The Indigenous World 2023: 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.
The cost of drought
The number of people identified as in need of humanitarian assistance in July 2022 was estimated at 3.5 million, a reflection of the worsening food insecurity driven mainly by poor rainy seasons over the past four years.[1] More than 77.5 per cent of this population are in the pastoral areas of Turkana, Baringo, Mandera, Garissa, Marsabit and Samburu counties. Livestock mortality in Marsabit county, for example, was recorded at 8 per cent, and at 10 per cent in Samburu and Mandera counties.[2] The economic costs of drought in the year 2022 are estimated at Kenya Shilling (KES) 10.7 billion (approx. 79 million euro), largely caused by poor planning and the reactionary responses of the responsible authorities. Multi-layered challenges posed by drought have blatantly enhanced the vulnerability of the Indigenous pastoral population.
One of the challenges identified in the drought response management stems from the centralization and lack of ownership, resources, and technology at the county government level, preventing them from pre-empting or minimizing the magnitude of the loss and damage that often follows the onset of droughts. Moreover, the drought management system is not strongly connected to county-level resource allocations, which leaves drought mitigation actions entirely dependent on centralized national actions.[3] The lack of contingency funds available poses a hindrance to drought management and responses at the county and community level. Similarly, reactionary responses as opposed to strategic plans that could influence future drought preparedness have continually contributed to the crisis that has adversely affected pastoral communities for years, posing a risk to their livelihoods.
The campaign to reject the Forest Conservation and Management (Amendment) Bill 2021
The proposed Forest Conservation and Management (Amendment) Bill 2021 sought to minimize the role of the Kenya Forest Service (KFS), allowing politicians to decide who can change forest boundaries. The proposed amendment opened the door to forest destruction, endangering the Indigenous forests and biodiversity therein. It would have paved the way for forest excisions and a subsequent scramble for forests without the intervention of the KFS.[4] This stirred concerted efforts among environmentalists, conservationists and Indigenous stakeholders all geared towards a campaign to reject the amendment bill through the local media and open letters to the President. This ultimately resulted in the lapse of the amendment bill on 9 June 2022. This outcome was happily received among Indigenous communities as a sigh of relief for Kenya’s forests and a reflection of the deep understanding of the amendment’s implications on forestry sustainability on the part of Kenyan citizens and institutions.
National Assembly’s Adoption of Sessional Paper No. 3 on the National Action Plan on Business and Human Rights
Kenya is the second African country to transpose the United Nations Guiding Principles on Business and Human Rights (UNGPs) nationally through the National Action Plan on Business and Human Rights, published and launched in 2019. This was formally adopted by the National Assembly on 2 November 2022 through Sessional Paper No. 3, which gives effect to its implementation.
The thematic focus areas of the National Action Plan include land and natural resources, labour, revenue transparency, environmental protection and procedural barriers to accessing remedy. The Sessional Paper lists a number of policy commitments, including a requirement to conduct human rights due diligence, develop inclusive procedural guidelines for use by businesses, individuals and communities in their negotiations for land access and acquisition, enforcement of all applicable laws, as well as respect for internationally recognized human rights laws and standards as they relate to land access and acquisition, natural resource management, environment and revenue management.
The adoption of Sessional Paper No. 3 comes at a critical time during which Kenya is heavily entering into agreements that will allow for continued investments on Indigenous Peoples’ lands. Kenya’s investment history and its challenges, coupled with non-compliance with legal processes, can offer important lessons learnt to new and proposed investors, for instance within the areas of renewable energy transition and megaprojects. And the history and lessons learnt can particularly offer Indigenous communities insight to use as leverage when asserting their human rights with respect to investments.
Natural Resources (Benefit-Sharing) Bill 2022
This proposed bill seeks to give effect to Article 69 of the Constitution of Kenya, which imposes on the State an obligation to “Ensure sustainable exploitation, utilisation, management and conservation of the environment and natural resources, and ensure the equitable sharing of the accruing benefits”.
