As the United States considers its support of the United Nations Declaration on the Rights of Indigenous Peoples, and Australia moves toward amending its constitution in favour of Indigenous Rights, the people of Kenya took their own step forward this month took, akin to the patient but sturdy march we saw in 2009 with the passage of Bolivia’s groundbreaking constitution.
On August 4th, 2010, Kenya held a constitutional referendum, the outcome of which surely exceeded our hopes. Like in Bolivia, more than 60 percent of those who took part in the referendum said “YES” to the new constitution.
The document, which will go into effect on August 21, represents “a clean break with the past and provides several avenues for the pursuit and strengthening of indigenous peoples individual and collective rights,” says the International Work Group for Indigenous Affairs (IWGIA).
For instance, says IWGIA, “Article 7 of the new constitution obliges the state to promote and protect the diversity of language of the people of Kenya. The state is also obliged to promote the development and use of indigenous languages. Article 11 recognizes culture as the foundation of the nation and obliges the state to promote all forms of cultural expression through literature, the arts, traditional celebrations, science, communication, information, mass media, publications, libraries and other cultural heritage. The state is also obliged to recognise the role of indigenous technologies in the development of the nation.”
“Not only shall the state promote the intellectual property rights of the people of Kenya, Parliament is also required to enact legislations that will ensure communities receive compensation or royalties for the use of their cultures and cultural heritage, and legislation that will also recognise and protect the ownership of indigenous seeds and plant varieties, their genetic and diverse characteristics and their use by communities. Under the Bill of Rights, Article 44 gives every person a right to use the language and participate in the cultural life of his/her choice.”
Further, as a result of the constitution, “Kenya will now be a pure presidential democracy with a two tier parliament that comprises a senate and parliament. The system of government will be devolved with the country being divided into 47 counties under governors elected by the people. Indigenous peoples will have a sizable number of the counties. This will enable them to make decisions that will shape their destiny. In the counties where indigenous peoples will be the minorities, special provisions have been made to accommodate the interests of minorities in such situations.”
Equally important, the interpretation clause in the constitution “defines ‘marginalised community’ to mean a traditional community that, out of a need or desire to preserve its unique culture and identity from assimilation, has remained outside the integrated social economic life of Kenya as a whole, or an indigenous community that has retained and maintained a traditional lifestyle and livelihood based on hunter or gatherer economy; or pastoral persons and communities whether they are nomadic or a settled community that because of its relative geographic isolation has experienced only marginal participation in the integrated social and economic life of Kenya as a whole.”
“From the above, the new constitution not only gives credence to indigeneity on the basis of hunter gatherer and pastoral lifestyles but also links these aspects with marginalization in line the 2003 report of the African Commissions on Human and Peoples Rights. The new constitution also recognises the concept of self determination as enshrined in the UNDRIP by recognising the need or desire by these communities to preserve their unique cultures and identity,” IWGIA continues in their analysis.
There is however, one significant drawback to the new constitution; but given its benefits, at least we can say there is a balance. Under Article 66, the state retains the option to “regulate the use of any land in the interest of defense, public safety, public order, public morality, public health or land use planning.” Incidentally, Canada reserves the exact same right, which they can exercise, infringing on any indigenous lands, as long as there is a “substantial objective.”
Nevertheless, in Kenya, the Ogiek, Maasai, Samburu and other Indigenous Peoples are celebrating the tremendous outcome of the referendum and the turning point it represents in their more than 50-year struggle for equality, recognition, freedoms and rights.
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