ATIONS A UNIES
GÉNÉRALE Assemblée générale
26 février 2007
CONSEIL DES DROITS DE L’HOMME
Point 2 de l’ordre du jour provisoire
APPLICATION DE LA RÉSOLUTION 60/251 DE L’ASSEMBLÉE GÉNÉRALE
DU 15 MARS 2006 INTITULÉE ?CONSEIL DES DROITS DE L’HOMME?
Rapport du Rapporteur spécial sur la situation des droits de l’homme
et des libertés fondamentales des populations autochtones,
MISSION AU KENYA
GE.07-11044 (F) 220307 220307
Le présent rapport rend compte de la visite officielle effectuée au Kenya par le Rapporteur
spécial sur la situation des droits de l’homme et des libertés fondamentales des populations
autochtones du 4 au 14 décembre 2006 à l’invitation du Gouvernement kényan. Au cours de sa mission, le Rapporteur spécial a tenu des consultations avec les autorités nationales et régionales,
des membres du personnel d’organismes des Nations Unies, des représentants d’organisations
non gouvernementales, ainsi que des membres de communautés et d’organisations autochtones
dans différentes parties du pays.
Les chasseurs-cueilleurs et les pasteurs de groupes minoritaires qui vivent pour la plupart
dans les terres arides et semi-arides, tels que les El Molos, les Yakus, les Sengwers, les Masaïs et
les Ogieks constituent les communautés autochtones du Kenya. Ces communautés ont de tout
temps fait l’objet de discriminations visant leurs moyens de subsistance et leur culture, et leur
manque de reconnaissance juridique et d’autonomie traduit leur marginalisation sociale,
politique et économique.
Les principaux problèmes de droits de l’homme qui se posent à elles sont liés à la perte et à
la dégradation de leurs terres, forêts traditionnelles et ressources naturelles, consécutives à la
spoliation qu’elles ont subie à l’époque coloniale et pendant la période qui a suivi
l’indépendance. Au cours des dernières décennies, des politiques de développement et de
conservation inappropriées ont entraîné une aggravation des violations de leurs droits
économiques, sociaux et culturels.
Le manque de services sociaux et sanitaires au sein des communautés autochtones pénalise
surtout les femmes et les enfants, qui sont victimes d’inégalités et de discriminations fondées sur
le sexe, notamment en matière de droits de propriété, ainsi que de pratiques traditionnelles
préjudiciables qui, par ailleurs, favorisent la propagation du VIH/sida dans ces communautés.
Le gouvernement actuel s’est engagé dans des politiques d’un type nouveau axées sur un
processus de développement des terres arides et semi-arides piloté par les communautés, une
action positive dans le cadre de la stratégie de réduction de la pauvreté et le programme d’accès
universel et gratuit à l’enseignement primaire. Si elles portent leurs fruits, ces politiques devraient permettre de corriger des injustices historiques et d’améliorer de manière générale la
situation des communautés autochtones.
La violence liée aux conflits sociaux et ethniques de diverses natures et l’absence de
mécanismes de justice transitionnelle et de réparation ont également porté atteinte aux droits de
l’homme des communautés autochtones.
Le Rapporteur spécial termine son rapport par une série de recommandations tendant à
améliorer la situation des droits de l’homme des peuples autochtones dans le pays.
REPORT OF THE SPECIAL RAPPORTEUR ON THE SITUATION OF
HUMAN RIGHTS AND FUNDAMENTAL FREEDOMS OF INDIGENOUS
PEOPLE, RODOLFO STAVENHAGEN, ON HIS MISSION TO KENYA
(4-14 DECEMBER 2006)
I. INTRODUCTION ................................................................................ 1 - 7 5
II. INDIGENOUS PEOPLES IN KENYA .............................................. 8 - 12 6
III. LEGAL AND POLITICAL CONTEXT ............................................. 13 - 20 7
IV. MAJOR ISSUES AFFECTING THE RIGHTS OF
INDIGENOUS PEOPLES IN KENYA .............................................. 21 - 81 8
A. Legal recognition and political participation ............................ 21 - 24 8
B. Land and resource rights: the pastoralists ................................ 25 - 35 9
C. Hunter-gatherers and forest peoples .......................................... 36 - 41 11
D. Environmental rights .................................................................. 42 - 47 13
E. Conservation versus livelihood .................................................. 48 - 54 14
F. Access to justice and impunity .................................................. 55 - 64 15
G. Poverty, inequality and access to social services ..................... 65 - 77 17
H. The rights of indigenous women ............................................... 78 - 81 19
V. CONCLUSIONS .................................................................................. 82 - 89 20
VI. RECOMMENDATIONS ..................................................................... 90 - 132 21
A. Recommendations to the Government ...................................... 91 - 119 21
B. Recommendations to the Kenya National Commission
on Human Rights ........................................................................ 120 - 121 25
C. Recommendations to indigenous communities and
organizations ............................................................................... 122 - 124 25
D. Recommendations to civil society and political parties ........... 125 - 127 25
E. Recommendations to the international community .................. 128 - 130 26
F. Recommendations to the academic community
and the media .............................................................................. 131 - 132 26
1. Pursuant to Commission on Human Rights resolution 2001/57 of 24 April 2001, which established his mandate, and at the invitation of the Government, the Special Rapporteur on the situation of human rights and fundamental freedoms of indigenous people visited Kenya from 4 to 14 December 2006.
