Research Update

As we near the end of our research project and are preparing for our final events in Nairobi later this month I thought you might like to hear a little more about what our researchers have been up to over the last two and a half years.

Research on FGM/FGC was carried out by Principal Investigator Lotte Hughes, in Maasai and Pokot communities. She has become increasingly interested in Alternative Rites of Passage (ARP), promoted by NGOs as an alternative to girls’ initiation rituals that have ‘traditionally’ involved FGM. She is approaching ARP through the lens of critical heritage studies, and in the historical context of colonial-era campaigns against FGM that have continuities in contemporary advocacy. Human rights arguments against FGM often invoke the constitution, which condemns harmful cultural practices.  At the same time, ARPs include cultural components out of respect for cultural rights.

Research by Steve Ouma Akoth (consultant) is based in Yala, western Kenya. He has been grappling with the question, ‘Are Yala residents planning to use the katiba to press for their cultural rights?’  in the contestations in Siaya between a group calling itself the ‘Yala community’ and a commercial farm, Dominion. Research has involved interactions with many actors, and the monitoring of a case brought to Kisumu High Court by Yala residents, who won an action against Dominion Farm.  Notions of cultural heritage were used by the plaintiffs (subsistence farmers and fishermen) in their claim against two county councils and Dominion Farm.

Mark Lamont (Research Associate) has been studying forced male circumcision as a form of male gender violence. In Kenya, where this project has pursued questions of culture, rights, and the governance of law, there is a situation developing where female circumcision is almost unanimously condemned but male circumcision is mostly accepted, even promoted as a voluntary way of reducing HIV infections. But the lines between voluntary male circumcision and forcible circumcision are thinly drawn and there remains the question of whether or not  forced male circumcisions – which happen with a frequency and violence that would suggest not culture but criminality – are better understood as forms of male gender violence implicated in a crisis of masculinity, the hardening of tribal identity, and competing notions of citizenship.

Zoe Cormack (former Research Associate) tracked ‘culture’ as a site of claim making and resistance in northern Kenya, where pastoralist ‘culture’ and ‘heritage’ are being strategically employed by activists and civil society to negotiate or contest anticipated changes such as the LAPSSET development project.  A central focus was the development of bio-cultural community protocols (BCP), legal documents that seek to enshrine people’s rights as custodians of the bio-cultural landscape.

Introducing the County Study

Banner at the Marsabit-Lake Turkana Cultural Festival, May 2015.  Image Credit: Zoe Cormack

During this, the final year of our project we have decided to do an additional desk study which we plan to release as a briefing report in May.  The project is being done jointly by myself Mark Lamont and project consultant, Gordon Omenya.

The study is called “County Governance and the Uses of Culture” and is a survey of the ways in which culture is being mobilised as a way of organising knowledge, resources, people, conflicts, markets, and  landscapes into new forms of governance and management under the devolved system of County Governments. Put more simply we are examining how County Governments form policy on cultural matters, looking at any draft legislation coming out of it, and seeing what cultural organizations, such as Councils of Elders, National Museums Kenya, the Ministry of Education, are doing in response to these developments.  For example, we are looking at cultural festivals (particularly Turkana and Lamu), how NMK buildings are being used, the funding and construction of new cultural centres, school and church synod performances and competitions, Councils of Elders and alternative dispute managements.

We are also looking at the marginalization of political or cultural groups within these new assemblages of power. Crucially, is devolution allowing a shake-up of the old political order, and permitting new social relations and rights processes to emerge?

Some interesting themes have already begun to emerge: one of them is a transnational identification (as in the case of the Nile Valley Cultural Festival, and Maulidi at Lamu – for the Swahili ecumene) and the proliferation of claims to indigeneity.   However what interests me most, are the new forms of cultural activism taking place throughout the country focused on culture, health, and the environment (here, we plan to focus on Friends of Lake Turkana and the Save Lamu Coalition). New movers and shakers, many of them with advanced degrees and great depth of professional experience, are taking on innovative and hybrid roles as go-betweens, mediators of County Government assemblies, on the one hand, with globalised non-governmental or tertiary sector organisations on the other. The language of cultural and community rights, environmental justice, and new social methodologies for conflict resolution are moving into the heart of discussions about the uses of culture. It is exciting stuff to be observing, with implications for the reallocation of political alliances and power within County Governments themselves and we look forward to sharing more of our findings with you as we make progress with the study.

