The Indigenous World 2022: Kenya

Written on 01 April 2022. Posted in 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 marginalised 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 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) but not the UN Declaration on the Rights of Indigenous Peoples (UNDRIP) or ILO Convention 169.

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.

This article is part of the 36th edition of The Indigenous World, a yearly overview produced by IWGIA that serves to document and report on the developments Indigenous Peoples have experienced. The photo above is of Indigenous Women standing up and taking the lead in the land rights struggle of their community in Jharkhand, India. This photo was taken by Signe Leth, and is the cover of the Indigenous World 2022 where the article is featured. Find The Indigenous World 2022 in full here

Community land protection

With the promulgation of the Community Land Act (CLA) of 2016, Indigenous communities gained momentum by making use of this current land tenure framework to self-organise in order to secure and own their community land. 2021 was thus a year that Indigenous Peoples and minorities in Kenya can celebrate for having 10 communities transitioning their lands into community lands as per the Community Land Act and obtaining their land titles.^[1] The hallmark for this was the Memorandum of Understanding (MoU) between the Indigenous organisation, Indigenous Movement for Peace Advancement and Conflict Transformation (IMPACT), and the National Land Commission, which culminated in the National Land Summit that was held from 24-26 November 2021 bringing together community delegates from 24 counties (with over 200 participants), county government representatives, County Executive Committee Members (CECM), County Community Land Registrars, the national government (Ministry of Lands and Physical Planning, Ministry of Interior and Coordination of National Government), the National Land Commission, Civil Society Organisations (CSOs) and other stakeholders interested in matters of securing community land.

Legal empowerment has played a crucial role in scaling up the implementation of the Community Land Act. Community paralegals have worked with communities to meet all the requirements of the Act, such as mapping the land, creating boundary agreements, and establishing rules for land governance.^[2] They have also supported communities to submit their registration applications to the national government, one of the final steps in registering the land. Indigenous women have been involved in the process and in the development of the land by-laws. They are members of the Community Land Management Committees and they also participate in the community assemblies, updating the community land registers.

Formation of the Community Land Owners Association of Kenya (CLOAK)

The Community Land Owners Association of Kenya (CLOAK) was founded and established in September 2021 by communities in Laikipia that have already acquired land titles. It is a non-political and non-profit national legal umbrella entity representing all community landowners in Kenya. Its registration document has been submitted to the registrar of societies within the Office of the Attorney General (AG) of Kenya. CLOAK has a well-defined management structure through which to undertake its mandate as defined in its by-laws and strategy development document. The association's overall goal is to amplify, strengthen and consolidate the voices and rights of community land owners in the management of their natural resources. The formation of CLOAK will underpin and strengthen the collective land and natural resource rights of Indigenous Peoples and minorities against current and emerging threats from both the government and private investment projects that are proposed on the lands and territories of Indigenous Peoples and minorities.

Elders make historic declaration to end Female Genital Mutilation in Kenya

The Act on Protection Against Female Genital Mutilation (FGM) was enacted in 2011 and revised in 2012. The Act did not get the buy-in and political goodwill of the elite from communities that predominantly perpetuate the practice, however. Records from World Vision suggest an estimated 94% and 95% prevalence of the practice respectively among the Pokot and Samburu^[3] with the Somali communities at 98%. FGM is also practised among Maa speakers other than the Samburu, although this is happening and practised in secret. It is only when the victim dies through heavy bleeding that a case is identified. The presidential decree on the enforcement of the FGM Act and the elders’ declaration, when the representatives of the Anti-FGM board went to six hills in Samburu and Marsabit to create awareness of the negative impacts of the practice, led to the Kisima Declaration, which was witnessed in March 2021 by the President of Kenya.^[4] Through this declaration, the elders gave a nod to the Act and shared ownership of the process of advocating for the eradication of FGM as a practice.

It was unfortunate that prior to the elders’ resolve, 79 Kenya Certificate of Primary Education girls from Samburu were unable to sit for the 2021 examination due to the cultural prevalence of FGM. Criminalising FGMs practices – for instance by arresting or threatening elders and governments chiefs – has not been effective. The practice is undertaken undercover (at night) by some communities, making it even more dangerous.

Free, Prior and Informed Consent campaigns

Free, Prior and Informed Consent (FPIC) is a specific right that pertains to Indigenous Peoples and is recognised in the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP). It enables them to give or withhold consent to a project that may affect them or their territories. Once they have given their consent, they can withdraw it at any stage.^[5] Furthermore, FPIC enables them to negotiate the conditions under which the project will be designed, implemented, monitored and evaluated. This is also embedded within the universal right to self-determination.

