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The Heritage Factor in the Constitution

By Sultan H. Somjee,

Ethnographer and Consultant,Constitution of Kenya Review Commission

12-09-2001

Background

After almost forty years of independence to talk about promotion of 
African, or for that matter Kenyan Culture, is a cliché. A cliche that the 
nationalist discourse used over and over again to gain popularity and power 
that created a class of politicians who became ultimately masters of the 
double discourse of theory and practice of African culture. While one side 
of the double discourse valorised African culture, the other created a 
culture of violence, fear and suppression of opinion. The post independence 
culture contradicted and shamed what was promised as protection and 
promotion of African cultural heritage in the Kenya Constitution and 
subsequent development plans.

This paper acknowledges the intentions of promoting African culture as 
stated so eloquently in the first Constitution of Kenya which was drafted 
at the height of nationalism. We cannot match the clarity, fervour and 
honesty of that period of cultural liberation and celebration. But the 
loyalties pledged in the oral and written manifestoes were subverted. Forty 
years later we must leam from the past and guard against further subversion 
of the Constitution, be pragmatic and move ahead of what has become the 
rhetoric of "contribution and promotion" of the Kenyan culture in the 
national body politic.

I view the new Constitution in the making under Multiparty Democracy with 
great hope. But first I wish to recognize and salute the work of those 
citizens who have been engaged in the process of working out and changing 
those aspects of the political and politicised culture of Kenya that have 
been oppressive to the national well being. These individuals and groups 
comprise ethnic people who continue to sing the song of how their ancestral 
land is taken away from them and those who sing how they are reduced to 
becoming refugees in their own country. These groups and individuals also 
comprise urban-based dance and drama companies encountering changing social 
values and political scenes. They belong to citizen managed cultural 
organizations and institutions. 

There are also individual writers and artists in this group who have 
oriented themselves from 1963 onwards towards an enabling culture that gave 
expression to the values and aspirations of a free, peaceful and democratic 
society. They struggled to remain loyal to the Kenya Constitution. True 
national culture of Kenya supports the Constitution struggling against the 
anti-national and anti-Constitution and anti-African culture. I salute all 
those who actively participated in the making of and aspiring for a culture 
that would allow Kenyans to practice their constitutional rights.

It is against this background that I present this paper and address the 
Terms of Reference given to me (Appendix 1). The Terms of Reference are 
grouped and covered under three sections of this paper.

Section One

National culture, Kenyan identity, ethnic diversity and what need to be 
captured in the Constitution


National culture is the total culture of a nation and it encompasses the 
culture of governance. The culture of the citizens, the ones who are 
governed, create social values and ethics from their heritage and the joys 
and difficulties of everyday life. That culture of the citizens should be 
the guide and it must be able to monitor the culture of governance so that 
it too follows the ethics of daily life that protect and enhance values of 
freedom, security and democracy. I shall be specific.
The following are four examples that suggest what the national culture, 
Kenyan identity and ethnic diversity represents and what need to be 
captured by the Constitution. It may be noted that these examples are drawn 
from four of many other living and contemporary cultures of Kenya. My 
emphasis is in this paper will be on the often ignored but nevertheless 
significant ethnic cultures of Kenya.

The Munyoyaya of the Tana River is a little known group which, has much 
wisdom to offer. They are agricultural and fisher people of Cushitic 
background. The Munyoyaya animal totem is the tortoise. The tortoise 
withdraws when disturbed and patiently waits until the danger passes away.
Says Mzee Ababuya Afoka, a Munyoyaya elder:
Mzee Afoka says:

" A wise leader is like the tortoise. He does not appreciate violence and 
it is this wisdom that has guided the Munyoyaya through their history and 
they have never been to war with another community. Your belief is your 
force inside and that inside force is the authority to keep the well-being 
of the society and preserve life. In every society it is the customs that 
hold the authority in place and customs change when the authority changes 
and when people's customs change the authorities need to change ".

The new Kenya Constitution must capture that aspect of the national culture 
which defines the relationship between the citizens and their government as 
said by the Munyoyaya elder. Mzee Afoka says simply that the authority must 
change when the people change and the people need to change to change the 
authority. The Constitution must help the authority and the people into 
that process and it must mirror that process of change of which 
Constitutionalism is a part if not a driving force.

The People of Black Beads is another example whose generations of 
experience need to be captured in the Constitution. This clan lives among 
the greater Borana ethnic group of Northern Kenya and Southern Ethiopia. 
The clan protects the society from evils of violence and conflict. The work 
of the people of the Black Beads is to ornament, which is made of black 
wooden beads, in a chain around the neck. This is an artefact of wisdom of 
an elite group. Note that they are the elites of the society because of 
their virtues and not because of their wealth. 

