Making cultural industries work for indigenous communities in Kenya

Study Report

July 2012

Nyang’ori Ohenjo and Michael Tiampati

Generously suppoted by

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ContentsIntroduction................................................................................................................................4Justification for the study...........................................................................................................5The study methodology..............................................................................................................7International human rights and cultural policy frameworks for indigenous peoples.................9The indigenous peoples and cultural industry nexus in Kenya................................................15Policy Protection of the right to culture in Kenya for indigenous communities......................21Challenges faced by indigenous peoples in Kenya..................................................................24Recommendations....................................................................................................................24

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ACRONYMNS

ACHPR African Commission on Human and Peoples RightsASAL Arid and Semi Arid LandsAU African UnionCBD Convention on Biological Diversity CEMIRIDE Centre for Minority Rights Development CERD Convention on the Elimination of All forms of Racial Discrimination COMESA Common Market for Eastern and Southern AfricaCSO Civil Society OrganizationEAC East Africa CommunityFAO Food and Agriculture OrganizationFDG Focussed Group Discussions GDP Gross Domestic ProductICESCR International Covenant on Economic, Social and Cultural Rights IFCD International Fund for Cultural DiversityIFP Indigenous Fisher Peoples Network ILO International Labour OrganisationIUCN International Union for the Conservation of NatureIWGIA International Work Group on Indigenous AffairsKNCHR Kenya National Commission on Human RightsMDG Millennium Development GoalMPIDO Mainyoito Pastoralist Integrated Development OrganisationNMK National Museums of KenyaOPDP Ogiek Peoples Development Programme PDNK Pastoralist Development Network of KenyaSIMOO Simba Maasai Outreach OrganisationTRIPS Trade Related Aspects of Intellectual Property RightsUN United NationsUNDRIP United Nations Declaration on the Rights of Indigenous PeoplesUNESCO United Nations Educational, Scientific and Cultural OrganisationUNPFII United Nations Permanent Forum on Indigenous IssuesUNWGIP United Nations Working Group on Indigenous Peoples

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1.0 IntroductionCultural industries produce and distribute cultural goods or services ‘which, at the time they are considered as a specific attribute, use or purpose, embody or convey cultural expressions, irrespective of the commercial value they may have’, according to the terms of the Convention on the protection and promotion of the diversity of cultural expressions adopted by UNESCO in 2005.1 Since 1986, there has been a transformation in the perception of the role of culture in the economic and social realm. The importance of the link between culture and development is receiving greater recognition from aid agencies and specialists. Culture is seen increasingly as both a means for development, i.e. as a means to the end of promoting and sustaining economic progress, and as an effect of development, i.e. as giving meaning to our existence.

It can generate revenues through tourism, crafts and artefacts and contribute to the sustainable development of a region and a country. It is acknowledged that culture influences people’s behaviour, their contribution to the process of economic development, their social development and their well-being2. However, many indigenous communities do not necessarily benefit from their cultural identity; where these have been exploited, it has been for purely commercial benefit of ‘investors’. Since the mid 1980s, some economists have moved away from debating the relationship between culture and economic development to analyzing the growing global cultural industries and international trade in cultural goods and services, and how nations can benefit or reap comparative advantage from this trade. Within this framework, the cultural industries refer to “industries that combine the creation, production and commercialization of contents which are intangible and cultural in nature…which include printing, publishing and multimedia, audio-visual, phonographic and cinematographic productions, as well as crafts and design. For some countries, this concept also embraces architecture, visual and performing arts, sports, manufacturing of musical instruments, advertising and cultural tourism”.

As peoples historically victimized by nation-states, and given that nation-states have historically translated their sovereignty into ownership, indigenous peoples are understandably concerned about any specific powers over cultural property granted to states.3

But cultural diversity is not simply defined through individual preferences, such as the maximization of consumer choice. For indigenous peoples, cultural diversity involves the political recognition of collective cultural differences.4

1 See http://www.unesco.org/bpi/pdf/memobpi25_culturalindustries_en.pdf 2 The UNESCO Framework for Cultural Statistics. Statistical Commission and Economic Commission for Europe, UNESCO, Conference of European Statisticians. Third Joint Meeting on Cultural Statistics, 17-20 March 1986. CES/AC/44/11. 13 February 1986.3 http://www.folklife.si.edu/resources/center/cultural_policy/pdf/RobAlbro.pdf4 Ibid

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2.0 Justification for the studyThis project seeks to push for recognition of the cultural value of indigenous peoples in Kenya to sustainable development. These communities make up the bigger percentage (about 70 per cent) of the poor in Kenya. In most cases, they are excluded in development discourse. This is in spite of reality, as evidenced by development discourse, that participation is key to succesful community poverty reduction strategies. Today in Kenya, Tourism, a key foreign exchange earner, largely depends on indigenous communities cultural expressions among the Maasai, the Samburu, the Suba, Nyala among others. However, their the value and diversity of the cultures and forms of social organization of indigenous people and their contribution to the socio-economic, cultural and environmental development in Kenya is not recognised. The Kenya Cultural Policy for instance, while cultural expression is identified as key contributors to sustainable development, the policy does little in terms of to promoting better understanding and use of indigenous knowledge systems and to sustain the societies that are the guardians of these systems of knowledge. The result across the country has been that in many cases, indigenous communities cultural goods are generally treated as mere commercial goods and indigenous knowledge more often is taken away from the communities depriving them of symbols of identity. The Kenyan cultural policy correctly identifies the centrality of culture and national heritage to the socio-economic and sustainable development needs of a country. It fails to recognise the central role of indigenous communities culture in sustainable development, on the economy and on environment. A number of indigenous communities like the Yiaku have been registered as under threat of extinction, a situation that faces many other indigenous communities in the country. If left to be extinct, it is obvious that the ramifications are serious, not only on the development of these communities, but also the whole country: loss of income, environmental degradation etc.

This study was, therefore, conceptulised as an effort towards understanding some of the challenges that indigenous communities in Kenya face, with regards to using cultural expressions and activities for wealth creation. The study was therefore designed to understand the several cultural expressions of some of these communities, with a view of understadning the policy environment within which they do operate, and hence identify the challenges that would inhbit their development as wealth creation activities. This study is part of a project supported by UNESCO to support indigenous communities in Kenya who are marginalised and frequently denied basic human rights including their cultural rights. It will support them to develop their own advocacy platforms and building awareness among the general population.

Over the years, we have seen exploitation of indigenous communities’ cultural expressions but not to their benefit. For instance, the Maasai cultural dance has been used for commercial gain in various situations without the benefit to the community. The Maasai culture is in deed the face of the Kenyan tourism industry but many community members remain poor. Pictures of Kenyan communities depicting various shots of their cultural shots are spread all over commercially driven websites of tourism companies and hotels5, many artefacts being produced and marketed to tourists mainly by people not from these communities amongst other violation of the cultural rights of these communities.

