BLong words very often have relatively simple meanings. So is with the “Biocultural community protocol for Lamu County”, a document launched in Lamu on Tuesday this week.

This is a document, but, like the Constitution, it is more than a collection of pieces of paper. It shows connections between communities and context, between development and rights, between rights and responsibilities and between the Constitution and all of these.

It is focussed on the communities of Lamu, but something similar could be done in any part of Kenya. It shows the connections between the traditional communities of Lamu (it uses the word “indigenous” but this is not necessary, and in some parts of the country might be unnecessarily divisive). It shows how various Lamu communities, though they may live somewhat different lifestyles, are linked to each other and to the environment in which they live.

The Swahili and the Bajun (whom some would categorise as Swahili) and the Orma, Sanye and Aweer not only include both Bantu and Cushitic communities, but different lifestyles. Some are mainly hunter-gatherers, some pastoralists, some fishers, and some farmers, some boat-builders, though one community is unlikely to have only one form of economic activity. And their economic activities complement each other, as the different facts of their environment do: forest and pastureland, mangroves and open sea.

They have focussed not just on economic activity but on traditions and customs, including dispute resolution and traditional knowledge.

They have been prompted to articulate “who we are and what we want” by a sense of being under threat. In particular, two mega projects are identified — the Lapsset port project and the coal-fired power station.

This document is, therefore, both a record and a reassertion of the values of the past, and a looking forward to the future in a united way. From the international law on indigenous people they take a concept that is relevant to all: prior informed consent. Surely nothing should be “done to” any community without their knowledge, in advance, and ideally their consent. Without knowledge, understanding, how can there be true consent?

With an understanding of who they are, a community can see more clearly what threats they are under and from what sources. This community sees that it faces not only the mega-threats but others such as discrimination, lack of access to resources, environmental deterioration, poor facilities, insecurity – of lives and land – marginalisation and lack of adequate representation and voice in government and decision making generally.

This document is thus a summary of history, an assertion of identity within the nation and a manifesto for future action by government and communities themselves. It is the product of nine years of work by the communities under the leadership of, now, Save Lamu.

No effective plan for and vision of the future can take place without knowing where you start from. And no moving forward is likely to happen – other than by being pushed by others – unless you decide where you want to go.

II CONSTITUTION

A major problem facing the drafting of the Constitution was determining the relationship among Kenya’s numerous communities.

The colonial power, for purposes of its domination, had kept communities separate, a separation which was becoming increasingly hard to maintain as we became independent—and free to move. Unfortunately, after Independence, the control and the resources of the Kenyan state were seized largely on a tribal basis, first by Kikuyu, then Kalenjin and followed again by the Kikuyu. The key objective of the new constitution was to change the political and social system of our country, in ways fair to all communities (as some, like Lamu, had effectively remained disadvantaged).

The 2010 Constitution aims to recognise our diversity and our equal status as citizens. The Preamble says: “Proud of our ethnic, cultural and religious diversity, and determined to live in peace and unity as one indivisible sovereign nation”. A device to recognise our ethnic diversity is the establishment of counties which as a rule tends to be dominated by one group—with suitable provisions for minorities within it. The Constitution additionally intended to nurturing and protecting the well being of “communities and the nation”.

Despite the emphasis on one nation, it was clear that in practice not all citizens or communities would enjoy the same status. To meet these inequities, both the Constitution and Biocultural Protocol place the highest importance on the Bill of Rights. The Constitution explains the importance of Rights is “to preserve the dignity of individual and communities and to promote social justice and the realisation of the potential of all human beings”. There is another resonance between the two documents in special concern with minorities and marginalised groups. 

Several concerns in the Biocultural Protocol are addressed in the Constitution. The Constitution requires the State to ensure that marginalised people and groups participate in governance and other spheres of life; are provided special opportunities for access to employment, and develop their cultural values, languages and practices (Article 56).

The state has to pay special attention to the needs of members of minorities or marginalised communities and members of particular ethnic, religious or cultural communities (Article 21). The interests of minority groups are given special consideration in the counties (Article 174). They are entitled to powers of self-governance as well as their participation in the exercise of the powers of State. They have the right to manage their own affairs and to further their development, and to protect and promote their own interests. Marginalised groups are entitled to special representation in county assemblies (Art. 177).

More generally, public bodies are supposed to reflect the face of the nation – in all its diversity. The police and the military are not supposed to be recruited only from certain communities, something that happens in many countries and risks making the security services an oppressive tool of certain sections (close to the government, of course). The same is true of the public service generally.

Many of the special concerns of these communities of Lamu are also addressed in the Constitution. The State has obligations, under Article 69, to protect indigenous knowledge of biodiversity, and to protect that biodiversity, and to ensure that the benefits of any use of environmental resources are shared “equitably”, a word that means not mechanically and equally but fairly. The state also has to ensure that investments in property benefit local communities and their economies (Art. 66(2)), though no doubt that Lamu people would rather not have the Coal initiatives!

The state also has the obligation to achieve and maintain a tree cover of at least ten per cent of the land area of the country—a principle that must be close to the hearts of residents of Lamu County for as appears from the Protocol, that there will be severe threats to trees from the project that the government seems determined upon (for the benefit of a few greedy people close associates of senior government people).

The people of Lamu seem determined to protect the environment of their county. There are other communities further to its west that is also struggling for the protection of nature. Relying on the Constitution they too are fighting to preserve their rivers and forests—and livelihoods. Others have lost their land, long held within the family, on technical grounds. They all have sought the protection of the judiciary, in Kenya, and African courts if necessary. The Enderois and the Ogiek have had some success before the institutions under the African Charter on Human and People’s Rights – though getting the Kenya government to comply is a harder struggle. Theirs has not been an easy battle, any more than is that of the Lamu communities so clearly set out in the Lamu Biocultural Community Protocol.

The Protocol also provides an excellent legal guide to communities for the defence of the ownership of land and other resources taken away from them.

There is certainly a lot of scope for Kenyan communities to learn from each other and to struggle together.


By Yash Ghai and Jill Cottrell Ghai, Directors of Katiba Institute

This article was first published by the Star Newspaper on 06 April 2019