By Salad Malicha
The Building Bridges Initiative to a new Kenyan nation is premised on the fact that Kenya has made progress towards consolidating its democratic landscape, but much still remains to be done in addressing underlying challenges that threaten the political, social and economic standing of the country. Our position is informed by the need to utilize this opportunity and institute a structured, people-centred and all-inclusive national dialogue process. In this memorandum, the professionals of Isiolo County have outlined policy, legal and administrative proposals to change the present legal regime so as to build a more united and prosperous Kenya. We also undertook a proper and critical review of the architecture of the constitution and laws of Kenya so as to adequately address the thorny issues of Community Land, Equalization Fund, Insecurity, Sustainable Climate Solutions, Boundaries, Unfavourable Governance Structure, Devolution and issues of unaddressed Historical Injustices, Inclusivity and Marginalization.
Recognising the opportunity under the umbrella of BBI, the professionals from Isiolo County have held BBI consultation forums from early February 2020. Having critically analyzed the priority economic, social and political development needs of the people of Isiolo County we declare our unequivocal support for BBI.
Cognisant of the fact that the Initiative is both necessary and timely coming at a time when there is a need to heal rifts among the leadership and peoples of this country following the do-or-die electoral contests.
Recognising that divisive elections have continued to wreck the fabric of this nation every five years, thus threatening peace and livelihoods and also destroy livelihoods impacting negatively on the economy.
Acknowledging that negative ethnicity and unbridled competition among our political leaders have entrenched a culture of tribalism, cronyism, favouritism and nepotism in the management of our public affairs, giving rise to corruption.
Appreciating that various measures have been undertaken at the national level to address these ills, including the Report of the Eminent Persons on the 2007 Post Election Violence and subsequently through the enactment of the Constitution of Kenya 2010.
We the professionals from Isiolo County having deliberated and widely consulted on the BBI do hereby make the following recommendations:
1. Land in Isiolo County has historically been trust land and has been utilised communally by the people of Isiolo County. The Constitution of Kenya 2010, specifically Chapter 5, renamed such land as community land which is now governed by the Land Act 2012 and Community Land 2016 as enabling legislation. Emphasizing the vital importance of clear land tenure system for prosperity and peace in our county and recognizing ancestral community land rights, and the responsibilities of county governments for protecting the unregistered community and also for public land, we propose that:
- A Constitutional Commission on boundaries be established with a mandate to settle boundary questions within a maximum of two years, for instance, the boundary dispute between Isiolo–Meru Counties and Isiolo-Garissa Counties has never been resolved;
- All public land must be repossessed within a maximum of two years;
- Pursuant to Article 63 of the Constitution and Section 6 of the Community Land Act, unregistered community land became vested in County Governments to hold in trust for communities;
- Prompt and adequate compensation should be paid to communities and persons whose land is earmarked for the LAPSSET Corridor, Isiolo Resort City and any other mega projects before these projects can proceed;
- Undertake land inventories and spatial plans for our County to ensure a smooth process of community land registration;
- Proactively engage all our communities, including the nomadic pastoralists, and coordinate the exercise of public education on the need to agree and register community lands expeditiously;
- Review the Land Value Index Amendment Act 2018 to ensure community land is valued at its correct level in accordance with Article 63 of the Constitution of Kenya;
- In relation to all community land in Isiolo County, an orderly process should be adopted where communities, residents and other stakeholders are adequately consulted through a robust and inclusive public participation process, and their approval sought and received; areas strictly needed for settlement identified, including beneficiaries; proper mapping undertaken; and mapped areas marked for settlement;
- Upper Eastern consisting of Isiolo and Marsabit Counties be recognised as a region on its own because of its unique issues such as marginalization, cultural and economic lifestyle, challenges of poverty, inequality, governance, the skills gap between market requirements and the education curriculum, climate change, low investment and low firm productivity;
- The enormous mineral wealth (gold mine, meteorite rocks, sulphur and precious stones and metals and other minerals) found in the region be sustainably exploited, and value addition mechanisms established within the region. For example, any mineral that is found in the region should be processed within the region;
- Require that any prospecting and exploitation of resources on, under and above the surface of any community or public land be carried out in cooperation with county governments and communities that have customary ownership of the land;
- The National Government to work with the counties in providing the necessary infrastructure for investment and creating a conducive environment for cottage industries and Jua kali Industrial parks and special economic zones should be establishment within the Region;
- Ensure that community land registration takes place before any large scale compulsory acquisition of land. Apply policies uniformly and transparently to minimize suspicion and increase confidence.