Dance groups at the Marsabit-Lake Turkana Cultural Festival, May 2015.  From Left to Right, Rendille, El Molo and Dassanach.  Image Credit: Zoe Cormack

Making a song and dance about FGM

Image Credit:  ©2016 World Vision, Jon Warren

Elder William Lopetakou, also known as ‘Mr Culture’, leads hundreds of singing and dancing girls and boys at an Alternative Rite of Passage ceremony organised by the NGO World Vision in West Pokot, Kenya.

These rites, which include several days of training leading up to a public graduation ceremony, have been designed to offer an alternative to girls’ initiation into adulthood – but without FGM (female genital mutilation).  FGM is against the law in Kenya, but is still widely practised by certain communities, who believe it is a marker of traditional initiation.

Alternative Rites of Passage have become very popular in Kenya in recent years, run by different NGOs (non-governmental organisations). They are usually held in early December to coincide with the ‘cutting season’. This is when girls are most at risk of FGM (and the forced early marriage that usually follows it) as they return home for the Christmas holidays, often from boarding school. FGM is colloquially known in Kenya as ‘the cut’.

Participant Sharon Cherop said the training had taught her that “culture is strong, and we treasure and keep it. But when it holds you back and causes pain, we throw it away”.

Not all NGOs include boys in their Alternative Rites of Passage. But World Vision sees this as vital, and includes them both in the training sessions and the public graduation ceremony, where they are awarded certificates of participation (just as the girls are). Boys are taught about the disadvantages of FGM, how to protect their sisters from it, and about the importance of children’s rights. They are also encouraged to marry uncircumcised girls, when the time comes to choosing a wife.

‘Mr Culture’ styles himself as a cultural ambassador for the Pokot community. He is employed (together with a female counterpart who calls herself ‘Mrs Culture’) by World Vision to contribute to their Alternative Rites, both the training sessions and the ceremonies. He is also a member of the local council of elders, which supports the concept of Alternative Rites and is trying to spread the message to others. “I always tell the old men that anything that causes harm to mankind is not a good culture. A good culture is one that brings blessings to the people, brings happiness for the people.”

He made sure his three daughters did not undergo FGM but continued with their education. Many girls who have been forced to undergo FGM drop out of school.

  • Lotte Hughes (project leader) attended this and other ceremonies in West Pokot and Narok Counties in Nov/Dec 2016, to gather data for her case study on Alternative Rites of Passage. She will be writing about this in the coming months.
  • Many thanks go to World Vision staff in Kenya for facilitating Lotte’s trip. Thanks also go to the photographer, Jon Warren, for sharing this image.

Storymoja Culture panel: two years on

Muthoni Garland, founder of Storymoja festival introducing the artists (Lotte Hughes second from right)

As the organisers for this year’s Storymoja Festival, which is happening in Ghana this year, are gearing up to launch tomorrow, I have been reflecting on the panel Lotte was involved in two years ago.  On the 20th of September at the Louis Leakey Auditorium at Nairobi National Museum Lotte took part in a discussion on culture and the constitution chaired by Mshai Mwangola and featuring Aghan Odero Agan (Director, Kenya Cultural Centre, Nairobi), Karega-Munene (United States International University [USIU], Nairobi), Steve Ouma Akoth (Pamoja Trust, and affiliated to The Open University) and Daniel Salau (Director of the NGO Simba Maasai Outreach Organization, SIMOO). At the time of the panel we were less than three weeks into the project but several of the issues discussed then have returned again and again during the project.

