SHADOW REPORT TO KENYA’S FIRST PERIODIC STATE REPORT TO THE AFRICAN COMMISSION ON HUMAN AND PEOPLE’S RIGHTS, TO BE PRESENTED AT THE 41ST SESION OF THE AFRICAN COMMISSION ON HUMAN AND PEOPLE’S RIGHTS, 16TH-30TH MAY 2007 IN ACCRA, GHANA

PREPARED BY: Mainyoito Pastoralist Integrated Development Organization (MPIDO), Centre for Minority Rights Development (CEMIRIDE), Indigenous Information Network (IIN), Arid Lands Institute (ILA), Touch of Love Integrated Development Programme (TOLIDP), Olmaa Pastoralists Development Programme (OLPADEP), Pastoralists Hunter-Gatherer Ethnic Minorities Network (PHGEMN)

1. Delay in submission of the initial state report In accordance with Article 62 of the African Charter on Human and Peoples' Rights, States Parties to the Charter are required to submit every two years, a report on the legislative or other measures taken, with a view to giving effect to the rights and freedoms recognized and guaranteed by the Charter. The government had a duty to consolidate its overdue report and note the serious human violations that occurred within the periods between 1992 to present day. The presentation of the overdue report should hence take toll of the measures the government has taken to address the grimmest historical injustices and other human rights violations against persons and people

. The government should in future be prevailed upon to make regular reporting systems to enable the Commission to effectively monitor the implementation of the provisions of the Charter. In future, the report should be characterized by openness, frankness, honesty and be inclusive of all stakeholders. This is the only way that a factually true and correct presentation of the implementation of the Charter can be had to the Commission . Kenya should endeavor to domesticate all the provisions of the African Charter on Human and People’s Rights in order to give effect to the country’s commitment as a sovereign state

2. Legal Recognition and nationality Paragraph 5: The Kenyan report fails to mention the existence of indigenous communities within their territories and what legislative or policy actions they have put in place to secure the protection and enjoyment of human rights and freedoms enshrined in the Charter, especially as regards provisions that relates to group or collective rights being Articles 20, 21, 22 and 24 of the Charter

1 The state report mentions a definitive number of communities in Kenya. However, it does not take into consideration other minority communities who have been discriminated on the basis of ethnicity. Some communities have not been recognized as a valid ethnic community in Kenya. Further, they have been denied their universal rights to citizenship thus making them de facto stateless community in Kenya e.g. Nubians. Despite being entitled to Kenyan nationality by birth and descent, the government has put insurmountable administrative obstacles to the acquisition of the identity document that have the effect of denial of the right to nationality According to the Report of the Special Rapporteur on the Situation of Human Rights and Fundamental Freedoms of Indigenous People, omits many smaller pastoralist and hunter- gatherer communities, such as the Ogiek, El Molo, Watta, Munyayaya, Yakuu, and other small groups such as the Sabaot and Terik, who are not legally recognized as separate tribes. This situation is derived from the colonial policy of promoting assimilation of smaller communities into other dominant groups. Affected tribes claim that the lack of a separate code in official documents identifying them as distinct ethnic groups reduces their visibility in national policymaking. Many communities from the north, such as the Awer, Galjeel, Somali, and Oromo, are also prevented from enjoying full citizen rights as a result of the lack of proper identity cards.

. In future reports, the government should be tasked with the responsibility to illustratively provide a disaggregated data on the ethnic composition and language groups within the country. . The Kenyan state should also be prevailed upon to identify this communities as a valid ethnic group in Kenya as required by law.

3. Dispossession of natural property Paragraph 135-136: The measures and mechanisms the government has put in place to address the problems of communities living adjacent to natural resources are insufficient and cannot act to remove the structural root causes of the overall subordination and dispossession. Even where action has been taken to harness the resources, their has been lacking a clear system of ensuring equitable distribution of the resources. The government has instead to come up with very hush policies which do not reflect the needs of the local communities. E.g. the draft land policy.

