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Community Practices and Cultural Voices under Kenyan Law: Prospects and Challenges

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By Dr. Kariuki Muigua, PhD (Leading Environmental Law Scholar, Policy Advisor, Natural Resources Lawyer and Dispute Resolution Expert from Kenya), Winner of Kenya’s ADR Practitioner of the Year 2021, ADR Publisher of the Year 2021 and CIArb (Kenya) Lifetime Achievement Award 2021*

The Constitution of Kenya 2010 recognises culture as the foundation of the nation and as the cumulative civilization of the Kenyan people and nation. In light of this, it obligates the State to, inter alia, promote all forms of national and cultural expression through literature, the arts, traditional celebrations, science, communication, information, mass media, publications, libraries and other cultural heritage; recognise the role of science and indigenous technologies in the development of the nation; and promote the intellectual property rights of the people of Kenya. Parliament is also obligated to enact legislation to: ensure that communities receive compensation or royalties for the use of their cultures and cultural heritage; and recognise and protect the ownership of indigenous seeds and plant varieties, their genetic and diverse characteristics and their use by the communities of Kenya.

The Ministry of Sports, Culture and Heritage was established through the Executive Order No. 2 “Organization of the Government of the Republic of Kenya dated May 2013” and comprises of departments of Sports, Office of the Sports Registrar, Culture, Permanent Presidential Music Commission, Kenya National Archives and Documentation Services, Library Services, Records Management, The Arts Services. Part of their mandate includes ‘developing, promoting and coordinating research, copyrights and conservation of Culture’ and to ‘develop, promote & coordinate the national culture policy, heritage policy and its management’. Notably, the core functions of the Department of Culture under the Ministry are: the promotion, revitalization and development of all aspects of culture- including performing, visual arts, languages indigenous health, nutrition, environment, and oral traditions; and, education, information and research on all aspects of the tangible and intangible cultural heritage.

The Department’s core mandate includes, to: advise the government on cultural matters; set policy standards to guide the development of cultural programmes; develop national cultural infrastructure and actively engage in the promotion, preservation and development of culture, in collaboration with other likeminded government agencies, County governments, and local communities based on the principles of Free Prior and Informed Consent; coordinate the documentation of national cultural inventories, and support cultural programmes and events; promote the use of Kiswahili, sign and indigenous languages in Kenya; coordinate safeguarding of Kenya’s intangible cultural heritage and promotion of the diversity of cultural expressions; conduct capacity building for county governments, and disseminating cultural information; coordinate and facilitate cultural exchange programmes for groups and individuals; liaise with cultural offices and Offer technical support for cultural development programmes; and register cultural groups, associations and agencies.

Notably, the Department of Culture acknowledges that ‘while it has been playing some of the key roles in promotion of cultural integration, formulation of policies and standards that will guide the development of culture, Kenyan identity and social cohesion, both at the national and international levels, little information has been available to the Kenyan public’. However, while the Department, in line with its constitutional mandate, seeks to use its website to disseminate information, and open up an online forum, where all Kenyans can contribute towards realisation of our shared dreams and aspirations; our pride in ethnic, cultural, and religious diversity, and the determination to live in peace and unity, as one indivisible and sovereign nation, there are challenges that come with this.

Arguably, most of the custodians of the cultural practices and knowledge of Kenyan communities are either not able to access the internet due to infrastructure challenges or do not simply have the formal education required to enable them do so. This therefore means that the Department’s initiative, however well meaning, will either not reach a large section of the target group or will not benefit from added knowledge that would be gained from the input of elders from the villages. There may therefore, be a need for the Department to organize physical forums where they can meet the communities’ elders and leaders and share their dream with them in a bid to enrich their cultural knowledge database. The only way that the Department of culture and heritage can effectively achieve their mandate of advising the government on cultural matters, dissemination of cultural information, conducting capacity building for county governments, coordination and facilitate cultural exchange programmes for groups and individuals, offering technical support for cultural development programmes and registering cultural groups, associations and agencies would be through organizing forums where communities, without the limitation of technology or distance would come forward and share what they have with the Department.

