THE CASE FOR THE
RECOGNITION AND PROTECTION OF THE RIGHTS OF KENYA’S INDIGENOUS PEOPLES
MEMORANDUM TO:CONSTITUTION OF KENYA REVIEW COMMISSION
PREPARED BY: THE PASTORALISTS & HUNTER-GATHERERS ETHNIC MINORITY NETWORK
PRESENTED ON MONDAY 15TH JULY 2002, NAIROBI
This memorandum has been prepared and submitted to the Constitution of Kenya
Review Commission by members of pastoralist and hunter-gatherer communities in
Kenya. Pastoralists and hunter-gatherers (PHG) have identified themselves as
indigenous peoples owing to their culture, relationship and spiritual
attachment to their ancestral and traditional territories, in Kenya, and seek
to have the new Kenyan Constitution recognize them as such.
THE PROPOSALS AT A GLANCE
1. There shall be a constitutional Commission to address historical injustices.
2. This Constitution shall obligate the State to recognize the rights of
indigenous peoples as stipulated by various international instruments and
standards, specifically, ILO Convention 169, the United Nations Declaration on
Persons belonging to Ethnic Minorities, the International Covenant on Civil
and Political Rights, amongst others, mentioned in this memorandum.
3. The question of locus standi requires a more liberal construction with
regard to an individual’s prosecutorial powers on behalf of the community.
4. This constitution shall guarantee that each ethnic community’s history
and identity, culture and habit, language, religion and rights shall be
respected fully and equally.
5. This constitution shall not only protect civil and political rights, but
also economic, social and cultural rights as well. We propose that the
standards provided under the International Covenant on Economic, Social and
Cultural Rights and International Covenant on Civil and Political Rights ,
specifically article 27 thereof be adopted:
6. Primary and Secondary Education shall be made mandatory and free, and this
constitution shall place an obligation on the state to ensure the recognition
of special needs of indigenous peoples children.
7. Human Rights Education should be mandatory, at all levels of education.
8. This Constitution shall establish a Human Rights Court to redress human
9. There shall be a devolved power structure of the government with the region
as the power. Consequently the boundaries shall be worked out to reflect this
10. There shall be two chambers of parliament at the National level, one at
the region and a community council at the ethnic community level.
11. Alternative Dispute Resolution (traditional methods of conflict resolution
shall be strengthened in the constitution and shall run alongside conventional
12. The Office of Ombudsman for Minorities shall be constitutionally
provisioned for to deal with administrative disputes.
Kenya’s Constitutional reform process is earnestly underway. Currently, the
review Commission is collecting and collating the views of Kenyan’s on a
wide array of issues – of social, economic, cultural and political character.
As individuals and in groups, Kenyans are making known their considered views
and proposals for reform. It is not lost on Kenyans that this is a unique
moment availing in its wake opportunities to correct historical wrongs and to
give effect to the values, aspirations and equities of both the present and
the future generations.
Throughout this document, the terms “Pastoralists and Hunter-Gatherers”
will be identified as indigenous peoples, in reference to and as conceived and
adopted under the International Labour Organization Convention (ILO) No. 169
of 19891. These peoples in Kenya include the Maasai, Samburu, Turkana, Ogiek,
Sengwer, Terik, Orma, Wardei Somali, Borana, Rendille, Sanya, Ellmollo, to
name but a few.
This memorandum is, to a large extent, informed by the provisions of the
International Labour Organization (ILO) Convention No. 169 of 1989 (herein
after “the ILO Convention No. 169”) and also by the deliberations of the
Conference on Strengthening the Participation of Pastoralists and Hunter
Gatherers Communities in the Review Process held in November 2001. The former
is the foremost International policy instrument on indigenous and tribal
peoples while the latter provided a domestic context for a detailed discussion
of these issues. While it should be noted that Kenya is not a party to
Convention 169, the Convention reflects best contemporary practices on the
issue of indigenous peoples’ rights, hence our reliance thereon.
