Law and Policy and Its Impact on Kenya's Indigenous Communities' Land Rights

LAW AND ITS IMPACT ON KENYA’S INDIGENOUS COMMUNITIES’ LAND RIGHTS: THE OPPORTUNITIES Connie N. Maina Sozi Thesis submitted for the Degree of Doctor of Philosophy at the Institute of Commonwealth Studies, University of London. October 2019 Law and its Impact on Kenya’s Indigenous Communities’ Land Rights: The Opportunities Connie N. Maina Sozi Thesis submitted for the Degree of Doctor of Philosophy at the Institute of Commonwealth Studies, University of London. October 2019 1 Declaration I hereby declare that this dissertation is the result of my own independent investigation except where I have indicated my indebtedness to other sources. This dissertation has not already been accepted in substance for any other degree, and is not being submitted concurrently in candidature for any other degree. Signed Connie N. Maina Sozi (Candidate) 2 Abstract: For those communities in Kenya that identify as indigenous, and with the indigenous movement, land is the core of their collective existence. To remove them from their ancestral lands violates their customary rights to land and says to them that they do not matter. For years they have been the victims of those in power who have used their political influence as well as the law to denigrate and invalidate those rights. This has been through forced assimilation of these communities into larger groups, forced evictions, damaging of property, killings, inhuman and degrading treatment; and broken promises. Judgments of regional bodies under the African Charter on Human and Peoples’ Rights framework affirming those rights have gone unimplemented. This thesis therefore looks at what law has been, what it is and what it could do with a particular focus on the Constitution of Kenya 2010 and its harbinger- on land- the National Land Policy 2009. Alternatives existing under the East African Community Treaty and also the World Bank’s framework on indigenous communities, -are also examined. The conclusion reached is that land in Kenya is a political chalice, howbeit, progressive law has been enacted. This must have an intended purpose, and where that purpose is not fulfilled, law may as well not exist. There is opportunity in the law for both communities and law makers to close in on this disparateness and bring out the realisation of these land rights. 3 Acknowledgments There have been a number of entities and people without whom this thesis would not have been possible. First is my College, the Institute of Commonwealth Studies for awarding me the Louise Arbour Scholarship to conduct this thesis. Second, the late Professor Patrick McAuslan, my LLM lecturer at Birkbeck College who through discussion during the Globalisation of Land Markets module highlighted the plight of the Endorois community and opened up the indigenous land rights’ discourse to me. Third is my mother, Dr Beatrice Maina who through her own PhD endeavour and success at the University of Wales nearly thirty years ago, empathised and encouraged me every single step of the way: thank you mum, I knew I could because you did. Fourth, is my supervisor, Dr Corinne Lennox whose constructive feedback, guidance, understanding and patience has impacted me more than I have ever vocalised to her: thank you Corinne. Fifth, is Catherine Ham, my best friend: thank you mami for seeing me through this. Sixth, my friends who kept asking for an update and encouraged me to persist when the going got tough. And there are those who have contributed to this work by talking to me, thank you and in particular Mr Kiprono Chuma, Ogiek elder at Timboroa, Nakuru: I will not forget your stories. Then to those who have gone before me: Cῦcῦ Teresiah and Cῦcῦ Rhoda, for loving me, always praying for me and believing in me. And lastly to the Lord God Almighty, for sustaining me through this work. 4 Table of Contents Introductory Chapter: ...................................................................................... 6 Chapter 1: A reluctant opportunity? Commissions and Task Forces impacting on indigenous communities’ land rights in Kenya .................................... 47 Chapter 2: The 2010 Constitution and Indigenous Peoples’ Land Rights ........... 100 Chapter 3: Implementation of the Endorois and Ogiek decisions under the African Charter on Human and Peoples’ Rights framework under domestic mechanism ........................................................................................... 138 Chapter 4: The East African Community- An Alternative mechanism for recognition, promotion and protection of indigenous communities’ land rights? . 195 Chapter 5: Impact of International development funding on indigenous communities’ land rights: Case studying the IDA funded Natural Resource Management Project ......................................................... 255 Concluding Chapter: ................................................................................................. 303 Appendix: list of interviewees .................................................................................. 312 Tables of Cases ......................................................................................................... 313 Tables of Legislation ................................................................................................. 317 Tables of Treaties and International Instruments ..................................................... 319 Bibliography ............................................................................................................. 321 5 Introductory Chapter ‘Legal focus stems from the reality that the legal treatment of property rights is the ultimate determinant of tenure security.’1 Introduction 1 A discussion on law relating to indigenous communities’ land rights is multifarious and complex in nature. It reeks of a power game in which the players are the Government, its agencies, politicians and funding donors, other citizens and finally the indigenous communities. Whoever has the most power possesses the land or determines what happens to it. Kenya’s land politics has in fact been described as ‘first and foremost a redistributive game that creates winners and losers’.2 Land has been used to gain power in Kenya;3 and law, whether imposed, respected or disregarded has played a pivotal role in that. 2 This thesis observes that land law has evolved from a communal land tenure- form in the pre-colonial period, where members of communities were allowed to use community land as they wanted as long as this was in line with the customary laws,4 and where the concept of individual or private ownership was unknown,5 to a codified pro-individualised and public-tenure system under the colonial regime. In introducing its systems, the colonial administration imposed measures that were alien to the native population and which ignored their existing and political patterns.6 This affected the Kenyan native population as a whole including indigenous communities and led to 1 Liz Alden Wily, ‘The Community Land Act in Kenya Opportunities and Challenge for Communities’ (MDPI 2018) <https://www.mdpi.com/2073-445X/7/1/12> accessed 5 June 2018. 2 Catherine Boone, ‘Land Conflicts and Distributive Politics in Kenya’ (2012) Volume 55 Number 1 African Studies Review 75. 3 Cyprian Fisiy puts it more aptly: ‘Control over land has served as an important component of control over people’, cited in Catherine Boone, Property and Political Order in Africa: Land Rights and the Structure of Politics (Cambridge University Press 2014). 4 Walter Odhiambo and Hezron Nyangito, Land Laws and Land Use in Kenya: Implications for Agricultural Development (Kenya Institute for Public Policy Research and Analysis, 2002). 5 Peter Ng’ang’a Mburu, ‘Strategies to Modernize the Land Registration System in Kenya’ (DPhil Thesis University of Groningen 2017). 6 Patrick Thornberry, Indigenous Peoples and Human Rights (Manchester University Press 2002) 211. 6 mass disinheritance of individuals and communities of their land, inequitable access to land and contributed to land tenure insecurity particularly for indigenous peoples.7 The post-colonial era has seen perpetuation of the colonial system by Governments which have been run by individuals from dominant communities, much larger and more powerful than indigenous communities. 3 The communities that these individuals belong to have chosen to follow the individual rather than collective system of land ownership, partly as this has aligned with the agenda of donors, until now. The law in its current form, as introduced by the 2009 National Land Policy (NLP) and established by the 2010 Constitution, is a departure from the law as it was and re-introduces communal land tenure as a valid land regime. This is referred to as community land under the Constitution and is the category of land which enshrines indigenous communities’ land rights. The language used in both the NLP and the Constitution are progressive in the articulation of indigenous communities’ land rights. There is also the Community Land Act 2016; and other constitutionally-inspired laws dating from 2012 to 2016 relating to land, forest-management, natural resources and human rights etc., which have the potential to impact on indigenous communities one way or the other, which are some of the opportunities this thesis will explore. Background 4 Kenya became a British protectorate in 1895. Protectorates were those territories which were not yet fully brought into the dominion of the British Crown but where Britain controlled the external affairs. In

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