Update 2011 - Kenya
In Kenya, the peoples who identify with the indigenous movement are mainly pastoralists and hunter-gatherers as well as a number of small farming communities.1 Pastoralists are estimated to comprise 25% of the national population, while the largest individual community of hunter-gatherers numbers approximately 30,000.
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, Yaaku, Waata, El Molo, Boni (Bajuni), Malakote, Wagoshi and Sanya, 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.
There is no specific legislation governing indigenous peoples in Kenya. The Constitution of 2010, however, specifically includes minorities and marginalized communities as a result of various historical processes. The definition of marginalized groups, being broad, encompasses most of the groups that identify as indigenous peoples. Kenya abstained from the vote when the UN Declaration on the Rights of Indigenous Peoples (UNDRIP) was adopted by the UN General Assembly in 2007.
Kenya’s 2010 Constitution provides a rich and complex array of civil and political rights, socio-economic rights and collective rights that are of relevance to indigenous communities.2 While important, constitutional provisions alone are not enough. They require a body of enabling laws, regulations and policies to guide and facilitate their effective implementation. In 2011, Kenya’s parliament enacted 22 laws.3 In the main, these laws are of general application and will have a bearing on the way in which the state exercises power in various sectors, some of them of fundamental importance to indigenous communities.
Laws relating to reform of the judiciary, such as the Supreme Courts Act as well as the Vetting of Judges and Magistrates’ Act, are already transforming the way in which the judiciary is dealing with claims presented to it by local communities. The revamped judiciary is already opening its doors to the poorest and hitherto excluded sectors of Kenyan society. Indicative of this changed attitude on the part of the judiciary - at least at the highest level – is the fact that the deputy president of the Supreme Court met with elders from the Endorois indigenous people in July 2011 and assured them of the possibility of supporting the implementation of the African Commission’s decision in favour of the community.4 More substantively, indigenous groups are already using the revamped judiciary to ventilate their rights. For example, in Ibrahim Sangor Osman et al. v. The Hon. Minister of State for Provincial Administration & Internal Security,5 the High Court in Embu awarded a global sum of KShs. 224,600,000 (US$ 2,670,750), equating to US$ 2,378, to each of the 1,123 evictees from Medina within Garissa town of Northern Kenya as damages following their forced eviction from their ancestral land within the jurisdiction of the Municipal Council of Garissa. All the petitioners were Kenyan Somalis. The court also declared that the petitioners’ fundamental right to life (Article 26), right to inherent human dignity and security of the person (Articles 28 & 29), right to access information (Article 35), economic, social and specific rights (Articles 43 & 53 (1) (b) (c) (d)) and the right to fair administrative action (Article 47) had been violated by virtue of the eviction from the alleged public land and the consequent demolition of property by the Kenya police.
Additionally, the adoption of a law establishing the Environment and Land Court is important for indigenous communities given that the Court will “hear and determine disputes relating to environment and land, including disputes: (a) relating to environmental planning and protection, trade, climate issues, land use planning, title, tenure, boundaries, rates, rents, valuations, mining, minerals and other natural resources; (b) relating to compulsory acquisition of land; (c) relating to land administration and management; (d) relating to public, private and community land and contracts, chooses in action6 or other instruments granting any enforceable interests in land; and (e) any other dispute relating to environment and land.”7 While most indigenous communities are yet to become aware of the existence of this court, it will be an important arena for determining the land rights challenges of indigenous communities such as the Ogiek, which have remained unaddressed for decades.
In the main, though, constitutional implementation has so far failed to take cognizance of indigenous peoples’ core concerns. The Election Act, as well as the Political Parties Act, have failed to clearly articulate mechanisms for the political participation of indigenous peoples in terms of Article 100 of the Constitution. The constituency boundary reviews that started in 2011 indicate a limited commitment on the part of the state to implement important court decisions that have a bearing on indigenous peoples’ representation, such as that of Il-Chamus.8 Conversely, attempts to implement such decisions following limited consultation of indigenous communities have tended to exacerbate conflicts between different indigenous groups. The conflicts that have raged in Marsabit County between the Borana and Gabbra, as well as different inter-clan conflicts in Garissa among different Somali groups in 2011, are indicative of this dynamic.
