report Kenya: Minorities, Indigenous Peoples and Ethnic Diversity By Maurice Odhiambo Makoloo, with a preface by Yash Ghai Acknowledgements Minority Rights Group International Minority Rights Group International (MRG) and CEMIRIDE Minority Rights Group International (MRG) is a non- gratefully acknowledges the support of Development governmental organization (NGO) working to secure the Cooperation Ireland and Scottish International Aid Fund, and rights of ethnic, religious and linguistic minorities and of all the organizations and individuals who gave financial indigenous peoples worldwide, and to promote cooperation and other assistance for this report. and understanding between communities. Our activities are Commissioning Editor: Claire Thomas, Report Editor: Katrina focused on international advocacy, training, publishing and Payne. outreach. We are guided by the needs expressed by our worldwide partner network of organizations which represent The author minority and indigenous peoples. Maurice Odhiambo Makoloo holds a Master of Laws degree from the University of Nairobi, Kenya. He runs a legal MRG works with over 150 organizations in nearly 50 practice, which frequently offers free legal services to countries. Our governing Council, which meets twice a year, minority or indigenous clients, and is Director of the Institute has members from 10 different countries. MRG has for Law and Environmental Governance (ILEG), a not-for- consultative status with the United Nations Economic and profit public interest organization based in Nairobi. He is Social Council (ECOSOC), and observer status with the author of a number of publications, including Environmental African Commission on Human and People’s Rights Accountability in Kenya: Rural Voices, Parliamentarian, (ACHPR). MRG is registered as a charity and a company Representation and the Environment and Public Interest limited by guarantee under English law. Registered charity Litigation in Kenya: Prospects and Challenges, both no. 282305, limited company no. 1544957. forthcoming. CEMIRIDE Dedication CEMIRIDE is a research and advocacy national organization MRG and CEMIRIDE would like to dedicate this report to working with and across Kenyan indigenous and minority Professor Katama Mkangi, who was tragically killed in a road communities to enable respect and protection of their rights, accident in Kenya while working on a first draft of material so as to achieve sustainable development as well as that would have formed this report. Prof. Mkangi was a peaceful coexistence. It is registered under the Non- tireless campaigner for human rights in Kenya and was Governmental Organisations Coordination Act of Kenya as formerly a prisoner of conscience. He will be much missed. number OP.218/051/2002/0149/2240. © Minority Rights Group International 2005 All rights reserved Material from this publication may be reproduced for teaching or for other non-commercial purposes. No part of it may be reproduced in any form for commercial purposes without the prior express permission of the copyright holders. For further information please contact MRG. A CIP catalogue record of this publication is available from the British Library ISBN 1 904584 24 1. Published February 2005. Typeset by Kavita Graphics. Printed in the UK on recycled paper. Cover Photo Turkana elders and child, Kenya. Crispin Hughes/Panos Pictures. Kenya: Minorities, Indigenous Peoples and Ethnic Diversity is published by MRG as a contribution to public understanding of the issue which forms its subject. The text and views of the author do not necessarily represent in every detail and in all its aspects, the collective view of MRG or CEMIRIDE. Kenya: Minorities, Indigenous Peoples and Ethnic Diversity By Maurice Odhiambo Makoloo Contents Summary 2 Map 3 Preface by Yash Ghai 4 Historical background 5 Defining minorities and indigenous peoples 7 Recognizing minorities and indigenous peoples 9 Issues for Kenya’s minorities and indigenous peoples 14 Minorities, indigenous peoples and the legal process 20 Minorities, indigenous peoples, ethnic diversity and politics 23 Minorities, indigenous peoples and socio-economic development 29 Conclusions 34 Recommendations 35 Relevant international instruments 36 Notes 37 Bibliography 39 Summary This report documents the plight of minorities and the current President of Kenya, to analyse the extent to indigenous peoples in Kenya today. Minorities and which ethnicity in politics can favour certain ethnic indigenous peoples are poorer than other communities, groups over others. their rights are not being respected, and they are not The report calls for immediate action to address included in development or other participatory planning inequality and the marginalization of communities as the