Indigenous World 2019: Kenya

Written on 24 April 2019. Posted in Kenya

In Kenya, the peoples who identify with the indigenous movement are mainly pastoralists and hunter-gatherers as well as some fisher peoples and small farming communities.

Pastoralists are estimated to comprise 25% of the national population, while the largest individual community of hunter-gatherers number approximately 79,000. Pastoralists mostly occupy the arid and semi-arid lands of northern Kenya and towards the border between Kenya and Tanzania in the south. Hunter-gatherers include the Ogiek, Sengwer, Yiaku, Waata and Awer (Boni). While pastoralists include the Turkana, Rendille, Borana, Maasai, Samburu, Ilchamus, Somali, Gabra, Pokot, Endorois and others. Each of these groups face land and resource tenure insecurity, poor service delivery, poor political representation, discrimination and exclusion. Their situation seems to get worse each year, with increasing competition for resources in their areas.

Kenya’s indigenous women are confronted by multifaceted social, cultural, economic and political constraints and challenges. Firstly, by belonging to minority and marginalised peoples in the national context; and secondly, through internal social cultural prejudices. These prejudices have continued to deny indigenous women equal opportunities to rise from the morass of high illiteracy and poverty levels. It has also prevented them from having a voice to inform and influence cultural and political governance and development policies and processes, due to unequal power relations at both local and national levels.

Kenya has no specific legislation on indigenous peoples and has yet to adopt the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) or ratify International Labour Organization (ILO) Convention 169. However, Kenya has ratified the International Convention on the Elimination of All Forms of Racial Discrimination (ICERD), the Convention on the Elimination of Discrimination against Women (CEDAW) and the Convention on the Rights of the Child (CRC).

Chapter Four of the Kenyan Constitution contains a progressive Bill of Rights that makes international law a key component of the laws of Kenya and guarantees protection of minorities and marginalized groups. Under Articles 33, 34, 35 and 36, freedom of expression, freedom of the media, and access to information and association are guaranteed. However, the principle of free, prior and informed consent (FPIC) remains a pipedream for indigenous peoples in Kenya.

The Community Land Act

Following the 2010 promulgation of a new Constitution for Kenya, indigenous peoples were optimistic that their century-long claims to their lands and territories would finally be settled. The new Constitution recommended an overhaul of all land laws in the country and created three categories of land in Kenya: Private, Public and Community Lands. To address land grievances, the new Constitution, under Article 67, created a National Land Commission (NLC) with a key mandate to initiate investigations into historical land injustices and recommend appropriate redress.

A Community Land Act passed into law in September 2016. However, there were concerns among stakeholders about the lack of clarity on the mandates of the Ministry for Lands and Housing and the NLC as well as about the lack of mechanisms for operationalization of the Community Land Act and two other land acts (the Land Act and the Land Registration Act) – and how these could be implemented without overlaps and conflicts.

In January 2017, the Minister for Lands and Housing through the Land Laws Amendment Act, 2016, set up a taskforce to interrogate the three laws and develop regulations on effective operationalisation of these laws. The taskforce has prepared draft regulations, rules and guidelines in accordance with the relevant provisions of the Constitution, however, there are not yet signs of implementation.

Most of indigenous peoples’ lands in Kenya are under the classification of community lands, where the Community Land Act underscores recognition, protection and registration of community lands. Nonetheless, indigenous peoples are currently experiencing that their lands are being subjected to extractive activities and mega infrastructural projects, and they are concerned that this will cause diminishing space for their entire livelihood and production systems, land degradation and destruction of cultural and religious sites. 

Potential for addressing historical land injustices

In accordance with section 15 of the National Land Commission Act of 2012, the NLC in 2017 generated the “investigation of historical land injustices regulations” that provided a framework for conducting investigations into historical land injustices which are generally defined as: (i) a violation of land rights on the basis of the law, a declaration, administrative practice, treaty or agreement; (ii) resulting in displacement of people from their habitual place of residence; (iii) occurred between 15 June 1985 and 27 August 2017; or, (iv) commenced between 15 June

1985 and 27 August 2017 and have not been resolved. The 2017 regulations lay out the procedures through which historical land injustices are defined, the merits of acceptability of claim(s) and the regulatory frameworks for notices of public presentation of grievances, supporting evidence and remedial measures and revocation mechanisms.

