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10 See, for example, L Juma “Reconciling African customary law
and human rights in Kenya: Making a case for institutional reformation
and revitalization of customary adjudication processes”
(2002) 14 Saint Thomas Law Review 505.
11 See report prepared by EI Daes “Indigenous peoples and their
relationship to land: Final working paper” UN Doc E/CN.4/
SUB.2/2001/21(Daes final working paper), 144 para 40-48.
12 Anaya 2004, 142.
13 See part II ILO Convention No 169; Art 26 UN Declaration on the
Rights of Indigenous Peoples; see also Länsman v Finland, Communication
No 511/1992, UN Doc CCPR/C/52/D/511/1992,
para 9.5; see also Human Rights Committee, General Comment
23, Art 27 (55th session, 1994), Compilation of General Comments
and General Recommendations Adopted by Human
Rights Treaty Bodies, UN Doc HRI\GEN\1\Rev.1 (1994) 38,
para 7.
14 See, for example, sec 115(2) and 117(5) of the repealed 1963 Constitution
of Kenya; See also sec 69 Kenya Trust Land Act (Cap
288).
15 ACHPR & IWGIA 2005, 21.
16 Anaya 2004, 142.
17 Daes final working paper, 78; see also “Report of the Special
Rapporteur on the situation of human rights and fundamental
freedoms of indigenous people: Kenya” by Stavenhagen, R.,
Special Rapporteur of the Commission on Human Rights, submitted
in accordance with General Assembly Resolution 60/251,
U.N. Doc. A/HRC/4/32/Add.3, 26 February 2007 (Stavenhagen
Kenya Mission Report) para 25.
18 See the recommendation of the African Commission on Human
and Peoples’ Rights on the case of the Centre for Minority Rights
Development (CEMIRIDE) on behalf of the Endorois Community versus
Kenya, Communication 276/2003, (Endorois case); Endorois
case, para 238.
19 Sec 115 (2) of the Repealed Constitution of Kenya 1963; see also
sec 3 Judicature Act Laws of Kenya Cap 8: The High Court, the
Court of Appeal and all subordinate courts shall be guided by
African customary law in civil cases in which one or more of the
parties is subject to it or affected by it, so far as it is applicable
and is not repugnant to justice and morality or inconsistent with
any written law, and shall decide all such cases according to substantial
justice without undue regard to technicalities of procedure
and without undue delay.
20 Ibid.
21 The only law purporting to legitimize communal land tenure is
the Land (Group) Representatives Act which, as will be illustrated
in the next section, is in real terms a formal extension of
the individualization of land tenure in the name of group ranches.
22 Sec 114-120 of the repealed Kenya Constitution of Kenya.
23 See I Lenaola, H Hadley H. Jenner & T Wichert “Land tenure in
pastoral lands” in C Juma and JB Ojwang (ed) In land we trust,
environment, private property and constitutional change (1996) 242.
24 Sec 115-116 of the repealed Constitution of Kenya.
25 See J Kieyah “Indigenous peoples’ land rights in Kenya: A case
study of the Maasai and Ogiek people” (2007) 15 Penn State Environmental
Law Review, 2007 406; see also S Coldham “Landtenure
reform in Kenya: The limits of law” (1979) 17 Journal of
African Modern Studies 620.
26 Land (Group Representatives) Act (Cap 287).
27 See J Ngugi “The decolonization-modernization interface and
the plight of indigenous peoples in post colonial development
discourse in Africa” (2002) 20 Wisconsin International Law Journal
345; see also Lenaola 1996, 245.
28 See J Kieyah “Indigenous peoples’ land rights in Kenya: A case
study of the Maasai and Ogiek people” (2007) 15 Penn State Environmental
Law Review, 2007 406; see also S Coldham “Landtenure
reform in Kenya: The limits of law” (1979) 17 Journal of
African Modern Studies 620.