- Ensure the exploitation of natural resources to benefit the locals through a defined revenue sharing structure;
- To fully address the challenges of historical land injustices in Isiolo, we propose the strengthening and re-introduction of powerful County Land Management Board which was abolished and their roles taken by the Ministry of Lands and Physical Planning;
- The County Land Management Boards should have powers and functions as those currently being enjoyed by the present National Land Commission and more particularly the powers to investigate Title Deeds, complex land issues and historical land injustices. This will ensure that the land question in Isiolo is speedily resolved;
- Our people living adjacent to the National Game Reserves such as Buffalo springs, Shaba and Bisanadi should be protected from human-wildlife conflict. Revenue sharing from such parks should legally enforced so that (40%) benefits trickles down to the community.
2. Pastoralists are also coming into conflict with ranchers, farmers, horticulturalists and conservation area warders, and thus with State authorities. Scarcity and insecure access to water and pasture land has led to constant friction with ranchers and other users, which has in turn led to violent conflicts such as recent land invasions by private conservationists. The pastoral communities have farmed cattle, goats and camel from time immemorial as the core of their livelihood and culture. It was the currency of most community transactions. The cash economy has, however, still not succeeded to convince the pastoral communities to view livestock as more of an economic activity rather than a tradition. Acknowledging Article 204 of the Constitution on the equalization fund and the delay in its disbursement to marginalized counties, we urge the Government to take the following measures:
- Increase the Equalization Fund from the 0.5% as per the first Commission for Revenue Allocation policy formula to 5%;
- Reject the proposals in the 2nd marginalization policy formula that seeks to add new counties to benefit from the Equalization Fund;
- Instead of relying on relief food which is dehumanising, both the County and National Governments should inculcate robust investment in food security measures targeting livestock, trade, agriculture and access to clean water at a reasonable distance for humans and livestock;
- The County government should alternatively adopt greenhouse farming rather than relying only on the traditional farming methods;
- The Department of Agriculture in the county should introduce drought tolerant crop varieties. The County Department of Livestock will introduce the modern genetic improvement to breed livestock which is fairly resistant to drought and adverse weather conditions;
- Long distance nomadic movements by pastoralists with their herds require local cooperation with sedentary communities and this is not being adequately addressed. The risks of conflict are particularly severe during droughts and similar emergencies. Therefore, we propose 2% of the national revenue be set aside to cushion pastoralists against natural calamities;
- Livestock development be accorded equal budget like agriculture;
- Adopt the concept of feedlot in Charri rangeland which is a disease free zone to ensure constant supply of cattle to Kenya Meat Commission and even for export. However, the County Government must put appropriate infrastructure in place;
- Operationalize a comprehensive National Emergency, Disaster and Crisis Management Strategy rooted in law that is linked to County, Sub-county and Ward level disaster response plans that are renewed periodically;
- Link the National Disaster Risk System to the contingencies fund (Article 208) in the Act establishing it; and
- Put in place pre-emptive and prompt response strategies to common major disasters such as flooding and drought.
