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State of the World's Minorities and Indigenous Peoples 2011 - Kenya

Publisher Minority Rights Group International
Publication Date 6 July 2011
Cite as Minority Rights Group International, State of the World's Minorities and Indigenous Peoples 2011 - Kenya, 6 July 2011, available at: http://www.refworld.org/docid/4e16d36b1b.html [accessed 29 July 2014]
DisclaimerThis is not a UNHCR publication. UNHCR is not responsible for, nor does it necessarily endorse, its content. Any views expressed are solely those of the author or publisher and do not necessarily reflect those of UNHCR, the United Nations or its Member States.

The year 2010 presented significant promise and potential for minorities, while at the same time also witnessing continued derogation of the fundamental human rights and freedoms of some communities. Some significant positive developments included the promulgation of a new Constitution in August 2010, which followed the adoption of a Land Policy and transitional justice mechanisms in 2009, security sector reforms, legal and institutional reforms, and the launch of the 'Kenya Vision 2030' national development plan. The implementation of these processes – the outcome of the 2008 National Accord and Reconciliation Act – proceeded in earnest in 2010, despite some political, legal and capacity-related challenges.

These institutional and legal reforms present an opportunity for minorities and indigenous peoples in Kenya to participate in and influence the implementation of the new Constitution, in a way that could for the first time take into account their historical marginalization, exclusion, needs, special circumstances and aspirations. The new Constitution is progressive and includes provisions that have the potential to secure the rights of minorities and indigenous peoples in Kenya. For instance, it stipulates national values and principles of governance (Article 10); expressly acknowledges the rights of minorities and marginalized groups (Article 56); protects community land ownership (Article 63); incorporates socio-economic rights (Article 43); guarantees access to justice for all persons (Article 48); guarantees the right to language and culture (Article 44); provides for an equitable share of the national revenue and resources (Article 202); and importantly, devolves power to the people at the local level (chapter 11).

Of key significance to minority and indigenous women in Kenya, the new Constitution provides for 'equal treatment of men and women including the right to equal opportunities in political, economic, cultural and social spheres' (Article 27 (3)). That means that women in Kenya, including those from indigenous and minority communities, have equal rights relative to citizenship, matrimonial property and inheritance. The new Constitution further outlaws any person from compelling another 'to perform, observe or undergo any cultural practice or rite' (Article 44(3)). This provision effectively protects women and girls from harmful cultural practices, which are common in some indigenous and minority communities. In addition, the Constitution calls on the state to 'take legislative and other measures, including affirmative action programmes and policies designed to redress any disadvantage suffered by individuals and groups because of past discrimination' (Article 27 (6); 20 (5)(b)). This can be construed as an express acknowledgment of the historical marginalization and exclusion of minority and indigenous peoples in Kenya.

As the new Constitution is implemented, it is expected and hoped that indigenous and minority peoples in Kenya will begin to enjoy the fruits of uhuru (independence). However, minority groups must remain vigilant, given past experiences where they have often been left at the margins of reform processes by elites and mainstream communities. Indeed, during the reporting period, one minority community – Ogiek – were threatened with eviction from their ancestral lands in Mau Forest. An application has since been filed (2009) at the African Commission on Human and Peoples Rights (ACHPR) on behalf of the community by Ogiek Peoples Development Programme (OPDP), Centre for Minority Rights Development (CEMIRIDE) and MRG, alleging various violations, including forced evictions from their territory and lands.

However, it is important to acknowledge the Ministry of Lands' intimations that it is looking to secure the land rights of indigenous communities. Indeed, responding to a question by a Member of Parliament, Ekwe Ethuro, the Minister of Lands, James Orengo, indicated that the ministry was 'seeking to secure land rights of marginalized communities especially the Endorois, Ogiek and Ilchamus by proposing geographical mapping of their areas and resources'.

In December 2009, the Kenyan parliament adopted a new National Land Policy, aimed at resolving land disputes and addressing historical injustices. Despite this, and promises that the state would implement the 2010 Endorois decision by the ACHPR, this has not yet happened. However, it is encouraging to note that the matter of the implementation of the Endorois decision has been raised in parliament. Ethuro (who is also the chair of the Pastoralists Parliamentary Forum) asked the Minister of Lands a question by Private Notice on the steps the minister had taken to comply with the ACHPR decision on the Endorois. The minister replied that he had yet to receive an authenticated copy of the decision, meaning that he could not proceed towards implementation. He has since received a sealed copy of the ACHPR recommendation.

Women, including those from minority communities, who suffered internal displacement and serious abuse including rape and grievous bodily harm during the 2007-8 post-election violence, are yet to receive legal remedy at the national level. The summons in 2011 by the ICC of six suspects – Former Police Commissioner Hussein Ali, Head of Public Service Francis Muthaura, suspended Higher Education Minister William Ruto, Deputy Prime Minister and Finance Minister Uhuru Kenyatta, Former Industrialization Minister Henry Kosgei, and Head of Operations and Kass FM Radio Presenter Joshua arap Sang – is a significant development, sending the message that impunity will not be tolerated by the international community. However, even if the suspects are formally indicted and arraigned, those indictments at the ICC are not likely to yield much if the Kenyan courts do not bring the thousands of people who perpetrated violence in the post-election period to justice, in particular those who committed acts of gender-based violence against women.

Inter-communal conflicts between pastoral communities also continued throughout the reporting period. According to the 2010 mission report of the African Commission Working Group of Experts on Indigenous Populations, the Kenyan government's response to such conflicts has often been harsh and one-sided. An example is the case of Samburus of Laikipia and Pokot pastoralists who were involved in conflicts over cattle in 2009. Government forces responded violently, and Samburus accused them of taking sides. Samburus of Laikipia say that they are not adequately represented and therefore lack state protection.

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