MEMORANDUM

THE CASE FOR THE RECOGNITION AND PROTECTION OF THE RIGHTS OF KENYA’S INDIGENOUS PEOPLES

MEMORANDUM TO:CONSTITUTION OF KENYA REVIEW COMMISSION

PREPARED BY: THE PASTORALISTS & HUNTER-GATHERERS ETHNIC MINORITY NETWORK
PRESENTED ON MONDAY 15TH JULY 2002, NAIROBI

NOTE:


This memorandum has been prepared and submitted to the Constitution of Kenya Review Commission by members of pastoralist and hunter-gatherer communities in Kenya. Pastoralists and hunter-gatherers (PHG) have identified themselves as indigenous peoples owing to their culture, relationship and spiritual attachment to their ancestral and traditional territories, in Kenya, and seek to have the new Kenyan Constitution recognize them as such.

THE PROPOSALS AT A GLANCE

1. There shall be a constitutional Commission to address historical injustices.
2. This Constitution shall obligate the State to recognize the rights of indigenous peoples as stipulated by various international instruments and standards, specifically, ILO Convention 169, the United Nations Declaration on Persons belonging to Ethnic Minorities, the International Covenant on Civil and Political Rights, amongst others, mentioned in this memorandum.
3. The question of locus standi requires a more liberal construction with regard to an individual’s prosecutorial powers on behalf of the community.
4. This constitution shall guarantee that each ethnic community’s history and identity, culture and habit, language, religion and rights shall be respected fully and equally.
5. This constitution shall not only protect civil and political rights, but also economic, social and cultural rights as well. We propose that the standards provided under the International Covenant on Economic, Social and Cultural Rights and International Covenant on Civil and Political Rights , specifically article 27 thereof be adopted:
6. Primary and Secondary Education shall be made mandatory and free, and this constitution shall place an obligation on the state to ensure the recognition of special needs of indigenous peoples children.
7. Human Rights Education should be mandatory, at all levels of education.
8. This Constitution shall establish a Human Rights Court to redress human rights violations
9. There shall be a devolved power structure of the government with the region as the power. Consequently the boundaries shall be worked out to reflect this reality
10. There shall be two chambers of parliament at the National level, one at the region and a community council at the ethnic community level.
11. Alternative Dispute Resolution (traditional methods of conflict resolution shall be strengthened in the constitution and shall run alongside conventional system.
12. The Office of Ombudsman for Minorities shall be constitutionally provisioned for to deal with administrative disputes.

1.0 INTRODUCTION

Kenya’s Constitutional reform process is earnestly underway. Currently, the review Commission is collecting and collating the views of Kenyan’s on a wide array of issues – of social, economic, cultural and political character.

As individuals and in groups, Kenyans are making known their considered views and proposals for reform. It is not lost on Kenyans that this is a unique moment availing in its wake opportunities to correct historical wrongs and to give effect to the values, aspirations and equities of both the present and the future generations.

Throughout this document, the terms “Pastoralists and Hunter-Gatherers” will be identified as indigenous peoples, in reference to and as conceived and adopted under the International Labour Organization Convention (ILO) No. 169 of 19891. These peoples in Kenya include the Maasai, Samburu, Turkana, Ogiek, Sengwer, Terik, Orma, Wardei Somali, Borana, Rendille, Sanya, Ellmollo, to name but a few.

This memorandum is, to a large extent, informed by the provisions of the International Labour Organization (ILO) Convention No. 169 of 1989 (herein after “the ILO Convention No. 169”) and also by the deliberations of the Conference on Strengthening the Participation of Pastoralists and Hunter Gatherers Communities in the Review Process held in November 2001. The former is the foremost International policy instrument on indigenous and tribal peoples while the latter provided a domestic context for a detailed discussion of these issues. While it should be noted that Kenya is not a party to Convention 169, the Convention reflects best contemporary practices on the issue of indigenous peoples’ rights, hence our reliance thereon.

