THE CASE FOR THE
RECOGNITION AND PROTECTION OF THE RIGHTS OF KENYA’S INDIGENOUS
MEMORANDUM TO:CONSTITUTION OF KENYA REVIEW COMMISSION
PREPARED BY: THE PASTORALISTS & HUNTER-GATHERERS ETHNIC
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
THE PROPOSALS AT A GLANCE
1. There shall be a constitutional Commission to address
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
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
7. Human Rights Education should be mandatory, at all levels of
8. This Constitution shall establish a Human Rights Court to
redress human rights violations
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 reality
10. There shall be two chambers of parliament at the National
level, one at the region and a community council at the ethnic
11. Alternative Dispute Resolution (traditional methods of
conflict resolution shall be strengthened in the constitution and
shall run alongside conventional system.
12. The Office of Ombudsman for Minorities shall be
constitutionally provisioned for to deal with administrative
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
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 colonial period.
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 property rights.
e. That PHG community groups have variously been subjected to
discriminatory, ambiguous and double standard treatment in respect
of their identity and citizen status.
* 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
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 these
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 absolute.
* 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
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. 1992).
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 time.
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
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
Certainly, then, the question of locus standi requires a more
* 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 and
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 of conservation.
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 untenable.
* 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 communities.
* 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 this regime.
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 decision-making.
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 by Kenya.
Customary International Law should be part of the Law of Kenya,
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 peoples.
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
* 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
* 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
2.1 Executive arm of the government
There shall be two levels of executive powers National and
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
* 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
* 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 groups.
* The ministers shall be appointed by the President but the
appointments shall only become effective upon ratification by the
* 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 constitution.
* 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
* The regional executive shall have the powers to negotiate for
development assistance from outside the country, and also solicit
* Regional departmental heads will be in line with the national
* 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
* 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
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
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
* 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 cent.
* Each community will be represented by one person elected by
members of that community
* The senate shall be guided in resource and budgetary allocations
by the Financial and Fiscal Commission, and shall legally enact
* 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
* Where possible, the current constituencies shall be redrawn to
represent ethnic/clan homogeneity.
* 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
* 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
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 appellate jurisdiction.
* 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 other law.
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 relations account.”9
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 respectively.
* Land Control Boards in Pastoralist and Hunter-Gatherers areas
should be abolished.
* 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 situated.
* 20 per cent and 10 per cent of the revenue from the parks shall
be remitted to Regional government and Central Government
* The local community should be incorporated into the management
of the game parks.
* 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 situated.
* 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
* 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
* 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
* 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
* 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
* 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
* 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
5. Decisions of the Electoral Commission on boundaries shall be
refereed to the regional Assemblies for review and if found in
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
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
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 constitutional commission.
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 1987
8 Supra 5 p.127
9 George Rukwaro, A case for the office of the Ombudsman in Kenya
PREPARED BY THE PASTORALISTS AND HUNTER- GATHERER ETHNIC
MINORITIES NETWORK (PHGEMN) AS MANDATED BY THE 2001 NOVEMBER