Leading Pastoralists Parliamentary Group, Duale gives strong views on BBI

Leader of the Majority Party in the National Assembly Aden Duale presents recommendations to BBI Taskforce in Nairobi on behalf of 14 Counties from Pastoralists Communities today February 25, 2020

Below are the recommendations.

1. REPRESENTATION

The BBI report endorses the principle of ‘one man, one vote’ in political representation. While we agree that each citizen’s vote is of equal importance, we are concerned about how this principle can be applied. Kenya is defined with its people and land therefore, we propose that it must be used concurrently with the principle of one Km2, one vote.
Firstly, it assumes that citizens are being fairly and accurately counted. The outcome of the last two census exercises was challenged by the people from these 15 counties. For as long as population size is given such prominence in resource allocation, the census will remain a highly contested exercise. Our specific concern for pastoralist counties is that the Kenya National Bureau of Statistics has consistently failed to develop and apply a appropriate methodology for enumeration of the people that takes account of mobility, seasonality, and the impact of factors such as conflict and drought.
Secondly, the principle of ‘one man, one vote’ suggests that citizens have equal access to their political representatives, and vice versa. This is much harder in sparsely populated areas with inadequate infrastructure and low levels of literacy. In these conditions, a population-based system of political representation will not deliver the ‘equalization of representation and equality of citizenship’ (para 87 C) to which the BBI report aspires.
Just as it is wrong to design an education system based on population distribution – forcing children in sparsely populated areas to walk excessively long distances to school – so it is wrong to organise the political representation in Kenya based on the people and ignore the land.
The distribution of land and people in Kenya is highly skewed. Pastoralists occupy 80 percent of the landmass. To achieve fair representation both the land and people must be given equal consideration when designing systems of political representation and resource allocation in Kenya.
We want a united and cohesive nation and reject any policy of exclusion. For these reasons:
 We oppose exclusive use of one man, one vote principle, and propose that it must be used concurrently with one Km2, one vote.
 We support Article 89 of the Constitution on the delimitation of electoral units. And endorse the Taskforce’s conclusion that the existing 290 constituencies and the protected seats for minorities should be preserved. Future delimitation of boundaries should take cognizance of these facts and comply with the Article 89 of the Constitution.
We reject the Taskforce’s conclusion that public resources should follow the people not the land mass (para 161 D). This principle ignores the fact that it costs more to provide the same level of services in certain social and geographical settings of our country.
We recommend that:
 No ward, constituency or county should be merged in any boundary review. As the BBI report notes, boundaries have become a major focus of new conflict dynamics. All active boundary disputes be identified and swiftly resolved by a Constitutional Commission. A process to enhance cohesion among border communities must be put in place.

2. GOVERNANCE
Division and violence have been synonymous with Presidential elections since the introduction of multi-party politics in 1992. Kenyans tend not to fight over other political seats. To have peaceful elections, a cohesive and inclusive nation, we propose an introduction of a pure parliamentary system of governance in Kenya. The political contest should be mainly at the constituency level. The political party, or coalition of parties, with the majority members in the Parliament should form the government.
In the event that, majority Kenyans prefer to retain the current presidential system, the PPG recommends an expanded Executive with a President, a Deputy, a Prime Minister and two Deputy Prime Ministers, and cabinet Ministers drawn from the Parliament. These positions should reflect regional diversity. In order to avoid two centres of power, the Prime Minister must be nominated by a President and approved by Parliament.
We recommend that devolution remain as it is, and that any further devolution can only be downwards, not upwards. there should be no regional government tier. We also recommend no change to the tenure of governors. They should serve for a maximum of 10 years.
Corruption is the biggest enemy of development in the counties and at the national level. We recommend stiffer penalties and enforcement of the proposed law on conflict of interest, as well as the speedy conclusion of corruption cases.
In the interest of unity, cohesion, and reconciliation, the recommendations of the following reports must be implemented in full: the TJRC Report, the Kriegler Report on electoral reform, and the Ndung’u Land Report.

