ADM 135259

Introduction

Land is central to Kenyans since a significant portion of the country's economy depends on
agricultural uses of land.1 It is also the medium that defines and sets together social and spiritual
relations across generations. 2 Consequently, compulsory acquisition is a delicate issue especially
in this day and age where the government has increasing pressure to deliver public services such
as grand infrastructure projects in the face of high demand for land.3

Historically, there were irregular allocations by the government while practicing compulsory
acquisition which was attributed to the abuse and non-adherence to the Land Acquisition Act
which governed the acquisition process. 4Compulsory acquisition was not exercised effectively
and accountably.5

These issues have still not been solved due to the ambiguities in the new laws dealing with
compulsory acquisition, in particular, the Constitution and the Land Act.6 For example, the laws
do not provide criteria for the calculation of compensation to be made to victims of the
acquisition. The law only provides for "just" compensation which is very ambiguous.7 Courts
have taken "just and fair" compensation to mean the market value of the property. 8

However, the market value fails to compensate non-monetary aspects such as the spiritual
connections communities have to their ancestral lands. 9The Constitution also provides for the
prompt payment of just compensation to the owner of land that has compulsorily been acquired.
10
The use delayed payments to the affected of the word "prompt" without providing a well-

1
Patrick 0. Alila and /\ tieno R ··Agricultural policy in Kenya: Issues and processes" Future Ag 1i ullurc ~
ConSOI1ium Workshop, ln~titut e o r Development tudi e~ , 20-22 March 2006, 3.
2
Republic of Kenya, Report of the Commission of inquiry into the land law system of Kenya on principles of a
national land policy framework constitutional position of land and new institutional framework for land
administration, 2002, 19.
3
Food and Agriculture Organization of the United Nations (FAO), ‘Compulsory acquisition of land and
compensation’ Land Tenure Studies(2009), I
4
Section 46, National Land Policy (2009)
5
Section 42, National Land Policy (2009)
6
Constitution of Kenya 2010 and Land Act No 6 of 2012
7
Article 40(3)(b)(i), Constitution of Kenya (2010)
8
Kanini Farm Limitedv Commissioner of Lands (1996) eKLR
9
FAO, ‘Compulsory Acquisition of Land and compensation’, Land Tenure Studies (2009), 23
10
Article 40(3)(b)(i), Constitution of Kenya (2010)
defined timeline for compensation has led to persons.11 This contradicts the principle of just and
fair compensation. 12Currently, there are still cases on non-adherence by the State to the laws
governing compulsory acquisition.

The government is still forcefully evicting the Sengwer community from the Embobut forest
contrary to the law.13 Furthermore, since the National Land Commission (NLC) has still not
created guidelines for compulsory acquisition, room has been created for such irregular
acquisition practices to go on.14 Cumulatively, these ambiguities and irregular practices lead to
the disregard for the right to property as enshrined in the Constitution through the arbitrary
deprivation of property.15

Anthropologist Ronald Niezen described indigenous people as those ‘whose position in the
modern world is least tenable. 16The demands of this ‘modern world’ have rendered indigenous
people the dregs of the tea of time from which those who opted to develop with the ages have
sieved through somewhat seamlessly into the coming ages. This notion of being on the outskirts
of society has led to shunning indigenous people by the larger society and consequently, denial
of their rights. In Africa, defining and delineating the rights of indigenous people has been
especially difficult due to its unique history of indigeneity 17

In Kenya, particularly the right to own land is central to the rights-based claims of indigenous
people. Land forms the basis from which the identity of indigenous people begins to be
understood. 18The onset of even greater development threatens the right of indigenous people to
own land because of the use of the power of the state to convert private or protected property to

