Kenya: Mission Working Group Indigenous Populations / Communities, 2010

The WGIP paid a research and information visit to the Republic of Kenya from March 1-19, 2010 and compiled this report. The research and information visit was
undertaken by Dr. Melakou Tegegn, expert member of the WGIP, and Dr. George Mukundi Wachira, member of WGIP’s advisory network of experts. The aim of the visit was as follows:

• To gather information on the human rights situation of indigenous populations in Kenya;
• To hold meetings with the government of Kenya, regional and local authorities, national human rights institution, international organizations, civil society organizations, indigenous populations’ organizations and communities as well as other relevant stakeholders;
• To provide information about the African Commission’ s policy framework on the human rights of indigenous populations;
• To submit a report, including recommendations, to the African Commission.

Recommendations to the Government of Kenya

1. Review its overall approach and orientation towards the state of its indigenous peoples. To this end and for a wider impact, the government should organize a national conference on issues that affect the indigenous peoples of Kenya, in which prominent and knowledgeable persons on indigeneity take active part. 
2. Observe the standpoints of the African Commission on Human and Peoples Rights on indigeneity and the rights of indigenous peoples in Africa as stipulated in the 2003 Report of the African Commission’s Working Group of Experts on Indigenous Populations/Communities adopted by the African Commission at its 28th Ordinary Session in 2003.
3. Recognize the pastoral communities and hunter-gatherer communities of Kenya as indigenous.
4. Ratify ILO Convention 169 concerning Indigenous and Tribal Peoples in Independent Countries.
5. Adopt the United Nations Declaration on the Rights of Indigenous Peoples and ensure its incorporation, through the parliament, into domestic laws.
6. Identify indigenous peoples through the census launched and provide disaggregated data on pastoralists and hunter-gatherers.
7. Reform its electoral system to facilitate the political representation of indigenous peoples according to their wishes.
8. Rearrange the current designations of districts to end the splitting up of indigenous peoples, which greatly affects their chances of political representation.
9. Review the current practice of issuing identity cards which discriminates against indigenous peoples; identity cards should be issued to all members of indigenous communities.
10. Fully endorse and implement the Ndungu’u Report and return the ancestral lands of indigenous peoples taken from them through land grabbing or other illegal means. 
11. Implement the provisions of the Kenya Land Policy.
12. Compensate and pay reparations to indigenous peoples for the loss of their ancestral land through gazettement of national parks, reserves, forests, wild life conservation and tourism ventures.
13. Legally recognize and respect the rights of the Ogiek community to live in their ancestral home. The government’s plan to evict the Ogiek community from the Mau Forest must be withdrawn. Titles to the Mau Forest land acquired illegally must be revoked and new titles should be issued only to the original inhabitants, the Ogiek. The government should immediately stop commercial logging in the Mau Forest.
14. Implement the rulings of the African Commission on the case of the Endorois people, return their ancestral land and respect their right to unrestricted access to Lake Bogoria.
15. Immediately review the security situation in Northern Kenya and stabilize the situation through a universal pacification policy that addresses the plight of the historically wronged pastoral and other indigenous communities there, lift the discriminatory practices against the ethnic pastoral communities there and introduce a serious practice of continuous dialogue with the community. 
16. Immediately halt the hostile acts of the army in the lands of the Samburu and stop the violence against the community and address the inter-communal conflict through dialogue and discussion.
17. Consult indigenous communities prior to exploring for exploitation of natural resources on their ancestral and traditional land. 
18. Indigenous communities should receive an equitable share of benefits obtained from the exploration and exploitation. Full compensation should be paid to indigenous communities in case of adverse environmental impact on their land, natural resources and traditional livelihoods resulting from these economic activities.
19. The management of and benefits derived from protected areas, game reserves and national parks in pastoral and hunter-gatherer areas must involve indigenous communities. Indigenous communities must be compensated for the loss incurred heretofore as a result of the creation of these game reserves.
20. The government must ensure the participation of representatives of indigenous communities in the political reforms that are underway in the country.
21. The government should adopt affirmative action in the field of education for indigenous children. In pastoral areas, mobile and full boarding schools should be introduced to ensure universal primary education. Appropriate educational curricula must be designed to meet the requirements of indigenous communities in order to preserve their language, culture, special history and spiritual legacies.
22. Efforts must be made to protect from extinction the language, culture and other legacies of smaller indigenous communities, especially the Ogiek, Sengwer, Ilchamus, Elmolo, Munyoyaya, Waata and Yaaku. The state should form an agency to promote traditional languages, especially those under threat of extinction, in schools and through the mass media especially state media in collaboration with universities and institutions of higher learning as well as with members of civil society.
23. The government should take active measures to effectively eradicate female genital mutilation in all communities through carefully designed and socially acceptable methods.
24. The government should make provision for adequate health facilities and infrastructure to address the problem of high levels of maternal and infant mortality among indigenous communities due to the inadequacy of such facilities in indigenous peoples’ places of habitat. Importantly the Ministry of Health should initiate official training to strengthen the capacity of traditional mid wives and first aid care givers.
25. The government through the Ministries of Trade and Youth Affairs should strengthen the capacity of indigenous youth to harness their potential in traditional knowledge systems and alternative means of economic sustenance. This could be through training and access to capital and markets for their goods, wares and services especially in tourism and livestock husbandry. 
26. The state through the Ministry of Justice should provide legal assistance to indigenous communities perhaps through the recently launched legal aid scheme in order to access justice on a variety of human rights issues such as in defending and reclaiming their traditional land rights and resources.
27. Kenya and its East African counterparts through their Ministries of Foreign Affairs and East African integration should initiate a joint programme to address cross border indigenous peoples issues such as migration, movement, citizenship, equitable access and share of natural resources as well as state services such as education, health and socio economic rights.

Recommendations to civil society and indigenous communities

1. Indigenous communities in Kenya and all members of civil society should remain vigilant and hold the state accountable for implementing the recommendations in this report as well as remain at the forefront of challenging continued human rights violations through peaceful action and judicial fora including at the African Commission on Human and Peoples’ Rights.
2. Indigenous communities and civil society actors should employ innovative measures in partnership with development partners aimed at addressing the socio-economic needs of the communities such as training, development of tools and infrastructure in order to strengthen the capacity of indigenous communities to respond to the challenges they meet such as maternal and infant mortality, unemployment, etc. and to promote traditional knowledge systems.
3. Popularize this report in order to conduct advocacy and sensitization’s activities with the indigenous communities and state officials on the situation of indigenous communities and continuously lobby for the adoption of appropriate programmes to address the problem of continued marginalization of indigenous peoples in Kenya.

Recommendations to the African Commission on Human and Peoples’ Rights

1. Follow up on implementation and enforcement of its recommendations on the Endorois ruling. It is also urged to expedite other communications that have been lodged by indigenous communities in Kenya.
2. Conduct an official mission to Kenya, in order to continuously monitor the situation of human rights of indigenous peoples in the country.
3. Facilitate dialogue with the government of Kenya, civil society and indigenous communities in the country to ensure that the rights of indigenous peoples in all fields are respected.