EXAMINING CONSTITUTIONAL, LEGISLATIVE AND ADMINISTRATIVE PROVISIONS CONCERNING INDIGENOUS PEOPLES
IN KENYA Table of contents Pages
Background to the report Part I: Introduction to indigenous peoples, the country and its legal system 1
1 Indigenous peoples in the country – basic situational overview 1
Indigenous peoples: criteria for identification, demographic details,
main economic sources of livelihood and cultural life style 1
1.1.1 Indigenous peoples, criteria for identification 1
1.1.2 Demographic details 2
1.1.3 Main sources of economic sources livelihood and cultural lifestyle 3
Main human rights concerns of indigenous peoples in Kenya 5
1.2.1 Legal recognition and identity 5
1.2.2 Equality and non discrimination 7
1.2.3 Culture and language rights 7
1.2.4 Land and resource rights 8
1.2.5 Other important human rights concerns 9
1.3 Background to the country 10
1.3.1 Pre-colonial history 10
1.3.2 Colonial history 11
1.3.3 Post-colonial history and current state structure 12
1.3.4 Political parties 13
1.3.5 Role of media and civil society 13
1.4 Background to the legal system 14
1.4.1 Legal system and sources of law 14
1.4.2 Court structure 15
1.4.3 Status of international law and ratifications 16
1.5 Institutional and policy bodies protecting indigenous peoples 18
Part II: Legal protection of indigenous peoples in Kenya 19
A Introduction 19
Recognition and identification 19
Self management 23
Participation and consultation 25
Access to justice 27
Cultural and language rights 30
Lands, natural resources and environment 34
Socio economic rights ((housing, health, social welfare, intellectual
property, traditional economy, employment and occupation) 41
Gender equality 47
Indigenous children 52
Indigenous peoples in border areas 56
Part III Conclusion and recommendations 57
1. Conclusions 57
2. Recommendations 58
Part IV Bibliography 62
Background to the report This report combines a desk-top survey and an in-depth study of Kenya’s legal framework and the extent to which it protects the country’s indigenous peoples. The in-depth study was carried out from 1 - 9 September 2008. The research team engaged with the Ministries of Justice, National Cohesion & Constitutional Affairs, Development of Northern Kenya & other Arid Lands, Finance, Gender and Children Affairs, and Tourism. Consultations were also held with the State Law Office and the Law Reform Commission.
The research team met various representatives of indigenous peoples’ communities in Kenya from Narok, Ngong, Wajir, Kajiado, Nakuru, Bogoria, Nanyuki, Samburu and Marsabit. The research team is grateful for the assistance and facilitation of the in-depth study by the Kenya National Commission on Human Rights (KNCHR) especially with regard to arranging and co-ordinating meetings with government officials. Focus group discussions with representatives of indigenous communities were held in Nairobi, Nakuru and Laikipia which were facilitated by KNCHR, Ogiek Welfare Council and the Indigenous Movement for Peace Advancement and Conflict Transformation (IMPACT) respectively.
Part I: Introduction to indigenous peoples, the country and its legal system 1 Indigenous peoples in the country – basic situational overview
1.1 Indigenous peoples, criteria for identification, demographic details, main economic sources of livelihood and cultural life style
1.1.1 Indigenous peoples and criteria for identification The decolonisation processes in most African states transferred state power to the dominant groups in the territory. Certain groups remained vulnerable primarily due to their close attachment to their traditional cultures and reluctance to assimilate and embrace western development paradigms that were adopted by the post-colonial state.1 It is some of these groups who today self-identify as indigenous peoples and demand recognition and protection of their fundamental rights in accordance with their culture, traditions and way of life.2In Kenya, as in other African countries, these communities fall within two categories identified by the Working Group of Experts on Indigenous Populations/Communities in Africa of the African Commission on Human and Peoples’ Rights (African Commission), namely, the pastoralists and hunter-gatherers.3 The pastoralists include the Endorois, Borana, Gabra, Maasai, Pokot, Samburu, Turkana and Somali and the hunter-gatherer communities comprise the Awer (Boni), Ogiek, Sengwer or Yaaku.4 While the term ‘indigenous peoples’ is not universally agreed upon, participants in a roundtable meeting of experts on minorities and indigenous peoples’ rights in Kenya organised by the Kenya National Commission on Human Rights (KNCHR) in collaboration with the Centre for Minority Rights Development (CEMIRIDE) nominated the following criteria that could be used by Kenya to identify indigenous peoples for the purposes of addressing their human rights issues:
Having a sense of collectivity / solidarity/belonging;
Claiming rights to ancestral land in collectivity / common originality;
Practicing and retaining cultural lifestyle;
Retaining traditional institutions and social organisation;
Depending on natural resources in their respective territories;
Suffering exclusion and discrimination from and by the mainstream systems;
Possessing unique or common religion and spirituality; and
Utilising unique means of livelihood and traditional occupation.5
