INTRODUCTION
Contemporary Kenyan land policy reform, elaborated in the 2000s, belongs to a relatively ‘new wave’ of land reforms that feed into decentralisation processes and the involvement of civil society in the shaping of policy narratives (Bernstein Reference Bernstein2004: 192). Although these reforms seek to be grounded by participatory processes, so as to exalt their ‘human faces’, they continue to be tempered by a ‘market-friendly’ imprint (Bernstein Reference Bernstein2004: 192). While donors, and especially bilateral donors, remain very relevant in the inception of land reform processes in Africa, one of their important innovations is the ‘wider number of actors involved’, notably civil society organisations (Palmer Reference Palmer, Toulmin and Quan2000: 268). This is due to the aid industry making consultation and participation the managerial mantra of their policy design, in order to achieve aid effectiveness and build consensus on reforms (Papadopoulos & Warin Reference Papadopoulos and Warin2007: 447–8; Lavigne Delville & Thieba Reference Lavigne Delville and Thieba2015).
Thus resulted a domino effect, stemming from the interconnected processes of land reform in southern and eastern African countries, involving the mutualisation of policy design, experts and even policy solutions (Toulmin & Quan Reference Toulmin and Quan2000; Wily & Mbaya Reference Wily and Mbaya2001). The Kenyan case elucidates the complex web of interactions underpinning international and intra-African exchanges that make up transnational networks operating in a specific national context. Not as spontaneous as social movements, these networks are by no means to be reduced to classic top-down donor-recipient relations. They are ‘political spaces, in which differently situated actors negotiate … the social, cultural, and political meanings of their joint enterprise’ (Keck & Sikkink Reference Keck and Sikkink1998: 3). I argue that these negotiations result in different degrees of vernacularisation of the international norms they seek to propagate, which is to say either a hybridisation, or at times a reinterpretation of these international paradigms through the enshrinement of ideas that reflect the specific needs of the local context (Merry Reference Merry2006: 44).
Two critical junctures in Kenyan history catalysed both reform momentum and the development of the transnational reform networks. These were the return to the multiparty democracy of the 1990s, and the initiation of the Constitutional Review of the early 2000s, which in turn paved the way for the long-overdue political changeover at the head of the Kenyan state that occurred in 2002. These institutional shifts influenced policy processes by allowing ‘heightened contingency and high uncertainty’ in decision-making (Capoccia & Kelemen Reference Capoccia and Kelemen2007: 352).Footnote 1 Thus, at the turn of the 2000s, transnational networks contributed to building and maintaining momentum for Kenyan land policy reform. They did so by influencing and shaping land policy narratives through the vernacularisation of international norms that promote the formal recognition of customary land rights.
The networks built upon the vibrancy of Kenyan social movements that, in the 1970s and 1980s, organised various forms of protests calling for the democratisation of the Kenyan state. This internal pressure helped end the one-party state domination, de jure in force since 1982, and to initiate constitutional reforms in 2000 (see inter alia Mutunga Reference Mutunga1999; Nasong'o Reference Nasong'o, Murunga and Nasong'o2007: 25; Mutua Reference Mutua2008). Furthermore, since the liberalisation of the Kenyan political system in 1991, associationism was restructured by the so-called NGO-isation of the Kenyan society argued by Hearn (Reference Hearn1998).Footnote 2 Kenyan social movements thus shifted both their goals and their repertoires of action: they went from advocating for political rights in the 1970s and 1980s to advocating for the recognition of socio-economic rights in the 1990s and 2000s. Central among these demands for socio-economic rights was the acknowledgment of customary and informal land rights for rural and urban communities; this demanded a stark departure from the Kenyan historical land policies that had regulated property rights since 1955.Footnote 3
This paper dissects and reconstructs the interactions between Kenyan professionals (lawyers and academics among others), their international counterparts and the local activists representing rural constituencies, and how they forged advocacy networks. I demonstrate their pivotal role in influencing decision-making during the constitutional and land policy reforms. The institutional shifts at the time allowed an opening up of public space that was previously suffocated by the dictatorial regime of President Daniel arap Moi. As a result of the opening up, the networks’ preferences had a great impact on decision-making. Within this framework, I delve into two levels of analysis that examine the implications of the transnationalisation of collective action in Kenyan land reform arenas. The first relates to the policy process: this study documents how transnational relations helped put land policy reforms on the government's agenda. I single out the key policy entrepreneurs, notably Kenyan professionals and international consultants, who seized critical junctures to infuse decision-making processes with relatively new narratives (Kingdon 1991). The second level of analysis focuses on the agency of Kenyan national and local non-governmental organisations (NGOs) and activists, ostensible representatives of local communities, as they positioned themselves as the translators of community struggles in policy arenas (Merry Reference Merry2006).
The paper explores the initial phase of agenda-setting and formulation of land policy reform, between the end of the 1990s and the beginning of the 2000s. By transnational or multi-scalar mobilisations, I refer to collective action organised by interconnected local, national and international actors, endowed with asymmetric resources, but mutually influencing one another's agenda. This analysis resonates with the literature which holds that agency is a key element in interactions within transnational networks (Keck & Sikkink Reference Keck and Sikkink1998: 11). I document and analyse how interconnections hybridise and, in some cases, reinterpret international narratives and discourses as well as repertoires of actions (or historically specific modes of engagement and political performances: see Tilly Reference Tilly1993–94; Hagmann & Péclard Reference Hagmann and Péclard2010: 544). While international allies were key for local and national Kenyan NGOs, especially insofar as they provided resources and strategies for advocacy and participation in policy processes, international norms and standards were not straightforwardly imported in policies and statues. Kenyan activists’ own histories of dispossession, historical injustices and mobilisations contributed to the adding of content that defined land policy provisions, ultimately hybridising and reinterpreting international paradigms.
Pommerolle (Reference Pommerolle2019: 2) points at the complexity of transnational social movements, as they are embedded in the intrinsically asymmetric relationship that Africa has endured with the Western world. Yet, the author emphasises the political agency of African activists and NGOs, as well as the comparative advantages of the internationalisation of their collective action (Pommerolle Reference Pommerolle2019: 5). Transnational networks were crucial in the conferring of authority on translocal Kenyan actors during national decision-making processes. On the one hand, through the transnationalisation of localised agendas, international paradigms were able to gain traction and became authoritative narratives, especially as stories of land injustices provided a concrete agenda to address recognition of customary tenure and indigenous land rights. On the other hand, the local and historical land claims, in which policy advocacy networks were rooted, gained temporary legitimacy in national and international policy discourses. Transnational connections brought a vision of participatory policymaking that was new to Kenya, and enabled local actors hitherto at the margins of the public arena and policy debates to participate in Kenyan public space and policy processes.Footnote 4 In Kenya, it was the transnational networks that conveyed specific legal interpretations of community land rights to policy arenas.
