Fate of minorities
While the “leaders” of the “big five” (ethnic groups – Kikuyu, Luhya, Kalenjin, Luo and Kamba) fight their battles over their own interests, no one cares about minorities, who are the really oppressed. They have no voice, and even if a member of a minority does speak up, no one listens, because they don’t have to. The Uhuru government has persecuted several minority groups in its short life so far (and ostentatiously disregarded court orders to stop the harassment of minorities, including the burning of their homes as punishment for disobeying illegal government orders). Cord’s “Resolution of the People of Kenya” shows no awareness of the problems facing minorities. Most foreign donors, pursuing their international interests and obsessed with “development”, have little time for minorities, and often encourage government policies inimical to the interests of pastoral communities and forest peoples. The colonial policies of the neglect of minorities continue, resulting in continuing exclusion and increasing inequalities.
In a political system based on the “tyranny of numbers”, the “big five” have the numbers, and minorities don’t. The former between them are 50% of the population, while at least 18 ethnic groups are less than 100,000; many of them are even smaller. Political parties see little benefit doing anything for minorities. In an excellent study in 2011 for the Minority Rights Group International on critical problems facing Kenya’s minorities, Korir Sing’Oei Abraham (now senior legal and policy adviser to the Presidency) identifies three critical problems: (a) the lack of effective representation in parliament and participation in local decision-making; (b) dispossession of their ancestral land and resource rights, in addition to distortion of their livelihoods, to make way for the establishment of national parks, game reserves, forest areas and economic activities; and (c) poverty, inequality, and limited access to social services as a result of historical marginalization. And when minorities, having failed to get justice from national courts, have won their claims in regional or international courts, the government has failed to obey the court orders—in clear violation of their international obligations. And the government cares little when citizens of minority government are denied ID cards or passports—necessary for the exercise of their rights and freedoms.
Constitution’s regime for minorities
Fairness for minorities, as for all groups, is essential to the foremost objective of the Constitution: nationhood among the whole range of Kenya’s ethnic communities. It seeks to establish the basis of a united people, sharing a common identity and conscious of a common destiny. A common identity was not seen as requiring the elimination of ethnic or religious diversity. Guidance to the vision of common identity is provided by the preamble and national values and principles. The preamble says that the people of Kenya are “Proud of our ethnic, cultural and religious diversity, and determined to live in peace and unity as one indivisible sovereign nation”. The nationalism that the Constitution aims for therefore provides room for communities to maintain their culture and lifestyles—and above all is built on the dignity of every community. It goes even further, and commits the state to facilitate the life style of those communities—different from the majority—to preserve that life style should they wish so.
National values and principles on which the drafters of the Constitution wanted to build a united people are set out succinctly in Article 10, but appear in several other places. These values are so fundamental to the social and political system established by the Constitution that they are constantly reiterated. The values most relevant to minorities are the rule of law, democracy, participation, human dignity and human rights, social justice, inclusiveness, equality, and protection of the marginalised. Sustainable development and the protection of the environment are also important to them, perhaps more than to other communities, because the survival of their life style and livelihood depend on the environment.
Citizenship and the Bill of Rights are of special importance to minorities. There has been systematic discrimination against certain minorities in obtaining citizenship or if they are citizen automatically by the operation of the law, in obtaining ID and passports (particularly Nubians, Somalis and some coastal communities). Without citizenship many important rights, political and economic, are denied—which situation creates a strong sense of grievance hardly conducive to nationhood. Particularly relevant rights are equality and non-discrimination, human dignity, freedom of conscience, association, freedom of movement and residence, family, culture and basic necessities of life. The Constitution provides special protection for people with disability and minorities and marginalised communities, guaranteeing them special opportunities (e.g., of education, economy, and employment) to make up the difference with other, better off, groups. Rights are normally given to individuals, but, given the respect for cultures and communities, the Constitution balances the rights of individuals with those of the community. And so that no religion gets priority or privileges over others (a cause of conflicts in several countries), the Constitution prohibits the adoption of any religion as state religion, while giving all the freedom of religion and worship (suitable for a country of several religions and full of believers).
Land issues
A particular dimension of community life is land. Among the three categories of land is community land, governed by traditional rules—a basis of community cohesion and collective life. And given the importance of land to many minority groups—for some it is central to their life style–there is provision for redressing past injustices when land was forcibly and illegal taken from them. Minorities have suffered greatly from land grabbing, first by colonists and later by unscrupulous Kenyans, which still continue. The National Land Commission is obliged to address issues of land injustices and to recommend appropriate redress. This obligation of the NLC is of special significance for those various minorities that were among the principal victims of land grabbing over the years.
Governance issues
Marginalised communities have long suffered from their contact with the administration (in which they were traditionally unrepresented). Few people have spoken up for them. The Constitution now has a general provision that gives every person “the right to administrative action that is expeditious, efficient, lawful, reasonable and procedurally fair” (art. 47). If a person’s right would be adversely affected by an administrative decision, the person has to be given reasons for it.
Vibrant and participatory democracy
But the Constitution does not see the minorities merely as passive recipients of state largesse. It envisages their members exercising the rights of citizenship, which include working within the bureaucracy, voting, and being represented in legislatures and executives by members of their own communities. They are now entitled to these rights—the state must take special measures to promote their recruitment into state services, including security service, and in representative institutions. There is a broad understanding of proportionality and inclusion, whereby all communities must be fairly represented in state institutions. And there is the generally applicable requirement of participation of the people in decision making by state organs. All these provisions are designed to create an active citizenry and a democracy which is vibrant in which citizens and communities have full rights to become involved—and to use the various methods to hold the government accountable, including petitions to legislative bodies. There are also a number of independent commissions whose mandate to help the people, ensure fairness, receive and investigate complaints—which can be used by all citizens and communities.
Devolving power
Exercising self-governance at lower units and places close to where a community lives has long been an aspiration of the people. It was exemplified by regionalism or majimbo in the independence constitution. It was widely regarded as giving opportunities to communities, especially smaller communities, to exercise self-government at local levels, and protect their interests against interventions of the central government. It is well known that Jomo Kenyatta killed it within a year, and his and subsequent regimes have used central power selectively, to reward its communities and punish those opposed to or outside to it. At the coast and other places, many communities suffered greatly.
Now with devolution, some opportunities of self-government are opened up, and more extensively than in 1963, as there are many more units of devolution (47) than previously (7), which would merely divide the country among the “big five”. But many of the smaller minorities will still be without their own county—and will remain at the mercy of the majority community. The Constitution and laws have safeguards against discrimination against or exclusion of such minorities—through representation, inclusion and participation in county government, and delegations to units even further down. It remains to be seen whether the situation of minorities will improve or worsen with devolution.
Challenge of implementation of the Constitution
I have outlined the spirit of the constitution, national unity which recognises diversity, and equal rights of minorities, only too mindful of the difficulties of its implementation. It is too early to assess success or otherwise, but the signs are mixed. Over the next five weeks, every Saturday, courtesy of the Star, there will be articles on specific minorities, their rights and realities. We hope at the end to discuss strategies to achieve constitutional objectives. Readers' comments and suggestions will be greatly welcome (send to yashpal.ghai@gmail. com).
Yash Pal Ghai is a director of Katiba Institute
