Indigenous World 2020: Kenya

Written on 11 May 2020. Posted in Kenya

In Kenya, the peoples who identify with the Indigenous movement are mainly pastoralists and hunter-gatherers, as well as some fisher peoples and small farming communities. Pastoralists are estimated to comprise 25% of the national population, while the largest individual community of hunter-gatherers numbers approximately 79,000.

Pastoralists mostly occupy the arid and semi-arid lands of northern Kenya and towards the border between Kenya and Tanzania in the south. Hunter-gatherers include the Ogiek, Sengwer, Yiaku, Waata, Awer (Boni). While pastoralists include the Turkana, Rendille, Borana, Maasai, Samburu, Ilchamus, Somali, Gabra, Pokot, Endorois and others. They all face land and resource tenure insecurity, poor service delivery, poor political representation, discrimination and exclusion. Their situation seems to get worse each year, with increasing competition for resources in their areas.

Kenya’s Indigenous women are confronted by multifaceted social, cultural, economic and political constraints and challenges. Firstly, by belonging to minority and marginalised peoples nationally; and secondly, through internal social cultural prejudices. These prejudices have continued to deny Indigenous women equal opportunities to rise from the morass of high illiteracy and poverty levels. It has also prevented them from having a voice to inform and influence cultural and political governance and development policies and processes, due to unequal power relations at both local and national levels.

Kenya has no specific legislation on Indigenous Peoples and has yet to adopt the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) and ratify International Labour Organization (ILO) Convention 169. However, Kenya has ratified the International Convention on the Elimination of All Forms of Racial Discrimination (ICERD), the Convention on the Elimination of Discrimination against Women (CEDAW), the International Convention on the Elimination of All Forms of Racial Discrimination (CERD) and the Convention on the Rights of the Child (CRC).

Chapter Four of the Kenyan Constitution contains a progressive Bill of Rights that makes international law a key component of the laws of Kenya and guarantees protection of minorities and marginalized groups. Under Articles 33, 34, 35 and 36, freedom of expression, the media, and access to information and association are guaranteed. However, the principle of Free, Prior and Informed Consent (FPIC) remains a challenge for Indigenous Peopes in Kenya although the Constitution guarantees participation of the people.

“Huduma Namba”: a blessing or additional curse on Kenya’s Indigenous Peoples?

In early 2019, the government of Kenya introduced the 6 billion Kenyan Shilling (approx. US$59 million) “National Integrated Identity Management System” (NIIMS) programme commonly called “Huduma namba” or “Service Number”. The NIIMS is hyped as a unique number that will bear consolidated information about every individual resident in Kenya into a single digital identification card. According to the Kenya Government, the NIIMS digital identification card shall form a useful tool for planning, provision of social services and resource allocation for development projects. The Huduma namba initiative received an unprecedented level of publicity and government impetus only comparable to general election campaigns.

Indigenous Peoples in Kenya, such as pastoralists, live in a reality where youth and other individuals seeking identification documents such as the national identity card, passport, driver’s license, national social security card, national hospital insurance card, Kenya revenue authority tax personal identification number, etc., are subjected to arduous and often demeaning vetting processes, where they are required to prove their Kenyan citizenship beyond reasonable doubt. This process is often wrought with numerous hurdles that include the local administration such as chiefs, institutions such as hospitals and schools, security agencies such as police and intelligence service and local elders, and as a result, individuals from Indigenous communities often end up not getting these cards and documents. The question is whether the Huduma namba will do away with these long and time-consuming vetting processes – also when it comes to Indigenous Peoples.

Many Indigenous people in Kenya who live in remote and marginalised areas have for many years not been included in critical processes such as formal education, national census, civic education, elections and health campaigns. And for them even the process of acquiring critical identification documents, a basic right for all Kenyans, is still a tormenting experience. Therefore, it is feared that the process of obtaining the Huduma namba digitial identification card will be a very challenging and problematic process for Indigenous people.

The Huduma namba initiative seems to enjoy unparalleled impetus and hype from the Presidency, which raises justifiable concerns among Indigenous Peoples. There is concern  among  Indigenous  Peoples  that the whole NIIMS process may prove to be counterproductive as it makes it mandatory to present the NIIMS card before one can participate in what has been described in the media as ordinary life and civic democracy, including getting issued a passport, registering or renewing a driving license, transacting in the financial markets, registering  a mobile phone, paying taxes, legally marrying, voting, opening a bank account, getting an electricity connection, going to a public school or being served at a public hospital.

