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Cover Story

The Right To Culture

Volume 16, Issue 1  | 
Published 07/06/2019
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By Lotte Hughes and Emily Kinama

By-lines:

Lotte Hughes is an historian working on contemporary Kenya. Until recently she led a major research project on culture and constitutional change.
Emily Kinama is a litigation and research counsel at Katiba Institute.

Once seen as less important than other human rights, cultural rights are now recognized internationally as something indivisible from people’s humanity, dignity, and sense of who they are. Increasingly, cultural and minority rights are mentioned in national constitutions around the world.

The Constitution of Kenya

The Constitution recognizes culture as ‘the foundation of the nation’ and the ‘cumulative civilization of the Kenyan people’ while the Preamble says the Kenyan people are proud of their cultural diversity. The State must promote all forms of national and cultural expression through literature, the arts, traditional celebrations, science, mass media, publications and libraries; recognise ‘the role of science and indigenous technologies in the development of the nation; and promote the intellectual property rights of the people of Kenya’ (Article 11).

In the Bill of Rights (the framework for policies), cultural groups or communities receive special recognition. The State must address their needs (Article 21 (3)) cultural ties are relevant to fixing county and constituency boundaries (Article 95), and legislation must ensure that community and cultural diversity is reflected in county assemblies and executive communities (Article 197 (2) (a)).

Protection for intellectual property in, and indigenous knowledge of, biodiversity and the genetic resources of communities – which can also be seen as cultural resources – is mentioned in Article 69. One example is the indigenous Endorois community who now earn royalties for the industrial use of unique microbes and micro-organisms found in Lake Bogoria, which are used in the biotech industry. It can be argued, however, that no single community ‘owns’ genetic resources such as plants, since they are often shared by different communities. The same can be said of traditional medical knowledge.

Article 63(1) defines community land as ‘held by communities identified on the basis of ethnicity, culture or similar community of interest’. Many communities, especially but not exclusively indigenous ones, regard their land as a cultural resource, and believe that they have a cultural right to it.

Customary law is recognized in Kenya, but laws that are inconsistent with the Constitution, are invalid (Article 2(4)). And traditional dispute resolution mechanisms should be promoted (Article 159(2) (d)).

Cultural rights under the Bill of Rights

The right to culture in Article 44 covers language and culture. It includes participation in a person’s chosen cultural life, joining in cultural organisations. But no one is to be compelled to participate in a cultural practice.  And Articles 53 and 55, require State programmes for the elimination of ‘harmful cultural practices’ in children and youth. 

Article 56 requires state programmes to ensure that minorities and marginalized groups can develop their cultural values, languages and practices. ‘Marginalized communities’ are those like pastoralists, forest dwelling communities, and other who, by choice or circumstances, are ‘unable to fully participate in the integrated social and economic life of Kenya as a whole’ (Article 260).

The uses of culture in Kenya today

Anxiety about identity and the perceived need to ‘preserve’ both it and culture can be traced to fears about modernity, rapid social change, and the impact of globalization on traditional ways of life. But globalization has its uses: globalized internet activism, much led by indigenous peoples, has influenced other minorities to assert their rights to culture. One example is the activities of Nandi ‘cultural entrepreneurs’ who use the memorialization of folk hero Koitalel Arap Samoei to claim recognition for their community, and the resources that can flow from that.

How heritage and culture are now being used and negotiated is often more to do with futures than pasts.  The Endorois have used the royalties mentioned earlier to pay for children’s school fees. Poor farmers and fisher folk in Siaya have used notions of culture (and constitutional cultural rights) to win a court case against a commercial farm encroaching on their territory.

The Constitution helped to create new visions of an imagined future for Kenya. Devolution has played a key role in this renaissance, with responsibility for culture management largely devolved to county governments (Fourth Schedule).

Many county governments have enthusiastically embraced culture, and used it to brand their counties, attract investment and tourism, and market their county’s resources. Cultural festivals have sprung up across the country, and have become big business. Some have developed their own cultural policies, County officers are learning to negotiate with ‘stakeholders’, including community-based organizations, councils of elders, non-governmental organizations, private investors and international organizations like UNESCO. However, these activities are not focused on cultural rights, but on the exploitation and marketization of culture, much of it mono-ethnic.

Culture serves political purposes such as the ceremonial homecomings of politicians, to anoint politicians from a different ethnic group as ‘tribal elders’. Political campaigning and the wooing of new potential voters often involve  embracing the culture of other involved communities. It is deemed safe to focus on ‘culture’ (which is regarded as soft) rather than on the ethnicity of the particular politician or party.