Internationally, the promotion, since the 1990s, of a land policy paradigm providing for recognition of existing (customary) land rights (instead of land rights privatisation: see inter alia Boone Reference Boone2019) went hand in hand with the growth of aid programmes that focused on the community dimension of development interventions through the support of the so-called ‘grassroots organisations’ (Agrawal & Gibson Reference Agrawal and Gibson1999; Hodgson Reference Hodgson2011: 27). This international trend was especially noticeable in Kenya within two policy arenas: the Kenyan Constitutional Review Conference (2000–2010) and the National Land Policy Formulation Process (2004–2009). Since then, NGOs have embraced an advocacy strategy based on their connections to grassroots organisations to legitimise their demands for statutory recognition of community land claims.
Within the framework of Kenyan land policy reform research, I documented and analysed how transnational networks used advocacy and lobbying strategies to promote a particular narrative that linked the recognition of group-based land rights to broader demands for social justice and land restitutions. The analysis and arguments developed are based on archival and ethnographic research conducted in Kenya between 2014 and 2016. Archival resources were accessed at the Ministry of Lands and at the headquarters of NGOs, courtesy of key actors of the reform process (this is detailed infra). I conducted semi-structured and open-ended interviews, and participant observations in several workshops and conferences held on the subject of community land.
This paper is divided into five sections. After this introduction, an historical section based on literature review and interviews aims to present how, since the 1990s and in the wake of political liberalisation, aid flows were directed to Kenyan social movements thus conveying liberal values and repertoires of action and promoting participation in policy processes, which laid the foundations of transnational networks. Historical contextualisation of land-based conflicts is also laid out to comprehensively grasp the reason why land claims largely informed national socio-political mobilisations in Kenya. The third and fourth sections, entirely based on empirical data, explore and document the emergence of transnational networks in the 2000s, along with the building of their discourse and framing of policy narratives. Two networks are examined: one is the Kenya Land Alliance, an umbrella NGO that has been a key player of contemporary land policy reforms; the other is the Pastoralist Hunter–Gatherer Ethnic Minority Network (PHGEMN), a loose group of community-based organisations, NGOs and individuals that collaborated in the arena of the Constitutional Conference. The conclusion reflects on the implications of the transnationalisation of collective action in the context of Kenyan national and local actors’ appropriation of international norms, hence their hybridisation and reinterpretation. A better understanding of these distorting effects should be rigorously pursued in academic research as well as amongst practitioners.
DETOUR INTO THE 1990S: LAND CONFLICTS, POLITICAL LIBERALISATION AND SOCIAL MOVEMENTS IN KENYA
Since Independence, successive Kenyan governments have gradually dismantled the institutional check and balances provided by the Constitution the British bequeathed to Kenya in 1962: both the regimes of Jomo Kenyatta (1963–1978) and Daniel arap Moi (1978–2001) effected constitutional amendments that sought to re-establish the authoritarian colonial state structure of power concentrated in the executive (Klopp Reference Klopp2001: 80). President Moi's regime became increasingly dictatorial: in the 1990s, to survive Structural Adjustment Programmes and the introduction of aid conditionalities, the regime put in place two strategies in an attempt to maintain power, both leveraging on the one key political resource – land – that had since colonial times been at the heart of the power struggles in ‘making’ the Kenyan state (Harbeson Reference Harbeson1973; Lonsdale & Berman Reference Lonsdale and Berman1979; Médard Reference Médard1999). President Moi accelerated the plundering of Kenyan Government and Trust lands, distributing them among the government's clientele, occasioning a ‘land-grabbing mania’ that compromised state institutions at different levels (Klopp Reference Klopp2001: 82–3; see also Republic of Kenya 2004). He also endeavoured to undermine multi-party politics, which he had no choice but to concede to in 1991. The regime's influential actors incited so-called ‘majimboist conflicts’ (a subset of ethnic clashes) seeking to avoid political turnover and democratic reforms (Klopp Reference Klopp2000: 136; Boone Reference Boone2012: 86–7). This was possible by the reactivation of majimboist ideology, initially developed in the 1960s during negotiations for Independence (see Médard Reference Médard1999: 62–5).Footnote 5
This ideology, professed by the powerful exponents of the President Moi regime, revolved around historical grievances. They included claims of oppression inflicted on the ethnic groups the then President belonged to, i.e. the Kalenjin, by other politically dominant groups, such as the Kikuyu and Luo (Lynch Reference Lynch2011a: 165). This resentment incited conflicts, especially in historically contested territories, such as the Rift Valley. Since certain Kalenjin groups considered the Rift Valley to be their exclusive territorial turf, they resented the fact that the Kikuyu and Luo had settled there in the 1940s to supplement the labour force in British settlements (the so-called White Highlands) (see Kanogo 1989). During the 1990s, ‘migrants’ were assaulted, evicted or even killed to ensure they were unable to vote and that ‘indigenous people’ (linked to the regime) gained the electoral contest (Republic of Kenya 1999: 50–5).
Klopp argues that the mounting land-related conflicts, the ‘land-grabbing mania’, and the resulting spread of landlessness resulted in the emergence of a contestation platform against ethnicised politics, dictatorial rule, irresponsible land alienations and community spoliation (Klopp Reference Klopp2000: 228). The author shows how land tenure security and conservation became the running theme of civic actions that eventually demanded democratisation of land governance. This is evidenced by national mobilisations in the late 1990s, such as the defence of land rights of urban informal settlements and the preservation of urban forest (both in Nairobi) (Klopp Reference Klopp2000: 233–4). The key assumption here is that state interventions in land rights disputes were a fundamental catalyst of socio-political mobilisations, both in local and national arenas.
The extent to which external forces contributed to the shaping of the Kenyan political trajectory cannot be ignored. There is abundant literature on the subject that considers external forces ‘neither peripheral nor determinative’, but ‘constitutive’ of African politics (Latham et al., Reference Latham, Kassimir, Callaghy, Callaghy, Kassimir and Latham2001: 4; see ‘extraversion theory’: Bayart Reference Bayart2000). Holmquist et al. (Reference Holmquist, Weaver and Ford1994: 97) have argued that the democratic platform on which civil society organised since 1990 in Kenya was a direct product of ‘global political trends’: with the demise of bipolarism, and ‘democracy’ becoming the leitmotiv of development discourse and programmes, Kenyan socio-political movements took a radically new outlook focusing on ‘issues of political procedure’.