Apart from these, this memorandum is also informed by several other
international standards, some of which Kenya is party to by way of having
ratified them. These include, but are not limited to, the International
Covenant on the Elimination of all Forms of Racial Discrimination (ICERD), the
International Convention on Economic, Social and Cultural Rights, Convention
on the Rights of the Child, the Convention on the Prevention and Punishment of
the Crime of Genocide, the UNESCO Convention Against Discrimination in
Education, the UNESCO Declaration Against Race and Racial Prejudice, and the
Declaration on the Rights of Persons Belonging to National or Ethnic,
Religious or Linguistic Minorities adopted by the UN General Assembly in
December 1992, the Convention on Elimination of Discrimination Against Women (CEDAW),
and the International Covenant on Civil and Political Rights (Article 27).
2.0. THE PREMISES
The Constitutional review process should recognize the fact that Kenyans
generally, and PHG communities in particular, have suffered historical
injustices, to wit:
1. Human Rights abuses;
2. Forced Displacements from their ancestral lands
3. Discrimination in many areas of their lives
4. Exclusion in the decision-making process especially in the areas that
directly affect their lives.
Consequently, it is the view of the PHGEMN that the new constitution provides
for a mechanism to audit our past by redressing the grievances arising
therefrom. Our submission is that such historical injustices date back to the
Our Proposal is thus that there be established a Constitutional Commission
whose mandate will be to ascertain the nature and extent of the historical
injustices and quantify them. This constitution should establish a Trust Fund
to compensate the victims and underwrite the costs of the Commission. The said
Commission will have the power to issue orders for either reparation or
restitution depending on the circumstances of each case. We recommend that the
life of this Commission be four (4) years from the time of its formation.
In view of the foregoing, it is thus imperative that we glance at the premises
on which we shall proceed, in view of our past:
a. That the current Constitution does not address the specific situations,
characteristics and needs of Indigenous peoples. This explains why they are
the most impoverished and disadvantaged groups in Kenya.2
b. That the current Constitution of Kenya recognizes people only as
individuals; not as communities. This arrangement is not fair to PHG
communities who view themselves fundamentally as such in the first instance.
Hence, there is need to strike a balance between the place of the individual
and that of the community.3
c. That Constitutional provisions and laws relating to land are inherently
biased against traditional/customary land rights and/or interests of these
peoples. Further, that the thrust of official policy has been to
systematically replace communal systems of land tenure with individual land
tenure in utter disregard of the unique lifestyle of PHG communities and the
negative consequences engendered thereof. This constitution should as a
consequence guarantee effective protection of the rights of ownership and
possession of the ancestral lands of PHG communities, in terms of Article 14
of ILO Convention 169 of 1989.
d. That certain unfettered constitutional provisions have undermined communal
e. That PHG community groups have variously been subjected to discriminatory,
ambiguous and double standard treatment in respect of their identity and
* The Indigenous Peoples
The lifestyle of PHG communities is essentially nomadic, involving movements
of groups from one place to another, usually in the search for greener (better)
pastures for their livestock. Others, however, are hunters and gatherers-
their dwelling places being forest areas of the country. The latter rely on
the forests for their food, shelter and clothing. Further, the forest is their
theatre for cultural and religious activities. It is evident from the
foregoing that the occupations of these communities are informed by the
climatic conditions prevailing in their areas of abode.
To the indigenous and tribal peoples (ITPs) the world over, land and
territorial claims are rooted far back in history predating the establishment
of the modern nation-state. Their demands are usually underpinned by the
notion that they have special claims to the land, first because their unique
relationship with the land and the environment is necessary for their survival
as culturally distinct peoples and second, because their rights over these
lands and resources were never ceded to the state.4
Articles 13 to 19 of the ILO Convention No.169 contain provisions regarding
land rights. The basic provisions on land rights contained in the Convention
is in Article 14, which requires that the rights of ownership and possession
of peoples concerned to the land they traditionally occupy shall be recognized.
This wording makes it clear that rights do exist whenever lands have been
traditionally occupied. The article also requires governments to take steps to
identify the lands that ITPs traditionally occupy and guarantee effective
ownership of their rights to ownership and possession. While the principle of
non-retroactivity with respect to law should hold good, this constitution
should create a Lands Claims Court to provide redress on claims arising from
loss of territory, as shall be hereafter provided.
One common thread that runs through PHG communities is their notion of land
rights. To these people, land and whatever is attached thereto, does not
belong to an individual but to the whole community. Despite the introduction
and adoption of modern forms of land tenure, which lays emphasis on individual
ownership with the concomitant notion of absolute and exclusive use and access
to land by individual owner, African customary law - which governs Indigenous
peoples - recognizes only one kind of land tenure – communal land tenure.