There is an urgent need for indigenous peoples, their organisations and supporters both locally and internationally to undertake sensitisation campaigns to make use of this window of opportunity to enable indigenous communities and individuals with historical land claims to seek specific guidance from the NLC.

The Lake Turkana Wind Power Project court case

For the past five years, the indigenous peoples of Laisamis constituency have been battling the mega Lake Turkana Wind Power project, seeking redress for the takeover of about 150,000 acres of their communally-owned and managed land in Laisamis constituency, Marsabit County in Kenya’s Upper Eastern region for the establishment of the Wind Power Project.

They initially filed a case in 2014 in Nairobi’s Environment and Land Court. This case was then transferred to Meru’s Environment and Land Court. The plaintiffs are nomadic pastoralists who have legitimately occupied and utilised the suit land from time immemorial and have held it as ancestral, cultural and grazing land for themselves and in trust for future generations.

The indigenous peoples claim that the land in question was un-procedurally hived off and allocated to a private entity, Lake Turkana Wind Power Limited, and that therefore, the ancestral ownership of community land was annulled through an illegal process. It is against this background that plaintiffs on behalf of the community filed the suit seeking orders of cancellation of the titles to the suit land and orders of nullification of the wind power project as it sits on fraudulently acquired land. The project has been completed with 365 wind turbines installed and it is expected to generate 310 megawatts of electricity per year to the national grid.

On 25 April 2018, the Meru Environment and Land Court referred the case to the Chief Justice of the Supreme Court of Kenya for selection judges to hear this case which – according to the judge of the Meru Environmental and Land Court – is “of great public importance and of great public interest, are weighty, complex and will require substantial amount of time to conduct the trial”.

Indigenous peoples are waiting with bated breath to see the direction that the case will take after it has been transferred to the Supreme Court in Nairobi.

FGM and indigenous Maasai girls

It is indisputable that Female Genital Mutilation (FGM) exposes women and girls to significant risks, especially during childbirth. In Kenya, FGM is prohibited in order “to safeguard against violations of a person’s mental or physical integrity”, according to the Prohibition of Female Genital Mutilation Law of 2011.¹

In Kenya’s Narok County, which is home to Maasai indigenous peoples, the local County Commissioner (a representative of the national government at the County level), directed that school girls in the County undergo mandatory pregnancy and FGM tests in the first week of January 2019 as part of identifying girls that have been subjected to FGM during the 2018 December school break – as well as identifying those that have fallen pregnant during the same period. However, some of the emerging propositions by some government functionaries are tantamount to violation of the rights of the very girls and women that the law seeks to protect.

While FGM forms part of the violation of children’s rights to bodily integrity, forced FGM and pregnancy testing violates the same principle of bodily integrity in the context of children’s rights to autonomy and self-determination over their own body. Enforcement of the directive by the Narok County Commissioner therefore amounts to unconsented physical intrusion which is a gross human rights violation.

The County Commissioner administrator warned that parents of children who are found to have been subjected to FGM will be arrested and prosecuted.

The Kenya Government Demographic Heath Survey (KDHS) of 2014 states that Kenya has made progress in reducing the occurrence of FGM with prevalence dropping from 27% in 2008/9 to 21% in 2014. However, the report notes that “in spite of the steady decline nationally, the prevalence still remains very high amongst some communities such as the Somali at 94%, Samburu 86%, Kisii 84%, and Maasai at 78%”.²

In addition, Narok County leads nationally in teenage pregnancies the prevalence of which is estimated at 40 %, according to the Demographic Health Survey (DHS) report by the Kenya Bureau of Statistics. In 2018, some 233 school girls from eight secondary and primary schools aged between ten and 19 years were forced to drop out after they were found to be pregnant. According to media reports, more than 60 girls failed to write their national examinations due to pregnancies in Narok County.

According to the United Nations Population Fund (UNFPA)³ and the United Nations Children’s Fund (UNICEF), Kenya is one of the 17 coun- tries globally that are implementing the Joint Programme on FGM, the main focus being the implementation of the Prohibition of FGM Act of 2011, relevant policies, service delivery and coordination framework, as well as county and community engagement on cessation of the FGM practise in the country.

