Bill Gates: Seeds alone will not end poverty

PastoralistPostPastoral ists Week Edit ion, 2012

ConfliCtsPastoralist

greatest threat to real isat ion of const itut ional gains

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As numerous reforms contin-ue to take place in line with the constitutional provisions, the need to understand their

impact on pastoralists and on pastoral-ism as a mode of livelihood becomes paramount. This is indeed the only way that pastoralists can determine the ben-efits of the new constitution in their lives.

It is on this backdrop that the reforms broadly categorised as being legislative, policy and institutional nature were iso-

lated as issues of analysis and discussion during the Kenya Pastoralists Week 2011. The national forum sought to evaluate the gains of the reform processes on pastoralists and pastoralism and offer recommendations that will be in tandem with ongoing reforms agenda. This forum brought together pastoralist com-munity members, pastoralist community based organisations’ representatives, national and international partner organisations, members of the academia and government representatives.

Bill Gates, seeds alone will not end poverty

PastoralistPostPastoral ists Week Edit ion, 2012

ConfliCtsPastoralist

greatest threat to real isat ion of

const itut ional gains

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Recommendations for How to

Incorporate Customary Land

Laws Into Statute

IN THIS ISSUE

Published by:Centre for Minority Rights Development (CEMIRIDE)P.O. BOX 14692, 00100

Tel 254 20 609682/ 606589

Webpage:www.cemiride.org

email: admin@cemiride.info

Editorial Consultant:Jot It Down Ltd

Design & LayoutSanabora Design House

Email: info@sanabora.com

All photos- Courtesy of CEMIRIDE

Editorial Committee:Yobo Rutin Member

Joseph Mbatha Member

Sally Gathoni Member

Safia Abdi Member

WORD FROM CEMIRIDE

Counting the gains

Proud of their culture

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i n T h i S i S S u e

This edition of the Kenya Pastoralists Week compiles a sample of the main topical issues tackled during the nation-al forum and is aimed at documenting the recommendations and suggestions forwarded by participants during the forum.

This edition not only documents laser-precise issues facing pastoralists but also serves as a platform for advo-cating the concerns of pastoralist com-munities in the reforms processes. It is a comprehensive guide for engagement

by stakeholders for effective participa-tion, representation and incorporation of issues of concern to pastoralists as well other minorities and indigenous peoples in constitutional implementa-tion processes that promote their eco-nomic, social, cultural and political rights.

In addition, it highlights topics of interest on subjects that have been on the forefront of discussions concerning pastoralists both at the local and inter-national level. Welcome.

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KENYA PASTORALISTS

WEEK 2011: Recommendations

and Resolutions

PAGE 4

Land Reforms In Kenya and

Implications for Pastoralist

Communities in Kenya

A RAY OF HOPE PAGE 8

IN THIS ISSUE

Disaster Risk Management, Food Security and Climate Change: Policy Implications for Pastoralists and Pastoralism.PAGE 14

Mr Yobo Rutin, Executive Director - Centre for Minority Rights Development

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By YoBo Rutin

Kenya is lucky to have a very enabling policy and constitu-tional frame work on land. Kenya’s policy and consti-

tional framework on land is touted as one of the best in Africa. This current framework is provided by the National Land Policy adopted in December 2009 and the Constitution that was promul-gated in August 2010.

This framework is as a result of unrelenting and protracted campaigns by many stakeholders with not only interest in land reform but also who appreciate the role that land and natu-ral resources has played in the political, social economic and cultural reality of Kenya.

There are a number of key ingredi-ents that contribute to effective and sustainable land reforms. These include a comprehensive implementation framework and action plans. Such an implementation should, of necessity, comprise of what the content of such

an implementation should include, when it should be undertaken, who the key players should be and at what cost.

The current assessment as of December 2011 is that no such compre-hensive exists as yet. It is therefore important that all stakeholders dedi-cate their efforts towards realizing such an implementation framework before it gets to be too late.

Other critical factors that should guarantee sustainable land reforms may include: sustainable budgetary support. It is the hope all stakeholders that this should not be a problem. Political goodwill is key to expeditious and successful land reforms. It is any-body’s guess whether the coalition partners would be committed to land reforms or not.

The question of public participation is highly valued since any of the reform directions mooted should be mandated by those who have the highest stake in land and land related resources. Participation has many dimensions;

and could include such aspects as suffi-ciency of technical and human capaci-ty. Indeed, the current situation is that there is need for the government and non state actors to undertake a capaci-ty needs assessment in order to fulfill and command capacity related require-ments.

Institutional reforms to devolve and decentralize decision making and ser-vice delivery is mandatory. This will essentially include the National Land Commission, County Land Boards and Community Land Boards. It is in the crafting of these structures and their mandates that public participation will be required and especially that of pas-toralists.

Appropriate enabling legislation will provide the infrastructure of rules of engagement for institutions, communi-ties’ individuals and the state. Legislation as a highly critical factor requires utmost diligence by all stake-holders to ensure that land reforms are taken forward as envisaged by the key

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principles and provisions of the National Land Policy 2009 and the Constitution of Kenya 2010. Already there are fears that embedded vested interests, includ-ing within the Ministry of Lands may violate the interest of the public. This therefore requires of all to effectively monitor the legislative processes and outcomes. This is especially true of pas-toralist communities in Kenya who have been affected by legislations in the past that led to the dispossession of their land and land based resources.

There a number of Transitional Actions/Activities that can undermine land reforms. These may include: destruction and willful misplacement of sensitive land records (akin to what

colonial authorities did at indepen-dence.

The other sabotaging activity could be the enactment of weak legislation. Sometimes this is purposely designed to preserve status quo of the land situation in Kenya. There may be, for instance, heightened and selective allocation of public land. This may be true of particu-larly high value zones of Nairobi, Mombasa, Mavoko, and Thika, amongts others. Surveyors, valuers, lawyers and land managers can easily tell from empirical evidence such trends.

Heightened and selective allocation of trust/community land is one thing pastoralists need to be particularly care-ful about. Relatedly, one may find selec-

tive extension of contentious land leases in Laikipia, the Coast, and Urban areas. The converse may also be true where you could have selective denial of extension of land leases (if politically incorrect) and therefore leases may be re-allocated to the ‘politically correct’. Again, one might start seeing selective recovery of grabbed public land based on flimsy or political grounds.