This cannot certainly be the online platform. Physical meetings should thus be organized at the grassroots level. Through such forums, the Department can collaborate with the other stakeholders especially in matters that are relevant to the sustainable development agenda in order to tap into the communities’ knowledge and practices where such can help in promoting sustainability. Some of the main challenges that have been identified especially in relation to the implementation of the Convention on the Protection and Promotion of the Diversity of Cultural Expressions in Kenya, in the past include; Lack of a coordinated national framework on implementation of the Convention; Lack of official cultural statistics that has negatively affected fiscal and political decisions; Inadequate legislative and institutional framework to promote the cultural and creative cultural sector; Inadequate cultural infrastructure and spaces for cultural expression; and Lack of awareness and non-appreciation on the role of culture in development by key policy makers.

Cultural expressions, services, goods and heritage sites can contribute to inclusive and sustainable economic development, thus making a vital contribution to eradication of poverty as envisaged under sustainable development goal 1 of the 2030 Agenda on Sustainable Development Goals. This is because the natural and environmental resources form the basis of the 2030 SDGs Agenda for provision of the resources required for eradication of poverty. These resources however require conservation for the sake of the current and future generations. It is also true that conservation principles and practices evolve and adapt to the cultural, political, social and economic environments in which they take place. It is for this reason that cultural practices of communities become critical in giving communities a chance to participate in sustainable development discourse. It has been observed that conservation practices are intimately linked to codes of ethics dictated by local and/or international systems of values. In turn, these values are inscribed in legal frameworks or they comply with legal texts.

Arguably, it is not enough for the laws in Kenya to acknowledge the place of communities’ cultural practices; there is a need to actually implement and incorporate these practices in environmental management and conservation measures through engaging communities in national plans and strategies geared towards the realisation of the sustainable development goals. Notably, while Kenya has been making progress towards realisation of the SDGs, if a 2017 Report by the Ministry of Devolution dubbed ‘Implementation of the Agenda 2030 for Sustainable Development in Kenya is anything to go by, there is little evidence of incorporation of communities’ practices and indigenous knowledge in tackling the challenges that are likely to derail the realisation of the Agenda 2030. The process seems to be state-led, with communities playing a peripheral role. They only seem to be included in making peace, which in itself is critical for development, but that is just about all.

The farthest the Report has gone in demonstrating communities’ inclusion is ‘the Government putting in place mechanisms to foster peace among warring communities through initiatives like joint Cultural Festivals, and signing treaties on cultural exchange programmes with 51 countries hosting Kenya Missions’ in pursuit of SDG Goal 16 on ‘promoting peaceful and inclusive societies for sustainable development, provide access to justice for all and build effective, accountable and inclusive institutions at all level’. Thus, while there are admittedly policy, legal and institutional frameworks meant to promote the utilization of cultural and traditional community knowledge in national development, there is little evidence that the same is actively being pursued.

*This article is an extract from the Article: “Integrating Community Practices and Cultural Voices into the Sustainable Development Discourse,” (2021) Journal of Conflict Management and Sustainable Development Volume 6(2), p. 45  by Dr. Kariuki Muigua, PhD, Kenya’s ADR Practitioner of the Year 2021 (Nairobi Legal Awards), ADR Publisher of the Year 2021 and ADR Lifetime Achievement Award 2021 (CIArb Kenya). Dr. Kariuki Muigua is a foremost Environmental Law and Natural Resources Lawyer and Scholar, Sustainable Development Advocate and Conflict Management Expert in Kenya. Dr. Kariuki Muigua is a Senior Lecturer of Environmental Law and Dispute resolution at the University of Nairobi School of Law and The Center for Advanced Studies in Environmental Law and Policy (CASELAP). He has published numerous books and articles on Environmental Law, Environmental Justice Conflict Management, Alternative Dispute Resolution and Sustainable Development. Dr. Muigua is also a Chartered Arbitrator, an Accredited Mediator, the Africa Trustee of the Chartered Institute of Arbitrators and the Managing Partner of Kariuki Muigua & Co. Advocates. Dr. Muigua is recognized among the top 5 leading lawyers and dispute resolution experts in Kenya by the Chambers Global Guide 2022.