3. Bearing in mind that the BBI’s proposal is to develop a national security apparatus that is human-centred, owned by the people and able to deal with conventional and unconventional threats to Kenya and Kenyans, and, recognizing the commitment of the National Government to ensuring effective and accountable protection of our country and our region and agreeing with BBI proposals on Safety and Security, we recommend:
- The Government to invest in counter-radicalization measures and demand National Government investment in the same;
- Demand that national anti-radicalization programs avoid targeting and ethnically profiling of border communities as it has proved counter-productive;
- People living on the Kenya-Ethiopia border be protected from constant harassment and wanton killings by Ethiopian forces;
- Increase cooperation between county governments and national security agencies;
- Develop a peer review mechanism to allow for the county to county cooperation;
- Initiate legislative frameworks to include county governments in matters of security;
- Alternative dispute resolution mechanisms including traditional dispute and conflict resolution mechanisms, mediation or arbitration be entrenched into the Constitution and be supported by enabling legislation;
- Spearhead policy and legislative agenda to eliminate cattle rustling within the pastoralist regions;
- Fast-track issuance of National Identity Cards and invest in young people including but not limited to sports; and
- Link existing and registered Council of Elders to formal mediation processes recognized by the legal systems through training and certification and connect them with judicial and Government institutions nationwide.
4. Aware of the absence of climate change in the BBI Taskforce, we recommend the following:
- Requests the national government to work with county governments to jointly develop modalities to recognize the adaptation efforts of pastoralist communities;
- Increase value addition close to production areas in key sectors such as livestock by generating significant levels of demand, exploiting local breed to increase employment and maintaining livelihoods, taking advantage of livestock keepers’ indigenous knowledge and pastoralists traditional culture and finding market niche for livestock products;
- Request that in the implementation of Kenya’s National Climate Change Action Plan, financial resources provided to counties should enhance the implementation of their policies, strategies, regulations and action plans and their climate change actions concerning both mitigation and adaptation of communities most affected by climate change;
- Preparation of bankable projects for pastoralist communities under the National Climate Change Action Plan; and
- Fast-track the establishment and decentralization of the Kenya Livestock Marketing Boards and the amendment to the Kenya Livestock Branding Act.
5. Appreciating that the BBI proposals on protecting all the existing 290 constituencies, including the protecting seats key for the representation of sparsely populated areas, it is our recommendation that;
- Recognizing that electoral boundary changes are highly sensitive, we recommend that no single Ward, Constituency, or County in the pastoralist areas be merged in any boundary review;
- We strongly propose 5 additional Wards to make it 15 like all other counties. In our case we propose Cherab Ward be split into two (Merti and Cherab Wards), Kinna Ward be split into two; (Kinna and Kulamawe Wards), Sericho be split into two; (Omara and Sericho Wards), Wabera Wards be split into two; (Mwangaza and Wabera Wards) and Bulapesa be split into two; (Kambi Juu and Bulapesa Wards); (This was informed by constitutional petition No. 16 of 2016- formerly Malindi petition No. 9/2016);
- The National Government ensures that the Kenya National Bureau of Statistics reviews and implements an appropriate methodology to enumerate all the residents of the pastoralist areas; and
- Ensure that the Kenya National Bureau of Statistics reviews the benchmarks of the census in other countries with pastoralist populations;
6. Appreciating the value of partnership and investment for the growth of the economy of the frontier and pastoralist counties, we recommend that the National Government fast-tracks and completes all delayed infrastructural developments per the contract timelines, among which are Isiolo-Mandera Road, Isiolo Resort City and LAPSSET. Besides, the government must ensure sustained commitment to fast-track the implementation of NEDI projects and programs:
- With the above development, key roads of international standards connecting Isiolo-Merti- Wajir and Moyale be given priority as such an initiative will open up that region too;
- Programmed infrastructural development (roads, tarmacking, sewer lines) through a clear national resource allocation formula that guarantees equity and fairness;
- With the launch of mega projects, clear identification of pastoral grazing territories inclusive of dry and wet seasons and watering grounds, the National Government in conjunction with the County Government should come up with legal frameworks for grazing and land management;
- The law in this case articulates that in no case shall people be deprived of their property. In case of spoliation, the dispossessed people shall have the right to the lawful recovery of their property as well as to an adequate compensation in case any of the steps articulated in the procedure are violated;
- It is the responsibility of the County Government through the office of Civic Education and Public Participation to sensitize the public and create awareness on the project by involving all stakeholders;
- The County Government should consult the public before they make key decisions that affect the people’s destiny so that the public may give their opinion; and
- State of the art Stadium of FIFA standards be built in the Upper Eastern region preferably Isiolo County to encourage sporting and uplift the youth.