Indeed, international donors influenced political developments in Kenya in two ways, ultimately contributing to placing constitutional reforms on the government agenda. First, they were directly influential when urging Moi to comply with multiparty democracy. The role of donors in Kenyan political liberalisation has been documented (see Brown Reference Brown, Murunga and Nasong'o2007; Branch Reference Branch2011: 184–6). Second, during the 1990s international actors were indirectly, but perhaps more fundamentally, influential when channelling aid to human rights organisations. As a result of the discontent with the Moi kleptocratic style of government,Footnote 6 Kenyan social forces strategically allied with international actors (such as donors) (Holmquist et al. Reference Holmquist, Weaver and Ford1994: 96–8). This de facto alliance resulted in an exponential increase in aid-flow directed to civil society, which in turn prompted a fundamental restructuring of socio-political movements. Kanyinga (Reference Kanyinga and Mutua2013: 193) explains that ‘[w]ithout a strong opposition, civil society organisations assumed the role of the effective opposition in the state. … Because of renewed donor interest in human rights and democracy, the number of human rights and good governance NGOs … went from fewer than ten in 1990 to about one hundred later in the 1990s.’
Since before Independence, the authoritarian form of government inherited by the British colonial regime caused social movements’ repertoires of action to be antagonistic to the state. ‘Militant trade unionism’ exemplified this model of engagement, as since the 1940s it had fed into the precariousness of land rights and the discontent of the urban working class (Ajulu Reference Ajulu1995: 230). However, trade unionism was first weakened by Kenyatta's regime, and then crushed by Moi's (Sandbrook Reference Sandbrook1970: 24–5). Similarly, since the 1960s, university student movements, along with cultural organisations such as theatre groups, and certain religious leaders have played a very important part in forging and disseminating a discourse promoting equity and redistribution of wealth (Nasong'o Reference Nasong'o, Murunga and Nasong'o2007: 31; InterviewsFootnote 7). These and other movements were fiercely repressed, especially by the Moi regime (Amutabi Reference Amutabi2002: 171). It was only with the reinstatement of political freedoms in the early 1990s that associationism flourished again, but with a radically different outlook – one partially oriented by aid priorities. Since then, NGOs have borrowed their repertoire of action from the Western liberal model of the rule of law.Footnote 8
Pommerolle's study (2005) of the foundation (between 1992 and 1994) and progressive institutionalisation of the Kenya Human Rights Commission (KHRC) perfectly illustrates the transition of Kenyan social movements from a radical and antagonistic repertoire of action aiming at the overhauling of the state, to a moderate approach facilitating collaboration with state and international actors (Pommerolle Reference Pommerolle2005: 73, 84, 91). The institutionalisation of human rights organisations such as the KHRC occurred together with the establishment of a larger civic movement, comprising human rights NGOs, professional bodies and religious leaders, all demanding and eventually obtaining the revision of the Constitution (see Mutunga Reference Mutunga1999; Mutua Reference Mutua2008). The KHRC was born alongside political organisations striving for the liberation of political prisoners. Pommerolle points at the progressive tempering of KHRC repertoire of action because of the professionalisation of its staff and the extraversion of its activities (Pommerolle Reference Pommerolle2005: 183–4). From the early 2000s, it began being consulted by the Kenyan Parliament and external funding grew exponentially (Pommerolle Reference Pommerolle2005: 117–18, 121). According to Hearn (Reference Hearn1998: 96–7), professionalisation and extraversion are two faces of the same coin, ultimately resulting in the institutional integration of NGOs.
It was within this context of political liberalisation and institutionalisation of social movements that the National Constitutional Conference (NCC) commenced its work. This was in December 2001, in the wake of the electoral defeat of President Moi, when a coalition of opposition parties, the National Rainbow Coalition (NaRC), succeeded in gaining power. The hegemonic Kenyan African National Union (KANU), which had dominated the Kenyan political scene for nearly four decades, was then dismissed by the alliance between a faction of KANU dissidents, led by Mwai Kibaki, a historical figure of the party, who had defected since 1988, and a so-called ‘reformist wing’ comprising different political forces and new-entry politicians harvested from ‘civil society’ (Anderson Reference Anderson2003; Pommerolle Reference Pommerolle2005: 397; Amutabi Reference Amutabi, Murunga and Nasong'o2007). The victory of the NaRC was instrumental in institutionalising the land reform agenda, and more particularly the reform narrative that had been building and was advanced by the transnational network. Not only had land reforms been a major platform of the NaRC electoral campaign, but also its reformist wing contributed to creating an environment conducive to a systematic collaboration between government, donors and the NGOs, at least during the first years of its mandate (Branch Reference Branch2011: 251; InterviewsFootnote 9).
Professor Yash Pal Ghai, renowned constitutional expert, chaired the NCC, which took place at the Bomas of Kenya, a cultural centre on the outskirts of Nairobi, after which the Constitutional Conference was nicknamed.Footnote 10 Even though the Constitutional Review Process was entirely sponsored by the Kenyan state, in Ghai & Ghai (Reference Ghai and Ghai2013: 2) the authors acknowledge the importance of the ‘international community’ in encouraging the ‘adoption of new norms of group rights, for indigenous rights and other minorities, supplementing the traditional regime of human (individual oriented) rights’. In the same volume, Abubakar (Reference Abubakar, Ghai and Ghai2013: 33) adds: ‘marginalised communities supported the new constitution, viewing it as a liberation instrument and as a mechanism for resolving the historical injustices that they had endured, including their claims on land’.
With the advent of political liberalisation and the restructuring of civil society, the struggle for the recognition of group rights, understood as ancestral land claims over (‘indigenous’) territories, found new expression, particularly through the advocacy and lobbying actions of NGOs. The following sections analyse the organisation of community claims’ representation in the Constitutional Review Process and in the context of the land policy reform. The analysis highlights the connections through which the ‘community land narrative’ and its promoters gained traction and thus informed the negotiations shaping the land policy reform agenda.
THE TRANSNATIONALISATION OF COLLECTIVE ACTION IN KENYA: THE KENYA LAND ALLIANCE AND PASTORALIST AND HUNTER–GATHERER ETHNIC MINORITY NETWORK
The constitution of the Kenya Land Alliance (KLA) is the most noticeable output of the operation of a transnational network in pursuit of land policy reform in Kenya. Recent literature highlights the pivotal role played by this NGO in seizing institutional opportunities (so-called policy windows: see Kingdon Reference Kingdon1984) to build momentum for land policy reform in the 2000s (Syagga & Mwenda Reference Syagga and Mwendwa2010: 48; Klopp & Lumumba Reference Klopp and Lumumba2017: 10). Yet, the Land Alliance (as a specific model of engagement) is not uniquely a product of Kenyan social experiences. It stems from the experiences of other countries, imported to Kenya via Kenyan personalities, who by profession, interest or vocation were connected to international actors, such as donors, international NGOs and consultants. The reconstruction of the international and socio-political dynamics underpinning the ‘import’ of the Land Alliance's model in Kenya is critical for apprehending how transnational networks actually developed and eventually gained legitimacy.