The constitution must lead us to a non-violent society. I agree conflicts 
will be there but its how the conflicts are managed that need to change. 
Lets leam an ancient African way to keep order from the people of the Black 
Beads.
Another culture of high integrity and ethics for preservation of life is 
the Akurino of Kenya. They are called the Independent Church of Africa but 
actually like the Amish and Mennonite communities of North America whose 
social systems protect them from insecurities, the Akurino are a reformed 
group of African Christians. During the last almost eighty years they have 
developed their own set of social values, material culture and systems for 
protection against injustice and violence initially of colonialism. The 
Akurino are an example of how the old and new have been integrated and 
continue to be reintegrated into the changing structures of social, 
economic and political life of new African States. There are more than 
fifty independent churches in Kenya incorporating the old with the new and 
searching for meaning and order in today's violent society.

Many such social formations as the Akurino mentioned above, have 
strengthened their community culture across in Kenya in response to 
injustice, forced imposition of values, violence and damage done to their 
community structures by centrally administered State. These registered and 
unregistered faith groups are withdrawing from the 'mainstream' faiths and 
disintegrating cultures in pursuit of peace and meaning of life that the 
State cannot claim to provide. Yet they manifest high standards of social 
ethics (such as volunteerism, community building and work ethics) that the 
Constitution must capture so that Kenyans may draw lessons from the 
histories and lives of these groups. In European history Protestant culture 
and work ethics grew out of numerous breakaway churches at times when the 
old religion and governance could no longer hold the centre. I am not 
suggesting that there is a parallel case in Kenya. Our histories and 
cultural backgrounds are different but the example provides an insight into 
how communities reorganize themselves when conditions are adverse to their 
standard of values.

There is also for example, Iltoruesh clan of the Ikisongo section of the 
Maasai of the Kilimanjaro region. The Iltoruesh actually exclude the 
warrior age set in their social system. After initiation the Iltoruesh 
young men go through the ritual that cleanses them and consequently allows 
them to pass over the otherwise compulsory grade of Maasai moranhood to 
become junior elders. The Iltoruesh are the givers of prayers and rules for 
maintenance of human security and the social order of the Maasai society. 
They live close to the sacred mountain Ol Donyo Lengai. Ol Donyo Lengai as 
the name says, is the Mountain of God. 

African spirituality embodies values for enhancement of life and not its 
destruction that the Constitution must state. After all the Constitution is 
an instrument to advance values of life and well being and it sanctions 
forces that are against values of life and social well being. The Iltoruesh 
go to settle disputes, not the morans. Olemal or peace delegation are 
formed and resolution sought. This is a long standing Maasai policy for 
resolution of conflicts within the community. The Constitution must draw 
from our peace building traditions and give guidance to formation of a 
policy for settlement of conflicts within the larger Kenyan community. 
Policies are based on values. Amazingly there is no national policy on 
resolution of conflicts in a country of such a rich heritage of a culture 
of peace. The result is that when there are conflicts the GSU, the police 
and the military creates a havoc and runs over a civilized nation, looting 
and raping along the way to conflict resolution. The Iltoruesh among other 
traditional civilizations show us how a culture of violence can be 
contained. This what the Constitution needs to recognize.

The four examples given above from diverse Kenyan communities which are 
incidentally, not connected with each other in any way, reflect on the 
values of life and well being. These values are peace, spirituality and 
freedom that citizens of Kenya desire and have deep hope that the new 
Constitution will be so drafted as to direct the law to provide the 
mechanisms for them to develop in time to come. Note the diversities in the 
examples discussed above which is the strength that too needs to be 
acknowledged as our national heritage. The examples are from Cushitic, 
Bantu and Nilotic civilizations of Kenya.

Section Two

How National Culture, Kenyan Identity and Ethnic Diversity can be protected 
and promoted in the Constitution ?.

This section relates to and builds on the previous one. There are 5 areas 
that the new Constitution may consider for protection and promotion of 
Kenya's national culture, identity and ethnic diversity.

1. Protect the Kenyan culture, identity and ethnic diversity from political 
manipulation


The Constitution must protect and give exposure to expression of national 
ethnic identities in their many forms such as distinct customs, art forms, 
languages, dress, music and dance. Protect them from manipulation for 
political ends, as has been the case during recent years and especially 
during past elections. Ethnic cultural characteristics and traditions have 
been used to cause fear, suspicion and ultimately hate by drawing on 
differences such as between the circumcised and the uncircumcised citizens, 
as features of ridicule and later termed into reasons for, prejudice and 
hate and even separateness. How easily is our strength turned into our 
weakness!

During the independence era there were instances such as forced and public 
removal of Pokot ornaments and dress by the GSU. There was public shaming 
of the Turkana and Pokot way of adornment and generally of pastoralist 
lifestyles. It was cultural humiliation. Dissatisfaction of ethnic citizens 
towards the unfamiliar and unfriendly style of governance and management of 
their resources was termed either as a revolt or banditry. Conflicts over 
their resources were often blamed on the people's backwardness and even 
primitivism. Yet the ethnic communities of Kenya value love for the land, 
spirituality and in all hold such a humanistic culture that the 
Constitution has yet to define. But this is possible through participatory 
work with the elders of the various groups.