Central to the discussions on the day were competing definitions of culture.  Lotte defined it as ‘who we think we are, which is not necessarily the same as who we are’; while Aghan Odero felt that it was ‘the totality of how we live our lives’ he also emphasised the importance of it being handed down through the generations ‘[Culture is]something you pass on that’s better, so the next generation can survive better.’  This idea of passing something down over time was also emphasised by Daniel Salau who argued that ‘culture must have come from very far, like across the generations.  It’s an accumulation of knowledge’.  He also felt that this contributed to the dynamism of culture rather than made it static. Karege-Munene emphasised his training as an anthropologist and thought it was important to point out that culture was learnt and could be invented, it was not something people inherently knew at birth.  He also expressed concern that the constitution ‘rigidified’ culture while seeking to protect it.  Steve Akoth backed him up on both his definition and his concerns that the constitution sought to rigidify and assign ‘culture’ to certain groups in Kenya.

The debate focussed on several binary oppositions such as national vs. ethnic culture and cultural rights vs Human Rights.  Steve argued that cultural rights and human rights should be seen as being in conversation with each other rather than in opposition to one another.  He said that the real question was ‘How do Kenyans live with various levels of precariousness? … the way precariousness manifests itself seems to have a bearing in the way people position themselves either using culture or using the bill of rights [to improve their situation] in this country.’

The biggest conflict discussed was that between an idea of a national culture and ethnic identity.  Mshai quoted Karege-Munene’s previous work to highlight a fundamental conflict at the heart of the constitution which seeks to create ‘one indivisible sovereign nation’ while also privileging ‘cultural and ethnic hegemonies by groups claiming impunity or deep rootedness to specifically bounded spaces.’  This is perhaps most controversial when it is tied to issues of land ownership and two of our case studies focus on this issue. Lotte and Mshai Mwangola made repeated pleas to the audience to try and think about culture as separate from ethnicity but the discussion kept returning to this point.  Godrey Muriuki perhaps summed it up best when he said ‘We have not agreed on what we mean or what we want the Kenyan culture to be because we have so many ethnicities or communities and we have not agreed how we are going to weld those communities together.’

Towards the end of the discussion Gabrielle Lynch asked whether minority groups were making use of the rights enshrined in the constitution or whether they continued to focus on international institutions as sources of redress.  This is a question central to our research.  Are Kenyans using their cultural rights, as enshrined in the constitution, and if so how?

You can listen to the whole debate here

Or read the full transcript on the Outputs section of the website.

“Katiba Ni Yetu” – Celebrate, Uphold, Defend

Today we are excited to have another guest blog, this time from Diana Mukunu who

Ni Yetu Logo

Ni Yetu Logo

Particpated in the Ni Yetu walk. A group of activists recently walked 350 km across Kenya to mark the 6th anniversary of the Katiba, talking about and promoting the constitution all the way.  They are passionately committed to improving knowledge about, and understanding of, the constitution.  You can find find out more about Ni Yetu on their Facebook page or follow them on twitter @NiYetuKE.

Diana Mukunu had the following to say: 

It has been six years since the promulgation of the constitution, but only a few Kenyans know anything about it. What remains in the minds are the historical injustices, including the 2007 Post-Election Violence, the International Criminal Court , the subsequent internal displacement of citizens and the ‘Nusu Mkate’ regime which saw Kenya install an office for a prime minister. Squabbles still followed over jurisdictions, and Kenyans – from squatters in the Rift to homeowners in Runda – wide-eyed with bafflement, were continually being treated to a circus, or at best, a poorly directed satire with the cast of greedy elite in a tag-of-war over public resources and a sense of self-importance. Their need to be worshipped was unmistakable. No matter the cost, they needed to possess the nation’s instruments of utmost influence. It is safe to say that 2007 PEV was the worst election-related anarchy Kenya has ever witnessed, despite having experienced many others.

To date, the main perpetrators have not been convicted, and Kenyans are still divided on tribal lines; and because of it, many are unable to return to their homes. The guilty continue to rule Kenya, because here, financial wealth and influence absconds perpetrators from liability. The Truth, Justice and Reconciliation Commission paid effort in trying to reunite the country, but dissatisfaction still simmers quietly among Kenyans.

