Culture in the Katiba.

A well thumbed copy of the constitution in the Katiba cultural rights office.

A well thumbed copy of the constitution in the Katiba cultural rights office.

Today we have added a PDF of the entire Katiba to our website for people to refer to should they wish to. I thought it might be useful to highlight the sections of the constitution that deal with culture specifically. The italics are my own. You can expect to hear more discussion of these articles as the project progresses.

Culture is first mentioned in the preamble which states that Kenyan’s are:

PROUD

of our ethnic, cultural and religious diversity, and determined to live in peace and unity as one indivisible sovereign nation

Article 11, which comes at the end of ‘Chapter 2 – The Republic’, is entirely devoted to Culture and readts that:

(1) This Constitution recognises culture as the foundation of the nation and as the cumulative civilization of the Kenyan people and the nation.

(2) The State shall –

(a) 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;

(b) recognise the role of science and indigenous technologies in the development of the nation; and

(c) promote the intellectual property rights of the people of Kenya.

(3) Parliament shall enact legislation to –

(a) ensure that communities receive compensation or royalties for the use of their cultures and cultural heritage; and

(b) recognise and protect the ownership of indigenous seeds and plant varieties, their genetic and diverse characteristics and their use by the communities of Kenya.

However, it is also worth noting that the constitution places some limits on cultural rights. Chapter 4 of the constitution is ‘The Bill of Rights’ and Part 3 deals with the ‘Specific Application of Rights’. Under this section both children (53d) and youths (55d) are given the right to be protected from ‘harmful cultural practices.’

Culture also features prominently in a number of other articles, for example Article 44 specifically addresses the issue of ‘Language and Culture’ and reads as follows:

(1) Every person has the right to use the language, and to participate in the cultural life, of the person’s choice.

(2) A person belonging to a cultural or linguistic community has the rights, with other members of that community

(a) To enjoy the person’s culture and use the person’s language;

Or (b)

To form, join and maintain cultural and linguistic association and other organs of civil society

(3) A person shall not compel another person to perform, observe or undergo any cultural practice or rite.

Article 27, which deals with ‘Equality and freedom from discrimination’ mentions culture in points 3 and 4.

(1) Every person is equal before the law and has the right to equal protection and equal benefit of the law.

(2) Equality includes the full and equal enjoyment of all rights and fundamental freedoms.

(3) Women and men have the right to equal treatment, including the right to equal opportunities in political, economic, cultural and social spheres.

(4) The State shall not discriminate directly or indirectly against any person on any ground, including race, sex, pregnancy, marital status, health status, ethnic or social origin, colour, age, disability, religion, conscience, belief, culture, dress, language or birth.

(5) A person shall not discriminate directly or indirectly against another person on any of the grounds specified or contemplated in clause (4)

(6) To give full effect to the realisation of the rights guaranteed under this Article, the State shall take legislative and other measure, including affirmative action programmes and policies designed to redress any disadvantage suffered by individuals or groups because of past discrimination.

(7) Any measure taken under clause (6) shall adequately provide for any benefits to be on the basis of genuine need.

(8) In addition to the measure contemplated in clause (6), the state shall take legislative and other measures to implement the principle that not more than two-thirds of the members of elective or appointive bodies shall be of the same gender.

Religion is often closely related to culture and Article 8 explains that in Kenya ‘There shall be no State religion’. Article 32 then lays out the principles of ‘Freedom of conscience, religion, belief and opinion’.

 

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