References

Adom, D., ‘The Place and Voice of Local People, Culture, and Traditions: A Catalyst for Ecotourism Development in Rural Communities in Ghana’ (2019) 6 Scientific African e00184.

Anne-Marie Deisser and Mugwima Njuguna, Conservation of Cultural and Natural Heritage in Kenya (2016) 1 accessed 6 January 2021.

Cities U and Governments L, Culture in the Sustainable Development Goals: a Guide for Local Action (Academic Press 2015) accessed 3 January 2021.

Convention on the Protection and Promotion of the Diversity of Cultural Expressions 2005, Paris, 20 October 2005.

Constitution of Kenya, 2010, Laws of Kenya, Government Printer, Nairobi.

Dessein, J. et al (ed), ‘Culture in, for and as Sustainable Development: Conclusions from the COST Action IS1007 Investigating Cultural Sustainability,’ (University of Jyväskylä, Finland, 2015), p. 14. Available at http://www.culturalsustainability.eu/conclusions.pdf (accessed 6 January 2021).

Harris J, ‘Basic Principles of Sustainable Development’ (2001).

Human Rights Watch, ‘Kenya: Abusive Evictions in Mau Forest’ (Human Rights Watch, 20 September 2019) https://www.hrw.org/news/2019/09/20/kenya-abusive-evictions-mau-forest (accessed 6 January 2021).

The Ministry of Sports, Culture and Heritage, ‘The Ministry,’ http://sportsheritage.go.ke/the-ministry/  (accessed 6 January 2021)..

Nocca F, ‘The Role of Cultural Heritage in Sustainable Development: Multidimensional Indicators as Decision-Making Tool’ (2017) 9 Sustainability 1882, 2 https://www.agbs.mu/media/sustainability-09-01882-v3.pdf (accessed 6 January 2021).

Republic of Kenya, Implementation of the Agenda 2030 For Sustainable Development in Kenya, June, 2017, 45 https://www.un.int/kenya/sites/www.un.int/files/Kenya/vnr_report_for_kenya.pdf (accessed 6 January 2021).

The Ngorongoro Declaration on Safeguarding African World Heritage as a Driver of Sustainable Development, adopted in Ngorongoro, Tanzania on 4 June 2016.

UNDP, ‘Sustainable Development Goals | UNDP in Kenya’ (UNDP) https://www.ke.undp.org/content/ kenya/en/home/sustainable-development-goals.html (accessed 6 January 2021).

United Nations Educational, Scientific and Cultural Organization (UNESCO), ‘Culture for Sustainable Development,’ available at http://en.unesco.org/themes/culture-sustainable-development Accessed 6 January 2021.

United Nations, Transforming our World: the 2030 Agenda for Sustainable Development, A/RES/70/1, Resolution adopted by the General Assembly on 25 September 2015, para. 36.

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Former KCB Company Secretary Sues Over Unlawful Dismissal

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Former KCB Group Company Secretary Joseph Kamau Kania who has sued the Bank for Unlawful Dismissal

Former KCB Group Company Secretary Joseph Kamau Kania has sued the lender seeking reinstatement or be compensated for illegal sacking almost three years ago. Lawyer Kania was the KCB Group company secretary until restructuring of the lender in 2021 that saw some senior executives dropped.

Through the firm of Senior Counsel Wilfred Nderitu, Kamau wants the court to order KCB Group to unconditionally reinstate him to employment without altering any of the contractual terms until his retirement in December 2025.

In his court documents filed before Employment and Labour Relations Court, the career law banker seeks the court to declare the reorganization of the company structure a nullity and amounted to a violation of his fundamental right to fair labour practices as guaranteed in Article 41(1) of the Constitution. He further wants the court to declare that the position of Group Company Secretary did not at any time cease to exist within the KCB Group structure.

He further urged the Employment Court to declare that the recruitment and appointment of Bonnie Okumu, his former assistant, as the Group Company Secretary, in relation to the contemporaneous termination of his employment, was unprocedural, insufficient and inappropriate to infer a lawful termination of his employment.