What needs to be protected and promoted in the Constitution is the respect 
for a pluralist society at the very grassroots. This includes mutual 
respect for the intellectual, cultural and environmental resources of our 
many civilizations. The diversity needs to be recognized and promoted 
nationally in such forms as signboards in regional areas written in ethnic 
languages and government officers learning and knowing languages of the 
regions of their work stations. This is one way of giving a face, a visage 
to a pluralist country.

Enhance and develop all ethnic languages as mother tongues and Kiswahili 
and English as languages for national unity and advancement. In many 
regions of Kenya the young population is largely a tri-language. It's the 
right of the citizens and the children to own their heritage languages. 
Legalize and acknowledge this fact, and let's be proud of it. In this 
aspect we are a unique nation.

Secondly at another level the largely oral and visual peoples of Kenya need 
to see and listen to each other which would be a start to. build towards a 
national culture of a pluralist Kenya. That is cultural enhancement that 
would allow the removal and putting aside of the politically motivated 
suspicion and fear that we have of each other. Moreover it would help to 
concentrate the emotions and intellectual energy of Kenyans to creativity 
and provide the encouragement to build the new community driven force of a 
culturally diverse nation. A culture which guarantees freedom of 
expression, association and thought can yet be restored and take shape in a 
people to people communication mode in rural as well as in context of urban 
settings. The government must trust its people. The government must trust 
its Constitution.

The Constitution can facilitate people to people communication in three 
ways. One is to locate and strengthen the commonalities among the many 
ethnic peoples of Kenya. The second is to respect the differences in an 
appreciative way. Build on the inherited positive experiences that Kenyans 
have always had which is respecting the variety of regional customary 
practices. That is our tradition and our strength. The third is to adopt 
the unique traditions of some communities that express social values in 
such a creative and uniquely African way that we can all be proud of and it 
becomes a part of our national expression.

The process of developing the national ethic begins with first describing 
and understanding the multiplicity of ethnic and community ethics which 
includes both faith and cultural knowledge. There are community ethics such 
as respecting the consensus of the elders, respect for life and the dead, 
sacredness of the earth, spirituality in the traditional belief systems and 
the sense of aesthetics.

The Maasai dress and adornment is proudly dawned by Miss Kenya, Miss 
Tourism and by young Kenyan urbanites at the Carnivore and Safari Park 
Hotel irrespective of their faith and ethnic backgrounds. We see the Maasai 
beads incorporated into modern African fashion. The Constitution can help 
to promote such similar symbolic elements of a rich national heritage of 
decor and social functions. The Maasai attire and ornament has become 
symbolic of a national culture and it projects such visually powerful a 
Kenyan National Identity through one ethnic feature and mode of beauty, 
decency and pride. The Kenyan youth is searching for a Kenyan identity to 
own and project in this era of globalization where the youth feels 
culturally marginalized. One reason for the numerous and violent school 
strikes, high levels of substance abuse and falling morals of the youth may 
be due to the loss of touch with social values and identity. The new 
Constitution of the current generation set has the responsibility to 
restore that identity.

2. Empower ethnic and civil institutions to sustain a pluralist society

Social evolution is often viewed from the primordial to a nation state 
democracy on an evolutionary linear scale of political structural models 
mainly from the histories of Northern Hemisphere. While the fact remains 
that the security of African people lies in myriad patterns of intricately 
connected and well integrated social structures of ethnic groups, clans, 
sub clans and families. The State outside the cities (and nowadays in some 
areas of the cities as well) neither provides administration nor security. 
When I go to Marsabit from Nairobi, I must fly because between Isiolo and 
Marsabit there is little or no government.

Yet across Kenya there are assemblies of elders who strive for communal 
security and peace in spite of the violence of colonization, nationalism 
and the modern State, the GSU and military in regions such as the Rift 
Valley and North Eastern Provinces. The elders strive to fulfil their 
responsibility to keep the inherited order of their society. For sustaining 
democracy and the social ethic the Constitution needs to inculcate the 
spirit and sense of justice, order and peace as it is manifested especially 
among the elder managed communities. Justice system need to be culturally 
constructed and justice done must be culturally accepted. Empower the 
community institutions that do have the authority and wisdom to rule well. 
This means that the African State of Kenya must rule with the elders so 
that ethnic diversity, Kenyan cultures, customary law and the national 
identity can be protected and promoted.

The elders of the community councils hold the authority through consensus 
to rule at the grassroots in a way that the modern State cannot claim to 
have in many parts of Africa. When the elders meet memory is evoked. The 
elders and the living dead hold memory of peace, security and justice. 
Sometimes it is called the wisdom of the elders of Africa. Memory is 
history recalled. Oral history and literature of Kenya hold codes of ethics 
of a largely non-literate society. Ethnic languages invoke metaphors and 
symbols of social values and wisdom of good governance. These languages 
must be maintained and developed to uphold wisdom for the generations to 
come. When the Constitution serves the elders, it empowers them to better 
serve their communities and the government.

