State of the World's Minorities and Indigenous Peoples 2010 - Kenya

The 2007/08 post-electoral violence was marked by fratricidal ethnic conflict. Since then, the coalition government established in 2008 has held together and attempted to heal the fractured sense of civic trust. But the sheer scale of displacement, accompanied by the worst drought in years, and economic downturn exacerbated by global recession in 2009, has frustrated the government's efforts, according to an October 2009 report by the Kenya National Dialogue and Reconciliation Monitoring Project.

In 2009, the Kenyan government established key institutions identified in the National Accord and Reconciliation Act of 2008 to reform the electoral and boundaries system, finalize the writing of a new constitution and roll out a national programme of healing and reconciliation. The establishment of a Commission on Integration and Cohesion and the Truth, Justice and Reconciliation Commission (TJRC) in early 2009, and the appointment of the Commissioners, are particularly indicative that the state no longer wishes to sweep the problem of ethnic discrimination and historical injustices under the carpet. While these institutional arrangements provide opportunities for the better understanding of minority rights, none of them have come up with explicit strategies for ensuring substantial involvement of minority communities in their processes.

The government, in spite of the decision of the African Commission on the Endorois case (see above) that asserted the rights of a minority community to self-determined development, has persisted in its approach to national development without due regard to the rights of minorities and indigenous groups enshrined in various international and regional human rights instruments. For instance, in pursuing an important national project to conserve the Mau forest, a water catchment area that serves the entire East African region, the government's strategy is to carry out massive evictions of all persons accused of encroaching on the forest. While the need to conserve the Mau forest is important, the government's handling of the Ogiek community, which for centuries has utilized this environment in a sustainable fashion and which claims this forest as its ancestral land, has been less than satisfactory. Speaking to the New York Times in November 2009, Daniel Kobei of the Ogiek Peoples Development Programme (OPDP), said the Ogiek will suffer irreparable violations of their right to life and cultural survival, among others, if evicted alongside recent forest squatters.

Similarly, the Nubian community, which for 100 years has occupied Kibera slum, were neither consulted about, nor have they benefited from, the slum upgrading project, an important national initiative. In the same vein, the search for national solutions to the energy crisis facing the country, has resulted in the drilling of massive geothermal wells in Olkaria, with the Maasai community inhabiting this part of the country suffering deleterious environmental effects.

The Kenyan Harmonized Draft Constitution released on 17 November 2009 has strong language that recognizes minorities both at the national level and at the three levels of proposed devolved government (county, region and states) proposed by the Draft. The Draft, like the current Constitution, grants the minority Muslim religion its adjudicative mechanism, the Kadhi courts, and empowers it to determine personal matters between two consenting Muslims subject to the supervision of the High Court. This proposal has angered Christian groups, particularly the Pentecostals and evangelical groups under the banner of the National Council of Churches. Consequently, on this ground alone, the Kenyan Church has threatened to mobilize its members to vote against the Draft Constitution when it comes to the referendum in June 2010. The debate between the two communities has focused around the Kadhi courts and the constitutional review, and allowed extreme elements from both sides to speak out with great vehemence.

For the first time since independence, the Kenyan cabinet adopted a draft land policy which established community land tenure to replace the highly discredited trust land system that has been highly disadvantageous towards minorities. This draft policy has been presented to parliament and adopted as Sessional Paper No. 3 of 2009. Already it appears that the implementation of this policy will be strongly resisted by lobby groups, particularly the Kenya Land Owners Association, which works with large-scale land holders, most of whom own ranches in the largely pastoralist districts of Laikipia, Naivasha and Kajiado.

Harmful practices against minority women, especially female genital mutilation (FGM), continued among pastoralists in northern Kenya and parts of the Rift Valley. In spite of legal prohibition against the practice, the government has failed to ensure its effective monitoring, thereby weakening the deterrent effect of the law. In July 2009, 300 girls were reported to have gone through FGM in Marakwet district in North Rift, the Daily Nation said. Muslims in Northern Kenya purport to circumcise girls in order to comply with Islam.