Apart from these, this memorandum is also informed by several other international standards, some of which Kenya is party to by way of having ratified them. These include, but are not limited to, the International Covenant on the Elimination of all Forms of Racial Discrimination (ICERD), the International Convention on Economic, Social and Cultural Rights, Convention on the Rights of the Child, the Convention on the Prevention and Punishment of the Crime of Genocide, the UNESCO Convention Against Discrimination in Education, the UNESCO Declaration Against Race and Racial Prejudice, and the Declaration on the Rights of Persons Belonging to National or Ethnic, Religious or Linguistic Minorities adopted by the UN General Assembly in December 1992, the Convention on Elimination of Discrimination Against Women (CEDAW), and the International Covenant on Civil and Political Rights (Article 27).

2.0. THE PREMISES
The Constitutional review process should recognize the fact that Kenyans generally, and PHG communities in particular, have suffered historical injustices, to wit:
1. Human Rights abuses;
2. Forced Displacements from their ancestral lands
3. Discrimination in many areas of their lives
4. Exclusion in the decision-making process especially in the areas that directly affect their lives.

Consequently, it is the view of the PHGEMN that the new constitution provides for a mechanism to audit our past by redressing the grievances arising therefrom. Our submission is that such historical injustices date back to the colonial period.

Our Proposal is thus that there be established a Constitutional Commission whose mandate will be to ascertain the nature and extent of the historical injustices and quantify them. This constitution should establish a Trust Fund to compensate the victims and underwrite the costs of the Commission. The said Commission will have the power to issue orders for either reparation or restitution depending on the circumstances of each case. We recommend that the life of this Commission be four (4) years from the time of its formation.

In view of the foregoing, it is thus imperative that we glance at the premises on which we shall proceed, in view of our past:
a. That the current Constitution does not address the specific situations, characteristics and needs of Indigenous peoples. This explains why they are the most impoverished and disadvantaged groups in Kenya.2
b. That the current Constitution of Kenya recognizes people only as individuals; not as communities. This arrangement is not fair to PHG communities who view themselves fundamentally as such in the first instance. Hence, there is need to strike a balance between the place of the individual and that of the community.3
c. That Constitutional provisions and laws relating to land are inherently biased against traditional/customary land rights and/or interests of these peoples. Further, that the thrust of official policy has been to systematically replace communal systems of land tenure with individual land tenure in utter disregard of the unique lifestyle of PHG communities and the negative consequences engendered thereof. This constitution should as a consequence guarantee effective protection of the rights of ownership and possession of the ancestral lands of PHG communities, in terms of Article 14 of ILO Convention 169 of 1989.
d. That certain unfettered constitutional provisions have undermined communal property rights.
e. That PHG community groups have variously been subjected to discriminatory, ambiguous and double standard treatment in respect of their identity and citizen status.

* The Indigenous Peoples
The lifestyle of PHG communities is essentially nomadic, involving movements of groups from one place to another, usually in the search for greener (better) pastures for their livestock. Others, however, are hunters and gatherers- their dwelling places being forest areas of the country. The latter rely on the forests for their food, shelter and clothing. Further, the forest is their theatre for cultural and religious activities. It is evident from the foregoing that the occupations of these communities are informed by the climatic conditions prevailing in their areas of abode.

To the indigenous and tribal peoples (ITPs) the world over, land and territorial claims are rooted far back in history predating the establishment of the modern nation-state. Their demands are usually underpinned by the notion that they have special claims to the land, first because their unique relationship with the land and the environment is necessary for their survival as culturally distinct peoples and second, because their rights over these lands and resources were never ceded to the state.4

Articles 13 to 19 of the ILO Convention No.169 contain provisions regarding land rights. The basic provisions on land rights contained in the Convention is in Article 14, which requires that the rights of ownership and possession of peoples concerned to the land they traditionally occupy shall be recognized. This wording makes it clear that rights do exist whenever lands have been traditionally occupied. The article also requires governments to take steps to identify the lands that ITPs traditionally occupy and guarantee effective ownership of their rights to ownership and possession. While the principle of non-retroactivity with respect to law should hold good, this constitution should create a Lands Claims Court to provide redress on claims arising from loss of territory, as shall be hereafter provided.

One common thread that runs through PHG communities is their notion of land rights. To these people, land and whatever is attached thereto, does not belong to an individual but to the whole community. Despite the introduction and adoption of modern forms of land tenure, which lays emphasis on individual ownership with the concomitant notion of absolute and exclusive use and access to land by individual owner, African customary law - which governs Indigenous peoples - recognizes only one kind of land tenure – communal land tenure.