Kenya is a mosaic of ethnic people struggling to keep together their 
fragile protective and caring community owned institutions for sustaining 
life against violence of the State organs and some politicians. This is a 
fact that the new Constitution must accept and deal with and hence protect 
the people-based institutions. When the government fails to provide the 
government what choice do we have? What institutions do we have in place to 
hold up? In absence of government mechanisms for fair justice and 
protection of property and life, disintegration of surviving ethnic and 
civil institutions would result in further loss of self-esteem and 
community's capabilities for self-preservation and propagation of even the 
basic human values. The national culture of Kenya, her identity and her 
diversity lies in the multiplicity of peoples of culture who hold a bonding 
relationship with their ancient lineages, the ever-present ancestral beings 
and the environment.

3. Promote and protect the Environment

In Kenya memory that refers to social values is harvested from ancient 
features of the environment such as the sacred trees, mountains and waters. 
The elders present themselves to the peace trees and features of the earth 
in openness to receive communal with spirituality that fosters the 
humanistic character of their societies.

When we are destroying our forests, we are in the process also destroying 
our social and spiritual heritage. This is the heritage of human values 
known to us through the people who live or have lived close to the earth 
and the trees. Neither modern school education nor the modern State has the 
capacity to give or replace the quality of this heritage. As far back as 
1932 Paramount Chief Wambugu told the colonial government that forests of 
Mt. Kenya were a gift that God had given the community. He was talking 
about the country's spiritual and social heritages, which are closely tied. 
It is the twin heritage of human values that is fundamental to the 
sustenance and development of the spirit and ethics of a civil society.

In Kenya we did not write manuscripts to preserve the thoughts of the 
forefathers. Our visual and oral traditions are passing away with new 
spoken languages and literacy based on a European legacy. Sacred (or peace) 
trees are the last remaining symbols of a memory that fostered well-being 
among the communities and peace and well being with the environment. These 
trees also fostered civil values in a variety of contexts. Migration paths 
of the three great traditions of Kenya land-marked sacred trees across the 
continent. Today there are groups within the Bantu conglomerate of cultures 
originating from West Africa, the Nilotic from the Nile corridor and 
Cushitic groups from the Red Sea region that evoke names of trees such as 
the Olive Tree, the Fig Tree and the Acacia in their prayers.

Among many ethnic communities of Kenya relationship is linked to peace with 
nature and the earth. People pray under the trees, use foliage of peace 
trees during rites of passage and they inhale the smoke of the sacred wood 
in blessing rituals. They bless the earth with branches dipped in water, 
milk and honey. Today clergy of the Catholic Church in Ukambani, Embu and 
Pokot region dip leaves of the sacred tree into the holy water and bless 
the congregation and the earth with the spray. Last year the church at 
Othaya blessed four African peace trees that were planted to heal the earth 
at a mass graveyard of a Mau Mau concentration camp. Four thousand people 
came to witness healing of the earth and planting of the peace trees.

Recently Pokomo women of the Tana riverine forests at Mnazini and Baomo 
protested against the presence of scientists on their land. One of their 
concerns was the fear for loss of their communal trees. They have 
experienced this threat before to the loss of their trees like many other 
citizens of Kenya such as the IiLoita of The Forest of the Lost Child in 
Narok and the Mijikenda of the sacred Makaya at the coast. The Pokomo, 
Munyoyaya and Wailwana depend largely on beehives and other products of the 
forests for subsistence as well as for maintenance of their social order 
ethics and spirituality. Among these groups, beehives, and not cattle, are 
counted as bride price and there are trees in the forests that listen to 
their souls, mediate disputes and bring blessings of peace and prosperity. 
When riverine trees are cut, the community's fundamental values for 
maintenance of their economy and the security of their spirituality and 
unity are uprooted. The waters that supply them with fish and plants for 
building boats and baskets then begin to fall in level. Pacifist Munyoyaya 
and Waata who prefer not to fight need the forests to shelter when the 
enemy attacks. Non-violence is an ethic of these humble people and the 
tortoise is the tribal totem for the animal best expresses the community 
lifestyle. The Constitution must protect the cultures languages and customs 
of these minorities.

Celluloid images on TV, computer screens and mobile cinemas are powering 
over our native imagery and emotions connected to the natural landscapes 
and all the metaphors of knowledge, languages and sensitivities that have 
been preserved for what may be called the being in us. We are losing that 
touch with land and how to work the earth. Legends are no longer told in 
Central Province that Agikuyu have a deep historical connection with Mukuyu 
(Ficus Sycomorus), the tree after which ancestor Gikuyu was named for he 
was the great Mukuyu himself. But Mukuyu today must exist if the society is 
to exist in kinship with other trees of the mountain of God such as Muiri 
(Prunus Africana) and Mutamaiyu (Olea Africana), and in kinship with the 
forests, waters, animals, the mountains and people of the earth so that we 
may live in peace and prosper. 

The fact that few Agikuyu today know that their community is named after 
the sacred tree, Mukuyu, testifies how rapidly we are losing our identity 
and values that emerge from an identity of a people whose birth was from 
Mother Nature.