Article 14 of the Charter provides that the right to property shall be guaranteed. Article 20 guarantees the right of peoples to self-determination but the Kenya state limit the right to life as described by article 20 and more specific to the Maasai, community where the Government military were involved of the killing Ntenaai ole Moiyiare, in Lakipia on the 15th August. In the mai maui water conflict between the Maasai and kikuyu Mr saisa ole kipury and kimasisa ole kunkuru both of Nakuru, were killed by the government police on the contrary their opponent left untouched. Ole sisina wild life ranger was killed by

2 the Mr. chomedley grand son of famous Lord dalemare. The family attempted to subject Mr chamedley to law, the Attorney general Amos Wako technical dismissed the suit.

While Article 21 ensures peoples the right to freely dispose of their natural wealth h and to lawful recovery of property and adequate compensation in the event of spoliation. Article 22 guarantees the right of peoples to economic, social and cultural development. Finally, Article 24 provides that all peoples shall have the right to a general satisfactory environment favorable to their development. In the context of indigenous peoples, these rights – taken separately and as a whole – signal a clear obligation on States parties to respect and protect the right to the ownership, control, use and enjoyment of ancestral lands, territories and resources.

The government has appropriated and wantonly destroyed lands belonging to indigenous communities without the prior consent of these communities. The indigenous communities living adjacent to natural resources are completely dispossessed of these resources and are given very limited benefits at the discretion of the government. The dispossession has denied these communities the right to property as stipulated in Article 14 and also their right to free disposition of natural resources as outlined in Article 21.

Kenya’s way of dispossession targeting pastoralists has been through the commercialization of land thus undermining pastoralism. This has forced majority of pastoralists to sell off land to ‘willing-buyer-willing-seller bases

The remaining indigenous Maasai lands are being heavily exploited for a variety of commercial ventures inter-alia eco-tourism, mining etc. Further, Maasai people’s culture and artifacts have been used to market the country as a conservation conscious tourist destination as well as portraying the country as culturally rich. However, the Maasai people do not benefit from all these ventures and still have on of the highest poverty levels. Magadi division of Kajiado district (home to the multi million Magadi Soda Company harvesting tronar from Lake Magadi) records poverty levels of 68.39%, the highest among the Maasai.

The establishment of protected areas and national parks has acted to impoverish and has violated the rights of indigenous pastoralists and hunter gatherers communities. There is no substantive law or policy that effectively protects the pastoralists, indigenous communities and other minorities to use and develop the lands that they occupy, to be protected against illegal intruders and to have access to natural resources vital for their subsistence and reproduction. Many communities that were violently and illegally displaced have never received adequate compensation nor relocated to equally productive sites. The Endorois community who were illegally evicted out of their historic lands in 1973 to create room for construction of Lake Bogoria National Reserve have never been resettled nor given adequate compensation as outlined in the African Charter

The Ogiek community, numbering about 20,000 persons is a hunter gatherer community who has been dispossessed of their traditional source of livelihood. When the Mau

3 Forest, was gazetted as a National Forest in 1974, the Ogiek were evicted from their traditional habitat without prior consultation or compensation, in violation of their basic human rights. Further eviction was done in 2005 when the state uprooted 2117 members of the Ogiek community from forests in Uasin-Ngishu and another 2138 in Nandi North. 1 They were henceforth prevented from hunting or collecting bee honey for survival in the forest, and were reduced to a miserable subsistence on the margins of this area rich in plants and wildlife. They are considered as squatters on their own land and legally banned from using the forest resources for their livelihood, their attempt to survive according to their traditional lifestyle and culture has often been criminalized and their repeated recourse to the courts has not been successful.

. The government should take drastic massures to redress the historical injustices committed to the indigenous and minority communities by both the colonial and the post colonial government and provide adequate compensation to the affected families. . Indigenous communities in Kenya should be adequately consulted prior to the exploration and exploitation of their natural resources. They should further receive equitable benefits from the exploitation of the natural resources and adequate compensation in accordance with the national law . The Kenyan state should be prevailed upon to stop their bias towards conservationist strategy and private enterprise development in favor of community-driven participatory asset management. . The Kenyan state should legally recognize pastoralism as a commercially viable economic enterprise and thus make policies that aims at ensuring that the practice thrives in the present economic set up and take steps to ensure the implementation of these policies. . The Kenyan state should be prevailed upon to enact, with haste, a favorable policy protecting indigenous people Intellectual Property Rights and patenting the same for the benefit of these communities