11
Mathatani Limited v Commissioner of Lands (2013) eKLR
12
Mathatani Limited v Commissioner of Lands (2013) eKLR
13
https://www.justiceinfo.net/en/104150-kenya-ordered-redress-wrongs-done-ogiek-indigenous-minority.html on 15
January 2018
14
Section 107(2), Land Act (No 6 of 2012)
15
Article 40(3)(b)(i), Constitution of Kenya (2010)
16
Niezen R, ‘The origins of indigenist: Human rights and the politics of identity’, 1ed, University of California
Press, Berkeley, 2003, 5.
17
In other countries where indigenous people are recognized, there is an ongoing relationship with the colonizers.
Africa forms an exception as independent Africa saw the return of nearly all colonizers to their origins necessitating
a different understanding of what it meant to be indigenous.
18
Ders so S, Perspectives on the rights of minorities and indigenous peoples in Africa, Pretoria University Law Press,
2010, 43.
the needs of the state, through compulsory acquisition.19 In Kenya, this power is provided for
under Article 4020 of the Constitution and Part VIII of the Land Act.21

This essay proposes that the rights of indigenous people form an exception to the power of
eminent domain. To elucidate this contribution, the essay is based off two decisions of The
African Court on Human and People’s Rights on May 26, 2017 in Arusha and a subsequent
judgement on June 23, 2022.22 These decisions will guide the discussions into three main parts.
The first is finding the origin of the rights of indigenous communities in Kenya. Subsequently we
will look at the justifications of granting these land rights.

This will help us understand the basis of these arguments and why the rights of indigenous
communities should be protected. The second details the authority of the state in regulating and
compulsory acquisition of property. We will then distinguish and make out the relationship
between this power of the state and land rights of indigenous communities. This will be useful in
deciphering how the historical relationship between these two conflicting areas of the law. We
will go in depth in explaining compulsory acquisition particularly part two. The third part will be
to evaluate the threats indigenous communities still face in Kenya and try to find possible
solutions to redress these challenges.

The Origins and Justification of the Rights of Indigenous Communities to Their Land
Rights

Indigenous peoples' rights under international law have evolved from existing international law,
including human rights treaties, to address the specific circumstances confronting indigenous
peoples as well as their priorities, such as rights to their lands, territories, and resources, as well
as self-determination.23

19
Dersso S, Perspectives on the rights of minorities and indigenous peoples in Africa, Pretoria University Law
Press, 2010, 43.
20
Article 40, Constitution of Kenya (2010).
21
Land Act, 2015
22
African Commission on Human and People’s Right v Republic of Kenya, Application No 006/2012, Judgement
23
Hodgson D, ‘Becoming Indigenous in Africa’, 52, African Studies Review 3, 2009
Unfortunately, many indigenous peoples confront a variety of human rights challenges. In truth,
their rights are not being fully implemented.24

Some of the most challenging human rights concerns for indigenous peoples originate from
pressures on their lands, territories, and resources as a result of development and resource
extraction operations.25 Their cultures are still under assault, and efforts to safeguard and
promote their rights are being rejected.

Indigenous peoples have enjoyed unparalleled access to and participation in human rights
issues.The rights of indigenous communities, such as the Ogiek, to their land rights have their
origins in international human rights law and the recognition of the unique relationship between
indigenous peoples and their ancestral lands. 26Indigenous communities have inhabited and relied
on their lands for generations, and their cultural, spiritual, and economic well-being is deeply
connected to their territories.27

Kenya’s Constitution recognizes the presence of indigenous communities in the country, but this
is set out through the lens of marginalization.28 Article 260 provides the definition for
“marginalized community’ and “marginalized groups” “marginalized group” means a group of
people who, because of laws or practices before, on, or after the effective date, were or are
disadvantaged by discrimination.29

From the above , the Constitution refers to “an indigenous community that has retained and
maintained a traditional lifestyle and livelihood based on a hunter and gatherer”. It is arguable
that the lens of marginalization in defining an indigenous community can, legally be used to take
away the same status and deny protections. However, in interpretation of the constitution, law
and treaties, Kenyan courts have widened the definition of indigenous communities, such as in

24
Hodgson D, ‘Becoming Indigenous in Africa’, 3.
25
Hodgson D, ‘Becoming Indigenous in Africa’, 3.
27
Hodgson D, ‘Becoming Indigenous in Africa’, 10.
28
Article 260 , Constitution of Kenya (2010).
29
Article 260 , Constitution of Kenya (2010).
Joseph Letuya & 21 others v Attorney General and 5 others30 where judges relied on the 1989
ILO Indigenous and Tribal People’s Convention.31

This treaty defines “indigenous community” as: tribal peoples in independent countries whose
social, cultural and economic conditions distinguish them from other sections of the national
community and whose status is regulated wholly or partially by their own customs or traditions
or by special laws or regulations; also people in independent countries who are regarded as
indigenous on account of their descent from the populations which inhabited the country, or a
geographical region to which the country belongs, at the time of conquest or colonization or the
establishment of present State boundaries and who irrespective of their legal status, retain some
or all of their own social, economic, cultural and political institutions.