The potential of indigenous communities’ cultural industry to contribute to the growth and development of these communities, and hence contribute to the achievement of millennium development goals amongst these communities cannot be over-emphasised. However, this

5 See for example the Maasai, Tourism and Kenyan Culture at http://www.safariweb.com/safarimate/masai.htm accessed on 18th July 2012

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potential has not been supported, in a deliberate way, through State policies; most of the existing initiatives. In deed, this reality is confirmed by the Ministry of Culture and National Heritage which is promoting cultural tourism through Community Cultural Centres and Festivals which according to the Ministry are key components in cultural tourism and hence able to attract many tourists to communities and boost cultural tourism6. In spite of the reality, however, that most of the cultural attraction sites in the country are amongst indigenous communities, the Kenyan government has done very little in supporting the promotion of this industry amongst these communities.

A quick mapping indicates that due to keeping to their traditional socio economic lifestyles, pastoralists, hunter gatherers and fisher communities have the main cultural attraction activities for tourism. These are found in the Rift Valley, Upper Eastern, Western Kenya and at the Coast, where these communities are predominantly found. In deed, what defines indigenous peoples is the ability to keep to their cultures and perpetuate the same from generation to generation. However, in many of the situations, cultural industries and expressions for these communities, as a tourist attraction, has been more of a secondary rather than primary priority for tourism. For instance, on the Ministry of Tourism Website, Cultural Tourism is listed way below other types of tourism. Cultural tourism is given a somewhat cursory treatment, as opposed to its being prioritised for a number of reasons, one being that it is a right for the communities and two, that there is need for protection of intellectual property rights of cultural knowledge of the communities, and especially the indigenous communities. This has happened because in Kenya, the policy direction for natural resources has been driven through the appropriation of natural resources by government in the past, without recognition of community rights over the resources or benefits accrued from them. For instance, the Kenyan government, through the Ministry of Tourism, admits that it is the people who bring the tourist destinations to life, with each of the Kenyan landscapes having a different cultural significance to a different community, as well as the wildlife having long been an essential part of our traditional cultures.7 However, it does not recognise the rights of these communities to benefit from these resources. Most of these landscapes and wildlife are, as mentioned, in areas where indigenous peoples in Kenya are found. For instance, the famous Maasai Mara Game Reserve is found amongst the Maasai pastoralists, while Lamu, which is endowed with rich biodiversity and has some of the richest marine ecology on the Kenyan coastline; coral reefs that are a major tourist attraction in the area are in the heart of the Manda Bay site.8 The shores are lined with mangrove forests, where fish are known to breed in plenty.9 Indigenous communities found at Lamu are Bajun, Orma, Sanye and Aweer who are a marginalised with very low education levels. A majority of the communities still depend on nature-based livelihoods such as: fishing, mangrove cutting, hunting and gathering, pastoralism, farming, eco-tourism amongst others. These communities culture is thus shaped by this environment and hence their cultural industry and expressions become part and parcel of tourist attractions, but with very insignificant community benefits. It is thus hoped that the publication of this study will lead to processes and initiatives that will result in the protection and promotion of indigenous peoples cultural expressions and industries in a way that they can significantly contribute to sustainable development, of the communities and the country.

6 Speech by the minister of state for national heritage & culture - Hon. William ole Ntimama, during the Kogelo community cultural festival held on 16th to 20th January 20107 See Cultural Tourism http://www.tourism.go.ke/ministry.nsf/pages/cultural_tourism visited on 20th July 20128 See Save Lamu at http://www.savelamu.org/issues/lamu-port/ visted on 20th July 20129 Ibid

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3.0 The study methodologyThis report is a result of a review of literature and community interviews through focussed group discussions (FGDs) relating to indigenous peoples, their rights and policies in Kenya, specifically on how the Kenyan policies address the question of protection and promotion of the rights of indigenous peoples to culture, within the context of cultural industries and expressions. Literature reviewed included the information related to tourism development in Kenya, the various Kenyan policies related to cultural industry and expressions as well interviews with several relevant government officials. Specifically, for purposes of this study, staff at the Ministry of Culture and National Heritage and National Museums was interviewed.

The communities that participated in the study included the Maasai in Narok, the Ogiek in Nakuru, the Nyala in Bunyala and the Borana in Isiolo. The selection was based on two considerations, one, the take care of the different constituencies of indigenous peoples in Kenya based on their livelihoods (pastoralists, hunter gatherers and fisher communities) and two, to try and be geographically as representative as possible. The main objective of community visits and FGDs was to try and understand the situations of cultural industry and expressions within the communities within the context of government policy. The community members identified the potential of cultural industries and expressions, from their own perspective, any community efforts that were ongoing and the challenges that they were facing in making the cultural industries work for them. Another objective was to determine the awareness of the communities of their rights with regards to cultural industries and expressions, and knowledge of government policies on promotion and protection of cultural industries and expressions.

This study did not have the scope of mapping all the existing and potential cultural industries amongst indigenous peoples in Kenya, due to limitation of resources. A number of reasons contributed to this, one, being that it is not yet clear how many indigenous communities exists in Kenya. This is because, on the one hand, indigenous peoples, until recently have not been recognised by the Kenyan government, hence data regarding them has not been disaggregated and two, self identification as indigenous peoples under the international human rights framework is critical, meaning that there could be indigenous communities that have not yet self identified and hence their issues not yet in the public domain. Article 1.2 of the International Labour Organisation’s (ILO) Indigenous and Tribal Peoples Convention, 1989 (No. 169) provides for self-identification as indigenous or tribal as a fundamental criterion for determining the groups. In view of this, the identities of communities used herein of indigenous peoples in Kenya are mainly examples of the existing communities that are known to have self identified and may not be exhaustive of all the existing indigenous peoples in the Country. The report therefore is more of a qualitative analysis of the current situation, emanating from literature review and community consultations/interviews.

In spite of the noted challenges, Pastoralist Development Network of Kenya (PDNK) hopes that this report shall ignite some debate around the need for recognition of indigenous peoples and their rights to culture. This is because apart from the arguable potential to contribute to the economy of the country as well as the communities themselves, some of the these cultures are actually, as will be demonstrated in this report, under threat of extinction due to development programmes and initiates that interrupt with indigenous communities’ cultural resources like land and natural resources.

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4.0 International human rights and cultural policy frameworks for indigenous peoplesIndigenous and tribal peoples’ cultures and identities form an integral part of their lives.10

Their ways of life, customs and traditions, institutions, customary laws, forms of land use and forms of social organisation are usually different from those of the dominant population.11

These differences need to be recognised and measures put in place to ensure that they are protected and taken into account when any measures are being undertaken that are likely to have any positive or negative impact on them.