Legislation

Article 11(3) of the Constitution mandated Parliament to pass legislation on culture.  The Protection of Traditional Knowledge and Cultural Expressions Act provides various forms of protection for traditional knowledge and expressions of culture, including requiring collection of data, and rights to claim benefits from commercial exploitation. 

Various provisions of the County Government Act highlight the importance of recognising cultural diversity; through ward boundaries, political parties, establishing villages and other units, selecting county executive members, and through county planning.

Culture and cultural rights in the courts

Recent court cases show the interconnectedness of challenges to cultural violations and other issues, such as the right to a clean and healthy environment, prevention of harmful cultural practices, protection of the rights of indigenous and minority communities, and cases that involve alternative dispute resolution procedures. 

Mohamed Ali Baadi v the Attorney General concerned the impacts of the Lamu port project on the livelihood and culture of Lamu people and the Lamu World Heritage site.  The Court held that Articles 11(1) and 44 meant that cultural rights are to be awarded the highest respect and protection. It held that consultation must take place with affected indigenous communities when planning development projects, and failure to do this was a violation of cultural rights.  Again, the failure of the government to draw up a management plan to preserve the rich legacy of Lamu Island was a violation of the right to culture of the indigenous communities. The court ordered the government to draw up such a plan, and report to the court.

The Ogiek community, and individual members, who complain of eviction from their traditional, forest lands, have litigated in various ways. In Joseph Letuya and 21 Others v. Attorney General  the court found that the evictions prevented them, as an indigenous and minority group, from enjoying their culture as food hunters and gatherers in the forest, and that they had been discriminated against on account of their ethnic origin and culture.

The African Commission on Human and People’s Rights v. the Republic of Kenya involved failure of the Kenyan government to respond to an African Commission order requesting them to suspend implementation of an eviction notice to the Ogiek. The African Court found that restrictions on Ogiek access to Mau Forest greatly affected their ability to preserve their traditions and interfered with their right to culture.  Kenya had failed to prove that the need to preserve the natural ecosystem justified interfering with the Ogiek’s cultural rights. The Government has formed a Task Force on implementing this decision. While the case was not based on the Constitution, a Kenyan court said the decision was binding on it because Article 2(6) makes international agreements part of Kenyan law (John K Keny v Principal Secretary Ministry of Lands).

In J K (suing on behalf of CK) v Board of Directors R School   the court did not reject the argument that a boy should be allowed to wear dreadlocks in school on principle. The point was that it had not been proved that the child belonged to the Jamaican culture – just asserted.

Some cases based on culture have caused some concern. In Republic v. Mohamed Abdow Mohamed the court agreed that a murder prosecution could be withdrawn because the families of the accused and the deceased reached a settlement, and compensation was paid and rituals conducted according to Somali culture. The court relied on Article 159(2): courts should promote traditional dispute resolution. One issue about this and various other cases is about equal treatment. Should only some people who have committed murder be free from the consequences because of such ‘cultural’ decisions? The other issue is that, under the Criminal Procedure Code, only certain cases can be ‘settled’ by agreement; murder is not one. Relevant to both is Article 159: ‘Traditional dispute resolution mechanisms shall not be used in a way that … contravenes the Bill of Rights … or is inconsistent with … any written law.’

In Republic v. Abdulahi Noor Mohamed (alias Arab) the court pointed out that a crime is not an injury to a person but against the society in general. In addition there were no policy guidelines on how to incorporate the alternative justice systems in criminal matters. 

In a non-criminal case courts will more readily agree to refer a case to traditional mechanisms, as in Lubaru M’Imanyara v Daniel Murungi where the court referred the case to the Njuri Ncheke, Meru traditional tribunal. Both Article 159(2) (c) and Article 60(1) (g) (a principle of land policy is to encourage settlement of land disputes through recognised local community initiatives) supported this.

In recent cases on morality questions such as abortion and LGBTI rights, there have been people who have asked to be joined as interested parties to argue that the controversial activities are against Kenyan or a specific tribe’s culture.   A pending case asks whether prohibiting even adult women to undergo FGM is a violation of their cultural rights. 

Conclusion

The Constitution has given an impetus to cultural identity and practices only touched on here. Many dilemmas are raised, and will continue to test the courts and policy makers.

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