In its judgement, the court adopted the above ILO Convention definition of an indigenous
community. The judges also observed that “It is apparent from the definition that the
distinguishing factor for indigenous communities is their historical ties to a particular territory,
and their cultural or historical distinctiveness from other populations that are often politically
dominant.

This approach while eventually linked to tenure rights over lands claimed as ancestral, also
means that indigenous communities in Kenya, do not have constitutional recognition of native
title, or a category of sui generis or unique title akin to the Australian approach in Mabo v
Queensland. 32In this instance, native title was defined as having its origin and is given its
content by the traditional customs observed by the indigenous inhabitants of a territory; and the
nature and incidents of native title must be ascertained as a matter of fact by reference to those
laws and customs. Native title was defined as sui generis or unique because it reflected the rights
and entitlements of indigenous peoples under their own laws.

30
Joseph Letuya & 21 others v Attorney General & 5 otehrs [2014] eKLR
31
International Labor Organization (ILO), Indigenous and Tribal Peoples Convention, C169 1989, C169.
32
Mabo v Queensland. (1992)
The justification for recognizing and protecting the land rights of indigenous communities stems
from the principles of self-determination, cultural preservation, and non-discrimination.33
Indigenous peoples have the right to maintain their distinct identities, cultures, and ways of life,
which are intimately tied to their lands.34 This recognition is based on the understanding that
indigenous communities have a unique and collective relationship with their territories, which
goes beyond mere ownership or possession.35

To start off, The Declaration adopted by the United Nations General Assembly asserts the
entitlement of indigenous populations to self-determination, thereby granting them the autonomy
to determine their political status and engage in their economic, social, and cultural
advancement36. Similar to the common article 1 of the International Covenant on Civil and
Political Rights and the International Covenant on Economic, Social and Cultural Rights, Article
3 of the Declaration reflects these principles.37

At the global level, indigenous groups view self-determination as a fundamental right. The
enforcement of this self-determination right works in conjunction with the enforcement of
various other rights.38 All the rights stipulated in the Declaration are interconnected and
inseparable, and this includes the right to self-determination. This particular right influences all
other entitlements, which ought to be interpreted with consideration of indigenous self-
determination. For instance, the right to culture encompasses the potential autonomy of
indigenous groups over cultural matters.

In terms of the autonomy or self-governance of indigenous populations, Article 4 specifies that

33
Centre for Minority Rights Development (Kenya) and Minority Rights Group International (on behalf of Endorois
Welfare Council) v the Republic of Kenya—
on 31 August 2015
34
—<http://www.chr.up.ac.za/chr_old/indigenous/country_reports/Country_reports_Kenya.pdf
> on 31 August 2015
35
— Report for Minority Rights Group International ,Kenya at 50, Unrealized Rights of minorities, Korir Sing’oei
Abraham, January 2012, 7
36
Expert Mechanism on the Rights of Indigenous Peoples, advice No. 2: indigenous peoples and the right to
participate in decision-making
37
Human Rights Committee, general comment No. 23 (1994) on the rights of minorities and Committee on
Economic, Social and Cultural Rights, general comment No. 21 (2009
38
Mayagna (Sumo) Awas Tingni Community v. Nicaragua; Case of the Sawhoyamaxa Indigenous Community v.
Paraguay, Series C, No. 146, Judgement of 29 March 2006.
self-governance concerning internal and local affairs39 Additionally, they are granted the means
to finance their self-governing functions. Corresponding to their right to autonomy, Article 34 of
the Declaration ensures indigenous communities the right to preserve, enhance, and manage their
institutional structures, customs, spiritual beliefs, traditions, processes, practices, and, if
applicable, legal systems or traditions.40

The right to self-determination is closely tied to the political rights of indigenous communities,
encompassing their right to engage in decision-making concerning matters that impact their
rights. States are obligated to seek their input and collaborate with them to secure their informed
consent prior to enacting legislative or administrative measures that could affect them. In both
situations, in harmony with their self-determination right, indigenous groups have the
prerogative to partake through their representative bodies (as outlined in Article 18).