Globalisation will not consider African sensitivities for we did not invent 
the tools of literacy and the electronic media. Our intelligence cannot be 
stored electronically and our spirituality cannot be sensed by artificial 
intelligence. The media that can yet honour early memories comprise the 
environment: the mountains, the plains, skies, waters and the trees. These 
features are all protected by the forests, the cloth of God and by ethnic 
visual and oral traditions which are an integral to our identity. The new 
Constitution is the Great Law, and the great law has to guard the source of 
life which are the forests of the land. The Great Law must also protect the 
yet to be researched and documented sources of Africa's knowledge.

4. Protect and promote the National Aesthetic

Protection of elder institutions, the forests and community's social order 
and security is supported by and linked to the domain of aesthetics in 
ethnic societies. Colors and patterns are power symbols of peace and order 
in many societies. Ethnic aesthetic systems encompass beauty, sacredness of 
the land and life. There are often women-made bead patterns of the order of 
beauty, metaphors associated with social integrity, and there are 
accompanying songs and narratives of beauty, peace and relationship 
building. These stylized expressions affirm life and the order of living in 
communities. For example, the Maasai word for beauty is osotua. It's also a 
metaphor for close social relationship and the umbilical cord. It means 
peace as well and most important it means a gift out of friendship. The 
Constitution must protect our national aesthetic values from destruction 
and oblivion even before they are understood and documented for generations 
to come for they must know what a bead, a colour and pattern meant to the 
African people of Kenya.

Let me elaborate further. Beauty in Maa is osotua and like sidai it is also 
greeting for the goodness, well-being and prosperity for it is the mother's 
umbilical cord that we all once shared. Peace is out of respect of the 
original relationship that all humans and animals of this earth began life 
in the womb, a woman's gift of life and the gift of motherhood. The earth 
is the mother.

In pastoralist civilizations there are different symbols of keeping social 
order. The Constitution is fundamentally about keeping the social order by 
affirming the values of life and security that we cherish. Ethnic order 
among the contemporary societies of the vast northern regions of Kenya is 
expressed in imagery of patterns on animals and in the colours of material 
culture and the environment. They are the visual expressions of social 
protective and care giving structures that support community pro-life and 
justice systems.

The meticulously constructed and disciplined patterns of beauty are given 
thought and expression in ornamentation types made by mainly women 
consciously and mathematically calculated to compliment functions of the 
administrators and protectors of their rights and values. For this reason 
there should be no tax on importation of beads and other art material. 
Today beads are heavily taxed as luxury goods like diamonds and BMWs. But 
coloured beads are material for expression of a national aesthetic. Protect 
and enhance the people's sense of beauty, the joy of life and peace. The 
Maasai say where there is no beauty there is no peace. And peace is the 
highest quality for maintenance to regulate society that the Constitution 
is drafted to guarantee that we have it.

5. Protect and promote the material culture of Kenya

Everyday there is massive exportation of Kenya's material culture. The 
previous part directly discussed the importance of beaded ornaments to the 
Kenyan identity and national culture. The ornaments are just one category 
of material culture. We have other categories such as containers and 
furniture. All these are important for promoting and projecting our image 
of who we are and where are we coming from. The Constitution must allow and 
facilitate appreciation of our own self-images, our art history and sense 
of aesthetic pleasure derived from our ancient artefacts, the environment, 
rituals and the earth. And for this to happen we must have time to first 
understand and know the yet unknown visual traditions of function and decor 
such as the diversity of aesthetic systems of Kenya.

Section Three 

How the Constitution should deal with discriminatory aspects of culture

The new Constitution must deal with the pain of humiliation, collective 
trauma and fear that the people have suffered during the post independence 
times due to the discriminatory aspects of culture of governance.

To deal with discriminating aspects of culture, the Constitution must first 
recognize the wrong that has been done by the State to the citizens of 
Kenya. Healing of the humiliated Kenyans is a process towards making of the 
new Constitution that promises the practice of a culture that it stipulates 
in statements about rights of the citizens. Without trust and justice which 
can only come from reconciliation with the past, the new Constitution will 
be viewed as yet another document of hypocrisy. Constitution must allow in 
every region a body of elders to deal with tribalism first of their own 
people to heal the relationships with the 'other', the earth and the State. 
The elders must be allowed to deal with the State instituted crimes. In 
this way give the citizens the opportunity to own the Constitution. In a 
nation where the written word called the Law is in a foreign language 
posited in an unfamiliar medium, the Constitution process and content have 
got to be in the cultural medium of the majority of Kenyans in both its 
form and content.

Healing is a universal human phenomenon that different cultures perform as 
their own community owned rites of performance. Healing is necessary for 
correcting the wrong, the discrimination and preparing the ground for 
reconciliation which a step towards national unity that the Constitution 
seeks as one of its major goals.

Kenya is a nation in mourning after four decades of a violent history. 
Kenya's map is dotted with sites if massacres and killings. The new 
Constitution must help by giving protection to reconstruct a depressed 
culture and our national self-esteem. The Kenyan nation needs to come to 
terms with the past especially the recent past since independence which is 
a painful living memory for many. The nation must reconcile with itself and 
make peace with justice. Culture changes and brings about changes. The new 
Constitution is a part of that change in the process to bring about changes.