Under communal land tenure, collective resources are managed by entrenched norms in consequence of which there is free and open access. However, this access is protected and conserved.

In Kenya, however, the system of private (individual) ownership of land is dominant. It is one of the most enduring legacies of colonialism. This is not because most land is privately owned but because the economic and financial systems are premised on the basis of individual tenure. It neither recognizes nor is it geared towards customary tenure that is the dominant, if not exclusive mode of land tenure among the PHG communities.5

For quite some time now, the prevailing argument has been that these communities have neither developed a system of land tenure, nor a clear concept of land ownership. On the contrary, nothing could be further from the truth; there can be no grass nor a tree flourishing in the air – meaning that land is not only of paramount significance but also that it is indispensable when it comes to sustaining the livelihoods of the members of these communities.

It is noteworthy that the communities thus owned land communally. Land being communal or a common property of all the members of a particular community, it was thus accessible to all members of that particular community and no particular person could claim supreme rights over the community. This, part from easing the accessibility to everyone to the land for its use, it is imperative to note, contributed to a very large extend, to communal cohesion. Thus one’s rights over land in PHG territories were usufructory and never absolute.

* Indigenous People and the Constitution
Chapter IX of the current constitution addresses customary land rights. In Kenya, apart from land, which has been privatised, land is known as either trust land, pursuant to the Trust Lands Act, or government land, pursuant to the Government Lands Act.

Control of Trust land according to Sec. 115(1) of the constitution “vests in the county council….” The council holds the trust land vested in it for the benefit of persons ordinarily resident on that land and “shall give effect to such rights, interests or other benefits in respect of the land as may, under African customary law for the time being in force and applicable thereto and vested in any tribe, group, family or individual.”
This apparent position of strength vested on African customary law by the constitution is watered down; however, by firstly the proviso thereof being Sec.115 (2) of the constitution which contains a repugnancy clause that in sum subordinates African customary law to any other written laws. This position is extraordinary in view of all contemporary international law, which provide that subordination of customary practices should be limited to those practices that violate international standards of human rights. Article 8 of ILO Convention 169 is instructive in this regard.

Secondly, subsequent provisions namely Sections 113, 116 and 118 further erode the strength and place of customary law in the constitution and laws of Kenya by in effect allowing for the creation of any written law to supercede customary rights.6 The existence of this provision in the paramount law gives legality to actions by local county councils with the support of the government to simply and arbitrarily invoke the provisions of the Trust Lands Act to justify usurpation of the PHG communities’ lands for the expedient ends of the local council and government. This unjustifiable distinction between systems is discriminatory.

We would also like to note here that while the Group Representative Act (Cap 287), Laws of Kenya, sought to recognize and domesticate, by legislation, the concept of communal land ownership, it failed dismally.

This failure is largely attributable, according to Keriako Tobiko,7 to the Act’s foundational premises being faulty. He argues that: “… these objectives … were postulated in total ignorance of the conditions prevailing in Maasailand….” He posits that the Act has had negative effects on the Maasai People, namely territorial fixing and confinement of people within a group, illegal land dispossessions and transactions, social stratification and increased differentiation, lawlessness and general social disharmony.

While we, therefore, commend the attempt at legislating the concept of communal ownership of land especially the tacit acceptance that such a system was sustainable, recommend that the said Act be repealed by the new constitution. Instead, it is our recommendation that each community devises a land tenure system that will serve better the interests and aspirations.

In sum, there is need to give formal recognition through unqualified constitutional entrenchment and juxtaposition of customary and modern land tenure. 8 Customary laws ought to be put at par with written laws firstly by removal of the so-called repugnancy clause and clear unequivocal unqualified entrenchment of its salient features in the constitution. Recent examples from Australia illustrate the different approaches adopted to facilitate the practise of customary land rights. In this instance, traditional land tenure arrangements aimed at preserving the traditional lifestyles of the aborigines has received judicial sanction in ‘Mabo vs The State of Queensland’ (A.L.R. 1992).

Besides the notion of trust lands, Indigenous peoples in Kenya have lost territory through the Government Lands Act which has been used to declare some of their land “waste and unoccupied.” This provision originated from the Crown Lands Ordinance of 1907. While indigenous peoples use of land is collective and not tied to one place throughout the year, it is not true to say that such land, is vacant merely by reason of non use at a particular time.

