In the lead-up to the 15th anniversary of the Constitution of Kenya 2010, Kabarak Law School hosted a dynamic panel discussion under the Avid Readers Forum on Wednesday, 9th July 2025. With the theme “Collective Rights in Kenya”, the forum explored environmental stewardship, intergenerational justice, and the collective rights of communities. Moderated by Carson Kiburo, a law student and indigenous rights advocate, the conversation brought together key legal voices and human rights defenders.
Following an opening prayer by Ms Monica Loko, Carson welcomed all panelists and members of the audience before framing the discussion by highlighting how the 2010 Constitution marked a paradigm shift from individual to collective and solidarity-based rights. He noted that the Bill of Rights not only guaranteed individual dignity but also community interests, environmental stewardship, and intergenerational justice. He identified Articles 42, 56, and 69 of the Kenyan Constitution as central to environmental protection, community interests, intergenerational equity, and sustainable development. Carson then introduced the panelists and emphasized that the discussion would explore how jurisprudence from Kenyan courts and the regional and continental regimes, such as the African Court, has shaped the indigenous rights discourse.
Discussion
Mr Daniel Kobei
The first panelist, Mr. Daniel Kobei, founder and executive director of the Ogiek Peoples’ Development Program and representative to the International Indigenous Forum on Biodiversity, provided a compelling narrative of the Ogiek community’s struggle for recognition and land rights.
Tracing the history from colonial marginalization to landmark victories, he recalled persistent efforts to resist forced assimilation and eviction from the Mau Forest.
Additionally, he noted that although a partial land allocation was made by President Moi, encroachment by other communities led to prolonged litigation in the High Court. Following years of stalled justice and an eviction order by the Kenya Forest Service, the Ogiek community filed a case with the African Commission in 2009, which referred it to the African Court in 2012. The Court’s 2017 ruling affirmed the Ogiek as an indigenous people with land rights, inspired in part by the earlier Endorois case. However, despite a reparations judgment in 2022, Kobei stated that there was poor implementation due to political reluctance and lack of goodwill. He emphasized that the community’s ongoing efforts in forest restoration, cultural preservation, and intergenerational leadership by engaging the youth is vital to their resilience.
Ms Emily Kinama
The second panelist, Emily Kinama, Advocate of the High Court of Kenya and head of strategic litigation at Katiba Institute, discussed the development of environmental and climate jurisprudence in Kenya. She emphasized the significance of Article 42, supported by Articles 69 and 70, which uniquely assign environmental protection responsibilities to both the state and individuals.
She highlighted the importance of the precautionary principle, embedded in Article 70(3) of the Kenyan Constitution, as it empowers courts to act even before environmental harm occurs, which is an essential tool in climate litigation where scientific proof of harm can be difficult to establish. Additionally, she lauded prior efforts in environmental and climate litigation by key figures like Prof. Wangari Mathai and highlighted successful cases handled by Katiba Institute. These cases include: the Save Lamu Case (Save Lamu & 5 others v National Environmental Management Authority (NEMA) & another) (2019), where a proposed coal power plant in Lamu was challenged for lack of public participation in the Environmental Impact Assessment (EIA) process.
Ms Kinama also criticized legislative attempts to dilute environmental safeguards, such as efforts to remove automatic stays on appeals through unrelated legislative amendments. Ms Kinama stressed the need for meaningful free, prior, and informed consent (FPIC) and warned against treating participation as a procedural formality. Moreover, she advocated for equitable land valuation that accounts for cultural and ecological values, and the integration of indigenous knowledge in conservation.
Mr Donald Deya
The final panelist, Mr. Donald Deya, Advocate of the High Court of Kenya, CEO of Pan African Lawyers Union (PALU), Chairperson of the Pan African Citizens Network and Board Chair International Coalition for Responsibility to Protect offered a regional perspective, drawing from his experience as lead counsel at the African Court on Human and Peoples’ Rights. He situated third-generation rights within the African Charter, which enshrines solidarity rights such as development, peace, and environmental protection (Articles 18–24).
Furthermore, he lauded the Treaty for the Establishment of the East African Community, which emphasizes collective rights under Articles 110-114. Regarding the same, he noted the development of jurisprudence both in the EAC and continental legal regimes, highlighting cases such as African Network for Animal Welfare V The Attorney General of the United Republic of Tanzania (2010) in the EACJ.
However, he pointed out that while Kenya has ratified the African Court Protocol, it has not made the Article 34(6) declaration permitting individuals to access the Court directly. He stated that as a result, communities like the Ogiek must first go through the African Commission, which is an extra layer that delays justice.
Mr Deya thus emphasized that with only eight African countries having granted their citizens such access to the African Court, exhaustion of local remedies was sacrosanct or the proving of their ineffectiveness. He praised the Ogiek case as a model of successful navigation through both domestic and regional systems and a good example of contentious litigation. Mr Deya also discussed advisory opinions as a non-contentious tool to clarify the obligations of states, especially regarding climate change, and argued that they could shape future litigation and legislation on climate damages and environmental governance.
Q and A
The audience questions revolved around FPIC, carbon trading, and the intersection of land tenure and urban planning laws with indigenous rights.
Mr. Kobei emphasized the need for community-developed FPIC and bicultural protocols, involving elders, legal experts, and technical persons in arriving at informed decision-making by the Ogiek. Ms Kinama added that FPIC must be process-oriented, not a one-time event, and warned against government-imposed consent structures, stressing that communities should determine their representatives and timelines for deliberation.
On urban expansion, Ms Kinama pointed out that urban property laws inadequately address communal land rights, although courts have recently safeguarded unregistered community land against illegal transfers.
Closing Reflections
Ms Kinama stressed that Kenya already has a strong legal framework, including environmental impact assessments and public participation requirements, but that the problem lies in non-compliance. In turn, she called for strict adherence to constitutional provisions and court rulings. Ms Shiru Muigai emphasized on the importance of speaking up and continuously advocating for the respect and honor of collective rights through litigation. This would in turn push leaders to respect the judgements rendered by courts on these rights.
Mr. Kobei echoed the importance of cultural identity and indigenous knowledge, and emphasized holding the state accountable to constitutional promises.
The panel concluded with a shared message: the 2010 Constitution provides a strong foundation for collective rights, but their realization requires persistent advocacy, judicial independence, political will, and community empowerment. The session ended with a vote of thanks from the moderator, Mr Carson Kiburo, and the co-coordinator, Ms Ruth Jebet, both of whom appreciated the panelists for their contributions and the members of the audience for their participation. It was concluded with a closing prayer by Ms Monica Loko.