In Africa, the organisation that pioneered the Land Alliance model was the South African National Land Committee (NLC), established in 1985 (initially to fight forced evictions during the apartheid era). Starting in 1990, with the release of Nelson Mandela, it increasingly focused on land restitution issues by nationally representing the agenda of member organisations based in different provinces of the country.Footnote 11 According to Robin Palmer, an historian and Oxfam Land Policy Adviser from 1997–2007, the NLC was the model that inspired the constitution of the Zambia Land Alliance in the 1990s, which he followed very closely.Footnote 12 In the wake of the adoption of land law reforms in Zambia (1995), the Department for International Development (DfID), the British development agency, provided Oxfam with the funding to establish the Zambia Land Alliance in 1997. Oxfam was the key contributor in the creation of the Alliances that mutualised land reform experiences between south and east Africa. Palmer's counterpart in Tanzania worked closely with Professor Issa G. Shivji, chairman of the Presidential Commission of Inquiry into Land Matters, appointed in 1991. It was in this context that the Tanzania Land Alliance was founded to take advantage of the reform momentum and convey particular content to the policymaking process.Footnote 13 Oxfam was also instrumental in the creation of the Uganda Land Alliance (ULA). Just as in Tanzania and Zambia, the ULA was created (in 1995) in the wake of the constitutional reforms that had set out the framework for implementing land law reforms, which came about with the adoption of the Land Act in 1998 (Palmer Reference Palmer, Toulmin and Quan2000: 278).
The model of engagement of the Land Alliances consisted in enabling networking activities among national personalities working in NGOs, academia, and exercising various private professions in the land sector, and with international institutions, in order to exchange ideas, articulate strategy and raise funds to push for a suitable land policy reform process. The Alliances highlighted the need for a participatory reform process (including the so-called ‘grassroots’), and, content-wise, it recommended the formulation of a pro-poor land reform with the formalisation of customary rights. The transnational ties that brought this model of engagement to Kenya proved to be crucial in emboldening the entrepreneurship of Kenyan activists. It strengthened their authority in policy arenas, and the scope of their action matched the financial and technical means often provided by international actors.
External forces were indeed ‘constitutive’ as they enhanced the competency and credibility of the advocacy platform. Yet, the vernacularisation of international norms and standards was heavily dependent on Kenyan personalities and national politics. Particularly, the Land Alliance in Kenya built on existing social platforms that were previously consolidated during political mobilisations (illustrated in the previous section). It has been argued that the spontaneity of socio-political mobilisations had been inhibited by their NGO-isation, and the Land Alliance was indeed a product of sub-continental interconnectedness facilitated by aid-flow and related programmes. However, it is undeniable that the land alliance's agenda was informed by historical struggles tackled by social justice movements, thus fostering resolute collective action in land policy reform processes.
The Kenyans involved in the establishment of the Kenya Land Alliance (KLA) were either already connected to the aid system, especially to the DfID and Oxfam, or when they were not directly linked to these institutions, they became key actors of the transnational network by virtue of their professions (outstanding academic personalities, NGO directors and/or consultants), or of their public stature and/or valuable expertise in land matters. A number of personalities were influential, such as H.W.O. Okoth-Ogendo, Professor of Law at University of Nairobi, who had researched and published extensively on the subject of land tenure and constitutionalism in Kenya, and in other eastern and southern African countries (Okoth-Ogendo Reference Okoth-Ogendo1991, Reference Okoth-Ogendo, Basset and Crummey1993, Reference Okoth-Ogendo2007). He was also consulted as part of numerous African countries’ land policy reform processes, contracted by multiple bilateralFootnote 14 and multilateral donors,Footnote 15 as well as by African governments such as those of Zimbabwe, Malawi, Tanzania and Swaziland. He was lead-consultant in the drafting of the National Land Policy of Uganda in the 1990s, while also contracted to advise the Uganda Land Alliance.
With a similar background, Martin Adams was also a very important actor of the transnational network: he was a lead-consultant for DfID involved in several land reform processes in Africa. In 1991, in Namibia, Adams supported the launch of the National Conference on Land Reform and the Land Question by drafting and providing organisational support. This conference was attended by 600 people including members of the local communities.Footnote 16 According to Adams, leading Namibian activists had built links with the South African NLC, with whom he had also been collaborating in the 1990s, since he was also involved in land policy consultancy work in South Africa.Footnote 17 Adams had a decade-long experience in land law reform processes in Africa: he was the natural pick of DfID for leading the aid programme funding both the Kenyan Ministry of Lands and Kenyan NGOs. DfID was in fact driving the basket fund established by several donors in 2003 facilitating collaboration between the Ministry of Lands and the NGOs during the launch of the National Land Policy Formulation Process, established in 2004 (Mwera Reference Mwera2016: 155).
The multi-positionality of international consultants involved in aid-related programmes carried out in various African countries contributed to the circulation of particular norms and standards (so-called ‘best practices’), eventually prompting transnational connections that led to a domino effect connecting land policy reforms in southern and eastern Africa. However, there was a fundamental difference in the setting up of the KLA: while all other Alliances came into being following the commencement of land law reforms with an aim to advocate and lobby during the formulation and implementation processes, the KLA was first established with the intent of building reform momentum, to set the agenda for participatory land policy reform. The goal was ambitious, especially considering that networking activities started under President Moi's regime, which had tightened its grip over state institutions and social actors at all levels (Kanyinga Reference Kanyinga, Oyugi, Wanyande and Odhiambo-Mbai2003: 103; Onoma Reference Onoma2010): it was by then unthinkable that the regime could allow any land reform.
In this context it is useful to distinguish the up-stream inputs (from international fora) from the down-stream inputs (from national arenas) that propelled the creation of the KLA and the articulation of a land policy reform in Kenya. In reality, the two levels are interlocked because events such as key encounters and decisions influenced action both up-stream and down-stream.