Unusual land sales or transfers to defeat possible consequences of imple-mentation may be witnessed. This may be true where suspect land is being the subject of possible recovery, or in the case of foreigners transferring land piec-es to local proxies. Take for instance the recent case of where 17, 000 acres owned by one senior citizen in Laikipia was transferred to a State agency while the Samburu still stake a claim to it.

It would not be strange for one to see intense lobbying by various parties to ensure the inclusion of ‘friendly faces’ in new land institutions such as the National Land Commission, County & Community Land Board in order to miti-gate consequences of past irregular practices.

Poor budgetary provision and institu-tional unpreparedness could perhaps be the most effective ways of undermining land reforms. Take the case of Environment and the Land Court which are yet to be put in place. This means that there is no enabling institutional

infrastructure even if it has to be seen in the context of such basic requirements. There are no offices, no personnel, no systems, and no inventory of cases/issues amongst others.

Interventions that could minimize or pre-empt damage during transition phase could still be envisaged and these may include: ensuring that officers in key positions are trustworthy and vigi-lant. The transitional phase could also be shortened; ensuring that legislation drafting is inclusive and not entrusted to those with negative vested interests. This would call for a robust public par-ticipation; imposing a moratorium on all allocation of public and trust or commu-nity land over the transition phase. Any compelling cases could be subjected to vetting by a multi-sectoral panel of experts; the public to remain alert and expose noted cases of irregular alloca-tions; undertaking a quick audit of the known contentious leases to ensure no underhand extensions without the knowledge of other claimants; Repossession of grabbed land to be done within the constitutional frame-work; interested parties (communities, institutions or individuals) should lodge caveats or cautions to pre-empt such fast-tracked sales or transfers; good public vetting of officers to manage new institutions; all stakeholders to be proac-tive; stakeholder lobbying to ensure sus-tained budgetary provisions; early

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review and or restructuring of existing land institutions to ensure harmony once new ones are operationalized.

One may also want to consider spe-cific cases like the Endorois Case versus the Kenyan state where the African Union Commission on Human and Peoples’ Rights (ACPHR) ruled in favour of appropriate remedies due to viola-tion of the Endorois community indige-nous land rights. Obtaining remedies for such a case is currently hampered by a number of factors such as lack of enabling legislation. Most of the legisla-tions cannot respond to positively effecting the remedies by the African commission for instance the Trust Land Act, Wildlife (Conservation & Management) Act, the Land Adjudication Act, among others. Administrative measures could begin to address some issues and prepare for implementation once legal framework is in place. Political goodwill necessary to effecting the remedies is currently lack-ing otherwise one could envisage a n multi-sectoral/multi-stakeholder com-mittee comprising all the key actors (community, MoL, KWS, County Council and any others) to provide leadership in effecting the remedies

In conclusion a number of key areas need to be fixed to ensure effective and sustainable land reforms in Kenya. These include improving land gover-nance institutions, responsive legisla-tion and legislation stakeholder moni-toring to inform reforms.

Pastoralist communities and stake-holders must Lobby and press for timely and effective implementation of land reforms as per Constitution and the National Land Policy. They must be keen on security of tenure of communal land and access to protected areas, water, pastures and salt licks; participa-tion in the legislative process is critical. In addition pastoralist communities ought to find was of influencing the membership of National and County land institutions and Whistle blow where issues so require.

Adapted from the presentation by Ibrahim Mwathane: Land Development and Governance Institute at the Kenya Pastoralists week 2011 National Forum

BY Michael ole tiaMpati

Conflicts among pastoralists go back to history, even prior to colonialism; among the key causes are the extreme cli-

matic conditions prevalent in the arid and semi arid regions where pastoralists reside and competition for access and ownership of scarce resources. These conditions have prevailed for as long as pastoralists themselves have been in existence.

However, certain external and inter-

nal factors in the last century have com-pounded the situation. Climatic changes and subsequent unpredictability of the weather patterns have had to detrimen-tal effects on the herd numbers (which traditionally provided safeguards against such shocks as drought and epi-demic disease as well as crop failure) and have had implications on the mobil-ity component of pastoralism which is an age –old herd, ecological and resource management strategy. Rights to pasture and water resources were

Pastoralist Conflicts; greatest threat to realisation of constitutional gains

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traditionally communal in order to guarantee access to both dry and wet season grazing which support the key pillars of pastoralism, i.e. Natural Resources, Livestock and Social institutions.

Others include pastoralists’ cul-ture and cattle raiders, the colonial legacy, government policies, and traditional and political leadership. The spiral effects of the conflicts are diverse affecting a big number of people ranging from the perpe-trators of the conflict to those who can be classified as innocent bystanders. The net effect of pas-toralist conflict is death, disability, destruction, poverty, despondency, animosity and irreconcilable suspi-cion among pastoralists especially in the northern and north eastern parts of Kenya.

Governance and Development Issues of governance and econom-ic development are central to pas-toralist conflict. They catalyze cat-tle raids and may be used to allevi-ate and eventually eradicate the practice. Consequences of cattle raids on economic development of pastoralists are also clear. This conflict has scared away potential investors, undermined infrastruc-tural development and service pro-vision while at the same time driv-ing local communities deeper into the abyss of poverty and depriva-tion. Large swathes of pastoralist areas especially in Samburu, Turkana, Pokot, Turkana, Baringo, Isiolo, Marsabit among others have been rendered uninhabitable due to cattle raids and territorial own-ership induced insecurity. Insecurity is attributable to certain factors including; vastness of the arid lands, lack of infrastructural and communication development, security apparatus and political patronage, inter and intra clan dif-ferences and recently the climate change phenomenon.

In development discourse, secu-rity is considered the central pillar in the realisation of meaningful

development and social economic wellbeing and among pastoralists it forms the causative aspect of conflict. While this is an obvious fact even to development planners and implementers in Kenya the arid and semi arid lands security issues have not been fully addressed by the duty bearers. According to security experts; the introduction of modern arms in the insecurity equation has made cattle rustling more complicated as compared to the past when tradi-tional weapons were inefficient and less destructive. They played a part in determining the frequency of raids by any group on their ene-mies.

proliferation of small arms and disarmamentThe other vexing factor is the pro-liferation of small arms through the porous borders with Ethiopia, Somalia, Sudan, Uganda and Tanzania. The lack of a compre-hensive regional arms control mechanism has not borne fruits due to myriad interests and the fact that with security presence in the pastoralist areas, most com-munities are hesitant to surrender their arms to the state. This is fur-ther compounded by the haphaz-ard disarmament approaches employed by the Kenyan govern-ment.