“A declaration that the factual and legal circumstances of the Petitioner’s termination of employment were insufficient and inappropriate to infer a redundancy against him, and that any redundancy declared by the KCB Group in relation to him was therefore null, void and of no legal effect and amounted to a violation of his fundamental right to fair labour practices as guaranteed in Article 41(1) of the Constitution,” seeks lawyer Kamau.

Kamau says he was subjected to discriminatory practices by the KCB Bank Group in violation of his fundamental right to equality and freedom from discrimination as guaranteed in Article 27 of the Constitution and the termination of his employment was unfair, unjustified, illegal, null and void.

Lawyer Kamau further seeks the court to declare that the Non-Compete Clause in the 2016 Contract is unenforceable by the KCB Group as against him and is voidable by him as against the Bank ab initio, byreason of the termination of the Petitioner’s employment having been a violation of Articles 41(1) and 47(1) and (2) of the Constitution, and of the Employment Act.

He also wants the Employment Court to find that finding that KCB’s group legal representation by Messrs of Mohammed Muigai LLP Advocates law firm in respect of his claim for unlawful termination of employment resulted in a clear conflict of interest by reason of the fact that a Founding and Senior Partner at the said firm lawyer Mohammed Nyaoga is also the Chairman of the CBK’s Board of Directors.

“A Declaration that the circumstances of KCB’s legal representation by Messrs. Mohammed Muigai LLP Advocates resulted in a violation of the Petitioner’s fundamental right to have the employment dispute decided independently and impartially, as guaranteed in Article 50(1) of the Constitution,” seeks lawyer Kamau.

Kamau is seeking damages against both KCB Group and Central Bank of Kenya jointly and severally for the violation of his constitutional and fundamental right to fair labour practices.

He wants  further wants court to declare that CBK is liable to petitioner on account of its breach of statutory duty to effectively regulate KCB Group to ensure that KCB complied with the Central Bank of Kenya Prudential Guidelines and all other Laws, Rules, Codes and Standards, and that, as an issuer of securities, it complied with capital markets legislation.

Kamau through his lawyer Nderitu told the court that he was involved in Shareholder engagement in introducing the Group aide-mémoire that significantly improved the management of the Annual General Meetings, including obtaining approval without voting through the Memorandum and Articles of Association of Kenya Commercial Bank Limited among others.

He said that during his employment at KCB Bank Kenya and with the KCB Group, he initially worked well with former KCB CEO Joseph Oigara until 2016 when the CEO allegedly started sidelining him by removing the legal function from his reporting line.

He further claims he was transferred from the Group’s offices at Kencom House to its offices Upper Hill under the guise that the Petitioner was merely to support the KCB Group Board.

He adds that at that point his roles were given to Okumu for reasons that were not related to work demands.  He stated that Oigara at one time proposed that he should leave his role in the KCB Group and go and serve as the Company Secretary of the National Bank of Kenya Limited, a subsidiary of the Group, a suggestion which he disagreed with to Oigara’s utter annoyance.

Kamau stated that his work was thenceforth unfairly discredited, leading to his being taken through a disciplinary process whose intended outcome failed miserably, and the Petitioner was vindicated.

“More specifically, the Petitioner contends that the purported creation of a new organizational structure towards the end of 2020 was in fact Oigara’s orchestration targeted to remove certain individuals by requiring them to undergo interviews in the pretext that new roles were created, and amounted to a further violation of the Petitioner’s fundamental right to fair labour practices under Article 41(1) of the Constitution,” said in his court documents.

He further adds that this sham reorganization demonstrates how the role of the KCB Group Company Secretary purportedly ceased to be and was then very briefly replaced with a new role of the KCB Group General Counsel. The role of KCB Group Company Secretary then ‘resurfaced’ immediately thereafter, in total violation of legal and regulatory requirements.

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Court of Appeal Upholds Eviction of Radcliffes from Karen Land

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Adrian Radcliffe, the Expatriate Squatter, Evicted from Karen Property by Innocent Purchaser for Value

The Court of Appeal has stayed the decision of the Environment and Land Court purporting to reinstate Adrian Radcliffe into possession of the 5.7 Acre Karen Land by Kena Properties Ltd after eviction by the lawful owners in February 2022. Adrian Radcliffe who was evicted by Kena Properties Ltd, the innocent purchaser of the Land for value.