Under communal land tenure, collective resources are managed by entrenched
norms in consequence of which there is free and open access. However, this
access is protected and conserved.
In Kenya, however, the system of private (individual) ownership of land is
dominant. It is one of the most enduring legacies of colonialism. This is not
because most land is privately owned but because the economic and financial
systems are premised on the basis of individual tenure. It neither recognizes
nor is it geared towards customary tenure that is the dominant, if not
exclusive mode of land tenure among the PHG communities.5
For quite some time now, the prevailing argument has been that these
communities have neither developed a system of land tenure, nor a clear
concept of land ownership. On the contrary, nothing could be further from the
truth; there can be no grass nor a tree flourishing in the air – meaning
that land is not only of paramount significance but also that it is
indispensable when it comes to sustaining the livelihoods of the members of
It is noteworthy that the communities thus owned land communally. Land being
communal or a common property of all the members of a particular community, it
was thus accessible to all members of that particular community and no
particular person could claim supreme rights over the community. This, part
from easing the accessibility to everyone to the land for its use, it is
imperative to note, contributed to a very large extend, to communal cohesion.
Thus one’s rights over land in PHG territories were usufructory and never
* Indigenous People and the Constitution
Chapter IX of the current constitution addresses customary land rights. In
Kenya, apart from land, which has been privatised, land is known as either
trust land, pursuant to the Trust Lands Act, or government land, pursuant to
the Government Lands Act.
Control of Trust land according to Sec. 115(1) of the constitution “vests in
the county council….” The council holds the trust land vested in it for
the benefit of persons ordinarily resident on that land and “shall give
effect to such rights, interests or other benefits in respect of the land as
may, under African customary law for the time being in force and applicable
thereto and vested in any tribe, group, family or individual.”
This apparent position of strength vested on African customary law by the
constitution is watered down; however, by firstly the proviso thereof being
Sec.115 (2) of the constitution which contains a repugnancy clause that in sum
subordinates African customary law to any other written laws. This position is
extraordinary in view of all contemporary international law, which provide
that subordination of customary practices should be limited to those practices
that violate international standards of human rights. Article 8 of ILO
Convention 169 is instructive in this regard.
Secondly, subsequent provisions namely Sections 113, 116 and 118 further erode
the strength and place of customary law in the constitution and laws of Kenya
by in effect allowing for the creation of any written law to supercede
customary rights.6 The existence of this provision in the paramount law gives
legality to actions by local county councils with the support of the
government to simply and arbitrarily invoke the provisions of the Trust Lands
Act to justify usurpation of the PHG communities’ lands for the expedient
ends of the local council and government. This unjustifiable distinction
between systems is discriminatory.
We would also like to note here that while the Group Representative Act (Cap
287), Laws of Kenya, sought to recognize and domesticate, by legislation, the
concept of communal land ownership, it failed dismally.
This failure is largely attributable, according to Keriako Tobiko,7 to the
Act’s foundational premises being faulty. He argues that: “… these
objectives … were postulated in total ignorance of the conditions prevailing
in Maasailand….” He posits that the Act has had negative effects on the
Maasai People, namely territorial fixing and confinement of people within a
group, illegal land dispossessions and transactions, social stratification and
increased differentiation, lawlessness and general social disharmony.
While we, therefore, commend the attempt at legislating the concept of
communal ownership of land especially the tacit acceptance that such a system
was sustainable, recommend that the said Act be repealed by the new
constitution. Instead, it is our recommendation that each community devises a
land tenure system that will serve better the interests and aspirations.
In sum, there is need to give formal recognition through unqualified
constitutional entrenchment and juxtaposition of customary and modern land
tenure. 8 Customary laws ought to be put at par with written laws firstly by
removal of the so-called repugnancy clause and clear unequivocal unqualified
entrenchment of its salient features in the constitution. Recent examples from
Australia illustrate the different approaches adopted to facilitate the
practise of customary land rights. In this instance, traditional land tenure
arrangements aimed at preserving the traditional lifestyles of the aborigines
has received judicial sanction in ‘Mabo vs The State of Queensland’ (A.L.R.