4. Security of Persons: Article 6 Paragraph 40-43: The state has admitted that there is high level of insecurity in Kenya and have justified it on Kenya being a developing country with inadequate resources and that there exists porous borders that permits the infiltration of illegal firearms To add to this misery, the Commission urged to note that security of persons belonging to pastoralists; minorities and indigenous communities are the worst hit. Cases of low human development and high level of poverty existing among these communities are attributable to high cases of insecurity. The insecurity within the regions

1 Kenya: Uprooted Ogiek Ask for Alternative Land http://allafrica.com/stories/200704090723.html( Accessed on 24th April 2007)

4 these communities inhabit has disrupted normal lives and social infrastructure, often with devastating outcomes such as loss of lives, property and human freedoms. The government has deliberately neglected to find a long lasting solution to the ugly face of resource based, ethnic and clan based clashes that have continued to affect minority communities. This has systematically affected areas inhabited by minorities, pastoralists and indigenous communities notably Nakuru, Narok, Molo, Kericho, Nandi, Uasin Ngishu, Trans-Nzoia, Bungoma, Mt. Elgon, Kwale and Kilifi among others.The Special Rapporteur on the Situation of Human Rights and Fundamental Freedoms of Indegenious People2 noted that The violence associated with social and ethnic conflicts of various kinds and the lack of transitional justice and redress have also impacted on the human rights of indigenous communities. Various Commissions of Inquiry has been set to investigate the causes of these conflicts, more recently being the 1998 Presidential Judicial Commission of Inquiry Appointed to Inquire into Tribal clashes in Kenya. The Commission made recommendations whose implementation were discarded by the government. This, coupled with the recent outbreak of tribal and ethnic cashes has put in question the commitment of the government of Kenya to deal with issues of security and to enhance development in the affected areas Kenya has high levels of public security deterioration. According to the 5th Kenya Human Development Report3, Kenya’s public security system has deteriorated in the last two decades to the point where the government is unable to guarantee its citizens personal security and that of its citizens. The existence of unacceptably high level of crime and personal insecurity as well as delays in the determination of cases in court has served to increase mistrust and insecurity

. The Kenyan state should take adequate steps to implement the findings of 1998 Judicial Commission on Tribal Clashes . The government should be urged to develop adequate mechanisms to redress resurgence of violence in areas where minorities and indigenous communities inhabit from a proactive approach and encourage a vibrant human development in those areas. . The government should effectively utilize and substantially engaged the communities in traditional form of conflict resolution. This ought to be done by strengthening the local mechanisms of addressing disputes and creating effective legal mechanisms legitimizing the use of home guards and council of elders in finding a lasting solution to inter-clan tensions and other forms of inter- community tensions

2 Report of the Special Rapporteur on the situation of human rights and fundamental freedoms of indigenous people, Rodolfo Stavenhagen, Mission to Kenya

3 UNDP, Kenya National Human Development Report 2006 P. 54

5 5. Skewed Social and Economic development of various geographical zones The Kenyan government has failed in their duty to ensure that every person fully exercise their rights to economic, social and cultural developments as enshrined in Article 22 of the Charter by deliberately promoting policies that promotes regional inequality. The government has failed to categorically illustrate the measures and mechanisms they have put in place to promote social, economic and cultural development of specific marginalized and remote geographical regions majorly occupied by minority communities. This clearly confirms the nature of neglect in all spheres of life. According to the Kenya National Human Development Report, North Eastern Province and some parts of rift valley do not have any government record on the level of human development index thus compounding the marginalization and exclusion in the sharing of the national cake. According to the UN Special Rapportuer report, A large gap exists between the north and the rest of the country. In Garissa District alone, the poverty incidence is 64 per cent and in Marsabit the majority of the population relies on humanitarian relief. Together with the North Eastern Province, the poorest districts in the country are found in Coast, Eastern and Rift Valley Provinces, all Arid and Semi Arid Lands (ASAL) that are home to the majority of pastoralists and hunter-gatherers.