The failure to institute the powerful National Land Commission (NLC) established in Article 67 of the Constitution in order, inter alia, to resolve land-related historical injustices, constitutes one of the greatest disappointments of indigenous communities in relation to constitutional implementation to date. This failure has mainly been driven by a fear within a section of the landholding elite that the NLC would independently implement the National Land Policy adopted in 2009, the provisions of which are very robust not only in terms of community land tenure arrangements but also in terms of requiring the Commission to review illegally acquired land.
Anticipated reforms aimed at decentralizing governance to 47 counties have also failed to take off, with crucial laws to enable this development remaining locked in intense political debate pitting the various political interests of dominant ethnicities against each other. In the end, such devolution, if not well implemented, is unlikely to yield dividends for indigenous communities. In particular, the adverse consequences of the new decentralized system, caused by an intensification of public resource competition among different communities within the counties, is already disproportionately impacting on indigenous communities, as witnessed by increasingly violent conflicts in Northern Kenya.
The new Revenue Allocation Commission, mandated by Article 204 of the Constitution to earmark 0.5% of annual state revenue to the development of marginalized areas, in addition to 15% of national revenue for direct transfer to county governments, has yet to take a specific interest in the concerns of indigenous communities.
In implementing Article 59 of the Constitution, the government has split the Equality and Human Rights Commission into three: the Human Rights Commission, the Commission on Administrative Justice and the Gender Commission. These bifurcated human rights institutions may serve to either provide increased opportunities for indigenous peoples’ rights activism or to weaken the collaboration hitherto established with the previous Kenya National Commission on Human Rights.
Demands from below were the main feature of 2011, emphasizing the significance of community-led efforts in the struggle for indigenous rights in Kenya.
Attempts by a multinational company, Bedford, to acquire thousands of hectares of land in the Tana Delta, in the Coast Region of Kenya, for growing jatropha and developing the bio-fuel industry, were rebuffed by indigenous communities, including Watta, Galjil, Munyoyaya, Malakote, Mijikenda, Somali, Boni, Bajuni, Wakone and Wasanya. Deploying the provisions of the new constitution on land and human rights, communities worked with the Nairobi-based legal institution Kituo Cha Sheria to obtain conservatory court orders against this bio-fuel project, which would not only impact on the biodiversity of the region but also - more adversely - affect access to grazing grounds and water resources for pastoralists.9 Similarly, years of community resistance to the processing of limestone from Pokot County in the Rift Valley region hundreds of miles away in Tororo, Uganda, bore fruit in 2011.
Cemtech, a subsidiary of the Sanghi Group of India, has been licensed to set up a 12 billion Kenya shillings cement manufacturing plant in Ortum in Pokot. This development will hopefully open up Pokot County to further investment, contributing to improved physical infrastructure and employment for the region. This project has received substantial support from the indigenous Pokot community because they stand to gain from it and were consulted. In contrast, resistance to another mega-development project in the area, the Turkwel Gorge Hydro-electric Project, continued from the Pokot community, who are protesting that, despite losing a substantial portion of their land to this project, they will receive limited benefits in terms of employment or electricity supply to homes in the area while paying a huge price in terms of environmental damage to their land.10
Other more recent large-scale development projects under the Kenyan government’s vision 203011 that will affect indigenous groups, such as Resort cities development in Isiolo (Upper Eastern region) and Lamu (Coast region), have also been designed with little input from the communities, despite the new constitution’s imperative requirement for participatory development.
While the work of the Truth, Justice and Reconciliation Commission (TJRC) limped on, crippled largely by the non-engagement of Nairobi-based civil society organizations, communities in Northern Kenya offered the country a glimpse of this mechanism’s potential usefulness in bringing closure to historically unresolved issues, particularly those affecting indigenous peoples. In particular, the Wagalla Somali community’s grievances and the massacres perpetrated by the state against the Wagalla Somali people in Northern Kenya in the 1980s, which had been kept concealed in the state’s impenetrable armory protected by the Official Secrets Act, were brought to the fore in March 2011. Women victims were finally able to bear witness to the anguish of the rapes and abuses they had endured, for all to see. The participation of the Minister for the Development of Northern Kenya, Hon. Mohammed Elmi, at the TJRC hearings in Wajir, as a victim of the massacre, underscored the importance of the TJRC for national healing. The fact that indigenous peoples’ narrative of the nature and scope of violations of their individual and collective rights will constitute a part of the final report of the TJRC is an important step towards national understanding of - and perhaps empathy towards - the challenges faced by these communities in the 50 years of Kenya’s turbulent post-independence history.