The survival and development of indigenous peoples’ particular ways of life, their traditional knowledge, their handicrafts and other cultural expressions have, since time immemorial, depended on their access and rights to their traditional lands, territories and natural resources.12 A number of international human rights and policy frameworks do exist that provide for the protection and promotion of indigenous peoples cultural rights and expressions. Indigenous Peoples culture is variously expressed in customs, songs, pageantry, traditional visual designs and crafts, myths, legends, languages, body painting, rock painting, ground painting, music, drama, dance, religious ceremonies, rituals, technical skill, architecture, and herbal and medicinal knowledge. It is these expressions that are increasingly becoming important for wealth creation through indigenous peoples, through tourism, but also most importantly critical for biodiversity conservation. The main reason why indigenous peoples’ quest to protect their cultures should be supported is the persisting harm done to indigenous peoples through attempted destruction of their cultures through forced assimilation dominant cultures and the appropriation of that culture through unethical anthropological practices, as well as the collection and fetishization of native cultures as uncivilised.

The most commonly given account of the basis of the putative right of indigenous peoples to control access to cultural information (and hence cultural expressions including cultural industry) is intellectual property.13 Under provisions of copyright, authors of specific material have the right to publish, publicly display, make copies, and variations of the originals items. UNESCO, while having, primarily, a policy role in this area, has engaged in some standard setting relevant to Indigenous cultural resources. For example, the UNESCO General Council adopted the Recommendation on the Safeguarding of Traditional Culture and Folklore.14 UNESCO also has instruments concerning the restitution of cultural heritage and enacted the World Heritage Convention which contemplates protections for certain cultural heritage.15 Indigenous peoples holding copyright of their cultural information thus prohibits outsiders from reproducing, displaying, or copy such copyrighted information. In 10 See The basic principles of ILO Convention at http://www.ilo.org/indigenous/Conventions/no169/lang--en/index.htm visited on 20th July 201211 Ibid12 Kipuri, N., Culture in State of the World’s Indigenous Peoples. Visited at http://www.un.org/esa/socdev/unpfii/documents/SOWIP_chapter2.pdf on 21st July 201213 Mathiesen, K,. Indigenous Peoples’ Rights to Culture and Individual Rights to Access. School of Information Resources and Library ScienceUniversity of Arizona14 Adopted by the General Conference at its twenty-fifth session. Paris, 15 November 1989 (UNESCO 1989)15 See What are the Intellectual Property Related Rights of Indigenous Peoples and where are they Discussed? Issues in Intellectual Property Policy 2 - Call Of The Earth Llamado De La Tierra at http://calloftheearth.wordpress.com/resourcesimportant-terms/what-are-the-intellectual-property-related-rights-of-indigenous-peoples-and-where-are-they-discussed/ visited on 19th July 2012

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this case, cases of placing a traditional song, image, or story for instance on the internet or in advertisement materials without the prior permission of the community to whom this item belongs would not be witnessed.

Among other international human rights frameworks, the United Nations Declaration on the Rights of Indigenous Peoples,16 which is a non-binding international law, clearly acknowledges a right of control by Indigenous Peoples over their cultural resources. Article 31 of the Declaration states that Indigenous Peoples have the right to maintain, control, protect and develop their cultural heritage, traditional knowledge and traditional cultural expressions, as well as the manifestations of their sciences, technologies and cultures, including human and genetic resources, seeds, medicines, knowledge of the properties of fauna and flora, oral traditions, literatures, designs, sports and traditional games and visual and performing arts. They also have the right to maintain, control, protect and develop their intellectual property over such cultural heritage, traditional knowledge, and traditional cultural expressions.

Several other human rights instruments, charter and treaty-based bodies are also relevant to the recognition and implementation of cultural rights applicable to Indigenous People. These include the International Convention on the Elimination of all Forms of Racial Discrimination (ICERD), supervised by the Committee on the Elimination of Racial Discrimination, the International Covenant on Civil and Political Rights (ICCPR), supervised by the Human Rights Committee, and the International Covenant on Economic, Social and Cultural Rights (ICESCR), supervised by the Committee on Economic, Social and Cultural Rights. In spite of there being little legal standards indigenous peoples rights to cultural resources, general comments and recommendations on the application of certain rights to Indigenous Peoples have been made in their supervising committees. For example, the Committee on the Elimination of Racial Discrimination, has previously made recommendations calling on State parties to recognise and respect Indigenous Peoples’ distinct culture, to provide Indigenous Peoples with conditions allowing for a sustainable economic and social development compatible with their cultural characteristics, and to recognise and protect the rights of Indigenous Peoples to own, develop, control and use their communal lands, territories and resources17. Moreover, the application to Indigenous People of article 27 of the ICCPR, that provides for the right of minorities to enjoy their own culture has been expounded by the Human Rights Committee. Regarding Article 27 (rights of minorities) of the ICCPR, the Human Rights Committee has stated “that culture manifests itself in many forms, including a particular way of life associated with the use of land resources, especially in the case of indigenous peoples. […] The enjoyment of those rights may require positive legal measures of protection and measures to ensure the effective participation of members of minority communities in decisions which affect them18”.

In Africa, the African Commission on Human and Peoples' Rights adopted a resolution on the protection of indigenous peoples’ rights in the context of the World Heritage Convention and the designation of Lake Bogoria as a World Heritage site during its last Ordinary Session held from the 24 October to the 5 November 2011, in Banjul, The Gambia. In the resolution, the African Commission expressed its concern that the World Heritage Committee (UNESCO) at its 35th session, on the recommendation of International Union for the

16 adopted by the United Nations General Assembly on 13 September 200717 Pritchard, S & Heindow-Dolman, C 1998, ‘Indigenous Peoples and international law: a critical overview’, Australian Indigenous Law Reporter, Sydney18 CCPR/C/21/Rev.1/Add.5, para. 7 (1994)

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Conservation of Nature (IUCN), inscribed Lake Bogoria National Reserve on the World Heritage List, without obtaining the free, prior and informed consent of the Endorois through their own representative institutions, and despite the fact that the Endorois Welfare Council had urged the Committee to defer the nomination because of the lack of meaningful involvement and consultation with the Endorois. This was in line with the decision of the African Commission, at its 46th session, in November 2009, affirming the right of ownership of the Endorois to their ancestral lands around Lake Bogoria.

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5.0 Understanding indigenous peoples in KenyaIt is important to underscore the fact that there are no internationally agreed definitions of the term indigenous peoples. Generally, indigenous peoples are known to be tribal peoples in independent countries whose social, cultural and economic conditions distinguish them from other sections of the national community, and whose status is regulated wholly or partially by their own customs or traditions....19

The latest understanding of indigenous populations within the International law is by the United Nations Working Group on Indigenous People which in 1995 considered the criteria crucial in the understanding of indigenous people; time factor in regard to residing and using the land in question; cultural distinctiveness which is willingly passed on from one generation to the other; self identity and recognition by government authorities as indigenous people and history of „subjugation, marginalization, dispossession, exclusion or discrimination”. The UNWGIP was however quick to point out that this was not to be construed as a comprehensive definition since these factors are contextually subjective.