While the bill is expected to establish a clear system and structure of benefit-sharing between exploiters, national government, county government and local communities, the question of what amounts to “equitable” is brought into a greater focus. The system of benefit-sharing proposed by the bill allocates only a paltry 12.8% of benefits from natural resources for community projects and disproportionately allocates 68% to the national government. The bill further proposes the allocation of 19.2% of the money to projects within the wider county. The disproportionate allocation of funds fails to take into account the fact that Indigenous and local communities incur the greater costs of resource exploitation.
Similarly, the definition of natural resources accorded in the proposed bill fails to include resources given in the definition under Article 259 of the Constitution of Kenya, which includes renewable energy resources, minerals, and fossil fuels. Instead, the bill defines natural resources as sunlight, water resources, forest biodiversity and genetic resources, wildlife resources, industrial fishing and wind. If passed in its current state, the bill would exclude Indigenous communities whose geothermal energy, oil minerals and other natural resources are being exploited.
Kenya at COP 27
The current Kenyan government has inherited the plans laid-out under Vision 2030 by which the objective to transform Kenya into an industrializing state is vitally dependent on clean energy. Reaffirming this commitment during COP 27, the President signed a framework agreement with an investor to collaborate on the development of sustainable green industries in Kenya in order to produce 30 Gigawatt of green hydrogen in Kenya.[5] The production of green hydrogen is set to leverage on excess geothermal power,[6] and it remains apparent that most geothermal resources are located on Indigenous Peoples’ lands. The investment company is set to establish a hydrogen and ammonia plant in Nakuru County, near an already contested area that hosts Kenya’s largest geothermal power station, Olkaria IV. Controversies related to Olkaria include the displacement of over 1,200 Maasai community residents, threats and intimidation of human rights defenders, inadequate compensation and an entire disruption of livelihoods. The establishment of the proposed ammonia plant presents a new layer of challenges for Indigenous Peoples in the area, who are already faced with multi-dimensional challenges caused by the geothermal exploration.
Existing and ongoing renewable energy investments have brought severe challenges to the Indigenous communities whose lands host renewable energy resources. The investment methods, from acquisition of lands to compensation of affected communities, have been marred by multiple injustices. The framework signed during COP 27 aims to establish a wind farm and an ammonia plant in a predominantly Indigenous landscape, and if previous renewable investments are anything to go by, the question of a just energy transition brings multiple energy injustices into sharp focus.[7]
The Lake Turkana Wind Power case
On 19 October 2021, the High Court of Meru delivered a judgement in the Lake Turkana Wind Power case, noting that the setting aside of the parcels of land known as LR 28031/1 measuring approximately 40,000 acres and LR 28031/2 measuring approximately 110,000 acres, both situated in Loiyangalani, South Horr (Marsabit County) was irregular, unlawful and unconstitutional; and that the titles issued to Lake Turkana Wind Power were irregular and unlawful, the Court thereby declaring that they should be cancelled. The Court further gave Marsabit County Government, the Attorney General, the Chief Land Registrar and the National Land Commission one year to strictly comply with the existing law on the setting aside process, failing which the titles would stand cancelled and the suit land would revert to the community.[8]
The defendant in this case filed a review five months after the judgement was delivered noting that no tangible actions had been taken in compliance with the existing laws on setting aside the suit land. The review is currently ongoing, and the timeline for compliance as mandated by the Court has now been extended for six (6) months and until the review ruling is delivered.
Although the review asserts to introduce “new” evidence to the Court, it is apparent that the defendant does not dispute the fact that the process of setting the suit properties aside was irregular and therefore, despite the review application, the irregularity in the process of the suit land acquisition is not in doubt.