In 2011, the most important action taken at the national level with regard to implementing the Endorois’ decision12 was Parliament’s request for an implementation status report from both the Ministry of Justice and the Ministry of Land. Unfortunately, neither the Minister for Justice nor his counterpart at the Land Ministry offered any substantial response to this request, on the grounds that the Government of Kenya had not been formally presented with the ruling from the African Commission. The evasiveness of the state’s response to its own parliament contrasted sharply with its commitment during the 48th session of the African Commission, as well as in the context of the UN Universal Periodic Review process, where it committed - without reservation - to implementing the decision.13
Despite the disappointing failure of the state to formulate a framework to implement this decision, community mobilization has continued unabated. Three women from the Endorois community submitted a moving petition to the African Commission on Human and Peoples’ Rights during its 50th ordinary session in October in Banjul, The Gambia. Responding to this petition and subsequent advocacy work by IWGIA, Minority Rights Group (MRG), the Endorois Welfare Council and the Center for Minority Rights Development (CEMIRIDE), the Commission adopted an important resolution on the protection of indigenous peoples’ rights in the context of UNESCO’s decision to designate Lake Bogoria a World Heritage site. The Commission specifically found that the “inscription of Lake Bogoria on the World Heritage List without involving the Endorois in the decision-making process and without obtaining their free, prior and informed consent contravenes the African Commission’s Endorois Decision and constitutes a violation of the Endorois’ right to development under Article 22 of the African Charter.”14 It therefore called upon the Government of Kenya, the World Heritage Committee and UNESCO to “ensure the full and effective participation of the Endorois in the decision-making regarding the ‘Kenya Lake System’ World Heritage area, through their own representative institutions.”
Mau Forest and the ogiek
The Mau Forest Task Force, set up in 2009 to restore the most important water tower in Kenya, and home to the Ogiek community, the Mau Forest, was succeeded in 2010 by the Interim Coordinating Secretariat (ICS). The ICS was tasked with implementing the recommendations of the Task Force’s 2009 report. Relevant to the Ogiek, the ICS, constituted an Ogiek Council of Elders and mandated it to initiate a process of registration of the Ogiek to ensure that they do not suffer adversely from the eviction of illegal occupiers of the forest. Unfortunately, the Ogiek census did not proceed as intended and most members of the community remained completely unaware of the Ogiek registration being carried out by the Ogiek Council of Elders/ICS.
The Ogiek litigation before the African Commission that was initiated in 200915 -with support from IWGIA and MRG - also received a boost when the Commission issued provisional measures urging the Kenyan government to desist from any action to remove the Ogiek from their ancestral land pending the determination of the case by the Commission. Such provisional measures continued to provide a tool for advocacy groups within the community to engage with both the ICS and other actors within the Kenyan government as well as with the media.
Suffering on the part of pastoralists in Northern Kenya
The attack on the Turkana pastoralists by Merille militia from Ethiopia, one kilometer from Todonyang police post on the Kenya-Ethiopian border, which left more than 50 people dead, represents a gruesome reality of the insecurity in pastoralist areas of Northern Kenya. While the fighting stems from local conflicts, it also reflects a broader pattern of inter-ethnic conflict resulting from food scarcity, persistent drought, state neglect and the lifestyle alterations that artificially-imposed colonial borders have forced upon nomadic groups. The frequency of such conflicts in turn puts pressure on states, and creates tensions between states, in this case Kenya and Ethiopia. Both the Turkana (who number around 100,000) and the Merille (who number around 50,000) are traditionally nomadic. But while the Turkana remain nomadic pastoralists, the Merille have in recent years become primarily agro-pastoral.