What appears to have set in motion the ‘up-stream’ inception of the process was the consensus reached in international fora on the limited impact of land individualisation and privatisation through titling programmes on economic growth and tenure security (Migot-Adholla 1999).Footnote 18 The literature documenting such failure informed alternative development models, aligning with the new emphasis on poverty reduction via the promotion of programmes validating existing land rights (Peters Reference Peters2007; Colin et al. Reference Colin, Le Meur and Léonard2009). Against this background, since the mid-1990s, a particular British political conjuncture allowed actors within DfID to commit to the promotion of this alternative development model, seeking to secure customary land rights rather than promoting land privatisation and titling in Africa.
It was with Tony Blair's first Labour government (1997–2001) that the mantra of the ‘willing-buyer, willing-seller’, rigidly applied by the Conservatives during the decade-long regime of Margaret Thatcher, was (at least temporarily) set aside, with attention shifting to the strengthening of existing land tenures in Africa. A key means to this end was DfID's funding of networking at supra-national African level, giving room to prominent scholars, who were advocates of a less rigid economist approach to land reforms, to assert and apply models that were alternative to land privatisation. In 1998, DfID put in place the Land Tenure Advisory Group, institutionalising DfID collaboration with Oxfam (represented by Palmer), and the International Institute for Environment and Development (IIED). The goal was to establish a continental network (the LandNet) comprising international experts, but also, and most prominently, African scholars and land practitioners. In February 1999, this project culminated in the organisation of an international conference named Land Rights and Sustainable Development in Sub-Saharan Africa, held in Sunningdale (south-west of London), where African policymakers were invited for exposure to scholars’ and practitioners’ experience and analysis.Footnote 19
The LandNet initiative demonstrated ambitious intentions to DfID with a continental network that would connect land experts, governments and activists, ultimately seeking to empower the African-end by providing technical knowledge, i.e. human capital, to serve policy initiatives in African countries. This was also the opportunity for Michael O. Odhiambo, a Kenyan land expert and key actor of the ‘down-stream’, to officially enter the circle of donors and provide a solid footing in Kenya for transnational connections. Odhiambo was a lawyer by training and was already connected to Oxfam as a consultant on pastoral issues. In 1999, he founded an NGO called Resource Conflict Institute (RECONCILE) with headquarters in Nakuru in the Rift Valley area, the most incendiary region of the country in terms of contestations over land rights. By the time of the Sunningdale conference, he had become key in the discussion on how to advance the agenda of policy advocacy in Kenya. For this reason, he was invited to the conference. Here the streams converge: at LandNet's launching workshop (held in Addis Ababa in January 2000) Odhiambo was entrusted with key responsibilities in the operationalisation of LandNet in the eastern African region (the third LandNet meeting was held in Nairobi in August 2000).
It was Odhiambo who addressed a proposal to DfID formally asking the aid agency to sponsor the establishment of the KLA: in this proposal, Odhiambo eloquently suggested that the scandals revealed land grabbing in Kenya and the ‘frustrations suffered by those who have tried to intervene in these scandals, whether through court processes or other mass action initiatives, clearly show that there is something lacking in the [legal] framework’ (RECONCILE, no date). The KLA was the means to remedy this shortcoming by fostering legal change. In 1999, the organisation of two workshops sanctioned the actual constitution of the KLA, housed at RECONCILE before establishing its own offices.Footnote 20 Most of the organisations that became the first members of the KLA were rooted in the civic movements that rose against dictatorship and land injustices in the 1990s.Footnote 21
One of the first Community-Based Organisations (CBO) that joined the KLA was the Ogiek Welfare Council (OWC). The KLA particularly supported the cause defended by OWC. Not only did it physically host this organisation in its office in Nakuru, but it also held its launch meeting in Egerton University, in Njoro, the nearest town to the Eastern Escarpment of the Mau Forest (in Central Rift Valley), which was territory claimed by the OWC as the Mau Ogiek ancestral territory (Towett Reference Towett2004; Muchemi & Ehresperger Reference Muchemi and Ehrensperger2011). Both the deadly conflicts of the 1990s affecting the settlements at the fringes of the Mau Forests and the scandalous land grabbing cases concerning these same settlement schemes (Klopp & Sang, Reference Klopp and Sang2011) had popularised the Ogiek's cause, making it representative of rural communities’ dispossession at the hands of state authorities.
Grassroots organisations such as the OWC were part and parcel of another transnational network, looser than the KLA: the Pastoralist Hunter-Gatherer Ethnic Minority Network (PHGEMN) that emerged in the early 2000s in view of the Constitutional Review Process. Pastoralists and hunter–gatherers are social categories historically construed by state interventions since colonial times as marginal and structurally disregarded by development policies (see Elmi & Birch Reference Elmi and Birch2013; Cavanagh Reference Cavanagh2017). The common denominator of the organisations and individuals comprising PHGEMN was their tremendous land grievances, stretching from colonial times and exacerbated by post-colonial regimes that have continuously ignored or failed to accommodate pastoral and hunter–gatherer land claims and livelihoods and in some cases deporting these groups from what they deemed their ancestral territory.Footnote 22
PHGEMN comprised about nine members, all representatives of aggrieved communities, some working in NGOs to advance the interests of pastoralists, others in the CBO to advocate for resolution of land injustices, and another being elected leader of the Kenyan Parliament representing marginalised constituencies.Footnote 23 According to one of the founders of a Kenyan NGO called Centre for Minority Rights International (CEMIRIDE), which supported the establishment of the PHGEMN, representation within the Network was organised by livelihoods: ‘if there was a pastoralist on board, the assumption was that he was going to represent the interests of all pastoralists’.Footnote 24 Hunter–gatherer grievances were represented by two organisations: the Ogiek People Development Programme (OPDP) advancing the cause of the Mau Ogiek; and the Sengwer Cultural Centre, advancing the cause of the Sengwer forest dwellers of the Embobut and Kapolet Forests in Northern Rift Valley. These organisations collectively aimed to demand the recognition of land rights for forest dwellers, particularly as they were subject to state interventions that deprived them of any right over their ancestral land.Footnote 25
The OPDP is an NGO founded in the early 2000s (at the same as the PHGMEN), as competition for the control of aid-related resources between different Ogiek groups intensified. The OWC was founded in the wake of the legal action undertaken by community leaders in 1997 (Joseph Letuya & 21 others v. Attorney General & 5 others, 1997), to contest the allotment and adjudication of the Eastern Mau Escarpment, which the then government had designated for development. The OWC remained a loosely organised body, which eventually fell into decay due to lack of transparency and accountability mechanisms.Footnote 26
Other members of the Network were Dr Kimpei ole Munei, a lecturer at the University of Nairobi, working for Dupoto-e-Maa, an NGO based in Kadjado. The aim of this NGO was to promote the socio-economic development of Maasai communities. He was recognised as a ‘dynamic’ member, researching and generating proposals and writing pieces for donors.Footnote 27 Godana Doyo, a lawyer by training, then part of the Kenya Pastoralist Forum (a militant organisation based in the pastoral Northern-East region) was Chairman of PGHEMN; in 2003, he was appointed Commissioner of the Kenya National Human Rights Commission (Mugonyi Reference Mugonyi2003). Ali Wario, also part of the Network, once in the Kenya Livestock Marketing Council, was in 2002 elected Member of Parliament with KANU, representing the Bura constituency in Tana River, also in the North East, an historically marginalised region (see fn 22).
