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Culture practice has changed Kenya under the new Constitution

NAIROBI: Among its many transformative aspirations, the Constitution of Kenya (2010) embraces the idea that Kenya is both a unitary and diverse country.

In its Preamble, the people have expressed their pride in Kenya’s “ethnic, cultural and religious diversity” and their determination to “live in peace and unity as one indivisible sovereign nation”.

This vision expresses a useful articulation of pluralism – that is, the idea that cultural and social diversity and political unity can co-exist.

Five years later, it is evident that the Constitution has had a major bearing on the way Kenyans characterise and practice culture and community.

The practices of these notions of culture and community have become useful avenues for positioning and claim making (for example, by communities, minorities and NGOs).

Let’s take the kind of debate that has taken place on the Community Land Bill, which I have been following with great interest.

While discussions around the Bill have tended to use definitions of community that move beyond the commonly applied meaning of community as an ethnic group bound by language, culture and a unique mode of livelihood, many groups have used this legislating process to position themselves. The positioning has largely been about attempts to re-align and redress asymmetries in power relationships in Kenya.

These asymmetries are evident when one looks at socio-economic and political inequalities between the rural and urban areas.

But beyond this divide, there also exist huge discrepancies in access to income, distribution of resources and opportunities for citizens to participate in public affairs.

Lack of power among people living in poverty may be a reason why they are not able, or allowed, to participate in, influence, demand accountability from political leaders and service providers, or derive benefits from development programmes.

This could perhaps explain why it is the poor, whether expressed as a council of elders or some creative individuals, who have tended to make use of the constructs of culture and community to position themselves and gain a voice in society, since the Constitution was passed. Somehow, the ideas of culture and community have helped re-affirm the ‘Kenyanness’ of those who are otherwise marginalised in our unequal society.

In this context, if one were to ask; who needs culture or community in contemporary Kenya, the response would be the poor, marginalised and minorities! Such use has stood out in the recent debate on Community Land Bill.

But it has not been all about positioning.

The last five years have also witnessed the proliferation of so-called cultural festivals, partly because county governments see these as a way of branding their counties culturally, and increasing tourism revenue.

From Kisumu to Lamu, Mandera to Mt. Elgon and Meru, an increasing number of events have been organised to celebrate culture, and they are often branded as ‘cultural festivals’.

A look at the most recent Maralal Camel Derby and cultural festival, and discussion of festivals at the national stakeholders’ meeting on the Draft of the National Culture Bill held earlier this year at National Museums of Kenya, points to something more than the ‘celebration of culture’.

Besides the Camel Derby, the event was punctuated with dances, arts and craft stalls as well as pseudo-traditional ceremonies in ‘manyattas’.

One thing is becoming clear; the festivals are also becoming avenues for claim making, particularly since the Constitution was implemented.

On the one hand, festivals are being used by communities to assert their indignation.

On the other hand, communities are using these very assertions to claim their rights, particularly after 2010.

In Maralal, one could observe how the festival participants linked their camel economy to their rights as Samburu people. Through songs, speeches and other artistic expressions, they claimed rights to land and economic progress as a community. The cultural festivals in these forms are thus mechanisms for positioning in order to make claims of belonging to Kenya as a distinct entity.

Even more explicitly, several legal claims are finding their ways into our courts are using ‘culture’ as a basis of claim making.

One such example is the appeal by the Yimbo Yala Swamp Farmers Society in the case of Martin Magina Okoyo & Another v. Bondo County Council, Dominion Farms Ltd and Siaya County Council, where the local community through their representatives have sued Dominion Farms in Siaya County for allegedly transgressing their rights.

As we wait for the appellate hearing to start, it is curious that the petitioners propose, among other things, to make claims under the following articles:

Article 19: Rights and fundamental freedoms, 21: Implementation of rights and fundamental freedoms, 22: Enforcement of Bill of Rights, 23: Authority of courts to uphold and enforce the Bill of  Rights, 27: Equality and freedom from discrimination, 28: Human dignity, 40: Protection of right to property, 42: Environment, 159: Judicial authority and 63: Community land.

With culture enjoying an elevated position after 2010, it will be very telling to follow the kind of arguments that draw on Article 63 of the Constitution of Kenya.  In these arguments, culture is likely to feature as both space and language for claiming rights to land. Such is the co-existence that has made culture a resource in claiming rights in Kenya.