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Constitution of Kenya Review Commission |
By Dr. Naomi Kipuri
01-01-2002
Draft Summary: (11:15-12:35)
For Constitution Of Kenya Review Commission
Culture:
Culture may be defined as "the integrated pattern of human knowledge, belief, and behaviour......... language, ideas, beliefs, customs, taboos, codes, institutions, tools, techniques, works of arts, rituals, ceremonies and other related components...." (Encyclopedia Britannica, 1989). In anthropological terms, culture encompasses a broad range of material objects, behaviour patterns and thoughts.
Culture includes designs or models for behaviour - norms for what is considered proper, or moral, or even sane.
These are modes for acting that are learnt, rather than biological, in origin and that are shared to at least some extent by other members of the society. Culture is a body of knowledge a "tools by which we adapt to the physical environment. It is a set of rules by which we relate to each other; it is a storehouse of knowledge, beliefs and formulae through which we try to understand the universe and man's place in it. Culture is preeminently a means of communicating with others, a tautology. It is culture that stabilizes the social environment and makes it possible for man to associate with is fellows. Culture minimizes uncertainty in human interaction by setting the rules of how one should behave in a given situation. In this sense, it is a "set of expectations". Culture not only tells us how we should act, but it also tells us what we can expect of the other person. Culture is a weave that keeps society together.
Culture and Nationality Unity
Kenya has inherited diverse cultures, comprising agriculturalists, pastoralists and hunger-gatherers, all speaking a multiplicity of languages - nilotic, Bantu Cushitic, etc. Yet the constitution does not properly reflect this diversity.
Many newly emerging nations have tended to emphasize the importance of national unity at the expense of cultural diversity. It is as if acknowledging diversity would automatically bring down the pluralistic cultural component making up the nation states. Ethnicity, it is said tends to disturb peaceful co-existence. But now the legitimacy of the national structure is being questioned because of its failure to acknowledge the countries' pluralistic cultural components.
The question remains: Does recognition and acceptance of plurality in culture inherently tear countries apart? History has not proven this to be right. On the contrary, suppression of differences is what appears to threaten national cohesion. Even single ethnic nations are not spared the threat of disintegration deriving from some form of domination or another.
In Kenya, the semblance of cohesion exists in spite of, rather than because of the unitary nature of the constitution. But the cohesion is delicate, all the time being threatened by ethnic conflict.
For new nations, culture can draw on many roots - as many as our cultures. This is the only way for all communities to feel a part of the artificial boundaries within which they have found themselves. The question of self-
determination is at the apex of respecting social, cultural and political rights of citizens. These rights are guaranteed by international instruments of which Kenya is signatory.
The UN declaration of Human Rights has established that safeguarding and protecting one's own culture, and having access to and participating in cultural activities, are all human rights.
Introduction
What culture is.......
Ours is a history of cultural suppression while culture is a way of life, we have banned people from dressing in their cultural dress, for instance in parliament the speaker allows parliamentarians in only if they are "properly77 dressed in suits. Not even Kaunda suits are acceptable. Once the Chief Executive made a pronouncement to put down a young girl dressed in Samburu dress in preference with the one in school uniforms. Many people are turned away from public places in urban centers because of being in cultural attires. Judges in Kenya still have to wear wigs of old British when making judgments. This is after almost 40 years after colonialism.
It is no wonder the British laugh at us. We do not have a national culture, and what we have is associated with negativity - matatu culture; kitu kidogo, corruption, police harassment etc. When North Eastern province people travel to Nairobi, they say they are going to Kenya because the culture of Nairobi is so foreign to them. Culture, cultural institutions such as moranism (maasai) have been banned during the colonial period and after. It only survives because it takes place every ten years and authorities tend to forget about. The Naabo Institution of the Rendille, Councils of Elders, Councils of Women and other social institutions that are useful for governance are either unknown or ridiculed. Consensus decision-making is common in most of Africa is what we are using here to write a new constitution. Why can't we acknowledge it as a useful cultural institution?
In the economic sphere, agriculturalism is dominant in Kenya. We allocate money for agricultural research e.g. to develop the double cobber maize, while we do not even have a single industry to process meat in order to support the livestock sector. Hunter-gatherers are even worse off. With so much cultural intolerance, it is no wonder we experienced ethnic conflicts.
Reflection of culture in the present constitution
Section 115 of the Kenya constitution vests all Trust Land in the County Councils within whose area of jurisdiction it is situation. The County Council is to hold such land for the benefit of the person's ordinary resident on that land.
The County Council is required to give effect to such rights, interests or other benefits in respect of the land under where a given Customary Law is applicable, being vested in a given community, group, family or individual.