2. The purpose of this visit was to better understand the situation of indigenous peoples in Kenya, to learn about policies and practices designed to promote and protect their rights, and to dialogue with government officials at the national and local levels, representatives of indigenous peoples’ communities and organizations, development partners and other actors on ways to
strengthen the responses to the demands and needs of indigenous peoples.
3. The Special Rapporteur travelled to Nairobi, Kitengela, Narok, Nakuru, Baringo, Mount Elgon, Laikipia, Wajir, Garissa, Marsabit and several rural areas around the country. In Nairobi, he met with the Permanent Secretary in the Ministry of Justice and Constitutional Affairs, the Permanent Secretary in the Ministry of Lands, the Permanent Secretary in the Ministry of Education, the Director of the Kenya Wildlife Service, as well as with high officials in the Ministry of Health and the President’s Office of Special Programmes. He also met with the Kenya National Commission on Human Rights (KNCHR) and with Members of Parliament of the Pastoralist Parliamentary Group. In the various provinces he met with the Deputy Provincial Commissioner of the Rift Valley Province, the District Commissioners of Laikipia, Marsabit, Narok, and the Mayor of Garissa.
4. The Special Rapporteur met with the United Nations Resident Coordinator and country team representatives, and held conversations with international agencies including the International Labour Organization (ILO), the Food and Agriculture Organization of the United Nations (FAO), the United Nations Development Programme (UNDP), the
United Nations Environment Programme (UNEP), the United Nations Children’s Fund
(UNICEF), the United Nations Office on Drugs and Crime (UNODC), the United Nations Human Settlements Programme (UN-Habitat), the United Nations Population Fund (UNFPA) and the World Health Organization (WHO), as well as with donor organizations and non-governmental organizations (NGOs).
5. The Special Rapporteur conducted on-site visits to numerous indigenous pastoralist and hunter-gatherer communities in Narok, Laikipia, Mau Forest, Mount Elgon, Lake Baringo, Cherangany Hills and Wajir. He also held meetings with indigenous representatives of the Awer, Boni, Borana, Burgi, Elmolo, Endorois, Ilchamus, Gaaljecel, Gabra, Maasai, Malakote, Munyayaya, Ogiek, Orma, Pokot, Rendille, Sabaot, Sakuye, Samburu, Sengwer, Somali, Talai, Turkana, Watta, Munyayaya and Yakuu. He met with members of other minority communities, such as the Nubians, and with groups of refugees. He also visited the Maasai Mara National Park and the Lake Baringo Game Reserve, where he assessed the impact of protected areas on local indigenous peoples.
6. During his visit, the Special Rapporteur participated in the National Seminar on Indigenous Issues, organized by the Office of the High Commissioner for Human Rights (OHCHR) and UNDP in Nairobi, on 5 and 6 December 2006.
7. The Special Rapporteur would like to acknowledge the hospitality of the Government of Kenya, and especially thank the Ministry of Justice and Constitutional Affairs for its invitation and cooperation, and KNCHR, UNIPACK (United Nations Indigenous Peoples’ Advisory Committee - Kenya) and the indigenous peoples’ steering committee for the preparation of the
visit. He also wishes to thank the many indigenous communities and organizations that gave their time and provided useful information for this report, including Arid Lands Institute, Center for Minority Rights Development (CEMIRIDE), Enderois Development Council, International Movement for Peace Advancement and Conflict Transformation (IMPACT), Maa Civil
Society Forum, Ogiek Welfare Development Council, Pastoralist Integrated Development Organization (MPIDO), Sengwer Culture and Information Centre, Truth to be Told Network, and Womankind. UNDP-Kenya deserves a special mention for its invaluable support of the mission at all stages.