By virtue of the Act, all land that is un-alienated is government land and is vested in the president. This legal situation does not embody any notion of trusteeship and has engendered a crisis in land tenure.

The last few years have witnessed an uncontrolled privatisation of public land in Kenya- through presidential grants and setting apart of lands by county councils. The acquisition of thousands of hectares of Maasai territories for national parks and animal sanctuaries without compensation nor consultation and the unilateral excision of large chunks of forests, the dwelling place of the Ogiek, without their involvement are trite examples.

* Indigenous Peoples and the Courts – The issue of locus standi
The Kenyan legal system links the ability of individuals or groups to file suits in the courts to their private property interests. In the 1989 Wangari Maathai vs-Kenya Times Media Trust Case, it was held that for an individual to bring a suit, she or he has to establish an injury to herself or himself over and above the injury that would be caused to the general public. The only person with the competence to institute such proceeding is the Attorney General. Consequently, it is paramount for individuals interested in pursuing communal rights to mobilize interest and commitment within the community at large – a test which to say the least is very onerous.

Certainly, then, the question of locus standi requires a more liberal construction

* Indigenous peoples and the Environment
It has been argued that if property rights are defined and clearly and exclusively assigned, then land users will have an incentive to take care of their land resources and use them in a socially optimal way. The popular notion is that the open access system characteristic of African customary law vis-a- vis land rights is inimical to the concept of environmental management and conservation.

The reasoning here is that where the rangelands are free and open to all members of a community or group, then the basic drive of every group will be to reap the most out of the limited resources inevitably leading to environmental degradation. On the other hand, it is argued that, individual tenure naturally induces a sense of responsibility given that the consequences whether good or bad is distributed to the individual and not to a large group. Proponents of this argument do not give credit to peoples traditional methods of conservation.

Indigenous peoples’ traditional systems embodied communal institutions that managed rangelands or collective resources. In consequence, free and open access is restricted and over exploitation of those resources rarely occurs. Thus arguments in favour of enclosing and privatising the commons become untenable.

* Identity and Indigenous Peoples
Kenya is a creation of the imperialist process and it is the present home of diverse ethnic entities and nations, whose consents were never sought when its borders were erected. Yet the reality of its existence must be acknowledged and accepted notwithstanding the faulty historical genesis.

It is important for PHG ethnic communities to be named and specifically identified within the constitution as groups forming the Kenyan State and owing allegiance to it.

This will mean that ethnic groups as constituent parts of the Kenyan state will be recognized and will no longer be submerged under a “Kenyan identity” which only reflects the cultures, history and traditions of the dominant communities.

* Bill of Rights
There exists within the current constitution a strong protective regime of civil and political rights. Eliminating the claw-bar clauses should strengthen this regime.

Secondly, it is the view of pastoral and hunter- gatherer communities that there should be a greater emphasis on economic, social and cultural rights. We propose that the standard provided under the International Covenant on Economic, Social and Cultural Rights be adopted:

* Right to work
* Right to Education
* Right to take part in cultural life
* Right to development
* Environmental Rights.
* Right to participation in public life through voting, consultation and decision-making.

The fundamental rights and freedoms specified should be interpreted in conformity with the principles of the Universal Declaration of Human Rights, International Covenants on Human Rights and International Instruments adopted by Kenya.

Customary International Law should be part of the Law of Kenya, and enforceable.

Any violations of human rights shall be dealt with by the Human Rights Court, which should be established by the constitution.

This constitution should place a positive obligation on the state to ratify and domesticate all the international human rights instruments, which are not inconsistent with the tenor and spirit of this constitution, and specifically the ILO Convention 169 of 1989, which directly relates to the Kenyan tribal peoples.

2.0 STATE STRUCTURE AND DEVOLUTION OF POWER
Fact. There is immense concentration of power in the presidency.
Fact. There is a strong centralized decision making structure.
Fact. There is little participation by the people on the ground, in government, civil service and public life generally.