Western values that reflect on the evolution of a democratic pluralist 
society such as equal inheritance rights for women, freedom to expression 
of diversity of intellectual traditions and right to refuse a 
discriminatory traditional custom are certainly worthy of consideration for 
commenting on, modifying and building of the national ethic. As is the case 
with other nations of the world there is both the universality and 
specificity in adopting constitutional principles. The specificity comes 
from unique cultural experiences which this paper emphasizes.

The nationalist discourse prior to and post independence enabled venting of 
anger and pain against racism and mistreatment of the black subjects of the 
colony of Kenya. It also enabled restoration of self-esteem and trust in 
the making of the new nation, the new Constitution and the new leadership. 
Praise songs, monuments and legends celebrating the people reconstructed 
our national pride and gave expression to a national culture that in turn 
supported the new Constitution and leadership. The new Constitution of 
independent Kenya was to provide a facility for expression and healing of 
humiliation of the past. That was a parallel step towards developing a 
culture of change.

Today we need a Constitution that can provide Kenyans to work without fear 
towards a culture that would allow us to handle an unresolved and a hurting 
era of the last forty years. Many questions will be asked because of 
suspicion and betrayal by the past parliaments. That's part of the healing 
process, the right to questions, to correct the wrong and learn from the 
mistakes. That is a process to deal with discrimination and a process to 
making of the new Constitution to restore the confidence of the nation so 
that creativity of a suppressed people can be harnessed to develop a 
healthy nation. The Great New Law must help thoughts, intellect, creativity 
and emotions of the nation to be shared and appreciated without fear and 
with freedom and trust, first in ourselves and then in the leadership 
representing us.

European nations came to reconstruct their culture after the destruction 
caused by the World Wars by first holding massive healing ceremonies in the 
churches and at graveyards. Then came building of memory monuments and 
museums to the violence. These were physical and tangible manifestations of 
a new culture protected by the new laws. Germany and Austria turned 
concentration camps and execution sites into national museums that would 
educate and remind the people of the mistakes of the past and especially of 
the State's violence against her citizens. Their new constitutions provided 
freedoms of expressions that worked towards healing of the nations. The 
Americans built the Vietnam Wall in Washington to heal the nation mourning 
the deaths. The Americans built the Peace Garden in Nairobi at the place of 
the 1998 bomb blast of the American embassy while at the same time 
constructing the new embassy on Mombasa Road. 

The process of making a new Constitution of Kenya is itself a process of 
making a new culture. It is a struggle against anti-Constitution forces 
which we have been witnessing since the work of the Commission statement. 
There are more examples.

The new South African constitution came into being with support of the 
Peace and Justice Commission. The South African Commission had an important 
role to play during the interim period so that the public can accept the 
new Constitution. Perhaps we need to do the same. Rwanda and Burundi are 
working towards support of their citizens for their new constitutions 
through the Peace and Justice Commission that is all to do with 
discriminatory culture that led to favouring one tribe, ethnic group 
against another. The failure of the International Court in Arusha to deal 
with crimes of the genocide is a lesson for us. Rwanda and Burundi have 
finally reverted back to the elders councils to deal with the pain and 
humiliation of the citizens misled by tribalism and the lack of law to 
protect the cultures from being manipulated for political ends. The elders 
courts are called Gachacha which literally means grassroots.

The new Great Law of Kenya, the Constitution, must allow an expression for 
the healing of the nation in all its aspects and for all its people from 
the 1960s massacres of the of the Mau Mau freedom fighters in Meru, the 
Samburu elders at Wamba, and the massacres of Borana, Sekuye and Somalis 
during the first decade of independence. The North Eastern Province must be 
allowed to tell the nation of the tragedies of the large concentration 
camps of Merti and Garba Tula. The nation must above all hear the most 
recent 1990s killings of the Pokot, the Bukusu, the Agikuyu of the Rift 
Valley, the Mijikenda and the Luo of Likoni. These events are national and 
they need to be given national acknowledgement through moaning and healing 
in forms appropriate to the cultural norms of the citizens, the majority of 
the affected, so they can see and hear and heal and finally accept the new 
Constitution as a worthy document that will protect their right to life and 
security. Funeral rites and bereavement processes are very important 
aspects of African culture that the New Constitution must acknowledge as 
the people would like to see them acknowledged.

There was forced denuding of Pokot mothers of their skin garments and beads 
which were later burned by the GSU on the airstrip at Orwa in 1978. There 
have been atrocities of the Kenya Police and GSU in the slums of Nairobi. 
Mathari Valley in 1982, Kibera in 2001. The GSU and riot police who gazed 
upon the self-denudation of their age set mothers in early 1990 at Uhuru 
Park was a public shameful event, which needs to be cleansed in an equally 
public ceremony for the cursed ones. We are Africans and we must work out 
the legitimate grievances in an African way. That is an event that reflects 
supremely well on the national culture of Kenya at the time and it needs to 
be given the visibility in an African customary way. The Constitution must 
recognize, legitimate and promote such cleansing rites for the good of the 
Nation.

