Towards a Coherent Legal Regime for the Protection of Indigenous Peoples' Land Rights in Kenya
in Morris Mbondenyi, Evelyne Asaala, Tom Kabau and Attiya Waris (eds), Human Rights and Democratic Governance in Kenya: A Post 2007 Appraisal (Pretoria University Law Press, Pretoria 2015) 83-117
36 Pages Posted: 7 Oct 2015 Last revised: 5 Oct 2018
Date Written: August 5, 2015
Ancestral land is deemed to be part of community land under article 63 of the 2010 Constitution of Kenya, with persons entitled to interests in such land being ‘identified on the basis of ethnicity, culture or similar community of interest.’ There is, however, uncertainty on the criteria for identifying ancestral land, and in the absence of interpretative guidelines, the concept can contribute to ethnic tension and conflict. Therefore, despite the critical necessity of addressing historical injustices, a liberal interpretation of the concept of ancestral land is a recipe for ethnic tension and conflict. In addition, there are other equitable mechanisms for addressing the historical land problems of mainstream communities. However, the concept of ancestral land is an essential principle in safeguarding the land rights of the indigenous communities. Indigenous peoples are generally disadvantaged and require special legal safeguards with regard to land rights. An examination of emerging practice in Kenya indicates that even the constitutional concept of ancestral land has not prevented forced evictions of indigenous communities from their traditional land. They include cases involving the Endorois, Ogiek and Sengwer communities.
This chapter is, therefore, based on the thesis that the concept of ancestral land should be interpreted in the context of indigenous peoples in order to consolidate a coherent legal, policy and institutional regime of safeguarding the rights of indigenous communities. It examines the concept of ‘indigenous peoples’ and their right to their traditional land, and proposes that the interpretation of the constitutional concept of ancestral land in Kenya requires a human rights based approach rather than just the notion of aboriginality and nativity. The chapter also justifies special and differential treatment of the indigenous peoples in the State’s management of land resources.
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