However, in the aftermath, Kenya birthed the current constitution which delegates powers of the state-head, so as to allow accountability, and affirms systems that work for the citizenry, like that of devolution, which channels resources back to the county government.

But Kenyans are naïve to the notions of self-empowerment. Years of single party rule – where tenets and dictatorial propaganda were fed from podiums and broadcast channels – programmed us and robbed us of the ability to reason and deliberate for ourselves. Repeated betrayal from those we elect to power has made us deem patriotism a foreign concept. Instead, we hold an “it’s our turn to eat” philosophy, which translates to successive tribal rule that gives license to the scavenging elite to pick on the very flesh off our sun-beat backs, enabled by our ignorance and apathy on matters of governance. The people do not know, and so they perish.

It is on this backdrop that Ni Yetu Walk was organized – a movement that saw young Kenyans, many being artists, walk 350 Kilometers from Kisumu to Nairobi. We went from one town to another, market places to shopping centers, schools to villages, engaging and sensitizing communities about their hard-earned civil rights, duty and power. We sought to instill in Kenyans a sense of patriotism, re-igniting a sense of value invested in the document.

We took notes too. Kenyans are tired. They want change. They want to see their standards of living elevated. As much as we agree with them that the fish rots from the head, ours was also to remind them that it is us – the people – who hire incompetence by electing the leaders we have, and then tolerate substandard service. We felt a great sense of affirmation knowing that most of us still love Kenya and are willing to take the right steps and make due sacrifices to change our country.

We reminded Kenyans that Kenya is ours, that we have the power to make decisions for a better tomorrow; that it is us who are the very tools used by corrupted leaders to tear down and siphon out development and sound prospects for our future, and it is therefore us still who should make change for the better. “Katiba Ni Yetu” – it IS for us. It speaks for and fights for us. We are therefore obligated to celebrate, uphold and defend it, so as to ensure the progress of Kenya, and to see to the ultimate end of social ills and depravity.

All images provided courtesy of Ni Yetu.

#ZambiaDecides on Cultural Rights

Last Thursday, the 11th of August, Zambians went to the ballot to vote for a new president for the fifth time in 10 years.  However, in addition to voting in a local and national election the Zambian people have also been asked to make some important decisions about their constitution. The Zambian constitution dates from 1964, when, like the first Kenyan constitution it was negotiated with the British at Lancaster House.  Unlike in Kenya, this constitution was never revoked and all further changes to the constitution were amendments of this document, the latest of which was passed on the 5th of January 2016.

President Lungu of the PF party retained his presidency but the outcome of the referendum is still unknown.


Comic Book produced by the Electoral Commission of Zambia

The decision to hold the referendum on the same day as the general election has been controversial due to concerns that decisions about the constitution will be influenced by party politics.  The Grand Coalition, which was formed in 2013 to campaign for a new constitution has argued that decisions as important as those about the constitution should be taken in a calmer, less partisan atmosphere.  In addition, the focus of the press and public debate on the presidential election has led to fears that the issues around the referendum may not be well understood.  The Electoral Commission of Zambia has created documents explaining the proposed changes to the constitution, including one in cartoon form.



The referendum question is phrased as follows:

‘Do you agree to the amendment to the constitution to enhance the Bill of Rights contained in part 3 of the constitution and to repeal and place Article 79 of the Constitution of Zambia?’

The changes proposed were laid out as follows:

 Zambia Bill 2016

The bill has been criticised for extending the rights of the executive rather than curbing them.  However, the revision also means that the constitution will now include civil, political, economic, social, cultural, environmental, further and special rights.  Page 7 of the cartoon booklet (see below) links cultural rights to language rights and states that ‘Cultural Rights relate to art and culture.  The objective of these rights is to guarantee that people and communities have an access to culture and can participate in the culture of their choice.’  By increasing the number of rights guaranteed to its people, Zambia is following an international trend which has seen an increase in the average number of rights provided for in constitutions since the mid-twentieth century.  The bill also specifies that redress for contraventions of the Bill of Rights can be sought in the constitutional court.  If the referendum vote is ‘yes’ it will be interesting to see how Zambians exercise their right to culture in the coming years.

