How the National Constitution treats minorities is a good test of a nation’s maturity. How government applies their rules is a good test of the state’s maturity.
New constitution-making has surged in agrarian economies since 1990, correspondent to significant political change (multi-partyism in particular) and a surge in globalisation, and of which, among other trends, the noted surge in large-scale land acquisition in agrarian states and accelerating concentration in land ownership, are often part. In Africa, 21 of 54 countries have enacted new or significantly amended national constitutions since 1990. Another ten African states have changes in draft or planned.
On the whole, new constitutions tackle land rights more fairly than in the past and particularly those that arise from customary systems of land ownership. This includes rights of communities who have retained traditional lifestyles and livelihoods, such as nomadic pastoralists and forest dwellers, and whose cultures depend profoundly until the present upon their connection to their ‘ancestral lands’. It is also better recognized today that these societies offer resource use systems that are sustainable and can lead the way in saving millions of hectares of forests and fragile dry lands from degradation. Published in December 2015, the focus of this paper is on how Kenya’s Constitution addresses the issue for forest communities and how far forest and land laws are adhering to the directives of this supreme law.
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Liz Alden Wily (PhD) is an international land tenure specialist, a Fellow of Rights and Resources Initiative (RRI), an Affiliated Fellow of Van Vollenhoven Institute of Law at Leiden University, and an Expert Associate for Katiba Institute, Kenya