processes. Members of minority and indigenous commu- best way to ensure Kenya remains free of major conflict. nities feel excluded. They are aware of, and resent, being It calls for disaggregated data, a new Constitution to treated differently and having fewer opportunities. devolve power away from the centre, and measures to The report shows how the poverty of marginalized ensure minorities and indigenous peoples benefit equi- communities is compounded by the lack of official (and tably from existing and future development programmes. unofficial) data disaggregated by ethnicity, which keeps Finally, the report argues that Kenya’s diversity is a the problem of minority and indigenous poverty hidden potential strength and opportunity. It need not be a threat and unaddressed. The report examines some of the rea- to national unity. The report is sympathetic to those who sons why this data is not collected and published. deplore the abuse of ethnicity in politics; however, it The report discusses the use and abuse of ethnicity in argues that to react to this by hoping that ethnicity will Kenyan politics, also raising the problem of the defensive- disappear is both misguided and unrealistic. A new public ness of many in politics on ethnic issues. Claims by debate about diversity in Kenya is needed. Suppressing particular communities are often seen as threats to the and denying ethnic diversity, leaving minorities in poverty unity of the Kenyan nation, instead of opportunities to and politically marginalized, is the quickest route to both make all groups feel included and to ensure that their inter-ethnic conflict. Including and respecting minorities needs are recognized. and indigenous peoples, and making sure that develop- The report examines Kenya’s current Constitution and ment reaches all of Kenya’s peoples are, on the other the new draft Constitution from a minority and indige- hand, the only ways to lift the poorest out of poverty and nous peoples’ perspective. The author is critical of Kenya’s to deliver sustainable conflict-free development. budget processes. For example, he analyses budget alloca- Inter-ethnic conflict in Kenya is not imminent but it tions (unfortunately there is no data for actual money remains a real risk in the medium to long term. Interna- spent) in the Turkana district. As 94 per cent of the popu- tional experience has shown that the slide into conflict is lation of the district are ethnically Turkana, this can be very difficult to stop once momentum has built up. Pre- used to substitute for the unavailable disaggregated data. ventative actions are too often begun only when conflict is This analysis reveals huge disparities in budget allocation looming. The measures taken are too little too late. Action between the Turkana district and Kenya as a whole. He must be taken early, at a time when conflict is still unlike- goes on to compare the allocation between the Turkana ly. Inequalities breed resentment and can ultimately lead to and Nyeri districts, the latter being the home district of violence. In Kenya’s case, action must be taken now. 2 KENYA: MINORITIES, INDIGENOUS PEOPLES AND ETHNIC DIVERSITY Kenya SUDAN Administrative boundary ETHIOPIA Lokichoggio Ramu Mandera Lake Rudolf (Lake Turkana) Moyale Lodwar l Turkwe Marsabit Y UGANDA E L L A EASTERN V Wajir T F LakBo I r R RIFT VALLEY o SOMALIA T KENYA ’ir NORTH EASTERN Maralal g Kitale A N o E Ewas R WESTERN Mado G Gashi Eldoret Lak Dera Nzoia Isiolo Kakamega Butere Nyahururu Falls Meru Nanyuki Kisumu Mount Kenya Nakuru Kericho Nyeri Garissa Embu Lake NYANZA Victoria CENTRAL Tana Narok Thika Nairobi NAIROBI AREA EASTERN Athi Magadi COAST Garsen Lamu Namanga Tsavo Galana Malindi Tavela Voi Kilifi Mombasa INDIAN OC EAN TANZANIA 0 100 200 km KENYA: MINORITIES, INDIGENOUS PEOPLES AND ETHNIC DIVERSITY 3 Preface Neither during colonialism or subsequently has Kenya been ers’. In some communities this ‘non-recognition’ is aggra- kind to minorities or indigenous peoples, or other disad- vated by what they claim is their poverty and lack of vantaged groups, as Odhiambo Makoloo demonstrates so development; indeed they sometime attribute the latter to well. State power has been used to deprive communities of the lack of recognition. Asians, on the whole a prosperous their resources. Exclusion and rampant discrimination have community, complain that their contribution to Kenya’s characterized Kenya’s political and economic system. There political and economic development is not acknowledged. are various reasons why, despite the absence of an ethnic Because these difficulties and problems are so majority, some groups feel that they are a minority. A group widespread, they should be tackled on a national basis. For can be a minority in a province or a district