Besides the notion of trust lands, Indigenous peoples in Kenya have lost
territory through the Government Lands Act which has been used to declare some
of their land “waste and unoccupied.” This provision originated from the
Crown Lands Ordinance of 1907. While indigenous peoples use of land is
collective and not tied to one place throughout the year, it is not true to
say that such land, is vacant merely by reason of non use at a particular
By virtue of the Act, all land that is un-alienated is government land and is
vested in the president. This legal situation does not embody any notion of
trusteeship and has engendered a crisis in land tenure.
The last few years have witnessed an uncontrolled privatisation of public land
in Kenya- through presidential grants and setting apart of lands by county
councils. The acquisition of thousands of hectares of Maasai territories for
national parks and animal sanctuaries without compensation nor consultation
and the unilateral excision of large chunks of forests, the dwelling place of
the Ogiek, without their involvement are trite examples.
* Indigenous Peoples and the Courts – The issue of locus standi
The Kenyan legal system links the ability of individuals or groups to file
suits in the courts to their private property interests. In the 1989 Wangari
Maathai vs-Kenya Times Media Trust Case, it was held that for an individual to
bring a suit, she or he has to establish an injury to herself or himself over
and above the injury that would be caused to the general public. The only
person with the competence to institute such proceeding is the Attorney
General. Consequently, it is paramount for individuals interested in pursuing
communal rights to mobilize interest and commitment within the community at
large – a test which to say the least is very onerous.
Certainly, then, the question of locus standi requires a more liberal
* Indigenous peoples and the Environment
It has been argued that if property rights are defined and clearly and
exclusively assigned, then land users will have an incentive to take care of
their land resources and use them in a socially optimal way. The popular
notion is that the open access system characteristic of African customary law
vis-a- vis land rights is inimical to the concept of environmental management
The reasoning here is that where the rangelands are free and open to all
members of a community or group, then the basic drive of every group will be
to reap the most out of the limited resources inevitably leading to
environmental degradation. On the other hand, it is argued that, individual
tenure naturally induces a sense of responsibility given that the consequences
whether good or bad is distributed to the individual and not to a large group.
Proponents of this argument do not give credit to peoples traditional methods
Indigenous peoples’ traditional systems embodied communal institutions that
managed rangelands or collective resources. In consequence, free and open
access is restricted and over exploitation of those resources rarely occurs.
Thus arguments in favour of enclosing and privatising the commons become
* Identity and Indigenous Peoples
Kenya is a creation of the imperialist process and it is the present home of
diverse ethnic entities and nations, whose consents were never sought when its
borders were erected. Yet the reality of its existence must be acknowledged
and accepted notwithstanding the faulty historical genesis.
It is important for PHG ethnic communities to be named and specifically
identified within the constitution as groups forming the Kenyan State and
owing allegiance to it.
This will mean that ethnic groups as constituent parts of the Kenyan state
will be recognized and will no longer be submerged under a “Kenyan identity”
which only reflects the cultures, history and traditions of the dominant
* Bill of Rights
There exists within the current constitution a strong protective regime of
civil and political rights. Eliminating the claw-bar clauses should strengthen
Secondly, it is the view of pastoral and hunter- gatherer communities that
there should be a greater emphasis on economic, social and cultural rights. We
propose that the standard provided under the International Covenant on
Economic, Social and Cultural Rights be adopted:
* Right to work
* Right to Education
* Right to take part in cultural life
* Right to development
* Environmental Rights.
* Right to participation in public life through voting, consultation and
The fundamental rights and freedoms specified should be interpreted in
conformity with the principles of the Universal Declaration of Human Rights,
International Covenants on Human Rights and International Instruments adopted
Customary International Law should be part of the Law of Kenya, and
Any violations of human rights shall be dealt with by the Human Rights Court,
which should be established by the constitution.
This constitution should place a positive obligation on the state to ratify
and domesticate all the international human rights instruments, which are not
inconsistent with the tenor and spirit of this constitution, and specifically
the ILO Convention 169 of 1989, which directly relates to the Kenyan tribal
2.0 STATE STRUCTURE AND DEVOLUTION OF POWER
Fact. There is immense concentration of power in the presidency.
Fact. There is a strong centralized decision making structure.
Fact. There is little participation by the people on the ground, in
government, civil service and public life generally.