There has been resistance to the recognition of communities that self identify as “indigenous” in Africa on the basis of an argument that all Africans are indigenous, However, the use of the label ‘indigenous’ by some particularly marginalised groups to de-scribe their situation, employs the concept in its modern analytical form which goes beyond aboriginality in an attempt to draw attention to and alleviate the particular form of discrimination they suffer from20. The key criterion, therefore, that is increasingly accepted internationally in the determination of indigenous status is that of self-identification, irrespective of whether they are described as ‘nationalities’, ‘communities’, ‘ethnic groups’, ‘peoples’ or ‘nations’ by states. It is this situation that the indigenous concept, in its modern analytical form, and the international legal framework attached to it, addresses21.

While the term ‘indigenous peoples’ is not universally agreed upon, participants in a roundtable meeting of experts on minorities and indigenous peoples’ rights in Kenya organised by National Commission on Human Rights (KNCHR) in collaboration with the Centre for Minority Rights Development (CEMIRIDE) nominated the following criteria that could be used in Kenya to identify indigenous peoples for purposes of addressing their human rights:

1. Having a sense of collectivity / solidarity/belonging;2. Claiming rights to ancestral land in collectivity / common originality;3. Practicing and retaining cultural lifestyle;4. Retaining traditional institutions and social organisation;5. Depending on natural resources in their respective territories;6. Suffering exclusion and discrimination from and by the mainstream systems;7. Possessing unique or common religion and spirituality; and8. Utilising unique means of livelihood and traditional occupation.22

19Article 1: ILO Convention 169 (1989), United Nations, New York. 20 African Commission on Human and Peoples Rights (ACHPR)/International Work Group on Indigenous Affairs (IWGIA) (2005), Report of the African Commission’s Working Group on Indigenous Populations/Communities. Eks/Skolens Trykkeri, Copenhagen, Denmark. P 88 21 Ibid. P 14422 Mukundi G., Kenya: Constitutional, Legislative And Administrative Provisions Concerning Indigenous Peoples. International Labour Organization and the African Commission on Human and Peoples’ Pp 2

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These characteristics are similar to those proposed by the African Commission’s Working Group of Experts on Indigenous Populations/Communities in Africa and generally reflect the criteria envisaged in article 1 of the ILO’s Indigenous and Tribal Peoples Convention 169 of 1989, which emphasises the principle of self-identification.23

These criteria have now been captured in the Kenyan Constitution (2010) through Article 56 of the Constitution which provides for the rights of minorities and marginalised groups. The Constitution of Kenya does not set the criteria to identify minorities and indigenous peoples/communities. However, the criteria set for “marginalised Communities” in Article 260 are largely in conformity with international standards and norms:

1. A community that, because of its relatively small population or for any other reason, has been unable to fully participate in the integrated social and economic life of Kenya as a whole;

2. A traditional community that, out of a need or desire to preserve its unique culture and identity from assimilation, has remained outside the integrated social and economic life of Kenya as a whole;

In Kenya, pastoralists, hunter gatherers and fisher communities identify as indigenous peoples. Pastoralism is based on a high dependency on livestock rearing for livelihoods. It is a mode of production common to arid and semi arid lands (ASALs), which are characterised by low and erratic rainfall. Seasonal migration of pastoralists and their animals is designed to minimise environmental damage and enable pastures to recover. It is thus an adaptation to the harsh climatic conditions. Pastoralism is, however, predicated on availability and access to expansive rangelands. This means, therefore, that any threat to the rangelands negatively affects the livelihoods of pastoralists. Pastoralists in Kenya known to self-identify as indigenous include the Borana, Maasai, Turkana, Samburu, Somali, Gabra Rendile, Sabaot, Sakuye, Talai Gaaljecel, Munyayaya and Orma.24

Hunter-gatherers inhabit forested areas. The forest is their theatre for cultural and religious activities.25 They have been known throughout history to practise subsistence techniques of hunting and gathering wild food, with little or no agriculture.26 Today, these activities rarely provide as much as 50 per cent of their diet, but typically remain highly valued and a central focus for group identity because of their unique relationship with the land and the environment is necessary for their survival as culturally distinct peoples27. In Kenya, the commonly known hunter-gatherer communities include the Sengwer, found in Marakwet, West Pokot and Trans-Nzoia East Districts in the Northern Rift Valley and the Ogiek in the Mau mountain forest complex region and Mount Elgon. Others in this category are the Waata in the Tana River, Lamu, Kilifi and Malindi in the coastal region and the Boni (Aweer) in the coastal region of Lamu, bordering Somalia.28

Indigenous fishing communities, on the other hand, are indigenous peoples, whose dependence on fishery resources and dependent ecosystems is shaped by the need to meet livelihood requirements and food security. For them, fishing goes beyond the mere function 23 Ibid Pp 224 Ibid Pp 225 See ‘Pastoralists and Hunter Gatherers Ethnic Minorities Network (PHGEMN) Memorandum’ to the Constitution of Kenyan Review Commission (CKRC), 15th July 2002.26 See Hunter Gatherers, an Encyclopaedia article at http://uk.encarta.msn.com/encyclopedia_781531154/hunter-gatherers.html, accessed on 16th February 2010. 27 Ibid. P 17828 Ibid. P 178

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of meeting food security29 needs; it is a way of life ... fishing communities ... are the custodians and responsible users of ... fishery resources30. They utilise fishery resources for food and commercial purposes; they also get involved in related activities such as net making, production of storage and container facilities. Fishing is one of the most important sources of livelihoods in Kenya. Examples of indigenous fishing communities in Kenya include the Luo found in several counties of Nyanza region, the Abasuba in Migori County, the Abanyala and Abasamia in Busia County, the Turkana and Elmollo in Turkana County, the Illchamus in Baringo County, Bajuni, Sanye and Jibana at the Coast.31

