenous peoples’ issues) are closely linked to land rights and
claims that it is taking proactive measures to address these issues.6 However, it has been noted
that ‘Kenya is faced with landlessness on a large scale and with recurrent land disputes among
individuals and between communities’.7 Land in Kenya is an emotional issue due to the
inequality in ownership and the history of dispossessions of indigenous peoples by some
mainstream communities with the support of the colonial and post-colonial regimes. This has
resulted in resource-based conflicts, mainly due to the ‘politicization of land ownership and land
rights, arbitrary allocation of community land, scarcity of land for pasture and crop farming,
struggle for access to and use of water resources, and depletion of limited water’.8
Kenya’s new Constitution is a progressive document that aims to address the failed legal and
moral systems created by earlier colonial and postcolonial regimes. The country’s previous
constitutional order alienated most citizens from the state, but minority and indigenous
communities have borne the brunt of this exclusion.9 Further, this system reproduced and
strengthened differences between Kenya’s diverse groups – mainly ethnic and religious – rather
than building a pluralistic society that tolerates all shades of diversity based on equality before
the law.
How people own and manage land and natural resources is defined and regulated by land and
resource tenure systems. Land tenure systems may be based on written policies and laws,
5
Mbondenyi, M, Human rights and democraticgovernancein Kenya:A post-2007 appraisal
6 As above, para 213; discussions with officials of the Ministry of Justice, National Cohesion and
Constitutional development in September 2008.
7 APRM Report .
8 See Report of the Special Rapporteur on the situation of human rights and fundamental freedoms of
indigenous peoples,R Stavenhagen, Mission to Kenya, A/HRC/4/32/Add3, 26 February 2007 (Report of the UN
Special Rapporteur on Indigenous Peoples in Kenya) para 10; see also IWGIA 468.
9
Bondi D. Ogolla & John Mugabe, Land Tenure Systems and Natural Resource Management,in IN LAND
WE TRUST: ENVIRONMENT, PRIVATE PROPERTY AND CONSTITUTIONAL CHANGE 85
(Calestous Juma & J.B. Ojwang, eds., Nairobi: Initiatives Publishers, 1996).

3. unwritten customs and practices or a mixture of both. Land tenure systems determine who can
own, use and manage which land areas and resources, for how long and under what conditions.
Land tenure security guarantees the existence of your land rights, provides certainty that others
will recognise your rights and ensures protection of your rights through legal remedies when
those rights are challenged or abused.10 Tenure security provides landowners and users with
confidence that they will not be arbitrarily deprived of their rights over particular lands and
resources. Clear and secure land tenure is fundamental for improving livelihoods and sustainable
management of natural resources, including forests. Inadequate or insecure community tenure
rights can lead to conflict and environmental degradation when competing users fight for control
over these resources.11
Article 27 of ICCPR has been interpreted by the UN Human Rights Committee so as to give
meaning to indigenous peoples’ land and resource rights.12 The state is therefore obliged to give
effect to its international law obligations which include ensuring that its legal framework is in
consonance with international standards as expounded by the Committees’ General Comments.
However, Kenya is yet to address some of the concerns of indigenous peoples with regard to
their land and resource rights, including the issue of consultation in the utilisation and sharing of
resources present in the areas they inhabit.13
The National Land Commission should hasten the process of recovering illegally or irregularly
acquired land, especially where indigenous peoples are concerned.14 The UN Special Rapporteur
had also proposed that illegal and irregular titles on ancestral land of indigenous peoples be
revoked or rectified, which would include restitution of the land or compensation.15 In that
10
Bondi D. Ogolla & John Mugabe, Land Tenure Systems and Natural Resource Management,in IN LAND
WE TRUST: ENVIRONMENT, PRIVATE PROPERTY AND CONSTITUTIONAL CHANGE 85
(Calestous Juma & J.B. Ojwang, eds., Nairobi: Initiatives Publishers, 1996).(see 9 above)
11 Ibid 0
12 See Chief Bernard Ominayak and the Lubicon Lake Band v Canada (n 145 above) paras 32-33; see also UN
Human Rights Committee General Comment 23(50): The Rights of Minorities (Article 27) UN Doc.
CCPR/C/21/Rev.1/Add.5 (Apr. 6, 1994) paras. 6-7.
13
See, e.g., J.M. Migai Akech, Rescuing Indigenous Tenure from the Ghetto of Neglect: Inalienability and
the Protection of Customary Land Rights in Kenya, ACTS Ecopolicy Series No. 11 (2001).
14
Truth JusticeandReconciliationCommission‘Report of the Truth, Justiceand
ReconciliationCommission: Volume IV’ 201355.
15 UnitedNations General Assembly

4. regard, the Kenyan Government should provide remedies for indigenous peoples in the form of
restitution or compensation where they were dispossessed of their land without free, prior and
informed consent. The government should, therefore, implement the 2010 declaration of the
African Commission in the Endorois case.16 Where feasible, restitution of the indigenous peoples
to their ancestral land should be the primary objective of any legal or policy framework to
address historical injustices concerning such communities.
The reality in African countries is legal pluralism, in which customary laws co-exist with
national law and international law, all with implications for community rights to own, use and
access land and resources. Land tenure systems should therefore be based on the realities of
communities on the ground.17 Rather than inventing theoretical new legal frameworks or
borrowing legal models from western nations, lawmakers should elevate existing customary land
claims up into countries’ formal legal frameworks and make customary land ownership rights
equal in weight and validity to documented land ownership claims; land tenure law should
comply with and implement overarching principles and norms, as expressed in the national
constitution as well as regional and international conventions. This entails extending to
customary communities all the protections, rights and responsibilities inherent in the national
legal system, as well as regional and international agreements to which the country has
committed.18
Rural and forest communities in Africa, including indigenous peoples, often do not have a
written deed or similar document ‘proving’ the ownership of their community/ancestral lands.
Yet they may have collectively occupied and used that land for centuries in accordance with
customary laws, justifying a legitimate ‘customary’ ownership right.19 Historically, the lack of
written proof has translated into a denial of community property rights, making their lands
vulnerable to being taken by companies, government or private individuals. However under
international law, customary ownership of community lands and resources must be recognised,
16
African Court on Human and Peoples’ Rights ‘African Court in brief ’ http://www. african-
court.org/en/index.php/about-the- court/brief-history.For the caseconcerningthe Ogiek indigenous
community, see, African Commission on Human and Peoples’ Rights
17 See 5 above
18 Ibid 17
19 S. James Anaya, Report of the Special Rapporteur on the situation of human rights
and fundamental freedoms of indigenous people: 11 August 2008