Cultural rights, as explained by the Electoral Commission of Zambia

Cultural rights, as explained by the Electoral Commission of Zambia

NOTE: 22 August 2016. The changes to the constitution were not passed.  Although the majority of people who voted, voted yes, the overall turnout was too low.  The threshold for changes to the constitution is 50% of registered voters.

Association of Critical Heritage Studies Conference

We convened a panel at ‘What does heritage change?’ the ACHS Conference in Montreal earlier this month.  Zoe Cormack chaired the panel. Overall 800 people attended the conference which was well organised and informative.  The sessions were predominantly focused on European and American heritage.  Reflecting the dominance of the global north in the field.  This emphasizes the importance of the work we do and the perspective we bring.  We were particularly pleased, in this context, that 50% of our speakers had come from African universities. Our session was well attended and the papers were strong (topics and speakers are listed below), Harriet Deacon acted as respondent and provided an excellent summary of the papers, teasing out common themes.

Image Credit: Matthias Shulze

Caption: Tessa Pijnaker and Zoe Cormack, the panel has lunch together, getting ready for the panel, Steve Akoth giving his paper.


The (Re)Presentation of “Fantasy”: African Heritage and Middle-Class Formation in Accra, GhanaTessa Pijnaker (University of Amsterdan)

Unless They Value our Invisibles, Their Visible Will Never Be Safe: Linking Spirits, Monumental Ruins and Baobab Trees of the Swahili Coast in Tanzania, Dr. Elgidius Ichumbaki (University of Dar es Salaam, Tanzania)

Heritage as Dispossession: A Critical Legal Ethnography of the Postcolony. A South African Case Study, Mr Sadiq Toffa (University of Cape Town)

Moving History and History in the Making: A Contrasting Comparison on Heritage and Memory Culture in Southern Africa, Mr Matthias Schulze M.A.

Promoting Pastoralist Heritage to Protect Communal Land Rights in Northern Kenya Dr Zoe Cormack (The Open University)

Community Land Legislation: An Opportunity for Balance between Ethnic and Territorial Citizenship in Kenya, Dr Steve Akoth (The Open University)


Ogoya Nengo and the Dodo Women’s Group in London

Ogoya Nengo and the Dodo Women's group

Caption: Ogoya Nengo and the Dodo Women’s Group performing at Cafe Oto, May 21 2016. Image Credit: Liz Potts

Last month Ogoya Nengo and the Dodo Women’s Group performed live at Café Oto in Dalston, North London and I was lucky enough to go.  Ogoya Nengo was joined by two other singers dressed in brightly coloured ‘sisal’ skirts over shorts in the colours of the Kenyan flag.  They were accompanied by a handful of musicians playing drums and thum. The performance began with a dramatic ululation that very quickly got the crowds attention and silenced the chatter.   They went on to perform a number of songs and dances using different combinations of singers and musicians, exiting the stage between each performance.  I must confess I was unfamiliar with dodo music and dance but I enjoyed the performance a great deal. Seeing it, however has, left me with a number of questions why do they leave the stage after each song, what do the lyrics mean and in what context did this art form develop?  Above all, I was intrigued by the performance of laughing by one of the male musicians who, on stage alone, demonstrated a range of what sounded like ‘laughs’.

Since the concert I have been trying to find out a bit more about dodo. Hellen A. O. Agak says that dodo is a dance performed by women of reproductive age and that the songs which accompany the dance allow woman to voice their concerns and also to educate younger women and girls.  While, much of the marketing around the concert emphasised the music as timeless and mystical both Agak and Charles Nyakiti Orano locate the origins of the style to a very specific time and place.  Dodo performances seem to have developed in the period shortly after World War II among the Luo.