7. Concerned that literacy in pastoralist areas is low, lack of teachers and poor-quality schooling, and noting the BBI’s recommendation for the government to give all Kenyans equal access to a minimum level of quality education that leads to employment or entrepreneurial opportunity, we recommend as follows:
- Open more youth training centres to provide relevant technical and vocational training and resource them adequately;
- Establish quota system and enforce an affirmative action programmes and policies designed to make the region be at par with other parts of Kenya when it comes to matters Education as addressed in Article 27(6) of the Constitution;
- Establish public tertiary colleges and polytechnics in various parts of the County;
- Establish the National Council for Nomadic Education in Kenya to give a legal framework to champion for education in the pastoralist counties;
- Develop a coordination mechanism to enhance effective implementation and accountability of education and training programs;
- Demand flexible education systems that can provide quality education for the children in pastoralists counties.
- Expand adult education programmes for both nomadic and settled communities;
- Enhance school feeding programme for Isiolo County; and
- Revitalise both Day and Boarding schools in Isiolo County
8. Noting that the BBI’s proposal that tackling corruption is the single most important mission for the Republic of Kenya, we support His Excellency the President’s initiative on fighting corruption and demand that those who are found culpable of benefiting from the proceeds of corruption must face the full force of the law. Kenya’s competitiveness is held back by high corruption levels that penetrate every sector of the economy.
- A weak judicial system and frequent demands for bribes by public officials lead to increased business costs for local and foreign investors;
- Fraud in public procurement and Widespread tax evasion hinders Kenya’s long-term economic growth. Corruption, active and passive bribery, abuse of office and bribing of foreign public officials are criminalized under the Anti-Corruption and Economic Crimes Act 2003, in addition to the Bribery Act of 2016 which strengthens the fight against the supply side of corruption;
- Facilitation payments are criminalised and there are rules for what types of gifts public officials are allowed to accept. Adequate enforcement of Kenya’s anti-corruption mechanisms is an issue as a result of weak and corrupt public institutions;
We submit the following proposals in combating runaway corruption:
- Rethink the Ndegwa Report’s recommendation that allowed civil, public and state officers to engage in private business. The fight against corruption shall never get anywhere as long as we allow this conflict of interest;
- Make corruption a predominantly economic and political issue, rather than a legal, social or ethical issue;
- Ensure the country’s laws do not grant broad discretionary power on any person, authority or institution. Also ensure the legal system is crafted in such a way as to give citizens and investors an alternative if they encounter a public officer that is keen on abusing public powers and discretion;
- Make politics and the public service high risk and low-reward enterprises. In other words, consider a political economy dimension of corruption in Kenya. It is no accident that the super-rich in Kenya owe their fortune to proximity to the state as opposed to a patentable invention, hard work or remarkable talent;
- Overall, the very intent and spirit of this section of our Constitution particularly Articles 75 and 80was grossly watered down by the Leadership and Integrity Act Number 19 of 2012 that came into existence in 2012;
- For us to go back to our true ideals as a nation where corruption and other evils bedeviling this nation will not find space, let us go back to this Section and develop an Act out of it that truly reflects and mirrors the very intent of this section of our Constitution; and
- Lastly, make a lasting decision to eradicate impunity. The fight against corruption will never get anywhere if the high and mighty in society think they can get away with any and all forms of malfeasance.
9. Supporting the BBI’s proposal to retain the 47 Counties and support the voluntary process of Counties forming regional economic blocs, we recommend the following:
- Allocation to counties be increased to 35% – 50% of the current annual appropriated budget;
- The running mate of every candidate for the position of Governor should be of the opposite gender;
- Facilitate establishment of County Courts to enhance revenue collection and compliance to County laws;
- Public Finance Management Act to be reviewed to allow County Governments to directly negotiate and receive development support from development partners and well-wishers;
- The National Youth Service should have chapters in every County to serve youth who opt to go for technical training and skills development;
- Financing the development of each Ward to be at least 30% of the County development budget within the five-year term;
- Both county and national governments should promote formal and informal job creation, self-employment and entrepreneurship;
- The County Government should provide carefully designed incentives for prospective employers and local businesses;
- That the Government fast-tracks the development of regional economic blocs’ policy and institutional framework to institutionalize their coordination role in the implementation of the BBI proposals and other important national policies such as the Kenya Vision 2030 and the Big Four Agenda;
- There be a clear system and framework of standards to categorize health institutions which give counties guidance in upgrading existing facilities. This will include establishing fully fledged level 5 hospitals;
- Expand Universal Healthcare to include home-based care to make it possible for the elderly, disabled and the critically ill to access health care, and this should be covered by insurance: and
- The Upper Counties be supported to set up specialized units especially cancer screening and treatment across the country in order to make specialized treatment accessible to all citizens.