These characteristics are similar to those proposed by the African Commission’s Working Group of Experts on Indigenous Populations/Communities in Africa6 and generally reflect the criteria envisaged in article 1 of the ILO’s Indigenous and Tribal Peoples Convention 169 of 1989, which emphasises the principle of self-identification.7
According to the African Commission, there are about 14 groups in Kenya who self-identify as indigenous peoples: the Ogiek, Watta, Sengwer, Yaaku, Maasai, Samburu, Elmolo, Turkana, Rendillle, Borana, Somali, Gabra, Pokot, Endorois.8 The UN Special Rapporteur on Indigenous Peoples similarly identifies indigenous peoples in Kenya as including pastoralist communities such as the Endorois, Borana, Gabra, Maasai, Pokot, Samburu, Turkana and Somali, and hunter-gatherer communities such as the Awer (Boni), Ogiek, Sengwer or Yaaku.9 He also mentions that he met indigenous representatives of other groups, including the Ilchamus, Elmolo, Burgi, Gaaljecel, Munyayaya, Orma, Rendile, Sabaot, Sakuye and Talai, which could indicate that they are also indigenous.10 1.1.2 Demographic details No official statistical information exists on the number or population distribution of indigenous peoples in Kenya. The last official population census in 1999 estimated Kenya’s population to be close to 32 million people but gave no specific indication as to the smaller ethnic groups’ numbers.11 Further, the state officially states that it recognises 42 ethnic tribes, in effect excluding a number of indigenous groups in the country.12 For example, despite the fact that the Endorois self-identify as an indigenous community and are also recognised by both the African Commission and the UN Special Rapporteur on Indigenous Peoples’ as indigenous peoples, the Kenyan state continues to deny that they are even a tribe.13 In written submissions contesting claims by the community before the African Commission, the state disputes ‘that the Endorois are indeed a community/sub-tribe or Clan on their own’ and demands that the community prove ‘distinction from the other Tugen sub-tribe or the larger Kalenjin tribe’.14 1.1.3 Main sources of economic livelihood and cultural lifestyle Indigenous peoples in Kenya are mainly pastoralists and hunter-gatherers and as such rely mainly on their traditional lands and territories for their economic sustenance.15 This is similar to indigenous peoples all over the world whose livelihood, economic sustenance, as well as religious and cultural life are dependent on traditional lands and resources.16 In Kenya, the pastoralists predominantly inhabit the arid and semi-arid regions of the country.17 The hunter-gatherers traditionally inhabit forests and rely on hunting, gathering wild fruits and bee-keeping for survival.18 However, due to severe land alienation and a reduction of the traditional territories of most indigenous peoples, some have resorted to small scale farming.19 The economic livelihood of indigenous peoples in Kenya is severely affected by the lack of an adequate legal framework protecting their traditional lands and resources, as well as policies that mainly favour the dominant economic paradigms.20 In Kenya, like in most other African countries, settled agriculture, mining, and modern development schemes are seen as the preferred way to development.21 As a result, certain types of indigenous peoples’ means of livelihood, such as nomadic pastoralism, hunting and gathering, are looked down upon, putting their future survival and development in serious jeopardy.22 The sustainability and development potential of their cultural systems are also ignored and are wrongly perceived as being primitive, uneconomic, environmentally-destructive and incompatible with modernisation.23 The state continues to systematically marginalise indigenous peoples ‘on the basis of their economic, social and cultural characteristics, which are inextricably connected to the use of land and natural resources’.24 It also promotes westernised ideals of development, calling upon these communities to discard their rich cultures and ways of life and instead adopt ‘modernity’.25 This is usually done in total disregard of the communities’ strengths, needs and preferences and is often without adequate consultation and participation of the community.26 In as much as pastoralism has been looked down upon by the state, it is worth noting that Kenyan pastoralists supply a sizable quantity of the meat that is consumed in the country. However, these communities reap little benefit due to the exploitation by dominant communities who act as middlemen and also control the abattoirs and the meat market. The current government has revived the Kenya Meat Commission, a move that is expected will guarantee and accord indigenous peoples better prices for their livestock and in turn improve their welfare.27 Indigenous peoples such as the Maasai also contribute towards tourism revenue, a major foreign exchange earner in Kenya, through their rich culture which unfortunately has been exploited by the state for tourism purposes. A number of natural resources are also situated in the regions inhabited by indigenous peoples, such as minerals (for example the Lake Magadi soda ash), as well as wildlife and natural habitat attractions such as the Maasai Mara.28 Sharing equitably in these resources and participating in their management and utilisation remain critical areas of concern for indigenous peoples in Kenya. This issue is revisited in Part II of this report.