The Nubian community is a minority community in Kenya who has faced untold discrimination in access to social, economic and cultural services owing to non-legal recognition and denial of nationality. They are not allowed to own the land they possess and cannot claim an array of other rights being de facto stateless community in Kenya

6. Non-Discrimination Paragraph 21-24: The government has barely outlined the judicial process that has been put in place to address the alleged violation of the discrimination clause within the Constitution. It fails to show other measures, both statutory and administrative, that have been put in place to curb discrimination. Discrimination based on ethnicity is rampant in Kenya yet the High Court is barely accessible to majority of the people, especially persons belonging to minority and indigenous communities. No statistics has been provided of successful cases of alleged discrimination to show the efficacy of the High Court in addressing or enforcing the Non-discrimination clause. Lack of statistics goes to show that though discrimination on the basis of nationality and ethnicity is prevalent, the remedy provided by the Kenyan government is not efficacious. The state legal aid is only provided for persons charged with murder and not to any person who have suffered discrimination. Persons from minority tribes are barely considered when making public appointments; the Nubian community in Kenya has received greater discrimination by the government in access to nationality and other public services on the basis of ethnicity. Kenya does not have in place an affirmative action policy to redress cultural historical imbalances thus catalyzing poverty in many regions in the country. In addition, most people in Kenya are not aware of their rights, institutions and instruments set forth by the government to protect their rights and thus find it difficult to seek redress when their rights are violated

6 . The High Court as stated by the state report is hardly effective in redressing the grimmest cases of discrimination that have plagued the country. In the future reports, the government should be prevailed upon to provide other substantive administrative and viable practices they have put in place to curb discrimination . Kenya should also be prevailed upon to adopt an effective and substantive affirmative action policy in order to redress various economic, social and cultural injustices and disparities that have accelerated poverty and underdevelopment in majority of pastoralists, minorities, indigenous groups . Kenya should also be urged to amend the various statutory laws that promotes discrimination in adoption, marriage, divorce and devolution of property

7. Right to participate freely in the government of one’s country and right of equal access to public services: Article 13 Paragraph 61-62: While we welcome the establishment of electoral commission to oversee the election exercise and ensure right of free participations had, the government has not particularized the measures it has in place to ensure equal access to public services and property. The current skewed policies and inequitable resource allocation has contributed to overwhelming underdevelopment and lack of public facilities and services in majority of geographical regions inhabited by pastoralists, minorities. Further, the current state of infrastructure in these regions makes access to the few public services and facilities virtually impossible. This has further impeded the free participation of people in these regions to the formation of government as they can hardly access voting centers The resurgence of violence during election years has made majority of minority communities to flee their homesteads and centers of voter registration for fear of attacks. They hence cannot be able to vote and be voted come election time. The government has also not put in place an effective policy to guide the voter education process. All these impediments clearly shows that all the rights enshrined in Article 13 are virtually eroded

The Kenyan state should be prevailed upon to take immediate policy and legislative initiatives to initiate and expand infrastructure and opportunities for entrepreneurship and ensure adequacy of public services in marginalized areas and regions that have remained at the bottom of the human development scores

8. Right to Property: Article 14

Paragraph 63: The state has barely mentioned the constitutional protection of the right to private property. Property has an autonomous meaning under international human rights law, which supersedes national legal definitions. The Honorable Commission has

7 recognized in its jurisprudence that land can constitute property for the purposes of Article 14 of the Charter.4 It has also found that the right to property includes the right to have access to one’s property and not to have one’s property invaded or encroached upon.5 Establishment of National Parks and conservation areas, mining, logging, oil explorations, dam construction and land grabbing are some of the activities that have disposed the pastoralists, minorities and indigenous people of their rights to property. These activities have displaced and impoverished these communities. In most cases, these communities are neither consulted nor compensated.

