The Indigenous World 2024: 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 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.[1]
Kenya’s prevailing economic situation is in an intractable crisis. It is a profound indictment of the status quo that a disproportionate number of Indigenous communities continue to bear the burden of crisis after crisis evidenced through impacts of climate change, insecurity and apparent food insecurity.
Despite some shifts in rhetoric, however, climate financing projects targeted at most Indigenous Peoples’ landscapes are seemingly failing to bridge the inequality gap and are, in most cases, coordinated by elites.
On the other hand, despite concerted efforts to secure the collective land rights of communities, disruptive actions such as the Ogiek community eviction are a glaring reminder that we are far from securing human rights and, particularly, tenure rights for most Indigenous communities in Kenya.
This article is part of the 38th 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 an Indigenous man harvesting quinoa in Sunimarka, Peru. This photo was taken by Pablo Lasansky, and is the cover of The Indigenous World 2024 where this article is featured. Find The Indigenous World 2024 in full here
Climate change
The climatic context for most of Kenya’s Indigenous Peoples could be summed up in the few words “from drought to devastating floods” in 2023.[2] It seemed as if the long-awaited rains brought with them disaster in equal measure since they not only claimed lives, livestock and destroyed homes but also put the health of communities at risk, compounding the existing challenges already being faced by vulnerable communities.
Affecting 38 counties in Kenya, the floods rendered over 500,000 people homeless, killing thousands of livestock. Although the arrival of the rains eased the drought, it also significantly heightened the risk of communicable diseases and further threatened livelihoods, primarily those of Indigenous communities. The above-average rainfall, particularly in November, resulted in destructive flooding in Mandera, Wajir, Garissa, Turkana, Tana River, Isiolo, and Samburu, where rivers burst their banks. All together, some 640,000 hectares of lands were flooded in northern Kenya.[3]
Despite the impact of the floods, however, the rains also supported improvements in livestock production and households’ access to milk. The increased access to milk for sale and consumption, and significantly above-average livestock prices, helped maintain household purchasing power against the high price of staple foods in the current battered economy.[4]
Africa Climate Summit
The inaugural Africa Climate Summit, held from 4-6 September and hosted by the Kenyan government, was held alongside Africa’s Climate week. The summit was a moment for Africa’s states to define a collective Africa Climate Action Plan.
The focus of the summit, however, was seemingly more concerned with market solutions to mitigating the climate crisis, specifically the sale of carbon credits, rather than addressing the humanitarian crises resulting from climate-induced factors such as floods and droughts – especially at a time when Kenya was in its seventh consecutive year of drought.
Another topic that failed to gain prominence in the climate change discussions was that of land rights and tenure rights, and how all the planned climate action will impact these rights in Africa. While many expected that the Africa Summit would make this a priority, it did not feature as prominently as some had hoped. Global climate action aimed at addressing the causes and effects of climate change includes a majority of actions to be undertaken on the land and, consequently, on the land of Indigenous and other communities living in these areas, which should be given ultimate priority, and their tenure rights considered.
It is clear that Kenya’s priorities in the climate discourse are primarily that of mirroring a Western agenda revolving around carbon sinks, carbon sequestration and climate-positive approaches. The summit achieved nothing for the environment except that we learned that Kenya remains a classic client-state for Western projects, making efforts to enable the expansion of international imperialism.
Further, Kenya’s attendance at COP28 in Dubai was against the backdrop of this summit. While continually rehashing the same benign concept, the onset of COP 28 revealed a new problematic carbon trading deal between a UAE-based company, Blue Carbon, and Kenya, Tanzania, Liberia, Zambia and Zimbabwe, covering a land area the size of the United Kingdom. The deal in Kenya was reported to target hundreds of hectares of forests, putting thousands of Indigenous people at risk.[5]
State of human rights
Ogiek evictions from the Mau Forest
In May 2017, the African Court on Human and Peoples’ Rights delivered a judgement in the case of the African Commission on Human and Peoples’ Rights v Republic of Kenya.[6] The Court found that the Kenyan government had violated the Ogiek Indigenous community’s rights as enshrined in the African Charter and ordered the government to take appropriate measures within a reasonable timeframe to remedy all violations established by the Court.
