BWIRE: Kenya’s indigenous people still being marginalised
By Victor Bwire
Clearly, even with constitutional protection and legal recognition, the situation of indigenous people’s communities in Kenya has not changed positively.
Rising poverty levels, deprivation from benefits accruing from natural resources present in their regions, lack of access to resources including health and education, exclusion from decision making, violation of their human rights and non -participation in public affairs are still the order of the day amongst these communities.
The Kenyan Constitution in Article 56, provides that the State shall put in place affirmative action programmes designed to ensure that minorities and marginalised groups participate in governance and other spheres of life.
Article 69 (1) (d) requires the State to encourage public participation in the management, protection and conservation of the environment. In Article 69 (1) (c), the State is required to protect and enhance intellectual property in, and indigenous knowledge of biodiversity and the genetic resources of the communities.
However, the Constitution is yet to set the criteria to identify minorities and indigenous peoples/communities. And the effects can be seen in Boni forest as the Bajuni people endure the war on terrorism, Ogiek on the conservation of the Mau Forest and the flushing out of the Sengwer from the Embobut forest, the Endorois around Lake Baringo and the indigenous fisher communities around lakes Victoria and Turkana.
This gap has seen continued violation of the rights of these communities and non recognition of their existence, and contribution to national development matters including protection of the environment, climate change mitigation, food production, income generation and getting a share of the national cake.
This has caused disquiet and dissatisfaction from the groups, that has seen them seek legal redress both from the African Court, East African Court of Justice and local courts, and even with this, still nothing seems to be moving in the affirmative action to their side.
The lack of their recognition has also seen the destruction of their lifestyles, cultural heritage, exploitation of their ancestral heritage, refusal to grant them communal land title deeds in preference to individual deeds which they don’t want among other ills.
The failure to develop policy structures that both define and protect the indigenous people in the country has seen the failure to ensure protection of their cultural identity and protection of their rights including religion, exploitation of natural resources and destruction of biodiversity.
It has also led to lack of Impact Assessments of projects that include cultural impacts in their neighborhoods, sacrificed during resource based conflicts, lack of determination on compensation whenever their land is being exploited for minerals, non involvement in climate and environmental conservation interventions and missing out in education and health allocation.
Look at regions where the Sengwer, Endorois, Ogiek, Nyangoris, Bajunis, Samias among others reside, and the segregation is apparent.
Even when the Endorois case in 2000 that pushed Kenya to try and amalgamate international and national laws on indigenous people’s rights, nothing moved.
Then came the Ogiek ruling in 2017 on top on the Lands Act, 2012, the National Land Policy, the Community Land Act, 2016, Kenya Forests Act and Kenya Mining Act, no affirmative action has been implemented to ensure the protection of the rights of the indigenous peoples.
For many years, indigenous peoples, including fisher communities were not legally recognized in Kenya. The non-recognition of these people has had a very negative effect on the protection of their rights. Indeed, poverty levels, lack of access to resources, gross violation of human rights and non participation in public affairs are synonymous with areas occupied by indigenous communities.
This can only be achieved if indigenous fisher communities, as members of marginalized groups are equipped and allowed to participate in the policy formulation and legislative processes currently going on. It is imperative and critical that these communities are helped to master the art of participation and equipped with knowledge on what has happened elsewhere with success in terms of protecting and promoting their rights. The proposed participation in the meeting thus suffices.
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