The question is, can participation of minorities be assured without spatial/ territorial devolution? Should we have a community of Nations as in the Ethiopian case or a unified state with a strong emphasis on common citizenship? Do we have enough financial resources to support a devolved structure? Do we have the requisite administrative capacity/skills? What will be the unit of devolution? What will be the boundaries? Is devolution consistent with globalization and regional economic interests?

In view of the above issues, it follows that Kenya needs a devolved power structure, which shall encompass the principles of participation and consultation of indigenous peoples in the decision-making processes, by use of their own traditional structures and political and social institutions particularly at the local level.

It is, therefore, the proposal of PHG Communities that this constitution adopts an ethnic based federalism.

It is thus our proposal that the boundaries be redrawn, in the following manner:
* Rift valley be divided into three regions: (1) The North Rift, taking the current Turkana, Pokot Sengwer, Tranzoia among others in the area; (2) Central Rift, Kalenjin Districts of Nandi, Kericho, Bomet, Keiyo Koibatec and Baringo. (3) South Rift include all Maa speaking groups of Narok, Kajiado, Transmara, Laikipia, Nakuru, Samburu and the entire area occupied by the Ilchamus and other Maa speakers of Baringo District.

* North Eastern should also be divided into two regions: North Eastern region and Northwest region. The Northwest region shall be occupied by the Borana Randile and others. NorthEastern will be occupied by the Kenyan Somali.

* Eastern region This shall comprise all the area occupied by the Kamba community.

* Mount Kenya region This shall include the entire areas historically occupied by the Kikuyu, Embu and Meru communities.

* Nairobi

* The Coastal region

* Nyanza province shall be divided into Luo Nyanza and Kisii

For the purpose of homogeneity, and proper participation of all communities, district boundaries should be redrawn to take cognisance of the ethnic/tribal homogeneity. That means that where communities are interspersed into different districts, these boundaries should be redrawn to put them back into one administrative zone. For instance, the Sengwer who are today found in three different districts should be regrouped together. Marigat should be curved out of Baringo and put in the Samburu administrative zone.

2.1 Executive arm of the government
There shall be two levels of executive powers National and Regional.

a. Executive - National Powers
* The Executive shall comprise of the President, Vice President and Cabinet ministers, all of whom shall be non-parliamentarians.
* All cabinet ministers shall be professionals in their respective fields, with at least a diploma level of education or its equivalent.
* The president shall be the head of State and government and shall be entitled to hold office for a maximum two-four year terms. He/She shall be elected on a common roll basis by all Kenyans in a presidential election.
* The Vice president shall be a running mate of the President and shall be the deputy chief executive of the republic.
* The president and his running mate shall be holders of a bachelors degree from a recognized university or its equivalent.
* There shall be fourteen ministries as may be decided by both houses of the national assembly, four of which shall be reserved for special interest groups.
* The ministers shall be appointed by the President but the appointments shall only become effective upon ratification by the Senate.
* No person who has ever been elected president or otherwise been president of Kenya shall be eligible for election as such president under the new constitution.
* Any Kenyan of sound mind and health, 30 years and above shall be eligible to vie for these offices.

b. Executive – Regional Executive
* The regions shall be the basic unit of decision-making.
* The country shall be divided several semi-autonomous regions, the boundaries of which shall clearly defined by the constitution.
* Each region shall be headed by a Regional President elected by the members of the given constituencies on a common roll basis for a maximum period of two four (4) year terms only.
* Each region shall have an elected deputy president who shall be in office for a similar period as the regional president and shall the deputy chief executive of the region.
* The deputy regional president shall be elected by virtue of his/her being the running mate of the winning regional president.
* The regional president will put in place a civil service, headed by departmental heads, and approved by the respective regional assemblies.
* The regional executive shall have the powers to negotiate for development assistance from outside the country, and also solicit investments.
* Regional departmental heads will be in line with the national ministries
* The President of the republic shall not exercise any control over any resource, issue, project, programme of a region, save that such control has received the sanction of the specific regional assembly.
* Any Kenyan of sound mind, 30 years and above shall be eligible to vie for these offices and they shall holders of a form four certificate from a recognised institution or its equivalent

2.2 Legislature
In view of the importance of the legislative power and therefore Parliament, some countries have found it appropriate to introduce constitutional provisions aimed at ensuring that Parliament acts as a check on itself without relying on the other arms of the government. Establishing two Houses of Parliament or bicameral legislature does this. The idea is to divide legislative responsibilities and powers between these two houses in such a way that each House is responsible for specific functions. In addition, certain bills can only be passed after being subjected to debate and approved by both Houses. This is the practice for example in the US where certain bills from the House of Representatives can only pass if they receive the required majority approval by the senate. A similar situation obtained in Kenya during the brief life of Majimbo constitution, which provided for two Houses of Parliament, namely the Lower and Upper House. Britain also operates a bicameral legislature. It is thus an arrangement that works under unitary as well as federal system of government.

