Land rights as core claims of indigenous peoples in Kenya

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The land law regime in Kenya

Since colonial times, laws have been employed to alienate traditional lands belonging to African peoples. Today that situation is aggravated by the inconsistencies in the laws. Indeed, there is a general consensus that ‘the land law regime in Kenya is inordinately complex and addresses the land issues from different perspectives leading to inconsistencies in law’.226 It has been suggested that the only possible way to solve the current land regime quagmire is by ‘resolving the problems between statute law and cultural rights to land that are accommodated by law’.227 It is therefore important to begin by briefly tracing the history of the land tenure regime in Kenya in order to comprehend and appreciate the status quo.

ost-independence land tenure in Kenya

On attainment of independence, colonial property laws and policies were confirmed through the Registered Land Act (RLA) of 1963.265 This statute recognized only individual land tenure, to the frustration of groups whose way of life was incompatible with this regime.266 Although the aim of individualization of land tenure was to spur economic growth, the policy ignored indigenous peoples’ needs and the contribution they might have made to such growth.267 Certain indigenous communities, particularly the pastoralists, resisted the individualization of their lands. In 1968, in response to internal pressure, and in a bid to address group rights, particularly in the semi-arid areas where pastoral and nomadic lifestyles demanded collective land rights, the Land (Group Representatives Act) was enacted.
This statute was meant to assist pastoral communities in owning and operating group ranches. However, the scheme, as will emerge later in this thesis, was in fact a roundabout way of entrenching individualized tenure amongst these communities. The individual land tenure system sanctified by the Registered Land Act was favoured by the state on the basis that Kenya’s largely agricultural economy was dependent on it.269 However, the results of imposed individualization, instead of spurring economic growth, ‘only led to a destruction of communal tenure, and unmitigated landlessness’.270 Such outcomes are not surprising given that the state elected to ‘ignore the centrality of the people in favour of imagined economic development’.

A case study of the Maasai land dispossessions

Maasai land relations are governed by their customs, traditions and culture. According to John Galaty, ‘apart from the area adjacent to the Maasai homestead (olokeri) which was often reserved for the exclusive use of the calves, sick animals and small stock of a given family, the rest of the pasture was open to free grazing by the community’.287 Galaty adds that the fact that the lands and resources were ‘common’ does not imply that they were unmanaged but rather were managed by community (communal) sanctions.288 The Maasai’s attachment to and conceptualization of their land resources may be understood through the proverb ‘ilmeishooroyu Emurua oolayioni’, which means ‘sons and land cannot be given out’. This proverb aptly captures the rationale behind the Maasai idea of communal land tenure,289 which Galaty describes as follows: Within a constituted territorial group (Olosho), certain areas were seasonally closed, to allow grass to rejuvenate. And in given neighbourhoods, specific locals were designated for building homesteads, so that structures would not be randomly scattered across the country side, and individual families would not appropriate the best areas for the settlements, the daily movement of their livestock thus spoiling the grazing for others.

The introduction of group ranches on Maasai land

The conversion of communal land holdings to group ranches was facilitated through legislation. This was primarily through the Land Adjudication Act of 1968, which provided for the recording of rights and interests in customary lands, and their assignment to their customary users, and the Land (Group Representatives) Act, which provided for the governance and administration of group ranches.299 In accordance with the latter Act, a group ranch becomes the property of all its members in equal and undivided shares. A group ranch may be registered in the name of ten representatives as nominal title holders who hold the land in trust for the other unregistered members of the community.

The individualization of the group ranches

Various factors are advanced as having contributed to the subdivision of the group ranches. Population increase among the members, which resulted in more children attaining the requisite age for inclusion, put strains on shareholding. According to Mwangi: As young men matured, they were recruited into group membership. This recruitment commonly involved the collective registration of an entire age set. Members’ shares to group ranch land were gradually diminishing with the expansion of membership. The anticipated outcome was that land parcels would become smaller by the day and unviable upon the eventual subdivision of the group ranch. This concern also reflects a general sense that land subdivision was unavoidable.310 The subdivisions were also fuelled by political statements calling for individualization of the ranches. The most notable statements were issued by the former President Daniel Moi in the 1980s.

TABLE OF CONTENTS :

• Declaration
• Dedication
• Acknowledgments
• Summary
• Table of cases
• Table of statutes and legal instruments
• List of abbreviations
• 1. Introduction
  • 1.1 Background to the study
  • 1.2 Who are indigenous peoples?
  • 1.3 Relevance of the concept ‘indigenous peoples’ in realising the groups’ fundamental human rights
  • 1.4 Indigenous peoples’ land rights
  • 1.5 Research methodology
  • 1.6 Chapter overview
• 2. Land rights as core claims of indigenous peoples in Kenya
  • 2.1 Introduction
  • 2.2 Relation between indigenous peoples and their lands
  • 2.3 Issues of concern by indigenous peoples in their demand for recognition and protection of their land rights
    • 2.3.1 Inadequate or lack of legal recognition of indigenous peoples’ rights to land
    • 2.3.2 Inadequate consultation and participation of indigenous peoples over matters affecting their lands
  • 2.4 Chapter conclusion
• 3. Kenya’s legal framework and indigenous peoples’ land rights
  • 3.1 Introduction
  • 3.2 Sources of applicable laws in Kenya
  • 3.3 The land law regime in Kenya
    • 3.3.1 Pre-colonial land ownership in Kenya
    • 3.3.2 The colonial land tenure system in Kenya
    • 3.3.3 Post-independence land tenure in Kenya
  • 3.4 The dispossession of indigenous peoples’ land through the law
  • 3.5 A case study of the Maasai land dispossessions
  • 3.5.1 The introduction of group ranches on Maasai land
  • 3.5.2 The individualization of the group ranches
  • 3.6 A case study of the Ogiek land dispossessions
  • 3.6.1 The Ogiek attempts at protecting their lands through litigation
  • 3.6.2 Analysis of the Court’s judgment and factors inhibiting effective protection of the rights of indigenous peoples
  • 3.6.3 Alternatives for the Ogiek
  • 3.7 Chapter conclusion
• 4. The potential of Kenya’s current legal framework to vindicate indigenous peoples’ land rights
  • 4.1 Introduction
  • 4.2 The right to life
  • 4.3 Non-discrimination and equality
  • 4.4 Protection from deprivation of property
  • 4.5 Trust lands
  • 4.6 Recognition and application of the concept of indigenous title in Kenya
  • 4.7 Chapter conclusion
• 5. Vindicating indigenous peoples’ land rights in comparable jurisdictions: the case of South Africa and Namibia
• 6. Towards a suitable legal framework that vindicates indigenous peoples’
• Bibliography

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VINDICATING INDIGENOUS PEOPLES’ LAND RIGHTS IN KENYA