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Topic: Indigenous Communities and Their Rights to Ancestral Land

Ombeva Z Mitto,

LLB(Hons) - Africa Nazarene University Law School,

Chair, Law Student Society of Kenya, ANU Chapter

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Abstract

With the core intention of defining what indigenous persons are, the United Nations Special

Rapporteur to the Sub-Commission on the Prevention of Discriminated and Protection of

Minorities, Indigenous communities stated that such communities have historical continuity with

both the pre-colonial and pre-invasion societies, on the basis of their territorial boundaries, who

distinct themselves from the larger society. They are determined to preserve and develop their

ancestral territories for the future generations, and also to protect keenly their ethnic identities for

existence to continue. They are known to have their own unique cultures, social structures and

institutions as well as legal systems. This paper provides a detailed perspective of such persons

who are considered to be indigenous and justifies their various legal rights codified to laws.

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Introduction

Defining Indigenous people

According to Barume, K. (2010) in the book Land Rights of Indigenous Peoples in Africa1,

indigenous people are those that are regarded to be from certain locations/regions, which they

deem to be their traditional tribal land. There are certain attributes that relate to indigenous

communities and groups2. The attributes are considered to be unique, due to matters of locality,

traditions and special legal frameworks among other elements.

Characteristics of Indigenous Communities in Africa

Before stating the general characteristics of indigenous communities in Africa, it is necessary to

note that these groups do have a shared characteristic. They are mostly previous hunter-gatherer

communities, or certain groups of pastoralists, and therefore their way of life solely depends on

access and availability of rights related to ownership of land (and traditional/community land for

this reason), and the natural resources of the land thereon3.

1 Barume, K. A., (2010). Land Rights of Indigenous Peoples in Africa: With Special Focus on Central, Easter, and

Southern Africa. Publisher: International Work Group for Indigenous Affairs.

2 The UN Special rapporteur to the sub-commission on the prevention of discrimination and protection of minorities,

indigenous communities, people and nations – on the definition of indigenous communities “those which having a

historical continuity with pre-invasion and pre-colonial societies that developed on their territories, consider

themselves distinct from other sectors of societies now prevailing in those territories, or parts of them. They form at

present non-dominant sectors of society and are determined to preserve, develop, and transmit to future generations

their ancestral territories, and their ethnic identity, as the basis of their continued existence as peoples, in accordance

with their own cultural patterns, social institutions and legal systems.”

3 Evans, M. & Murray, R. (2008) The African Charter on Human and Peoples’ Rights: The System in Practice 1986-

2006. Cambridge University Press.

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Other Characteristics

Ranging from the pastoral communities of Kenya and Uganda (The Pokot people), to the

Barabaig of Tanzania, Maasai of Kenya and Tanzania, the Himba of Namibia to the Fulani and

Toubou of Burkina Faso, Niger and Mali, the question remains how exactly they get to be

classified to be indigenous communities. There has to be some traits and characteristics they

own, that the other dominant society lacks, making them get the classification of indigenous

persons. The following are some of the characteristics that a community or group of persons

have to own; They are discriminated upon, as they are considered to be less technologically

advanced, and generally less developed, they live and inhabit the inaccessible sections of society,

with poor infrastructure and less or no communication channels to the dominant society

(Geographically isolated regions), they are marginalized and continue to suffer political, social

and economic discrimination during distribution of resources, they are easily exploited by the

dominant sections of society, which benefit fully from national economic and political structures

as majority usually wins battles for national resources and their rights as people are violated, and

this completely frustrates their cultural preservation initiatives, making it almost impossible for

them to decision making, as far as their developments and futures are concerned4.

From the stated characteristics, it is evident that the communities which are deemed and referred

to as indigenous face a lot of discrimination, marginalization and segregation, and have a

problem accessing basic needs. However, considering that their existence largely relies on the

ownership of their ancestral land, certain policies and legal initiatives have to be put in place to

ensure their rights are protected, and that no one takes advantage of their land. In the following

4 ACHPR & IWGIA, (2006). Indigenous Peoples in Africa: The Forgotten Peoples – The African Commission’s

work on Indigenous Peoples in Africa. IWGIA Publishers.

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paragraphs, discussions will lean more on how the legal framework allows for the indigenous

groups to enjoy their rights, and whether such laws really apply in Kenya and Africa as a whole.

Justification of Indigenous Communities’ Rights to Ancestral Land

Article 63 of the 2010 Constitution of Kenya5, is categorically clear that Community land is

expected to be vested in and be held by communities, with consideration of their ethnical history,

culture and similar communities of interest. If the constitution is rightly interpreted, it had the

intention to safeguard community land for indigenous communities. Article 63 (2)(d) states

community land to include; land that is lawfully held, managed or used by specific communities

as community forests, grazing areas or shrines. 63 (2)(d) part ii – ancestral land and lands

traditionally occupied by hunter-gatherer communities or lawfully held as trust land by the

county government.