3. LAND
The BBI report contains very little discussion on land, despite its association with social divisions, particularly during elections. Prosperity and peace for most Kenyans requires security of land tenure, for the pastoralists it means recognition and protection of their customary communal land rights. Pastoralists already own their collective lands; what they lack is registered community land titles to legally confirm their land ownership. Community land rights are provided for under the Constitution and the Community Land Act, 2016. However, implementation of the Community Land Act is unacceptably slow and started badly, judging by the experience of Isiolo County (in reference to Legal Notice No. 150 of 2019). This has left community lands vulnerable to repossession, because the national and county governments are treating them like public lands.
The Land Value Index Amendment Act, 2018, proposes an outdated and inappropriate approach to the valuation of community lands which may also contradict constitutional requirements. Further, the draft guidance from the National Land Commission on the procedures for valuation and compulsory acquisition gives inadequate attention to community land, as compared to private land.
The acquiring agency must be made explicitly responsible, in cooperation with the Ministry of Lands and Physical Planning and the county government, for assisting the affected communities to have their land adjudicated and surveyed prior to compulsory acquisition. Alternatives to large area of land acquisition should be explored.
We endorse the Taskforce’s commitment to address corruption in land sales (chapter 8, recommendation 37), but we go further in demanding that processes of the community land allocation and acquisition be suspended until the community land rights have been legally secured.
We recommend that,
 Proactively engage with all our communities should be undertaken, including with the nomadic pastoralists. Enhance improved coordination of the public education and community land rights awareness for them to appreciate the need for adjudication using the appropriate legal framework, agree with the communities and resolve inter-community land boundaries and commence the registration of the community lands.
National Land Commission should work with the Ministry to fast-track the deployment of Community Land Registrars to the pastoralist counties.
 Complete unregistered community land inventories and undertake immediately the spatial plans in our counties to ensure that the process of community land registration is also made gender- and conflict-sensitive process for it to proceeds smoothly.
 Parliament review the Land Value Index Amendment Act, 2018, to ensure that community land is valued at its correct level in accordance with Article 63 of the Constitution of Kenya.
 Ensure that free, prior and informed consent is obtained for the community land development and that policies are uniformly and transparently applied.
 Any prospecting or exploitation of natural resources and extractive on, under or above the surface of the community or public land should be carried out in cooperation with the county governments and with full knowledge of the communities that have customary ownership of these lands, and ensure that local people benefit from these resources through a defined revenue-sharing structure.
 Pastoralism as the most viable land use practice in the drylands and Pastoralists’ land must be recognised by government and policy-makers as a key factor of production and important sector to our national economy and our people’s livelihoods.

4. SECURITY
The people we represent suffer disproportionately from violence at the hands of terrorists, cattle raiders and rogue government security officers, and yet there appears to be limited concern within the national government to ensure their security and safety. We will give four examples:
i. A recent study conducted in 12 pastoralist counties found that all people face persistent or severe intercommunal conflict, mostly in border areas, and yet the government holds no up-to-date information of its own about these incidents. Women, girls, and elderly people are those most seriously affected. ii. It is nearly five years since the National Assembly adopted the National Policy on Peace Building and Conflict Management, and yet the 2016 Bill that would anchor the policy into law and strengthen key institutions is still with the ministry.
iii. Section 41 of the National Police Service Act, 2011, establishes the County Policing Authority. This involve the members of the county government, security agencies, and citizens in security management. Even though the policy and legal framework to operationalise this important institution is in place, no progress has been made. We would like see establishment of the County Policing Authorities in our Counties soon.
iv. Violent extremism has created a climate of fear. Between 2011 and 2018 there were nearly 250 attacks across 12 counties, over 80 percent of these are in the pastoralist counties that we represent. ( see a fact sheet on the status of peace, cohesion and conflict situation in our counties.
We therefore wholeheartedly endorse the statement in the BBI report that every life in Kenya has equal value (para 183), and that this principle must be given concrete meaning. We endorse the other recommendations in this section of the report and recommend the following:
 Ensure that counter-terrorism programmes are built on the support of local people and the government must avoid measures that led to extrajudicial killings, disappearances of people, and ethnic or religious profiling. All these measures are discriminatory, illegal and counterproductive on the war on terror.
 Establish a legal framework to include the county governments in security matters, as well as mechanisms that facilitate inter-county and inter-governmental cooperation on peace building, strengthen social cohesion and conflict management. We recommend immediate operationalisation of the County Policing Authorities in our Counties.
 End discriminatory policies and vetting forthwith, and fast-track the issuance of personal documents. Pastoralists and other minorities currently face discrimination in accessing vital government legal documents and suffer violent harassment due to lack of national ID, passport, and birth certificates.
 Spearhead a policy and legislative agenda to eliminate livestock theft, which has been commercialised and politicised well beyond its original cultural roots.
 Strengthen alternative dispute resolution mechanisms which have proved their worth, link Councils of Elders and religious leaders with formal mediation processes, and recognise their role within our legal system.
Treat drug dealers and their subsidiaries as murderers, given their impact on our youth, and put the necessary legislation in place to enforce this and eradicate its uses in Kenya.