The Huduma Bill of 2019 imposes hefty penalties with fines between USD$10,000 to USD$50,000 or imprisonment of between one to five years for transacting without the Huduma Namba card, tampering with the Huduma card, or failing to register births and deaths within    a prescribed time frame (30-90 days). These punitive measures have been described by the human rights watchdog Amnesty International as, “grossly unnecessary and disproportionate with the offences”.

Indigenous Peoples globally have been victims of decisions made without consultations and its impacts continue to cast long shadows today. This reality has prompted the emergence of the concept of Indigenous Data Sovereignty (IDS)¹ as a legitimate issue that raises fundamental questions about assumptions of ownership, representation and control in open data communities. Kenya’s Indigenous Peoples can invoke² the right to control data from and about their communities and lands, articulating both individual and collective rights to data privacy.

According to the State of Open Data website:³

... ideas from Indigenous Data Sovereignty (IDS) provide a challenge to dominant discourses in open data, questioning current approaches to data ownership, licensing, and use in ways that resonate beyond Indigenous contexts, drawing attention to the power and post-colonial dynamics within many data agendas.

Kenya’s Indigenous Peoples can build linkages with the growing IDS networks that are working to shape open data principles to better respect the rights of Indigenous Peoples. Without a human rights approach, careful design, application and oversight, Big Data and technology information can reinforce existing inequalities and greatly harm such vulnerable sectors of the Kenyan society as Indigenous Peoples. Kenya’s Indigenous Peoples are in urgent need of data protection and currently it is urgent for Kenya’s Indigenous Peoples to be facilitated to make informed decisions on the Huduma namba process. 

Ogiek Indigenous Peoples caught up in government-sanctioned forceful evictions from the Mau Forest Complex

The precedent setting 26 May 2017 ruling by the African Court on Human and People’s Rights in Arusha, Tanzania directs Kenyan authorities to resettle the Ogiek Indigenous hunter-gatherers in the Mau Forest. In 2019 even before the implementation of the ruling, sectors of the Ogiek community were part of the thousands of residents driven out for alleged encroachment, illegal settlement and destruction of the important water tower.

Indigenous Peoples have for centuries depended on their local biodiversity and key ecosystems. Ogiek hunter-gatherers of Kenya depend on the sustainable management and use of the Mau Forest Complex  in Kenya’s Rift Valley for their survival. However, starting in July 2019, Ogiek hunter-gatherers were part of the 60,000 families who fell victim to government-sanctioned forceful evictions from the Mau Forest, despite the fact that Ogiek are the main custodians of this forest. No thorough vetting was done to identify illegal settlers and encroachers and to guarantee the rights of the Ogiek forest dwellers to comply with the African Court ruling.

The justification for the evictions made by the Kenyan government through the Ministry of Environment and Forestry was to save the Mau

Forest ecosystem by ejecting people accused of illegally settling on Mau Forest land and undermining the integrity of the forest complex through encroachment, unwarranted settlement and intensive deforestation. However, while the Kenyan authorities indicated that the targets of evictions were encroachers and illegal settlers and not Indigenous Peoples such as Ogiek hunter-gathers, the fact is that some Ogiek people were also evicted in the process. As reported by Peter Ng’asike an Ogiek victim of the recent evictions:

…while it is important to secure and conserve the Mau Forest as a critical water catchment area and a source of many other forest resources necessary for the country and local communities such as hunter gatherers and pastoralists, the mode of vetting illegal settlers, encroachers and forest destroyers was not efficient as it victimized some innocent Ogiek Indigenous Peoples.

Thus, there is an urgent need for the Kenyan government to ensure the return to the Mau Forest of the Ogiek people who were evicted from it. They are neither encroachers nor settlers and they should be compensated for the rights violations they suffered during the eviction process. As a response to the ruling of the African Court on Human and Peoples Rights, the Cabinet Secretary for Environment and Forestry appointed a taskforce to advise the Government of Kenya on the implementation of the decision concerning the Ogiek Indigenous Peoples of Mau Forest.