It is important to note that the list provided here is not exhaustive since the indigenous peoples movement in Kenya is still expanding and some communities. This means that there could some communities that have not yet self identified due to a number of reasons, including lack of awareness of existence of standards and processes that are protective of their rights and recognition. For instance, fishing communities’ movement in Kenya is still very nascent and hence the communities that have come up and have been recognised could be a very small percentage of the legitimate indigenous communities found in Kenya. Among some communities for instance, there is lack of presence of civil society or community based organisations, making their visibility impossible. The economic livelihood of indigenous peoples in Kenya is severely affected by the lack of adequate legal framework protecting their traditional lands and resources, as well as policies that mainly favour the dominant economic paradigms.32 In Kenya, like in most other African countries, settled agriculture, mining, and modern development schemes are seen as the preferred way to development.33 As a result, certain types of indigenous peoples’ means of livelihood, such as nomadic pastoralism, hunting and gathering, are looked down upon, putting their future survival and development in serious jeopardy.34 The sustainability and development potential of their cultural systems are also ignored and are wrongly perceived as being primitive, uneconomic environmentally-destructive and incompatible with modernisation.35 The state continues to systematically marginalise indigenous peoples ‘on the basis of their economic, social and cultural characteristics, which are inextricably connected to the use of land and natural resources’.36 It also promotes westernised ideals of development, calling upon these communities to discard their rich cultures and ways of life and instead adopt ‘modernity. This is usually done in total disregard of the communities’ strengths, needs and preferences and is often without adequate consultation and participation of the community.37

29 Food and Agriculture Organisation- FAO (2009), The Code of Conduct for Responsible Fisheries and Indigenous Peoples: An Operational Guide, Rome. 30 Ibid31 Indigenous Fisher Peoples Network (2010) Indigenous peoples’ rights and sustainable development: The case for indigenous fisher communities in Kenya. IFP, Maseno. Pp 232 Op Cite 22 pp 433 Ibid34 Ibid35 Ibid36 Ibid37 Ibid

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6.0 The indigenous peoples and cultural industry nexus in KenyaFor a long time, the culture of indigenous peoples in Kenya has been exploited for commercial reasons without their direct or indirect benefit. Tourism is a major earner in Kenya. However, indigenous communities have not largely benefited from this industry. For example, as government admits, Most of the wildlife-related tourism is in the semi arid and arid districts, occupied by pastoralist communities. However, expatriates dominate in the in the hotel industry. 38

We do not benefit from these investments ... even as our land has been taken away by government to develop tourist parks. We are poor and yet we know that we have been the custodians of the natural resources over the years ... without employment and our grazing land gone. We are not accessible to the wealth that is generated from the tourism activities and in worst cases, we have lost intellectual property to some of our indigenous knowledge ... our products and culture are traded for gain without our compensation.39

This complaint is vindicated by government through the draft National Policy on Arid and Semi Arid Lands (ASALs) when it asserts that County Councils receive part of the entrance fees to parks and rent from lodges, but not much of it trickles down to individual households. Neither does it empower them in economic terms to get engaged in tourism-related business. To redress this situation, there is need to encourage campsites, nature walks and tour guiding, community-run wildlife conservation sites amongst others to improve income sources and strengthen community-based natural resource and wildlife management capacities. Wild game and other biodiversity resources in ASALs are a heritage of local communities who should benefit from them on a high priority ranking since the existence of such biodiversity depends on the goodwill of the local communities.40

In many situations, even where there exist some situations where the indigenous peoples have developed their own cultural industry and or expressions, they have lacked policy support to fully benefit from them. For instance, most pastoralist communities produce art crafts that they do market to tourists. However, due to many challenges including infrastructure, illiteracy and poverty, many members of these communities are limited to operating from remote areas, with limited access to buyers for their products. This is explained by Daniel Salau of Simba Maasai Outreach Organization (SIMOO)41 in Kajiado:

We have a cultural village that includes traditional accommodation facilities and museum of cultural artefacts to preserve our culture. The area that we inhabit is among the remotest in Kajiado, where access is a challenge. Further, it is not placed along a direct route to any tourists’ attraction like national park. This means that commercial benefit from this facility has remained limited to friends and partners of Simoo and the community that the organisation serves, since we have very limited funds hence we cannot undertake serious strategies like advertising for the traditional services that we do offer to the prospective tourists.42

Among the fisher communities, they have had to turn to middle men who end up exploiting them. Many members of the fisher communities weave traditional storage and eating artefacts for extra income, using the local materials. However, in many of the places, tourists are very

38 See Arid and Semi Arid Lands Policy (2005)39 Interview will Bernard ole Maki of Narok40 See Arid and Semi Arid Lands Policy (2005)41 SIMOO is a local outreach organization which is based in the Olosho-Oibor villages in Ngong, Kajiado District, Kenya.42 E-Mail interview with Daniel Salau of Simoo

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rare, apart from visitors, both Kenyans and non Kenyans, who visit on specific projects. They are hence forced to depend on middlemen who buy their products are very cheap process and re-sell them at high costs to tourists in major towns, with some of them exporting directly to abroad for premium prices. Members of the Abanyala community lamented about this exploitation:

For us we have several community groups involved in producing storage facilities as a way of income generation. These include storage baskets that we use as a community for fish storage. Some people use them to store clothes in town, while for others, the artistry is what they admire. We use the natural resources here. We believe that apart from alleviating poverty, it is ways of conserving our culture... our young people learn key indigenous knowledge related to fishing and our livelihood. However, we have not been able to fully benefit from the exercise since we have had to succumb to exploitation from middlemen. We can do very little to address that since we are poor and we are pushed by the need to survive to sell our work at a throw away price. Many of us are annoyed that we are unable to benefit from our cultural heritage.43

The other challenge that these communities do face is the intellectual property issue. In Kenya, many indigenous communities have had their intellectual property rights violated without any intervention from them due to a number of reasons. Many contend that they are not even aware that there exist provisions for intellectual property.44 For the few enlightened, they complain that the process of patenting their cultural expressions and products is so laborious that they find it out of their means financially and technically to undertake.45 This means that over time, many indigenous communities have lost control and ownership of their cultural expressions to exploiters without benefit to them.

People with access to resources have plagiarised our works and they are now producing them for commercial purposes with due regard to the origin of the ideas. While they directly benefit the community members continue to wallow in poverty. In Nairobi for example, there are people who run the Maasai market with many Maasai cultural expressions without the benefit to the Maasai community. The name “Maasai” has in fact by all purposes, been turned into a trademark that the community is not benefitting from. The operators at the Maasai Market are mostly from other communities while most the wares on display and sale are from the Maasai community. Even the government is guilty. They have advertised the tourism potential using the Maasai and their culture as one of the attractions found around the national parks like Maasai Mara. However, there are no policies in place to ensure that the community benefits from the benefits accrued from using their cultural expressions.46

In certain other instances, traditional knowledge about cultural expressions are quickly disparaging due to non protection activities. Hunter Gatherers in Kenya have faced many challenges and they are almost on the brink of extinction – with them their traditional

43 Focussed Group Discussion with members of the Abanyala fishing community 44 Many members during the focused group discussions and individual interviews admitted that they were not aware that there exists a legislative framework to protect their cultural expression and industry.45 Daniel Salau of Simoo Kenya in an email interview explained that he as tried to look at the patent and copyright laws in Kenya but they are too complicated to comprehend. He argues that it required a lot of legal knowledge that the communities are not able to afford just yet.46

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expressions. In deed due to discrimination and marginalisation, the Ogiek have slowly lost their language through assimilation.