Indigenous Peoples and minorities in Kenya have taken strides in advocating for the recognition of FPIC at all spheres of development in 2021. IMPACT and the PARAN Alliance, which is made up of a mix of Indigenous Peoples and minorities (pastoralists, hunter-gatherers, fisher-folks, forest communities and agro-pastoralists) developed an FPIC tool kit via a participatory process in 2021that can be used by the communities in negotiations with government, investments, and the private sector – and even internally to enter into agreements. The FPIC tool is yet to be finalised and piloted, and this will be done by engaging communities that are involved in serious issues around lack of FPIC. Communities at the Lake Turkana Wind Power project in Marsabit county and Kipeto and Ingwesi Conservancies in Nakuru and Laikipia counties respectively will therefore be a starting point in 2022.

National County Climate Change Act

The Climate Change Act of 2016^[6] paved the way for the counties to develop their county climate change legislation. The Laikipia County Climate Change Bill of 2021 was developed to create a mechanism that would improve, sustain and finance climate change activities, programmes and projects in the county by mainstreaming climate change in different sectors, coordinating the collection and public dissemination of climate change information to create awareness and preparedness, and facilitating community-initiated climate change adaptation and mitigation projects and activities. The Act is giving the county a mandate to create a climate change fund to help communities directly implement climate-related projects and activities in a bid to create a just society. Other counties that have enacted such an Act include Isiolo, where 2% of the county budget is set aside for climate change actions. The fund will also open up an avenue for civil society organisations to work together with the government to facilitate and implement some projects within their working areas.

In line with the National Climate Change Strategy, and through the directive of the president, the national government allocated two billion Kenya Shillings to supporting pastoralists in 2021, cushioning them against the drought that has claimed their productive assets. Water became scarce, and natural resource-based conflicts intensified among the Indigenous pastoralist peoples during 2021, with loss of life and increased tension. The damage to and loss of the assets of the Indigenous Peoples has left many households poorer than before. In responding to their plight, the government provided the pastoralists with hay, supplementary pellets and multi-vitamins for the pastoralists’ livestock.

Post COVID-19 economic recovery strategy and vaccination 2020- 2022

The roll-out of the 2020-2022 Government of Kenya COVID-19 recovery strategy paved the way for a relaxation of some of the taxes on business and a grace period on loans and interest as a result of the closure of some enterprises. In addition, it established a fund for entrepreneurs and businesses so that they could build back. This did not apply to pastoralists and minorities, however, who have no collateral with which to access funding from the financing institutions.

Women bore the brunt of the pandemic as they moved to urban centres to work as domestic servants in an environment they are not familiar with, and where they are mistreated and paid very low salaries. Some of the women opted to engage in commercial sex, which is not acceptable to Indigenous Peoples and minorities and their traditional practices. They had to do this for lack of alternatives, however, exposing themselves to exploitation and the risk of contracting a sexually transmitted infection (STI).

The government’s country-wide mandatory COVID-19 vaccination programme has started and all county governments have their own strategy. There has been some opposition to the mass vaccination. The Ministry of Health issued a statement that government services would not be accessible without a vaccination certificate. The Catholic Church and some CSOs consider this to be an infringement of the Bill of Rights, and one that will deny millions access to essential services. Human Rights Watch filed a case before a Kenyan High Court judge and the court has suspended this decision.^[7] Accessing the vaccines is a challenge for communities living in remote areas far from the government and private hospitals, where the COVID-19 vaccine will be administered.

One of the biggest impacts of COVID-19 globally was the loss of decent income and livelihoods disruption. According to a study undertaken by UN Women, more than half of the women surveyed indicated that they had experienced physical and verbal abuse since the onset of COVID-19. Teenagers who could not continue in school ended up engaging in commercial and illicit sex, one of the worst forms of child labour, and drug and substance abuse, exposing themselves to harassment from their clients or employers. Gender-based violence at home became rife, as did forced early marriages, teenage pregnancies and high drop-outs rates in school.

Competency-based curriculum education system

While good on paper, the new school CompetencyBased Curriculum (CBC) system of education that was introduced by the Ministry of Education, Science and Technology to replace or phase out the Kenyan 8-4-4 system began its implementation on the wrong footing. The authoritative nature of the Ministry of Education, Science and Technology’s approach under the education Cabinet Secretary met with resistance from parents and the private sector. The education sector has already been negatively impacted by COVID-19 and the transition is proving very expensive for parents. There was no time to undertake in-depth consultations to enable stakeholders to look at the requirements needed to facilitate a smooth transition. The new Competency Based Curriculum was based on a blanket consideration that all children come from equal backgrounds in terms of socio-economic, technological and infrastructural development. The roll-out of digital learning, which was planned before the COVID-19 pandemic erupted and which included providing each child with a tablet, was not achieved.^[8] With COVID-19, the situation became even worse for Indigenous Peoples’ and minorities’ areas, whose infrastructure is not well-suited to digital learning because they live in poor and remote areas without connectivity to Internet or electricity.