II. INDIGENOUS PEOPLES IN KENYA
8. In Kenya all Africans are indigenous to the country, as many Kenyans are inclined to point out to the Special Rapporteur. This is of course true, given that most Africans living in contemporary Kenya are descendants of the original inhabitants, and because in colonial times all Africans, of whatever tribe or ethnic affiliation, were considered as “natives” by the authorities, sharing the same history of colonial subjugation and racial discrimination. At independence all natives became free and equal citizens of the new State. Moreover, due to geographic conditions and historical circumstances, social and cultural distinctions became defining characteristics that differentiated among the many tribes that populate the country. The majority ethnic groups which became integrated into the farming economy occupied the more fertile areas and after independence they regained much of the land which they had lost to the colonial regime.
9. As in some other African countries (see the Special Rapporteur’s report on his mission to
South Africa, E/CN.4/2006/78/Add.2, paras. 20-32), the contested use of the term “indigenous”
in Kenya has implications for policy decisions and therefore for the human rights of the concerned populations. From a human rights perspective, the question is not “who came first” but the shared experiences of dispossession and marginalization. The term “indigenous” is not intended to create a special class of citizens, but rather to address historical and present-day injustices and inequalities. It is in this sense that the term has been applied in the African context by the Working Group on Indigenous Populations/Communities of the African Commission on Human and Peoples’ Rights (ACHPR).
10. Within this perspective, pastoralists and hunter-gatherers are normally regarded as indigenous peoples in the international context, and they increasingly come to identify themselves as such in many countries, including in Africa. In Kenya they include pastoralist communities such as the Endorois, Borana, Gabra, Maasai, Pokot, Samburu, Turkana, and Somali, and hunter-gatherer communities whose livelihoods remain connected to the forest, such as the Awer (Boni), Ogiek, Sengwer, or Yaaku. Other groups such as the Nubians consider themselves as a minority that has also been marginalized, but in an urban context. They and other minority groups share demands to end discrimination and exclusion with indigenous peoples in Kenya. The Kenya Government normally refers to indigenous and minority groups jointly as “minorities”, “marginalized” or “vulnerable communities”.
11. Government authorities and specialists recognize that historically the pastoralist and hunter-gatherer communities in the arid and semi-arid lands and forests were systematically marginalized on the basis of their economic, social and cultural characteristics, inextricably connected to the use of land and natural resources. One government report states that over the years policies directed at these communities were mainly top-down and discriminatory, and they often failed by marginalizing and impoverishing people in arid and semi-arid lands. 12. Indigenous peoples in Kenya have established numerous civil society organizations that are actively involved in promoting human rights, development issues and environmental concerns. Since the transition to a more democratic political regime in 2002, the visibility and public recognition of these organizations has grown, and a number of their leaders and members now cooperate closely with several government institutions.
III. LEGAL AND POLITICAL CONTEXT
13. Whilst Kenya has ratified most international human rights treaties and conventions, it has not ratified ILO Convention No. 169 on Indigenous and Tribal Peoples in Independent Countries, and it has withheld its approval of the United Nations Declaration on the Rights of Indigenous Peoples at the current session of the General Assembly. The Government of Kenya has recently decided to update its reports to the various United Nations human rights committees, some of which are long overdue.
14. Kenya’s independence from British rule in 1963 brought about the Africanization of the
economy and the public services. The continuation of previous colonial policies, as well as the co-optation of the State apparatus by majority ethnic communities under a one-party system, led to increased tribalism in the distribution of political power, government jobs and wealth, and the widening gulf between rich and poor. This tendency increased during the Government of President Moi, during which numerous ethnic clashes occurred and human rights were severely curtailed.