The Constitution can deal with the discriminatory aspects of culture by 
providing for the performance of rites and exhibitions to make 
discrimination in all its aspects public and transparent. There is as great 
a diversity of types of discriminations as there is a diversity of cultures 
of Kenya. Every ethnic group has been made a stereotype to the other. 
Discrimination coming from the authority means selectively promoting one 
(e.g. ethnic group) and denigerating another. It is profiling typecasts and 
justifying ethnic killings, which is the worst form of discrimination.

The history of public performances and exhibiting cultures has passed 
through phases reflecting the development and changes in human thought and 
society. This is a natural evolution. We have lived through the phase when 
the colonial performances was the dominating images both at home and 
abroad. It was the display of the others, exhibited as they were looked 
upon from the vantage view of the one at the top. During the post-colonial 
time it was mainly the stage and not cultures exhibitions that represented 
reconstruction of social identities due to the damage done to the image of 
Africa and her people. But with the changing perspectives in the 
scholarship of African Studies and anthropology, performances, museum 
displays have changed as well.

Hence plays such as Luanda Magere and Wangu wa Makeri were about reclaiming 
a suppressed social identity while others such as Ngahika Ndenda and Maitu 
Njugira in ethnic languages, and Mekatilili in Kiswahili presented 
alternative views of the stereo typified native. In 1997, the exhibition at 
the National Museums of Kenya on peace making traditions of the Maasai, 
Samburu, Pokot, Turkana, Rendille, Gabra, Somali and Borana dispelled the 
falsely constructed image of the pastoralists as warriors cherishing a 
culture of conflict and violence.

What has yet to emerge is the public viewing of the social history of Kenya 
in the formation of postcolonial civil society, and especially now, during 
the post one party State, so that the multiple histories in the making of 
Kenya's political social compositions and the civil societies independent 
of the State, can be viewed through the prism of its many patterns of 
colour. 

Selectively told and performed culture and history of Kenya is a form of 
discrimination that the Constitution must sanction. Ultimately 
discriminatory information gets reproduced in school books and the 
curriculum. The cycle of misinformation gets reinforced.
Historically speaking, the phases of stage and museum performances are 
situations in tensions and transitions, between traditions and modernity, 
ethnic and religious practices, civil societies and styles of governance. 
However, what is of significance is not how different we are in terms of 
our customs, languages and beliefs, that map us out as exclusive societies, 
each unable to integrate and form one non-tribal fellowship of citizens; 
but how and when social identities of the diverse and distinct peoples of 
Kenya become complementary to one other in the evolution of a national 
cause and a civil society rooted in its own varied cultural and economic 
resources. In that we have to know first where we are coming from and what 
we have to offer each other as a people, and as a nation of people, whose 
ancestors walked down the Nile, and from the Red Sea; from West Africa, and 
those who sailed on the Ocean harnessing the Trade Winds to come to the 
Mombasa, Lamu and Malindi.

In order to deal with State propagated discrimination, permit the 
Constitution to make known the history that Kenyans know, they know it for 
sure in their hearts. Let the torture chambers of the Nyati House be turned 
into a museum to allow the public to see what they already know. Let what 
we have done to each other be on display for reflection and healing so that 
the present and future generations to come learn from our history on public 
display. That is national culture. Put together exhibitions on corruption, 
torture and illegal imprisonment to travel nationally. That is a good forum 
for civil education. The new Constitution ought to develop a national 
cultural education forum that is not a one time event before the elections 
but a continuing lifelong educational process. Give the law a chance to 
avoid further violence and discrimination. Suppressed anger, humiliation 
and pain are dangerously volatile. Give the new Constitution a chance to 
provide and foster national unity through ownership of it by the people. 
And the people can only own it if it is in the medium that is also owned by 
the people.

Conclusion

In a historical perspective, the present State and the parliament is a 
passing phase. The new Constitution is obliged to reflect as correctly as 
it is possible, the Kenyan reality and aspirations of her people. In 
absence of culturally appropriate mechanisms to gather opinions and 
feelings of a diversity of communities, one has to rely on expressions of 
national sentiments such as gatherings at Kamukunji, stories and songs for 
justice and peace, riots and protests. These is the expressive culture of 
this particular historical moment. We must listen to it. It is the best of 
the national culture that one can get at this moment to build the Great Law 
and help us to come in touch with the values, especially African humanistic 
traditions, to be inherited and be fashioned in constructing a new culture 
of peace, devoid of fear, suspicion and violence. That is the path to the 
future and we make that path by walking. We make the new culture by walking 
with the new Constitution. The citizens must walk with the Constitution so 
that the Constitution helps the Government to walk with the people.

The venues that allow national cultural expressions are in forms of dance, 
drama, languages, dialogues and visual arts. And there area diversity of 
artistic and linguistic forms. The venues can also be in form of monuments 
and museums commemorating the living memories of discrimination and 
injustices. When there are deep feelings of suffering, human suffering, 
ethnic suffering, individual family suffering, they are all Kenyan 
suffering. These can be sufferings because of disagreement with the State 
or one ruling party or an elite group or even an individual. When the law 
cannot protect the rich and the poor, the rulers and the citizens alike, 
then it is discriminating. 