In 2007 a disbarment operation was launched in Samburu and Baringo districts after protracted conflict pitting the Ilchamus and Samburu against the Pokot. Government intervention included disarming the communities; how-ever, while the former surrendered their arms, the Ministry of internal security offered to arm the Pokot ostensibly to defend their live-stock. Afterwards, the Pokot con-ducted well organised raids on the disarmed Ilchamus and Samburu displacing many families and driv-ing away thousands of their herds and stock.

Drought risk reduction Programme-3Ethiopia, Kenya

Cordaid has been implementing Disaster/drought Risk Reduction pro-grammes in Kenya and Ethiopia for over a decade. The Drought Risk

Reduction Programme-3 specifically is funded by European Commission Humanitarian Aid under the Drought Cycle Management (DCM) Decision. The programme objective is to increase coping capacities of communities that are vulnerable to recurrent drought hazard and its effects. The target areas In Kenya are Marsabit and Samburu County and the pro-gramme was implemented in 2010 and 2011. In line with Cordaid implementation strategy of Civil Society Building, local NGOs’ including Community Development Support (CODES), Community Initiative facilitation and Assistance (CIFA) Pastoralists Integrated Support pro-gramme (PISP) and Pastoralist Community Initiative and Development Assistance (PACIDA) were engaged with closer technical accompani-

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The promulgation of the new constitution brought a lot of hope to Kenyans par-ticularly marginalized com-

munities. The judicial reforms that the country has ben undertaking have been revolutionary. While appraising these changes in policy, there are still challenges arising from the same. Following this major mile-stones in just under 2 years, we have to ask ourselves where minorities and indigenous communities lie as far as access to justice is concerned.

Access to justice is quintessential to the rule of law. The taskforce on judicial reforms in its 2010 report noted that communities in northern Kenya have to travel over 500km to access courts of law since most courts are situated in towns. District magistrate’s courts are located in district headquarters which are located far away in vast districts in Northern Kenya, Upper Eastern and the North Rift.

Court fees are also high with and citizens are forced to shy away from courts. Considering that 60% of the population lives in poverty, legal fees are very prohibitive. This pro-hibitive costs call for the provision of a national legal aid scheme to sup-port the people who cannot access the courts. Currently, legal aid schemes are provided by a handful

of non-governmental organizations and their coverage is still low.This statistics shows how dire access to justice among the minorities and marginalized groups.

Due to these prohibitions, these marginalized communities are forced to resort to the traditional systems of dispute resolution which are not recognized under formal law. These systems are existent in almost every Kenyan community i.e. njuri ncheke, mbai, modogashi, gada among other systems.

The constitution under Article 159however now provides an oppor-tunity for the use of traditional dis-pute resolution mechanisms. This provision provides for the promotion of mediation, reconciliation, arbitra-tion and other alternative dispute resolution mechanisms. Article 67 also mandates the national land commission to encourage the appli-cation of traditional dispute resolu-tion mechanisms in solving land dis-putes.

In previous years, the problem has always been the implementing laws to such provisions. The situa-tion has always been where the pro-cedural law does not reflect the prin-ciple intent in the substantive law. These procedural regulations have been adversely left out in the cur-rent wave of judicial reforms. There

A Ray of Hope Access to Justice after the Constitution in marginalized areas

ment by Cordaid team. The programme has four results which

include:1. Increased access to good quality water and sanitation and enhanced capacity to sustain and maintain water supply during periods of drought.2. Improved management and diversification of livelihood assets.3. Enhanced disaster preparedness and response capacity at the level of communities and local institutions4. Enhanced awareness and political and institu-tional support for Community Managed Disaster Risk Reduction.

highlights of achievements:Result one: over 40,000M3 of water availed

through provision, constructions and rehabilita-tion of dams, sand dams, spring protection, roof-catchment plastic tanks and underground masonry tank. Where a facility had multiple use, quality aspect for human consumption was inte-grated with construction of filter wells at the dam sites and linking communities with Government public health office to access water purifying agents. Others include awareness on hygiene and sanitation and strengthen the man-agement of these facilities. Borehole Rapid Response Team strengthened through training and equipments for improved early response to breakdown especially during drought period when the livestock population at the strategic borehole are high.

Result 2: Herd diversification from grazers to browsers (Goats and camel) were undertaken in both Marsabit and Moyale county with over 150 women headed/very vulnerable HH receiving either 1 or 2 camel heifer or 10 goats. Support to trader groups and Drylands farming to improve crop water use, disease control and management and linkage with private sector in form of skills transfers and equipment support are other achievements

Result 3: To improve local disaster prepared-ness and response capacity, efforts were target-ing institutional support to model CMDRR com-munities. These are a kind of learning centres where all basic principles of CMDRR are imple-mented.

Result 4: strengthening of local level actors capacity on CMDRR, engagement in policy dia-logue related to drought risk reduction and Disaster Risk reduction in general and support to the University of Nairobi to develop DRR curricu-lum.

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is need for procedural regulations for traditional courts to exercise justice.These traditional systems are based on the customs of the communities. Recognition of these customary systems will promote restorative justice. There is need therefore to push for legislation to implementing laws reflecting the princi-ples established under the constitution.

Marginalization has led to a dearth in legal services in Northern Kenya and other marginalized areas. Paralegal sup-port to these communities is of the utmost importance. There is need to support this paralegal programme con-sidering that pastoralists make up 25% of the national population and 1.7 mil-lion children in pastoralist areas remain out of school. According to an IELRC report, by 2009, there were 1000 trained paralegals but were confined to a radius of 150km from Nairobi.This will also include the push for a national legal aid scheme to assist poor and marginalized citizens to access justice.

Of concern has also been the imple-

mentation of judicial decisions to mar-ginalized communities. The Ilchamuscommunity for instance is yet to get a constituency following a 2002 recommendation by the high court. The same has not been reflected in the IEBC preliminary report of 2012. The high court in another suit recommended the formation of a commission of inquiry into the Mathenge (prosopis Julie flora) which had caused damage to the Ilchamus community. This commission is yet to be realized.The Endorois com-munity too is still waiting for the gov-ernment to implement the ruling by the African court for peoples and Human Rights (ACPHR) of 2010. The ACPHR ruled in favor of the Endorois communi-ty who had been moved from their ancestral land in Lake Bogoria. The court restored the social, economic and cultural rights of the community in their ancestral land at Lake Bogoria.