Before his eviction, Mr. Radcliffe had been living on the land as a squatter expatriate for 33 years without paying any rent. Since he moved into the property as a tenant, he only paid deposit for the land in August 1989 despite corresponding severally with the owner of the land. His attempt to acquire the land by adverse possession claim filed in 2005 was dismissed by Court in 2011 on the basis that he has engaged with the owner of the land July 1997 and agreed to buy the land which he failed to do. The High Court [Justice Kalpana Rawal as she then was] concluded that:

“His [Mr. Adrian Radcliffe] averments that he did not have any idea of the whereabouts of the Defendant and that he could possibly be not alive, were not only very sad but mala fide in view of the correspondence on record addressed by him to the Defendant’s wife. I would thus find that the averments made by him to the contrary are untrue looking to the facts of this case.”

On 10th March 2022, Mr. Adrian Radcliffe and Family purported to obtain court orders for reinstatement into the land. However, the Court of Appeal issued an interim stay of execution of the said orders. The Court of Appeal has now granted the application of Kena Properties Ltd and stayed the execution of the Environment and Land Court Order pending the hearing and determination of the Appeal.

The Court also stayed the proceedings at the Environment and Land Court on the matter during the pendency of the Appeal. In effect, the eviction orders issued by the Chief Magistrate Court for eviction of Mr. Adrian Radcliffe in favour of Kena Properties as the purchaser of the property for value were upheld and the company now enjoys unfettered ownership and possession of the suit property until the conclusion of the Appeal.

The Court of Appeal in granting the orders sought by Kena Properties Ltd concurred with Kena Properties Ltd that as the property owner it had an arguable appeal with a high probability of success which would be rendered nugatory if Adrian Radcliffe a trespasser was to resume his unlawful possession of the suit property, erect structures thereon, recklessly use or abuse the said suit property as he deems fit. In any case, that is bound to fundamentally alter the state of the suit property and render it unusable by Kena Properties Ltd as the property owner.

At the same time, the Appellate Court rubbished the argument of Adrian Radcliffe in opposition to the application for stay that he has been in occupation of the suit property for more than 30 years and that he and his family were unlawfully evicted from the suit property on 4th February, 2022. The Court also rejected Radcliffe’s claim that Kena Properties Ltd has no valid title to the suit property and held that as the purchaser, the company was entitled to enjoy ownership and possession of their property during the pendency of the appeal.

The Court dismissed claims of Mr. Adrian Radcliffe that Kena Properties Ltd as the property owner acquired title to the suit property illegally and unprocedurally finding to the contrary. Further, it rejected Adrian Radcliffe’s claim that Kena Properties as the purchaser cannot evict a legal occupier of a property putting paid to the claim that he was a legal occupier at the time of eviction.

As a matter of fact, Mr. Adrian Radcliffe cannot claim to be the legal occupier of the property having attempted to acquire it by adverse possession before the High Court thwarted his fraudulent scheme on 28th February 2011. Mr. Radcliffe did not appeal the 2011 High Court decision meaning it is still the law that he is not the owner of the land nor the legal occupier of the land having attempted to adversely acquire against the interests of the lawful owner who sold it to Kena Properties.

Mr. Adrian Radcliffe is a well-to-do Water, Sanitation and Hygiene (WaSH) UNICEF consultant and former UN employee (who has been earning hefty House Allowance). Many have wondered why he has been defaulting in paying rent for 33 years on the prime plot of land in Karen while living large and taking his kids to most expensive schools in Kenya. No question, a local Kenyan could never have gotten away with such selfish impunity.

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Review: Journal of Conflict Management and Sustainable Development, Vol. 9, No. 1

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The Journal of Conflict Management and Sustainable Development, Volume 9, Issue No. 1, which is edited by and published by Dr. Kariuki Muigua, PhD is out and stays true to the reputation of the journal in providing a platform for scholarly debate on thematic areas in the fields of Conflict Management and Sustainable Development. The current issue published in September 2022 covers diverse topics including Resolving Oil and Gas Disputes in Africa; National Environment Tribunal, Sustainable Development and Access to Justice in Kenya; Protection of Cultural Heritage During War; The Role of Water in the attainment of Sustainable Development in Kenya; Property Rights in Human Biological Materials in Kenya; Nurturing our Wetlands for Biodiversity Conservation; Investor-State Dispute Resolution in a Fast-Paced World; Status of Participation of Women in Mediation; Business of Climate Change and Critical Analysis of World Trade Organization’s Most-Favored Nation (MFN) Treatment.