The Ogiek reparation ruling
The historic reparation ruling of 23 June 2022 by the African Court on Human and Peoples’ Rights in the Ogiek’s case[9] reaffirmed and upheld the rights of the Indigenous Ogiek people to their ancestral land, following the landmark ruling delivered in May 2017.[10] The Court ordered the Government of Kenya to pay compensation of KES 57,850,000 (approx. 429,000 euro) for material prejudice for loss of property and natural resources, and KES 100,000,000 (approx. 741,000 euro) for moral prejudice suffered by the Ogiek due to violations of the right to non-discrimination, religion, culture and development.[11] The Court further ordered non-monetary reparations, including the restitution of Ogiek ancestral lands and full recognition of the Ogiek as Indigenous Peoples. Specifically, the Court mandated the Kenyan government to undertake delimitation, demarcation, and titling in order to protect Ogiek rights to property revolving around their occupation, use and enjoyment of the Mau Forest and its resources.
The two judgements establish a fundamental precedent for Indigenous Peoples in Kenya and across Africa in their struggle for recognition, and they are highly significant for all those Indigenous Peoples on the continent who have been battling historical injustices such as forcible evictions from ancestral lands. The reparation judgement solidifies the 2017 ruling bringing to closer attention government-led conservation actions and practices that have continuously harmed Indigenous Peoples across Africa.
East African Indigenous Peoples’ Land Summit
The East African (EA) Indigenous Peoples’ (IP) Land Summit 2022 was held from 21-25 November 2022 in Nanyuki, Laikipia County in Kenya. This Summit was co-convened by the Indigenous Movement for Peace Advancement and Conflict Transformation (IMPACT) Kenya and the Pastoralists Alliance for Resilience and Adaptation in Northern Rangelands (PARAN). It brought together over 350 representatives of Indigenous Peoples, representing Indigenous Peoples’ organizations and networks in East Africa from Kenya, Uganda, Rwanda, Tanzania, Burundi, DRC and Ethiopia, including pastoralists, wetland and forest dwellers, hunters and gatherers, women, youth and Persons with Disability (PWD); officials from the Kenya National Land Commission (NLC), Ministry of Lands, Public Works, Housing, and Urban Development (MLPPUD), county governments (Laikipia, Samburu, Isiolo, Turkana, Mandera, Marsabit), the East Africa Legislative Assembly (EALA), African Union Inter-African Bureau for Animal Resources (AU-IBAR), civil society organizations (CSOs) and other development actors in collaboration with other partners. The Summit was held under the theme of: “Amplifying Collective Voices of Indigenous Peoples through Inclusive Dialogues and Learning to Enhance Land Rights for Livelihoods and Conservation in East Africa”.[12]
One of the extensively debated themes was conservation, with a primary focus on Indigenous Peoples’ conservation models. Anchoring the discussion on the value and importance of secure land rights and traditional conservation, it was noted that secure land rights are a major challenge when it comes to traditional conservation models. Similarly, climate change impacts pose a challenge to conservation, as evidenced by increased human-wildlife conflicts as a result of diminishing resources. Representatives from across East Africa noted that, despite Indigenous Peoples being the custodians of their land, wildlife and natural environment, some Indigenous Peoples are living as squatters far removed from their ancestral land, having lost thousands of hectares of their ancestral land to fortress conservation.
The following challenges were also identified during the Summit:
- Indigenous Peoples continue to struggle to secure legal recognition of their land, territories, waters and their legal and cultural identity, and other human rights with cases of historical injustices still pending in various national and regional courts.
- The increased cases and threats of forced eviction and displacement of Indigenous Peoples from their ancestral lands, loss of life, land and livelihoods, and subsequent criminalization of community livelihoods over contested landscapes and waters.
- Slow processes and lack of commitment by national and sub-national governments in facilitating documentation and registration of Indigenous Peoples’ land, and in resolving land disputes.
- Failure by governments and private investors to embrace and enforce the implementation of the principle of Free, Prior and Informed Consent (FPIC) when acquiring Indigenous Peoples’ land, disregarding their rights to decision-making, negotiation for benefit-sharing, fair valuation, and compensation in a timely manner.