It was only recently that we did get some support to conserve our language through publications. Through that support we have been documenting our culture using our language, which very few people, less than 100 of our population, can speak fluently. We do not have a lot of tourist activities since we are very rarely visited by tourists and we have concreted on strategies to survive as a community since we are under the threat of extinction, with our language disappearing fast. We hope that with the current constitution which recognises the right to culture we shall benefit in way, even if it is just setting up our cultural centre.47

Amongst fisher communities, traditional boat racing is a crowd puller any time and could be a strong tourist attraction and hence income earner. This is about the only sport of significant importance that attracts large crowds of people, compared to conventional sports that are yet to sync well with the populations. Add to these activities like the traditional wrestling and dances, there is a strong cultural industry that can be developed and natured for the direct benefit of the communities. During these events, those involved in small businesses would be able to market their products and services to the participants and the audience. Through proper marketing, such events would attract a huge foreign audience to provide a big market for those who will want to market their goods, including traditional artefacts, during the activities as well as develop business contacts for future opportunities. This is particularly important since it is arguable that it is possible to transform boat racing into a high-income generation activity, directly through prize money to participants and indirectly as a tourist attraction activity. It is notable that the fishing areas are endowed with beautiful landscaping that could easily attract and develop landscape tourism boosting income in these areas, directly and indirectly contributing to earnings by the inhabitants of these areas, especially the youths and hence directly addressing poverty.

Lack of official recognition of these communities has meant, however, that these cultural expressions amongst fisher communities have lacked direct policy intervention and hence face extinction. In Kenya, apart from very limited community efforts, there is little government effort to specifically focus on boat racing and wrestling activities amongst fisher communities. The community efforts are hampered further by the fact that due to geographical isolation, amongst other capacity challenges, the communities have not been able to access sustainable funding to ensure that they keep the cultural activities afloat. During the community focussed discussion with Nakhabuka Community Cultural Group, of the Nyala community, it emerged that the community members have experienced difficulties in accessing financial and technical support to revive the almost extent community wrestling. They noted:

We have been trying to access funding to secure the community land where these activities were staged, and also ensure that the community does not lose the land. This has proved a difficult process due to a number of factors, including lack of both technical and financial capacity to pursue our goal. We have not lost hope but we think that if the government had a deliberate effort to support the protection of cultural expressions of indigenous communities we would have had some attention. This area lacks communication utilities like internet and developing proposals is also made expensive as we lack services like computers.48

47 Focused Group Discussion with the Ogiek on June 30th 2012 in Nakuru.48 Interview with community members during a focused group discussion at Mubyayo, Bunyala, on 22nd June 2012.

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This situation demonstrates the reality of exclusion from policy and development discourse. Due to the fact that many indigenous communities live in geographically challenging areas in terms of infrastructural development, it has been easier for government to access and work with communities from areas that are more accessible. This is actually vindicated by the fact that the government, for instance, in developing community cultural centres, only works with those community organisations or associations that have contacted the Ministry. Given that most indigenous communities are facing challenges that include weak capacities, many of them are not aware of existing government or donor programmes that support the protection and promotion of cultural industries. This means that their chances of making contact with for instance, the Ministry of Culture and Heritage on the support for development of cultural villages are very minimal. Confirming this situation, while responding to a question on whether they have ever contacted the Ministry of Culture and Heritage for support, a member of Nakhabuka Cultural responded that they had never had of such a programme, and even if it did exist, the Cultural Office was located very far off their location, making it difficult for them to easily access it.49

Closely linked to the cultural industry with regard to indigenous peoples is the issue of intellectual property rights within the context of genetic resources. Intellectual property gives exclusive rights to exploit particular creations of human ingenuity. In recent years, there has been new awareness that indigenous peoples not only have knowledge but also often engage in active research. Over the past decade or so, biotechnology, pharmaceutical and human health care industry has increased their attention to natural products as raw materials for their products. The Decade has also seen the resurgence of attention towards traditional knowledge and medicine. African countries and their indigenous peoples have contributed considerably to the global drugs industry.50 The search for these plants has been appropriated by traditional knowledge. While the industry benefits significantly from the sale of genes of major plants, intellectual property rights of indigenous communities from whom the knowledge about these genes originate are not recognised and protected. Indigenous peoples do not fairly and equitably share the benefits arising from the use of their knowledge and subsequent use in drug development.

Amongst the Ogiek, the result of the loss of ancestral lands is poverty, illiteracy and poor health; women are more disadvantaged because they lack property ownership rights and thus tend to be poorer. More than 90 per cent of the Ogiek could barely afford one proper meal a day.51 The Ogiek, having lost their traditional occupations,52 have been forced into cultivation farming. They lack cultivation skills and are exploited by middlemen when they seek to sell their produce. One traditional Ogiek occupation, honey production, could provide communities with a sustainable income, especially if the honey was processed locally, instead of being sold raw to middlemen.53 This would empower the community economically.54

49 Interview with Doreen Anyango of the Nyala community, Nakhabuka Cultural Community Association, on 23rd June 2012.50 Mugabe J., et al., Traditional knowledge, genetic resources and intellectual property protection – towards a new international regime. Working Paper number 2001-5 International Environmental Law Research Centre, Geneva, Switzerland. 51 Ohenjo, N., (2003), Kenya’s Castaways: the Ogiek and National Development Processes, Minority Rights Group, London. Pp 252 Ibid53 Ibid54 Ibid

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Currently, bee-keeping is compromised by charcoal burning as well as pyrethrum cultivation. Charcoal burning destroys the forest and the fumes from the burning kill the bees.55

The Convention on Biological Diversity (CBD) defines genetic resources as genetic material of actual or potential value, while genetic material is defined as any material of plant, animal, microbial or other origin containing functional units of hereditary. The Akwe-Kon Voluntary Guidelines define the traditional knowledge as the innovations and practices of indigenous and local communities embodying traditional lifestyles relevant for the conservation and sustainable use of biological diversity. The CBD requires that each contracting party shall, with respect to national legislation, respect, preserve and maintain knowledge, innovations and practices of indigenous and local communities. It further requires the approval and involvement of the holders of such knowledge, innovations and practices, and encourages the equitable sharing of benefits arising from their utilisation. Parties are also encouraged to protect and encourage customary use of biological resources in accordance with traditional cultural practices that are compatible with conservation or sustainable use requirements.

