Commemorating the International Day of the World’s Indigenous Peoples
The National Gender and Equality Commission joins the World in commemorating the International Day of the World’s Indigenous Peoples. The day is celebrated globally on the 9th day of August following the United Nations General Assembly resolution 49/214 passed on 23rd December 1994. During the commemoration, the Member States commit to systematic and coordinated protection and promotion of the rights of indigenous peoples.
The theme for 2021 is “Leaving No One Behind: Indigenous Peoples and the Call for a New Social Contract”. During this year’s commemoration, the Member States are requested to renew their social contract with indigenous peoples and ground such contracts on genuine participation and partnership that fosters equal opportunities, respects the rights, dignity, and freedoms of all. Indigenous peoples’ right to participate in decision-making is a key component in achieving reconciliation between indigenous peoples and their governments.
According to the United Nations, over 476 million indigenous peoples are living in 90 countries worldwide. These peoples hold a vast diversity of unique cultures, traditions, languages and knowledge systems. They have a special relationship with the environment and are endowed with diverse concepts of development based on their worldviews and priorities. Indigenous peoples in Kenya include hunter-gatherers and pastoralists. In Kenya, it is estimated that ‘pastoralists comprise 25% of the national population, while the largest individual hunter-gatherer community consists of 79,000.’
Kenya is a signatory to various international and regional human rights instruments focusing on the rights of among other groups, indigenous peoples. These include the 1966 International Covenant on Economic, Social and Cultural Rights, the African Charter on Human and Peoples' Rights. Kenya is however yet to adopt the United Nations Declaration on the Rights of Indigenous Peoples, and the 1989 International Labor Organization Indigenous and Tribal Peoples Convention (No. 169). Further, Kenya has numerous domestic legislative and policy frameworks that promote the participation and inclusion of marginalized, minority and indigenous communities in the governance and development processes.
The Constitution of Kenya, 2010, Article 10 provides for the values and principles of Governance that include among others human dignity, equity, social justice, inclusiveness, equality, non-discrimination and protection of the marginalized groups. Article 260 (b, c,) has categorized indigenous people as a marginalized community and defined it as,
‘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 and economic life of Kenya as a whole; an indigenous community that has retained and maintained a traditional lifestyle and livelihood based on a hunter or gatherer economy;
Various studies and reports have indicated that some of the peoples who fit in this categorization include pastoralists, hunter-gatherers communities, fisher peoples and small farming communities. They include among others Ogiek, Sengwer, Yiaku, Waata , Aweer (Boni), Terik, Ilyana, Turkana, Rendille, Borana, Maasai, Samburu, Ilchamus, Somali, Gabra, Pokot, and Endorois.
In addition, Article 56(a) of the Constitution of Kenya, 2010 calls for the State to put in place affirmative action programs designed to ensure that minorities and marginalized groups participate and are represented in governance and other spheres of life. Article 174 provides for the objects of devolution that include protection and promotion of the interests and rights of minorities and marginalized communities, while Article 100 requires Parliament to enact legislation to promote representation in Parliament of ethnic minorities, marginalized communities, youth, Persons with Disabilities and women.
At the Sub-National levels, the County Governments Act No. 17 of 2012 sets out modalities, mechanisms and processes of citizen participation and inclusion at the County level. In selecting candidates for appointment, Section 65 (1e) of the County Governments Act requires the County Public Service Board to consider the need to ensure that at least thirty per cent of the vacant posts at entry level are filled by candidates who are not from the dominant ethnic community in the county.
Other laws that deal with matters of indigenous people include the Community Land Act No. 27 of 2016, which recognizes community land ownership and control. This type of land ownership is largely predominant among indigenous communities. The National Land Commission Act No. 5 of 2012 established the National Land Commission, which is vested with the power to investigate historical and present land injustices; National Cohesion and Integration Act. No. 12 of 2008 that encourages national cohesion and integration by outlawing discrimination on ethnic grounds, and the National Gender and Equality Commission Act No. 15 of 2011 that established the National Gender and Equality Commission with the core mandate of promoting gender equality and freedom from discrimination among Kenyans with a focus on special interest groups that include the minority and marginalized groups .
