Marginalised communities have faced gross violation of their individual and group rights coupled with marginalisation in governance and representation. The much publicised and adjudicated plight of the Endorois and Ilchamus/Njemps communities is a critical indicator. The Endorois who after exhausting local remedies in our national courts proceeded to the African Commission on Human and People's Rights, atleast secured a favourable and landmark judgement.
The proposed constitution published by the Attorney General on 6.05.2010 recognioses the unique circumstances of marginalised communities and guarantees their rights. To begin with, the term 'Marginalised Community' is well defined in Article 260. The preamble recognises the fact of our ethnic, cultural and ethnic diversity. In vesting all sovereign power on the people of Kenya in Article 1, it should be read to include Marginalised communities.
Article 10 recognises the protection of marginalised communities as one of the national values that Kenyans hold dear as the guiding light to our coexistence. Article 11 recognises culture as Kenya's foundation and imposes a duty on the state to promote all forms of national and cultural expressions. The article should be read together with Article 44 on on the right to lunguage and culture. Article 11(3) also provides that parliament shall enact legislation to ensure communities receive royalties for the use of their culture. According to Article 261(1) and the Fifth Schedule, parliament must do so within five years.
Article 19(2) provides that the purpose of recognising and protecting human rights and fundamental freedoms is to preserve the dignity of communities and promotion of social justice. Article 21(3) imposes a duty on state organs and public officials to address the needs of, among others, members of minority or marginalised communities and members of ethnic, religious and cultural communities.
On substantive rights, members of marginalised communities are entitle to all rights under the bill of rights, Articles 26 to 57, in the same manner and style as other kenyan citizens. However Article 56 addresses the rights of minorities and marginalised groups. The state shall put in place measures to ensure that such groups participate in governance, enjoy educational and economic life and access employment opportunities. In addittion Article 56 provides for the development of cultural practices, and ensure the provision of water, health services and infrastructure for these communities.
Chapter five on Land and Environment expressly recognises community land in Articles 61 and 63. Chapter eleven on devolved government will ensure that county governments allow communities to enjoy and manage their affairs and chart their development agenda without reliance on the central/national government. The shared functions for County governments under the Fourth Schedule will ensure that the pressing concerns for marginalised communities.
The proposed constitution is a major stride for marginalised communities in Kenya and a model for the African region.
Stephen Wandeto
Human Rights Lawyer and Student at the Kenya School of Law
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