According to CEMIRIDE's records, PHGEMN was created in November 2001. In 2002, CEMIRIDE hosted a number of PHGEMN meetings to elaborate a Memorandum to be submitted to the CKRC. In 2003, CEMIRIDE was granted funding by the International Labour Organisation (ILO), engaged in the battle for indigenous and tribal peoples’ rights since the 1920s, to strengthen the representation of indigenous, marginalised and minority communities within the Constitutional Conference. The final goal was to voice communities’ grievances through their ‘grassroots’ representatives. The Network was to become a lobby committee influencing decision-making processes. CEMIRIDE was to provide administrative support to the Network, while the Network was to ‘ensure constant and sustained contact with the grassroots organisations’ (CEMIRIDE and ILO 2003). The following section of the paper describes the shaping of the discourse of transnational networks as they gained influence in the policy arenas.
TRANSNATIONAL NETWORKS IN POLICY ARENAS: HYBRIDISING AND REINTERPRETING INTERNATIONAL NORMS
The KLA became an essential player in the land policy reform process of the 2000s (and 2010s), while the PHGEMN was only occasionally instrumental in conveying principles related to indigenous peoples’ rights, and only within the Constitutional Conference. The discourse championed by the KLA was larger and more articulated compared with the one formulated by PHGEMN. The KLA argued that the mounting ethnicisation of land relations and increasing pressure on land resources, along with ensuing land conflicts, all called for the adoption of an alternative, community-centred, pro-poor policy agenda. Backed by the transnational network, the KLA succeeded in seizing windows of opportunity and in translating certain innovative principles (sometimes curtailed through subsequent negotiations) in both the 2010 Constitution and the 2009 National Land Policy.Footnote 28
The seminal consultancy work commissioned by DfID to Okoth-Ogendo (Reference Okoth-Ogendo1999) shaped the KLA discourse. In the resulting confidential brief, Okoth-Ogendo provided a comprehensive appraisal of the land sector in Kenya, calling DfID to take action and fund efforts towards land policy reform. He criticised privatisation policies, presented as a means to extend state control into customary land domain, without succeeding in formalising the tenure, especially because the title deeds registered did not reflect the reality of land relations on the ground (the land register was not updated). The policy solutions that Okoth-Ogendo proposed consisted in the rehabilitation of the status of customary tenure (especially in inheritance matters), and the recognition of the land rights of forest dwellers (such as the Ogiek, a classic example of land expropriation by the state). This report propelled the DfID's valuable financial support for the launching of the KLA (approximately £170,000) to cover a three-year programme, thus securing the establishment of the organisation (Adams Reference Adams2003: 13). It was within this context of aid disbursement and commitment to land governance issues in Kenya that Martin Adams was hired by DfID to lead the land programme.
Meanwhile, certain national developments influenced the course of events. The Akiwumi Report was published in July 1999, resulting from the work of a Commission of Inquiry appointed in the wake of post-electoral conflicts in 1997. Its devastating conclusions on the politicians’ incitement of ‘ethnic clashes’, leveraging on historical land grievances, compelled the President of Kenya to act. In November 1999, after a major shake-up in the Lands Ministry (whereby higher top-ranking officials were discharged and substituted), President Moi appointed another Commission of Inquiry, this time investigating the Land Law System of Kenya (Gazette Notice No. 6594, 26 November 1999). This was soon termed the ‘Njonjo Commission’ after its Chairman, former Attorney General, Charles M. Njonjo. This appointment galvanised the transnational network. For the first time, state political institutions had officially acknowledged the need to review land laws in Kenya.
Distrust in commissions, taskforces and working groups was rife among Kenyans as their appointment was often a government strategy ‘to offset public pressure and dampen criticism’ (Africog 2008: 11–12 quoted in Lynch Reference Lynch2011b: 108). The Njonjo Commission had been established to showcase commitment to change. In a report for DfID (2001), Martin Adams wrote that the Njonjo Commission, in addition to the recent Presidential appointment of the Constitutional Commission, were golden occasions for the KLA to spark public debate on salient land reform issues (Adams Reference Adams2001: 3). Finally, the advocacy platform, despite initial fears that there would not be an agreed policy target to work towards, managed to gain relevance by feeding into both the commissions’ participatory processes.
To this end, Adams suggested that to catalyse the work of the alliance and its members, the organisation of a national NGO conference on Land Reform and the Land Question, based on the model of the South African and Namibian land policy reform processes, would prove useful in systematising ideas around land issues (Adams Reference Adams2001: 8). The event was structured so as to take stock of previous experiences of land reform in the region, present research findings that would guide the formulation of alternative policy solutions to land issues (i.e. privatisation), and to act as a deliberative forum adopting recommendations that would subsequently be forwarded to the government. The Position Paper issued by the National NGO Conference, held on 22–23 May 2002 in Nairobi, ultimately echoed Okoth-Ogendo's work and philosophy. This became influential in informing constitutional and land policy reform.Footnote 29 The document was further legitimised by the authority of the communities who were represented at the conference and participated in deliberations. The 2003 KLA Annual Report documented the community-based work carried out in various areas of the country, in order to assist policy formulation (Kenya Land Alliance 2004: 6, 8).
The major tenets of contemporary Kenyan land tenure and administration reform, as enshrined in Chapter 5 of the 2010 Constitution and in the NLP, were first expressed as recommendations in this Position Paper. For instance, it was suggested that customary rights should be formally acknowledged. Moreover, irregularly alienated lands were recommended to revert to a new institution, the National Land Commission, in which all land in Kenya should be vested. In fact, land reform was understood as a holistic overhauling of the current administrative and tenure system. It proposed to dramatically shrink the role of the Ministry of Lands. The National Land Commission was to be in charge of redressing historical land injustices, undertaking investigations and deciding upon mechanisms of compensation. These, in turn, informed land policy recommendations elaborated in the Njonjo Report, which were faithfully transposed in the National Land Policy.