The United Nations Expert Mechanism on the Rights of Indigenous Peoples conducted an
extensive study on indigenous peoples' involvement in decision-making from 2009 to 2011.
4142
Moreover, the Special Rapporteur on the rights of indigenous peoples has explored
indigenous participation rights in various reports, addressing thematic and country-specific
concerns. This work complements the growing body of legal decisions on the matter, including
those from the Human Rights Committee and the Inter-American Court and Commission on
Human Rights.43 This evolving comprehension of indigenous participation rights highlights the
consistent theme that their approval must be sought for activities with substantial implications
for them and their lands, territories, and resources.

Secondly, another justification for the protection of the indigenous rights of endangered
communities is cultural preservation. In May of 2017,44 the Court's verdict declared that the
actions of the Kenyan government, which led to the displacement of the Ogiek from their

39
Article 4 of Declaration and ILO Convention No. 169
40
Article 34 of Declaration and ILO Convention No. 169
41
Expert Mechanism on the Rights of Indigenous Peoples, advice No. 2: indigenous peoples and the right to
participate in decision-making
42
Expert Mechanism on the Rights of Indigenous Peoples, advice No. 2: indigenous peoples and the right to
participate in decision-making
43
0 Centre for Minority Rights Development (Kenya) and Minority Rights Group International (on behalf of
Endorois Welfare Council) v. Kenya, communication No. 276/03 (25 November 2009).
44
African Commission on Human and People’s Right v Republic of Kenya, Application No 006/2012, Judgement
traditional lands, were found to be in breach of seven specific provisions outlined in the African
Charter on Human Rights.

These violations encompassed fundamental rights such as the rights to life, freedom from
discrimination, property ownership, access to natural resources, preservation of cultural heritage,
religious freedom, and the right to development. The historic ruling issued by the African Court
on Human and Peoples' Rights (ACHPR), headquartered in Arusha, Tanzania, is of immense
significance.45 This judicial body for the African continent has mandated that the government of
Kenya provide both financial reparations and moral compensation to address the prolonged
suffering endured by the indigenous Ogiek community.46

The reparations judgment dictates that Kenya is obligated to implement all requisite actions to
collaborate with the Ogiek community or their designated representatives. These actions
encompass the identification, in consultation with the Ogiek, as well as the delineation,
demarcation, and formal titling of Ogiek ancestral land. This is intended to ensure the enduring
utilization, habitation, and contentment of the Ogiek people in regard to their land, backed by
legal assurance.

Should objective and rational justifications prevent the return of the land by the Kenyan state, the
judgment stipulates that negotiations must be initiated between the state and the Ogiek
community, facilitated through their representatives. The negotiations' goal would be to either
offer appropriate compensation or to locate alternative land that is both equivalent in size and
quality to the Ogiek ancestral land, and can be allocated for Ogiek utilization and habitation.

International instruments such as the United Nations Declaration on the Rights of Indigenous
Peoples (UNDRIP) and the International Labor Organization (ILO) Convention No. 169 affirm
the rights of indigenous peoples to their lands, territories, and resources. These instruments
recognize the historical injustices suffered by indigenous communities and aim to rectify past
and ongoing violations of their rights.

45
African Commission on Human and People’s Right v Republic of Kenya, Application No 006/2012, Judgement
46
African Commission on Human and People’s Right v Republic of Kenya, Application No 006/2012, Judgement
The Relationship Between the Rights of Indigenous Peoples to Land and the Authority of
the State

The dynamic between the land rights of indigenous populations and the authority held by the
state to regulate and potentially seize their land and natural resources is intricate and often
contentious. Historically, indigenous communities have encountered significant obstacles in
asserting their land and resource rights, as governments frequently prioritize economic
development and national concerns over indigenous rights.