5. INCLUSIVITY
We support the Taskforce’s emphasis on more inclusivity. However, we cannot build a united Kenya if certain groups within society are not understood or not accepted by their fellow citizens. In countless large and small ways, the right of those people living in northern Kenya and pastoralists communities in the coast region to be counted as ‘Kenyan’ is constantly undermined.
The pastoralists and other minorities are discriminated in the access of government documents, such as national identity cards, passport and birth certificates. It is only in pastoralist, minorities and Kenyan Muslims communities where a child is born in a Kenyan hospital, goes through Kenyan educational system, and upon attaining the age of 18 years, is subjected to a tiresome and dehumanising ridiculous vetting process to prove their citizenship. It is this underlying prejudice and discrimination that results in marginalisation and exclusion. It must be eradicated to achieve meaningful inclusivity.
The Equalisation Fund was established by the Constitution to reverse the consequences of policy-led marginalisation. However, progress in implementing the Fund has been very disappointing. Worse, its original purpose has been diluted as counties with pockets of poverty, that were not part of the neglected marginalised areas, have been added to its coverage. Changing the unit of analysis from county to ward, as the BBI report recommends, will obscure the bigger picture of regional marginalisation. We accept that poverty can be found anywhere in Kenya, but poverty is not the same as marginalisation. The marginalisation of pastoralist areas, and of northern Kenya and coastal areas in particular, was a deliberate political choice consciously taken by the previous leadership of this country for which our people are still paying the price. If we are to end marginalisation and promote inclusivity we must do far more than build facilities, as the proposed Kubadili Plan appears to suggest (para 126 C); we must change the mindsets that habits and practice that drive discrimination and exclusion foremost..
We therefore recommend the following:
 Discriminatory policies and exclusive vetting of our people must be stopped forthwith and the issuance of personal documents to pastoralists and other minority communities fast-tracked.
 Within these marginalised groups. The policy of discrimination impacts harder on smaller minorities among marginalised people. We recommend a affirmative action within affirmative action to address a particular concerns of smallest groups of the minorities to entrench inclusivity.
 The Equalisation Fund is approaching its sun set deadline. The full implementation of the Equalisation Fund as contemplated in Article 204 of the Constitution is an urgent matter. We reject any amendments to the initial beneficiaries that now aim to include additional twent counties to the beneficiaries list. This will dilute the purpose of why the Fund was established.We recommend Increase to the size of the Fund from 0.5 percent to five percent of national revenue.

6. SHARED PROSPERITY
We regard devolution as essential to achieving shared prosperity, and we concur with the Taskforce’s broadly positive assessment of its success (para 148). For the counties we represent, devolution has helped close the gap between the state and citizens, enabling the county governments to pursue strategies that are more closely aligned with the priorities of their people.
We endorse the BBI report’s proposal that counties should receive a minimum of 35 percent of national revenue. However, numerous other measures are required if pastoralist areas are to enjoy an equal share in national prosperity. In particular:
• Strengthen the enabling conditions for investment in the pastoralists counties, and ensure that these new investments also protect the people and the environment.
(i) All delayed infrastructure projects should be completed according to the contract timelines.
(ii) The establishment and operationalisation of institutions for the economic development of key sectors such as livestock marketing.
(iii) The policy and institutional framework governing the regional economic blocs, in particular, institutionalise their coordinating role in the implementation of major national initiatives, such as Kenya Vision 2030 and the Big Four Agenda.

• Make substantial budgetary investments in the livestock sector, commensurate with its contribution to the economy and GDP of our country.
• Recognise and adequately resource pastoralists’ priorities for climate change adaptation and mitigation, since climate change may exacerbate social tension if it heightens competition over natural and public resources.

7. EDUCATION
The BBI report rightly emphasises the importance of education in creating an ethical foundation to our national life and an appreciation of our shared history. The exodus of professionals from the north-east following repeated school closures and transfers of non-local teachers has crippled teaching and learning in a region, that is already severely disadvantaged with access to quality education for its children. When the CEO of a constitutional commission responsible for our children’s education tell the teachers transferring out of northeastern counties ‘ welcome back to Kenya’, it perpetuates critical negative stereotypes about the region we represent in the parliament, implying that our region is not part of this country. These attitudes must be eradicated and persuaders made accountable as it has no place in modern Kenya of today.
Denying pupils and students in the north-east their right to an education will not only damage the life chances of these young people, and will consequently impact heavily on the negative development of an already impoverished region; it may also entrench a deepening sense of alienation and injustice on which Al-Shabaab wish to feed on for its recruitment. This is now a national crisis.
We therefore recommend:
• That the Teachers Service Commission be disbanded as an independent commission and become a state department under supervision of the Ministry of Education.
• The National Council for Nomadic Education in Kenya (NACONEK) is established autonomously independent Commission to handle complex matters of the neglected nomadic education of over two million school age children out of formal in this country.

CONCLUSION
This statement has shown that national institutions are continuing to fail the pastoralists of this country. Our hope is that the BBI process will be different, with different outcome. And that those who will charged with responsibilities of bringing it to life will do so with a clear understanding of, and unreserved commitment to, and integrity of the highest interests of the nation as a whole. For our part we remain fully committed to building a united Kenya, and a nation of ideals.