By Quincy Kiptoo
LLB (Hons) CPM, PGDL (2018)
This thesis examines community group rights in Africa. It uses the example of the Nubian people in
order to critically analyze who indigenous people are under regional law. In
the spirit of the African Charter on Human and People Rights that defends human
and people rights in addition to individual rights, this dissertation analyzes
the rights of indigenous people’s claim to land.
It
interrogates whether the Nubian people that reside in the Kibera land can
constitute an indigenous people. This dissertation will critically scrutinize
whether they are entitled to the Kibera land by virtue of it being ancestral
land. This dissertation will elucidate whether the state is bound by this
indigenous title. Lastly this dissertation will expose the proper procedure
that should be followed by the state in the event of land acquisition. The
study is based on primary and secondary sources of information.
During
this time the Nubians were effective fighting warriors.[1] They
constituted a major threat in African military systems.[2] They
came from the Nuba Mountains and are in lineage to the Noba people[3]
who spoke a Nilo-Saharan language.[4]
The
Nubians were forcibly conscripted into the Kings African Rifle[5]
which was the British Colonial Army[6]
that operated on the East African Protectorate.[7] They
were taken from the Nuba Mountains which are in present day Sudan. After loyal
service to the British[8]
they were settled in and promised that the Kibera land would be theirs.[9]
In 1933, an official government document from the Ministry of lands, the Carter
Commission Report[10]
stated that the Nubians were equitably entitled to the Kibera land to the
exclusion of other communities.[11]
The Nubian’s legal status at that time was as British Protected Persons.[12]
Independence
came, the Nubians were not officially granted legal title by the post-colonial
state.[13]
There were a number of official acknowledgements of the Nubians entitlement to
the Kibera land by top government officials but none came to fruition.[14]
It is to be noted that in the 1900’s the
Kibera land was 4000 acres and more but by the time Charity Ngilu, the former
Lands Cabinet Secretary attempted to apportion a collective title for it, the
collective catered for only 288 acres.[15] The
rest had been sold off to private developers.[16] The
issue of collective title in Kibera proved to be an emotive endeavor as a riot
started that disrupted the occasion.[17] It
was suspected that there was malice in the process.[18] The
issue of a collective title related to land in the Makina area.[19]
Nubians were spread all over Kibera and not concentrated to one place in
particular.[20] The state was not clear as to what would
happen to the land of the Nubians who do not reside in the Makina area of
Kibera.[21]
Upon disruption, the issuance of collective title never occurred.[22]
Who are an indigenous people? The question of who an
indigenous people are, is perhaps settled in law subject to various
interpretational circumstances as there is no standard clear cut uniform
definition. This is so as to prevent governments and institutions from
mechanically using a strict criterion, to deny a ‘potential’ indigenous people
that legal status which they deserve. A strict interpretation is neither
necessary nor desirable. My aim and legal resources are focused on identifying
indigenous communities based on their special characteristics rather than
define the rigid and non-flexible parameters.[23]
During the colonial period, the term indigenous
people, aborigines and natives inter alia
was applied to all persons found in colonized territories, regardless of whether
or not they had been born there or were newcomers.[24] It
is instrumental to note that the Berlin Conference of 1885, too, failed to make
a distinction between people found in the colonized territories.[25]
The
International Labour Convention on Indigenous and Tribal People of 1989[26]
defines an indigenous people as tribal peoples whose socio-economic and
cultural conditions distinguish them from other sections of the national
community, and whose status is regulated wholly or partially by their own
customs or peoples who are regarded as indigenous on account of their descent
from the populations which inhabited the country, or a geographical region to
which the country belongs, at the time of colonization or the establishment of
present state boundaries and who, irrespective of their legal status, retain
some or all of their own socio-economic, cultural and political institutions[27].
Further, self-identification of the community as culturally distinct is a
fundamental criterion in determining an indigenous people.[28]
In
1971, The former Special Rapporteur of the Sub-Commission on Prevention of
Discrimination and Protection of Minorities (later renamed the Sub-Commission
on the Promotion and Protection of Human Rights), J. R. Martinez Cobo, in his
famous Study on the Problem of Discrimination against Indigenous Populations[29]
gave a working definition of indigenous people which stated that ‘Indigenous
communities’ are those which, having a historical continuity with pre-invasion
and pre-colonial societies that developed on their territories, consider
themselves distinct from other sectors of the societies now prevailing on those
territories. They form at present, non-dominant sectors of society and are
determined to preserve, develop and transmit to future generations their
ancestral territories, and their ethnic identity, as the basis of their
continued existence as peoples, in accordance with their own cultural patterns,
social institutions and legal system’. This definition captures the key elements
of contemporary indigenous people and is open to various interpretations. It
has however been criticized as being too inclined towards aboriginality.[30]
In
2002, The African Commission on Human and Peoples Rights, in the decision of Centre for Minority Rights Development
(Kenya) and Minority Rights Group (on behalf of Endorois Welfare Council) v
Kenya[31]
that what is clear is that all attempts to define the concept of indigenous
peoples recognize the linkages between peoples, their land, and culture and
that such a group expresses its desire to be identified as a people or have the
consciousness that they are a people.
In
2005, The African Commission Report of the African Working Group of Experts on
Indigenous Populations and Communities states that the criterion for indigenous
people is;
1. They
possess a culture that is distinct from the culture of the dominant society
2. The
survival of their particular culture is dependent upon their traditional lands
3. They
suffer from discrimination/marginalization that threatens/violates their human
rights[32]
International
jurisprudence has not been left behind in this debate, the Inter American Court
of Human Rights ruled in the decision of Moiwana
Community v Suriname[33]
that indigenous people need not be indigenous to the region, they can be
settled in a region and over many years abide by their customs, the ratio
decidendi of the ruling was that indigeneity can be earned
In
2006, The United Nations Working Group on Indigenous Populations posited the
criterion of indigenous people to be;
1. The
occupation and use of a specific territory
2. The
voluntary perpetuation of cultural distinctiveness, which may include the
aspects of language, social organization, religion and spiritual values, modes
of production, laws and institutions
3. Self-identification, as well as recognition by
other groups, as a distinct collectivity
4. An experience of subjugation, marginalization,
dispossession, exclusion or discrimination[34]
In
2007, the Inter American Court of Human Rights ruled in the decision of Saramaka v Suriname[35]
that indigenous people are people whose social, cultural and economic way of
life is different from the national community particularly because of their
relationship to their territories as well as regulation by their own norms.
The
Constitution of Kenya 2010[36]
states that the State shall put in place affirmative action programmes that are
designed to ensure marginalized and minority communities participate in their
cultural values.
The
largest piece of the pie that the Indigenous people stand to gain from the 2010
Constitution is enshrined under Article 63 where it eloquently articulates that
there is a right to communal ownership of land.
In
2016, The Special Rapporteur on the Situation of Human Rights and Fundamental
Freedoms of Indigenous Peoples, Ms. Victoria Tauli Corpuz emphasizes that we
need a flexible approach to defining indigenous populations especially in
Africa where any linkage of indigenous people to colonialism blurs the scope of
characteristics based identification. This is because the term indigenous is
frequently used interchangeably with other terms, such as aboriginal, native,
original, first nations, tribal and other similar concepts. In Africa, the
colonialist regarded everyone who was there as native.[37]
Despite
the fact that the Community Land Act 2016 was passed it does not cater for the
right of the Nubians to the Kibera land on account of them being an indigenous
people.
The
Nubians are therefore at the brink of displacement or dispossession from the
lands.
The
Nubians have resided on the Kibera land for 100 years. They have not had
official title to the land ever since their settlement. Attempts made to get
official legal title have been futile. There is little scholarship on this
topic but, a lot of political inclinations. This study attempts to carve a new
perspective on the issue. The perspective is the legal classification of the
Nubians as an indigenous people under regional law. This ingenious method will
evaluate whether they are entitled to the Kibera land as an indigenous people.
The
objectives of this study are;
1. To
analyze how the Nubians have been historically classified and whether it has
contributed detrimentally to their current status
2. To
offer a new approach to the issue of classification of the Nubians as
indigenous people under regional African human rights law
3. To
interrogate how this indigenous classification fits their special
characteristics and protects their right to the Kibera land as ancestral lands.
The
legal academic position of this paper is that the Nubians that have resided in
Kibera from 1900’s constitute an indigenous people in law and are entitled to
the Kibera land through ‘indigenous possessory title.[38]’
1.
Why are the Nubians not classified as an
indigenous people under law?
2.
Why are the Kibera lands not classified as
indigenous lands of the Nubians?
3.
What is the correct procedure the state
must follow in compulsorily acquiring the Kibera land?
This
dissertation will rely on two theories.
These are;
The
First Occupation Theory
The
first occupation theory is a method of property acquisition that grants the
title to the first occupier.[39] First possession is the root of all title
according to this study. The Nubians were the first occupants to the Kibera
land. They were settled there in the 1900 by the British colonial office. It
follows from this that they are entitled to the Kibera land on the basis of
first occupation.
Third
World Approaches to International Law
This
theory is a critical school of international legal scholarship that critiques
international law. It is opined that international law continues to perpetuate
the exploitation of third world countries.[40]
This school of thought shares a concern for the history of marginalization of
people in African countries. Colonialism, as a creature of international law
allowed for the forcible conscription of the Nubians from their homeland and
into the colonial army of the British. They were thereafter settled on the
Kibera land without formal title. International law and specifically the United
Nations Organization has in the recent past catered for the rights of
indigenous people by coming up with a declaration on the rights of indigenous
people. It in essence tries to remedy past injustices. TWAIL guides this study
that this should not be accepted unconditionally. This is because the language
of international law is still couched in the traditional sense of state vs
state. The traditional sense is ill equipped to effectively cater for
indigenous rights[41].
As such, TWAIL cautions against blanket acceptance of this laws as they may
perpetuate the subjugation of people in the third world. Evidence of this was
found on the International Labour Convention No 107[42]
which in Article 2(1) stated that the primary objective of the Convention was
the protection of the populations concerned and their progressive integration
into the life of their respective countries. This shows a continuation of the
civilizing mission.[43]
This
dissertation follows academic work that has been published in various areas.
The first relates to the history of the Nubians. The history of the Nubians and
settlement on the Kibera land is documented the Carter Commission Report of the
Ministry of Lands of 1933. Beyond that, there are Hansard reports of the Kenyan
Parliament that reveal the status of the Nubians with regards to the Kibera
land.
