The Indigenous World 2021: Kenya
The peoples who identify with the Indigenous movement in Kenya 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 numbers 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. They all 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 marginalized peoples nationally and, secondly, through internal social and cultural prejudices. These prejudices have continued to deny Indigenous women equal opportunities to overcome 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, the media, and access to information and association are guaranteed. However, the principle of Free, Prior and Informed Consent (FPIC) remains a challenge for Indigenous Peoples in Kenya although the Constitution does guarantee the participation of the people.
COVID-19 and its impact on Indigenous Peoples in Kenya
COVID-19 presents a new threat to the health and survival of Indigenous Peoples in Kenya. The country was unprepared to tackle the crisis in terms of allocating resources, personnel and creating awareness of the virus. Due to the remoteness and vastness of the areas occupied by Indigenous Peoples, their access to health services are not adequate, making them the most “vulnerable” health category in the country.
The interaction between Indigenous Peoples and other communities and the exchange of goods and services were seriously and negatively impacted due to the closure of markets and the stringent COVID-19 curfew rules. The income that Indigenous Peoples predominantly depend on from livestock trading, sale of honey and other products declined rapidly. The interruption in the movement of goods and services due to the lockdown increased the food insecurity of Indigenous Peoples since they could no longer purchase alternative foodstuffs such as cereals, which they normally purchase on market days. Although inter-communal sale of livestock continued, the prices were lower than normally as the animals were being purchased at the farm gates.
The COVID-19 pandemic also negatively impacted young Indigenous people engaged in formal employment within the tourism industry. Many tourism investments, wildlife sanctuaries and conservancies are located on the lands of Indigenous Peoples and local communities, and the COVID-19 pandemic with its travel restrictions and lockdowns has led to the closure of tourism facilities and businesses. The pastoral tour guides who depend on this wildlife tourism industry have lost touch with their traditional livelihood systems and have therefore been left without a fall-back option.
The Ministry of Health developed a strategy to provide national statistics on the COVID-19 pandemic. The statistics mention specific counties but they do not disaggregate the data in a way that Indigenous Peoples can be identified. The epidemiological reports show that, from March 2020 to the end of December, the cumulative numbers of confirmed coronavirus cases in some of the northern counties (where many Indigenous people live) were: 1,025 in Laikipia, 160 in Samburu, 225 in Isiolo, 151 in Marsabit and 958 in Turkana. Due to the lack of mass testing equipment and the remoteness of the areas in which Indigenous Peoples live, relatively few COVID-19 cases were detected or reported among Indigenous people.
The COVID-19 pandemic has also offered some opportunities for reviving traditional medicine as a preventive measure. It has also led to innovation among the Indigenous communities - where water is scarce - to make sure they are following the hand washing guidelines by converting 5-litre cans into tip-taps (a tip-tap is a simple structure made from readily available materials – families can wash their hands by pressing a lever with their foot).
On the other hand, COVID-19 containment measures have led to human rights violations and brutality by the security forces, and increases in crimes and homicides, gender-based violence, physical battering and sexual harassment and rapes, early pregnancies among school-going girls, school drop-outs among youth, together with a loss of economic livelihoods and increased unemployment. There are thus many wounds to be healed.
The Kenyan government has come up with a COVID-19 recovery strategy and, prior to this, it was lobbying the financial lenders for waivers to cushion businesses from collapse by extending the loan repayment periods. Recovery kitties are in place but they unfortunately have stringent requirements that Indigenous people are unable to meet because securing financial recovery assistance through collateral arrangements is not possible in relation to commonly-held lands that are collectively used.
Due to COVID-19, the authorities instituted a ban on conducting traditional rites of passage ceremonies for boys in pastoralist communities. Such a ban has never been seen before and it led the community elders to organize and lobby the government to allow the ceremonies to be performed while observing COVID-19 guidelines, with shorter periods for the ceremonies. The dialogue was held with the county administrations in Samburu and elsewhere, and they agreed to the community elders’ proposals, including the observance of COVID-19 guidelines and hygiene procedures. The pastoral organization IMPACT rendered rapid assistance in terms of providing information through the use of vernacular radio stations, songs and vehicles mounted with public address systems and it provided food and personal protective equipment (PPE).
Kenya has a host of laws and policies (18 in all) that relate to forest management with overlapping roles that require harmonization. The lack of clarity of roles and responsibilities has exacerbated the ongoing human rights violations towards forest communities who identify with the forests as their community lands and whose tenure rights are not recognized.
In 2020, Community Land Action Now (CLAN), a network of local rural community CBOs and NGOs, pushed for recognition of the forest communities and challenged the Draft National Forest policy, which implies that the government will manage all Indigenous forests, as noted in paragraph 4 of section 4.2 of the policy. It also challenged the continuing harassment of the Ogiek and Sengwer peoples and the demolition of 300 Ogiek homes in the Mau forest and of 28 Sengwer homes in the Embobut forest. The bullying and use of excessive force by Kenya Forest Service (KFS) officers, including extra-judicial killings among forest communities, are taking place with the aim of driving them out of the forests based on unfounded allegations of illegal activities within them.
