CONSTITUTION OF KENYA REVIEW COMMISSION
(CKRC)
NATIONAL CONSTITUTIONAL CONFERENCE
(NCC)
Verbatim Report of
PRESENTATION OF THE REPORT OF THE TASK FORCE ON AD HOC COMMITTEE ON CULTURE HELD AT THE BOMAS OF KENYA
ON
20TH AUGUST, 2003
CONSTITUTION OF KENYA REVIEW COMMISSION
NCC - PRESENTATION OF THE REPORT OF THE TASK FORCE ON AD HOC COMMITEEE ON CULTURE HELD AT BOMAS OF KENYA ON 20.08.2003
Meeting was called to order at 9.30 a.m.
PLO Lumumba: I request Lorna Laboso, Asenath Nyamu and Were Domtila to kindly come forward to take the oath in a few minutes. Lorna Laboso, Asenath Nyamu and Were Domtila, kindly come forward.
Prof. Yash Pal Ghai: Please take your seats. We shall start with prayers in one minute please. Good morning, Ladies and Gentlemen. Baldip Singh Rihal, Ms. Beatrice Mwaringa and Sheikh Ali Shee will say the prayers this morning. So I will first call upon Mr. Rihal, then Mwaringa and then Sheikh Ali Shee. Please stand up for prayers.
Hon. Delegate Baldip Singh Rihal: Let us pray. Oh Supreme God, Absolute All-pervading, the Eternal, the Creator of the universe, the Cause of causes without enemity, without hate, both eminent in your creation and beyond it. You are not the God of one nation but the God of grace. Oh God, Delegates to the National Constitutional Conference have gathered for the second and most critical stage of the Constitution writing for Kenya. We pray that you give the Delegates the wisdom and selfless sense of service to write a new Constitution for Kenya. Oh Supreme God, we pray for your mercy and blessings on all people of this nation.
Hon. Delegate Sheikh Ali Shee: Bismilahi Rahman Rahim. Kwa jina la Mwenyezi Mungu, mwingi wa rehema na subira na hekima, tunakushukuru kwa kuungwa mkono na wewe katika kazi ngumu ambayo tumekuwa tukiifanya. Utupe nguvu zako, utupe busara, utupe uwezo wa kuvumilia na kusubiri katika shida zote ambazo tutazipata. Utulinde katika hali iliyo bora, ulinde taifa letu lote. Uwape wananchi wetu nguvu za kusubiri na kuvumilia. Ewe Mola, tunakuomba wewe, hatuna mola mwingine. Wewe ndiwe mwenye miliki ya ardhi na mbingu. Tupe uwezo wa kuweza kufanya kazi hii ya Katiba, tuweze kutoa Katiba iliyo nzuri ya kunufaisha vyumbe vyako vilioko katika nchi hii. Utupe uhusiano mwema, utupe kila la kheri na baraka, utuondolee fitina, utondolee wasiwasi, tunakuomba hatuna mwingine wa kumuomba ila ni wewe, utubariki. Amen.
Hon. Delegate Beatrice Mwaringa: Baba Mwenyezi Mungu, tunakuhimidi asubuhi hii ya leo kwa sababu ya uzima ambao umetupa. Mungu tunajua kwamba ni wengi waliotamani kuiona siku hii ya leo, lakini Bwana hawakuweza. Sio kwamba wao ni wenye dhambi kushinda sisi, lakini Bwana tunajua una lengo nasi katika asubuhi hii ya leo na mchana huu wote. Tunaweka kila jambo katika mikono yako ili Bwana wewe utuongoze.
Sisi wenyewe hatuwezi na tunajua ya kwamba umetupa jukumu kubwa la kufanya katika nchi yetu hii. Ni wewe tu ndiwe ambaye ulituchagua kwa sababu sisi wenyewe hatungeweza kufanya hivyo, lakini ulituona. Basi Bwana tunaomba uwezo wako uingie katika kila mmoja wetu, ili Bwana lile lengo ambalo ulituitia hapa litimie. Tunajua ya kwamba Wakenya wote wametia tumaini lao kati ya Wajumbe hawa. Basi Bwana waongoze, wao wenyewe hawawezi kufanya, lakini wewe ukiwa katikati yetu tunajua yote yatatendeka. Nasi tuna imani kubwa ya kwamba ingawaje tuko kabila mbali mbali hapa, tuko na dini mbali mbali, lakini Bwana umetupa uwezo wa kuja pamoja, ili sote tufikirie Kenya yetu kama kitu kimoja. Bwana tupe uwezo huo, tupe amani katika jengo hili, hasa kwa siku hii ya leo. Ondoa michafuko yote ambayo shetani yuko tayari kuiweka. Tunajua ya kwamba wewe ukiwapo hakuna yeyote ambaye anaweza kufanya lolote.