With
regard to indigenous people, this dissertation is inspired by the definitions
put forth by key scholars. These include special rapporteurs that have served
in key international entities that focus on indigenous peoples. The special
rapporteurs are; Victoria Tauli Corpuz (Special Rapporteur on the Situation of
Human Rights and Fundamental Freedoms of Indigenous Peoples), J. R Martinez
Cobo (Former Special Rapporteur of the Sub-Commission on Prevention of
Discrimination and Protection of Minorities ((later renamed the Sub-Commission
on the Promotion and Protection of Human Rights)). International organizations
such as the United Nations and the African Union have equally contributed to
this debate.
With
regard to indigenous peoples land rights, this dissertation pays homage to the
precedent laid down by Albert Barume[44],
Prof. James Anaya[45]and
Jeremie Gilbert[46].
In conclusion, seminal and jurisprudential rulings by international Courts have
substantially contributed to this matter this include but are not limited to; The Nubian Community in Kenya v Kenya[47], Nubian Children in Kenya v Kenya,[48]
Saramaka v the State of Suriname,[49]
Centre for Minority Rights Development (Kenya) and Minority Rights Group (on
behalf of Endorois Welfare Council) / Kenya[50]and
Mabo v Queensland.[51]
This
study is based on qualitative and quantitative research. In focusing on the
Nubians the methodology used was archival research which produced official
government documents which trace their history in Kenya. With regard to
indigenous people, desk research was done and it produced various sources that
range from Conventions, cases, internet sources and books.
This
dissertation is divided into four chapters;
It is titled ‘Laying the Contexture’. It
focuses on the historical background and traces the plight of the Nubians as
indigenous people from 1900 to 2016. It in essence, sets the context of the
Nubian people and the Kibera land.
It
is titled ‘Jurisprudential Underpinnings’. It focuses on the relevant
theoretical frameworks. The first is the first occupation theory which advances
the notion of first possession as the root of all title. The Second is TWAIL
which puts emphasis on the fact that even as the UN passes laws to protect
indigenous people, it must be cautionary
noted that international law bears the responsibility for causing the
indigenous peoples dilemma and further that its attempts to accommodate
indigenous people is futile as international law is still couched in its
traditional language. This language does not cater for an accommodative
approach.
It is titled ‘Indigenous Land Rights’ it
interrogates whether the Nubians can be classified as an indigenous people. It
further examines the land rights of indigenous people to their lands based on
their special characteristics. It critically analyzes the substance and extent
of the Nubians indigenous land rights to the Kibera Land.
The
final chapter is titled ‘Coming to a Constitutional Compromise’. It is a reflective
chapter that focuses on a human rights approach to the Nubian- Kibera land
quandary and offers innovative reflective constitutional solutions to the
dilemma of the Nubian’s ownership of the Kibera land.
This
chapter was titled setting the context. It has traced both the Nubians and
Indigenous people rights from the pre-colonial to the post-2010 constitutional
dispensation. It has further stated the statement of the problem, research
questions, theoretical framework, research, methodology and a healthy dose of
the literature review. It concludes by outlining a systematic chapter breakdown
of this as well as the remaining chapters.
CHAPTER TWO:
JURISPRUDENTIAL UNDERPINNINGS
This
chapter will analyze the philosophical underpinnings that stem from the topic
of this study. It should be noted that not all the schools that are relevant
and related will be analyzed. This study will focus on the most applicable
theories.
These
are: The First Occupation Theory and Third World Approaches to International
Law (TWAIL)
Property
is a general term for the rules that govern people’s access and control to
things like land.[52]
There are many interesting philosophical theories that justify the ownership of
property. The first main theoretical premise of this paper is the first
occupation theory.[53]
Property
is perhaps a term that arose centuries ago. I trace its roots to the bitter
battle of words[54]
between Pope John XXII and William of Ockham on the issue of the Franciscan
Poverty.[55]The
Franciscans claimed to have no property at all, either as individuals or as an
order, and that in the things they use: they use it as a simple use of ‘fact’
and not use of ‘right’. All of the things they used belong to the donor and if
the donor decides to give it up then it will belong to the pope. It should be
noted that the Franciscans are a religious sect in the Catholic Church that
follow the teachings of Saint Francis Asissi.[56]
Pope
John noted two things; that no one can justly use a thing without having some
right in it and that no one can justly use a thing without having dominium in
it.[57]
In essence, the Pope was of the view that the Franciscans cannot renounce all
rights, they must at-least have rights of use and further they cannot renounce
all property they must at the very least have common dominium in consumables
that they use. The Pope stated that dominium was established by divine law.[58]
The Pope in his inference meant that since consumption destroys the thing; consumption
and dominium cannot be separated.
William
of Ockham replied to the pope on behalf of the Franciscans and employed some
distinctions and definitions. These were that a right is either natural or
positive and that use has many meanings; the use of right, the act of using and
use of fact (the moral right to use something without necessarily having any
legal right to use it). In conclusion, he stated that things consumable by use
are those use of which destroys/consumes them in a single act or more gradually
such as food and money. Dominium can have many senses but the relevant meaning
is as Ockham said the legal right under human positive law: the power of laying
claim to and defending some temporal thing in court.[59]
Property may belong to an individual or set of individuals or a collegium (not an educational
institutions but the traditional sense of a corporation). Dominium is something
that is exclusive to others.
The
two ideas that emerged from that exchange were that the idea of property as
something that is someone’s in a way that cannot be someone else’s and that
natural rights cannot be renounced.
Dominingo
De Soto in his seminal work, Justice and Law[60]
asks ‘is possible to separate from dominium
in things consumable by use?’ it is possible as there are things like clothes
which are consumed eventually by use and not in a single act. As such, use and
dominium in them can be distinguished. He analyzes further, and concludes that
true dominium necessitates the ability to take up a thing for multiple uses and
consumption solely, does not meet the threshold. One must be able to alienate,
lay claim in court, bequeath, neglect inter
alia.
The
Pope had earlier on, asserted that property was brought about by divine law but
William of Ockham rebutted that once divine law fell property was established
by human positive law.[61]
This later on came to be regarded as the law of the nations and the law of
nature. The two schools of thought
opposed each other in many respects for example slavery was a creature of the
law of nations and not the law of nature.
Dominium
was established by the law of nations. Many differ with this notion and argue
that the law of nature established dominium in common whereas, the law of
nations established distinctive dominium in respect of other persons. Duns
Scotus was of the view that the law of nature before sin had the characteristic
of a community of goods but after the first sin by Adam and Eve, God revoked
that precept and gave the permission to appropriate.[62] To
sum it up, the predominant view of Scotus was that the law of nature
established community and that property was introduced by the law of nations.
Grotius
who was a civil lawyer combined the ideas of the theologians and the ideas of
the medieval lawyers and stated that property in movables is in the law of
nature but property in immovable is from the law of nations. That in the law of
nature there was communion, for God
had given all things not to any specific individual but to the human race. And
everyone was to enjoy common possession. It is from this power to appropriate
that was provided for by the law of nations that individual rights and
collective rights to property started to emerge and especially with regards to
land. All this goes to show that the origin of property goes back a long way in
history.
Locke
was known for his labor theory where he stated that an original owner is one
who mixes his labor with the thing in question, this mixing of labor
establishes ownership and to get the consent of others.[63]
This was the traditional view and it had its own shortcomings as it was based on
the ‘desert’ setup. The contemporary common law thinkers refined the labor
theory with a third approach: it was a cocktail of the labor and consent
theories and was known as ‘possession/occupancy as the root of all title’.[64]
The
essence of this theory is that since all land was given to all in common,
individual or collective ownership of land to the exclusion of others was a
human invention.[65]
It arose or rather arises through express or implied consent of mankind.
Express consent was in the form of agreements whereas implied consent was on
the basis of first occupation.[66]
The first fundamental question would be what counts as possession? In the
landmark case of Pierson v Post[67]where
Pierson was hunting a fox, he had finally traced it and when he finally had the
fox in his gunsight an interloper intervened and killed the fox and ran off
with the carcass. Aggrieved by this Pierson went to court pleading that his
long pursuit of the animal amounts to possession. Judge Hopkins considered the
matter and held that occupancy/possession belongs to the one who killed,
wounded mortally or captured the animal, as only he would exercise the
requisite ‘control’.[68]
Possession
therefore amounts to a clear act, whereby the whole world understands that he
has an unequivocal intention of appropriating the animal for his individual
use. Such an act would reduce quarrels and confusion amongst the hunters. One
judge dissented and stated that the matter should be directed to a panel of
sportsmen who would perhaps rule against the interloper. As it was unfair for
one to prepare for a hunt and undertake it only to be rid of his prize by a
saucy intruder.[69]
The dissenting judge’s position had difficulties in application. The lawmakers
would have monumental difficulties in determining the point at which possession
and thus property begins. Is it when the hunt begins? When the hunter assembles
his dogs? When the hunter spots a prize?[70]
The
ratio decidendi of the ruling was
that the principles of this theory were; Notice to the whole world through a
clear act and the reward of useful labour.[71] The
rule emanating from the occupation theory of property is that objects/ land
become the property of people when such individuals have taken occupation of
them. The clear act requirement s connotes some sort of ‘public statement’. The
acts must be a declaration of one’s intention to appropriate.[72]
Further
discussion on this clear act theory was elicited in the decision of Brumagim v Bradshaw.[73] It
involved two claimants who were battling for a piece of land. Each party
claimed property in the land by virtue of title extending from an original
‘possessor’ the issue was whether one of these purported possessors really
possessed the land at all. One possessor was Mr Treat. Those who claimed under
his name stated that Treat had put up a fence and had pastured livestock on the
land. The court nagged with the issue of whether this acts gave adequate notice
to the public of his appropriation of the property. This narrowed the
discussion to the first limb of the occupancy theory which is the ‘clear act’.
The court further stated that suitable use of the land is also a form of
notice. Not only must it be a clear act but a suitable use also. This seems to
leave out the reward of labour bit especially if the labour was directed to
unsuitable use. The Court’s Solomonic jurisprudence lay in orbiter dictum (by the way statement) where it stated that ‘society
is worse off in a world of vague claims; if no one knows whether he can safely
use the land, or from whom he should buy it if it is already claimed, the land
may end up being used by too many people or by none at all’.
Possession
requires some kind of communication, and a party that has a claim to the land
must keep on speaking lest they lose it. Likewise, the Nubians were settled on
the Kibera land in the year 1900 by the British. They were the first occupants
of the Kibera land which until then was a forest. They have lived on the land,
cultivated on it, built houses, schools, businesses, cemetery as well as
mosques. They have put the land to diverse suitable uses regardless of not
having legal title.