Given the ongoing legal challenges affecting the KFS in local, regional and international courts, there is need to scrutinize policy statements relating to Indigenous and forest-based communities. KFS has issued some problematic policy statements relating to Indigenous and forest-based communities that are a cause for concern. These include statements such as:
Three of the five main water towers of Kenya host Indigenous communities. They are the Ogiek (Mt Elgon and Mau) and the Segwer of Cherengani Hills. Their traditional way of life has changed and their livelihood activities now include livestock grazing and food crops production that are not compatible with forest conservation. These livelihoods activities have compromised the integrity of ecosystems and the services they provide, such as water, to the communities in the lower catchment.
If such statements are not checked carefully and if they do not recognize the critical role of Indigenous and forest communities’ custodianship and ownership, this could result in the forest sector reverting to top-down governance policies, largely utilizing command and control mechanisms.
CLAN organized Zoom events with the international community and facilitated the forest community leadership representatives to come up with a communiqué that was shared with relevant authorities on the unfair treatment and human rights violations committed against the forest communities. The communiqué also demanded a halt to the continuing loss of woodlands and forests on untitled community lands, including via gazettement of such lands as Public Forests. The communiqué emphasized that the Draft National Forest Policy should explicitly pledge that state actors will actively assist every community in Kenya living on community land to bring these existing resources (lost woodlands and forest within untitled community lands) under their focused protection as Community Forests.
Community land progress and new challenges
The progress in securing community lands has seen a break-through as a result of the sustained momentum for self-organization among pastoral communities under the former group ranches arrangement. The pastoralist communities have been at the forefront of seeking to implement the Community Land Act of 2016, mobilizing their resources and organizing meetings and knocking on the doors of the Cabinet Secretary of Land. The milestone that ignited hope that this might be possible was the fact that three pastoralist communities had registered their community lands and acquired titles by the end of 2020. These communities are the Ilngwesi and Musul communities in Laikipia North Sub-county (securing 12,000 ha for over 20,000 people) and the Olkerin Community in Kajiado county (5,000 ha for 3,000 people). The delay in government taking up its roles and responsibilities under the Community Land Act became an opportunity for the pastoralist CSOs in terms of pursuing and finding avenues for the implementation of the Act, both at the national and county levels with the devolved county governments.
Ongoing constitutional review
There is, via the Building Bridges Initiative (BBI), an ongoing initiative for a national constitutional review whereby a commission was set up to gather the views of the public and come up with recommendations that will lead to a referendum on the constitutional review. The committee’s report was acceded to by the president in 2020 and it is being disseminated at county level. The Pastoralists Parliamentary Group and the Frontier Counties Development Council have demanded to be heard by the BBI steering campaign team and demanded that their views and concerns be incorporated into the final report. Notable issues of concern for pastoralists and Indigenous Peoples are equity in resource allocation, representation, gender parity, the needs of Persons with Disabilities, and protection of community lands. Regarding community land protection, they emphasize that pastoralism is the most viable land use practice in the drylands and that pastoralists’ lands must be recognized by government and policy-makers as a key factor for production and appropriate land use and as an important sector for the national economy and peoples’ livelihoods.
David N. Silakan, the Coordinator of the PARAN alliance, contributed to this article.
This article is part of the 35th edition of The Indigenous World, a yearly overview produced by IWGIA that serves to document and report on the developments Indigenous Peoples have experienced. Find The Indigenous World 2021 in full here
Notes and references
 National Drought Management Authority (NDMA). “Marsabit County, Drought Early Warning Bulletin for May 2020.” May, 2020, p.10. https://www.ndma.go.ke/index.php/resource-center/send/14-marsabit/5644-marsabit-may-2020
 Statista. “Cumulative number of confirmed coronavirus (COVID-19) cases in Kenya as of February 16, 2021, by county.” Kenya, 2021. https://www.statista.com/statistics/1136519/cumulative-coronavirus-cases-in-kenya-by-county/
 “Covid-19 IMPACT RAPID RESPONSE report for Samburu East Constituency and part of Mukogodo East Ward, 27 April.” July, 2020, p.2. Unpublished report.
 Republic of Kenya, Ministry of Environment and Forestry. “Draft National Forest Policy, 2020.” 19 May 2020, pp.13-14. http://www.environment.go.ke/wp-content/uploads/2020/06/Draft-Forest-Policy-19May-2020-.pdf
 Kenrick, Justin. “Sengwer call for end to human rights violations by Kenyan authorities following burning of 28 homes.” Forest Peoples Programme, 14 July 2020. https://www.forestpeoples.org/en/sengwer-call-for-end-human-rights-violations-kenyan-authorities-after-burning-of-28-homes
 Community Land Action Now (CLAN). “Kenyan Report illegal Evictions during Covid-19.” CLAN Press release, 23 July 2020, p.1. https://www.forestpeoples.org/sites/default/files/documents/2020.07.23%20CLAN%20Press%20Statement_FINAL.pdf
 Forestry Society of Kenya. “Forestry Professionals Comments on the Draft National Forest Policy 2020.” Section 2.12 on Indigenous and Local communities in the Draft National Forest Policy. July 2020. http://fsk.or.ke/2020/07/forestry-professionals-comments-on-the-draft-national-forest-policy-2020/
 Republic of Kenya, Ministry of Environment and Forestry. “Draft National Forest Policy, 2020.” 19 May 2020, Section 2,12.1. http://www.environment.go.ke/wp-content/uploads/2020/06/Draft-Forest-Policy-19May-2020-.pdf
 Community Land Action Now (CLAN). “Draft CLAN submission on Forest Policy to the Committee Ministry of Environment and Forestry.” July 2020. Unpublished report.