Northern Kenya: A legal-political scar

THE ‘FORMATION OF KENYA’ ERA

Kenya became a British protectorate in 1895 and a colony in 1920. The north was important only for securing Kenya’s territory and governmental authority. The Northern Frontier District (comprised of Turkana, Marsabit, Moyale, Wajir, Mandera, Ijara, Isiolo and Samburu) was contrasted with the colonial administration’s favoured area, the white highlands. Legislation was imposed to control and exploit the people and their region, which colonial officers had already declared to be of no economic value. These laws included the Northern Frontier Province Poll Tax, the Vagrancy Act, the Outlying Districts Act, and the Special Districts (Administration) Act that were only repealed as recently as 1997. Even alien laws such as the India Frontier Crimes Act were tried out in the north.

However, the indigenous inhabitants of the region had little or no sustained contact with the colonial administrator. This could be attributed to their way of life (nomadic pastoralism) or to the region’s rough terrain and harsh climate. This meant that northern Kenya did not experience the political impacts of colonialism that are sometimes held to be beneficial. In fact, the people of the north feel no difference between the colony and the post-colony.

The closed district policy and in particular the creation of the NFD excluded northern Kenya. For a time the region was watched for reasons of territorial control, but as soon as colonial rule had been consolidated, even the watching ceased. The north acquired the characteristics of a Siberia in old Russia, where political enemies and civil servants were banished to re-affirm their political allegiance, or to learn how to stay on the right side of the political law.(1)

The sentiments of colonial officials toward northern Kenya were summed up in the view that ‘there is only one way to treat the Northern Territories and that is to give them what protection one can under the British flag and, otherwise, to leave them to their own customs... Anything else is certainly uneconomic.’(2) ‘Two Kenyas’ became evident, as one district officer recalled in his memoirs:

‘Kenya, as we used to call it… is divided roughly into two halves, the southern half of which consists of what we call the settled area where the white people had their farms and the agricultural natives and plantations, and the northern area which extends from Lake Rudolf to the Somali border and consists of about a hundred thousand square miles of acacia scrub, laval desert and patches of sand desert, roughly twice the size of England. The administrators in the southern half of Kenya thought we were mad to live there at all…’(3)

The closed districts policy caused the two halves of Kenya to dislike each other. Dislike of the north by the south was founded in fear and prejudice. One district officer recalled:

‘The North had a bad name in certain sense; it was regarded by some people like joining the foreign legion and most officers couldn’t or didn’t want to stand more than eighteen months of it, after that they either got bored or their health gave way because of the heat, or they became nervous, so that was the average period during which an officer stayed in that territory. The result of course was that the Government in Nairobi used to have to send new officers fairly frequently, and very often there were not enough volunteers and so people used to be posted there and it was referred to sometimes as a sort of punishment station where you did your eighteen months and having got that over your name was erased from the list…’(4)

The cumulative effect of these attitudes entrenched the separation of the north from the ‘other Kenya’.

THE KENYA POST-COLONY ERA

Successive independent governments failed to unify the post-colony, pursuing differential treatment of regions in the style of the colonial administration. Post-colonial governments continued to neglect northern Kenya or give it minimal consideration. They only saw its relevance during election periods when it (subconsciously, perhaps) sustained the very regimes that distanced it from the rest of the country. The following are illustrations of the shortcomings of post-colonial administrations.

A) UNDEMOCRATIC PARLIAMENT AT INDEPENDENCE

The post-colony parliament was not sufficiently representative. In the immediate aftermath of independence, those attempting to represent a constituency or sections of the population that had been relegated or ignored faced serious consequences. This is demonstrated by the political assassinations of Pio Gama Pinto in 1965 (who was perceived to represent the Asians), J.M. Kariuki in 1975 (who, despite coming from the populous and ruling Kikuyu elite, represented wider principles of inclusion and advocated for the interests of the disadvantaged), and Tom Mboya in 1969 (popular as a nationalist and unionist). Democratic representation was seen as undermining state leadership. The early post-colonial era defined Kenya’s political path, which was followed until the last decade of the 20th century when section 2(1) of the 1963 independence constitution was repealed to pave the way for multi-party democracy in Kenya.

B) RETENTION OF THE COLONIAL LEGACY

This was apparent at two levels. The first was the retention of the colonial structures of government, represented by the unelected provincial/district administration, which was answerable only to the executive.(5) The second was the retention of colonial legislation. (Most laws affecting the north prior to independence were called Ordinances. The post-colonial government simply changed the name from ‘Ordinances’ to ‘Acts of Parliament’.) For example, land in Northern Kenya is even now conceptualised around legal notions of Trust Land, introduced by the colonial administration and accepted by its post-colonial successors.(6) Different land law regimes, such as the Registered Lands Act,(7) applied to the white highlands and other parts of the country. In essence, the law deprived the peoples of northern Kenya from owning the very land on which they were born. Instead, the government held it in trust for them.