According
to Hohfeld in his scheme of jural relations when one has a claim, this consists
of legal protection against other people’s interference. A person or
institution that is supposed to abstain from interference is under a duty to
act in that manner. A right or claim is a legal position arising from an
imposition of a duty on someone else.[74]
It
is undisputed that the Nubian’s were the first occupants of the Kibera land.[75]
The Nubians claim to the Kibera land is anchored on the first occupation
theory.
TWAIL is defined as a movement within the discipline
of international legal studies. It is viewed as a broad dialectic of opposition
to the generally unequal, unfair and unjust character of the international
legal regime that all-too often helps subject the Third World to domination,
subordination, and serious disadvantage.[76]
In
the year of 1994, the United Nations Permanent Forum on Indigenous People had
its initial meeting.[77]
The day was colossal to the rights of indigenous people in the world that the
day which was 8th August was marked as the International World
Indigenous People Day.[78]
Every day each year they observe this day. It has been a century since the
advent of euro-centric doctrines such as terra
nullius,[79]
discovery,[80]
conquest,[81]
just-war,[82]
assimilation,[83]acquisition,[84]
removal[85]
and allotment[86]
inter alia struck Africa.
It
is one among many attempts of the international community to remedy its own
creations. It is the double life of international law. Through these doctrines
the international community expropriated Africa to the detriment of the
populations that were found there. A solid number of these populations are
indigenous people. With regard to the Nubians, some of these doctrines were
used to forcibly conscript them from their homeland and settle them in the
Kibera land without officially granted them title. This strain of colonialism[87]
has led to a 100 year land problem.
Throughout
the history of international law, indigenous people have been victims. It is
only recently that they are changing roles from victims to actors[88].
This is commendable and this is to not say that the international community is
unwilling to perform. International law is couched in traditional
discriminatory terms. These vestiges of discriminatory practices make the new
system unable to hear and effectuate the voices of indigenous people.[89]
Scholars have argued that international law is stuck in a professional realm
that can only operate upon its own rhetoric.[90] It
is stuck within this legal lexicon that makes the system anti-reforms which can
help usher in a new system that will address the problems that were perpetuated
by the former system.[91]
Only by bringing this non-traditional world view to the international table can
the international legal system truly represent the international community.[92]
Before
commencing further, one would ask, what is the nexus between indigenous people
and TWAIL? The nexus lies at the heart of the doctrine of self-identification.
Both indigenous people and TWAIL use this doctrine to show shared experiences
of subordination, subjugation and marginalization at the global level.[93]
They were both victims of colonialism.[94]
TWAIL is a coalitionary movement seeking ties with feminists, critical race
theorists, critical legal studies[95]
and through this study, indigenous people. These ties between the two areas
allow this study to employ the tools of TWAIL to the discourse of indigenous
people rights.
International
Law is, excessively a relationship between state and state. This is evident in
the Vienna Convention on Law of Treaties[96]
where under Article 1 it only recognizes states as having the capacity to make
treaties. Further, in the Charter of the United Nations[97]
under Article 4 extends membership to all peace loving states. The European
community in its interaction with other groups employed the civilizing mission.
They distinguished between themselves and others as ‘civilized’ and
‘uncivilized’.[98]
It was also a method of European nations to interact with each other within the
international legal order.
It
should also be noted that the sources of international law are set within
strict parameters. This is to be found in Article 38 of the 1945 Statute of the
International Court of Justice[99]which
lists the sources as treaties made between states, international custom,
general principles of law recognized by civilized nations, and the teachings of
the most highly qualified publicists of the various nations.
International
law during the colonial period was an instrument of naked power that was
skillfully applied to the detriment of indigenous people.[100]
International law did not totally ignore indigenous people but effectively
placed them in a different position as compared to states.[101]
Placing indigenous peoples within the system, but in a different position from
recognized states, acted as a mechanism to justify the implementation of
racist, hegemonic and legal doctrines.[102]
International
norms that have been put forth to protect indigenous people have failed in
breaking free from its euro-centric and racially motivated roots.[103] Does the new international order on
indigenous people’s rights have the capacity to do what it purports to do?
In
1957, the International Labour Organization (ILO) passed Convention no 107
Concerning the Protection and Integration of Indigenous and Other Tribal and
Semi-Tribal Populations in Independent Countries.[104]
This Convention, through its provisions quintessentially stated that the plight
that most indigenous people face is not because of the earlier doctrines of
allotment, appropriation, discovery and terra nullius inter alia, but due to their failure to adapt.[105]
This Convention was in the Machiavellian words: an iron hand in a velvet glove.
On one hand it affirmed the principle of individual dignity[106]
and on the other hand the states duty to protect and integrate indigenous
people into normal life.[107]
Prof James Anaya asserts that at the very minimal the Convention gave
indigenous people a stage in the theatre of international law. This stage
granted recognition to indigenous people.[108] It
is however, respectfully rebutted that from a TWAIL approach, recognition in
international law is not always a positive thing.[109]
This
is because recognition now allows the international community to filter the
voices of indigenous people in its traditional vocabulary. This would mold the
voice in a way consistent with the traditional system.[110]
The ILO Convention no 107 was criticized for its assimilationist agenda. The
ILO responded with Convention no 169[111]
which denounced assimilationist agendas. It should be noted that most western
powers considered developed nations never ratified the Convention. This is
another limiting factor of the traditional system. The convention further has the presumption of
state authority over indigenous people,[112]
this is elucidated by the state’s power to relocate indigenous people when it
deems necessary.[113]
The
United Nations declaration of Indigenous People[114]
states in its preamble that among other things it recognizes the rights
affirmed by treaties made by indigenous people with states. How is this tenable
whereas under the VCLT only states are allowed to make treaties?
The
TWAIL approach to the indigenous rights discourse is that both schools share an
experience of subjugation, they can benefit from each other and that it is best
to caution international law’s attempts to address indigenous people’s rights
whereas its traditional vocabulary does not permit leave away from euro-centric
ideals.
CHAPTER
3: INDIGENOUS LAND RIGHTS
This
chapter extensively discusses who indigenous people are and the land rights
that indigenous people possess. It will conclude by ingeniously applying this
to the situation of the Nubian people.
This
paper is inclined to the definition that was put forth by the African
Commission in its working report on indigenous people. This definition is
preferable as it is not too inclined to aboriginality but looks to a modern way
of identifying indigeneity. Such a definition given the relevance to the African
context is not only desired but recommended. The report described the criteria
to be;
- The occupation and use of a specific
territory[115]
The
Nubian community was settled in the Kibera land in the 1900’s.[116]
They have resided there to date.[117]
Some Nubians may have moved out due to economical sustainment but a majority of
the community still resides in Kibera.[118]They
live on the land as their ancestors did.
- The voluntary perpetuation of
cultural distinctiveness, which may include the aspects of language,
social organization, religion and spiritual values, modes of production,
laws and institutions[119]
The
Nubians have practiced their own ways of life as an ancient and almost extinct
Nubian culture.[120]
They normally celebrate their culture annually.[121]
Their culture is intertwined with their religion. The Nubians practice Islam as
a religion.[122]
Dr. Umar Johnson asserted that culture is the womb through which religion
flourishes.[123]
As such it is inevitable to find practices in a people that are both religious
and cultural. In fact, in the decision of Prince
v South Africa[124]
the court noted that it was hard to draw a clear line between Rastafari as a
religion or as a culture.
The
Nubians have constructed numerous mosques in the area that are in active
service to the community. The Nubians speak their own language alongside
Kiswahili and English.[125]
The Nubians are communally governed by the Nubian Council of Elders.[126]
This council has represented the Nubians before various fora.[127]
- Self-identification, as well as
recognition by other groups, as a distinct collectivity[128]
The
Nubians self-identify themselves as Nubians. They are the descendants of an
ancient military empire that was forcibly conscripted into the Kings African
Rifle and settled in the Kibera area.[129]
They are known as a collective community that seeks to preserve their identity.[130]
- An experience of subjugation,
marginalization, dispossession, exclusion or discrimination[131]
The
Nubians were promised the Kibera land by the British back in the 1900 when they
were settled there. Neither the colonial nor the independent governments gave
them the title to the Kibera land. Further, for a substantial amount of time
the Nubians were denied Kenyan citizenship. This became a matter of judicial
record when the African Court on Human and Peoples Rights ruled in the decision
of the Nubian Community in Kenya v Kenya[132]
that the state of Kenya was in violation of the Nubians right to nationality
and for the discrimination of the Nubians.
This
denial of citizenship was held to amount to a violation of their right to
education as they lacked the requisite documents when it came to sitting for
national exams. One of these documents was the birth certificate. This fact was
brought out by the African Committee of Experts on Rights and Welfare of the
Child who ruled as so, in the decision of the Nubian minors in Kenya v Kenya.[133]
In
asserting the four criteria this chapter commences on the basis that the Nubians
that reside in Kibera constitute an indigenous people. It is to be noted that
most scholars in this field have a bias of considering indigenous communities
as predominantly hunter, gatherer and pastoralist communities. However, a
progressive interpretation of the criteria as well as human and people’s rights
overlooks this position.
The
United Nations Human Rights Committee in general comment number 23 states that
culture is a cluster of social, political and economic activities that give a community
a sense of identity.[134]
The survival of indigenous peoples throughout the world is dependent on the
protection of their land.[135]
This is because removal of such communities from their cultural lands endangers
cultural values such as language, link to their ancestors and sacred sites inter alia.