The state's power of compulsory acquisition is founded on the doctrine of eminent domain,
wherein the state, as the ultimate authority, holds full ownership of all land within its territory
and has the capacity to expropriate private property interests. 47According to Hugo Grotius, the
state possesses eminent domain over all property and can transfer it for public needs while
compensating the owner.48 The sovereignty of the state often supersedes private property rights,
grounded in utilitarian theories that prioritize societal welfare. However, the radical title actually
belongs to the people, thus any compulsory acquisition must adhere to legal protocols.49

Historically, misuse of the state's compulsory acquisition authority has led to illicit and irregular
land allocations. To justify state-led compulsory acquisition, three key conditions must be met:
the expropriation must serve a public purpose, just compensation must be offered, and the
principle of free, prior, and informed consent (FPIC) must be respected.

In May 2017, the African Court on Human and Peoples' Rights issued a landmark judgment in
the case of African Commission on Human and Peoples' Rights v Republic of Kenya. The case
revolved around the Ogiek community of the Mau Forest, an indigenous minority in Kenya,
comprising around 20,000 members, with 15,000 residing within the approximately 400,000-
hectare Mau Complex land mass.50

47
Paul EF, Property rights and eminent domain. Transactional Publishers, New Brunswick, 1987
48
Grotius H, ‘De jure belli ac pacis’ (1652), Nijhoff. The Hague. 1948, as cited in Ramanathan U, ‘A word on
eminent domain’ International Environmental Law Research Centre (2009). I
49
Kariuki F, Ouma S, Ng 'etich R, Properly Law, Strathmore University Press, 20 16, 135.
50
K Karuti, O Lumumba and KS Amanor, The Struggle for Sustainable Land Management and Democratic
Development in Kenya: A History of Greed and Grievances’, in KS Amanor and S Moyo (eds) Land & Sustainable
Development in Africa, London, ZedBooks, 100-126.
According to the claim, in October 2009, the Kenya Forest Service (KFS) issued a 30-day
eviction notice to the Ogiek and other settlers, citing the forest's status as a water catchment zone
and government land under the Government Lands Act (now replaced by the Land Act, 2012).
Despite repeated objections and legal actions, the Ogiek alleged violations of various articles of
the African Charter on Human and Peoples' Rights by the Kenyan government.51

In its ruling, the African Court acknowledged that the African Charter doesn't explicitly define
indigenous peoples. It derived criteria for recognition from international legal instruments,
concluding that factors including priority of occupation, cultural distinctiveness, and self-
identification were relevant. Based on this, the Court recognized the Ogiek Community as an
indigenous population within the Kenyan people, warranting special protection due to their
vulnerable status.

Of particular relevance is Article 14 of the African Charter, which safeguards the right to
property, allowing encroachment only for public necessity or the communal well-being and in
alignment with appropriate laws.52

The Land Act's Section V outlines the provisions for compulsory acquisition of community land.
The Act stipulates that, in alignment with the Constitution and the Land Act,53 the State is only
permitted to compulsorily acquire rights over community land based on legal regulations,
exclusively for public purposes, and contingent upon swift and fair compensation provided either
in full or via negotiated settlement to the affected individuals. The Act also designates
compulsory acquisition as one of the mechanisms through which community land can be
transformed into public land.54

A community assembly, as established by the Act, is responsible for the management and
administration of community land. The process of compulsory acquisition of community land
necessitates the approval of registered community members through a communal gathering.

51
Report of The Equal Rights Trust in partnership with the Kenya Human Rights Commission, In the Spirit of
Harambee, Addressing discrimination and inequality in Kenya by Jim Fitzgerald, February 2012, 68
52
Article 14, African Charter of Human Rights
53
Section 5, Land Act 2016
54
Section 5, Land Act
Additionally, all transactions involving community land must adhere to the land policy principles
detailed in Article 60 of the Constitution,55 as well as the national values and principles of
governance outlined in Article 10 of the Constitution.56

Threats to the Property Rights of Indigenous Communities in Kenya and Possible Solutions

Amidst the Ogiek ruling implementation, the Ogiek leaders and other environmental and human
rights defenders are facing life threats. Between March and June 2019, OPDP Executive Director
received death threats from politicians and beneficiaries of corrupt land deals in the Mau Forest.
Other human rights defenders in Mau have also received similar threats to an extent where on
July 2019 two community scouts who are protecting and conserving the forest on behalf of the
community were attacked and severely injured.57

