Minority groups still facing challenges in the new era

By Daniel Kobei

The country’s new Constitution is a progressive document that aims at addressing the failed legal and moral systems created by the colonial and post-colonial regimes.

This comes in the wake of the bare facts that the country’s previous constitutional order alienated most citizens from State, including the minority and indigenous communities who have continued to bear the brunt of this exclusion.

The Constitution makes substantive provision to address specific concerns of these communities, it also mainstreams concerns of minorities into institutions of governance, including political parties, and also creates institutions and mechanism that, if effectively implemented, could empower minorities and other groups.

Therefore, there is danger that constitutional recognition may not translate into positive developments for minority groups in reality as the perception is bound to look.

From this scenario, what emerges as the biggest hurdles include lack of political participation, discrimination, and weak protection of their right to development. This means that although policy recognition on the minorities is an important gain, legislative and administrative implementation remains a challenge

Study shows that many minorities feel that despite some constitutional gains, increased ethinicization of politics has deepened the exclusion of minority groups, making their situation worse today than it was in 2005.

In these regard many minorities feel that issues affecting them, such as drought and State-induced landlessness to pave way for development, have not been addressed.

The Government has pursued the justifiable resettlement of internally displaced persons in some cases without regard to the fact that some minorities have also been rendered landless by State induced processes.

The minorities and indigenous people have, therefore, a hard task of improving governance and the same time contribute to end discrimination and overcome poverty.

Cultural dialogue

Although civil society has strived in those endeavours, their action alone is not enough to ensure increased inclusion of minorities in the country’s public life.

There is also need to create programmes that redress minority disadvantage, in order to bring a permanent end to minorities being dominated. Given the complex concentration of minorities within the country’s counties, it is imperative that cultural dialogue takes place to address the fears of both majorities and minorities as an integral part of nation building.

Such a dialogue should push state departments to initiate laws and policies that recognise historical disadvantages and that enable both majority and minority communities to perceive each other as partners in society.

The minorities and the indigenous people have been discriminated against despite the provision in the new Constitution that guarantees them protection of their rights. The Endorois’ past injustices, such as the acquisition of their ancestral land in Bogoria in Baringo County by the local Authorities and refusal to recognise court ruling by the African Commission over the same, should be addressed.

The Ogiek community in the Mau regions also face similar problem. The Government has refused to recognise them as an independent tribe with its own distinct cultural roots that are delinked from the other sub tribes in the Kalenjin community. The Endorois and the Ilchamus also fall in these category.

Courts have continued to mete out hostile and contradictory determinations on questions of concern to minorities, while the State has failed to internalise the findings of human rights treaty bodies. Article 2(6) of the new Constitution automatically domesticates international treaties ratified by the country.

Such example is the case of members of the Endorois community. After filing a case with the African Commission to seek remedies for restitution of its land and compensation for material and spiritual losses, the ruling in their favour has not been implemented to date. The Endorois are demanding rights of ownership to their land, restitute their ancestral land, and also to ensure that the community has unrestricted access to Lake Bogoria and surrounding sites for religious and cultural rites and for grazing their cattle.

The Ilchamus community in 2004, brought an application before the High Court against the Government for allegedly violating their rights to political representation, to choose a candidate of their choice, freedom of conscience and freedom of expression.Despite the court ruling that they deserve a constituency since they are unique, cohesive, homogenous and culturally distinct minority having attributes of the internationally recognised indigenous peoples, the ruling has never been implemented.

The writer is the Executive Director of the Nakuru based Ogiek Peoples Development Programme