It
is to be noted that the Nubians are the only people in Kibera who have a
cemetery.[136]
This is where they have buried their ancestors since the 1900s. They have no
other land elsewhere that has this sacred significance to them. They consider
the Kibera land as their ancestral lands because of this. They have no similar
trace to land in another country including present day Sudan.[137]
Indigenous
people have suffered historical injustices as a result of colonization and
dispossession[138]
as such there is an urgent need to protect their inherent rights as indigenous
people, especially, relating to land[139]
further they need to be granted control over their access to land and relevant
related resources.[140]
The state has not been particularly accommodative of indigenous title. In the
decision of Francis Kemei, David Sitienei
and Others v The Attorney General, the PC Rift Valley Province, Rift Valley
Provincial Forest officer, District Commissioner Nakuru,[141]
the Ogiek tried to argue for aboriginal title by claiming that the new Forest
Act found them in the forest as such it can’t forcibly remove them. The court denied
this argument and in dismissing it ruled that the Ogiek had modernized and that
they did not need title to the Mau forest to hunt and collect honey in it. The
most controversial part of the ruling lay in a statement that read ‘If hunting
and gathering in a territory were in themselves alone to give automatic legal
proprietary rights to the grounds and soils we hunt and gather upon, then those
who graze cattle nomadically in migratory shifts everywhere according to
climatic changes would have claimed ownership of every inch of every soil on
which they have grazed their cattle. The court ingeniously avoided confronting
the plaintiffs’ argument built upon the theory of aboriginal title and survival
of customary land right following succession of powers and sovereigns as
presented in the Australian Mabo case.[142]
The
United Nations Declaration on the Rights of Indigenous Peoples states that
indigenous communities cannot be forcibly removed from their lands.[143]
They have a rite to practice and revitalize their religious as well as
ancestral traditional practices that are inextricably linked to the land.[144]
In
1997, the government of Kenya gazetted the area around Lake Bogoria as a game
reserve. The Endorois, an indigenous community that resided in the area were aggrieved
by this. They approached the courts and in the decision of William Arap Ng’asia & 29 Others suing on
the behalf of over 43,000 Other Members of the Endorois Community v. Baringo
County Council and Koibatek County Council,[145] the Endorois
claimed that the land constituted as ancestral lands to them; they bred
livestock, grew medicine plants and used the area as sites for traditional
ceremonies. In 2002, the High Court ruled against the plaintiffs despite
recognizing them as customary residents of the disputed lands. The crux of the
ruling was that customary title is incapable of overriding written laws.
The
community approached the regional jurisdiction and the African Commission in
the decision of Centre for Minority
Rights Development (Kenya) and Minority Rights Group (on behalf of Endorois
Welfare Council) / Kenya[146]
observed that indigenous peoples have a specific land tenure system that poses
problems for them, the core problem is that they lack formal legal title to
their ancestral lands and that this has led to many cases of displacement of
people from their historic territories. They further held that states should
recognize indigenous possessory title that indigenous communities possess over
their lands.
The
African Commission noted through its Working Group on Indigenous
Populations/Communities that some indigenous African minorities face
dispossession from their lands and that special measures must be taken by
states to secure this indigenous land rights in accordance with traditions and
customs.[147]
The
seminal decision of the Australian High Court in the decision of Mabo v Queensland[148]
authoritatively overturned the long colonial doctrine of terra nullius[149]
and held that the indigenous communities of the Murray islands possessed an
indigenous possessory title to the land.[150]
In
the decision of Saramaka v the State of
Suriname[151]
the Inter American Court of Human Rights ruled that the failure to recognize
indigenous possessory title of indigenous communities to their lands constitutes
a violation of their right to property.
The
Constitution of Kenya 2010 under Article 56[152]
states that the State shall put in place affirmative action programmes that are
designed to ensure marginalized and minority communities participate in their
cultural values. It further guarantees the right to communal ownership of land
under Article 63.
In
the decision of Joseph Letuya and 21
others v the Attorney General[153]the
Environmental and Land Court held that the State must promote this affirmative
action programmes and special consideration of indigenous minorities as this
need arises from the fact that they face indirect discrimination from certain
policies and actions because of their special characteristics.
Similarly,
the Nubians as indigenous people have faced historical injustices that
manifested in the form of discrimination against them with regard to the Kibera
land. They have buried their ancestors there since 1900’s and as such they
regard the land as sacred.[154]
They rely on the land as a community because this is the only trace of their
heritage on this planet. The Nubians are a people who are at the brink of
extinction unless the state protects them. They have been denied legal title to
the Kibera lands ever since they were settled there. It is asserted that the
Nubians possess indigenous title to the Kibera land and the government of Kenya
ought to recognize this.
The
reasoning of the Tanzanian High Court in the decision of Mulbadaw Village Council and 67 Others v. National Agricultural and
Food Corporation (NAFCO)[155]
is noteworthy: the Applicants regarded the land they lived on as ancestral
land. They lacked formal title. The Respondents were granted the land by the
government to undertake wheat farming. A dispute arose and the court stated
that the land was the Applicant’s and that the defendants argument that it had
being granted the land with the blessing of the government and that the
Applicants lacked formal rights of occupancy, was held to not be tenable in
law.
In
conclusion it is submitted that the failure of the government of Kenya to
recognize the Nubians right to the land constitutes a violation of their right
to property under Article 40 of the Constitution of Kenya. The Former Chief
Justice, Dr. Willy Mutunga[156]
in a speech stated that ‘the Constitution establishes the Supreme Court, which
has a responsibility to develop a robust, indigenous, patriotic and progressive
jurisprudence.[157]’
The Supreme Court being the supreme court of the land, should guide the lower courts
by basing their jurisprudence, which is binding precedent to lower courts,
based on this criteria.
In
this chapter, the study has elucidated who an indigenous people are and their
land rights. It innovatively ceases by applying this to the Nubians situation.
CHAPTER FOUR: COMING TO A CONSTITUTIONAL COMPROMISE
Introduction
This
chapter will analyze the framework of the Constitution of Kenya 2010 which
caters for the rights of marginalized communities. These are rights that are
directly applicable to indigenous people given the shared characteristic of
marginalization. This chapter will further analyze the remedial nature of the
Constitution of Kenya 2010. In conclusion it will analyze and merge the law of
compulsory acquisition with the principles of indigenous land rights to come to
a constitutional compromise.
The
Constitution of Kenya 2010 attempts to remedy historical land injustices which
stemmed from the early colonial times.[158] These injustices were
carried out on all fronts, these included administrative as well as legal
means, evidence of the legal means is seen in the ruling of Lord Sumner in the
case of Re Southern Rhodesia[159]
where he ruled that some tribes are so low in the scale of social organization
that their usages and conception of rights and duties are not to be reconciled
with the institutions or the legal ideas of civilized societies. Such a gulf
could not be bridged. It would be idle to impute to such people some shadow of
rights known to our law and then transmute it into the substance of
transferable rights of property as we know them.[160] Western legal concepts
failed to acknowledge indigenous notions of property.
These
injustices were subsequently carried out by the post-colonial state to date.
The Nubians were settled in the Kibera land in the 1900 but have never secured
ownership of the land.
The
Constitution of Kenya of 2010 sets the standard in recognizing communal ownership
of land. This is a subset of indigenous ownership of land. Article 63 where it
states that community land shall be held by the communities.[161] It consists of ancestral
lands.[162]
Any unregistered community land shall be held by the county government in trust
for the community. In conclusion, it articulates that community land shall not
be disposed of except in terms of legislation specifying the nature and extent
of the rights of members of each community individually and collectively.[163] The Constitutional threshold
that has been set does not require mathematical precision or talismanic
formalism to decipher. Difficulties however arise in its implementation. The
state does not view the Kibera land as indigenous community land. Indigenous
land rights from an economic point of view, is a constraint on productivity.[164]
This
study has asserted that the Nubians are a marginalized community as per the
African Commission’s criterion. Once a community is classified as marginalized,
it requires special protection. The Constitution[165] enshrines the principles
of governance, states that all state organs shall in their operations apply
human dignity, equity, social justice, inclusiveness, equality, human rights,
non-discrimination and protection of the marginalized. Further the State[166]has the power to use
affirmative action programmes to cater for marginalized communities, in this
instance the Nubians.
Procedure of Compulsory Acquisition of Indigenous
Lands
Compulsory
acquisition or resumption occurs when the government occupies privately owned
land or other property for the construction of public infrastructure.[167] The state through the
doctrine of radical title has the power of eminent domain.[168] However,
this power is not discretionary. The procedure for compulsory acquisition of land
is settled in law, in the Lands Act[169]. Under section 107(1)
once either the county or national government wants to acquire land for public
use. The respective Cabinet secretary or county executive committee member
shall submit a request to the National Land Commission to acquire land on its
behalf. The Commission may accept or
deny the request.[170]
The
Community Land Act[171] asserts that before
community land is compulsorily acquired, the occupying authority must consult
the community concerned.[172] The government has an
obligation and duty to consult and accommodate indigenous people.[173] In the decision of Chartrand
v. British Columbia[174] the Court of Appeal held that the
duty to consult is mandatory especially when the indigenous people own the land
based on indigenous title. The duty to consult enhances the indigenous people’s
participation in the decision making process and policy development.
Further in the decision of Fort Nelson First
Nation v. British Columbia[175]
it was held that the duty to consult should not be mixed and downplayed in
environmental assessment procedures. It must exist separately from
environmental assessment. Tara Ward
stretches this duty to consult and merges it with free prior and informed
consent before indigenous land is acquired by the indigenous community.[176]
This posits that the state must consult the indigenous people on an equal basis
and not through coercion or threats.
After
consultation and on acceptance of the request by the National Land Commission (NLC)
shall publish a notice in the national gazette. The notice must then be served
to the registrar and the persons interested in the land.[177](Persons
interested in the land are people who either have title to the land or who are
in actual occupation of the land or
their spouses[178]).
The
registrar shall then put down in the register, the intended acquisition. Where
the state wants to compulsorily acquire land, just compensation must be paid
promptly and in full to all the interested persons. The Commission may make
rules as to the assessment of just compensation.[179]
Thirty
days after publishing notice of intention to acquire land. The Commission will
appoint and publish a date of inquiry to determine proprietary and compensation
issues. This notice date of inquiry should be published in the National as well
as County gazette at least 15 days before the inquiry date and further serve a
copy of such notice to all interested parties.[180]
This
notice shall demand that the interested persons submit written claims of
compensation to the Commission on or before the hearing date. On the hearing
date the Commission shall determine who the interested persons are and receive
written claims for compensation.[181]
The Commission may postpone this date of inquiry from time to time for
sufficient cause.[182]
For purposes of the inquiry the Commission shall have all the powers as a court
viz a viz summoning and examining witnesses, administering oaths and compelling
delivery of title to the land.[183]
Upon
conclusion of the inquiry the Commission shall draw up separate written awards
to every person that has been established to have an interest in the land.[184]This
written award shall serve as conclusive evidence of size of the land[185],
in the opinion of the Commission the value of the land and the compensation
payable (whether the persons interested appeared before the Commission or not).