The current laws do not recognize communal ownership of land or group rights to land and this has created a fertile ground for the application of biased development policies to the disadvantage of these communities. Most of the ills afflicting pastoralists and hunter gatherer communities relates to access and control of over land and natural resources. These groups have been dispossessed of their grazing grounds with impunity. In Samburu and Laikipia districts, the government has expropriated and arbitrarily leased out the pastoralists land to the Royal British Army for military training without consultation or involvement of the local communities despite attendant risks. The pastoralists residents have been maimed, raped, property destroyed. In March 2006, the Kenyan government entered into a covenant for the renewal of a USD 4,285, 714 upon signing a ‘Joint Military Programme Memorandum of Understanding’ that saw the renewal of British Military expedition in Samburu for the next five years. This was done without further consultations with the local communities.

There are no stronger legal and policy guarantees in Kenya against the dispossession of lands belonging to minorities, indigenous communities and pastoralists. No protection exists at all to guard the communal lands and group ranches against arbitrary adjudication and grabbing by third parties and government agencies without the free, fair and informed consent of the local communities affected.

The government should adopt effective policies aimed at curbing further privatization, excision and adjudication of communal and group ranches without the free, fair and informed consent of all the local communities concerned

Violation of Articles 17(2) and 17(3)-The Right to Culture

The Preamble of the African Cultural Charter (1976) states that:

[Any] human society is necessarily governed by rules and principles based on traditions, languages, ways of life and thought, in other words on a set of cultural values which reflect its distinctive character and personality.6 4 Malawi African Association and Others Vs Mauritania, African Commission on Human and Peoples’ Rights, Comm. Nos 54/91, 98/83 and 210/98(2000) Para 128 5 The Ogoni Case(2001) 6 African cultural Charter (1976), Para 6 of the Preamble

8 The African Commission has understood cultural identity to encompass a group’s religion, language and other defining characteristics.7 Culture, in this sense, is the sum total of the material and spiritual activities and products of a given social group that distinguishes it from other similar groups.8

With regard to Article 17(2), 19 to 20, the African Commission has set out the General Guidelines Regarding the Form and Content of Reports to be Submitted by state Members regarding the Meaning, Scope and Weight of the rights of people9 The guidelines require states to take specific measures and programmes aimed at ‘promoting awareness and enjoyment of the cultural heritage of national ethnic groups and minorities and of indigenous sectors of the population’10

Suffice is to state that Article 17 is aimed at protecting any group that identifies with a particular culture within a state. Indigenous communities in Kenya, who are mainly pastoralists, hunter-gatherer and fisher communities have experienced extreme form of cultural marginalization in Kenya. Of specific concern is the loss of key productive resources which has impacted negatively on their culture. Kenya has no policy nor law to recognize and protect cultural and language rights. While we welcome the institutions established by the Kenyan government to protect ad promote culture, the Dispossession and arbitrary alienation of land belonging to indigenous communities has continued to destroy their rich cultural heritage

Right to Receive Information

Paragraph 51-54: The media in Kenya has not enjoyed a considerable degree of freedom as averred by the state. The state has on many occasions muzzled the press freedom and has continually harassed and intimidated the media who attempts to play their significant role in exposing the breaches of human rights and fundamental freedoms and exerting pressure for remedial action. The media is not free to report on the rampant corruption scandals facing various cadre of government officials and breaches of national security that affects the public

Just after 12.30am on 2nd Mach 2006, masked plain clothes police stormed the printing presses of a major East African daily newspaper, the Standard, disabling equipment, assaulting staff and lighting massive bonfires of Thursday’s edition in the streets outside. Moments before, another police squad raided the city headquarters of the paper and a sister television station network, KTN-TV, was breached and pulled off air. The whole operation was principally aimed to undermine the freedom of the press, create fear among journalists and paralyzed the business of one of the largest media station in Kenya.

7 Rachel Murray and Steven Wheatley, ‘Groups and the African Charter on the Human and People’s Rights’, Human Rights Quarterly, 25(2003), p.224 8 Rodolfo Stavenhagen, “Cultural Rights: A Social Science, Perspective,” in Economic, Social and Cultural Rights, A Textbook(Asjorn Eide et al. eds.,2nd ed. 2001), p.85,86-88 9 Second Activity Report, Annex XII, Para III.6 10 African Commission 1990: 417-8

9 The World Bank on 8th March 2007 prevailed upon Kenya to accept press freedom before it lifts an aid freeze imposed on January 2006

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