15. The new Government, elected by a large majority in December 2002, enabled a democratic opening that allowed many pent-up grievances out into the open, including the long-standing demands by indigenous and other ethnic minorities for human rights and the emergence of a vibrant and articulate civil society. The new Government promoted legal reform and the consolidation of institutions of democratic governance, including a constitutional review process, and special inquiries into corruption, land mismanagement and historical injustices. 16. Most indigenous peoples in Kenya live in the arid and semi-arid lands (ASALs) which make up more than 80 per cent of the land mass and are home to more than 25 per cent of the national population, and include almost the majority of wildlife parks and reserves and protected forests. ASAL areas are predominantly pastoralist and agro-pastoralist, mainly suitable for livestock grazing due to low and erratic rainfall. These areas present the highest incidences of poverty and the lowest level of access to basic services in the country. Over 60 per cent of the population lives below the poverty line, which is above the average of 50 per cent nationwide. 17. Pastoralism was for a long time neglected and held in disrepute by the country’s economic
planners and political elites. Policies aimed at revitalizing ASALs since independence promoted sedentarization and crop farming, failing to take into account pastoralism as a sustainable form
of land use adapted to the environment. Deforestation and poor land use have further increased
environmental degradation, making the land more vulnerable to cyclical droughts and floods.
18. The Constitution of Kenya incorporates the principle of non-discrimination and guarantees
civil and political rights, but fails to recognize economic, social and cultural rights as such, as
well as group rights. The rights of indigenous pastoralist and hunter-gatherer communities are
not recognized as such in Kenya’s constitutional and legal framework, and no policies or
governmental institutions deal directly with indigenous issues. However, in recent years the
specific situation and needs of these communities have started to be addressed, as reflected in
current discussions on the ASAL and national land policies, and there seems to be growing
consensus on the need for affirmative action towards these communities.
19. The specific needs and rights of pastoralists and hunter-gatherers were also taken into
account in the constitutional review process that started in 2003. After countrywide
consultations that included indigenous organizations, the first draft of a new constitution
(the “Bomas draft”) included the decentralization of power and group rights, a section on
“Minorities and marginalized groups”, and a system of affirmative action in employment,
economic development, and political representation. It also called for the equal redistribution of
lands and resources, and for the redress of historical injustices. A new revised draft prepared by
Parliament (the “Wako draft”) was overwhelmingly defeated in a referendum in 2005, partly
because it failed to address outstanding land issues and the decentralization of power. Since then,
the process of constitutional reform remains at a stalemate.
20. The Special Rapporteur is encouraged by the fact that KNCHR and the Ministry of Justice
and Constitutional Affairs have begun to consider the promotion and protection of pastoralists
and hunter-gatherers in Kenya as part of their activities. It is also encouraging that indigenous
issues are being considered as cross-cutting issues in the process of formulation of a National
Action Plan and Policy on Human Rights being spearheaded by these two institutions. Various
official development initiatives, including the Poverty Reduction Strategy Paper (PRSP), the
ASAL Resource Management Project and the draft National Policy for the Sustainable
Development of the ASALs, take into account the special characteristics of pastoralism.
Similarly, the new land policy currently under discussion refers explicitly to “the rights of
minority communities”, a concept that covers groups such as hunter-gatherers, forest peoples and
IV. MAJOR ISSUES AFFECTING THE RIGHTS OF
INDIGENOUS PEOPLES IN KENYA
A. Legal recognition and political participation
21. The 1989 national census lists 42 tribes in Kenya, but omits many smaller pastoralist and
hunter-gatherer communities, such as the Ogiek, El Molo, Watta, Munyayaya, Yakuu, and other
small groups such as the Sabaot and Terik, who are not legally recognized as separate tribes.
This situation is derived from the colonial policy of promoting assimilation of smaller
communities into other dominant groups. Affected tribes claim that the lack of a separate code
in official documents identifying them as distinct ethnic groups reduces their visibility in
national policymaking. Many communities from the north, such as the Awer, Galjaeel, Somali,
and Oromo, are also prevented from enjoying full citizen rights as a result of the lack of proper identity cards.
22. The existing political system divides many communities such as the Endorois or Sengwer into different administrative and electoral units. This diminishes their effective representation in the Parliament and participation in local decision-making, as they may not have the numbers to vote for leaders from their communities through elective processes. Political parties, according to their numerical strength in Parliament, are vested with the constitutional power to appoint 12 “nominated members” of Parliament to represent “special interests”, which may include marginalized communities. There is also the legal possibility of changing the boundaries of existing constituencies, taking into account the “representation of … sparsely populated rural areas”, and their “community of interest”. But these safeguards have not yet been fully implemented in favour of smaller indigenous communities.
