The Special Rapporteur on the situation of human rights and fundamental freedoms of indigenous people visited Kenya from 4 to 14 December 2006 at the invitation of the Government of Kenya. The Special Rapporteur's report (A/HRC/4/32/Add.3) submitted to the 4th session of the Human Rights Council in March 2007 brings to the fore several disturbing issues about the conditions of the indigenous peoples of Kenya.
Some of the key findings of the Special Rapporteur are summarized below:
I. Lack of legal recognition
There are 42 tribes who are recognized as indigenous peoples in Kenya. They are either the pastoralist communities such as Endorois, Borana, Gabra, Maasai, Pokot, Samburu, Turkana, and Somali or the hunter-gatherer communities such as Awer (Boni), Ogiek, Sengwer and Yaaku. But the 1989 national census had not recognized many smaller pastoralist and hunter-gatherer communities such as El Molo, Watta, Munyayaya, Yakuu, and other small groups such as Sabaot and Terik as separate tribes.
Lack of legal recognition resulted in further social, political and economic marginalization of the excluded hunter-gatherer and pastoralist communities. They do not figure in the national scheme of things.
The indigenous peoples do not have proportionate political representation at the national or provincial levels or participation in local decision-making processes.
II. Rights to land and resources
The present policy of sanctity of the title provides that first registration of land title cannot be challenged in court regardless of fraud or mistake committed at the time of taking over the land from the first owner. This has led to widespread displacement of indigenous peoples from their lands in the Rift Valley and Kajiado district. The pastoralists in the north and north-eastern regions are also facing potential threats of displacement.
Although the Kenya Government terms the indigenous and minority groups as "minorities", "marginalized" or "vulnerable communities", historical injustices committed against them have not been rectified in independent Kenya. The Maasai indigenous peoples lost one third of their territory through coercive treaties in 1904 and 1911 imposed by the colonial regime. But these lands have not been restored to the Maasais. As of today, 75 per cent of the occupied land still remains in hands of the European owners in Laikipia District.
III. Displacement due to wildlife conservation policies
Wildlife conservation and preservation of natural parks are high on the political agenda of the government as wildlife, national parks and game reserves have been major tourist attractions. The government earns 10 per cent of the GDP as direct and indirect revenues from wildlife tourism.
Protected areas cover over 3.5 million hectares or 6 per cent of Kenya's total land area. Majority of wildlife parks and reserves and protected forests are situated in the arid and semi-arid lands (ASALs) areas, which are predominantly inhabited by the pastoralists and hunter-gatherers, and this has been devastating for the livelihood of the indigenous peoples. The indigenous communities do not participate in the management of the parks and reserves. Neither are they benefited from the revenue earned from eco-tourism.
Instead, they have been separated from the wildlife and forests and evicted from their traditional habitats as a result of creation of protected areas.
In unprotected forest areas, settlement schemes, illegal logging and charcoal production have resulted in the loss of the traditional habitat of the forest dwelling indigenous peoples and the indigenous hunter-gatherers.
The Ogiek indigenous peoples were evicted from their traditional habitat as soon as the Mau Forest was gazetted as a National Forest in 1974 without their prior and informed consent or consultation. They have been denied compensation. Since then they have been prevented from hunting or collecting bee honey from the forest. On the other hand, illegal commercial logging continued to take place in the Mau Forest.
IV. Continued human rights violations by the security forces
The security forces have been responsible for arbitrary detention, harassment, torture, rape and extrajudicial killings.
Impunity continued. The security forces who were responsible for killing of hundreds of Degodia Somali at Wagalla in Wajir in 1984 have not been identified or brought to justice.
V. Deplorable socio-economic conditions
The Special Rapporteur mentions that the Kenya UNDP Human Development Report 2001 indicates that the Human Development Index declined from 0.531 in 1990 to 0.514 in 1999. There have been fall in life expectancy, per capita income and school enrolment and the rise in infant mortality and poverty. But as the Special Rapporteur has pointed out, "The Human Development Report does not provide disaggregated data about indigenous people."
Most indigenous peoples live in the arid and semi-arid lands (ASALs) which make up more than 80 per cent of the total land mass of Kenya. More than 25 per cent of the country's population lives in these ASAL areas. The socio-economic conditions of the indigenous peoples are pathetic. Over 60 per cent of the population of the ASAL areas, which are predominantly inhabited by pastoralist sand hunter-gatherers, lives below the poverty line against national average of 50 per cent.
The Special Rapporteur has stated that causes of poverty among the indigenous peoples are "unequal distribution of land and the lack of access to productive resources; the lack of access to and distribution of social services; ineffective development programmes; and the lack of basic infrastructure and marketing opportunities".
The indigenous peoples have been disproportionately denied access to primary education. An estimated 1.7 million children are out of school, out of which marginalized pastoralist communities are the majority. The literacy level for Maasai in Kajiado and Somali in Mandera is only 3 per cent compared with a national average of 79.3 per cent.
Majority indigenous peoples also do not have access to primary health care, due to "distance, lack of transport and essential supplies, and high costs". Although child labour is high among the indigenous communities, this problem has not received government attention.
VI. Violence against indigenous women
Indigenous women face discrimination and systematic abuse from outside and within own communities. Although, female genital mutilation (FGM) was banned in 2001, this is still practised widely among numerous indigenous communities such as the Maasai, Samburu, Somali and Pokot in the name of culture. 34 per cent of women undergo FGM at national level but the percentage in North Eastern Province is as high as 99 per cent.
Customary laws also discriminate against the women. Many indigenous women are denied access to property rights.
Indigenous women also face violence from the security forces, including rape particularly during ethnic conflicts. The police do not always register complaints of rape.
VII. Non-ratification of ILO convention No. 169
Kenya has not ratified ILO Convention No. 169 on Indigenous and Tribal Peoples in Independent Countries. This is a huge set back for the indigenous communities.
The Constitution of Kenya has not recognized the rights of indigenous pastoralist and hunter-gatherer communities and the government does not have any policy or institution to deal directly with indigenous issues.
Some key drawbacks of the Special Rapporteur's report
The Special Rapporteur has missed a few key issues of deep concern on the enjoyment of human rights by the indigenous peoples.
