Indigenous Rights on Land in Kenya

Jesiccah Siimoy, Project Assistant/Volunteer

Indigenous communities solely rely on land and natural resources for their livelihoods and cultural practices. In the past, indigenous communities have faced challenges as their rights to land and natural resources have been undermined.  This has in turn led to the communities experiencing conflict, displacement and destruction of their ecosystem. Formulation of appropriate regulations on the access to land and the associated resources have the potentials of  ensuring the indigenous communities achieve tenure security and solve the issues amongst themselves. In Kenya, the ongoing land reforms have brought about progresses in the recognition of indigenous communities land rights which if well implemented will secure the future of the communities. The following are  some of the major milestones:

Recognition of community land tenure in The Constitution of Kenya and the National Land Policy (NLP) as a legal land tenure regime just as private and public tenure gives the indigenous communities powers to hold and manage their land. The communal ownership gives the indigenous communities a sense of ownership; as they are able to make decisions   relating to land on their own without the influence of the leaders at the different levels. Indigenous Communities are able to practice their cultural activities and use traditional knowledge in the management of land and natural resources. Additionally, Community Land Act enactment has made it easy for communities to register and apply for Certificate of Title thus the indigenous communities do not have to register as a cooperative, group or company. It has considered the customs and practices of the indigenous communities relating to land which include grazing, cultivation, farming, cultural and religious. These practices are allowed as long the indigenous community is registered and the activities are consistent with the principles of sustainable development.

Integration of the indigenous knowledge is provided for in the Protection of Traditional Knowledge and Cultural Expression Act. The protection of the rights of owners and holders of the traditional knowledge is evident in the law. Indigenous communities will be   able to make and adopt its community rules prescribing the procedures for the authorization of the exploitation of their traditional knowledge. The laws allow indigenous communities to register and document their traditional knowledge with the help of the county government.

Women involvement has been an issue of concern at local, regional and international levels with indigenous women being denied ownership and inheritance to land. Most women were only allowed to have access to land but cannot make any decisions regarding control and use. Subsequently, the policies and reforms in the land sector have included women in the ownership, inheritance and decision making on land.  A number of Indigenous women have been involved in the decision making process and public participation forums. This is also evident through capacity building meetings where indigenous women are now allowed to attend.  Additionally, during the implementation of the land laws, women have been included and a notable number of women have been seen championing for involvement of more women.

Public participation and awareness has influenced the involvement of indigenous communities in implementation of policies and laws. Various agencies and institutions mostly non-governmental organizations have been able to capacity build the indigenous communities on the different provisions. For instance, specifically in relation to RECONCILE have conducted several trainings on land laws to the indigenous forest communities and pastoralists. This has played a role in ensuring the communities are aware of their rights and the processes involved in securing the rights to land through the legal means.

Despite these steps being taken, the indigenous communities continue to face challenges regarding ownership and access to land.  For instance, hunter-gatherer communities in Kenya are continually being evicted from their ancestral lands with a claim of conservation of the forests. The pastoralist communities are faced with land grabbing of their community land for the establishment of ranches and development projects such as schools and roads. However, the indigenous communities are looking forward to a future where tenure security will no longer be an issue of concern. Therefore, the implementation of the already enacted laws and enactment of more laws will play a role in ensuring the indigenous communities are securing their land rights.