A PHILOSOPHICAL JUSTIFICATION OF INDIGENOUS RIGHTS IN POSTCOLONIAL AFRICA: A CASE STUDY OF THE REPUBLIC OF KENYA

Abstract

A philosophical defense of indigenous rights in postcolonial Kenya is necessary and overdue. The case for indigenous rights is perhaps one of the most significant political questions facing the state of Kenya. Unlike in other postcolonial parts of the globe where the question has gained acceptance and mechanisms are in place to promote indigenous wellbeing, the question in Kenya as in other parts of the African continent has been met with stiff resistance from state governments and even some academics. Despite this resistance, several Kenyan peoples have affixed the word “indigenous” to their names. These are distinct peoples with different burdens originating from colonialism. On the one hand, the question involves whether or not indigeneity is meaningful in contemporary Kenyan politics. On the other hand, the question is if indigeneity qualifies as a legitimate moral basis for the allocation of special rights to specific groups in Kenya. This thesis takes the position that indigenous rights are philosophically defensible in Kenya. Thus, the main objective of this study is to justify the claim that indigeneity is an identity with legal merit in Kenya as well as analyse key arguments that have been advanced both for and against the thesis that indigenous rights are indefensible in Kenya. To this end, I begin by analysing the concept of indigeneity. I explicate the meaning of indigeneity via its etymology and usage. I argue that it is the specificity of ties to a particular territory which defines indigeneity. On this basis, I conclude that indigeneity is a valid category in Kenya. Next, I examine three approaches to indigenous rights: Will Kymlicka, Dale Turner and James Tully. Their different viewpoints assist to illuminate the different sides of the complex question of indigenous rights and thus inform the discussion of the study. I use insights from these approaches to make a case for the legitimacy of indigenous rights in Kenya. I propose three different arguments for legitimatisation. These three arguments are established on: indigenous nationhood, historic injustices and, constitutionalism.