Kenya has also developed various policies to promote the rights of minority and marginalized groups. Key among them include; the Kenya Devolution Policy 2017; The 2013 Policy on the Criteria for Identifying Marginalized Areas and Sharing of the Equalization Fund formulated by the Commission on Revenue Allocation; the 2010 Policy Framework for Nomadic Education; and the 2012 Arid and Semi-Arid Lands Policy.
Despite the existence of these policy and legal frameworks, the indigenous people continue to suffer exclusion in governance and development processes. They are among the most disadvantaged and vulnerable populations in Kenya. For a long time, they have agonized from historical injustices, lack of recognition and identity. Some development projects have destroyed cultural sites, others have lost their language, traditional rites, mode of dressing, and religion. A study conducted by the National Gender and Equality Commission in 2016 on the Status of Equality and Inclusion in Kenya, indicated that indigenous and marginalized groups lack access to education, face high levels of unemployment, lack adequate representation in political and leadership positions, and lack adequate access to social safety net and protection programs. They also suffer disproportionately from impacts of climate change including flooding, drought, loss of vegetative cover, invasion by locusts, and mass deforestation.
The COVID–19 pandemic has also impacted negatively on the indigenous peoples and presents unique challenges to the entire livelihoods of these groups. The high number of deaths and cases of morbidity, loss of income and employment, disruptions on the traditional modes of communications and challenges associated with the application of technology for example in learning, are some of the emerging challenges.
The Commission acknowledges and appreciates the various government efforts put in place in the last decade and even more recently to promote and protect the rights of the indigenous peoples in Kenya. The concerted efforts put in by the County Governments of Turkana, Marsabit, Isiolo, Samburu, Kilifi, among others to preserve the culture of the indigenous peoples and promote their way of life through eco-and cultural tourism has over years raised the profile and self-worth of the indigenous peoples. The listing, gazetting and preservation of more than 208 sites, museums and monuments by the National Museums, most of which were initially under the care of indigenous communities across the counties is a strong indicator of the recognition of the contributions of the indigenous peoples to our history. The preservation of the traditional and herbal remedies, preservation of knowledge and languages of the indigenous peoples, promotion of the traditional foods, and religion, are all great steps towards protecting the rights of the indigenous peoples. Some indigenous communities were enumerated as a standalone population group during the 2019 Kenya Population and Household Census. The establishment of the equalization fund and mandatory requirement to conduct social impact assessment studies on any major development project before commencement is a strategic way of promoting the inclusion of indigenous populations in the development agenda. Other initiatives include the involvement of the indigenous peoples in the restoration and conservation of forest and wetlands and experimentation of new modes of livelihoods such as fish and orchard farming.
The Commission also wishes to commend civil society organizations and networks of indigenous peoples who have continually championed the rights of indigenous peoples in Kenya. And as we commemorate the 2021 International Day of the World’s Indigenous Peoples, the Commission calls upon all stakeholders including state and non-state actors to ensure:
- Mechanisms are put in place to promote effective participation of indigenous peoples in governance and development processes;
- Improved frameworks to continue protecting, respecting and conserving the world views, knowledge, language, food, culture and traditional rites of the indigenous peoples;
- Full implementation and enforcement of laws that protect and promote the rights of these groups including the full application of the affirmative principle in socio-economic development;
- That the government initiates the process of ratifying the United Nations Declaration on the Rights of Indigenous Peoples;
- Increased investment in the communication and other sectors of development in the areas habited by the indigenous peoples to enable them to counter emerging challenges posed by pandemics and negative impacts of climate change; and
- Increased partnerships with indigenous peoples in all aspects of life including in education, employment, management of the environment, clean energy, design of development projects among others
The Commission wishes to reaffirm our commitment to promote gender equality and freedom from discrimination to among others the indigenous peoples of Kenya and ensure they are included in all aspects of life.
Dr. Joyce M. Mutinda (PhD)