The question is, can participation of minorities be assured without spatial/
territorial devolution? Should we have a community of Nations as in the
Ethiopian case or a unified state with a strong emphasis on common citizenship?
Do we have enough financial resources to support a devolved structure? Do we
have the requisite administrative capacity/skills? What will be the unit of
devolution? What will be the boundaries? Is devolution consistent with
globalization and regional economic interests?
In view of the above issues, it follows that Kenya needs a devolved power
structure, which shall encompass the principles of participation and
consultation of indigenous peoples in the decision-making processes, by use of
their own traditional structures and political and social institutions
particularly at the local level.
It is, therefore, the proposal of PHG Communities that this constitution
adopts an ethnic based federalism.
It is thus our proposal that the boundaries be redrawn, in the following
* Rift valley be divided into three regions: (1) The North Rift, taking the
current Turkana, Pokot Sengwer, Tranzoia among others in the area; (2) Central
Rift, Kalenjin Districts of Nandi, Kericho, Bomet, Keiyo Koibatec and Baringo.
(3) South Rift include all Maa speaking groups of Narok, Kajiado, Transmara,
Laikipia, Nakuru, Samburu and the entire area occupied by the Ilchamus and
other Maa speakers of Baringo District.
* North Eastern should also be divided into two regions: North Eastern region
and Northwest region. The Northwest region shall be occupied by the Borana
Randile and others. NorthEastern will be occupied by the Kenyan Somali.
* Eastern region This shall comprise all the area occupied by the Kamba
* Mount Kenya region This shall include the entire areas historically occupied
by the Kikuyu, Embu and Meru communities.
* The Coastal region
* Nyanza province shall be divided into Luo Nyanza and Kisii
For the purpose of homogeneity, and proper participation of all communities,
district boundaries should be redrawn to take cognisance of the ethnic/tribal
homogeneity. That means that where communities are interspersed into different
districts, these boundaries should be redrawn to put them back into one
administrative zone. For instance, the Sengwer who are today found in three
different districts should be regrouped together. Marigat should be curved out
of Baringo and put in the Samburu administrative zone.
2.1 Executive arm of the government
There shall be two levels of executive powers National and Regional.
a. Executive - National Powers
* The Executive shall comprise of the President, Vice President and Cabinet
ministers, all of whom shall be non-parliamentarians.
* All cabinet ministers shall be professionals in their respective fields,
with at least a diploma level of education or its equivalent.
* The president shall be the head of State and government and shall be
entitled to hold office for a maximum two-four year terms. He/She shall be
elected on a common roll basis by all Kenyans in a presidential election.
* The Vice president shall be a running mate of the President and shall be the
deputy chief executive of the republic.
* The president and his running mate shall be holders of a bachelors degree
from a recognized university or its equivalent.
* There shall be fourteen ministries as may be decided by both houses of the
national assembly, four of which shall be reserved for special interest
* The ministers shall be appointed by the President but the appointments shall
only become effective upon ratification by the Senate.
* No person who has ever been elected president or otherwise been president of
Kenya shall be eligible for election as such president under the new
* Any Kenyan of sound mind and health, 30 years and above shall be eligible to
vie for these offices.
b. Executive – Regional Executive
* The regions shall be the basic unit of decision-making.
* The country shall be divided several semi-autonomous regions, the boundaries
of which shall clearly defined by the constitution.
* Each region shall be headed by a Regional President elected by the members
of the given constituencies on a common roll basis for a maximum period of two
four (4) year terms only.
* Each region shall have an elected deputy president who shall be in office
for a similar period as the regional president and shall the deputy chief
executive of the region.
* The deputy regional president shall be elected by virtue of his/her being
the running mate of the winning regional president.
* The regional president will put in place a civil service, headed by
departmental heads, and approved by the respective regional assemblies.
* The regional executive shall have the powers to negotiate for development
assistance from outside the country, and also solicit investments.
* Regional departmental heads will be in line with the national ministries
* The President of the republic shall not exercise any control over any
resource, issue, project, programme of a region, save that such control has
received the sanction of the specific regional assembly.