1.2 Main human rights concerns of indigenous peoples in Kenya The main human rights concerns of indigenous groups in Kenya are quite similar to those shared by indigenous peoples globally.29 The following is a brief survey of those concerns, some of which will be discussed in further detail in part II of this report during the examination of the legal framework impacting upon and protecting indigenous peoples in the country.
1.2.1 Legal recognition and identity The post-colonial Kenyan state has pursued a policy of assimilation and integration of numerically-smaller tribes into some dominant ones. For example, indigenous peoples such as the Endorois and others like ‘the Ogiek, El Molo, Watta, Munyayaya, Yakuu … were not legally recognised as separate tribes’.30 Despite recognition as some of the 42 tribes of Kenya, other indigenous groups such as the pastoralists were also neglected. Perhaps this may be due to the size of these tribes as compared to those tribes that are dominant. As a result they were excluded from and under-represented in the political structures of the state. Kenya’s indigenous peoples have since time immemorial opted to retain and perpetuate their deep-seated cultures and traditions. The indigenous peoples hold onto their distinct economic, social and cultural characteristics, which have also been the basis of discrimination based on the misconception that they hinder development.31 The lack of legal recognition of some of the indigenous peoples and the exclusion of others for their refusal to assimilate, integrate and adopt modern ways of living continue to hamper the realisation of these communities’ fundamental human rights and freedoms. For example, groups such as the Ilchamus and the Endorois have been denied equitable and effective political representation leading to inadequate consultation and participation on issues that affect them. Others, such as the Somali and the Oromo, encounter numerous hurdles when accessing legal identity documents. These documents are requisite for the enjoyment of citizenship rights such as voting and participation in elective politics. It also hampers their enjoyment of other fundamental human rights such the freedom of movement within and beyond the country’s borders.32 It is also important to note that there is no specific legislation governing indigenous peoples in Kenya.33 As such, to espouse indigenous peoples’ rights one would have to invoke relevant provisions within the existing legal framework which protects fundamental human rights and freedoms, principally couched in the language of individual rights. However, the individual conceptualisation of rights is rarely compatible with certain claims made by indigenous peoples such cultural rights as well as the protection of collective land and resource rights.34 Part II of this study explores these legal recognition and identity concerns further.
1.2.2 Equality and non-discrimination Because of the inadequate legal recognition of indigenous peoples, they continuously suffer extreme marginalisation, discrimination and subjugation. As alluded to earlier, the discrimination and unequal treatment suffered by indigenous peoples, including their lack of access or insufficient access to basic socio economic rights, and poor infrastructure in their places of habitat, emanate from their perceived reluctance to assimilate and adopt modernity.35 Further, due to their relatively inferior numbers as compared to dominant communities, they are scarcely in a position to be equitably represented in the political structures of the state, such as Parliament, the executive and the judiciary, save for representation through affirmative action.36 In effect, most indigenous peoples in Kenya lack a strong and influential voice to ensure that resources in the country are equitably distributed as well as to challenge discrimination.37 This concern is revisited in greater detail in Part II of this report.
1.2.3 Culture and language rights ‘Of the common traits that indigenous peoples share, probably the most notable is the retention of a strong sense of their distinct cultures and traditions’.38 In Kenya, indigenous peoples have a strong attachment to their unique and rich culture and traditions which they make every conscious effort to transmit to future generations.39 However, their cultures and traditions have been misunderstood and subjected to negative stereotyping by dominant groups.40 Given that dominant groups due to their numerical strength have occupied the majority of leadership positions in the state, (elections in Kenya are based on universal suffrage where the winner takes all), dominant cultures are promoted and regarded as more ‘civilised’.41 Some indigenous cultures and languages, particularly those of smaller groups such as the Ogiek, are as a result rapidly becoming extinct.42 Part II of this report revisits this issue at greater length.