Basically, it is obvious that such land was to be occupied by the indigenous communities, which

had earlier participated in hunting and gathering as a way of survival, or had been practicing

pastrolism as a way of life and survival. The constitution in the same article, gives mandate to

parliament to make legislation that is to assist in the implementation of safeguarding this land for

the indigenous communities. Such land, therefore, shall not be used by individuals for their self

enrichment, and shall clearly be distinguished from public and private land.

5 Chapter V of the 2010 Constitution (precisely – article 63), Kenya Law Reports – 63 (1) – Community land shall

be vest in and be held by communities identified on the basis of ethnicity, culture or similar community of interest.

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Reasons for safeguarding community land for indigenous groups

Legal provisions

The 2010 Constitution

The Kenyan constitution provides under article 63 that community land comprises of land that

has been used, from historical times, by hunters, gatherers and pastoralist communities. By the

statement, it is clear that the constitution, which is the grundnorm law of the land, intends to

protect such land for those communities that are characterized as indigenous. Article 61 of the

Constitution also safeguards the right of the communities, as it states that all land is to belong to

the people of Kenya collectively, as communities and individuals. This created a right for

indigenous communities, who are to enjoy the benefits accruing from community land, as long as

the land is legally deemed to be owned by the community. Article 60 of the constitution also

denotes that land is to be sustained and managed in a manner that will ensure equitable access to

land.

Other statutes

The Land Act of 2012 provides for the protection and effective administration of land with

regard to the provision of the constitution6. However, in November 1

st 2013, a bill was

introduced in the senate (The Community Land Bill of 2013), that aimed to enact laws that assist

in the specific administration of community land. Section 43 of the Community Land Bill of

2013 provides that a committee (with the necessary mandate) can allocate part of community

land to a certain member or a group of members for exclusive use and occupation, but no

6 The Land Act of 2012, Kenya Law Reports – Section 37, Part IV states that community land shall be managed in

accordance with the law relating to community land enacted pursuant to article 63 of the constitution.

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separate title can be issued. Further, the bill continues to denote that individual entitlements of

such nature cannot surpass those of the community in any way and the individual shall pay

premium fees from time to time. The Bill also allows pastoralists to use the land for grazing their

stock and also the community can exclusively use the land for customs and practices, as long as

they comply with the available laws7. This is prove that indeed, there are laws aimed at

protecting indigenous communities, and this justifies the fact that such communities are to be

considered as they need such land to progress their lives and existence.

Discriminatory reasons

Considering that different scholars and researchers have found indigenous communities to be

victims of discrimination, it provides ground that such groups are to be protected, and this can be

done through enactment of effective rules, and society can also be educated so that they integrate

the indigenous communities into their economic and political systems. Discrimination is so

rampantly directed to the communities, to the level is has become of the characteristics a group

has to meet, to be deemed as indigenous. Parliament, through the constitution, has been

empowered to enact legislation that will promote the representation in parliament, and protection

of the rights of marginalized. Article 100 of the 2010 constitution states such marginalized

persons to include ethnic and other minorities and marginalized communities. Though the

architects of the constitution did not use the term indigenous, it is definite that they had their

interests catered for, when they mentioned marginalized communities.

7 The Community Land Bill of 2013 (Kenya Law Reports) – section 43 on the protection of community land for a

certain group, that is usually indigenous in nature though not mentioned as indigenous in the statute. The statute also

provides for rights for persons that are not members of communities, but the rights are not exclusive, and the persons

are not issued with titles to claim ownership.

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Source of livelihood

The general characteristic of indigenous communities relates to what they practiced during the

pre-colonial era. Initially, most of these groups involved themselves in hunter-gatherer activities,

and also in pastrolism. Considering that these are part of their cultures, it will be deprivation of

their rights to enhance cultural activities if they are not entitled to their ancestral land. Despite

the fact any Kenyan is entitled to their ancestral lands, special and specific attention is given to

marginalized communities, considering they exclusively need the land for them to sustain their

livelihood, and maintain their cultural activities. Considering the indigenous communities also

have lesser probability of getting equal national resources then it is only fair that they have

higher entitlement to ancestral land, that is their only alternative for sustainability.

Poor infrastructure, Technological Advancement and Education

Among the characteristics of the indigenous communities is the fact they live in inaccessible

areas, away from technology and this definitely means they have minimal education, and are

influenced by the high illiterate standards, with illiteracy levels threatening to get to the 100%

mark. As a result, the people living in such localities have no place in the working class strata.

They can hardly access any paying jobs, and they are also challenged culturally, with most of

them not destined to work in the white-collar class of jobs. It is also definite that they lack the

necessary amenities, as they greatly rely on natural resources and other community related

activities. This gives validity to the fact that they need their ancestral land, as with this land, they

can get food, afford better living standards and also preserve their cultures for the coming

generations.

