Turning Fish Soup Back Into Fish: The Wicked Problem Of African Community Land Rights

Abstract

Africa’s postcolonial disputes over community land rights are a “wicked”
problem, not evil, but resistant to resolution. This article investigates three
such disputes in Kenya (Endorois, Ogiek and Nubian community) where the
African Commission and Court of Human and Peoples’ Rights have determined
in the communities’ favour but the implementation is not progressing, both
because of opposition by the state and the complex and long-standing nature
of the cases. The legal history of colonial trust lands and recent community
land legislation is discussed, the three key cases are summarized, and issues
of indigenous people’s status, admissibility and respondent government
discussed in relation to the UN Declarations on Rights of Indigenous Peoples
(1987), Right to Development (1986), and Land Issues (2009). Practical and
political aspects of implementing the determinations are examined, and
recommendations proposed.