Areas inhabited by minorities and indigenous peoples are always the sub-ject of conservation programmes,

development programmes, promotion of tourism among other economic ven-tures. These ventures have infringed on the rights of minorities and indigenous peoples on their land. In January 2012, the save Lamu Initiative filed a suit against the government opposing the proposed LAPPSET project. The project will displace minority communities liv-ing in Lamu and stifle the biodiversity of Lamu.

With the country undergoing policy, constitutional and institutional reforms, the ray of hope has never been bright-er. This current state of affairs necessi-tates internal affirmative action from all stakeholders working with minority and indigenous communities. Minority and indigenous communities should seize this opportunity to make their voices heard. This therefore calls for mobiliza-tion and intensive engagement with the government agencies to ensure that the necessary policies and laws incorporate the views and recommendations of minority and indigenous peoples.

MEN DISCUSS TO REACH A vERDICT ON CONFlICT

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A reaction to Bills Gates’ article titled “The truth about foreign aid” which appeared in the New York Times online

(26/01/2012) and in The International Herald Tribune (27/02/2012)

As a Belgian NGO aiming to improve the well-being of disadvantaged African livestock farmers, VSF Belgium supports Bill Gates’ reaction to the anti-foreign aid establishment that is using the report of Oxfam and Save the Children to argue that aid doesn’t work. According to this report, emergency aid in the Horn of Africa came too late, at high costs in terms of lives and money. In fact, prevention is always better and cheaper than cure. We all know that having a healthy life will keep diseases away and medical bills low. But that doesn’t mean that we should not inter-fere when people are sick or dying. We can’t let people suffer if we can save their lives and the assets on which their livelihoods depend.

new seeds not always a solution in arid lands

If we want to fight poverty and hun-ger through foreign aid, we need to support small-scale farmers. According to FAO almost 80% of undernourished people worldwide live in rural areas, and most of them depend on agricul-ture, which includes livestock keeping. However, if we only focus on the crops, we forget that more than one billion poor people depend on livestock to pro-vide essential nutrition and livelihoods.

New seeds to increase crop produc-tion will not eliminate hunger. In fact, hunger is caused not only by a lack of food availability or productivity, but also by a lack of access to food. There is enough food in the world to feed every-body, but poor farmers don’t have access to it, partly due to a lack of reve-nue or infrastructure. Excessive con-sumption habits of rich consumers - the world’s richest 20% consume 80% of available resources - industrialised agri-culture and speculation on food are some of the main reasons for hunger in poor rural areas. As long as there is

speculation on food - treating it as a commodity - prices will fluctuate widely and farmers will be subjected to the whims of international traders reacting on market information.

Arid and semi-arid lands are less suitable - and sometimes not suitable at all - for growing crops. They constitute 80% of the Horn of Africa; with an esti-mated population of 70 million people. Here, herding livestock often makes better technical and economic sense than growing crops. In the drylands, crop cultivation needs intensive irriga-tion, which is expensive and often impractical - indeed wasteful of pre-cious water. And, be conscious, over 90% of the meat consumed in East Africa comes from pastoral herders. Encouraging all pastoralists to switch to growing crops or to move to cities is not realistic and may even have danger-ous economic, social and environmental consequences.

livestock is mobile, crops aren’tPastoralists have always suffered from periods of cyclic drought, leaving out of

Bill Gates, seeds alone will not end povertyMINDING PRECIOUS POSSESSIONS

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Bill Gates, seeds alone will not end povertydiscussion the climate change of recent years. As rainfall is dispersed in time and space, pastoralists move with their herds to find water and pasture. Areas of rainfall are often found ‘only’ a few dozen kilometres away. Thanks to strong traditional institutions and care-ful natural resource management, graz-ing areas are reserved for dry periods so that the herds can survive. Pastoralists know how to cope with recurring droughts, if they have the mobility to do so. They master sophisti-cated production strategies that have allowed them not only to survive during these harsh periods but even to pro-duce substantial economic value during better times. Pastoralists move with their herds in order to take advantage of erratic concentrations of resources within and between years, whereas obviously they would not be able to move their crop fields.lack of support to pastoralistsOver the years, pastoralists are faced with a gradual decline in available graz-ing lands and watering areas as a result of conversion to other uses. Although

these areas are essential for feeding animals during periods of drought and in the dry season every year, they are now often converted to irrigated crop-land or nature reserves or have been monopolised by private companies or foreign governments through ‘land grabbing’. Compounded by population growth, the disputes between tribes constrain the mobility of livestock keep-ers and their access to water and pas-ture. Each month, dozens of pastoralists die as a result of armed cattle rustling, sometimes instigated by outside agen-das - political or commercial.

Unfortunately, many African and international decision-makers do not recognise the economic role of pastoral-ists and do not address their needs ade-quately. Pastoralists get little support, livestock trade across borders is hin-dered, veterinary services are inade-quate and badly coordinated and cer-tain areas are inaccessible due to con-flicts or inappropriately sited infrastruc-ture. Numerous African countries aim for the ‘modernisation’ of pastoral com-munities by encouraging them to settle.

However, there is ample scientific evi-dence that pastoralism is one of the most sustainable ways to exploit dry-lands.

Taking into account the important role and opportunity of pastoral live-stock keepers for arid and semi-arid lands in Africa will improve foreign aid efficiency and the global fight against hunger and poverty. We don’t always have to invent new technologies; facili-tating traditional knowledge and local innovation combined with ‘modern’ insights can offer sustainable solutions for pastoralists to cope with future chal-lenges. Supporting the mobility of pas-toralists in an enabling policy environ-ment will help them to cope with cli-mate change and to get out of poverty.

Adopted from an article by Vétérinaires Sans Frontières Belgium, on behalf of the Coalition of European Lobbies for Eastern African Pastoralism (CELEP): www.vsf-belgium.org / www.celep.info

Full version of the article available at http://www.vsf-belgium.org/english/?lang=eng

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By hannah askew

A comprehensive report issued by the United Nations Food and Agricultural Organization (FAO) in 2010 on the statuto-

ry recognition of customary land rights in Africa argues persuasively that “Protecting and enforcing the land claims of rural Africans may be best done by passing laws that elevate exist-ing customary land claims up into nations’ formal legal frameworks.” Based on in-depth case studies of exist-ing community land laws in three African countries (Botswana, Mozambique and Tanzania), the report offers a number of useful recommenda-tions for law-makers drafting legislation that incorporates customary land tenure into the statutory regime.