There is a need to interrogate further why, with all the interventions being implemented, the practice is still prevalent in some parts of the country and especially among indigenous peoples, including the Somali, Samburu and Maasai.

The Sengwer people

For over a decade, the Sengwer and Ogiek indigenous peoples have been battling waves of state-sponsored evictions from their ancestral homes in Cherangany Hills, Embobut, Kabolet and Mau forests in Western Kenya and Rift Valley under the guise of conserving or protecting these forests from destruction due to “human activities”. Reports abound on the atrocities that these two indigenous groups have suffered at the hands of Kenya’s security agencies which have at times led to deaths and injuries, destruction of livelihoods and production systems, shelters, property, cultures and beliefs.

Implementation of the African Court ruling on Ogiek indigenous peoples

Following the May 2017 historic ruling by the Tanzania-based African Court on Human and Peoples Rights (ACHPR) on the rights of the Ogiek indigenous peoples, the government of Kenya in November 2017 formed a taskforce to develop a framework for the implementation of the ruling. However, the Ogiek were not consulted and the taskforce lacked representation of the Ogiek community.

According to representatives of the Ogiek, numerous attempts to seek the intervention of Kenya’s Attorney General to ensure the participation of the Ogiek in the taskforce process did not bear any fruits. Yet the terms of reference of the taskforce included conducting public awareness and studies on the rights of indigenous peoples, as well as making recommendations on compensation, restitution and redress for the land injustices suffered by this indigenous people in accordance with relevant judgments in relation to the case and other legal and policy mechanisms regarding the Ogiek land.

In addition, in September 2018, the Ogiek were faced with violence in Nesuit and Mauche areas of Njoro in Nakuru County when their houses were burned and property destroyed by members of the neighbouring Kipsigis community in what the Ogiek suspected to be an attempt to evict them from their ancestral lands in spite of the ACHPR ruling that reinstated their land rights.

Based on these realities, the Ogiek indigenous peoples threatened to lodge another legal suit at the ACHPR on the government of Kenya’s contempt of the ACHPR ruling – and to compel the government to speed up the implementation of the ruling.

State agency sets precedent in consulting indigenous peoples prior to project implementation

In 2018, in an unprecedented move, the Kenya National Highways Authority (KeNHA) under the Ministry of Transport, Infrastructure, Housing and Urban Development initiated engagement with representatives of Kenya’s indigenous peoples that included the Maasai and Ogiek prior to the upgrading of the 175-kilometre-long Nairobi-Mau Summit Highway and the improvement of the 57.8 kilometre of the highway between Rironi and Naivasha via Mai Mahiu. This highway construction is funded under the World Bank-financed Kenyan Infrastructure Finance and Public Private Partnerships Project (IFPPP).

According to project documents shared by the KeNHA to members of the indigenous peoples, this project forms part of the Trans-African Highway (Northern Corridor), part of the main transport route serving East and Central African countries through the Indian Ocean seaport of Mombasa.

The consultations with representatives of indigenous peoples and on the ground engagement with communities along the project areas were aimed at sharing information on the project and further sought to inform the processes of undertaking Environmental and Social Impact Assessments (ESIAs) as part of anticipating and identifying the adverse environmental and social risks and generating the requisite mitigation measures.

Indigenous people’s organisations together with representatives of the KeNHA and the World Bank held two meetings in Nairobi and representatives of indigenous peoples and organisations recommended continuous consultative process, taking into account their historical grievances; and abiding by Kenya’s Bill of Rights and relevant international human rights conventions ratified by Kenya.

The KeNHA said it will use these recommendations to develop an indigenous people’s safeguard protocol for the project. This forms one of the best practices by a Kenyan government body in articulation of its responsibilities to Kenya’s indigenous peoples as prescribed in the Constitution of Kenya and international instruments relevant to indigenous peoples that Kenya has ratified or is in support of.

Indigenous peoples challenge the LAPSSET project

The 2.5 trillion shilling (USD 2.4 billion) Lamu Port-South Sudan-Ethiopia-Transport (LAPSSET) Corridor infrastructure project seeks to combine a multi-lane highway, a railway line and oil pipeline linking the Kenyan coastal town of Lamu to South Sudan and Ethiopia and it has been lauded by the Kenyan President as an economic and trade game changer.