5. respected and protected by States. International law is therefore a key tool in seeking secure
community rights.20
Eminent domain provisions included in the national laws of some countries give the State the
power to seize private property for public purposes, even without the owner’s consent. While
‘public use or purpose’ can be broadly defined, eminent domain is typically exercised for the
construction of infrastructure such as roads, power plants, utilities and public buildings. Under
section 110(1) of the Land Act, the government may compulsorily acquire land if the National
Land Commission certifies, in writing, that the land is required for public purposes or in the
public interest.21166 Section 110(1) of the Land Act implements article 40(3)(b) of the
Constitution, which identifies public purpose or public interest as one of the basis for
compulsory acquisition of land by the state.22 In addition, article 40(3)(b) of the Constitution
requires that just compensation for the acquisition be paid promptly. However, the notion that a
State can exercise its power of eminent domain according to its own will is out of step with
emerging legal standards across national, regional and international human rights law.
Articles 8(2)(b), 11(2) and 28(1) of the UNDRIP requires states to prevent or remedy
dispossessions of indigenous peoples of their land without their free, prior and informed
consent.23 The need for free, prior and informed consent before the land of the indigenous
peoples is alienated by the Kenyan Government was also expressed by the United Nations
Special Rapporteur in his 2007 Report to the UN General Assembly. However, there are
concerns that the right to be consulted translates to the right of the indigenous community to veto
a state’s economic and development activities.24
There is also the problem of identifying communities that should be categorised as ‘indigenous
peoples’. There is, therefore, the need for legislation that spells out the characteristics upon
which a group of people may be designated as such. We analize the criterion that is emerging
under international instruments, and through the work of international courts and
20 Indigenous peoples in Africa:The forgotten peoples? The African Commission’s work on indigenous
peoples in Africa (The African Commission’s work on indigenous peoples in Africa) African Commission &
IWGIA (2006) 15.
21 Land act, 2012
22 Kenya constitution,2010
23 UnitedNations General Assembly
24 See 19 aove

6. intergovernmental organizations.25 Such a criterion may be incorporated in the Kenyan domestic
legislation and in the jurisprudence of local courts and tribunals. In sum, the characteristics
include unique cultures and lifestyles that are fundamentally distinct from those of the
mainstream society.
The State must ensure the effective participation of the members of the affected community
regarding any development, investment, exploration or extraction plan within their territory. It
must be possible for the communities to participate in a manner that is consistent with their
customs and traditions, for example, holding local community meetings rather than formal
meetings in city centers. It also means that communities should be actively involved in
determining the pace of the process and related timelines.26
Effective institutionalization of participatory forest management involving indigenous
communities requires comprehensive legal and policy reforms. Amendments should, therefore,
be carried out to the relevant statutes, such as the Forests Act, so that they facilitate rather than
obstruct access to land based resources by indigenous communities in their traditional territories.
Courts and tribunals in Kenya also have a significant role in developing progressive
jurisprudence with regard to the rights and responsibilities of indigenous peoples in relation to
land based resources such as forests.27 In particular, courts and tribunals should interpret the
2010 Constitution and statutes in a manner that is consistent with developments under
international instruments, and be cautious not to permit the subjugation of customary rights by
those that arise from public and private tenure systems.
Emphasis that community members should be able to access a complaint dispute mechanism that
is accessible in terms of language and location and that is otherwise familiar to them.28
Therefore, the first point of access for bringing and resolving complaints about violations of land
rights should be provided at the local level and adapted from familiar customary dispute
mechanisms, preferably based on existing customary dispute mechanisms where they exist and
are fair and functional. It is important that these decisions can be appealed all the way up to the
highest court in the country to ensure ‘upward accountability’ of customary authorities,
particularly in relation to their compliance with core principles.
25 Ibid 5
26 Country reports Kenya. Sourced from Institute of Security Studies
<http://www.issafrica.org/AF/profiles/kenya/Economy.html> (accessed 6 November 2015).
27 ibid 25
28 See generally YP Ghai and JPWB MacAuslan PublicLaw and Political Change in Kenya (1970) 3-25

7. The UN Committee on Economic Social and Cultural Rights has noted with concern that
‘disparities in the enjoyment of economic, social and cultural rights, including access to land,
have led to inter-ethnic tensions and post-election violence during which at least 1,500 persons
were killed early in 2008’. 29 The Committee recommends that Kenya address these disparities
‘… which particularly affect poor people in urban areas and minority and communities in rural
areas, eg by adopting the Draft National Land Policy, establishing land inspectorates to monitor
discriminatory allocation of land, and implementing the recommendations of the Ndung’u
Commission of Inquiry into Illegal/Irregular Allocation of Public Land’.30
29 See Concluding observations of ECOSOC Committee para 12.
30 See Concluding observations of ECOSOC Committee para 12.