The report is timely given the 2010 Kenya Constitution’s recognition of property rights in community-held land and the proposed Community Land Bill (currently in the drafting stage) which will define the scope of those rights. As the FAO report emphasizes, rather than creating new legal frameworks, or adopting laws similar to those found in western nations, the most effective land tenure systems are those that are based in the daily life and lived realities of the people to whom the legislation will apply.The incorporation of customary law into statute is a complex and chal-lenging task and the FAO report’s rec-ommendations are useful because they provide a number of helpful insights rel-evant to the drafting of Kenya’s new Community Land Bill. The full report is long (nearly 300 pages); however, some of the key highlights of the report are listed below: 1. “Make customary land rights equal in weight and stature to ‘formal’ statutory land rights.” The legislation should explicitly recognize customary land rights as being equal in weight and validity to formal land rights granted by

state agencies. Customary land rights should be recognized regardless of whether or not they have been regis-tered, however, the law should also pro-vide the opportunity to communities to register their rights voluntarily and according to their own need.2. “Leave ‘custom’ largely undefined.” Custom should be defined in a flexible way to ensure maximum inclusion and to allow for change and adaptability of customs over time. The legislation should allow each community the space and freedom to define its own rules and practices regarding lands as currently practiced and in response to changing circumstances. Furthermore, customary law should be allowed to develop slowly and in response to changing local needs, in the same way that the com-mon law has evolved. The development of customary law should be allowed to develop as freely as possible, with the

caveat that basic human rights stan-dards are observed, consistent with the Constitution.3.”Provide for and encourage the cre-ation of land natural resource manage-ment plans that ensure sustainability.” Legislation should provide for communi-ty-based decision-making procedures and protocols that vest land and natural resource management decisions in the communities themselves. The legisla-tion may also provide mechanisms to encourage communities to identify and record customary land and natural resources management practices that have proved successful in the past. In the future, these practices may be con-solidated and stored to provide a valu-able national resource for environmen-tal management.4. “Create local land administration and management structures that come out of - and look much like- existing local

recommendations for How to incorporate Customary land laws into statute

PROUD OF THEIR CUlTURE

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and customary management structures; are easily established; are highly accessi-ble; and leverage local individuals’ inti-mate knowledge of local conditions.“ It is critically important to ensure that rural community members can easily access and use the formal legal system- if communities cannot use it, then even if customary land claims are formally recognized by legislation, communities will still remain vulnerable to land spec-ulation by elites and investors.5. “Locate customary land administra-tion and management systems close to the land and communities they govern.“ If land management systems are located too far from the land that they are empowered to administer, then they are unlikely to prove either effective or effi-cient. The customary authorities or bod-ies charged with the management of community land should be local, or at least able to travel easily, so that they can make regular visits to the communi-ties they mange.6. “Establish land administration and management systems that are free or extremely low-cost for the poor.”This should also include the provision of land surveying services for free for all com-munities.7.“Include accessible, pragmatic and appropriate safeguards against intra-community discrimination.” It is impor-tant that formal strategies to ensure that women’s and other vulnerable group’s land rights are protected within custom-ary land management bodies. In order to ensure their protection, legislation could create community leadership structures that incorporate both custom-ary leaders and elected members, with women and minority groups constituting a mandatory percentage of the elected members.8. “Explicitly and clearly protect wom-en’s and other vulnerable group’s land claims and establish women’s right to hold or own land.” It is not sufficient for legislation to merely proclaim that women have the right to own land. Rather, the legislation must address in a practical way the web of reasons due to which women are not allowed to hold land individually within certain custom-ary systems (for example, the practice in some communities of girls leaving to join their husband’s communities at the time of marriage). Legislation should

also place the burden of enforcing wom-en’s land rights on local officials rather-than on the women themselves, since it may often be difficult for women to enforce their rights, especially when to do so is contrary to community norms. Additionally, legislation should require that the names of all spouses and dependents be included on any formal registration of family property.10. “Establish good governance in land administration.”It is important that the laws put in place mechanisms to ensure both upward and downward accountabil-ity for customary leaders and state offi-cials. Examples could include legislating penalties to be imposed on state officials who contravene the law’s mandates, and creating easily accessible dispute resolu-tion mechanisms to provide a forum for appeals of community land decisions.11. “Proactively address issues of political will.”In looking at case studies of other community land laws, the FAO report found that lack of political will was a major impediment to the effective implementation of statutory regimes recognizing customary law. The drafters of legislation should take this into account and create context specific laws that include mechanisms that serve to foster and promote the political will nec-essary for the comprehensive implemen-tation of all aspects of the law to be achieved.12. “Create powerful new roles for state officials.“In cases where the traditional duties of state officials are devolved to customary bodies, meaningful new roles and responsibilities should be created for them. This will ensure that state offi-cials have an incentive to embrace the new system, rather than experience it as a loss of authority. State officials must play a role in enforcing the land rights of women and other vulnerable groups and act as a safeguard against possible abus-es of power by customary authorities towards less powerful community mem-bers. State officials may also provide technical advice and capacity building to village-level land and resource manage-ment bodies, assist communities in negotiating and enforcing contracts with investors on their land, and train com-munity leaders in national laws.13. “Establish a clear system of judicial appeal leading straight from the lowest level of local customary conflict resolu-

tion all the way to the highest court.”The customary and formal legal systems should be smoothly merged, so that applicants do not experience a discon-nect. Appeal systems should be easily accessible to the poor and customary decisions should be recorded for use by higher level tribunals. Customary authorities and judges should also train each other so that each is well-versed in the rules of both systems and can apply and understand the rules when making their decisions.14.“Align legal proof of land claims with customary practice by formalizing land-scape-based evidence and allowing oral testimony as proof of land rights. Land-based evidence should be admissible and the legal weight of public oral testi-mony should be equal to that of paper documentation and testimony under oath.15.“Legal representation should be man-datory for communities during negotia-tions concerning land-sharing agree-ments with investors.” Similarly, agree-ments made with investors should be written down and considered to be for-mal contracts, enforceable or voidable according to the rules of contract law.16. “Recognize that customary rules and statutory laws are often not radically dif-ferent.” Societies around the world have created surprisingly similar strategies for addressing property transactions and relations. When examined closely, the differences may not be as great as peo-ple imagine. Legislators should start by learning to understand customary laws and identifying overlapping areas that may be help towards devising creative ways to integrate statutory and custom-ary law.conclusion:The question of how best to protect the land tenure security of poor and minority communities in Kenya is an urgent issue as land scarcity is intensifying.The pro-posed Community Land Bill must provide stronger protection for the land rights of Indigenous and other minority communi-ties, and a critical step towards achieving this objective is the elevation of custom-ary land law into statute. The FAO’s 2010 report provides useful insights on best practices for legislation in this area which should provide valuable assistance for the drafters of Kenya’s forthcoming Community Land Bill.