Despite early warnings, the drought that ravaged Northern Kenya early in the year led to predictable results – the loss of thousands of livestock and hundreds of human lives. This drama of the young and the elderly dying was graphically portrayed through the media, ushering in one of the few uniting moments for the country: the Kenyans for Kenya campaign raised over 600,000,000 Kenya shillings (US$ 7,134,680).
Displacement of samburu pastoralists
Although designed to address land inequality by dismantling the hegemonic hold of a few politically influential families over large tracts of land, the new constitution has unwittingly led to hurried dispositions of land in order to defeat the intent of the law. Such are the circumstances under which a new national park has been established by the Kenya Wildlife Services (KWS): the Laikipia National Park situated in Laikipia near Northern Kenya. Created from 17,000 hectares hitherto occupied by over 10,000 members of the Samburu pastoralists for over 30 years, the Park was born following a secretive deal entered into between the title holder, former President Moi, two American wildlife conservation entities - African Wildlife Foundation and Nature Conservancy - and the KWS. This deal received the presidential seal in November 2011when President Kibaki endorsed it - despite having no legal authority to deal in land within the framework of the new constitution.16
While the creation of the park has received positive media reviews, the road towards its creation is littered with numerous human rights violations, including forced evictions, killings, the demolition of housing and numerous gender-based violence actions by state security officers, including documented rape.
Violence towards indigenous rights defenders
The brutal killing of Moses Ole Mpoe, a renowned Maasai land rights campaigner, in April 2011, ostensibly for his opposition to the government’s decision to resettle 912 internally displaced families of the 2007 polls violence on a controversial 2,400-acre piece of land in Mau Narok, exposes the mortal danger faced by defenders of pastoralists’ rights in Kenya. The fact that the government has taken no steps to apprehend those who executed Mpoke raises doubts as to its commitment to a culture of respectful disagreement, particularly in matters of a contentious nature affecting many indigenous groups. This event harks back to another assassination five years ago, that of Elijah Marima Sempeta, a human rights attorney, for publicly challenging a lease extension granted to the Magadi Soda Company by Kajiado County Council.
In general, threats against human rights defenders are on the rise. For instance, in February 2011, Charo wa Yaa, an indigenous rights activist from the Kenyan Coast was arrested by the Mombasa Criminal Investigation Department. He was charged with incitement to violence, having allegedly incited residents of a village in Mishomoroni, Kisauni District in Mombasa County - mostly Digo indigenous community members - not to vacate the “private” property of Trade Plus International. Similarly, armed police officers were dispatched to Olkaria in Naivasha in November 2011 to stop a planned demonstration by pastoralists, led by Andrew Korinko, against the environmental damage to their land occasioned by the geothermal projects in the area.17
The forthcoming elections in 2012 and the political re-alignments associated with it, as well as the activities of the International Criminal Court,18 continued to heighten political tensions in 2011, rendering constitutional implementation a high-stakes game pitting dominant communities - Kikuyu, Luo and Kalenjin -against each other. In this highly divided context, the voices of indigenous communities were muffled in 2011, rendering their advocacy efforts less than successful. This trend will continue unless there is increased unity of purpose among indigenous communities’ advocacy agents.
Notes and references
1 ACHPR 2003: Report of the Working Group on Indigenous Populations/Communities of the African Commission on Human and Peoples’ Rights. Copenhagen: IWGIA.
2 Greatly inspired by the 1996 South African Constitution, as evidenced by the emphasis on rights as vehicles for the preservation of individual and communal dignity, the promotion of social justice and the realization of human potential, Kenya’s Bill of Rights curtails attempts to limit rights often used by African governments - namely public order and morality. Through Article 24, the 2010 Constitution explains that constitutionally protected human rights can be circumscribed only by a specific law, and that such limitation will be permissible only if it is “reasonable and justifiable in an open and democratic society based on human dignity . . .”