On 6 June 2019, the taskforce met with representatives of the community under the auspices of the Ogiek Peoples Development Programme (OPDP) where the community raised concerns about the commitment of the taskforce to the implementation of the decision by the African Court as evidenced by delays and fruitless consolations, among other hurdles.

It is imperative that the Kenyan authorities in consultations with the Ogiek Indigenous people implement the ruling of the African Court as part of meeting the country’s obligations towards international human rights standards and towards its own domestic constitution.

According to the Human Rights Watch Kenya Chapter, Kenyan authorities should adopt collaborative forest management approaches such as those being applied in Mt. Kenya Forest where local communities are increasingly getting involved in biodiversity conservation through community forest associations (CFAs). In this setting, communities have taken charge in the restoration of degraded forest areas and monitoring of biodiversity. 

No reprieve in sight for the Sengwer Indigenous people

The Sengwer Indigenous people are a forest people alongside the Ogiek of Kenya who have for many years been engaged in a protracted dispute with Kenyan authorities over ancestral rights to the Cherangany hills in Kenya’s North West.

As part of their continued struggle for their communal land rights, in October 2019, their representatives presented a petition to the Kenya Government seeking legal recognition as a Kenyan community. Also, they are pursuing restitution and protection of their ancestral lands in the Embobut Forest in the Rift Valley.

The Sengwer have on various occasions been evicted from their forest lands, and in 2019 they were facing imminent threats of evictions, ostensibly to pave the way for the government to take charge of conservation of the country’s forests and water sources. The Sengwer sought audience with Kenya’s President, Uhuru Kenyatta, in an attempt to take their grievances to the highest office in the land. They were not successful; however, they nevertheless petitioned the government to be allowed to return to the lands from where they had been evicted and to be recognised as the rightful owners and inhabitants of the Embobut Forest lands.

Slow implementation of the LAPSSET mega project: a blessing in disguise for Indigenous Peoples?

The 2.5 trillion Kenyan shilling (approx. USD$24,797,450,000) flagship project Lamu Port South Sudan, Ethiopia Transport (LAPSSET) is according to Kenyan Authorities supposed to spur development and improve the wellbeing of the largely Indigenous communities along the more than 1,000-kilometer-long project corridor.

Indigenous Peoples along the project corridor have often expressed concern that the implementation of the project has by and large not been consultative and inclusive despite the fact that the Indigenous communities were to lose large chunks of their communal lands and strategic resources via the operationalisation of the LAPSSET project. The main cause of concern of the Indigenous Peoples has been that the conceptualisation, design and partial implementation has not involved the Free Prior and Informed Consent (FPIC) of the affected communities, and that it has therefore been in violation of Kenya’s Constitution Article 10 (2) (a) on participation of the people.

County governments along the corridor have often raised concerns about the LAPSSET project, and this was also the case in 2019. Key among them have been the Isiolo County Government, since Isiolo County lies at the centre of the LAPSSET project where the road, railway and oil pipeline branch out towards South Sudan and Ethiopia. The leadership of Isiolo, pastoralist NGOs and other civil society organisations such as Save Lamu have been advocating for adherence to rights-based approaches in the implementation of the LAPSSET as well as adherence to international human rights standards relating to the rights of Indigenous Peoples.

During a visit in September 2019 to Lamu and the Lamu Port by Kenya’s President Uhuru Kenyatta, he raised concerns that the various components of the LAPPSET project were taking too long to construct thereby putting the viability of the whole project at risk. These delays in the implementation of the hinter land infrastructural projects may come as a blessing in disguise for the affected Indigenous communities since a delayed implementation might coincide with the long-awaited operationalisation of the 2016 Community Land Act that provides robust protection of community lands.

Climate change, conservation and Kenya’s Indigenous Peoples

Kenya’s Indigenous people have for centuries used various strategies to optimise the use of natural resources including animals and plants without jeopardising their long-term sustainability. This maintenance of an optimal balance between plants, land, animals and people to meet both their immediate and future livelihood needs is a critical objective of Indigenous Peoples’ coping mechanisms.

However, these strategies are now challenged by climate change. Lengthy and unpredictable droughts, extended rainy seasons, floods, disappearance of important plant species, degradation of the ecosystems, interference in migratory and shifting strategies and emergence of new human and livestock diseases pose major challenges for Indigenous Peoples’ land and natural resource management strategies and practices.