* Any Kenyan of sound mind, 30 years and above shall be eligible to vie for
these offices and they shall holders of a form four certificate from a
recognised institution or its equivalent
In view of the importance of the legislative power and therefore Parliament,
some countries have found it appropriate to introduce constitutional
provisions aimed at ensuring that Parliament acts as a check on itself without
relying on the other arms of the government. Establishing two Houses of
Parliament or bicameral legislature does this. The idea is to divide
legislative responsibilities and powers between these two houses in such a way
that each House is responsible for specific functions. In addition, certain
bills can only be passed after being subjected to debate and approved by both
Houses. This is the practice for example in the US where certain bills from
the House of Representatives can only pass if they receive the required
majority approval by the senate. A similar situation obtained in Kenya during
the brief life of Majimbo constitution, which provided for two Houses of
Parliament, namely the Lower and Upper House. Britain also operates a
bicameral legislature. It is thus an arrangement that works under unitary as
well as federal system of government.
The division of power between two Houses of Parliament is important for
another reason. It makes it possible to arrange the sessions of Parliament in
such a way that this arm of the government is always in session. This is not
common or easy in unicameral systems because under such systems parliament
ceases to function when it is in recess or when it is prorogued. This is an
understandable situation precisely because of the importance of legislative
and other functions of parliament. One of the dangers of a situation in which
parliament ceases to function is that its functions may be taken over by the
executive who may go on to misuse such powers. Details of ensuring that one
House is always in session can be worked out. Suffice it to say at this point
that it can be achieved by staggering the election timetable of the Houses so
as that they are not elected at the same time. Again the US provides a good
example of this kind of arrangement.
The other advantage of a bicameral legislature for an ethnically divided
country such as Kenya is that it can make it possible to have equal
representation of ethnic groups in parliament. One of the Houses could be set
aside for ethnic representation. Requiring that the Upper House be made up of
equal number of representatives from each ethnic group can achieve this equal
ethnic representation. Representatives to this house may be selected or
appointed based on an agreed upon criteria. The bicameral arrangement is an
arrangement that we believe is worth exploring in Kenya irrespective of the
governmental structure that is finally adopted.
It is proposed that at the National level, there be two houses of parliament,
namely the House of Representatives and Senate, which at the Districts, namely
the House of Representatives and Senate, while at the Districts legislative
power be vested upon the District council.
a. The House of Representatives
* It shall legislate on all matters of national importance.
* Members shall be elected from each constituency in the country on a common
roll. The constituencies should be named in the constitution.
* For one to qualify to vie for this position, among others, one shall be
required to have at least a diploma level of education, or its equivalent.
* Any Kenyan of sound mind and health, of 25 years of age and above shall also
be eligible to vie for any of these positions.
* The constitution shall provide for affirmative action for special interest
groups and specifically PHG Communities.
b. The Senate
* This shall be the upper house of the national assembly.
* This upper house will act as a check on the lower house, and shall have the
power to overturn decisions of the lower court by a vote of at least 70 per
* Each community will be represented by one person elected by members of that
* The senate shall be guided in resource and budgetary allocations by the
Financial and Fiscal Commission, and shall legally enact these provisions.
* For a bill to be a law, it must garner the support of 60% of the Senate and
House of representatives.
* Constitutional amendments would require the support of 70% of both the
senate and House of Representatives.
c. The regional parliament
* Members shall be elected on a universal franchise, within the province.
Electoral areas shall basically form the current constituencies.
* Where possible, the current constituencies shall be redrawn to represent
* All areas of representation shall be scheduled both in the national
constitution and the regional legislatures.
* The regional assembly shall be headed by an elected speaker, and shall
comprise of at least thirty members,
* It shall enact Laws to regulate any issue pertinent to the given regions,
except Defense, Diplomacy/ International obligations.
d. Community Councils
* Community councils shall be in charge of their local jurisdictions as shall
be scheduled by the constitution.
* Election to the community council shall be by way of universal franchise
within the respective community.
* Community councils shall sanction and implement community projects.
* Any member of the respective community of sound mind shall be eligible to
vie for any of these positions, provided that he /she will be at least 18
years of age or above.
NOTE: All elective positions shall be part time jobs where no salary and
pension should be expected. It is supposed to service to the country and no
more than that. This means that only these interested in assisting fight the
plight of their people will offer themselves for these positions. The
Constitution should thus provide that no constitutional amendment shall be
made to this effect whatsoever.]