In 2022, the Court further reaffirmed its findings in the 2017 ruling, outlining remedies for the Ogiek community and mandating the Kenyan government to take all necessary measures, in consultation with the community and its representatives, to identify, delimit and grant collective land title to the community and, by law, assure them of unhindered use and enjoyment of their land.[7]
However, things took a drastic turn, beginning on 2 November, when joint efforts between the Kenya Wildlife Service and Kenya Forest Service began the forcible eviction of over 700 Ogiek residents from their homesteads following the mass destruction of homes in Sasimwani, Mau Complex. These evictions came with no reparation and no plans for relocation or restitution. The glaring human rights violations levelled against the Ogiek community and the blatant disregard for the Court orders is symbolic of a high level of impunity in the Kenyan governance system and is in breach of the State’s obligation to observe, respect, protect, promote and fulfil the rights and fundamental freedoms in the Bill of Rights.[8] The government’s reluctance to implement the African Court’s two decisions recognizing the Ogiek’s rights to their land, the issuance of legitimate titles and effective payment of the outlined remedies places the residents of various parts of the Mau Forest Complex in a precarious situation of insecure tenure.
Following these evictions, an order for injunction was issued on 15 November by the Kenya Environment and Land Court awaiting a ruling on the Ogiek’s land rights.
New laws
Land Law (Amendment) Bill, 2023
Proposed amendments under the Land Law (Amendment) Bill, 2023[9] include shifting the authority for compulsory acquisition from the National Lands Commission to the Ministry of Lands through the Cabinet Secretary. The concept of a separate entity – the National Lands Commission – to manage public land as envisaged by Article 62 of the Constitution reaffirms a recommendation at a time when land reform was a necessity owing to the concerns over social, economic and political mischief associated with Kenyan land history, a vital factor in the dynamics of land reform. This explained the desire to establish a public entity with a land-resource mandate, independent of the central government.[10] However, a proposal to blur the foundational principle of the separation of powers threatens the independent procedures and guidelines involved during the compulsory acquisition of lands for a public purpose.
Aligned with Kenya’s development agenda, it is apparent that most mega projects with an underlying need to employ the principle of compulsory acquisition are located on Indigenous Peoples’ lands. This places Indigenous communities in a precarious situation whereby competing interests, of the communities and of central government, intersect; a factor that is likely to mirror historical contexts when autocracy used to undermine communities’ rights.
As the bill is passing through the various stages of the Parliamentary process, at present the Committee Stage, this remains a piece of legislation with vital implications for Indigenous communities in Kenya.
The Climate Change Amendment Act, 2023 and The Climate Change (Carbon Markets) Regulations, 2023
To align with carbon regulation standards, the government has also stepped up efforts to establish a legal framework to guide carbon trading. Since March 2023, the government has been developing legislation to regulate carbon offset projects.
The Climate Change (Carbon Markets) Regulations[11] proposed were made pursuant to the Climate Change Amendment Act, 2023,[12] which aims to provide a regulatory framework for an enhanced response to climate change, as well as mechanisms and measures to achieve low carbon development. The Act incorporates carbon markets and makes provisions for participation in carbon markets in order to enhance climate change resilience and determine benefit-sharing mechanisms of greater significance to many communities dwelling on community lands in Kenya, including Indigenous communities.
The Act, however, fails to put land rights, or land ownership, at the centre of these projects, and consequently fails to provide safeguards for Indigenous and local communities who rely on these lands for their livelihood and food security.[13]
Some of the notable provisions in the Regulations include frequent reference to certain terms such as “project idea”, “carbon credit period” and “community project” without clear definitions, something that is also absent from the language within the Act. Lack of clarity over the meanings of these terms could lead to investors in carbon markets being delayed by technicalities when making the required applications for approval when they wish to undertake carbon projects. For example, “a project idea”[14] has to be approved before drafting a “project concept note” but the characteristics of a project idea are not outlined.
Similarly, the framing of the Act suggest that communities are beneficiaries only.[15] However, acknowledging that many of the carbon offset projects are land-based, communities are not simply “impacted communities”[16] but rather key shareholders in the project. Use of the term “impacted communities” in both the Act and Regulations assumes that communities are only impacted by the project and play no role in contributing to a reduction in carbon emissions and increasing absorption.