It is interesting how, even though the Njonjo Commission had been initiated in an attempt to divert attention from the eminently political nature of land-based conflicts, the policy frames that it produced went further than intended. This is partly because Okoth-Ogendo ended up writing a good part of the Njonjo Report, as the officially appointed members of the Commission had not delivered. He was called upon to ‘rescue’ the Commission.Footnote 30 It is for this reason that the Njonjo Report has two sets of footprints. One insists on the legal entitlement of communities, heavily criticising privatisation of land (Republic of Kenya 2003: 54), and another, in perfect continuity with past policies, under the pen of Michael Arson, a British legal drafter and official Commissioner, promotes a technocratic approach centred on the facilitation of the operation of markets through land privatisation (Republic of Kenya 2003: 74–5, 77). This double register remains a permanent feature of the land policy process in Kenya.
The reform momentum reached its climax when, in December 2002, the much awaited and coveted political transition finally took place with KANU being electorally overthrown by the opposition coalition, the triumphant NaRC government. The KLA was almost immediately involved in the new government reform plans: Odenda Lumumba, veteran activist and KLA Coordinator hired in 2001, was appointed member of the Commission of Inquiry into Irregular and Illegal Allocations of Land. It was in the early months of 2004 that the Formulation Process of the National Land Policy actually commenced, although talks between the Ministry of Lands and Development Partners had been ongoing since 2003 (see Mwera Reference Mwera2016: 155–6).
Most of my Kenyan interlocutors nonetheless insisted that the inception of the land reform process could not be exclusively tied to the advent of the NaRC government. As documented in the previous section, the transnational network had been preparing the advocacy ground for some time. The appointment of the Njonjo Commission was the result of both internal and external pressures exerted on the Moi administration since the 1990s. The land politics dynamics revealed by the Akiwumi Report played an important role in creating an expectation of political accountability: since state actors were responsible for the conflicts, some form of public intervention was required, especially in a context of multipartyism that threatened the survival of the regime. Inasmuch as the NaRC government was instrumental in kicking off reform processes, transnational connections had been constructing the framework of collective action and conferring authority on both translocal actors and the community land policy narrative. This allowed transnational networks to surf the wave of the critical junctures, thereby opening up political space for policymaking since the return to multipartyism.
Similar to the case of the KLA, the connection with international actors allowed PHGEMN to access financial resources and to frame its discourse promoting legal recognition of community land rights. The ILO Indigenous and Tribal Peoples Convention No. 169 of 1989 largely informed the PGHEMN Memorandum submitted to the Constitution for Kenya Review Commission (CKRC). Although international paradigms and standards frame the policy discourse in the Memorandum, the Network's demands were deeply rooted in Kenyan history and politics. The PHGEMN Memorandum (Centre for Minority Rights 2002) demanded that the new Constitution acknowledged the historical injustices suffered by pastoralist and hunter–gatherer (PHG) communities: these injustices were ‘forced displacements from their ancestral lands’, ‘discrimination’ and ‘exclusion from the decision-making process’ (CEMIRIDE 2002: 4). The Memorandum claimed that the Independence Constitution had failed to address the ‘characteristics and needs of indigenous peoples’, by only recognising individual property rights and thus ignoring the community dimension of their identity and rights (CEMIRIDE 2002: 5). In line with Article 14 of the ILO Convention, the network demanded constitutional recognition and ‘protection of the rights of ownership and possession of the ancestral lands of PHG communities’: ‘full indigenous ownership of forest land’ (CEMIRIDE 2002: 20).
The Network also sought formal recognition of the ethnonyms of the minority PHG groups in the official national tribes tally, made yearly by the Kenya National Bureau of Statistics (KNBS), so as to induce a sense of belonging in the Kenyan polity (CEMIRIDE 2002: 10–11). The Memorandum proposed the adoption of a state formed on the model of ethnic federalism (without directly mentioning the majimbo system) and listed a series of boundary adjustments to the current delimitation of provinces so as to make them ethnically homogeneous (CEMIRIDE 2002: 12). It was believed that ‘proper participation of all communities’ in decision-making arenas could only be ensured if the boundaries of all administrative units were redrawn ensuring their ethnic/tribal homogeneity (CEMIRIDE 2002). Post-colonial continuity is glaring in PHGEMN's constitutional and policy recommendations. They are reminiscent of the colonial understanding of ethnicity tied to a territory, i.e. the reserve.Footnote 31 Territorialisation of ethnicity had been reinforced by redistributive land politics in the post-colonial era, and by the reactivation of majimboist ideology during land conflicts in the 1990s, which saw a higher incidence in all contested areas claimed to be the ancestral homes of ‘indigenous peoples’.
The ILO funding fundamentally contributed to the structuring of advocacy action for the indigenous peoples’ cause in Kenya. At the NCC, no member of PHGEMN was accredited as a delegate (except MPs who naturally were). However, one individual from a Maa organisation, a journalist from the Ogiek group, the then Coordinator of the Network and the CEMIRIDE Program Officer, all held the status of ‘observers’, allowing them to participate in certain meetings (Minutes of PHGEMN meeting, 24.04.2003). In the Concept note, Strengthening the Participation of the Pastoralists and Hunter-Gatherers in the Constitutional Review Process (CEMIRIDE, no date), these individuals were presented as part of a Technical Team mandated to lobby delegates for the adoption of the provisions addressed in the PHGEMN Memorandum. Also, the lobby strategy was informed by a media team, in charge of the (weekly or bi-weekly) publication of The Marginalised that ensured circulation of stories exposing the issues concerning minority/indigenous peoples. The media team would also link up with mainstream media by organising press conferences. Finally, a coordination team received updates from the delegates about ongoing debates at the conference, and thus was able to articulate strategy on how to amplify the representation of the PHG's issues.
According to the then CEMIRIDE Programme Officer in charge of coordinating the Network activities, ‘the strategy was that as many people as possible talk about the same thing throughout, so it keeps repeating itself’, and thus gain relevance and indeed legitimacy in the eyes of the delegates.Footnote 32 It is noticeable that certain delegates perceived this strategy as a clear symptom of the ‘capture’ of the participatory process by the NGOs.