10. Considering that BBI Taskforce’s proposals for a home-grown executive structure that responds to the political realities of Kenyans and to ensure a broad-based and inclusive executive and governance structure;
- We support a powerful Prime Minister and expansion of the Executive to include two Deputy Prime Ministers and engender the top seats where opposite gender is either head or deputy;
- Make Senate the Upper House to strengthen devolution;
- Cabinet Secretaries to be appointed from both the elected and non-elected citizens at both the National and County Government levels; and
- We recommend that these positions be shared equally among the regions.
11. Aware that the BBI Taskforce’s proposals for inclusivity, the government should guarantee equitable inclusion and representation of the Isiolo County, especially women, in top government positions, leadership, and management of public institutions and resources. Chapter thirteen of the Constitution provides for the principles of public service. It is notable that in Article 232(1) (h) of the Constitution that public service must reflect the diverse communities affording adequate and equal opportunities to all. To foster unity of all ethnic groups of this country we propose the following:
- Ensure that recruitment into the Public Service reflects the face of Kenya;
- Where there is no candidate required to attain the face of Kenya with the relevant qualifications, the Public Service Commission and County Governments should be empowered to undertake professional search and development for minority candidates to increase their chances of qualifying for the positions;
- There be an elective position for Youth representative at both national and devolved levels and ensure that in every 3 people employed 1 is a youth;
- Rights of persons living with disabilities especially in relation to construction industry, public transport, and social amenities among others be ring enhanced;
- Inclusivity should equally be reflected at the County level too; and
Article 56 of the Constitution also requires the government to guarantees the rights of minorities and the marginalized to access employment by ensuring that they;
- participate and are represented in governance;
- are provided special opportunities in education and economic fields;
- are provided special opportunities for access to employment
12. Isiolo community, specifically the pastoralists, wish the BBI taskforce to address the thorny issue of Historical Injustices since pre-and-post independence Kenya. The report of the TJRC contains a comprehensive chapter on Land and Conflict. The report recognizes that in particular communities in Northern Kenya, especially the people of Isiolo County have suffered the longest and most severe injustices. The Commission noted that land-related injustices in Isiolo are one of the key reasons for under-development in the area and have contributed to youths joining terror groups. Till today, the report was never made public. Marginalization and historical injustices have led to collective punishment and human rights violations;
- The communities have faced gross violations of human rights during the previous regimes and the latest victims of forced disappearance, extra judicial killings, and sexual violence among other atrocities. That explains the diminishing number of the pastoralist populations. We give focus to the pastoralists communities that have been neglected so that they are not forgotten in transitional justice processes. There are also government officers like District Commissioner Daud Dabaso Wabera and Senior Chief Hajj Galma Dido who were killed while on duty. However, till today their families have not been compensated;
- The marginalization narrative is sometimes misunderstood to mean that we lag behind in development but in real essence it is inability and unwillingness by the successive governments to recognize the pastoralist communities, an issue that BBI should address once and for all;
- Apart from the historical injustices meted on the people of Isiolo that occurred before and after independence, youths are succumbing to radicalisation and violent extremism owing to lack of gainful employment; and
- The reports on Ndungu Land Commission, Njonjo and TJRC should be implemented within a 5- 10-year window period.
In nutshell, we fully support the letter and spirit of the BBI and will whole heartedly vote for its adoption once a referendum on the same is brought forth.