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Kenya: The Endorois Land Ruling Could Scuttle Constitution Making Efforts
The African Commission on People’s Rights (ACPR) has not just made a landmark ruling by resettling the 60,000 member Endorois tribe in their ancestral land; it is likely that it has dealt a major blow on the current efforts to make the constitution of Kenya.
“Otherness” is Central Problem for Constitutions
The community lived along the shores of Lake Bogoria, around which they had made their culture and traditions. Then in 1973 the government declared their land a national park and kicked out the community. Fruitless local battles to regain their land, eventually led them to the ACPR which ruled in their favor and ordered their resettlement in their ancestral land and compensation by the Kenya Government. It is a judgment likely to raise many fears and hopes. Yet again, the problem it points at should be the basis of current constitution-making. How shall we in the Kenya we live in today, composed of as many indigenous people with land rights as it is, handle the problem of “otherness”?
Help of Cultural Organizations
Before the so-called Bomas draft constitution was made, a group of cultural organizations, including the Syokimau Cultural Centre, of which I am the Director – made a written appeal to the then President Daniel Arap Moi, urging him to take land and cultural issues much more seriously. We got a reply from the President’s aide, telling us that our suggestions would be considered. Unfortunately – or fortunately – many things occurred, making constitution making a secondary thing for the Moi administration.
What we said was briefly this – that an effective constitution must be negotiated by those who have a God-given rights to live in areas of what is now called Kenya. It is not an affair for Christians, Muslims, Hindus or whatever religion. It’s not an affair for lawyers or any other “learned friends.”
Kenyans – indigenous Kenyans- fought for independence in order to get back their land. Many were willing to die, and in deed, died, for the land. And others are still willing to die for their land as the long drawn case of the Endorois has shown. Because land is not just a place where you live in – it is you. It is your culture, your wealth, your economy, and your natural resources, your way of life. In one word, it is your culture with rights that are commonsensical and universally recognized.
Flouting these rights is the main reason for pointless ethnic clashes as we witnessed in the Rift Valley in the last general elections -and as is likely to be witnessed again and again – if these issues continue to be treated as trivially as they are in the current draft constitution. Every where in Africa where there are wars or ethnic clashes – the Sudan, Nigeria, Morocco, Ethiopia, Eritrea, and so on – issues of land, and therefore cultural and natural resources are at the centre of the conflict.
In Kenya it was witnessed that where there were no land and cultural issues, there were no clashes. The push for majimbo or federal government is actually an expression of the fears of those afraid their land, and cultural rights, will be violated. Communities who think they will be the violators are opposed to the majimbo arrangement. And of course, the situation is made worse by “middlemen exploiters” such politicians.
Exclusion and Cultural Rights
By respecting land and cultural rights, you do not necessarily make exclusive communities. In Britain, the Irish, the Scotts and the English have their own specific places and cultures. They are not exclusive communities. And the same thing applies to many other European states where there are confluences of communities. And even modern states such as Canada keep their ethnic distinctions and are still one nation.
But how do people become one nation in such diversity? That is actually the problem of constitution making and federal governments. How shall we tolerate “otherness” in others? What shall we – as communities- give up so that we can live as one people? That is what our constitution experts should be telling us. What they shouldn’t be doing is hiding ignorance or lack of enterprise by trying to cover-up a yawning and bleeding wound with what we used to call “terminological inexactitude.” We just have to be honest from the start – that is a recipe for Kenyans to kill each other. It will be worse when no one can say exactly what was said or written, as is witnessed in the abortion debate.
With the Endorois having got their land back, and therefore their traditions and culture, we are more likely to see more communities going the same way with the danger of making uncontrollable “small kingdoms” completely intolerant to others and their “otherness”.
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