Ogiek Peoples Development Programmed requests the African Commission on Human and
Peoples’ Rights to urge the government of Kenya to do the following: Speed up the
implementation of the African Court ruling concerning the Ogiek, Refrains from evicting the
Ogiek people and further violating their rights to occupy Mau as their ancestral lands, Recognize,
respect and fulfil indigenous peoples rights and their rights to occupy their ancestral lands,
Guarantee safety to indigenous communities and environmental and human rights defenders
including community leaders i.e. security should be enhanced in areas occupied by indigenous
communities, Set up programmes to address the immediate and urgent needs of indigenous
Peoples including safety, education, nutrition, resource rights and benefit-sharing from proceeds
of natural resources.

Pastoralists are estimated to comprise 25% of the national population, while the largest
individual community of hunter-gatherers’ number 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

55
Article 60, Constitution of Kenya, 2010
56
Article 10, Constitution of Kenya, 2010
57
https://www.iwgia.org/en/kenya/3486-iw2019-kenya on Jan 20, 2019
(Boni). While pastoralists include the Turkana, Rendille, Borana, Maasai, Samburu, Ilchamus,
Somali, Gabra, Pokot, Endorois and others. Each of these groups 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 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 Labor
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 36,5859 6061freedom of expression,
freedom of the media, and access to information and association are guaranteed. However, the
principle of free, prior and informed consent (FPIC) remains a pipedream for indigenous peoples
in Kenya.

Following the 2010 promulgation of a new Constitution for Kenya, indigenous peoples were
optimistic that their century-long claims to their lands and territories would finally be settled.
The new Constitution recommended an overhaul of all land laws in the country and created three
categories of land in Kenya: Private, Public and Community Lands. To address land grievances,
the new Constitution, under Article 6762, created a National Land Commission (NLC) with a key
mandate to initiate investigations into historical land injustices and recommend appropriate
redress.

58
Article 33, Constitution of Kenya, 2010
59
Article 34, Constitution of Kenya, 2010
60
Article 35, Constitution of Kenya, 2010
61
Article 36, Constitution of Kenya, 2010
62
Article 67, Constitution of Kenya, 2010
A Community Land Act passed into law in September 2016. However, there were concerns
among stakeholders about the lack of clarity on the mandates of the Ministry for Lands and
Housing and the NLC as well as about the lack of mechanisms for operationalization of the
Community Land Act and two other land acts (the Land Act and the Land Registration Act) –
and how these could be implemented without overlaps and conflicts.

In January 2017, the Minister for Lands and Housing through the Land Laws Amendment Act,
2016, set up a taskforce to interrogate the three laws and develop regulations on effective
operationalization of these laws. The taskforce has prepared draft regulations, rules and
guidelines in accordance with the relevant provisions of the Constitution, however, there are not
yet signs of implementation.63

Most of indigenous peoples’ lands in Kenya are under the classification of community lands,
where the Community Land Act64 underscores recognition, protection and registration of
community lands. Nonetheless, indigenous peoples are currently experiencing that their lands are
being subjected to extractive activities and mega infrastructural projects, and they are concerned
that this will cause diminishing space for their entire livelihood and production systems, land
degradation and destruction of cultural and religious sites.

In accordance with section 15 of the National Land Commission Act of 2012, the NLC in 2017
generated the “investigation of historical land injustices regulations” that provided a framework
for conducting investigations into historical land injustices which are generally defined as: (i) a
violation of land rights on the basis of the law, a declaration, administrative practice, treaty or
agreement; (ii) resulting in displacement of people from their habitual place of residence; (iii)
occurred between 15 June 1985 and 27 August 2017; or, (iv) commenced between 15 June65

63
—<http://www.chr.up.ac.za/chr_old/indigenous/country_reports/Country_reports_Kenya.pdf
> on 31 August 2015
64
Community Land Act (2016)
65
Section 15, National Land Commission Act 2012
1985 and 27 August 2017 and have not been resolved. The 2017 regulations lay out the
procedures through which historical land injustices are defined, the merits of acceptability of
claim(s) and the regulatory frameworks for notices of public presentation of grievances,
supporting evidence and remedial measures and revocation mechanisms.