1.2.4 Land and resources rights As highlighted in preceding sections, land and resource rights are at the core of indigenous peoples’ survival, as they are mainly dependent on lands and natural resources for their basic survival and welfare.43 In Kenya, however, the recognition of indigenous peoples and the protection of their traditional lands and resources are hampered by the lack of an adequate legal framework that gives regard to their culture, way of life, and preferred mode of economic sustenance.44 Instead of protecting their rights, the current legal framework ‘works against the human rights of indigenous peoples in a number of ways as, through evictions or restriction of movement, they deny indigenous peoples access to their resources and primary sources of livelihood’.45 Indigenous peoples in Kenya have decried the destruction of their cultures and the dispossession of their lands and territories through ‘the so called development projects such as mining, logging, oil exploration, privatization of their territories, and tourism’.46 The violation of Kenya’s indigenous peoples’ culture and land ‘led to the displacement of whole communities and the destruction of the environment, their traditional economies and other practices which had sustained them since time immemorial’.47 Apart from the lack of an adequate legal framework recognising and protecting the land and natural resource rights of indigenous peoples in Kenya, other concerns related to land and resource rights include: resource-related conflicts due to incursions by dominant communities or among themselves and continued dispossessions of scarce resources; environmental degradation and desertification; a lack of consultation and participation in the management of their resources; and continued marginalisation and exclusion from infrastructural and development programmes.48 Indeed, the eruption of violence in Kenya after a disputed presidential election in December 2007 highlights underlying issues of conflict among the more than 42 ethnic tribes scattered across the country.49 Beyond the electoral dispute, historical land injustices in Kenya emerged as one of the root causes of the violence and related conflicts.50 These injustices are aptly captured by the Kenya Draft National Land Policy:
Historical injustices are land grievances which stretch back to colonial land policies and laws that resulted in mass disinheritance of communities of their land, and which grievances have not been sufficiently resolved to date. Sources of these grievances include land adjudication and registration laws and processes, treaties and agreements between local communities and the British. The grievances remain unresolved because successive post independence Governments have failed to address them in a holistic manner. In the post-independence period, the problem has been exacerbated by the lack of clear, relevant and comprehensive policies and laws.51
As is discussed later in this report in the section on land and natural resources, it is imperative that Kenya’s legal framework on land is overhauled if such conflicts are to be avoided. Most of those land clashes directly affect indigenous peoples in Kenya as they do on other communities as was illustrated during the Kenyan post-election violence.
1.2.5 Other important human rights concerns Additional human rights concerns of indigenous peoples in Kenya are captured in part II of this report in the examination of the Kenyan legal framework. However, a brief mention of some of the more pertinent concerns for purposes of a general overview of the prevailing situation is important. These include concerns over extreme levels of poverty which adversely affect the right to development and access to socio economic rights such as education, health, housing, water and food. Indigenous peoples’ high level of poverty is directly linked to their historical and continued marginalisation, social exclusion and discrimination which results in an unequal distribution of resources. This situation is further exacerbated by natural calamities such as draught without proper mitigating interventions from the state and the imposition of development projects that are often unviable due to a lack of proper consultation and participation of indigenous peoples in their conception and implementation.52 Another key concern includes access to justice which is again hampered by discrimination, illiteracy and a lack of awareness as a result of lack of formal education and the financial means to access legal services.53 The fact that indigenous peoples’ cultures and traditions are not recognised or looked down upon, affects indigenous peoples’ capacity to engage with the formal legal system. In Kenya, customary laws and traditions are only to a very limited extent recognised and are further constrained by numerous repugnancy clauses and a demand for consistency with written laws and the Constitution, failure which they are often declared null and void.54 Having sketched a brief situational overview of indigenous peoples in Kenya, the next section seeks to trace the background to the country in a bid to put these issues in context.
1.3 Background to the country
1.3.1 Pre-colonial history Pre-colonial Kenya was mainly inhabited by four main linguistic groups: Bantus, Cushites and Nilotes / Paranilotes, as well as hunter-gatherers.55 Each of these linguistic classes may be sub-divided according into dialect groups, as shown in the table below.