Every award is filed at the Commission’s offices. Soon after the commission
makes the written award it shall serve on every interested person a notice of
the award and an offer for compensation.[186]
Upon
acquisition and prior to taking possession of the land the Commission may agree
with the owner(s) of the land that instead of receiving monetary compensation
they may be given a grant of land instead. The grant of land must be of similar
value to the compensation and this would serve as full compensation. Further
such an agreement must be recorded on the written award.[187]
After
the notice of award has been served on all the interested persons, the
commission shall promptly pay compensation in accordance with the award to
persons entitled to it thereunder.[188] It
is only after an award has been made and payment of the first offer made that
the Commission may take possession of the land[189]by
serving a notice to all interested persons that on that specified day the land
is now vested under the national or county government free of encumbrances.[190]Any
dispute that arises from this process may be referred to the Environment and
Land Court.[191]
The
State must similarly and religiously follow the same procedure outlined above
with regards to the Kibera land in the event of a compulsory acquisition.
Reflections
It
is remarkable that Kenya promulgated the Constitution of 2010 which catered for
communal land as well as the Communities Land Act 2016 which manages the communal
land tenure system. However, the state needs to take the discussion to the next
level and cater for indigenous communal title specifically. This is because not
all communities in Kenya are indigenous. Kenya as a state is a member of the
African Union. The African Union adopted the working report on the rights of
Indigenous People in Africa. It follows from this that Kenya should recognize,
promote, protect, respect and fulfill[192] indigenous land concerns
in its national legislation. This would greatly cater for the Nubians who
reside on the Kibera land.
Kenya
was absent when the United Nations Declaration on Indigenous People was passed.
It further has not honored its obligations of protecting indigenous people
under the African Union. Strict compliance with these obligations demands that
the duty to consult be mandatory in the process of compulsory acquisition. Pro
state theorists would apprehensively object this notion as it prima facie
contravenes the doctrine of radical title. However, in the twenty first century
and anchored in progressive constitutional waters, human rights demands that
the duty to consult be mandatory in compulsory acquisition pleadings with the
burden being on the state to prove such.
As
a way to move forward, the State of Kenya should honor their obligations under
the African union and ratify the United Nations Declaration of Indigenous
People. This will cement the place of indigenous rights in the Kenyan human
rights law discourse.
Conclusion
This
dissertation began as a proposal in chapter one. It set the context by giving a
background on the Nubians as well as indigenous people criteria from the
colonial epoch to the post-2010 period. The justification of the study was
found in the dilemma that the Nubians face with regard to the Kibera land. They
have lived on it for a century but have never been granted legal title. The
academic position of the dissertation was that they possess the land through
indigenous possessory title.
This
dissertation relied on two main theoretical frameworks. The first was the first
occupation theory which discussed the basis of possession as the root of title
and lastly third world approaches to international law which critiqued
international law’s double life with regard to indigenous people abuse and protection.
This
dissertation was based on desk research which analyzed numerous sources of law
including statutes, books, treaties as well as case law. This dissertation
asked questions such as why have the Nubians not been classified as indigenous
people under regional law? : The response researched is that the state is not
keen on enforcing indigenous rights. Secondly, why have the Kibera lands not
been classified as ancestral lands of the Nubians? : The response was not
direct However, it has a lot to do with history and the politics of belonging.
It was further asserted that the current human rights framework in Kenya
requires a step ahead of politics of belonging bing a pre-requisite for the
attainment of land rights. In conclusion it was posited that the Nubians own
the land through indigenous tenure and the correct procedure which must be
followed by the state during eminent domain was outlined. It is noted that some
avenues of interest were overlooked as they were beyond the scope of the
dissertation. These academic avenues need more scholarship. They include; the
nexus between indigenous people and TWAIL, the acquisition of Africa by
European powers and the origin of proprietary rights inter alia
BIBLIOGRAPHY
Laws
1.
The Constitution of Kenya 2010
2.
Land Act of 2012, Kenya
3.
Community Land Act 2015, Kenya
4.
Native Title Act 2004, Australia
Declarations/ Conventions/ Treaties
5.
Organization of African Unity (OAU),
African Charter on Human and Peoples' Rights ("Banjul Charter"), 27
June 1981, Entry into force: 21 October 1986
6.
United Nations Declaration on the Rights
of Indigenous Peoples, U.N. General Assembly Resolution 61/295, U.N. Doc.
A/RES/47/1 (2007)
7.
ILO Convention, no 169, Convention on
Indigenous and Tribal People, adopted on 27 June 1989 by the General Conference
of the International Labour Organization at its seventy-sixth session, entered
into force 5 September 1991, 72 ILO Official Bulletin
Books/ Articles
8.
N. Duckworth, Property Law and Practice,
(College of Law Publishers, 2011)
9.
A. Hudson, New Perspectives on Property
Law, Obligations and Restitutions, (Cavendish Publishers, 2004)
10.
S. Hepburn, Principles of Property Law (2nd edn, Cavendish Publishers 2001)
11.
M. Davies, Critical Approaches to Property
Law, (Routledge and Cavendish Publishers), 2008
12.
R. Posner, Economic Analysis of Law
,Boston, (2nd edn Little Brown 1977)
13.
C. Rose, Possession as the Origin of
Property, The University of Chicago Law Review, 1985
14.
R. Barnes, Property Rights and Natural
Resources Studies in International Law, (Vol 22, Hart Publishers, 2006)
15.
Seth Gordon, Indigenous Rights in Modern
International Law from a Critical Third World Perspective, AILR Vol 2, (2007)
16.
Martin Koskenniemi, Gentle Civilizer of
Nations, Cambridge University Press (2001)
17.
A. Kwame, Land Rights of Indigenous
Peoples in Africa With Special Focus on Central, Eastern and Southern Africa
IWGIA Publishers (2010)
18.
James Anaya, Indigenous People under in
International Law Oxford University Press (2004)
19.
Hugo Grotius, On the Law of Prize and
Booty 1603 (trs), Clarendon Press, (1950)
20.
Takashi Shogimen, Ockham and Political
Discourse in the Late Middle Ages, Cambridge University Press, (2007)
21.
H. Grotius, On the Law of War and Peace,
(Kelsey translation, Oxford, Clarendon Press, 1925, Book 2)
22.
Alison Clarke, Property Law, Commentary
and Materials, (Cambridge Press, 2005)
23.
Richard Epstein, Possession as The Root of
Title, Vol. 13 Georgia Law Review, 1979,
24.
Megarry and Wade, The Law of Real
Property, (1984, 5th edn Sweet & Maxwell, 1984)
25.
Commission of Human Rights, U.N Principles
and Guidelines for the Protection of the Heritage of Indigenous People, 13 St.
Thomas L. Rev. 405, (2002)
26.
L Angela Marinda, Indigenous Peoples as
International Lawmakers, (2010) 32 University of Pennsylvania Journal of
International Law. 203
27.
Frans Viljoen, Amicus Curiae Participation
Before Regional Human Rights Bodies in Africa, Journal of African Law, 58, 1
(2014), 22
28.
Jeremie Gilbert, Constitutionalism,
ethnicity and minority rights in Africa:, 2013, International Journal of
Constitutional Law, 2013, Oxford University Press, 11 (2), 444
29.
Derek
Inman, From the Global to the Local: The Development of Indigenous
Peoples'
Land
Rights Internationally and in Southeast Asia, 2016, Asian Journal of
International Law, (2016), 46
30.
Alan Watson ed, The Digest of Justinian,
Vol 1, University of Pennsylvania Press, (2009))
31.
Michael Holley, Recognizing the Rights of
Indigenous People to Their Traditional Lands: A Case Study of an
Internally-Displaced Community in Guatemala Vol 15, 15 Berkeley J. Int'l Law. 119
(1997)
32.
Tara Ward, The Right to Free, Prior, and
Informed Consent: Indigenous Peoples' Participation Rights within International
Law, 10 Nw. J. Int'l Hum. Rts. 54 (2011)
33.
Paul Ocheje, "In the Public
Interest": Forced Evictions, Land Rights and Human Development in Africa,
2007, Journal of African Law, 51, 2, 173
34.
Stephen Barner, Why Terra Nullius?
Anthropology and Property Law in Early Australia, 2005, Law and History Review
February 2005, Vol. 23, No. 1, 95
35.
Jeremie Gilbert, Indigenous People’s land
Rights under International Law: From Victims to Actors (Transnational
Publishers, 2006)
36.
D. Mcnab, No Place for Fairness:
Indigenous Land Rights and Policy in the Bear Island Case and Beyond (McGill
Queens University Press, 2008)
37.
J. Pereyra ed, Land and Cultural Survival:
The Communal Land Rights of Indigenous Populations in Southern Asia ( Asian
Development Bank, 2009)
38.
L. Basson, White enough to be American? :
Race Mixing, Indigenous People and the Boundaries of the State and Nation
(University of North Carolina Press, 2008)
39.
A. Robinson, The White Possessive:
Property, Power and Indigenous Sovereignty (University of Minnesota Press,
2015)
40.
S. Krakoff ed, Law, Property and Society:
Tribes, Land and the Environment (Ashgate Publishers, 2012)
41.
J. Pritchard, Securing Community Land and
Resource Rights in Africa: A Guide to Legal Reform and Best Practices (Fern
Publishers, 2013)
42.
Shawn Brennan, Native title from Mabo to
Akiba: A Vehicle for Change and Empowerment?( Federation Press, 2015)
43.
R. Bartlett, Native title in Australia ( 2nd
edn, Sydney Lexis Nexis Butterworth Publishers, 2004)
44.
Richard Pinero, Indigenous People,
Post-Colonialism and International Law( Oxford University Press, 2005)
45.
K. Ronald, The United Nations Declaration
on the Rights of Indigenous Peoples: A New Dawn for Indigenous Peoples
Rights?(2009 Cornell Law School Inter-University Graduate Student Conference
Papers. Paper 1)
46.
M. A. Stephenson ed, Mabo: A Judicial
Revolution (University of Queensland Press, Brisbane) 1993.
47.
H. McRae, Indigenous Legal Issues: Commentary
and Materials (4th ed, LBC, 2009)
Reports
48.
Report of the African Commission’s Working
Group of Experts on Indigenous Populations Adopted by the African Commission on
Human and Peoples’ Rights at its 28th Ordinary Session (2005)
49.
V. T. Corpuz, Report of the Special
Rapporteur on the Rights of Indigenous Peoples, 2014, A/HRC/27/52
50.
M. Bougdanos, U. N Report: Indigenous Peoples and UN Aid:
A Country's First Inhabitants are No Longer Last in Line, 17 N.Y.L. Sch. J.
Hum. Rts. 931
51.
International Labour Organization and
African Commission on Human and Peoples’ Rights Report on the Status of
Indigenous Populations in 24 Countries (2009)
Notices
52.