Ogoya Nengo performing at Cafe Oto, May 21 2016.

Ogoya Nengo performing at Cafe Oto, May 21 2016. Image author’s own.

Ogoya Nengo herself was born in Magoya, Nyanza in 1943 suggesting her career developed alongside the genre itself.   According to Orano it was a fruitful time for Luo music with genres such as Dodo, Bodi, Onandu, Oruta and Gita all developing at this time.   He argues that this flourishing was driven by Kenyans adapting outside influences (which were becoming more widespread) into pre-existing styles.  Orano and Agak give differing, but not mutually exclusive accounts of the development of dodo.  Agak says it derives from the Salo dance which was usually performed by older women for a younger generation of women.  While Orano argues that the genre gained popularity alongside the development of commercial brewing and the widening availability of mass produced alcohol.  Previously brewing had been done to mark important occasions and had been done at parties which also featured singing and dance.  As this practice declined new forms of entertainment, such as dodo, developed.  I fear that the emphasis on timelessness on the part of promoters when it comes to music and art from Africa often obscures histories that are much more interesting and complex and reinforces stereotypes of Africa and Africans as unchanging.

My brief research into dodo has left me with far more questions than answers and I’d if anyone out there has any more information about dodo, Ogoya Nengo herself, or the performed laughing I’d love to hear from them!


Agak, Hellen A. O. Dodo Performance: an avenue for education in and through music. In, Emerging Soloutions for Musical Arts Education n African, Anri Herbst (ed), 2005

Orano, Charles Nyakiti Performance styles of selected Luo contemporary genres. In, Emerging Soloutions for Musical Arts Education n African, Anri Herbst (ed), 2005

Cultural Appropriation: further thoughts.

Angela Kabiru wished to follow up her earlier blog on cultural appropriation so here she is again.  Angela is a researcher at National Museums Kenya, she has a particular interest in landscape archaeology, prehistoric beads and cultural tourism.  She writes:

Cambridge is at it again.

A few months after the cancellation of Pembroke College’s ‘Around The World in 80 Days’ party in March, Queens College decided to host an ‘African themed’ formal dinner which was also met with criticism of cultural appropriation. You can read press coverage in the Metro and RT.

You see, the organizers decided to serve cuisine from Senegal, Morocco, South Africa and Nigeria.  Never mind that Nigeria is in the West, Morocco is in the North and South Africa is, er, obviously in the South. No representation from Central or Eastern Africa. This proves one thing; that the perception of Africa being one expansive country is still alivet, and that certain people cannot be bothered to learn a little about African boundaries. I do not blame this on ignorance. At the University level, are well aware of resources such as Wikipedia, to enlighten them just a little bit on Africa, her peoples and boundaries that our European friends drew at the Berlin conference of 1884. These lines on a map were drawn without local consultation; after all, Africans were still lacking in Civilization. So the good people cut entire communities in two or three, and destroyed many centuries of social organizations. And Africans were denied their rights; the right to practice their own culture and to be who they have always been. They tell us about human rights. Whose rights? When the British introduced their ‘divide and rule’ and the French assimilation policies, it was because they wanted Africans to be totally under their control because Africans had no rights. What the Europeans saw was black, primitive and totally lacking in culture. I am surprised we talk about African Cuisine; if you ask Lugard, he will tell you Africans were cannibals whose only job was to reproduce (I am being polite here). Ah, but I digress.

So then, other people have always viewed Africa as one undifferentiated continent without countries. Haven’t you met someone who thinks Nairobi is in Nigeria and never heard of a country called ‘Uganda’? But hey, if you mention Idi Amin there is some recollection, only they cannot figure out what corner of Africa they came from. So then if Africa is one country, then we share a common cuisine. If there are obvious differences between Spain, Germany and France within a very small geographical area, how can you expect 4 cuisines to represent all of Africa?