Isiolo forms the epicentre of the LAPSSET project. As part of the project’s appreciation of the implications of the Community Land Act of 2016, which places the custodianship of community land under the county government, in January 2018 the LAPSSET Corridor Development Authority top management had a meeting with the Isiolo county government seeking to have the county set aside land for the planned inland dry port, pipelines, railway line, dam, resort city and highway.

While the Isiolo County government welcomed the project, the governor insisted on the need for national government to prioritize the process of issuance of title deeds (certificates of ownership) to Isiolo residents before the community land is hived off as part of ensuring compensation mechanisms for those communities that will be displaced by the project.

In May 2018, the high court in Malindi ruled in favour of 4,600 fishermen in Lamu after they moved to court seeking reparations for the destruction of their livelihoods as a result of LAPSSET activities for the construction of the Lamu Port. In the ruling, the court offered the plaintiffs 1.76 billion shillings (USD 170 Million) compensation for the violation of their rights to a clean and healthy environment, cultural rights and failure to meet constitutional and legal thresholds in the implementation of the port project. However, upon appeal by the Kenya Airports Authority the court of appeal suspended this ruling arguing that the high court had issued orders that the fishermen people had not pleaded.

In July 2018, the Boni indigenous peoples threatened to move to court to challenge what they termed as discrimination by the LAPSSET Development Authority in failing to sufficiently compensate them for their lands that have been annexed for the project.

Human rights defenders challenging the LAPSSET project face harassment and intimidation

Human rights defenders advocating against the harmful impacts of the mega infrastructure LAPSSET project on the rights of indigenous peoples, especially in Lamu at the Kenyan Coast, have been targeted for intimidation and harassment by state security agencies.

In December 2018, Human Rights Watch (HRW) and the National Coalition of Human Rights Defenders-Kenya (NCHRDK) released statistics indicating that about 35 human rights defenders challenging the implementation of the LAPSSET project were subjected to arbitrary arrests and detention, physical violence and threats by the Kenyan Police and military personnel.⁴

According to the NCHRDK and HRW report on the situation of human rights defenders in Kenya, the most convenient accusation used by security agencies against human rights defenders is to label them associates or sympathizers of the extremist Al Shabab terror group operating in neighbouring Somalia and carrying out terror forays in Kenya. It cited at least 15 such incidents which are meant to besmirch the reputation of human rights activists and distort the fact that they are seeking a rights-based implementation of the LAPSSET project.

As the implementation of the LAPSSET proceeds to the mainland, a replication of what is happening in Lamu is expected to befall indigenous peoples’ human rights defenders and their organisations, especially in regards to land, ecological, livelihoods, cultural and religious rights.

There is therefore urgent need for regional and global indigenous peoples’ movements, organisations and partners to consolidate their efforts to support human rights defenders and organisations to ensure that harassment and intimidation by security agencies is minimised through effective community awareness creation and mobilisation to seek responsive and rights-based development within their lands and territories.

Notes and references

1. See Kenya Law NO. 32 OF 2011, Prohibition of Female Genital Mutilation Act at http://bit.ly/2IGDr2Q
2. See Kenya Demographic and Health Survey, 2014 at http://bit.ly/2IJA9Mp
3. UNFPA/UNICEF Joint Programme on Female Genital Mutilation (FGM) in Kenya. Accelerating Change 2014-2017 at http://bit.ly/2IK4r1x
4. See HRW, Report on Abuses Against Environmental Activists at Kenya’s Coast Region” at http://bit.ly/2IKjQiq

Michael Tiampati has worked as a journalist in Kenya and East Africa for Reuters Television and Africa Journal. He has been working with indigenous peoples in Kenya for more than 19 years, including the Centre for Minority Rights Development (CEMIRIDE), Maa Civil Society Forum (MCSF) and Mainyoito Pastoralist Integrated Development Organization (MPIDO). He is currently the National Coordinator for the Pastoralist Development Network of Kenya (PDNK) and the chair of the newly formed Eastern and Southern African Pastoralist Network.