The [constitutional review] process was participatory, but that participation would be captured by the elites of civil society sometimes, many of them would prepare a memorandum and send copies to representatives, so, you go to this particular venue and you have someone there reading this particular memorandum, next time you go to another one, you get another reading, so just coaching people.Footnote 33
This sort of criticism raises the question of the means and implications of the transnationalisation of localised grievances and of how imported institutions are incorporated into local cultural practices (forms of vernacularisation: Merry Reference Merry2006: 44). On a more positive note, Orvis (Reference Orvis2003: 258) argues that NGOs’ programmes conducting civic education in Kenya reached out to ‘their less educated neighbours’, ultimately creating and politicising ‘real rural constituencies’ (2003: 266). On the specificity of the PHGEMN mobilisation, there exists relevant literature criticising the use of the indigeneity register in policy advocacy. Unlike in America, New Zealand and Australia, where the indigenous movement was founded, indigeneity claims in Africa raise the controversy about the pertinence of arguing ‘territorial precedence prior to conquest and colonialism’, especially given the complex history of African migrations and ethnic definitions of belonging (Hodgson Reference Hodgson2011: 35). For Hodgson, the adoption of the indigeneity register by African activists essentially seeks to obtain, through transnational connections, the political recognition and land rights that national states have denied them (Hodgson Reference Hodgson2011: 2, 3, 6).
The emergence of indigenous peoples’ movements in Kenya has been explored by Lynch (Reference Lynch2006, Reference Lynch2011a, Reference Lynch2016), who concurs with Hodgson in construing the ‘branding’ as an ‘extraverted’ strategy informing the ‘search for prosperity and security of tenure’, especially in a context of governments’ contempt for minority groups’ demands (2011a: 150). The author examines certain mobilisations in the Rift Valley, and contextualises the emergence of indigenous claims in the framework of renegotiation of ethnic identity as reflecting shifting political alliances. It is not by chance that ‘the Kenya new indigenes’ (notably, the Ogiek, Sengwer and Endorois) are concentrated in the Rift Valley. Lynch argues that, in the wake of political liberalisation, these minority groups dissociated themselves from the Kalenjin umbrella ethnic groups (incorporating them so far) as they looked forward to ‘opening new avenues of assistance’ (2011a: 153). The land claims of these groups had in fact more chances to be heard and acted upon at the supranational level, rather than the national or local.
Indeed, the constitution of the PHGEMN opened new avenues for assistance for some of the Network's members. Institutional connections built by local activists and representatives of grassroots with NGOs, such as CEMIRIDE and the Katiba Institute (the NGO founded by the former chair of the CKRC, Professor Y.P. Ghai) prompted the recourse to international justice instruments. These NGOs, in cohort with many other international actors who offered key legal support, filed lawsuits on behalf of (first) the Endorois and (then) the Ogiek, before African supranational organisations and against the Kenyan government. In response, the African Commission and African Court of Human and Peoples’ Rights (ACHPR) issued two unprecedented rulings, in 2009 and 2017 respectively. Both rulings were in favour of these groups’ claims. In the case of the Ogiek community, the African Court ruling recommended the delimitation, demarcation and titling of ancestral territories, as well as rescission of titles ‘found to have been illegally granted with respect to Ogiek ancestral land’ (ACHPR 2017: 10–11). Transnational connections have been critical in conferring authority to claims of community land ownership. Notwithstanding the achievements, PHGEMN's lifetime was fairly short: it did not survive the Constitutional Review Process primarily due to internal squabbles and rivalry between the organisations comprising the Network over the management of its funding.
The demands conveyed through the PHGEMN Memorandum, ‘branding’ or positioning of community land grievances in terms of the indigenous peoples’ cause, stressed the territorial dimension of these land claims. This particular transnational network influenced decision-making to the extent that affirmative action for marginalised communities was enshrined in Art. 56 of the Constitution, binding the state to act so as to ensure them full enjoyment of political, social and economic rights (Republic of Kenya 2010: 38). PHG ancestral land was also constitutionally recognised as ‘community land’ at Art. 63.d.ii, with direct reference to ‘traditional land of hunter-gatherers’, ‘shrines’, ‘grazing areas’ and ‘community forest’ (Republic of Kenya 2010: 44). No details are provided in the Constitution about how to legally acknowledge ancestral land. The complexity of this formal recognition resides in the actual tenurial status of the land and territories over which PHG lay their claims, as these are often privatised or gazetted public lands. Implementation of such community lands’ clauses should have translated as legislative provision of land restitution or redistribution that, however, were discarded in the formulation and negotiations of the Community Land Law (see Di Matteo Reference Di Matteo2022).
CONCLUSION
Successive Kenyan governments have engaged in distributive ethnopolitics by using property rights as a bargaining chip in rural constituencies; this has spurred animosity and violence (see Boone Reference Boone2012, Reference Boone2014). The occurrence of land-related conflicts and the exponential rise in land-related legal litigations in the post-Independence era contributed to the emergence of transnational networking activities by attracting the attention of activists and development workers. The two transnational networks studied in this paper legitimised their existence and action by relying on the same narratives of state oppression: they were the whistle-blowers of a post-colonial authoritarian Kenyan state continuing to dispossess communities of their ancestral land by refusing to recognise the land rights of pastoralists and forest dwellers.
The two case studies show how, at a certain point in time, transnational connections were extremely important in framing and sustaining this discourse of state oppression and in calling for the democratisation of land governance. From the study of lobby and advocacy strategies of PHGEMN within the NCC and beyond it, it appears that the endeavours of NGOs to give voice to community struggles informed constitutional change as well as brokerage strategies of local activists. The indigeneity register found fertile ground among historically aggrieved Kenyan communities. The same applies to the KLA experience and its formidable ascent to the heart of state- (and donors-) driven policymaking processes. International actors’ project of influencing Kenyan decision-making processes found great allies in competent professionals and activists, who had aspirations for a more just society for a long time.
Yet, if on the one hand, the transnationalisation of collective action provided the material means and epistemological frameworks to express these injustices by translating them into specific policy solutions formulated as recognition of community land rights, on the other hand, these international paradigms were hybridised, and, in some cases, reinterpreted through reappropriation by translocal actors. This was due to these reappropriations at times defeating the original goal of promoting a property rights model alternative to land privatisation. The community land narrative was reinterpreted and made to fit the Kenyan historical and political context. The duality of the Njonjo Report epitomises this hybrid outcome. By echoing Okoth-Ogendo's fine critique of land privatisation as well as an everlasting technocratic approach encouraging land markets and privatisations, the Report mirrors the contradictions of contemporary Kenyan land reforms that hang between these two frames to date. In the case of the vernacularisation of the indigenous peoples’ narrative by the PHGEMN, one can observe the reinterpretation of international norms, as the discourse on community land takes an ethnonationalist turn, echoing the colonial category of tribal land and exclusive ethnic territorial control.
These findings call for more caution in the transnational conveying of paradigms and standards, when ensuring that financial and material support is underpinned by a scrupulous and in-depth understanding of the complex historical power relations that inform injustices, and that are reproduced within groups and communities, to avoid their being perceived as homogeneous wholes, thereby reinscribing colonial categories.