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Disaster risk Management, food security and Climate Change: Policy implications for Pastoralists and Pastoralism.By safia aBDipolicY oppoRtunities

As the country goes through various reforms, attention needs to be given to the policy and institutional

opportunities that abound which if effected will highly contribute to appro-priate response to the stated disasters. The following is a synopsis of some existing policies, strategies and institu-

tions that are expected to deal with disaster risk management, food security and climatic change.

the national Disaster Management policy The drafting process for the National Disaster Management started over ten years ago. In the years 2010/2011 the policy was reviewed to align it with the new constitution.The policy emphasizes

on a number broad based strategies in dealing with disaster.

It recognizes that disaster manage-ment involves the management of both risks and consequences of disasters that would include mitigation, pre-paredness, response and recovery and calls for community involvement in pre-paredness programmes aimed at pro-tecting lives and properties.

The Policy further gives priority to

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non- structured disaster mitigation measures such as community disas-ter preparedness training, advocacy and public awareness.

While embracing scientific research and application of modern technology (EWS) in disaster man-agement, it also gives equal credence to the role of indigenous knowledge and coping mechanism

national Drought Management authorityThis is an authority to be charged with drought management gazetted in December 2012. The institution is charged with taking leadership on drought related matters.nairobi strategy on ending Drought emergencies

Kenya has developed a country programme paper as part of theNai-robi Strategy on Ending Drought Emergencies. The programme paper will work on key areas that Peace and security; Infrastructure ( roads, water and irrigation, and energy);

Building human capital ( education, health and nutrition); Building sus-tainable livelihoods in a context of climate change; Humanitarian relief; and Creation of effective institution and financing framework (NDMA, NDCF)

national climate change Response strategyKenya has in place a National Climate Change Response Strategy Paper and is currently developing an operation plan for the implementation for the strategy.The need for pastoralist communities and CSOs to effectively participate in theoperalisation of this strategy cannot be overemphasized.

Draft Climate Change BillThis bill is currently in place fol-

lowing years of collaboration between the government of Kenya and Civil Society Organisations and the input of community representa-tives across the country. The enact-ment of the bill into legislation will pave way for effective response to

the effects of climatic change with minimal adverse effects to vulnerable communities such as pastoralists.food security and nutrition policyThis policy was approved by the cabi-net in August 2011. The policy focuses on food availability and access, improved nutrition for health, stabili-ty of access and improved for infor-mation on food and nutrition

what pastoralists need to doFor the policies to be useful to pasto-ralist communities in the country, the pastoralists communities need to be proactive in:• Participating in the policy making and implementation processes• Lobbying and advocating for the implementation of these policies.• Organize ourselves to amplify the voice of their concerns• Monitor and evaluate the effective-ness of the implementation of the policies and hold to account the gov-ernment in this regard

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The Kenya Pastoralists’ Week (KPW) is a multi-stakeholder partner-ship project bringing

together an array of alliances drawn from individual pastoral-ists, pastoralists’ associations, government, private sector, academia and mainstream civil society to engage and propose solutions to issues that affect pastoralists.

A National Steering Team (NST) convened by CEMIRIDE commenced meetings to plan for the KPW 2011 in September 2011. The Steering Committee comprised of three main organ-isations namely Centre for Minority Rights Development (CEMIRIDE), Pastoralists Development Network of Kenya (PDNK) and the League of Pastoralists women of Kenya (LPWK). The NST was chaired by Hon. Abdullahi Wako who doubles as a member of the Pastoralists Parliamentary Group (PPG) and the CEMIRIDE Board Treasurer.

The NST worked under the guidance and support of a stakeholders commit-tee comprising of grassroots community based organisations, national non-gov-ernmental organisations, the Government of Kenya and international donor organisations with a strategic focus on pastoralist issues.

Each year heralds a new theme for KPW, around which stakeholders build evidence and invent advocacy strate-gies. The theme for KPW 2011 is “Constitutional, Policy and Institutional Reforms – Impact on Pastoralists and Pastoralism”.The overall goal was to

enhance the involvement of pastoralist communities in the constitutional, poli-cy and institutional reform process and thereby uplift their social, economic, political and cultural status.

The activities scheduled for the KPW 2011 included zonal campaigns; 3 Days National Forum, Celebration of the UN World Human Rights Day, Publication of the Pastoralists Post, 3 Days Pastoralists’ Cultural Exhibition, Gala Night. This article focuses on the key recommendations made and resolutions arrived at during the KPW 2011 activities

For a full report on KPW 2011 kindly visit www.cemiride.org

Resolutions anD RecoMMenDations fRoM the kpw 2011 eVents

To the National Steering CommitteeThe Secretariat should prepare KPW

reports and disseminate these to all stakeholders for action. These should be accompanied with of DVD forum pro-ceedings

The NST should intensify and devote more time tozonal campaigns to ensure effective participation by community members

The NST should consider holding the national forum at the grassroots level to ensure increased participation

KEnYa Pastoralists WEEK 2011: recommendations and resolutions

TURkANA wOMEN IN A bARAzA

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The NST should publish the achieve-ments of the KPW forums since the maiden one in 2003

The NST should increase its engage-ment, lobbying and advocacy with all relevant actors to ensure the implemen-tation of recommendations passed dur-ing KPW activities.