C) NEGATIVE ETHNICITY

One notable aspect of post-colonial administrations is the instrumental role played by the tribe. Each president used the tribe for political purposes and to develop his geographical area. Kenyatta used the Kikuyu while Moi used the Kalenjin, and with the Kibaki administration it is back to the Kikuyu. It is tempting to conclude that tribes whose representatives will never be presidents will always be relegated to the backwaters of state affairs. Consequently, multiple nationalisms based on ethnicity have emerged.

D) PARTY POLITICS

Another blunder of the post-colony government was its emphasis on party politics rather than on the development of one Kenya. Moi would often state that only those in a Kenya African National Union (KANU) region or constituency would realise development. However, this was not true, because although election statistics show that northern Kenya supported KANU, it never really received any benefits. So the tribe played a bigger role than the party. The tribe-party axis with respect to leadership effectively relegated other ethnicities, including those from the north.

E) UNDERDEVELOPMENT

Development is to all intents and purposes a measure of inclusion. Northern Kenya has the poorest infrastructure in the country, which means that government services cannot be delivered or guaranteed. Moreover, civil servants posted to the region perceive their assignment as punishment. These negative perceptions have over time forced the people of the north to fight social exclusion and prejudice. Even at the earliest inception of the Kenyan state, they were never integrated into the idea of an independent Kenya. They always believed – and by policy were encouraged to believe – that they were different. They are the people at the periphery, the victims of socio-economic and political injustice.

NATION WITHIN A NATION?

The way in which the Kenya post-colony developed, through the exclusion of many groups within its boundaries, contradicted the nationalism of the anti-colonial struggle. The development of the post-colony was marked by the growth of nations within a nation. It appears that the differential treatment of regions has re-awakened characteristics of nationhood. In a recent regional conference organised by the Northern Frontier Districts Centre for Human Rights and Research (NFD-CHR), over 135 participants asserted their strong roots in northern Kenya and their belief that their way of life distinguishes them from the majority of Kenyans in political, social and economic terms. The question is, has there been a government policy that responds to their way of life as there has been for those in other regions of Kenya?

This raises a number of issues: first, the need to question and reflect on the factors that contributed to the creation of the Kenya of the North, as discussed above; second, the geographical location of northern Kenya which has distanced its people from centralised opportunities; third, the differential treatment of the region in relation to the rest of the country, as demonstrated by successive post-colonial governments; and lastly, the fact that the creation of the Kenya post-colony proceeded without the integration of an integral part of its existence – the north. The government encouraged northern Kenyans to see their region as outside Kenya’s main territory (hence the phrase ‘going to Kenya’). This attitude is reinforced by the striking differences in development and services, especially in security matters, partly fostered by the quality of political representation in the region.

Although Kenya is a democracy in which the representation of the north should be felt, this is hardly the case. The region’s blind and weak political leadership has been unresponsive to its constituents’ problems. Between 1963 and 1982 the ruling KANU transformed Kenya into a de facto one-party state, despite the existence of the Kenya African Democratic Union (KADU) until 1964 and the emergence of the Kenya People’s Union (KPU) in 1969. The entrenchment of KANU had strong roots in the north. Northerners accepted how they were governed, despite the myriad problems affecting them. Political leaders were rewarded with ministerial positions until they were blinded to the way in which the region they purportedly represented was being systematically relegated. This paved the way for politicians from other parts of Kenya to take advantage of that blindness, further impoverishing the people of the north.

For example, political leaders have repeatedly failed to question development projects which have had negative or minimal impacts. One example of many is the Turkwel Gorge project on the border of West Pokot and Turkana districts, which is associated with powerful down-country politicians and which has blocked the Turkwel waters, on which the Turkana have relied for generations and now cannot reach. Political leaders in the north became the stooges of the national ruling elite and the enemy of their own people simply by aligning with the ruling regime. They fostered the region’s disenfranchisement from mainstream Kenya. Even they do not feel part of the north – the region is only relevant to them in the same way it was relevant to the colonialists. When NFD-CHR invited the Pastoralist Parliamentary Group (PPG) to a regional symposium entitled ‘The Kenya of the North Revisited’, all the MPs from the region were absent, their excuse being that Marsabit, the venue, was too far away.