While the exact potential benefits to indigenous communities from the cultural industry and expressions in Kenya has not be mapped and disaggregated, it is arguable that recognising and protecting the cultural rights of these communities to cultural expressions and industry could be very significant in addressing certain millennium development goals (MDGs) like halving poverty and some of the objectives of vision 2030. For this to be achieved, it is imperative that the existence of indigenous communities and their rights to cultural expressions and industry be recognised. For instance, under the Economic Pillar of Vision 2030, achieving higher tourism revenue yield by increasing the country’s premium safari parks and improving facilities in all under-utilised parks; creating new high value niche products (e.g. cultural, eco-sports and water-based tourism)56

One of the challenges faced by indigenous peoples in promoting their cultural expressions and industries and expressions is lack of awareness of existing policy, legislative and institutional frameworks. Most of the members of the indigenous communities involved in this study indicated lack of knowledge of the Constitutional provisions, the existence of the policy and even the national commission on culture. This means that they do not hence have avenues through which they can address their concerns effectively. This is arguably due to the fact that most already stay in far flung geographically disadvantaged and marginalised areas, hence little effort placed on reaching them by not only government, but also development actors and CSOs in the sector. Community members in all the four study communities (Ogiek, Nyala, Maasai and Borana) had not heard or seen the national policy on culture and national heritage. This means that they are therefore accessible to very few opportunities to develop their cultural expressions and industries. Noted Patrick Makhulu from the Nyala community:

We have sought for years avenues that we can use to revive our boat racing and wrestling sports as a way of wealth creation but we have never succeeded. If we had known of the existence of the policy and the commission maybe we could have moved some steps ahead.57

The second main challenge is the lack of participation in the policy and legislative making processes and hence the lack of attention of their concerns especially in the national policy on

55 Ibid56 Government of Kenya (2007) Kenya Vision 2030 – Popular Version. Nairobi. Pp 1057 Interview with Patrick Makhulu of the Nyala community

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culture and national heritage. It is apparent that the policy did not seek to address the rights of indigenous peoples, as understood within the current context of international legal framework, arguably because there was no evidence of the presence of the representatives of these communities during its formulation. This makes it difficult to implement programmes that have an indigenous peoples’ cultural rights bias, since they are not envisaged in the first place in the existing policy. There is therefore need to re-draft the policy to especially ensure that it confirms to the provisions of the current constitution. The cultural expressions of indigenous communities in Kenya are critical not only to tourism and hence development, but more so to wealth creation amongst communities and if properly invested in, could contribute significantly to poverty eradication directly contributing to the achieving of the Country’s MDG targets.

The third challenge is the weak technical and financial capacity of the indigenous peoples in engaging the policy makers. This leads to their non participation in key policy and legislative formulation and implementation processes. It is arguable that this has contributed to its share to the lack of mainstreaming of indigenous peoples’ rights and concerns into particularly the national policy on culture and heritage. For indigenous communities to be effective in engaging policy processes, accessibility to technical capacity is important; financial capacity would also be required to facilitate a number of strategies that would be employed during the advocacy process. To be more effective, there is need for a strong network of indigenous peoples’ CSOs working around this area to ensure that they ae able to gain their visibility with development actors and policy makers.

Finally there is the challenge of communities’ institution measures to look for compensation and or restitution for benefits accrued from their cultural expressions without their consent. This is because they cannot afford a lawyer. Overtime, commercially established individuals and companies have exploited this expressions and cultural industry without thinking about benefits sharing.

We are aware that many aspects of our cultural expressions are being exploited by companies, hotels and even government. When you go to the internet, you will find many pictures of members of our community used for purposes of commercial advertising. This is being done by both government and private business enterprises. However we have no means to follow up on compensation. Our artefacts and folklore have been reproduced without our consent and benefit. It is annoying but we seem to be helpless. The legislative framework is not helpful since it does not explicitly identify protection of indigenous peoples’ intellectual property even though Kenya is a signatory to intellectual property.58

58 Focused Group discussion with members of the Maasai community in Narok County

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7.0 Policy and legislative framework in Kenya to promote and protect of the right to culture in Kenya for indigenous communitiesBefore the current Constitution, the lack of recognition of indigenous peoples had an adverse impact on not only the indigenous communities but also the development agenda of the country.59 One of the key hurdles facing indigenous peoples in their pursuit to have their fundamental rights and freedoms protected is the lack of official recognition of them as groups with specific needs cultures and ways of life.60 In Kenya, the state has maintained that all Kenyans, irrespective of their tribal affiliations, are treated equally and in essence are indigenous to the country.61 The lack of official recognition of indigenous peoples as indigenous or as distinct peoples in Kenya has had the effect of deliberate ‘exclusion in policy processes, non effective consultation in development and [has caused them to] become victims of assimilation.62

Until the enactment of the current Constitution of Kenya in 2010, officially recognised tribes were 42, meaning that several other communities, many of them that identify as indigenous, were left out. Examples of these include Ogiek, El Molo, Watta, Munyayaya, Yakuu, Nyala, Bajuni, Sanye and Jibana amongst others. The UN Special Rapporteur observes that ‘this situation is derived from colonial policy of promoting assimilation of smaller communities into other dominant groups.’ this has had the effect of reducing the visibility of such assimilated communities or leaving them out of national policy-making and budget allocations.95 The United Nations Committee on Economic Social and Cultural Rights has noted equally that the Nubians and the Ogiek are not recognised as distinct ethnic communities, and called on the state to accord them such recognition as their ‘their right to the preservation, protection and development of their cultural heritage and identity. It is imperative, therefore, that the state acknowledges and provides disaggregated data of these policies programs.

Article 7 of the new constitution obliges the state to promote and protect the diversity of language of the people of Kenya. The state is also obliged to promote the development and use of indigenous languages. Article 11 recognizes culture as the foundation of the nation and obliges the state to promote all forms of cultural expression through literature, the arts, traditional celebrations, science, communication, information, mass media, publications, libraries and other cultural heritage. The state is also obliged to recognize the role of indigenous technologies in the development of the nation. Protection of Genetic Resources and associated Traditional Knowledge in Kenya is a subject matter in the new constitution of Kenya, under clauses touching on the protection of right to property63, culture and environment64. Article 40(5) of the new constitution provides that the state shall support, promote and protect the intellectual property rights of the people of Kenya. Not only shall the state promote the intellectual property rights of the people of Kenya, Parliament is also required to enact legislations that will ensure communities receive compensation or royalties for the use of their cultures and cultural heritage, and legislation that will also recognize and protect the ownership of indigenous seeds and plant varieties, their genetic and diverse characteristics and their use by communities. Under the Bill of Rights, Article 44 gives every person a right to use the language and participate in the cultural life of his/her choice.