23. Numerous indigenous communities complain that their needs are not being met and that their rights are not being adequately protected because, being numerically small, they do not have sufficient political representation at the national or provincial levels to make a difference. One such case was presented to the Special Rapporteur by the Ilchamus indigenous community of Baringo who represent 17 per cent of the local constituency and rely mainly on livestock for their subsistence. The community feels marginalized by the dominant groups in the district who do not represent their interests at the political level, and brought suit before the High Court alleging violation of their right to political participation. In a landmark judgement, issued shortly after the Special Rapporteur visited the country, the High Court directed the Electoral Commission of Kenya to supervise the appointment of nominated MPs to ensure compliance with the Constitution, and to take into account the Ilchamus community’s interests in the next boundary review.
24. The main effect of political marginalization is the unequal lack of access to development resources and government employment. This is particularly serious with relation to the Constituency Development Funds (CDF). Since 2003, 2.5 per cent of the government revenues are allocated every year to each constituency through this fund, but it is difficult for smaller communities who are not represented by an MP to have equal access to development resources and social services.
B. Land and resource rights: the pastoralists
25. Most of the human rights violations experienced by pastoralists and hunter-gatherers in Kenya are related to their access to and control over land and natural resources. The land question is one of the most pressing issues on the public agenda. Historical injustices derived from colonial times, linked to conflicting laws and lack of clear policies, mismanagement and land grabbing, have led to the present crisis of the country’s land tenure system.
26. The 2002 report of the Presidential Commission of Inquiry into the Land Law System of Kenya (“Njonjo report”), the 2004 report of the Presidential Commission into the
Irregular-Illegal Allocation of Public Land (“Ndungu report”), and the draft National Land
Policy include specific provisions concerning land reform, and so do the two constitutional drafts under discussion.
27. During the first half of the twentieth century, colonial authorities and European settlers seized the richest agricultural areas, while the original owners were displaced towards “native reserves” on far poorer land or remained as landless workers. After independence, the fertile
agricultural lands of the “White Highlands” were bought back by the Government of Kenya, but they were not, contrary to early promises, returned to their original owners (among them the Maasai communities in the Rift Valley). The unequal distribution of land fostered a sense of relative injustice, and has created conflict over the years between farmers and pastoralists. 28. Most of the abuses after independence took place in Trust Lands, including former native reserves. The Constitution vests the administration of these lands in the County Councils, which acted “in total breach of trust as custodians of land on behalf of local residents” through the irregular adjudication of vast areas in favour of powerful individuals and settlers from other communities, and the establishment of protected areas (Ndungu report, p. 81). The prevailing theory of the sanctity of the title, whereby first registration of land title cannot be challenged in court regardless of fraud or mistake, further sanctioned these abuses. Displacement of original inhabitants has been widespread in the Rift Valley and Kajiado District, and most pastoralist grazing lands in the north and north-eastern regions face similar threats.
29. Since the end of the 1960s, and supported by the World Bank, the Government has promoted the transformation of Trust Lands into group ranches and then individual ownership, thus limiting the land available for traditional mobile grazing. Based on the idea that individual titles, through a “willing buyer-willing seller” approach, would improve the prospects for
investment and economic growth, this policy in fact encouraged land grabbing and the massive sale of pastoralist land, particularly in areas neighbouring urban centres.
30. Loss of land through colonization, nationalization and privatization can be illustrated with the example of the Maasai, whose grazing areas were split by a colonial frontier installed between Kenya and Uganda at the end of the nineteenth century. It is estimated that the Maasai lost one third of their territory through coercive treaties in 1904 and 1911 imposed by the colonial regime, and were allowed to retain only small amounts of marginal land in the Kenyan districts of Narok and Kajiado. In Laikipia District, 75 per cent of the land still remains in hands of European owners. The Special Rapporteur personally observed traditional rangelands which were being fenced off, thus restricting the seasonal movements of the livestock herds of the nomadic pastoralist communities, as well as constricting the natural ecosystems of the wildlife, including important migratory routes.
31. After independence in 1963, the formerly closed Maasai districts were opened to immigration from other ethnic groups, based on the false assumption that large areas utilized by the Maasai for seasonal grazing were “idle land”. The Ndungu report documents the faulty adjudication of the Iloodo-Ariak in Kajiado District to hundreds of government officials and their relatives. Though they were not local residents, they were issued title deeds, while “many
rightful inhabitants of the area were … disinherited from their ancestral land” (ibid., p. 141). It is estimated that the Maasai lost another third of their lands in Narok and Kajiado Districts as a result of these processes. In Kaijado alone, 50 per cent of Maasai households did not have land in 1997, as compared to around 8 per cent in the 1980s.