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The Legal and Policy Framework in Kenya

Safeguarding the indigenous communities’ rights to ancestral land

The Endorois case

Judicial decisions have been known to change the phases of development of international law

and other jurisprudence. The case was between the Centre for Minority Rights Development and

the Minority Rights Group International (for Endorois Welfare Council) vs. Kenya (Summarized

as the Endorois case), where the Endorois had been evicted from their ancestral lands next to

lake Bogoria in the Central parts of Kenya. This was back in the 1970’s. They had to relocate to

an area that was not suitable for their pastoral way of life, and they could not also access sites for

their spiritual nourishment. They were not compensated as promised.

The African Commission found violations related to the rights of the indigenous community,

relating to religion, culture, property and natural resources8. This was a violation under the

African Convention on Human and Peoples’ Rights (ACHPR). The commission, therefore,

recommended that restitution take place so that the Endorois are returned to their ancestral lands,

and that compensation had to be paid for the harm that had been witnessed by the community.

These were just but among the main redresses for the damages caused. Kenya, who were

respondents in the case, were tasked with the duty of ensuring that certain systems are

established, so that legal effect is given to the rights of indigenous communities and persons.

Despite Kenya having enacted municipal laws such as the Land Act of 2012, Land Registration

Act, the Community Land Act and even the constitution, the provisions have not provided

8 Centre for Minority Rights Development vs. Kenya (2010). Facts of the case explained.

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extensive protection of the rights of indigenous communities. In their recommendation, the

African Commission acknowledged that Kenya was experiencing difficulties in enforcing and

managing community land, they stated that it was expected that Kenya develops an efficient

framework to manage communal property9. There is therefore, dire need that Kenya adopts and

develops a framework that is to be used in the effective management of Communal Property. A

framework that is likely to enhance national cohesion and discourage ethical divisions and

related tensions.

The United Nations Declaration on the Rights of Indigenous Peoples

This declaration was passed and adopted by the General Assembly of the United Nations.

Though such declarations are not binding to the member states as treaties and Conventions are,

they still have force as member states are expected to conform to its provisions. The first three

articles of the declarations are clear on the rights of the indigenous communities, and this depicts

the maturity of international laws relating to the protection of community rights. The Ogiek

community, commonly known as the Dorobo, is an indigenous community in Kenya that has

experienced the historical injustices through discrimination, inability to access their ancestral

land, and incapacity to attain education due to marginalization. The Declarations protect the

indigenous communities by allowing them to enjoy all human rights and fundamental freedoms

under the UN Charter, based on identity, origin and self-determination10

.

9 Paragraph 196 of the ACHPR recommendations to Kenya “The African Commission shares the Respondents

State’s Concern over the difficulty involved; nevertheless, the state still has a duty to recognize the right to property

of members of the Endorois community, within the framework of a Communal Property System, and establish the

mechanisms necessary to give domestic legal effect to such right recognized in the charter and International law.

10 Article 1, 2 &3 of the UN Declaration on the rights of Indigenous Peoples United Nations Official Website

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Laws not enforceable in Kenya

One of the remaining hunter-gatherer peoples in East Africa, known as the Sengwer people was

forcibly evicted from the Embobut forest in Kenya. The Kenya Forest Service, with the backup

of police officers, assisted in the exercise despite the court having given an injunction that

illegalized the eviction. This clearly indicated that despite Kenya trying to enforce and protect

the rights of indigenous communities, the same government still frustrates the implementation of

the policies and laws. The evictions saw thousands of Sengwer people loose homes, belongings,

their ancestral land and even food stores. As a state, Kenya has to learn from its mistakes and try

its best to ensure that they abide to international provisions relating to the rights of the

indigenous groups, and also enact laws locally, which will aid in enforcing the people’s rights.

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References

The 2010 Constitution, Kenya Law Reports

The Land Act of 2012, Kenya Law Reports

The Community Land Bill of 2013 (Kenya Law Reports)

African Convention on Human and Peoples’ Rights (ACHPR)

The United Nations Declaration on the Rights of Indigenous Peoples

Article 1, 2 &3 of the UN Declaration on the rights of Indigenous Peoples

The UN Special rapporteur to the sub-commission on the prevention of discrimination and

protection of minorities, indigenous communities, people and nations

Barume, K. A., (2010). Land Rights of Indigenous Peoples in Africa: With Special Focus on

Central, Eastern, and Southern Africa. Publisher: International Work Group for

Indigenous Affairs.

Evans, M. & Murray, R. (2008) The African Charter on Human and Peoples’ Rights: The System

in Practice 1986-2006. Cambridge University Press

ACHPR & IWGIA (2006) Indigenous Peoples in Africa: The Forgotten Peoples – The African

Commission’s work on Indigenous Peoples in Africa. IWGIA Publishers