Climate-induced disorientation affects Indigenous Peoples in the arid and semi-arid lands due to intense and frequent drought cycles. This results in loss of livelihood sources such as livestock, forests, water masses and land leading to decreased production and impoverishment. It is essential that national climate change mitigation strategies incorporate Indigenous technical knowledge. A special blend of science and Indigenous knowledge will be essential in dealing with the impacts of climate change in Kenya which requires practical and responsive strategies to vulnerability and building resilience. It also entails developing a holistic set of interventions that will secure ecological and socio-economic foundations of Indigenous Peoples and ensure the continued thriving of fauna and flora. Such issues surfaced in dialogues held in Kenya in 2019 under the auspices of the Global Soil Week in June 2019, the fourth biennial United Nations Environment Assembly (UNEA) held in March 2019 and the annual Kenya Pastoralist Week held in December 2019.

Indigenous women: the last bastion of social accountability?

In 2019, Indigenous women continued to be under-represented in governance structures and processes at national and local levels, and suffered delineation from major decisions that affect them. This continues to subject Indigenous women to poverty, despondency and human rights abuses.

Whereas Indigenous Peoples form the largest section of Kenya’s communities, marginalised from socio-economic services and infrastructure, Indigenous women are faced with further internal marginalisation despite these women being the custodians of the environment and ensuring sustainable exploitation, use, management and conservation of the environment and natural resources.

However, the level of equitable sharing of benefits accruing from these resources to women remained negligible in 2019. In some instances, men have hived off parts of the family land or part of the family livestock herd and sold them off without involving, consulting or informing women, thus depriving women and children of their primary sources of livelihood and wellbeing. In other instances, men are the key decision makers and representatives of the community, and they have negotiated with private companies and other entities on the exploitation of resources, and misused the compensations paid to them without sharing with women as bona fide stakeholders.

Indigenous women in Kenya possess unique strengths that contribute to the general wellbeing of the Indigenous communities in various ways such as managing family property, providing food and water and taking care of families, teaching the children their cultures and traditions and language, etc. However, even with a Community Land Law that advocates for inclusion of women in all land-related matters, these women’s roles in decision-making and ownership of land and other property remained elusive throughout 2019. Their workloads and responsibilities are rarely matched by increased rights and decision-making control. As a result, Indigenous women and their children occupied increasingly vulnerable and dependent positions in their households, homesteads and communities. Whereas the constitution of Kenya guarantees them certain rights and fundamental entitlements, in 2019 Indigenous women still held only limited ‘tokenist’ rights to land and property, lacked inheritance rights and significant decision-making power, and had very few ways to earn an income.

Michael Tiampati has worked as a journalist in Kenya and East Africa for Reuters Television and Africa Journal. He has been working with Indigenous Peoples in Kenya for more than 19 years, including the Centre for Minority Rights Development (CEMIRIDE), Maa Civil Society Forum (MCSF) and Mainyoito Pastoralist Integrated Development Organization (MPIDO). He is currently the National Coordinator for the Pastoralist Development Network of Kenya (PDNK) and the chair of the newly formed Eastern and Southern African Pastoralist Network

This article is part of the 34^th edition of The Indigenous World, a yearly overview produced by IWGIA that serves to document and report on the developments Indigenous Peoples have experienced. The photo above is from the Peruvian Amazon inside the Wampis territory, taken by Pablo Lasansky, and is the cover of The Indigenous World 2020 where this article is featured. Find The Indigenous World 2020 in full here

Notes

1. Indigenous Data Sovereignty is a global movement advocating for rights based Indigenous data governance principles and protocol
2. They can argue based on the IDS principle that resonates with the UNDRIP in the context of Indigenous Peoples’ inherent and inalienable rights relating to the collection, ownership and application of data about their people, lifeways and
3. OD4D Network, State of Open Data. Accessed 26 February 2020: https:// stateofopendata.od4d.net/utuza, Karlos “Libye. L’exode des Touaregs, citoyens sans papiers”. Courrier International, 11 January 2019: https://www. com/article/libye-lexode-des-touaregs-citoyens-sans- papiers

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Tags: Women, Business and Human Rights , Climate, Human rights, Conservation