There is an urgent need for indigenous peoples, their organizations and supporters both locally
and internationally to undertake sensitization campaigns to make use of this window of
opportunity to enable indigenous communities and individuals with historical land claims to seek
specific guidance from the NLC.

In 2018, in an unprecedented move, the Kenya National Highways Authority (KeNHA) under
the Ministry of Transport, Infrastructure, Housing and Urban Development initiated engagement
with representatives of Kenya’s indigenous peoples that included the Maasai and Ogiek prior to
the upgrading of the 175-kilometre-long Nairobi-Mau Summit Highway and the improvement of
the 57.8 kilometer of the highway between Rironi and Naivasha via Mai Mahiu. This highway
construction is funded under the World Bank-financed Kenyan Infrastructure Finance and Public
Private Partnerships Project (IFPPP).66

According to project documents shared by the KeNHA to members of the indigenous peoples,
this project forms part of the Trans-African Highway (Northern Corridor), part of the main
transport route serving East and Central African countries through the Indian Ocean seaport of
Mombasa.

The consultations with representatives of indigenous peoples and on the ground engagement with
communities along the project areas were aimed at sharing information on the project and further
sought to inform the processes of undertaking Environmental and Social Impact Assessments
(ESIAs) as part of anticipating and identifying the adverse environmental and social risks and
generating the requisite mitigation measures.

66
— on 1August 2018. 94 Maranga M, Indigenous people and the roles of culture, law and globalization: comparing
the Americas, AsiaPacifcs and Africa, Universal Publishers, Florida, 2018, 28.
Indigenous people’s organizations together with representatives of the KeNHA and the World
Bank held two meetings in Nairobi and representatives of indigenous peoples and organizations
recommended continuous consultative process, taking into account their historical grievances;
and abiding by Kenya’s Bill of Rights and relevant international human rights conventions
ratified by Kenya.

The KeNHA said it will use these recommendations to develop an indigenous people’s safeguard
protocol for the project. This forms one of the best practices by a Kenyan government body in
articulation of its responsibilities to Kenya’s indigenous peoples as prescribed in the Constitution
of Kenya and international instruments relevant to indigenous peoples that Kenya has ratified or
is in support of.

In Kenya, indigenous communities, including the Ogiek, face numerous threats to their property
rights. These threats include historical injustices, land grabbing, forced evictions, and inadequate
legal recognition and protection of indigenous land rights. These challenges are exacerbated by
factors such as population growth, commercial interests, and weak governance and enforcement
mechanisms.

To redress these threats, several solutions can be considered. Firstly, the government should
ensure the full implementation of the Constitution of Kenya 2010, which recognizes and protects
the rights of indigenous communities to their lands. This includes the recognition of indigenous
land tenure systems and the establishment of mechanisms for indigenous participation in
decision-making processes.

Secondly, the government should strengthen the legal framework for indigenous land rights by
enacting comprehensive legislation that explicitly recognizes and protects these rights. This
could involve amending existing laws such as the Land Act and Land Registration Act 2012 to
incorporate provisions specific to indigenous land rights.

Thirdly, the government should address historical injustices and provide reparations to
indigenous communities that have been dispossessed of their lands. This could involve
implementing the recommendations of the Ndung’u Commission Report, which investigated the
illegal and irregular allocation of public land.

Lastly, the government should promote dialogue and collaboration between indigenous
communities, government agencies, and other stakeholders. This can help build trust, enhance
understanding, and facilitate the resolution of conflicts and disputes over land and resources.

CONCLUSION

In conclusion, the recognition and protection of the land rights of indigenous communities, such
as the Ogiek, are grounded in international human rights law and the principles of self-
determination, cultural preservation, and non-discrimination. The recent cases in the African
Human Rights Court have shown that the relationship between indigenous land rights and the
authority of the state requires a balance that respects the autonomy and self-determination of
indigenous peoples while also addressing the legitimate regulatory interests of the state. To
redress threats to the property rights of indigenous communities in Kenya, it is essential to
implement the Constitution, strengthen the legal framework, address historical injustices, and
promote dialogue and collaboration. If this is accomplished then the rights of indigenous and
minority groups in Kenya would have been respected.