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Kenyan constitutional review in crisis claim minority and indigenous groups

8 April 2004

The constitutional review process in Kenya has reached its final stages after the presentation of a draft Constitution to the Attorney General on 23rd March. However a constitutional court has ruled that Kenya’s parliament be given powers to alter the draft Constitution document, a move which minority and indigenous rights groups claim could seriously weaken important provisions for minority and indigenous rights, which they have lobbied hard to achieve.

Minority and indigenous groups in Kenya have pointed out that the draft Constitution goes a long way towards meeting their requirements and, in its current form, is responsive to issues of long-standing concern. The preamble explicitly recognizes and protects diversity, while the Bill of Rights protects the rights of marginalized communities defined as pastoralists, hunter gatherers and other communities that may have suffered discrimination. According to Kenyan rights groups such as the Centre for Minority Rights Development (CEMIRIDE), the draft constitution ‘specifically moves to ensure that governance is effected from a human rights perspective’.

The existing Kenyan Constitution has served to subject minorities and indigenous peoples to discrimination according to CEMIRIDE and others, resulting in high levels of poverty, insecurity, illiteracy and poor health. However, they fear that those backing the progressive new provisions may not be able to garner sufficient support to defeat moves by others within Kenya’s parliament to amend the draft or question the constitutionality of the entire review process. Some of the most ardent supporters of the process before the 2002 elections have now become its greatest opponents, despite having been elected partly on a platform of constitutional review.

Governance Programme Officer for CEMIRIDE, Nyang’ori Ohenjo, stated: ‘This smacks of the highest level of insincerity – it is ironic that Kenyans must determine the constitutionality of their actions within a framework of an existing but flawed Constitution, the very reason why a new Constitution is required.’

Kenyan rights groups have called upon the Kenyan government to ensure the enactment of the draft Constitution within the timeframe allowed, three weeks from the handing over of the document to the Attorney General. Minority Rights Group International (MRG) fully supports the enactment of a new Kenyan Constitution ensuring and protecting the rights of minorities and indigenous peoples. This Constitution should recognize the existence of indigenous peoples in Kenya, their right to have their identity protected and their right to possession of land.

Download MRG’s micro study ‘Kenya’s Castaways: The Ogiek and National Development Processes