Law Society, Professional News, Obituaries
- (1993) LS Gaz, 19 May, 90 (43)
53.
M. Tillotson, Kenya Regiment Union, The
Times (London) Nov, 21, 2007
54.
J. Black, Africa’s Fighting Force, Daily
Mail (London) May 3 2006
55.
P. Hopkirk, African Soldiers, The Times
(London) May 7 2002
56.
A. Ezzart, Is the Nubian Lobby Fit for
Purpose?, Watani, Jul 2 2014
57.
L. Mihaila, Egyptian premier meets with
Nubians, Daily News(Egypt), Dec 9 2012
58.
A. Njagi, Nubians Celebrate Rich Culture
at Bomas, Daily Nation (Kenya), Oct 12 2013
59.
M. Fisher, Knowing Nubia, Al-Ahram Weekly,
Apr 24 2014
Internet Sources
Encyclopedias
60.
The Editors of Encyclopedia Britannica,
'South America’s indigenous peoples: Year in review 1999 | south America',
Encyclopedia Britannica (2016) https://www.britannica.com/topic/South-Americas-Indigenous-Peoples-555848 (accessed 10 October 2016)
61.
'Indigenous governance -- Britannica
online encyclopedia', Encyclopædia Britannica https://www.britannica.com/print/article/1930016 (accessed 10 October 2016)
62.
The Editors of Encyclopædia Britannica,
'Native American | indigenous peoples of Canada and United States',
Encyclopædia Britannica (2016) https://www.britannica.com/topic/Native-American (accessed 10 October 2016)
63.
'Nubian languages', Encyclopædia
Britannica (2016) https://www.britannica.com/topic/Nubian-languages (accessed 10 October 2016)
64.
‘Twitter Feed’ (10 September 2010) http://africanarguments.org/2010/09/10/the-nubian-predicament-a-story-about-colonial-legacy-discrimination-and-statelessness/ (accessed 10 October 2016)
65.
Ruvaga Lenny, ‘Nubians in Kenya Face Land
Challenges’ (24 June 2015) http://www.voanews.com/a/nubians-kenya-land-challenges/2836288.html (accessed 10 October 2016 )
66.
Achuka Vincent, ‘Nubians Fear State Will
Not Give Them Kibera Land Title’ (Nation Media Group, 13 June 2015) http://www.nation.co.ke/news/Nubians-fear-State-will-not-give-them-Kibera-land-title/1056-2751286-tixxz/index.html (accessed 10 October 2016)
67.
MUSINGUZI B, ‘100 Years of Nubians in East
Africa in Black and White’ (The East African) http://www.theeastafrican.co.ke/magazine/100-years-of-Nubians-in-East-Africa-in-black-and-white-/434746-1428422-y9txpiz/index.html (accessed 10 October 2016)
68.
Greg Constantine , ‘Kenya’s Nubians: Then
& Now’ (2013) http://www.nubiansinkenya.com/ (accessed 10 October 2016)
69.
Lata Sabah, ‘Kenya Nubian Culture’ https://www.youtube.com/watch?v=3oaYT25bOFI (accessed 10 October 2016)
70.
Lata Sabah, ‘Harusi Ya Wanubi’ https://www.youtube.com/watch?v=qehrXQd8rN4 (accessed 10 October 2016)
71.
Gbs Kenya, ‘NUBIANS’ LAND’ https://www.youtube.com/watch?v=uwKf7h0ETc0 (accessed 10 October 2016)
72.
KiberaNewsNetwork, ‘Nubians Threaten to
Stop Uhuru’s Project in Kibera’ https://www.youtube.com/watch?v=NZ80lyLIq0M (accessed 10 October 2016)
73.
Saba Lata, ‘Stateless Nubians’ https://www.ssyoutube.com/watch?v=n8N_Dbpvsp8 (accessed 10 October 2016)
74.
K24TV, ‘Members of Makonde Community to Be
Issued with Kenyan ID Cards’ https://www.youtube.com/watch?v=PQzb5SlkfBE (accessed 10 October 2016)
75.
tasyurrrr, ‘Al Jazeera: Kenya’s Nubians Strive
for Recognition’ https://www.youtube.com/watch?v=gcBciUrCA8Y (accessed 10 October 2016)
76.
NTDTV, ‘Ethnic Nubians Fight for Land’ https://www.youtube.com/watch?v=57T_sx6uAFU (accessed 10 October 2016)
77.
K24TV, ‘Who Owns Kibera?’ https://www.youtube.com/watch?v=Qks4ik0wmY4 (accessed 10 October 2016)
78.
Kenya CitizenTV, ‘Tension in Kibera over
Issuance of Title Deeds’ https://www.youtube.com/watch?v=egMya4TN78w (accessed 10 October 2016)
79.
KTN News Kenya, ‘Nubians Demonstrated
after President Failed to Issue Title Deeds’ https://www.youtube.com/watch?v=QOb5afT7KQM (accessed 10 October 2016)
80.
K24TV, ‘Untold Nubian Narrative Prt 2’ https://www.youtube.com/watch?v=0siyqItaTd0 (accessed 10 October 2016)
81.
KTN News Kenya, ‘Historical Land Injustice
in Kibera’ https://www.youtube.com/watch?v=Iwot-4Hc8Lk (accessed 10 October 2016)
82.
President Kenyatta Makes Impromptu Visit
to Kibera Slums to Inspect Clean-up Exercise’ https://www.youtube.com/watch?v=c--5EcT9M90 (accessed 10 October 2016)
83.
The Nubian Community in Kibera Slum
Challenges the Ongoing Upgrade Project’ https://www.youtube.com/watch?v=wMWtkFb8NFQ (accessed 10 October 2016)
84.
Thomas S. Foley Institute, ‘The Rights of
Indigenous Peoples - James Anaya’ https://www.youtube.com/watch?v=OK9tCC3A4go (accessed 10 October 2016)
85.
IAMHH Temple, ‘UN Declarations on the
Rights of Indigenous Peoples - Moorish Americans or “black” Who Are You?’ https://www.youtube.com/watch?v=ATLgZ4B1Fp4 (accessed 10 October 2016)
86.
Australian Human Rights Commission, ‘UN
Declaration on the Rights of Indigenous Peoples’ https://www.youtube.com/watch?v=bB2uZxekt-k (accessed 10 October 2016)
87.
Native American Voters Alliance, ‘What Is
the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP)?’ https://www.youtube.com/watch?v=Erk9JgJLCC0 (accessed 10 October 2016)
88.
Indigenous Peoples Law and Policy Program
- The University of Arizona, ‘The Significance of the Declaration on the Rights
of Indigenous Peoples: Closing Statement’ https://www.youtube.com/watch?v=MsWvVOtyDxM (accessed 10 October 2016)
89.
Arctic Centre U of L, ‘Legal Standards of
Indigenous People’ https://www.ssyoutube.com/watch?v=bTVsSIkwKns (accessed 10 October 2016)
90.
Arctic Centre, University of Lapland,
‘Indigenous Peoples’ Rights in Latin America’ https://www.youtube.com/watch?v=Wz5v7qb-Yaw (accessed 10 October 2016)
91.
Arctic Centre, University of Lapland,
‘Indigenous Peoples’ Rights in Canada’ https://www.youtube.com/watch?v=G3COZ0nriRU (accessed 10 October 2016)
92.
SommerFilms, ‘INDIGENOUS PEOPLES RIGHTS
DECLARATION U.N. Part 1’ https://www.youtube.com/watch?v=n-Z-FzCJ6-Y (accessed 10 October 2016)
93.
Jeffrey Warner, ‘When Can We Go Back? The
Rights of Indigenous Peoples to Their Lands’ https://www.youtube.com/watch?v=Gpt_Mq4HJWc (accessed 10 October 2016)
94.
websolve, ‘Twitter Feed’ (10 September
2010) http://africanarguments.org/2010/09/10/the-nubian-predicament-a-story-about-colonial-legacy-discrimination-and-statelessness/ (accessed 10 October 2016)
95.
WITNESS, ‘Rightful Place: Endorois’ Struggle
for Justice’ https://www.youtube.com/watch?v=kl6XSG6quMo (accessed 10 October 2016)
96.
