Indigenous peoples in Kenya
In Kenya, the peoples who identify with the indigenous movement are mainly pastoralists and hunter-gatherers as well as some fisher peoples and small farming communities.
Pastoralists are estimated to comprise 25 percent of the national population of 38.6 million (2009 census), while the largest individual community of hunter gatherers numbers approximately 79,000.
Pastoralists include the Turkana, Rendille, Borana, Maasai, Samburu, Ilchamus, Somali, Gabra, Pokot, and Endorois. They mostly occupy the arid and semi-arid lands in northern Kenya and towards the border between Kenya and Tanzania in the south.
Hunter-gatherers include the Ogiek, Sengwer, Yaaku, Waata, El Molo, Boni (Bajuni), Malakote, Wagoshi and Sanya.
Both pastoralists and hunter-gatherers face land and resource tenure insecurity, poor service delivery, poor political representation, discrimination and exclusion. Their situation seems to get worse each year, with increasing competition for resources in their areas.
No specific legislation on indigenous peoples in Kenya
Kenya has no specific legislation governing indigenous peoples and abstained from the vote when the UN Declaration on the Rights of Indigenous Peoples (UNDRIP) was adopted by the UN General Assembly in 2007. Kenya has yet to ratify the ILO Convention 169 on indigenous and tribal peoples.
Kenya has ratified the International Convention on the Elimination of All Forms of Racial Discrimination (ICERD), the Convention on the Elimination of Discrimination against Women (CEDAW), the International Convention on the Elimination of All Forms of Racial Discrimination (CERD) and the Convention on the Rights of the Child (CRC).
2010 Constitution makes reference to indigenous peoples
The new constitution of 2010 specifically includes minorities and marginalized communities as a result of various historical processes, with specific reference to indigenous peoples.
Chapter Four of the Kenyan Constitution contains a progressive Bill of Rights that makes international law a key component of the laws of Kenya and guarantees protection of minorities and marginalized groups. Under Articles 33, 34, 35 and 36, freedom of expression, the media, and access to information and association are guaranteed.
Article 63 of the Constitution of Kenya guarantees the rights of communities to their lands and territories. It states that community land consists of land lawfully held, managed or used by specific communities as community forests, grazing areas or shrines and that it includes ancestral lands and lands traditionally occupied by hunter-gatherer communities.
Despite these progressive constitutional provisions, indigenous peoples continue to suffer as a result of the state’s lack of compliance with these provisions and with legal rulings on land issues. Moreover, the principle of Free, Prior and Informed Consent (FPIC) remains a pipedream for indigenous peoples in Kenya.