2.3 The judiciary
There shall be a Judicial Service Commission, the members of whom shall be
proposed to the Senate and House of Representatives which shall choose and
forward them to the President for appointment.
* There shall be a supreme court of seven Justices who shall be appointed by
the President from two names forwarded by the Judicial Service Commission and
below it shall be the Court of Appeal, headed by the Chief Justice, below whom
shall be High Court of such number as may be appropriate.
* Each Region must have, constitutionally, a Resident Judge.
* The Supreme Court Justices shall elect one of their own to be Presiding
Judge for a non renewable term of five years.
* Among other issues of national concern, the Supreme Court shall hear and
determine all inter-regional conflicts, where Alternative Dispute Resolution
mechanisms shall have failed.
* The Supreme Court shall have no original jurisdiction, apart from the
* There shall be a National Prosecutor and Deputy National Prosecutor to be
chosen by the Judicial Service Commission which shall recommend 4 persons (two
men and two women) to the President who shall appoint two of them with due
regard to gender balance.
* There shall be a Lands Claims Court, an Economic Crimes Court and a Human
Rights Court. Traditional Customary Law shall be the guiding principle in all
matters relating to the person and lands, and shall take precedence over any
The traditional methods of conflict resolution, in particular Alternative
Dispute Resolution Mechanisms shall be strengthened by the constitution and
shall run alongside conventional law. However, care should be taken to close
all the loopholes that have been used for abuse of the system in the past.
Moreover Court System cannot by its very nature handle all complaints. This is
mainly because the Judiciary is a passive institution, and as such, it cannot
take the initiative in protecting the citizen from this abuse. Highly
technical rules, illiteracy and poverty seem to have joined hands to worsen
this abuse for the increasingly vulnerable ordinary person.
Against this backdrop, it is therefore, proposed by us that the new
constitution adopts the position of the Office of Ombudsman for Minorities.
The Office of the Ombudsman on Minorities shall be created by Parliament, and
the occupant to such an office shall be required by law to be answerable to
Parliament by way of submitting the Annual Reports.
The Ombudsman will not come as a usurper or supplanted of the Judicial/Parliamentary
arrangement but as a supplemental thereto. “Just as the Auditor-General has
served parliament in its function of financial control, the Annual Reports
from the Ombudsman should prove useful to parliament in its function of
citizens’ protection … as the Ombudsman will be the auditor of human
3.0 RESOURCE ALLOCATION
* All government land and Trust Land shall be surrendered to the local
community in which it is situated and the community shall devise appropriate
land tenure system.
* No such community land shall be sold or mortgaged.
* The community council shall levy taxes on land products and shall remit 20
per cent, and 10 per cent of the same to the Regional and Central Government
* Land Control Boards in Pastoralist and Hunter-Gatherers areas should be
* Accounting mechanisms shall be put in place to ensure the functionality of
such Community Councils.
* Any dispute relating to government land and Trust Land shall be referred to
the Lands Claims Court.
* Section 143 of the Registered Lands Act should be repealed.
* Section 75 of the current constitution should be amended so that it does not
protect property acquired irregularly.
b. Game Parks, Flora & Fauna
* Shall, remain the property of the local communities within which it is
* 20 per cent and 10 per cent of the revenue from the parks shall be remitted
to Regional government and Central Government respectively.
* The local community should be incorporated into the management of the game
* Any loss of life
* The laws of trespass should be abolished
* Natural energy shall vest in the community
* Power stations shall be joint property of the community and investor, and
the first beneficiary thereof shall be the community within which they are
* There shall be a National Electricity Board for the national power policy
purposes, which shall also assess the environmental impact of any power
generation project and advise accordingly.
d. Forests and environmental management
* Shall remain the property of the community. This is because in many
countries full indigenous ownership of forest land has been granted to
indigenous people. (See 1974 Native Communities Act of Peru).
* National and regional environmental councils shall supervise exploitation
and conservation in consult with local communities.
* The local community shall participate in the conservation and management of
the forests within their territories
* All projects shall be evaluated to satisfy the environmental standards.
* All forestland, and any other land, excised since 1963 must revert to the
community in which the forestland is situated.
* International Airports to be national property. All revenue to central
* Shall remain the property of the regions where they are situated.
* 30 per cent of revenue to go to the Central government.