This reference to customary law is presumed to be a reference to law whose source and foundation is in culture of a particular people resident in a given area of Trust land. The rights interests or other benefits in relation to the particular Trust Land must be those derived from the culture of a particular community resident in an area of trust land. Such right must be the basis upon which that land is to be owned or utilized and managed by the deemed owner.
There is a rider to this provision in that no right, interest or other benefit under such customary law shall have effect for the purposes of the constitution so far as it is "repugnant" to any written law. Once such written law, which comes to mind, is that which requires registration of those rights and interests to land. That becomes the only applicable law after such registration of those rights and interests. That exclusion introduces a new situation of land ownership, rights, etc. and completely obliterates the land ownership scenario provided under the framework of customary law in relation to land ownership.
Culture appears to have been given a passing chance in the manner in which customary law rights are to be ascertained as a requirement of Section 116 of the constitution to bring the Trust under Section 115 to an end. Pursuant to Section (116), the land adjudication Act was put in place as a prelude to the codification of the ownership of Trust Land. This adjudication and registration, which followed, brought all the respective cultural laws of Kenyan peoples in relation to their land to an abrupt end.
The Lancaster House conference that produced the present unitary form of governance, pretends that unity only be realized within a unified culture. The result has been a systematic denial of diversity and an inherent intolerance of divergence of views - political, socio-economic and cultural. The future constitution should not make the same mistake. It should only mention all the ethnic groups within our borders as owners of the constitution, it should go further by stating what guarantees and rights have been provided and how. The right to culture should be seen as a fundamental right. And rather than pretend we are united, it would be more appropriate to maintain ethnic balance in the allocation of employment and other opportunities.
This should not continue to be because culture is a human rights issue and international instruments are there to ensure observance.
The UN and UNESCO declared 1988-97 a "culture decade" and stated four (4) principal aims:
1. To acknowledge a cultural dimension in development; 2. To affirm and enrich cultural identities;
3. To broaden participation in cultural life;
4. To promote international cultural cooperation.
International donor agencies began including culture in their development work in the late 1980s and early 1990s.
In 1995, the World Commission for Culture presented its report on Our Culture Diversity. In 1998, the UNESCO conference The power of culture was held in Stockholm, and this was followed in Florence by Culture Counts in 1999.
The President of the World Bank (James Wolfensohn) has persistently led efforts to include culture in the Bank's work. In his words,
"...we are at a crossroads in our understanding of development and how to go about it. We are realizing that building development solutions on local forms of social interchange, values, traditions and knowledge reinforces the social fabric. We are starting to understand that development effectiveness depends, in part, on "solutions” that resonate with a community’s sense of who it is .... we hope that through collaboration, emerging development practice will conserve and amplify the values, expression and heritage that give peopled lives meaning and human dignity”. (Culture and Sustainable Development - A Frame-work For Action –World Bank 1999).
Culture helps us transgress limits; to challenge ourselves; and to discover talents we were aware of - talents that are valuable in every kind of situation in life. Without imagination and creativity, we are prisoners of the structure of others.
A rich and pluralistic culture is a cornerstone of thriving democracy. Every society is enriched by, and dependent on creative forces for survival and development.
With a poor concept of our own identity, we have little capacity to relate to others. To see the others, we must know and see ourselves. This has implications for conflict resolution and respect for human rights, as well as solutions to problems of everyday life. Self esteem, identity and dignity are important cornerstones for a culture of tolerance and understanding. "Social peace requires that differences between culture be regarded not as something alien and unacceptable or hateful but as other ways of living. Perez de Cuellar (Our Creativer Diversity, 1995).
Awareness of our origins and experiences and beliefs that have molded us is more important than ever. Understanding one's past and present context is a crucial precondition for choosing what to take with us into the future, what we leave behind, and the point at which we seek to build something new and merge with other cultural expressions. To grasp other's pride in their history and culture we must know and be proud of our own. Every community nourishes the cultural manifestation of its own identity.
Yet in Kenya, we are unsure of whether or not to respect and uphold our cultures. We are at the lowest ebb in our ethics and our ideological position seems to be always shifting. It would be a relief if the new constitution could clarify our position in relation to the fundamental question of culture.
The African Charter for Human and Peoples' Rights have 6 articles dealing with peoples' rights.
Article 19 guarantees equality of all people and prohibits the domination of a people by another. Article 20 guarantees the right of all peoples to self-determination. 21 guarantees all peoples the right to freely dispose of their wealth and natural resources in their exclusive interest. Under Article 21, a people dispossessed of their wealth and natural resources shall be entitled to lawful recovery and compensation.
Article 22 guarantees the right to development. 23 guarantees the right to national and international peace and security and Article 24 guarantees the right to a satisfactory environment.
Proposals:
1. Start by admitting cultural diversity and seek ways of articulating it in the public sphere.
2. Implement cultural programmes to reduce sensitive ethnic feelings.
3. Implement decentralized autonomous governance structure to support cultural diversity.