AP Archive, ‘KENYA: OGIEK TRIBE EVICTION
TRIAL’ https://www.youtube.com/watch?v=k_gNQT3iyrw (accessed 10 October 2016)
[1] Wikipedia, African Military
Systems to 1800, Wikipedia (Wikimedia Foundation 2016) https://en.wikipedia.org/wiki/African_military_systems_to_1800#The_fighting_forces_of_Egypt_and_Nubia
<accessed 21 November 2016>
[2] Ibid n 1
[3] 'Nubian languages', Encyclopædia
Britannica (2016) https://www.britannica.com/topic/Nubian-languages <accessed 10 October 2016>
[4] Thomas Ian, ‘Nubia and the Noba
People’ (Black History Month, 14 February 2008)
<http://www.blackhistorymonth.org.uk/article/section/pre-colonial-history/nubia-and-the-noba-people/>
<accessed 21 November 2016>
[5] Quincy Kiptoo, Nubian Land
Quandary (24/3/2016) http://quincykiptooslawsolutions.blogspot.co.ke/2016/03/nubian-land-quandary.html <accessed on 28/11/2016>
[6] De Smiedt, “ ‘Kill me quick’, A
history of Nubian Gin in Kibera”, International Journal of African Historical
Studies, (2009) 201
[7] Makau Mutua ‘Kenya’s Quest for
Democracy: Taming Leviathan’, Boulder, Colo. Lynne Rienner Publishers, (2008)
53
[8] Yash Pal Ghai and others, ‘Public
Law and Political Change in Kenya’, Oxford University Press, (1970) 536
[9] Ibid 3
[10] Nubian Community in Kenya v Kenya
,Communication 317/06 A.F.C.H.P.R, AHRLR, 2010, 32 (157)
[11] Nubian Community in Kenya v Kenya
,Communication 317/06 A.F.C.H.P.R, AHRLR, 2010, 45, [155]
[12] Jackton Boma Ojwang,
Constitutional Development in Kenya: Institutional Adaptation and Social Change
A.C.T.S Press (1990)
[13] NTDTV, ‘Ethnic Nubians Fight for
Land’ (Sep 21 2009) https://www.youtube.com/watch?v=57T_sx6uAFU
(accessed 10 October 2016)
[14] Nubian Community in Kenya v Kenya ,Communication 317/06
A.F.C.H.P.R, AHRLR, 2010, 45 [169]
[15] Kibera News Network, ‘Nubians
Threaten to Stop Uhuru’s Project in Kibera’ (15 Nov 2014) https://www.youtube.com/watch?v=NZ80lyLIq0M (accessed 10 October 2016)
[16] Ruvaga Lenny, ‘Nubians in Kenya
Face Land Challenges’ (24 June 2015) http://www.voanews.com/a/nubians-kenya-land-challenges/2836288.html
(accessed 10 October 2016 )
[17] Joshua Ogure, ‘Controversy in
Kibera: Nubian Title Deeds and Land Sales’
(5 Nov 2013), http://blog.voiceofkibera.org/?p=704
(Accessed on 8/1/2016)
[18] Vincent Achuka, ‘Nubians Fear State Will Not Give Them Kibera Land Title’ (13 Jun 2015), http://www.nation.co.ke/news/Nubians-fear-State-will-not-give-them-Kibera-land-title/-/1056/2751286/-/ipmowcz/-/index.html (Accessed on 8/1/2016)
[19] Ibid 17
[20] Ibid 17
[21] Citizen TV Kenya, ‘Tension in
Kibera over Issuance of Title Deeds’ (4 Dec 2014) https://www.youtube.com/watch?v=egMya4TN78w
(accessed 10 October 2016)
[22] KTN News Kenya, ‘Nubians
Demonstrated after President Failed to Issue Title Deeds’ (9 Dec 2013) https://www.youtube.com/watch?v=QOb5afT7KQM
(accessed 10 October 2016)
[23] Indigenous Peoples and the United
Nations Human Rights System, Fact Sheet No 9, Rev 2, OCHR, 2013, Pg 4; See also
http://www.ohchr.org/Documents/Publications/fs9Rev.2.pdf (Accessed on 8/1/2016)
[24] A. Kwame, Land Rights of
Indigenous Peoples in Africa With Special Focus on Central, Eastern and
Southern Africa, IWGIA Publishers (2010) 25
[25] O'Brien Joseph V. "The Berlin
Conference: The General Act of Feb. 26, 1885." 31 Jan. 2007 <http://www.servingthenations.org/nl/articles/europe---africa-berlin-congo-conference-1-historical-overview>
Accessed on
11/27/2016
[26] ILO Convention, no 169, Convention
on Indigenous and Tribal People, adopted on 27 June 1989 by the General
Conference of the International Labour Organization at its seventy-sixth
session, entered into force 5 September 1991, 72 ILO Official Bulletin 59
[27]
Ibid 24
[28]
Ibid 24
[29] UN Sub-Commission on Prevention of
Discrimination and Protection of Minorities, Study of the Problems of
Discrimination Against Indigenous Population, UN, 1986 UN Doc E/CN4 Sub 2
1986/7
[30] George Mukundi, Vindicating
Indigenous People’s Land Rights in Kenya, Dphil thesis, University of Pretoria
(2008) 66
[31] Communication 276/2003, 2009,
AHRLR; See also http://www.refworld.org/docid/4b8275a12.html (Accessed on 8/1/2016)
[32] African Commissions Report of the
African Working Group of Experts on Indigenous Populations and Communities,
2005, Adopted by The African Commission on Human and Peoples’ Rights at its
28th ordinary session, 93 ; See also http://www.ohchr.org/EN/Issues/IPeoples/Pages/MandateWGIP.aspx#membership
<Accessed on 8/1/2016>
[33]
IHRL 1508 (IACHR 2005)
[34] Ibid n 29
[35]
IACHR Series C No 185 IHRL 3058 (IACHR 2008)
[36] Article 56(d)
[37]
O'Brien Joseph V. "The Berlin Conference: The General Act of Feb.
26, 1885." 31 Jan. 2007 <http://www.servingthenations.org/nl/articles/europe---africa-berlin-congo-conference-1-historical-overview> Accessed on 11/27/2016
[38] Mabo v Queensland (No 2) ("Mabo case") [1992] HCA 23;
(1992) 175 CLR 1 (3 June 1992) 23
[39] R. Epstein, Possession as The Root
of Title, Vol. 13 GLR, (1979) 1220
[40] Seth Gordon, Indigenous Rights in
Modern International Law from a Critical Third World Perspective, AILR Vol
2, (2007) 15
[41] Seth Gordon, Indigenous Rights in
Modern International Law from a Critical Third World Perspective, AILR Vol
2, (2007) 15
[42] Convention Concerning the
Protection and Integration of Indigenous and Other Tribal and Semi-Tribal
Populations in Independent Countries, adopted in Geneva 40th
session, entry into force 02 Jun 1959
[43] Martin Koskenniemi, Gentle
Civilizer of Nations, Cambridge University Press (2001) 88
[44] A. Kwame, Land Rights of
Indigenous Peoples in Africa With Special Focus on Central, Eastern and
Southern Africa IWGIA Publishers (2010) 66
[45] James Anaya, Indigenous People
under in International Law Oxford University Press (2004) 120
[46] J. Gilbert, Indigenous People’s
land Rights under International Law: From Victims to Actors, Transnational
Publishers (2006) 144
[47] Applicants Submissions,
Communication 317/06 AFCHPR, AHRL (2010); See also https://www.opensocietyfoundations.org/sites/default/files/ali-communication-20100517.pdf <accessed on 11/27/2016>
[48] Communication: No. 002/2009
ACERWCLR, AHRLR (2009)
[49] IACHR No. 185, IHRL 3058 IACHRLR
(2008)
[50] Communication 276/03, AFCHPR,
AHRLR (2009)
[51] No. 2 (1992) HCA 23 (1992)
[52] Jeremy Waldron, ‘Property and
Ownership’, (Stanford Encyclopedia on Philosophy, Sep 6, 2004) 4, See at <http://plato.stanford.edu/entries/property/> accessed on 27/8/2016
[53] Richard Barnes, Property Rights
and Natural Resources Studies in International Law, Vol 22, Hart Publishers, (2009) 167
[54] Takashi Shogimen, Ockham and
Political Discourse in the Late Middle Ages, Cambridge University Press, (2007)
36
[55] Hugo Grotius, On the Law of Prize
and Booty 1603 (trs), Clarendon Press, (1950) 226
[56] The Editors of Encyclopædia
Britannica, ‘Saint Francis of Assisi | Italian Saint’, Encyclopædia Britannica
(Encyclopædia Britannica 2016)
<https://www.britannica.com/biography/Saint-Francis-of-Assisi> accessed
9/9/2016.
[57] Alan Watson ed, The Digest of
Justinian, Vol 1, University of Pennsylvania Press, (2009) 48
[58] Hugo Grotius, On the Law of Prize
and Booty 1603 (trs), Clarendon Press (1950) 228
[59] John Kilchullen, A Letter to the
Friars Minor and Other Writings (trs), Cambridge University Press (1995) 34
[60] Andreas Black, Dominingo De Soto
on Justice to the Poor, Vol 25 IHR (2015) 133
[61] Philotheus Boehner and others ed,
Ockham Philosophical Writings trs, Hackett Publishing (1990) 76
[62] Thomas Williams, ‘John Duns
Scotus’ (Stanford Encyclopedia of Philosophy, 12 January 2015)
<http://plato.stanford.edu/entries/duns-scotus/> accessed 10 November
2016.
[63] John Simmons, The Lockean Theory
of Rights, Princeton University Press (1994) 236
[64] Joseph William, Original
Acquisition of Property: From Conquest and Possession to Democracy and Equal
Opportunity, ILJ, Vol 86 (2011) 770
[65] Alison Clarke, Property Law,
Commentary and Materials, Cambridge Press (2005) 146
[66] Rogers Epstein, Possession as The
Root of Title, Vol. 13 GLR (1979)
1220
[67] Richard Posner, Economic Analysis
of Law ,Boston, Little Brown Publishers 2nd edn (1977) 21
[68] Neil Bond and others, Property,
Aspen Publishers (2009) 6
[69] Judge Livingstone, Pierson v Post, NYLR 1805
[70] Andrea McDowell, Legal Fictions in
Pierson v. Post, MLR Vol. 105 (2007) 48
[71] Bethany Berger, It’s Not About The
Fox: The Untold History of Pierson v Post, DLJ, Vol 55(2006) 1109
[72] William Blackstone, Commentaries
on the Laws of England, 6, 268
[73] 39 Cal. 24 (1870)
[74] Wesley Newcomb Hohfeld,
Fundamental Legal Conceptions as Applied in Judicial Reasoning, Yale University
Press (1946) 34
[75] Nubian Community in Kenya v Kenya ,Communication 317/06
A.F.C.H.P.R, AHRLR, 2010, 45, (169)
[76] Makau Mutua and Anthony Anghie,
What Is TWAIL? ASIL Vol 94(2000) 32
[77] International Day of the World’s
Indigenous Peoples’ (United Nations, 2005)
<https://www.un.org/development/desa/indigenouspeoples/international-day-of-the-worlds-indigenous-peoples.html>
accessed 28 November 2016
[78] Ibid 24
[79] Sven Linqvist and others, Terra
Nullius: A Journey Through No One's Land, The New Press (2005) 130
[80] Robert Miller and others,
Discovering Indigenous Lands : The Doctrine of Discovery in the English
colonies, The Oxford University Press (2010) 15
[81] Fazal Tanisha, State Death : The
Politics and Geography of Conquest, Occupation, and Annexation, Princeton
University Press (2011) 37
[82] Carl Ceuleman, Reluctant Justice :
A Just War Analysis of the International Use of Force in the Former Yugoslavia
