II The UNDRIP and the Kenyan Constitution (UN Indigenous People)
Robert Omondi, Apiyo, cmf
Dip. Sciences of Human Development
B.A. in Philosophy; B.A Social Ministry,
Coordinator JPIC St. Charles Lwanga Ind. Del.
Coordinator Claretians at UNEP
Claretian Independent Del. of St. Charles Lwanga: East Africa
UNDRIP and the Kenyan Constitution: Some Legal Variance
Chapter 4 of the 2010 Kenyan constitution on the Bill of Rights provides for a sufficient legal foundation for equal protection of all people. The general assumption is that this legal provision not only includes but also addresses the unique identity and lifestyle of the indigenous peoples as envisaged in the UNDRIP. Furthermore, the specific citing of indigenous people in Chapter 17 of the Kenyan constitution as constituting marginalized people further demonstrates some semblance of legal recognition of the unique identity of the Indigenous people. Unlike in the UNDRIP legal framework, however, the Kenyan constitution does not give further clear legal directions or minimum standards as they apply to the specific and distinct situation of the indigenous people as unique demography.
The Kenyan Constitution also does not have a provision to safeguard the standards of Art 10 of UNDRIP on free, prior, and informed consent from the indigenous people. Neither do we have legislation for the furtherance of Art. 14(1) of the UNDRIP on the subject of providing an educational framework designed to be responsive to Indigenous People’s own languages in a manner appropriate to their cultural methods of teaching and learning to capture their distinct and delicately nuanced rights.
The same conceptual and standardization gap is visible in the church’s and the congregation’s approach. There is no ecclesial or congregational framework that sets a minimum standard designed for application to the situation of indigenous people as a unique category. When the Church is at the service of a people whose predominant constituency is the Indigenous people, UNDRIP standards could provide an apt instrument to transform ministers into authentic ‘Shepherds with the smell of the sheep. Adopting the UNDRIP standards thus compels even the church to re-immerse herself into the fragile spaces of the indigenous people’s living ecosystem not for momentary superficial spiritual experiences but for long-term commitments to establish a deeper communion with them as an integral and constitutive part of the body the church.
The church working with and for indigenous people in the pastoralists zones of Northern and Northern Eastern departs Kenya operates from formidable theological anthropology founded on human persons having inherent dignity. Through the principles of Catholic Social Teaching, the church further buttresses her efforts with a blend of the existentialist and human rights approaches. The church, to her credit, has established missions and projects in the deepest of habitats occupied by the Indigenous people. These commendable initiatives notwithstanding, there are still conceptual, strategic, and structural deficiencies for a differentiated ministry explicitly tailored to protect the unique nature and lifestyle of the indigenous people’s living ecosystem.
The indigenous people are thus often clustered in one general ministerial category of vulnerable/poor or marginalized pastoralists’ communities. Quite often, efforts to protect them are limited to the preservation and/or assimilationist efforts where the church works to ‘bring them out of poverty. The risk which preservationist approaches portents is that the richness of Indigenous peoples’ culture is inadvertently reduced to a relic of human civilization from where the dominant cultures can occasionally ‘tour’ to find a window for short re-discovery of the value of being ‘natural people from a ‘living indigenous museum’.
Conversely, in assimilationist approaches framed as ‘modern development’, attempts are made to ‘de-culture’ indigenous people from their ‘backward cultures’ so as to re-culture and ‘mainstream’ them into predominantly pro-western cultures. The church and the congregation need to instrumentalize the spirit and standards of UNDRIP to revisit and re-evaluate her robust apostolates in the services delivery areas of education, health, and infrastructural development to make them sufficiently responsive to the distinct and unique identity of the indigenous people.
This challenge is aggravated when the vast majority of the Indigenous people’s population in the Northern Frontier Counties constitutes Non-Christian communities. This would demand a ministerial presence with sufficient levels of knowledge on the subjects of both inter-faith dynamics and the Rights of Indigenous Peoples (UNDRIP).
UNDRIP and the principle of collective and/or Individual ownership of Land
Both Article 1 of UNDRIP and Chapter 5 Art. 61(1) of the Kenya constitution provides for collective and individual enjoyment of Indigenous peoples’ rights. This includes but is not limited to ownership of land. While both laws appreciate and endeavor to legally protect and promote the value of collective living among indigenous people, it is only UNDRIP that highlights the unique component of indigenous land constituting much more than a geographical space or territory.
Article 25 of UNDRIP states that “Indigenous peoples have the right to maintain and strengthen their distinctive spiritual relationship with their traditionally owned or otherwise occupied and used lands, territories, waters …” from the UNDRIP framework; therefore, indigenous people’s land is legally recognized not Just as being owned by the community living in the here and now, but also as co-owned by the ancestral community as well the yet-to-be-born generations through a spiritual link. The subject of land is not limited to the right to individual ownership of property. It is intricately related to the right to both community and religious capitals.
Decoupling of any of these vital interrelationships raptures the irreplaceable fabrics of the indigenous peoples’ peaceful ecosystem. This explains why even when the state and the faith actors are striving to ‘bring’ what they interpret as constituting “public good” in terms of infrastructural, health, and educational development to the indigenous people, these could still be a cause for deep grievances and quite often subliminal drivers of violent conflicts. This is because; state-designed public goods do not necessarily correspond to “goods” as perceived by the ‘indigenous public’. Sometimes, the state-designed concept of public goods fails to factor in the spiritual value of land as a vital connector between the living indigenous community and the ancestral indigenous community. This is why the principle of public participation is essential before, during, and after the processes of defining and designing public goods.
Robert Omondi, Apiyo, cmf