The NST should write a memorandum to the Minister for Immigrations high-lighting the plight of marginalized com-munities in relation to citizenship rights and procurement of identity documents

To the Pastoralist Community Members

Participate, monitor and report on all constitutional implementation processes

Influence the membership of the National Land Commission and other constitutional institutions to ensure con-siderationof their concerns

Seek legal redress should the National Lands Commission lack suffi-cient representation of pastoralists

Take personal responsibility in avoid-ing conflict in the region. which ham-pers government development efforts

Take advantage of the five-year peri-od provided by the legislation on citi-zenship to procure identity documents

Elect leaders of high integrity who will safeguard their welfare.

Stop cultural practises that relegate secondary status to girls and women

Women should take up the constitu-tional leadership positions

Youth should participate in trade fairs and other forums to market their prod-ucts and gain market linkages. They should also apply forsupply tenders for county projects. Theyshould visit the CDF to get loans from the Youth Enterprise Fund.

Lobby their community members in a positions of influence to ensure their concerns are addressed in policy and law

Take advantage of the ease of access to justice as provided by Article 48 of the Constitution to seek redress for the violations of their rights

Support paralegals through available resources as the paralegals provide legal services that far outweigh the support they need.

Women shouldparticipate in conflict resolution by disarming their husbands and sons

Invite the media during cultural events to showcase their rich and diverse cultures instead of always broad-casting the calamities in the regionIn tackling discrimination, pastoralists should begin by eliminating the discrimi-nation between pastoralist communities and between clans within one communitythe Government of kenya

All reforms processes should include the participation of pastoralist commu-nity representatives

Individuals selected to serve in the National Land Commission should be people with integrity and credibility and there should be no discrimination against pastoralist candidates

Affirmative action to be undertaken in providing additional mobile schools, Teachers Training colleges and Universities to address the issue of illit-eracy.

Introduce effective methods of irriga-tion and tackling food insecurity

Improve access to justice by legally adopting traditional dispute resolution mechanisms

Put in place specific legislationto pro-mote culture and protect intellectual property rights

Support and work in partnership with civil society organisations to promote the well-being of pastoralists in contrast to frustrating their efforts

Recognize, utilize and help the elders in performing their leadership duties.

Allocate representative slots at all county level communal land boards in areas where pastoralists reside.

Halt the allocation and transfer of communal and pastoral land during the constitutional transition phase to safe-guard the security of land tenure by these communities.

Provide National Land Commission offices at the county level for improved accessibility

Enact law to ensure that land belong-ing to pastoralists is not be transferred to non-pastoralists

Create a Ministry of Peace and Reconciliation to cater for inter-ethnic

conflicts and promote peaceful co-exis-tence.

Create and ensure structures serve their intended purpose. For instance,the AFC should use funds granted to offset pastoralists’ loans for the right purpose

Domesticate into local legislation the African Union Pastoralists Policy Framework

Establish a Livestock Marketing Enterprise Fund, a regional Heritage Centre and enact a Livestock Compensation Act civil society organisations

Intensive civic education to be con-ducted to enlighten the communities on their rights

The Kenya National Human Rights and Equality Commission should liaise with the Truth Justice and Reconciliation Commission (TJRC) to ensure that justice is provided for in all cases historical injustices against pastoralist communi-ties as reported to the TJRC by the com-munity members.

The Kenya National Human Rights and Equality Commission should expand its operations to the 21 pastoral dis-tricts/counties.

There is need to provide support to special scholarships for doctors, engi-neers and economics to enable harness-ing of resources in pastoralists districts

The Pastoralist Council of Elders should be decentralised to all counties-and that representative elders to the council need to be elected by the com-munity members. The members should also include women

Economic Forums should be created to enable harnessing of valuable resources found in pastoral areas as this will increase ownership and prevent external actors from harnessing resourc-es in pastoral areas without their con-sent or consultation.

There is need for CSOs, NGOs that have interest in pastoral issues to facili-tate more forums for pastoralist commu-nities to engage and articulate their issues of concern and these organisa-tions should further increase their sup-port to activities that improve the wel-fare of the communities to complement the government’s insufficient efforts.

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T e c h n i c a l T u r K a n a c o u n T y

‘Why should we, the Turkana people, live in so much poverty when there are funds to initi-ate development just like in other parts of the country? The question we keep asking ourselves is, where does the money go? What can we do about it as a com-munity?’ Mary Kakon, community social audi-tor, Turkana Central District.

Turkana County on the northern region of Kenya, has a population of almost 900,000.1It is hot and dry, and water is often scarce. It is inhabited by nomadic herders who rely on their cattle, camels, goats, sheep, and donkeys for a living. They have learned to live in their harsh land-scape and have a strong sense of kinship and com-munity.

With 94 per cent2 of the population living below the poverty line, Turkana is one of the country’s poorest counties. This is partly because the Turkana people have remained marginalised in the country’s development process. And as a result, their access to employment and basic

services is limited. Kenya ranks 128 out of 169 countries

in the 2010 Human Development Index.3 As the table above shows, there are also huge inequalities between peo-1 009 Kenya Census2 Ministry of Planning report, Kenya, 2008.3 Human Development Report 2010, UNDP

ple in different regions, with pastoralist areas like Turkana being among the poorest. It is a patriarchal society, where the position of women lags behind that of men. It comes 143 out of 187 on the United Nations Index of gen-der inequality. And despite the 2007 elections leading to 80 per cent of MPs in Parliament being new, endemic cor-ruption and significant economic and social problems remain.

One positive step in terms of gover-nance has been the introduction of devolved budgets, where the use of

funds is decided by a local committee rather than central government. This opens up opportunities for economic development and improved perfor-mance at local level. The funds include those for youth, women, people with disabilities, road maintenance, electrifi-cation, HIV/Aids, poverty and drought.

One of these, the Local Authorities Transfer Fund (LATF), provides funds to Local Authorities to improve service delivery to the public, to improve finan-cial management and accountability and to reduce outstanding debts. Each year,

‘Where does the money go?’ Citizen Participation in turkana County, Kenya

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five per cent of national income tax is allocated to the LATF. Local Authorities are supposed to combine the LATF mon-ies with their own local revenues to implement services and investments at local level. Another fund, the Constituencies Development Fund (CDF), aims to ensure that 2.5 per of govern-ment revenue is devolved to the constit-uency for the purposes of development and poverty reduction, particularly through grassroots wealth creation. Both of these funds should be used to improve participation and governance at local level.

‘We want to bring change to this village. We are lacking essential facilities like schools, hospitals and even good roads, yet money was provided by the central government and it’s not being put to good use’. Nelly Nacham, Women’s group member, Loima district, Turkana County.