In the post-colony era there has been little government presence in the north. The government decided to arm people through home guards, despite a huge military capability that could protect its citizens but is often idle. Partly as a result, northern Kenya has experienced more internal conflict than any other part of the country. It has also been affected by its proximity to other nations in conflict. The region is the crucible of human rights violations and a zone where conflict is perpetrated with impunity. Under such circumstances the state’s absence is very evident. The fundamental obligation of any state is the protection of its citizens from internal or external aggression. This is lacking in the North. Recent atrocities have taken place with impunity, including those perpetrated by the government.

FUTURE PROSPECTS FOR THE KENYA OF THE NORTH

Before examining the future prospects for the north, a few comparative points need to be made regarding the eras of the colony and the post-colony, and the way in which the region was treated in each.

Of the two eras, which was better for the residents of northern Kenya? The colonial era set in place the character of what was to become the Kenya post-colony, but the independence administration perfected and enforced colonialism’s injurious and divisive policies. Colonialism’s intent was not good; it was discriminatory and selfish in nature, concerned solely with resources. But the colonialist at least made it his duty to know everything in his district and took measures to remedy undesirable situations. In newly independent Kenya the North was ignored.

Besides knowing the people, the colonialist took a keen interest in the land and natural resource base and how best to make this beneficial to both the residents and the administration. This is something that post-colonial administrations have failed to do. The degree of knowledge displayed by the colonial administration is a challenge to the present day administration. Additionally, budgetary allocations in the Kenya post-colony have always treated regions in the north the same as those in central Kenya, despite the differences in land mass, distances and hardships.

Post-colonial governments underestimated the importance of the volatile regimes along the northern borders. The colonial administration took these seriously in a way that post-colonial administrations have not. Moreover, post-colonial governments have demonstrated suspicion of some northern residents, doubting their nationality and citizenship.(8) The post-colony should have embarked at an early stage on the equal treatment of all its regions and citizens, regardless of origin. Sadly, the era of the post-colony produced more second-class citizens than that of the colony.

Future prospects for northern Kenya, and for a united Kenya in general, must take into account the history that created the divide that is evident in the post-colony today. Perhaps one of the vehicles to that unity lies in the draft constitution, if it comes to pass. There is still an opportunity to bring the Kenya of the North into the mainstream of Kenya’s politics as an equal partner in one Kenya. The end game and emphasis should be on how to reform the post-colony in order to forge a new path for its development. This could be spearheaded by the political leadership taking advantage of things like the Constituency Development Fund and the Pastoral Parliamentary Group. It could also be supported by investments in areas such as mobile education, the livestock industry, food security, judicial institutions and empowerment of the female children.

CONCLUSION

The ‘Kenya of the North’ reflects both historical and current realities, but it may also be a projection of the future if drastic political and legal measures are not taken. In the aftermath of colonialism, and during the era of President Moi, the North was only recognised in the language of ‘quota system[s]’ and ‘affirmative action’. Mercy and pity reigned, not equality.

What unites northern Kenya today appears to be little more than its marginalisation and difficult terrain. Now is the time to look beyond this. Political unity should facilitate the growth of social movements that seek respect for and promotion of human rights, democracy and good governance. This is the ultimate path to the formation and development of a new Kenya.

* Ekuru Aukot is Advocate of the High Court of Kenya and the Executive Director at Kituo Cha Sheria, an organization dedicated to the fight for the rights of the marginalised specifically in areas of housing, Land, Labour and governance (http://www.kituochasheria.or.ke).

* Please send comments to [email protected] or comment online at http://www.pambazuka.org/

Notes:

(1) Jomo Kenyatta, Kenya’s first President, was sentenced to seven years’ imprisonment and hard labour at Lokitaung prison in Turkana and was then put under house arrest in Lodwar. The colonialists wanted to remand Kenyatta to a place where nationalistic views did not exist and which did not matter to the colony.

(2) Sir Geoffrey Archer, officer in charge of the NFD in 1920, cited in Harden, B. (1993) Africa: Dispatches from a Fragile Continent, p.193.

(3) Allen, C. (1979) Tales from the Dark Continent, p.112-113.

(4) Ibid, p.115.

(5) Executive power is the bone of contention that is threatening the whole process of constitution-making today. Retention of an executive president goes against the views of Kenyans as articulated in the Bomas draft constitution.

(6) See chapter nine of the constitution (ss.114-120).

(7) See chapter 300 of the Laws of Kenya.

(8) For example, several residents of Wajir district revealed to the author in a recent legal aid clinic that they are still required to prove before the General Service Unit police manning the roadblocks between Mandera and Garissa that they are indeed Kenyans of Somali origin and not from Somalia.