59 Op cite 22 pp 1960 Ibid61 Ibid62 Ibid63 Article 40(5) of the new constitution-protection of the right to property64 Article 69 of the new constitution – Environment

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The legislative and policy environment in Kenya, however, is yet to be aligned to the new Constitution. It is important that policy and legislation that define community ownership of traditional knowledge is developed to enable indigenous peoples benefit from their cultural expressions. In deed, Kenya is has ratified the Trade-Related Aspects Of Intellectual Property Rights (TRIPS) that it has mainstreamed in the Constitution and it now has to actualise these provisions to ensure that indigenous words, designs and symbols are used in trade with permission from their traditional owners. This will also assist indigenous people want to use and protect their own trade interests using cultural signs. Further, there is need for legislation and policy around copyrighting indigenous traditional knowledge like song, dance, sculptures and designs for them to benefit from them. While there is in existence a law on Copyrights in Kenya, Copyright Act 2001, the provisions for copyrighted material are not friendly to indigenous communities with regards to their indigenous knowledge. For instance, Article 22 of the Act provides that for any material to qualify to be copyrighted, Sufficient effort must have been expended on making the work to give it an original character, and the work should have been written down recorded or otherwise reduced to material form. In this sense, copyright protects the ‘expression’ and not the ‘idea’ disqualifying indigenous/traditional knowledge. In Article 22 (3) the Act emphasise ‘originality’ making it impossible for indigenous knowledge to qualify for copyright protection since it is not considered traditional since through the ages some people have attempted to make some improvements or adaptations to make the old appear to be in sync with the modern times. For instance, there have been modifications to the traditional costumes used in traditional dances and ceremonies.

Through the National Policy on Culture and National Heritage, government of Kenya undertakes to take all necessary steps to ensure the protection and promotion of culture and of cultural diversity among Kenyans. And while it recognises that colonialism suppressed indigenous elements of culture and heritage and alienated Kenyans from many of their cultural practices65, it fails to admit that post independence, certain cultures continued being suppressed, leading some to extinction and others being is a near extinct state, hence the need for special measures of protection (affirmative action). It is important to highlight that the policy was formulated before the enactment of the current Constitution of Kenya 2010 hence it lacks many aspects of promotion and protection of indigenous peoples’ cultural expressions and industry. Of critical importance therefore, there is need to revise the policy to specifically address the uniqueness of indigenous peoples’ cultures and their contribution to the national economy. The national policy needs to be in sync with the Constitution to recognise, protect and promote the rights of indigenous peoples to their culture in entirely including intellectual property rights

While the policy proposes the to establish and support Community Cultural Centres in all constituencies/districts as focal points it does this to promote of intercultural dialogue, national cohesion and expression of cultural heritage as opposed to intellectual property protection and socio economic development. While national cohesion is critical, it is arguable that such centres would also be critical in developing socio economic status of the communities, and especially the indigenous communities. As has been noted, the unauthorised use of indigenous cultural expressions is on the rise with accruing benefits to the concerned communities. As this happens, the communities continue to live in poverty, without any means to claim benefits or compensation.

65 Government of Kenya, National Policy on Culture and Heritage. Pp 3

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On traditional medicine the policy provides for the in order to control and improve traditional medicine, the Government undertakes to protect traditional healing methods and indigenous knowledge and in particular shall conserve and preserve natural resources as an important source of traditional medicine66 but makes no statement regarding the intellectual property rights regarding the medicinal plants and knowledge and equitable sharing of benefits by communities from whom this knowledge is appropriated. The section on cultural industries of the policy is completely devoid of indigenous peoples’ cultural industry including tourism. This is important as this is the area that indigenous peoples in Kenya have been exploited. On indigenous peoples’ culture, the policy vaguely provides that the Government shall ensure the protection of the rights of all peoples and in particular promote the rights as are enshrined in International legal Instruments by either adopting or domesticating them67.

66Ibid. Pp 1867 Ibid. Pp 33

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8.0 ConclusionIt is demonstrable from the foregoing that cultural expressions of indigenous communities have been expropriated without any benefits going back to them. Indigenous communities’ knowledge in the country has been used for commercial purposes by members of other communities to their exclusion. This sentiment has been well captured in the following observation:

Many times we receive visitors who record our responses on biodiversity including medicinal plants and animal products, take our pictures and our environment. In most cases, we give this information not knowing that they will end up using it for their commercial benefit.68

Given its importance not only to preservation of the culture of the communities but also for protection of biodiversity and several other economic benefits there is need for participation of indigenous communities to develop tools for protection of traditional knowledge. Most inventions are protected by way of patents or plant breeders’ rights. However, indigenous knowledge does not fit properly into the available provisions for protection of intellectual property rights. Nevertheless, there is a case for protecting indigenous knowledge, for sharing the benefits of such knowledge with indigenous communities and for the country to ensure that they regulate the exploitation of cultural expressions including indigenous knowledge.

9.0 RecommendationsThere is need in the Country for policy formulation and eventual legislation intellectual property rights that will put in place an appropriate framework for access traditional knowledge, ensure equitable benefit-sharing of indigenous knowledge proceeds, protect and promote cultural expressions of indigenous communities, provide a mechanism for the enforcement of rights of indigenous knowledge holders in line with the Constitution of Kenya 2010. The various forms of legal protection available include laws on traditional knowledge, Intellectual property rights, unfair competition, contracts, civil liability, indigenous peoples, crime, fisheries and environment, customary laws and protocols, and, regimes giving access and benefits sharing.69

A good guide would be the African Model law70 which addresses issues relating to biological resources such as conservation, sustainable use of biological and genetic resources including community knowledge and technologies. Part IV recognises community rights to their biological resources, their innovations, knowledge, technologies, benefits sharing, the exercise of collective rights and customary law whether oral or written. Article 23 provides for recognition of community intellectual rights. Recognition is granted to community intellectual rights whether these are written or not, community innovations receive automatic protection whether registered or not, and, the availability of certain TK in the public domain is not a bar to recognition of community rights.71 It is instructive that the provisions of this model law are adequately covered by the Constitution of Kenya 2010.

In line with this model law, there is need therefore in Kenya to begin a process of aligning its policy and legal framework to these provisions. To enable this to happen, it will be critical for

68 Focused Group Discussion with the Ogiek in June 201269 Wekesa, M., Traditional Knowledge- The need for Sui generis System ofIntellectual Property Rights Protection in Wekesa M and Sihanya B (Ed) Intellectual Property Rights In Kenya. Konrad Adenuer, 2009:29070 The African Model Legislation for the Protection of the Rights of Local Communities, Farmers and Breeders, and for the Regulation of Access to Biological Resources (OAU Model Law, Algeria 2000)71 Ibid

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indigenous communities in Kenya to begin engaging the government along these discussions. This will require that both local and international donors and development partners technically and financially support their efforts to ensure that they are able to effectively engage and hence influence the policy and legislative framework to their benefit. Many organisations from these communities are technically and financially challenged hence needing this support.

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