- The attempt by some governments and private investors to pilot test a new “land investment model” that seeks to equate and replace fair and meaningful compensation of Indigenous Peoples’ land with Corporate Social Responsibility (CSR).
- Increased land degradation and impacts of climate-induced hazards disproportionately affect Indigenous Peoples, men, women, boys and girls, and persons with disability; They reduce land productivity, increase poverty and hunger and weaken resilience and adaptation capacities; and Indigenous Peoples have at times had to the bear the burden of climate mitigation actions and efforts implemented by governments, such as evictions from our land and territories to pave way for Green Energy Projects (solar, wind, and hydropower projects) implemented without FPIC.
- Inadequate, and or a lack of national and sub-national/county-level coordination mechanisms, policies and strategies for livestock production, marketing and value addition continues to put Indigenous Peoples’ pastoralist communities’ livelihoods at risk of major losses due to climate hazards such as drought.
- The lack of data disaggregated by gender on Indigenous Peoples’ social and economic aspects, which is needed to inform their needs and potential, hinders development and implementation of gender responsive policies on pastoralism, livelihoods, and conservation.[13]
Mali Ole Kaunga is a Laikipiak Maasai and 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 Conflicts Transformation – www.impactkenya.org) and Convenor of PARAN (Pastoralists Alliance for Resilience and Adaptation 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..
This article is part of the 37th 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 2023 in full here.
Notes and references
[1] Republic of Kenya. The 2022 Long Rains Season Assessment Report. Kenya Food Security Steering Group (KFSSG). July 2022, https://reliefweb.int/report/kenya/kenya-2022-long-rains-season-assessment-report-august-2022
[2] Ibid.
[3] Roba, G.M. “Drought in Kenya: Time to shift from crisis to risk management.” The Elephant, 18 March 2022, https://www.theelephant.info/op-eds/2022/03/18/drought-in-kenya-time-to-shift-from-crisis-to-risk-management/
[4] Chen, Kang-Chun. “Indigenous communities uncertain over proposed change to Kenyan Forest law.” Mongabay, 21 February 2022, https://news.mongabay.com/2022/02/indigenous-communities-uncertain-over-proposed-change-to-kenyan-forest-law/
[5] Republic of Kenya. Remarks by His Excellency Hon. William Samoei Ruto, PhD., C.G.H., President of The Republic of Kenya and Commander-In-Chief of the Defence Forces, on Behalf of The African Group and Kenya at the 27th Conference of Parties (COP 27) to the United Nations Framework Convention on Climate Change (UNFCCC). Egypt, 7 November 2022, https://unfccc.int/sites/default/files/resource/KENYA_cop27cmp17cma4_HLS_ENG.pdf
[6] O´Farell, Seth. “Kenya's FFI Green Hydrogen deal: 'Other countries will follow suit'.” FDi Intelligence, 14 November 2022, https://www.fdiintelligence.com/content/interview/kenyas-ffi-green-hydrogen-deal-other-countries-will-follow-suit-81645
[7] Kanyinke, Sena. Renewable Energy Projects and the Rights of Marginalized/Indigenous Communities in Kenya. 2015.
[8] Case Judgement. Republic of Kenya in the Environment and Land Court at Meru. ELC Case No.163 of 2014, https://www.cases.sheriahub.com/the_case/S3huSWFobVMvTlluSlJTTnZVeE1SdFNwSnFHeHpnPT0/
[9] African Commission on Human and Peoples' Rights v The Republic of Kenya. 2022.
[10] African Commission on Human and Peoples' Rights v The Republic of Kenya. 26 May 2017.
[11] African Commission on Human and Peoples' Rights v The Republic of Kenya. 2022.
[12] East Africa Indigenous Peoples´ Land Summit 2022 Final Declaration. 2022.
[13] Ibid.
Tags: Global governance