The division of power between two Houses of Parliament is important for another reason. It makes it possible to arrange the sessions of Parliament in such a way that this arm of the government is always in session. This is not common or easy in unicameral systems because under such systems parliament ceases to function when it is in recess or when it is prorogued. This is an understandable situation precisely because of the importance of legislative and other functions of parliament. One of the dangers of a situation in which parliament ceases to function is that its functions may be taken over by the executive who may go on to misuse such powers. Details of ensuring that one House is always in session can be worked out. Suffice it to say at this point that it can be achieved by staggering the election timetable of the Houses so as that they are not elected at the same time. Again the US provides a good example of this kind of arrangement.

The other advantage of a bicameral legislature for an ethnically divided country such as Kenya is that it can make it possible to have equal representation of ethnic groups in parliament. One of the Houses could be set aside for ethnic representation. Requiring that the Upper House be made up of equal number of representatives from each ethnic group can achieve this equal ethnic representation. Representatives to this house may be selected or appointed based on an agreed upon criteria. The bicameral arrangement is an arrangement that we believe is worth exploring in Kenya irrespective of the governmental structure that is finally adopted.

It is proposed that at the National level, there be two houses of parliament, namely the House of Representatives and Senate, which at the Districts, namely the House of Representatives and Senate, while at the Districts legislative power be vested upon the District council.

a. The House of Representatives
* It shall legislate on all matters of national importance.
* Members shall be elected from each constituency in the country on a common roll. The constituencies should be named in the constitution.
* For one to qualify to vie for this position, among others, one shall be required to have at least a diploma level of education, or its equivalent.
* Any Kenyan of sound mind and health, of 25 years of age and above shall also be eligible to vie for any of these positions.
* The constitution shall provide for affirmative action for special interest groups and specifically PHG Communities.

b. The Senate
* This shall be the upper house of the national assembly.
* This upper house will act as a check on the lower house, and shall have the power to overturn decisions of the lower court by a vote of at least 70 per cent.
* Each community will be represented by one person elected by members of that community
* The senate shall be guided in resource and budgetary allocations by the Financial and Fiscal Commission, and shall legally enact these provisions.
* For a bill to be a law, it must garner the support of 60% of the Senate and House of representatives.
* Constitutional amendments would require the support of 70% of both the senate and House of Representatives.

c. The regional parliament
* Members shall be elected on a universal franchise, within the province. Electoral areas shall basically form the current constituencies.
* Where possible, the current constituencies shall be redrawn to represent ethnic/clan homogeneity.
* All areas of representation shall be scheduled both in the national constitution and the regional legislatures.
* The regional assembly shall be headed by an elected speaker, and shall comprise of at least thirty members,
* It shall enact Laws to regulate any issue pertinent to the given regions, except Defense, Diplomacy/ International obligations.

d. Community Councils
* Community councils shall be in charge of their local jurisdictions as shall be scheduled by the constitution.
* Election to the community council shall be by way of universal franchise within the respective community.
* Community councils shall sanction and implement community projects.
* Any member of the respective community of sound mind shall be eligible to vie for any of these positions, provided that he /she will be at least 18 years of age or above.

NOTE: All elective positions shall be part time jobs where no salary and pension should be expected. It is supposed to service to the country and no more than that. This means that only these interested in assisting fight the plight of their people will offer themselves for these positions. The Constitution should thus provide that no constitutional amendment shall be made to this effect whatsoever.]