The grasslands carbon project is an example of a carbon offset project in which communities are central to the methodology and are the backbone of reduced Green House Gas (GHG) emissions. Specific ways of engaging communities living in areas where major carbon sinks are situated, in particular the northern and southern rangelands and coastal regions, are lacking. The language used in the Community Development Agreements (CDAs) needs to be simple and not too technical for local communities. Further, the government needs to dedicate adequate funds for community sensitization regarding carbon markets in order to fulfil its public education mandate.
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), Convenor of PARAN (Pastoralists Alliance for Resilience and Adaptation in Northern Rangelands), and Senior Adviser to the research team for Shared Lands (https://shared-lands.com). He is also the Co-convenor of the Pan African Alliance for Indigenous Peoples and Local Communities (https://aica-africa.org).
Purity N. Gakuo, IMPACT’s Manager for Responsible Investment, Business and Human Rights, has contributed to this article. Purity is an Advocate of the High Court of Kenya. She coordinates legal and policy work across different workstreams in IMPACT.
This article is part of the 38th 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 an Indigenous man harvesting quinoa in Sunimarka, Peru. This photo was taken by Pablo Lasansky, and is the cover of The Indigenous World 2024 where this article is featured. Find The Indigenous World 2024 in full here
Notes and references
[1] Nyanjom, Othieno “Re-marginalising the pastoralists of Kenya’s Asals.” African Study Monographs No 50, pp. 43-72, October 2014. https://www.researchgate.net/publication/280572964_Remarginalising_the_Pastoralists_of_Kenya%27s_ASALs_the_hidden_curse_of_national_growth_and_development
[2] “Photos: From drought to deluge – Kenyan villagers reel from floods”. Al Jazeera, 23 November 2023. https://www.aljazeera.com/gallery/2023/11/23/from-drought-to-deluge-kenyan-villagers-reel-from-floods
[3] ”El Niño enhanced rains support recovery despite flooding and high food prices“. Fews Net, December 2023. https://fews.net/east-africa/kenya/food-security-outlook-update/december-2023
[4] Ibid
[5] Kazungu, Washe. “Africa’s lands are targeted for climate action, but who owns the land?“ The Elephant - African analysis, opinion and investigation, 8 September 2023. https://www.theelephant.info/opinion/2023/09/08/africas-lands-are-targeted-for-climate-action-but-who-owns-the-land/
[6] African Commission on Human and Peoples’ Rights v The Republic of Kenya, 26 May 2017.
[7] Langat, Anthony. “Violent evictions are latest ordeal for Kenya’s Ogiek seeking land rights.” Mongabay Environmental News, 20 December 2023. https://news.mongabay.com/2023/12/violent-evictions-are-latest-ordeal-for-kenyas-ogiek-seeking-land-rights/
[8] Article 23 of the Constitution of Kenya
[9] The Land Laws (Amendment) Bill, 2023 – Nairobi. http://www.parliament.go.ke/sites/default/files/2023-11/THE%20LAND%20LAWS%20(AMENDMENT)%20BILL,%202023%20(2)-1.pdf
[10] In the Matter of the National Land Commission [2015] eKLR, Advisory Opinion Reference 2 of 2014.
[11] The Climate Change (Amendment) Bill, 2023. https://www.environment.go.ke/wp-content/uploads/2023/03/26.3.23-CLIMATE-CHANGE-AMENDMENT-BILL-2023.pdf
[12] The Climate Change (Amendment) Act, 2023. http://kenyalaw.org/kl/fileadmin/pdfdownloads/Acts/2023/TheClimateChange_Amendment_Act_No.9of2023.pdf
[13] Kazungu, Washe. ”Africa’s lands are targeted for climate action, but who owns the land?“. The Elephant - African analysis, opinion and investigation, 8 September 2023. https://www.theelephant.info/opinion/2023/09/08/africas-lands-are-targeted-for-climate-action-but-who-owns-the-land/
[14] Sections 12, 27, 28 of The Climate Change (Amendment) Bill, 2023. https://www.environment.go.ke/wp-content/uploads/2023/03/26.3.23-CLIMATE-CHANGE-AMENDMENT-BILL-2023.pdf
[15] Section 23E of The Climate Change (Amendment) Act, 2023 http://kenyalaw.org/kl/fileadmin/pdfdownloads/Acts/2023/TheClimateChange_Amendment_Act_No.9of2023.pdf
[16] Ibid
Tags: Land rights, Climate, Human rights