3 The laws enacted include: the Commission on Administrative Justice Act, the Elections Act, the Judicial Service Act (No 1 of 2011), the Vetting of Judges and Magistrates Act; the Supreme Court Act; the Independent Offices Appointment; the Independent Electoral and Boundaries Commission Act; the Salaries and Remuneration Commission; the Political Parties Act; the Kenya Citizenship and Immigration Act; the Urban Area and Cities Act; the Kenya National Human Rights Commission; the National Gender and Equality Commission Act; the Commission on Revenue Allocation Act; the Environment and Land Court Act and the National Police Service Commission Act as well as the Kenya Citizens and Foreign Nationals Management Service Act.
4 The deputy president of the Court pointed to possibility of using the National Council on the Administration of Justice created by Article 34 of the Judicial Service Commission Act (2011) to further the implementation of the decision in the Endorois case. The Council is mandated to “ensure a co-ordinated, efficient, effective and consultative approach in the administration of justice and reform of the justice system” and is headed by the president of the Supreme Court with representatives from all the key organs of the state involved in the administration of justice.
5 Ibrahim Sangor Osman & 1,122 others v The Minister of State for Provincial Administration and Internal Security & 10 others  eKLR Constitutional Petition No. 2 of 2011, High Court at Embu (per A O Muchelule, Judge, judgment of 16 November 2011).
6 The phrase ”chooses in action” refers to intangible property in land such as mortgages, property bonds etc.
7 Section 13(2), Environment and Land Court Act, Chapter 19 Laws of Kenya.
8 Miscellaneous Civil Application No. 305 OF 2004 (Judgment of 18 December 2006), IL-Chamus v Electoral Commission of Kenya and Attorney General of Kenya.
9 See, schade, Jeanette, 2011: Human rights, climate change, and climate policies in Kenya. How climate variability and agrofuel expansion impact on the enjoyment of human rights in the Tana Delta; Research Mission Report of a joint effort by COMCAD (Bielefeld University), FIAN Germany, KYF, and CEMIRIDE.
10 susan Hawley, 2003: Turning a Blind Eye: Corruption and the UK Export Credits Guarantee Department. London: The Corner House. pp. 28- 30.
11 Republic of Kenya: Kenya Vision 2030.
12 Communication 276 / 2003 – Centre for Minority Rights Development (Kenya) and Minority Rights Group International on behalf of Endorois Welfare Council v. Kenya, Decision on the Merits (African Commission on Human and Peoples’ Rights 2010).
13 Report of the Working Group on the Universal Periodic Review (17 June 2010), paragraph 101.114 at http://daccess-dds- ny.un.org/doc/UNDOC/GEN/G10/144/88/PDF/G1014488. pdf?OpenElement>
14 African Commission on Human and Peoples’ Rights, 2011: “Resolution on the protection of indigenous peoples’ rights in the context of the World Heritage Convention and the designation of Lake Bogoria as a World Heritage Site” (5 November 2011).
15 Communication No. 381/09: Centre for Minority Rights Development, Minority Rights Group International and Ogiek Peoples Development Programme (on behalf of the Ogiek Community) v Kenya
16 Capital News, Kenya will protect its wildlife, asserts Kibaki (10 November 2011) at http://www. capitalfm.co.ke/news/2011/11/kenya-will- protect-its-wildlife-asserts-kibaki>.
17 “Armed police officers were dispatched to Olkaria in Naivasha to stop a planned demonstration by pastoralists” – See George Murage, 2011: Pastoralists demo over Olkaria jobs called off. Nairobi Star. 10 November 2011 at http://www.the-star.co.ke/local/rift-valley/48619- pastoralistsdemo-over-olkaria-jobs-called-off>.
18 The ICC has committed four senior government officials, two of whom are leading contenders for the presidency, to trial for their role in the post-electoral violence that plagued Kenya in 2007-8.
Korir Sing’Oei Abraham is Co-founder of the Centre for Minority Rights Development in Kenya. He is an advocate of the High Court of Kenya and holds an LL.B degree from the University of Nairobi and LL.M degrees from the University of Pretoria, South Africa and the University of Minnesota Law School. He is presently writing his PhD under the supervision of Tilburg Law School in the Netherlands. He was Humphrey Fellow in 2007/8 at the University of Minnesota School of Public Affairs.