Bwana tunatumaini kwa sababu wewe ni Mungu wa uwezo, ni Mungu wa mapenzi na unatupenda ndiposa ukatuweka pamoja ili tujifikirie maisha yetu ya baadaye. Basi Bwana utende hayo kwa mchana huu wa leo, nasi tunaamini ya kwamba yatatendeka maana uwezo wako ni mkuu, hakuna ambaye anaweza. Na tumeuliza hivi, sio kwamba sisi ni wenye haki, bali tumeuliza ni katika jina kuu la Mwanao Yesu Kristo ambaye ni Bwana na Mwokozi wetu tumeomba na kuamini.
Prof. Yash Pal Ghai: Thank you very much. There are a number of Delegates who need to be sworn in today. I will ask them to please come to the podium in front of me, then I will administer the Oath. Now, can I ask you if you are all going to take the oath as opposed to affirmation?
Hon. Delegates: Oath.
Prof. Yash Pal Ghai: Oath, okay. I am going to read the oath and you will repeat after me. When I say “I” you say “I” and then you mention your name and then you will repeat after me. So please raise your hand.
Could I ask for silence please so that we have the swearing in?
(Oath administered as follows to Hon. Delegates Llorna Labos, Asenath Nyamu and Were Domtila)
“I being appointed a Delegate to the National Constitutional Conference under the Constitution of Kenya Review Commission Act, do solemnly swear that I will faithfully and fully, impartially and to the best of my ability discharge the trust and perform the functions and exercise the powers devolving upon me by virtue of this appointment without fear, favour, bias, affection, ill-will or prejudice and to the end that in the exercise of the functions and powers as such Delegate, I shall at all times be guided by the national interest. So help me God”.
Well, I welcome you to the Conference and look forward to your contribution. Please sign the Oath and I will come to sign it later on. Thank you.
Communication from the Chair:
Prof. Yash Pal Ghai: I would like to make a few announcements before we proceed to the business of the day. I have been asked by the Chair of the Welfare Committee to announce that the meeting of that Committee will be held at 1.00pm, in one of the tents where we normally adjourn for coffee. There will also be a lunch time meeting of the Convenors and Rapporteurs of the Technical Committees in the youth tent, which I believe is somewhere in that direction (pointing). I also have to state that we have received proposal for Motion from Hon. Karua to set aside some time for the Plenary discussion on Affirmative Action and we are now considering when to bring that forward but we will do that in a day or two and I need to discuss with her the precise formulation of the Motion. So if Hon. Karua is here, could she please see me later today so that we can arrange the time for this presentation.
The main programme today will be the presentation of two reports, the first one is the Task Force on Culture and the other one is the report of the Task Force on Devolution. As Prof. Okoth Ogendo explained yesterday, the Commission set up two Task Forces to explore topics that had received inadequate attention, at least on the case of Culture and the case of Devolution perhaps the recommendations in the Draft are subject to detailed discussion, that it was felt that some re-thinking was necessary and that report that I mentioned does that task.
So I will begin with the Task Force on Culture. Three Commissioners who are sitting with me will be presenting that report; each will take a section and each Commissioner will take about half an hour to present that section. So I am not sure what the order is. Commissioner Adagala will start the presentation and I invite her now to begin.
REPORT ON TASK FORCE ON CULTURE
Session Chair-Wilfred Koitamet Ole Kina
Presenters-Com. Kavetsa Adagala
Com. Salome Wairimu Muigai
Com. Abubakar Zein Abubakar
Com. Kavetsa Adagala: Thank you very much, fellow Delegate. Today we are pleased to be here and to present to you and we want probably before we do anything else to thank this Conference for the affirmative approach they had towards culture so that we have been able to bring our culture into our Constitution and perhaps this will be the most distinctive part of our Constitution. It is a good thing because we are preaching to people who are already converted so we do not have to justify much but definitely we owe our gratitude to you. We are here, three Commissioners; on my left is Salome Muigai and on my right is Zein. We shall present in three parts, it does not mean that we are the only ones who were on this, I shall read to you the people who were with us in the committee and we were, myself - Co-convenor, Commissioners Salome Muigai - Co-convenor, Bishop Bernard Njoroge - member, Abubakar Zein, Pastor Zablon Ayonga, Domiziano Ratanya, Nancy Baraza, Dr. Phoebe Asiyo, Prof. Wanjiku Kabira, who is a cultural worker who is in Devolution making sure that we have our cultural component there.
I would like to say that we had a very able Secretariat led by Mr. Charles Oyaya who worked day and night and during weekends to make sure that this report came out, Peter Kanyi who was the Data Analyst and Joash Aminga, who is a librarian and was on the internet trying to get us a lot of materials, Ms. Liz Kingi who is an officer also dealt with the audit of the present draft that we have, Silvia Nyaga who dealt with how culture comes out in legislation and also how other Constitutions in other parts of the world have handled culture, Noor Awadh and Maurice Kepoi who were also working on different sections and Wycliffe Owade who worked on globalization, Leah Symekher who was also with us working on views I think with Noor and with Maurice Kepoi. Noor Mohamed Abdi also worked on the views of Kenyans together with Geoffrey Mosoti, these officers worked very hard and it was a very inspiring period for them, because it was also transformative and we are grateful that they worked so hard. To help us, there was Dr. Isaac Were of Institute of African Studies who teaches cultural identity and also gender issues at the Institute of African Studies.
