Abstract

This paper addresses one of the most widely acknowledged, but highly contested historical injustices, namely the dispossession of the Maasai community of their land. The Maasai community lost a significant amount of land to European settlers during the colonial period and, after independence, the African government perpetuated the capitalist economy that was antagonistic to the Maasai way of life. As a result, the Maasai presently perceive themselves to be a marginalised community.[fn1] This article uses the Maasai community as a case study and provides justification for the community’s claim for restitution of their ancestral land. It is suggested that restitution of Maasai land can be accomplished in various ways. First, it is possible to justify restitution of Maasai ancestral land by enacting legislation for this purpose. A comparison is made between Kenyan legislation and legislation passed, for the same purpose, in other jurisdictions of the world. Secondly, the Maasai community could claim restitution of their land through the doctrine of aboriginal title. This claim is predicated on the historical presence of the Maasai and other indigenous Kenyan communities on lands prior to establishment of colonial and post-colonial states.[fn2] Two foundations for the doctrine of aboriginal title, common law and international law, are presented. footnote 1: David J Campbell ‘Land as Ours, Land as Mine: Economic, Political & Ecological Marginalization in Kajiado District’ in Thomas Spear & Richard D Waller (eds) Being Maasai: Ethnicity & Identity in East Africa (James Currey Publishers 1993) 258—272; Lotte Hughes ‘Malice in Maasailand: The Historical Roots of Current Political Struggles’ (2005) 104(415) African Affairs 207—224; Dorothy L Hodgson Being Maasai, Becoming Indigenous: Postcolonial Politics in a Neoliberal World (Indiana University Press 2011). footnote 2: Meitamei Olol Dapash, Mary Poole & Kaitlin Noss ‘Historical Injustice at Mau Narok: A Century of Maasai Land Rights’ May 2010. Paper available at accessed on 1 April 2017.