Dr. Wilfred A. Mutubwa and Eunice Njeri Ng’ang’a in “Resolving Oil and Gas Disputes in an Integrating Africa: An Appraisal of the Role of Regional Arbitration Centres” explore the nature of disputes in the realm of oil and gas in Africa taking a look into the recent continental and sub-regional developments in a bid to establish regional integration. Additionally, it tests the limits of intra-African trade and dispute resolution and the imperatives for the African regional courts and arbitration centres. In “National Environment Tribunal, Sustainable Development and Access to Justice in Kenya,” Dr. Kariuki Muigua discusses the role played by the National Environment Tribunal (NET) in promoting access to justice and enhancing the principles of sustainable development in Kenya. The paper also highlights challenges facing the tribunal and proposes recommendations towards enhancing the effectiveness of the tribunal.

Dr. Kenneth Wyne Mutuma in “Protecting Cultural Heritage in Times of War: A Case for History,” argues that cultural heritage is at the heart of human existence and its preservation even in times of war is sacrosanct. It concludes that it is thus critical for states to take positive and tangible steps to ensure environmental conservation and protection during war within the ambit of the existing international legal framework. In “The Role of Water in the attainment of Sustainable Development in Kenya,” Jack Shivugu critically evaluates the role of water in the attainment of sustainable development in Kenya and argues water plays a critical role in the attainment of the sustainable development goals both in Kenya and at the global stage. The paper interrogates some of the water and Sustainable Development concerns in Kenya including water pollution, water scarcity and climate change and suggests practical ways to enhance the role of water in the Sustainable Development agenda.

Dr. Paul Ogendi in “Collective Property Rights in Human Biological Materials in Kenya,” reflects on property rights in relation to human biological materials obtained from research participants participating in genomic research. He argues that property rights are crucial in genomic research because they can help avoid exploitation or abuse of such precious material by researchers. In “Nurturing our Wetlands for Biodiversity Conservation,” Dr. Kariuki Muigua notes that Wetlands have a vital role in not just delivering ecological services to meet human needs, but also in biodiversity conservation. Wetlands are vital habitat sites for many species and a source of water, both of which contribute to biodiversity protection. The paper examines the role of wetlands in biodiversity conservation and how these wetland resources might be managed to improve biodiversity conservation.

Oseko Louis D. Obure in “Investor-State Dispute Resolution in a Fast-Paced World,” preponderance of disputes between States or States and Investors created need for a robust, effective, and efficient mechanisms not only for the resolution of these disputes but also their prevention. He notes that developing states lead in being parties to Investor-State Disputes (ISD) particularly as respondents. He proceeds to conceptualize and problematize investor-state disputes resolution in a fast-paced world. Lilian N.S. Kong’ani and Dr. Kariuki Muigua in “Status of Participation of Women in Mediation: A case Study of Development Project Conflict in Olkaria IV, Kenya” review the status of participation of women in mediation to resolve conflicts between KenGen and the community. The paper demonstrates a need for further democratization of the mediation processes to cater for more participation of women to enhance the mediation results and offer more sustainable resolutions.

Felix Otieno Odhiambo and Melinda Lorenda Mueni in “The Business of Climate Change: An Analysis of Carbon Trading in Kenya analyses the business of carbon trading in the context of Kenya’s legal framework. The article examines the legal framework that underpins climate change into the Kenyan legal system and provides an exposition of the concept of carbon trading and its various forms. Michael Okello, in “Critical Analysis of World Trade Organisation’s Most-Favored Nation (MFN) Treatment: Prospects, Challenges and Emerging Trends in the 21st Century,” highlights the rationale behind MFN treatment and also restates the vision of multilateral trade to achieve equitable and special interventions with respect to trade in goods, services and trade related intellectual property rights in the affected states.

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