We shall present in three parts; I shall present the beginning, which is conceptualization that we worked on, on culture. Commissioner Muigai will present on the views of Kenyans and how they came out and Commissioner Zein will deal with the latter part, which will be international instruments and the recommendations which have come out of all this work. I would like to assure the Conference that here are your views from the Conference, which also guided us, the views that you gave and it appears in every chapter where you are saying our culture should say this and that on a particular issue. We are also doing a file on the verbatim presentation and we shall have that for the Technical Committee on Culture when it will be presented. I want to thank the Ad hoc Committee on Culture although we were not able to work together because of the decisions which were made at the end of the Conference, but we had documentations from there which were very useful in working out some of these aspects of our culture. The document was supposed to have been printed, but it was not printed, I think it is in the process of being printed so you will bear with us, perhaps take notes and then we can discuss, but we will try to be clear as we are presenting.
We have terms of reference from this Conference and it is that we should prepare a background paper on the Constitutional promotion and protection of Kenyans cultural diversity and activities. That is the background paper we are presenting to you now, to conduct an audit on the Draft Bill, to determine the extent to which Kenyans cultural heritage has been provided for, that is the cultural audit of the Draft Bill, to explore and propose for other ways of giving Constitutional legitimacy and protection to that heritage, and that we have done in the sense that we have looked for the way in which we can bring up our culture: to prepare a report for consideration by the relevant Technical Working Committees of the National Constitutional Conference. Those were our terms of reference and we have then our mandate which comes from the Review Act and we have it such that it is saying to secure provisions therein, respecting ethnic and regional diversity and communal rights including the rights of communities to organize and participate in cultural activities and the expression of their identities.
At the same time, we were expected to examine and review the social cultural obstacles that promote various homes of discrimination and recommend improvement to secure equal rights for all. On that particular point, I would like to say that we considered the section on equality, equity, or sections and articles which are in the Draft Constitution and the one on Affirmative Action and also on Devolution, that these take care of those negative and discriminatory and harmful aspects of our culture. We can discuss that a little bit more but we consider that, that has been taken care of. And then we have also in section (d) of the Review Act, sub-section 11, specifically required that the rights of the child are examined and reviewed with a view to making recommendations on mechanism that will guarantee protection thereof. That has been taken care of in the Bill of Rights and section 5(c), subsection 3, requires that the review process is guided by respect for the universal principles of human rights, gender equity and democracy.
Section 3, sub-section (h) mandates that the organ of the review includes provisions that aim at strengthening national integration and unity. Section 17(d), sub-section 14 required the Commission to examine and make recommendations on the necessity of directive principles of state policy. I would like to say also that in the Review Act, it is expected that our Constitution would be endogenous and that strengthens the argument for the cultural component. The concept of culture and its application, culture is often defined as the symbolic and learnt non-biological aspect of human society including language, custom and convention by which human behaviour can be distinguished from that of other primates. This implies that culture is a uniquely human enterprise, so that is generally so. Then we also have a definition here, the sum total of the solutions supplied by human beings to the problems the environment sets them and in addition we have many definitions. We have some by people like Okot Bitek whom some of you probably remember, we have definitions by Sadat Senghor, the former President of Senegal who said that culture is the sum total of our life. So that is the general universal definition. We have another definition here by Ruth Kibiti who defines culture as the totality of people’s way of life. I think that is very simple and she elucidates that culture is the universal phenomenon in human society which is complex and dynamic in nature.
Dr. Kibiti, however, has a gender perspective to the definition of culture, a concept that is only implied or completely obliterated in literally all previous definitions. On highlighting this, she says that culture provides an identity to both men and women as members of society and then goes on further to say that culture as the ideology which provides justification for the oppression of women creates justification for their exploitation and creates adequate space for male domination and control over women. This is cited to show that culture is not monolithic but within it there are divisions and there are hierarchy and we think that we have taken care of this in the individual human rights which we have put forward and we would like to think that with the water with which we have washed the baby culture, we have thrown out the negative, the discriminatory as it is defined there so that now we can deal with the real substance of culture that can promote the positive aspect of culture.
One of our Delegates, Hon. Mwandawiro Mghanga, has attempted to capture an all encompassing definition of culture and it says that culture is the sum total of a people’s life, it is about people’s struggles against nature for subsistence survival and development as well as struggles and accommodation of other human beings. It includes eating habits, dressing habits, housing trends, designs, art, education, science and technology, how people spend their leisure time, ethics, morality, religion, politics, traditions and customs. It is in short the experience of our civilization. As you can see it covers order of life.
UNESCO also has definitions which go along the same lines talking of spiritual, material, intellectual, emotional features in a social group in society and it also takes in arts, literature, lifestyle, ways of life, ways of living, value systems, traditions and beliefs. It includes customs, values, language, attitude, behaviour patterns, belief systems, systems of production as well as social and political organizations. Therefore you can see that culture really gives its members their identity. It defines the people who have a shared heritage or a people who have a shared history passed on from generation to generation, dynamic and total. And also culture always has to give that sense of dignity, identity and continuity and security bonding together in society.