29 Ngugi 2002, 347; see also Lenaola1996 247.
30 Mwangi “The transformation of property rights in Kenya’s Maasai
land: Triggers and motivations” (2005) 35 International Food
Policy Research Institute, CAPRi Working Paper 11, 7.
31 SC Wanjala “Land ownership and use in Kenya: Past, present
and future” in SC Wanjala (2000) Essays on land law: The reform
debate in Kenya: University of Nairobi. Nairobi, 35 citing sec 27
and 28 of the RLA and Obiero v Opiyo (1972) EA 227; and Esiroyo
V Esiroyo (1973) EA 388; see also L Cotula and B Neve “The driver
of change” in L Cotula (ed) Changes in customary land tenure systems
in Africa (2007) 33.
32 See sec 211(3) Constitution of South Africa.
33 See art 66 of the Constitution of Namibia.
34 See Communal Land Reform Act No 5 of 2002.
35 See Constitution of Kenya, 2010; section 29(4): Any law, including
customary law, which is inconsistent with this Constitution
is void to the extent of the inconsistency, and any act or omission
in contravention of this Constitution is invalid.
36 South African Constitution Act 108 of 1996, section 2; This Constitution
is the Supreme law of the Republic: law or conduct inconsistent
with it is invalid, and the obligations by it must be
fulfilled.
37 Constitution of Kenya 2010, 1 article 44.
38 Constitution of Kenyan 2010, article 56.
39 Section 63 Constitution 2010.
40 See Republic of Kenya, Report of the Commission of Inquiry into the
Illegal/Irregular Allocation of Public Land, Government Printer,
Nairobi, 2004, 16.
41 See section 25(7) of South Africa’s 1996 Constitution; “Report of
the Special Rapporteur on the situation of human rights and fundamental
freedoms of indigenous people: South Africa” by
Stavenhagen, R., Special Rapporteur of the Commission on Human
Rights submitted in accordance with Commission on Human
Rights resolution 2005/51, U.N. Doc. E/CN.4/2006/78/
Add.2 ,15 December 2005, para 37:
42 See T Roux “The Restitution of Land Rights Act” in G Budlender,
J Latsky & T Roux Jutas new land law (1998) chapter 3.
43 See sec 1 of the Restitution of Land Rights Act; see discussion of
the impact of the expanded definition of a “right in land” in the
Act in Van der Walt, A J (2005) Constitutional property law: Cape
Town: Juta & Company Ltd, 292-293.
44 Ibid.
45 See also Richtersveld Community and others v Alexkor Ltd and Another
2001 (3) SA 1293 (LCC) para 6; see also T Roux “Pro poor
court, anti-poor outcomes: Explaining the performance of the
South African Land Claims Court” (2004) 20 South African Journal
of Human Rights 522.
46 Alexkor Ltd and the Government of the Republic of South Africa v
Richtersveld Community 2003 (12) BCLR 1301 (CC) (South Africa)
para 50-82.
47 Ibid para 62 & 64.
48 Ibid para 51.
49 Ibid para 51.
50 See sec 39 (2) Constitution of South Africa; see also Ibid para 51
(referring to customary law) see also para 7 n.8 stating that customary
law is synonymous with indigenous law.
51 Sec 39 (2) Constitution of South Africa.
52 See Mabuza v Mbatha 2003 (7) BCLR 43 (C) para 32.
53 Sec 211 (3) Constitution of South Africa.
54 Sec 39 (3) Constitution of South Africa.
55 Alexkor v Richtersveld community (CC).
56 TW Bennett Human rights and African customary law (1995) 148;
see also Richtersveld v Alexkor Ltd (LCC) para 48 where the Court
intimated that the doctrine of indigenous title was an alternative
remedy to restitution under the Restitution Act but fell outside
the LCC’s jurisdiction, a position since overturned by the SCA
and the CC.
57 See Mabo v Queensland (No 2) (1992) 175 CLR 1(Australia), 58.
14 Indigenous Affairs 1-2/10