(1991-1995), Vub Press (2005) 29
[83] Ibid 29
[84] Mieke Lindel, The Acquisition of Africa (1870-1914): the
Nature of Nineteenth-Century International Law, Wolf Legal Publishers (2014) 17
[85] Ibid 29
[86] Ibid 32
[87] Walter Rodney, How Europe
Underdeveloped Africa, Howard University Press (1981) 8
[88] Jeremie Gilbert, Indigenous People
Indigenous Peoples' Land Rights under International Law : From Victims to
Actors, Nijhoff Publishers (2007) 102
[89] Seth Gordon, Indigenous Rights in
Modern International Law from a Critical Third World Perspective, AILR Vol
2, (2007) 15
[90] David Kennedy, When Renewal
Repeats: Thinking Against the Box, 32 NYUJ (2000) 335
[91] Ibid 37
[92] Karin Mickelson, Rhetoric and
Rage: Third World Voices in International Legal Discourse, 16 W.I.S.I.L.J (1998)253
[93] Obiora Okafor, Newness,
Imperialism, and International Legal Reform in Our Time: A TWAIL Perspective,
43 OHLJ (2005) 174
[94] James Gathii, Imperialism,
Colonialism and International Law, Vol 50 BLR (2006) 1016
[95] James Gathii, TWAIL* A Brief
History of its Origins, its Decentralized Network, and a Tentative Bibliography
TDLDF, Vol 26 (2011) 2
[96] Adopted 22 May 1969, entered into
force 27 January 1980
[97] Adopted 26 June 1945, entered into
force 24 October 1945
[98] Anthony Anghie, Finding the
Peripheries: Sovereignty and Colonialism in Nineteenth-Century International
Law, Vol 40, HILJ (1999) 4
[99] Adopted 26 June 1945, entered into
force 24 October 1945
[100] Ibid 42
[101] James Gathii, Imperialism,
Colonialism and International Law, Vol 50 BLR (2006) 1013
[102] Ibid 38
[103] Ibid 38
[104] Adopted June 26, 1957, entered
into force June 2, 1959, 328 UNTS 247
[105] Seth Gordon, Indigenous Rights in
Modern International Law from a Critical Third World Perspective, AILR Vol
2, (2007) 15
[106] Article 2 (1) Ibid 53
[107] Article 2 (3) Ibid 53
[108] James Anaya, Indigenous People
under in International Law (Oxford University Press (2004) 67
[109] Ibid 54
[110] Ibid 58
[111] Convention concerning Indigenous
and Tribal Peoples in Independent Countries, Adopted in Geneva, 76th ILC
session (27 Jun 1989), entered into force Entry into force: 05 Sep 1991
[112] Article 2(1) Ibid 60
[113] Article 16(2) ibid 60
[114] Adopted by the General Assembly, 2
October 2007, entered into force N/A
[115] African Commissions Report of the
African Working Group of Experts on Indigenous Populations and Communities,
2005, Adopted by The African Commission on Human and Peoples’ Rights at its
28th ordinary session,93 ; See also
http://www.ohchr.org/EN/Issues/IPeoples/Pages/MandateWGIP.aspx#membership <Accessed on 8/1/2016>
[116] Musinguzi Ben, ‘100 Years of Nubians in East Africa in
Black and White’ (The East African)
http://www.theeastafrican.co.ke/magazine/100-years-of-Nubians-in-East-Africa-in-black-and-white-/434746-1428422-y9txpiz/index.html (accessed 10 October 2016)
[117] The Nubian Community in Kibera
Slum Challenges the Ongoing Upgrade Project’
https://www.youtube.com/watch?v=wMWtkFb8NFQ
(accessed 10 October 2016)
[118] Ibid 2
[119] African Commissions Report of the
African Working Group of Experts on Indigenous Populations and Communities,
2005, Adopted by The African Commission on Human and Peoples’ Rights at its
28th ordinary session,93 ; See also http://www.ohchr.org/EN/Issues/IPeoples/Pages/MandateWGIP.aspx#membership <Accessed on 8/1/2016>
[120] Lata Sabah, ‘Harusi Ya Wanubi’
https://www.youtube.com/watch?v=qehrXQd8rN4
(accessed 10 October 2016)
[121] Lata Sabah, ‘Kenya Nubian Culture’
https://www.youtube.com/watch?v=3oaYT25bOFI
(accessed 10 October 2016)
[122] K24TV, ‘Untold Nubian Narrative
Part 2’, https://www.youtube.com/watch?v=0siyqItaTd0 (accessed 10 October 2016)
[123] The Santana Life, ‘Dr. Umar
Abdullah Johnson “AFRIKAN SPIRITUALITY VS. BLACK RELIGION”’
<https://www.youtube.com/watch?v=YOf7G0QtEQo> accessed 2 December 2016
[124] (2004) AHRLR 105 (ACHPR 2004)
[125] 'Nubian languages', Encyclopædia
Britannica (2016) https://www.britannica.com/topic/Nubian-languages (accessed 10 October 2016)
[126] Communication: No. 002/2009
ACERWCLR, AHRLR (2009)
[127] Ibid
[128] African Commissions Report of the
African Working Group of Experts on Indigenous Populations and Communities,
2005, Adopted by The African Commission on Human and Peoples’ Rights at its
28th ordinary session,93 ; See also http://www.ohchr.org/EN/Issues/IPeoples/Pages/MandateWGIP.aspx#membership <Accessed on 8/1/2016>
[129] Lata Sabah, ‘Kenya Nubian Culture’
https://www.youtube.com/watch?v=3oaYT25bOFI
(accessed 10 October 2016)
[130] Ibid n 15
[131] African Commissions Report of the
African Working Group of Experts on Indigenous Populations and Communities,
2005, Adopted by The African Commission on Human and Peoples’ Rights at its
28th ordinary session,93 ; See also
http://www.ohchr.org/EN/Issues/IPeoples/Pages/MandateWGIP.aspx#membership <Accessed on 8/1/2016>
[132] Ibid 12
[133] Communication 317/06 AFCHPR, AHRL
(2010); See also
https://www.opensocietyfoundations.org/sites/default/files/ali-communication-20100517.pdf
<accessed on 11/27/2016>
[134] CCPR, Gen. Com. 23, Art. 27, 50th
Sess. (1994) adopted by HRT, U.N Doc. HR1/Gen/1/Rev. at 158 (2003)
[135] Will Kymlicka, Multicultural
Citizenship, Oxford University Press (1999) 134
[136] Ibid 15
[137] Ibid 15
[138] Preamble, United Nations
Declaration on the Rights of Indigenous Peoples, adopted by the General
Assembly on 13 Sep 2007
[139] Preamble, United Nations
Declaration on the Rights of Indigenous Peoples, adopted by the General
Assembly on 13 Sep 2007
[140] Kakungulu, Ronald,The United
Nations Declaration on the Rights of Indigenous Peoples: A New Dawn for
Indigenous Peoples Rights? Cornell Law School Inter-University Graduate Student
Conference Papers, (2009) 13
[141] Miscellaneous Civil Application
No. 128 of 1999 H.C, Nakuru
[142] Shawn Brennan, Native title from Mabo to Akiba: A
Vehicle for Change and Empowerment?, Federation Press (2015) 77
[143] Article 10, United Nations
Declaration on the Rights of Indigenous Peoples, adopted by the General
Assembly on 13 Sep 2007
[144] Article 11, United Nations
Declaration on the Rights of Indigenous Peoples, adopted by the General
Assembly on 13 Sep 2007
[145] (1997-2000). HC - Nakuru,
Miscellaneous Civil Application No. 522 of 1998 eKLR
[146] Communication 276/03, AFCHPR,
AHRLR, 2009
[147] Report of the African Commission’s
Working Group of Experts, Submitted in accordance with the “Resolution on the Rights of Indigenous
Populations/Communities in Africa”, Adopted by the African Commission on
Human and Peoples’ Rights at its 28th Ordinary Session (2005)
[148] Mabo v Queensland (No 2) ("Mabo case") [1992] HCA 23;
(1992) 175 CLR 1 (3 June 1992), Pg 23
[149] R. Barnes , Property Rights and
Natural Resources, Cambridge Press, 2009, Pg 133
[150] N. Graham, Lawscape, Property,
Environment and Law, Glasshouse
Publishers, 2011, pg 143
[151] IACHR Series C No 185 (Official
Citation) IHRL 3058 (IACHR 2008) (OUP reference)
[152] Subsection (d)
[153] E.L.C Civil Suit No. 821 of 2012
(2014) EKLR
[154] ‘Twitter Feed’ (10 September 2010)
http://africanarguments.org/2010/09/10/the-nubian-predicament-a-story-about-colonial-legacy-discrimination-and-statelessness/ (accessed 10 October 2016)
[155] HC − Arusha, CV No 10/1981
[156] D. Jur, S.C
[157] Cj’s Public Lecture at University
of Nairobi, 21.08.2012
[158] Paul Syagga, Public land,
Historical Land Injustices and the New Constitution, SID Constitution Working
Paper No 9, Regal Press Kenya (2012)
16
[159] In Re Southern Rhodesia 1919 AC
211, 233
[160] Ibid
[161] Article 63 (1) Constitution of
Kenya 2010
[162] Article 63(1)(d) Constitution of
Kenya 2010
[163] Article 63 (4) Constitution of
Kenya 2010
[164] Mighot Adholla and others,
Indigenous Land Rights Systems in Sub-Saharan Africa: A Constraint on Productivity?,
The World Bank Economic Review, Vol. 5, No. 1 (1991) 165
[165]
Constitution
of Kenya 2010, Art10
[166] Constitution of
Kenya 2010, Art 56
[167] Emma Sorensen, ‘Compulsory
acquisition’: The Basics, 16 AUG 2016, <http://www.realestate.com.au/advice/compulsory-acquisition-the-basics/> Accessed on 9/12/2016
[168] S. Hepburn, Principles of Property Law, 2nd edn, Cavendish
Publishers, 2001, pg 252
[169] No 6 of 2012
[170] Section 107(3) Land Act No 6 of
2012
[171] 2016
[172] Section 22(2) Community Land Act
2016
[173] First Peoples Law Corporation,
Duty to Consult, Barristers and Solicitors Press (2016) 11
[174] 2015 BCCA 345
[175] EAO, 2015 BCSC 1180
[176] Tara Ward, The Right to Free,
Prior, and Informed Consent: Indigenous Peoples’ Participation Rights within
International Law, Vol 2 NJIHR (2011) 3
[177] Section 107 (7) Land Act No 6 of
2012
[178] A. Hudson, New Perspectives on
Property Law, Obligations and Restitutions, Cavendish Publishers (2004) 120
[179] Section 111 Land Act No 6 of 2012
[180] Section 112 Land Act No 6 of 2012
[181] Section 112 (3) Land Act No 6 of
2012
[182] Section 112 (4) Land Act No 6 of
2012
[183] Section 112 (5) Land Act No 6 of
2012
[184] Section 113 (1) Land Act No 6 of
2012
[185] N. Duckworth, Property Law and
Practice, College of Law Publishers (2011) 256
[186] Section 114 (1) Land Act No 6 of
2012
[187] Section 114 (2) Land Act No 6 of
2012
[188] Section 115 Land Act No 6 of 2012
[189] Section 120 (1) Land Act No 6 of
2012
[190] Section 120 (2) Land Act No 6 of
2012
[191] Section 128 Land Act No 6 of 2012
[192] Social and Economic Rights Action
Centre (SERAC) and Another v Nigeria (2001) AHRLR 60 (ACHPR 2001)
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