2.3 The judiciary
There shall be a Judicial Service Commission, the members of whom shall be proposed to the Senate and House of Representatives which shall choose and forward them to the President for appointment.
* There shall be a supreme court of seven Justices who shall be appointed by the President from two names forwarded by the Judicial Service Commission and below it shall be the Court of Appeal, headed by the Chief Justice, below whom shall be High Court of such number as may be appropriate.
* Each Region must have, constitutionally, a Resident Judge.
* The Supreme Court Justices shall elect one of their own to be Presiding Judge for a non renewable term of five years.
* Among other issues of national concern, the Supreme Court shall hear and determine all inter-regional conflicts, where Alternative Dispute Resolution mechanisms shall have failed.
* The Supreme Court shall have no original jurisdiction, apart from the appellate jurisdiction.
* There shall be a National Prosecutor and Deputy National Prosecutor to be chosen by the Judicial Service Commission which shall recommend 4 persons (two men and two women) to the President who shall appoint two of them with due regard to gender balance.
* There shall be a Lands Claims Court, an Economic Crimes Court and a Human Rights Court. Traditional Customary Law shall be the guiding principle in all matters relating to the person and lands, and shall take precedence over any other law.

The traditional methods of conflict resolution, in particular Alternative Dispute Resolution Mechanisms shall be strengthened by the constitution and shall run alongside conventional law. However, care should be taken to close all the loopholes that have been used for abuse of the system in the past.

Moreover Court System cannot by its very nature handle all complaints. This is mainly because the Judiciary is a passive institution, and as such, it cannot take the initiative in protecting the citizen from this abuse. Highly technical rules, illiteracy and poverty seem to have joined hands to worsen this abuse for the increasingly vulnerable ordinary person.

Against this backdrop, it is therefore, proposed by us that the new constitution adopts the position of the Office of Ombudsman for Minorities. The Office of the Ombudsman on Minorities shall be created by Parliament, and the occupant to such an office shall be required by law to be answerable to Parliament by way of submitting the Annual Reports.

The Ombudsman will not come as a usurper or supplanted of the Judicial/Parliamentary arrangement but as a supplemental thereto. “Just as the Auditor-General has served parliament in its function of financial control, the Annual Reports from the Ombudsman should prove useful to parliament in its function of citizens’ protection … as the Ombudsman will be the auditor of human relations account.”9

3.0 RESOURCE ALLOCATION
a. Land
* All government land and Trust Land shall be surrendered to the local community in which it is situated and the community shall devise appropriate land tenure system.
* No such community land shall be sold or mortgaged.
* The community council shall levy taxes on land products and shall remit 20 per cent, and 10 per cent of the same to the Regional and Central Government respectively.
* Land Control Boards in Pastoralist and Hunter-Gatherers areas should be abolished.
* Accounting mechanisms shall be put in place to ensure the functionality of such Community Councils.
* Any dispute relating to government land and Trust Land shall be referred to the Lands Claims Court.
* Section 143 of the Registered Lands Act should be repealed.
* Section 75 of the current constitution should be amended so that it does not protect property acquired irregularly.

b. Game Parks, Flora & Fauna
* Shall, remain the property of the local communities within which it is situated.
* 20 per cent and 10 per cent of the revenue from the parks shall be remitted to Regional government and Central Government respectively.
* The local community should be incorporated into the management of the game parks.
* Any loss of life
* The laws of trespass should be abolished

c. Energy
* Natural energy shall vest in the community
* Power stations shall be joint property of the community and investor, and the first beneficiary thereof shall be the community within which they are situated.
* There shall be a National Electricity Board for the national power policy purposes, which shall also assess the environmental impact of any power generation project and advise accordingly.

d. Forests and environmental management
* Shall remain the property of the community. This is because in many countries full indigenous ownership of forest land has been granted to indigenous people. (See 1974 Native Communities Act of Peru).
* National and regional environmental councils shall supervise exploitation and conservation in consult with local communities.
* The local community shall participate in the conservation and management of the forests within their territories
* All projects shall be evaluated to satisfy the environmental standards.
* All forestland, and any other land, excised since 1963 must revert to the community in which the forestland is situated.

e. Airports
* International Airports to be national property. All revenue to central government.

f. Ports
* Shall remain the property of the regions where they are situated.
* 30 per cent of revenue to go to the Central government.

