• Narok Senator Ledama Olekina seems to have elicited considerable support from some other Maasai leaders.
• In their favour, the Maasai leaders are reflecting the great injustices they have suffered in colonial and independence periods.
In recent visits of the BBI team to various counties, the issue of the rights of minorities has arisen.
The clear majority in some counties designate themselves as a minority by reference to the total national population.
Within many counties, there are minorities of two kinds.
Some are minorities by any definition. Others at the national level cannot claim to be minorities, but in counties where they are not dominant they are present but as a minority. The Kikuyus, for example, despite being the biggest community nationally — as the new census figures show —count as a minority in some counties.
Unfortunately at both the national and county levels, minorities do suffer in various ways.
It is especially unfortunate that a 'national minority', which admittedly suffers at the hands of the national government or nationally dominant communities, should turn round and mistreat minorities within a county where the national minority dominates.
Ever since independence, politics has been dominated by five tribes, led by the Kikuyus, who have generously given some ministries to representatives of the other four. Even Moi’s presidency was initially the gift of the Kikuyus — though they did not expect that he would hold the throne for so long.
When the issue of devolution arose at Bomas there was a wide concern — and major support — that the boundaries should not be based on ethnicity.
There were two reasons. One, that we wanted to move away from ethnicity as the basis of the Constitution, and the other was to have sizeable units able to handle significant functions.
But the Constitution as adopted abandoned the idea of an intermediate level of government.
And the counties used as the basis for our system of devolution were very much ethnically based. This is because they are (with a few very slight differences) the districts as at Independence.
Those districts were demarcated by the colonial rulers deliberately on the basis of ethnicity. But none is ethnically homogenous, and no doubt since 1963 population movements have made them less so.
So now we have only the 47 counties. Many of them, most of them, are too small to handle sizeable responsibilities, and they also have small and vulnerable minorities.
The Constitution, especially in Article 174 (“Objects and principles of devolved government”), has many resonances of Bomas.
It says that the interests and rights of minorities and marginalised communities should be protected and promoted. The very fact of devolution was intended to achieve this – by bringing government closer to the people. But it is also clear that within counties there is to be a special concern for minorities.
A study by Katiba Institute of the situation of minorities in 16 counties showed a high degree of discrimination against them. It concluded that only people from certain (nationally dominant) ethnic communities dominate in public positions, whether elective or public service. The majority also benefits from other opportunities.
In some counties, minorities suffer from poor health services (some with none), poor educational facilities, lack of clean water, poor roads, lack of electricity, and little protection against violence and thefts.
Members of minorities play almost no role in county politics, legislature and administration. Members of some minorities, particularly the Nubians, the Ogiek, and the Makonde, find it difficult to obtain identity cards (with consequent difficulties in securing their rights such as education for children, lack of employment in state and private organisations.
Capping all this is the recent stupidity of the otherwise sane Narok Senator Ledama Olekina, claiming to be speaking on the behalf of the Maasai community, insisting that it was wrong for people from other communities to take some leadership positions in the county — although he was generous to allow them to stay on.
He seems to have elicited considerable support from some other Maasai leaders. In their favour, the Maasai leaders are reflecting the great injustices they have suffered in colonial and independence periods.
And there is great resentment against the five major communities for depriving them of their resources. In the circumstances, the senator’s outburst is understandable (quite apart from thinking of support for the next elections) and his prompt arrest unjustified. The official response should have been to deal with the genuine grievances of the Maasai.
CONSTITUTIONAL PERSPECTIVE ON PEOPLE AND TKENYAN STATE
Amidst the hullaballoo of the BBI, it is important to understand the framework of the Constitution. The leaders of Handshake set on their journey to fully implement the Constitution (something entirely within their authority, indeed their obligation).
Soon it seemed to assume a different objective (or so it seemed) — with more than a tinge of ethnicity. Two powerful, undefeatable tribes (so their enemies interpreted) had got together to dominate the state.
The two of them then wooed the leaders of the other three big ethnic groups. It seemed like the good/bad old days — the time of ethnicity.
It is no wonder that the minorities began to feel threatened by the leaders of the centre, and those within counties, of the dominant ethnic group.
This inevitably looked like the threat to the Constitution, involving a re-organisation of the structure of the Executive, ensuring precisely five positions to run the state — one for each of the five tribes?
On the surface, it might look as if the amendments are marginal to the objectives and structure of the Constitution. So let us see how the Constitution dealt with the ethnicity issue.
It was anxious to bring within the national/state framework all citizens on an equal basis, to create a strong sense of nationhood.
The Constitution provides for a delicate balance between ethnicity as culture and ethnicity as politics — a balance violated by all major parties, all tribes — and the Electoral Commission.
A political party that aims to compete in elections must not be founded on an ethnic basis and, under the Political Parties Act, must reflect regional and ethnic diversity, as well as gender balance and representation of special interest groups. This rule is honoured more in the breach than the observance.
But to return to the protection of minorities, every citizen is allowed equal rights. So are all ethnic groups, especially the minorities.
The Constitution has a special concern for the representation of marginalised communities with a relatively small population, maintaining a traditional lifestyle and geographical isolation.
'Minorities' is not defined but clearly focuses on relative smallness of size. There are a number of ways the handicaps of minorities are overcome: There must be affirmative action when relevant.
The State must ensure they have the opportunity to participate in governance and other spheres of life, are provided special opportunities in educational and economic fields and access to employment and have reasonable access to water, health services and infrastructure.
There are special provisions regarding counties. Members of minorities must be ensured representation in the county assembly. Regarding Parliament, the Constitution requires it to promote the representation of ethnic and other minorities and marginalised committees.
Minorities have therefore very good reason, whether at the national or county level, to complain if these requirements are not satisfied.
It is not good enough for the President and his ministers to criticise (indeed imprison) the leaders of minority groups when they point to the deprivation of their rights.
He should instead deal with his ministers and officials who have failed in their duties under the law. There is ample evidence that minorities and marginalised communities have suffered massively due to the lack of the commitment of governments to their obligations towards them.
The BBI in this as well as other respects is or is being used as a smokescreen. Leaders of smaller communities have begun to comment that the whole BBI process (or circus) is proving to be divisive.
How ironic that the BBI report is called “Building Bridges to Unity: From a Nation of Blood Ties to a Nation of Ideals”.