And then to make matters worse, assume that since Kiswahili is an African language, it is spoken by all Africans!  Invitations to the said dinner used Swahili phrases. “Hakuna Matata,” and urged students to bring their “rafikis,”along.” These phrases were popularized by the movie ‘Lion King’. This is where it really hurts- that Africa is recognized more for her animals that her people. Actually, we are proud of our animals as well, ignore the fact Africa is also thought of as an expansive Game park. The interesting thing about this dinner is that none of the countries where Kiswahili is spoken was represented. So East Africans have no cuisine at all- we are still at the hunting and gathering stage.

Like I said, I do not blame the current state of affairs on ignorance, but indifference. The Merriam-Webster dictionary defines indifference as a lack of interest in or concern about something: an indifferent attitude or feeling, or absence of compulsion to or toward one thing or another. Nobody cares about what Africans think or feel.

Halimatou Hima, President of the Cambridge University African Society noted that efforts to work with the organizers on the event failed due to a communication breakdown. Alice Davidson, a student writing on the student feminist blog FlyGirlsofCambridge, termed the event as an example of cultural appropriation rather than appreciation. I couldn’t agree more. According to Davidson, this might have been avoided “if the initiative had come from members of the African Society Cambridge themselves, who could then determine the menu and terms of cultural exchange rather than being invited as a token afterthought.” I agree.

She also argued that the organizers were misguided in lumping together an entire continent while serving dishes from just four countries and suggested the formal ought to have been “more honestly named ‘West African’ or ‘South African’ themed, rather than attempting to reduce an entire continent into 3 courses.” I totally agree.

As if this was not bad enough, the formal dinner was to be held in a hall “filled with portraits of white people.” Hahaha. The colonial master still watches over their subjects.

Cambridge is a well respected institution of higher learning. They should in future avoid little embarrassing events such as this. As Halimatou notes, there are historical (and ongoing) prejudices that have defined interactions with the African continent and its peoples; racial prejudice is not something they want Student activists to accuse them of.




Alternative Justice Systems and the katiba: Judge Ngugi’s keynote

On the 20th of April we held a workshop on Cultural Rights in Action: from global policy to local practice at the BIEA, Nairobi.  The workshop offered our researchers the chance to tell our Kenyan contacts and colleagues about the work they’ve been doing. It also gave us the chance to hear what they think about cultural rights issues.

We were very pleased that High Court Judge Joel Ngugi agreed to give the keynote address.  His paper Operationalization of Alternative Justice System: Cultural Rights in Action or Cultural Appropriation was about his work on the Taskforce set up by Chief Justice Willy Mutunga in 2016.  Judge Ngugi heads this Taskforce which has 19 other members, including Dr Steve Akoth, a member of our research team.

Article 159 of the constitution states:

(c) alternative forms of dispute resolution including

reconciliation, mediation, arbitration and traditional dispute

resolution mechanisms shall be promoted, subject to clause


However, it also limits their powers:

(3) Traditional dispute resolution mechanisms shall not be used

in a way that—

(a) contravenes the Bill of Rights;

(b) is repugnant to justice and morality or results in outcomes

that are repugnant to justice or morality; or

(c) is inconsistent with this Constitution or any written law.

The Taskforce is attempting to deal with potential issues and conflicts arising from this part of the constitution.

Judge Ngugi said that historically all communities in Kenya practised some form of African Customary Law and that since colonial times governments have sought to regulate it in several ways.  He argued that the effects of this had been worse than a mere ban because it had caused the law to mutate.  The Taskforce is looking into several complex issues that arise from the formalisation of African Customary Law and Alternative Justice Systems.  For example, how do you ensure that decisions taken through these methods adhere to the values laid out in the constitution? What are the limits of powers of alternative justice, can they be used to settle disputes of any nature or are some issues beyond their remit, if so which ones?  The Taskforce is also keen to ensure that African Customary Law continues to evolve rather than ossify, since there is a danger that by formalising it you remove its flexibility and ability to develop.  Finally, the relationship between alternative forms of justice and the written law needs to be made clear.

We will be following the work of the Taskforce with great interest.