Kenya: Criminalizing Pastoralists

KANYINKE SENA

Over the last few months, hundreds of indigenous pastoralists have been incarcerated for entering white-owned ranches in Laikipia, Kenya. While the law considers their actions an "invasion," indigenous peoples used these territories as grazing areas long before the state apportioned them to private ranchers. The police have used heavy-handed methods to kick the pastoralists out, including beatings and indiscriminate killing of livestock. After unknown persons, later alleged by the government to be armed herders, shot dead a British rancher in early March, more than 379 pastoralists were arrested. The disproportionate response by police only intensified when the British foreign secretary demanded shortly after the incident that the government of Kenya safeguard the property rights of ranchers.

The conflict in Laikipia raises concerns about institutional injustices for indigenous pastoralists who often lack the means of obtaining legal services. While opinions may differ as to whether the violence was drought-induced or a calculated scheme by politicians to displace the ranchers and take over their land, the resulting detentions of indigenous people represent a clash between Kenya's criminal justice system, colonial property rights regimes, and the customary practices of pastoralist communities.

Property rights in Kenya are based on legal instruments first imposed by the British colonial government in 1897. These laws upheld private property rights over communal property ownership, while dismantling and even criminalizing African customary laws and practices. Based on the doctrine of discovery—established by the U.S. Supreme Court in the 1823 case Johnson v M'Intosh and used by many colonial powers to justify their territorial claims—the British regime automatically took title to the lands it colonized, not recognizing the property rights of the tribes living there. Indigenous peoples were left with the mere right of occupancy. As the sole guarantor of property rights, the colonial power granted large swathes of land to private individuals and allocated other areas for various public purposes, often without consulting with, or considering the effects on, indigenous populations. Anyone, including indigenous communities, who violated the state's property rights regime was held criminally liable.

Post-independence governments in Kenya left British legal codes and jurisprudence in place. Consequently, the legacy of the doctrine of discovery persists and is evidenced in laws like the 2016 Community Land Act, which categorizes large tracts of community and public lands, and in court decisions like the 2012 case Joseph Letuya v. Attorney General, in which the High Court asserted that property rights in Kenya can only be granted by the state.

Kenya's criminal justice system is also expensive for indigenous peoples to access, making it difficult for them to pursue their property rights. In 2015, for example, the Samburu, a pastoralist community in northern Kenya, filed a complaint against retired President Daniel Moi, who they claim stole their land. During the hearing of the case, the Samburu were ordered to hire four helicopters to transport the former president, his lawyers, court officials, and other government administrators to survey the disputed territory. In the colonial-based legal system that continues to inflict grave injustices on indigenous peoples, there is urgent need for reform to make laws responsive to indigenous rights and interests.