Access to Justice

Access to Justice

Minorities and indigenous communities in Kenya, who happen to be marginalised and the most poor, still face the challenge of poverty, which leads to many other ills especially crime, drug and substance abuse, child, early and forced marriages amongst others. They have faced marginalisation and suffered historical injustices that have consigned them to extreme poverty. This is because the marginalisation that they have suffered has led to the non-respect of their most basic human rights lack of participation to the political and decision-making processes affecting their lives.

In these situations of violations of their rights, many have lacked of access to justice to challenge the non-respect of these rights. To address this challenge and support people achieve development, access to justice is important in overcoming human poverty by strengthen peoples’ choices to seek and obtain remedy for grievances. Access to justice can be defined as the ability of people from disadvantaged groups to prevent and overcome human poverty by seeking and obtaining a remedy, through the justice system, for grievances in accordance with human rights principles and standards.

Citizenship

Statelessness in Kenya has persisted in modern day Kenya among many undocumented marginalized and minority communities. In 2011, the African Committee of Experts on the Rights and Welfare of the Child (ACERWC) found Kenya in violation of the African Children’s Charter and strongly advised the Kenyan government to scrap the discriminatory vetting process and the denials of ID documents to the Nubian child, as well as to implement its birth registration system in a non-discriminatory manner, including ensuring children of Nubian descent are registered immediately after birth . The number of stateless persons is yet to be ascertained. Article 27 of the Constitution places upon the State an obligation to avoid direct or indirect discrimination of any person on any ground.

Through its citizenship programme, CEMIRIDE aims to support communities with citizenship challenges by addressing the existing structural discriminatory practices against minority communities with regards to citizenship.

  1. Huduma Namba Community Radio Programme (supported by Namati, the radio programmes aim is to bring to the limelight concerns and issues affecting minority communities with respect to citizenship and the registration of persons and hence create a critical mass against the continued violation of the citizenship rights of minority communities in Kenya. (Namai link to its citizenship programme)
  2. CEMIRIDE is also part of the CSO Coalition on National Integrated Identity Management System (NIIMS) lobbying against the institutionalisation of the digital identity (Huduma Namba) until all stateless communities are assured of identity. (link to the press release)

International Human Rights Advocacy

a. Universal Periodic Review (UPR)

CEMIRIDE is the Convenor of the Minorities and Indigenous Peoples Thematic Working Group of the national CSOs UPR Coalition. In this role, CEMIRIDE has guided the participation of minorities and indigenous peoples in Kenya in the 3 cycles of the Universal Periodic Review

(UPR) in 2010, 2015 and 2020. Part of this activity includes developing Human Rights Scorecard to track the progress made on the status of human rights in Kenya of indigenous and minority communities, 2010 being the 10th year since the first UPR for Kenya, and also since the Constitution of Kenya 2010 was promulgated.

In the First Cycle (2010) the following recommendation was accepted;

  • 101.114. Implement the recommendations and decisions of its own judicial institutions and of the African Commission on Human and Peoples’ Rights, particularly those relating to the rights of indigenous peoples

While these two recommendations were put on hold, pending, in the session

  • 102.5. Implement all recommendations put forward by the Special Rapporteur on the rights of indigenous people following his visit to Kenya in 2007, as well as ratify ILO Convention No. 169
  • 102.6. Consider ratifying ILO Convention 169, and take steps to implement the United Nations Declaration on the Rights of Indigenous Peoples, including through constitutional and statutory recognition of land and resource rights and effective political participation

In the second cycle (2015) the following recommendations were accepted:

  • 142.176. Strengthen effectively the protection of the rights of indigenous peoples, including to their ancestors’ lands
  • 142.179. Continue implementing the legislation on the protection of the rights of indigenous peoples and their lands
  • 142.180. Continue to uphold the rights of indigenous peoples and minorities, including vulnerable groups

In the third cycle, 2020, two recommendations accepted by the Kenyan government;

  • 142.22 Consider acceding to the 1954 Convention relating to the Status of Stateless Persons and the 1961 Convention on the Reduction of Statelessness
  • 142.257 Consider further measures to enhance the meaningful participation of indigenous peoples in all matters affecting them

b. International Covenant on Civil and Political Rights

Kenya is due for review under the International Covenant on Civil and Political Rights (ICCPR) in 2021. It is important that minorities and indigenous peoples engage in this process, to bring to attention the progress as well as the violations, where necessary of their civil and political rights as enshrined in the Covenant. CEMIRIDE is leading the participation of minorities and indigenous communities in this process

  • Land Rights

In the recent past, the push towards privatization of indigenous peoples’ lands and territories has gained momentum in the East African. This is despite gains made in the legal and policy frameworks to protect community lands. In Kenya, community lands were protected in the Constitution of Kenya, 2010; it has, however, taken more than a decade to effect this. Community land registrars have just been formally appointed to bring into effect Community Land Act (2016) and Regulations (2018). Other facilitating systems such as the community land registry are, however, not yet in place.

Centre for Minority Rights Development (CEMIRIDE), implements action that organize indigenous communities to collectively demand for their land rights, by re-asserting the centrality of their voice in decisions on land and natural resources, and re-commit the governments to respect and promote the land rights of IPs as set out in the relevant policy and legislative frameworks.

  • Internally Displaced Persons

Available data indicates that more than 160, 000 Kenyans are living as internally displaced persons . This figure however does not seem include those that have been displaced due to climate change induced disasters and ethnic conflicts. It is thus arguable that there could possibly be more than 5 million persons who are living as IDPs but who have not been captured in the country’s database. One of the reasons of this is that while there has been a lot of focus on IDPs as a consequence of elections, there has been little or no attention on the IDPs as a result of conflicts and climate changed induced disasters. In 2020 for instance, more than 100,000 people were estimated to be displaced and more than 600,000 indirectly affected with floods that affected 29 out of the 47 Counties of Kenya . In Baringo, tens of thousands of Endorois have been displaced from their lands for more than 30 years now. Members of the Nubian ethnic minority community have suffered displacement from its land ever since independence. Because they were never recognised as Kenyan, it was easy for them to be pushed from their once more than 5000 acres of land any time it was thought to be politically expedient. Many have been reduced to living in conditions probably worse than those in IDP camps.

  • Public Interest Litigation

CEMIRIDE has successfully employed strategic public interest litigation as part of its access to justice strategy. CEMIRIDE has thus litigated complex cases against the state including at the African Court and African Commission (see. Application No. 006/2012 African Commission on Human and Peoples Rights V Republic of Kenya (on behalf of the Ogiek); CEMIRIDE (on behalf of the Endorois Community) v. The Republic of Kenya; Communication No. 276/2003 at the African Commission on Human and Peoples’ Rights & Communication 317 / 2006 – The Nubian Community in Kenya vs The Republic of Kenya).

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