The cost of ignoring human rights and Indigenous Peoples

In an historic judgement by the Kenyan Environment and Land Court in Meru, the title deeds of the land on which the Lake Turkana Wind Power project (LTWP) sits have been declared “irregular and unlawful”. The case, which began in October 2014 and finally ended on 19 October 2021, found that the title deeds were acquired irregularly.

Indigenous Peoples in the area have long complained that this project, among other issues, never followed proper free, prior and informed consent (FPIC) protocols or proper compensation when the land leases (99 years) were acquired and that this violated current and former land acts.

On 19 October 2021, after seven years of waiting, a three-judge bench (Hon PM, Njoroge (presiding Judge), J. G. Kemei (Judge) and Y. M. Angima (Judge)) made the judgement that the land awarded to the LTWP project (amounting to 150,000 acres) was acquired in an irregular, illegal and unconstitutional manner and that the title deeds should be cancelled. Nevertheless, the Court gave the Marsabit County Government, the Chief Land Registrar, the Attorney General and the National Land Commission one year to comply with existing laws in setting apart the land on which LTWP has been established.

Mali Ole Kaunga is a Laikipiak Maasai and is an Indigenous Peoples’ expert with a key interest in land rights, the impact of investments/business on Indigenous Peoples, and collective action/movement building and capacity building around natural resources. He is the founder and Director of IMPACT (Indigenous Movement for Peace Advancement and Conflict Transformation – www.impactkenya.org) and Convenor of PARAN Allliance (Pastoralists Alliance for Resilience in Northern Rangelands). He is Senior adviser to the research team for Shared Lands. Contact: This email address is being protected from spambots. You need JavaScript enabled to view it..

David N. Silakan, Coordinator of the PARAN Alliance, and IMPACT team members contributed to parts of this article.

This article is part of the 36th edition of The Indigenous World, a yearly overview produced by IWGIA that serves to document and report on the developments Indigenous Peoples have experienced. The photo above is of Indigenous Women standing up and taking the lead in the land rights struggle of their community in Jharkhand, India. This photo was taken by Signe Leth, and is the cover of the Indigenous World 2022 where the article is featured. Find The Indigenous World 2022 in full here 

Notes and references

^[1] IMPACT Annual Report 2021, p.6. Unpublished.

^[2] Climate Justice Resilience Fund. “Indigenous communities raise their voices to secure land rights in northern Kenya.” Climate Home News, October 18, 2021.

https://www.climatechangenews.com/2021/10/18/indigenous-communities-raise-voices-secure-land-rights-northern-kenya/

^[3] Ooko, Sarah. “Elders make historic declaration to end FGM and child marriage in Kenya.” World Vision, April 9, 2021. https://www.wvi.org/stories/kenya/elders-make-historic-declaration-end-fgm-and-child-marriage-kenya

^[4] State House Kenya. “President Uhuru Kenyatta  presides over the unveiling of a landmark declaration by Samburu elders to end Female Genital Mutilation (FGM) and child marriages among the community at Kisima Grounds in Samburu County.” Twitter, March 5, 2021. https://twitter.com/statehousekenya/status/1367820335328923649

^[5] Food and Agriculture Organization of the United Nations (FAO). “Indigenous Peoples. Free, Prior, and Informed Consent.” https://www.fao.org/indigenous-peoples/our-pillars/fpic/en/

^[6] Republic of Kenya. Ministry of Environment & Forestry. “Special Issue. Kenya Gazette Supplement No. 68 (Acts No. 11). Republic of Kenya. Kenya Gazette Supplement. Acts, 2016. Nairobi, NAIROBI, 22nd March, 2016.”

http://www.environment.go.ke/wp-content/uploads/2018/08/The_Kenya_Climate_Change_Act_2016.pdf

^[7] Yusuf, Mohammed. “Kenyan Court Suspends Directive Barring Unvaccinated from Government Services.” Voice of America (VOA), December 14, 2021. https://www.voanews.com/a/kenyan-court-suspends-directive-barring-unvaccinated-from-government-services/6354409.html

^[8] Kenya News Agency. Digital literacy programme on course. Accessed 2 February, 2022.