It is against this background that Oxfam GB-Kenya Programme, in part-nership with the European Commission, decided to implement the ‘Community Engagement in Good Governance’ proj-ect in Turkana County. The project’s overall objective is to ensure that the rights of poor and marginalised men and women ‘are assured through their inte-

gration into political, social and econom-ic systems at community, district and national levels’.

The first step was to survey how much the community were aware of, and involved in, decisions about local authority funding of community proj-ects. A study was conducted of more than 700 people in 15 locations of the three administrative districts of North, Central and Southern Turkana. More than half the respondents were women.

Respondents were asked to prioritize local authority services. This showed clearly that they felt their priorities were basic practical needs such as clean water, reflecting the high levels of pov-erty in the area.

Next, the survey sought to under-stand levels of community participation in local authority processes. It focused on Local Authority Service Delivery Action Plans (LASDAP). These are sup-posed to be participatory planning pro-cesses linking locally developed plans with Local Authority budgets as part of the Local Authority Transfer Fund. Technically, communities are legally bound to participate. However, the sur-vey found that 82 per cent of respon-dents had never heard of LASDAP and only five per cent had actually participat-ed in meetings. Another survey showed

that 65 per cent of community members in Turkana feel they do not have a role to play in ensuring public services are

properly managed.

‘Some projects we see here in our village are not worth the amount of money that we are told has been spent on them. We want to make sure that the individuals responsible take responsibility for their actions. It is simply unacceptable; people cannot continue to suffer like this in poverty’. Community member, Benard Lokwamur, Community social auditor,

Turkana Central DistrictIt was clear from these surveys that

communities wanted to know more about how they could participate in deciding how the funds were spent - and making sure this was done properly. So the project took time to educate com-munity members on good governance, responsible citizenship, decentralized funds, project identification, prioritiza-tion, monitoring and evaluation, and how to engage in social auditing and

public expenditure tracking. After each community sensitisation

session, people were given a chance to select individuals who could be trained further as social auditors. This helped to

instil a sense of commu-nity ownership of the process. Each social audit group had an average of 10 members, generally half women and half men. Due to familiarity with the local set up, the members quickly identi-fied relevant projects, as

the example below shows.

Kenya and Turkana District1

Literacy (%)

School enrol-ment rate (%)

Households with no access to safe water (%)

Children underweight (%)

GDP Index

Human Development index

Kenya 71.4 70.5 43.0 20.0 0.4447 0.5608Turkana 16.9 39.3 59.2 34.5 0.2243 0.3331

1 Kenya Human Development Report, UNDP 2009

What are the services that local authorities should provide?

Service Percentage of responses (%)

Ensure I get clean water 78Plan, build & maintain roads 64Health services, housing & schools 60Promote development of markets, slaughter houses 55Garbage collection & environmental cleanliness 44Maintenance of sewerage system 39Enhance security 22Provide services to prevent and fight disaster e.g fire 21

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Article 56 is a working group comprised of mainstream national and grassroots Civil Society

organizations focusing on minority and indigenous peoples’ rights. The working group was a culmination of a two day forum organized by CEMIRIDE in January 2012 at Nakuru.

The name ‘Article 56’ is derived from the provision of Article 56 of the constitution which provides that the government shall put in place affirmative action programmes aimed at ensuring that minorities and marginalized groups;a) Participate and are represented in governance and other spheres of lifeb) Are provided special opportuni-ties in educational and economic fieldsc) Are provided special opportunities for access to employmentd) Develop their cultural values, lan-guages and practicese) Have reasonable access to water, health services and infrastructure

The forum brought together rep-resentatives of Minorities and indig-enous communities from across the country. There were representatives from North Rift, Upper Eastern, North Eastern, South Rift and Lamu. Diverse interests were represented at the forum including Pastoralists, Ethnic minorities, Fisher peoples, Hunter gatherers, women organiza-tions, youth organizations, Persons living with disability, the donor com-munity and national organizations representing minority and indige-nous peoples.

The working group was necessi-tated by the quick pace of reforms

the country is undertaking towards implementation of the constitution. There was realization that minority and indigenous communities could lose out on the gains of the new constitution during the implementa-tion period. Minority and indigenous peoples were not being adequately represented in the national process-es that were ongoing. Further to this, the constitution sets out peo-ples’ participation as an important national value. Participation is meant to ensure inclusivity and protection of peoples’ rights. History has shown that inclusivity and participation are best achieved when people come together as one, under one network.

The purpose of the forum was to ensure that minority and indigenous communities are represented in the constitution reform agenda. Representation here would be achieved by ensuring that their views and expectations are provided for in the legislation to be passed towards implementation of the con-stitution. The objective of the work-ing group was to come up with an action plan for the effective partici-pation and representation of minori-ty and indigenous peoples (MIPs) in the implementation of the constitu-tion. The forum was timed at a peri-od when the country was undergo-ing extensive constitutional, policy and institutional reforms.

Centre for Minority Rights Development (CEMIRIDE) would be the secretariat to the working group. CEMIRIDE would also provide a pro-gramme officer to coordinate the activities and operations of the working group.

Article 56 was charged with the roles and responsibilities of: • Bill tracking; this would include coordination of information to grass-roots organizations and compiling of memoranda. To this effect Article 56 would engage with the Commission on Implementation of the Constitution (CIC) at different levels. Article 56 would liaise with the Pastoralist Parliamentary Group and other stakeholders in the policy pro-cesses through holding briefings. • Networking and coordination; the working group would devise strate-gies of engagement within the net-work and with other stakeholders aimed at ensuring effective partici-pation in the ongoing constitutional implementation process.• Dissemination; the working group would ensure timely dissemination of information to the various groups in the network.• Lobbying and Advocacy at the national and grassroots level; this would be conducted through CSOs at the grassroots level. Advocacy at the national level would be realized through press briefings on the stand of minority and indigenous commu-nities in national processes. • Fundraising in order to sustain the operation and activities of the net-work.

Article 56 comes at a time when the country is undergoing major constitutional reform processes. It aims at ensuring that the legislation to be passed during the implementa-tion period contains a provision for minority and marginalized communi-ties. Perhaps, there is light at the end of the tunnel.

artiClE 56: The Working Group for Effective Participation of Minorities and Indigenous Peoples in the Constitutional Reform Process

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