* Shall remain the property of the local communities and shall only be
exploited after adequate consultation with the relevant community and with
informed consent by members of that community. This is not unusual. For
instance under the 1984 Western Arctic claim, the Inuvialuit people were
granted full surface and subsurface rights. Access for development for
subsurface development was guaranteed and the people had the right to
negotiate participation agreements with prospective developers. (See ILO
partial revision of ITP Convention No. 107, report V1(1) ILO conference 1988).
* This constitution shall invalidate all contracts entered into by the Kenyan
government and any mining company in Kenya, and direct that such contracts be
entered into afresh with the communities concerned, under the direction and
supervision of their respective regional governments.
* 50 percent of the revenue shall be used to improve the living standards of
the community in the area where mining activity is situated with 30 per cent
going to the regional government and 20 percent to the Central government.
* The education curriculum shall be Multi-lingual/Multicultural with specific
emphasis on the needs of indigenous peoples children.
* Primary and Secondary education shall be free and compulsory
* There shall be a National Education Board enacted, which shall determine the
educational policy, curriculum and all other matters of national concern.
* An education levy shall be levied by the Central Government on all employees
of the private and public sector and the corporate sector to underwrite the
education cost of the state.
I. Public Finance
* Enhanced taxation and expenditure powers and responsibilities to be vested
in the Local Authorities. Central government to provide audit, supervisory and
monitoring services to ensure that resources are used transparently and
services are delivered are qualitative. But the circumstances of central
government interventions must be coded in law to avoid arbitrary interventions.
* There shall be a Constitutional Financial and Fiscal Commission that will
handle the physical resource allocation, and equalization to the regions.
* The decisions of the Fiscal Commission shall be binding, and shall duly be
legislated Chambers of the national assembly.
4.0 THE ELECTORAL COMMISSION
1. There shall be an electoral commission that shall undertake and supervise
the electioneering process in Kenya.
2. The electoral commission shall also review all the boundaries in view of
the changes herein proposed.
3. The electoral commission shall work on a permanent basis and shall cause to
be registered as voters all qualifying Kenyans.
4. The members of the Electoral Commission shall enjoy tenure of office.
5. Decisions of the Electoral Commission on boundaries shall be refereed to
the regional Assemblies for review and if found in order, passing.
5.0. TRANSITIONAL ARRANGEMENTS
1. This constitution shall run for a period of five years, within which period,
a continuous national audit shall be taken and advice given.
2. Any part of this constitution shall be amended within the period of five
years, by virtues of national constitutional conferences, and failing of the
conferences to agree, by virtue of a referendum, supported by at least 75 per
cent, per region, of three quarters of all the regions in Kenya, by the time
of such a referendum.
3. The Constitution of Kenya Review Commission shall remain in office for the
said period of five years, after which time it will hand over to an enacted
In witness whereof, representatives of Pastoralists and Hunter-Gatherer
communities in Kenya hereby append their respective signatures, this 15th day
of July 2002.
Signed on behalf of the MAA COMMUNITIES BY: ………………………..
Signed on behalf of the HUNTER-GATHERER COMMUNITIES
Signed on behalf of NORTHERN PASTORALISTS BY: ………………………
Signed on behalf of the PHGEMN BY: ……….…………………..
1 Article 1.1 of I.L.O Convention No. 169
2 Project to Promote ILO Policy on Indigenous and Tribal Peoples (2000.)
Traditional Occupations of Indigenous and Tribal Peoples: Emerging Trends.
International Labour Office, Geneva
3 See a Kenya Human Rights Commission Paper by Willy Mutunga, The Ogiek, p. 11
4 See Paper by Centre for Minority Rights and Development (CEMIDE) on Civic
Education p. 2
5 See Camilla Tollman and Julian Quan, “Evolving Land Rights, Policy and
Tenure in Africa”, 2000, p. 7
6 See paper by Isaac Lenaola, Land Tenure in Pastoral Lands
7 See Keriako Tobiko’s LLB dissertation (unpublished) University of Nairobi
8 Supra 5 p.127
9 George Rukwaro, A case for the office of the Ombudsman in Kenya (unpublished)
PREPARED BY THE PASTORALISTS AND HUNTER- GATHERER ETHNIC MINORITIES NETWORK (PHGEMN)
AS MANDATED BY THE 2001 NOVEMBER NATIONAL CONFERENCE