g. Minerals
* Shall remain the property of the local communities and shall only be exploited after adequate consultation with the relevant community and with informed consent by members of that community. This is not unusual. For instance under the 1984 Western Arctic claim, the Inuvialuit people were granted full surface and subsurface rights. Access for development for subsurface development was guaranteed and the people had the right to negotiate participation agreements with prospective developers. (See ILO partial revision of ITP Convention No. 107, report V1(1) ILO conference 1988).
* This constitution shall invalidate all contracts entered into by the Kenyan government and any mining company in Kenya, and direct that such contracts be entered into afresh with the communities concerned, under the direction and supervision of their respective regional governments.
* 50 percent of the revenue shall be used to improve the living standards of the community in the area where mining activity is situated with 30 per cent going to the regional government and 20 percent to the Central government.

h. Education
* The education curriculum shall be Multi-lingual/Multicultural with specific emphasis on the needs of indigenous peoples children.
* Primary and Secondary education shall be free and compulsory
* There shall be a National Education Board enacted, which shall determine the educational policy, curriculum and all other matters of national concern.
* An education levy shall be levied by the Central Government on all employees of the private and public sector and the corporate sector to underwrite the education cost of the state.

I. Public Finance

* Enhanced taxation and expenditure powers and responsibilities to be vested in the Local Authorities. Central government to provide audit, supervisory and monitoring services to ensure that resources are used transparently and services are delivered are qualitative. But the circumstances of central government interventions must be coded in law to avoid arbitrary interventions.
* There shall be a Constitutional Financial and Fiscal Commission that will handle the physical resource allocation, and equalization to the regions.
* The decisions of the Fiscal Commission shall be binding, and shall duly be legislated Chambers of the national assembly.

4.0 THE ELECTORAL COMMISSION
1. There shall be an electoral commission that shall undertake and supervise the electioneering process in Kenya.
2. The electoral commission shall also review all the boundaries in view of the changes herein proposed.
3. The electoral commission shall work on a permanent basis and shall cause to be registered as voters all qualifying Kenyans.
4. The members of the Electoral Commission shall enjoy tenure of office.
5. Decisions of the Electoral Commission on boundaries shall be refereed to the regional Assemblies for review and if found in order, passing.

5.0. TRANSITIONAL ARRANGEMENTS
1. This constitution shall run for a period of five years, within which period, a continuous national audit shall be taken and advice given.
2. Any part of this constitution shall be amended within the period of five years, by virtues of national constitutional conferences, and failing of the conferences to agree, by virtue of a referendum, supported by at least 75 per cent, per region, of three quarters of all the regions in Kenya, by the time of such a referendum.
3. The Constitution of Kenya Review Commission shall remain in office for the said period of five years, after which time it will hand over to an enacted constitutional commission.

In witness whereof, representatives of Pastoralists and Hunter-Gatherer communities in Kenya hereby append their respective signatures, this 15th day of July 2002.

Signed on behalf of the MAA COMMUNITIES BY: ………………………..

Signed on behalf of the HUNTER-GATHERER COMMUNITIES BY:……………………

Signed on behalf of NORTHERN PASTORALISTS BY: ………………………

Signed on behalf of the PHGEMN BY: ……….…………………..

ENDS
1 Article 1.1 of I.L.O Convention No. 169
2 Project to Promote ILO Policy on Indigenous and Tribal Peoples (2000.) Traditional Occupations of Indigenous and Tribal Peoples: Emerging Trends. International Labour Office, Geneva

3 See a Kenya Human Rights Commission Paper by Willy Mutunga, The Ogiek, p. 11
4 See Paper by Centre for Minority Rights and Development (CEMIDE) on Civic Education p. 2


5 See Camilla Tollman and Julian Quan, “Evolving Land Rights, Policy and Tenure in Africa”, 2000, p. 7
6 See paper by Isaac Lenaola, Land Tenure in Pastoral Lands
7 See Keriako Tobiko’s LLB dissertation (unpublished) University of Nairobi 1987
8 Supra 5 p.127
9 George Rukwaro, A case for the office of the Ombudsman in Kenya (unpublished) 1993
PREPARED BY THE PASTORALISTS AND HUNTER- GATHERER ETHNIC MINORITIES NETWORK (PHGEMN) AS MANDATED BY THE 2001 NOVEMBER NATIONAL CONFERENCE

SOURCE

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