When the Constitution cannot or will not promote correction of the 
injustices, it is discriminatory. Support the Constitutional right of 
freedom of conscience and expression of thought and association to be 
manifested to work out a democracy in practice. The vast majority of people 
of Kenyan are visual and oral in manufacturing, understanding and 
transmission of knowledge. These three aspects of knowledge of a largely 
visual and oral society are articulated in the arts of the society forged 
by both the colonial and post colonial struggle to free the spirit from the 
injustices of the times. Culture is about the human spirit. Nationalists in 
Kenya rode on the back of culture to achieve freedom. We must do the same 
to fortify the Constitution and the processes of Constitutionalism with a 
life long national culture that will not allow subversion of both the 
Constitution and Constitutionalism once again.

Resources

The material in this paper is largely drawn from oral and visual sources 
collected over nine years of field work under the Community Peace Museums 
Programme covering about 30 ethnic groups in Kenya. Written sources that 
have influenced the writing of the paper are listed below.

Aimtoga, Amani
1999 Conflict resolution and reconciliation among the Chagga of Tanzania in
All Africa Conference of Conflict Resolution and Reconcilliation Report, 
Addis
Ababa.

Barrett, Anthony Joseph
1998 Sacrifice and prophecy in Turkana Cosmology. Nairobi: Pauline 
Publications Africa.

Bradbury, Mark
1999 A Comparative Study of Somali Approaches to Reconciliation in All 
Africa Conference of Conflict Resolution and Reconcilliation Report, Addis 
Ababa.

Farah, Yusuf Ahmed
1999 Roots of reconciliation:Local level peace process in Somalia in All 
Africa
Conference of Conflict Resolution and Reconcilliation Report, Addis Ababa.

Yusuf, Haroon
1999 Somaliland: Peace, reconciliation and governance in All Africa
Conference of Conflict Resolution and Reconcilliation Report, Addis Ababa.

Magesa, Laurenti
1998 African Religions and Abundance of Life. Nairobi: Pauline Publications 
Africa.

Mansor, Duria
1999 Traditional mechanism of conflict prevention, management, and 
resolution in Nuba Mountain region of South Kordofan State of Sudan in All 
Africa Conference of Conflict Resolution and Reconcilliation Report, Addis 
Ababa.

Malan, Jannie 
1997 Conflict Resolution Wisdom from Africa. Durban: ACCORD.
Maranz, David E.

1993 Peace is everything: World View of Muslims in Senegambia.
Texas: International Museums of Cultures.

Lutheran World Relief
1996 Peace and Reconciliation: A case study of the Ogwedhi-Sgawa 
Development Project-A local peace initiative of the Kuria, Luo and Maasai 
People.

Linder, Evelin Gerda
Moratorium on Humiliation Cultural and 'Human Factor' Dimensions Underlying
Structural Violence. Paper presented at the UN, New York December 2001

Pain, Dennis
1997 The Bending of Spears: Producing consensus for peace and development 
in Northern Uganda. London: Report Commissioned by International Alert.

Visser, J.J.
1998 Pokot Religions. Oegstgeest: Hendrik Kraemer Institute. Nairobi:
Paulines Publications Africa.

Daily Nation January 1999-March 1999. Nairobi: Nation News Papers Ltd.

Appendix 1 The Terms of Reference

1. Whether we have a Kenyan identity that can be recognized in the 
constitution
2. The contribution of ethnic and cultural diversity to a national culture
3. What cultural and ethnic values should be captured in the Constitution?
4. How culture and ethnic diversity can be protected and promoted in the 
Constitution.
5. How the Constitution should deal with discriminatory aspects of culture?
6. The place of customary law in the constitution.
7. Religion and its place in the constitution
8. What should be our language policy?
9. Whether constitutional principles are universal - is there cultural 
relativity in their observance?
10. Are there "Western values" recognized in our culture?

Appendix II 'Priest seeks police help over sacred tree threat'

Daily Nation Monday January 7, 2002 

A church minister wants police to protect him after he was threatened with 
death for leading his followers in cutting down and burning a sacred tree. 
The Rev Dominic Kiloku of the Assemblies of God Church in Laikipia District 
yesterday said elders in Mukogodo division had threatened to kill him after 
he declined to atone for his alleged desecration of a sacred tree 
traditionally used by the residents for spiritual rites.

The destroyed tree was located at Kantana village in Makurian location. A 
meeting convened by Makurian location chief, Mr Elen ole Legei,resolved to 
have the preacher atone for his alleged offence by offering the elders a 
goat and local brew before they could cleanse him.

But in his defence, the preacher reached for his Bible, opened it and 
started reading it.
He was shouted down as elders protested that he was making fun of a serious 
issue, with some of them walking out of the meeting.

The priest was later condemned and cursed through traditional chants. The 
defiant preacher later told journalists that he would neither apologise for 
his actions nor offer any appeasement.

"It is my God-given duty to stop my people from worshipping objects.They 
have been slaughtering and praying under the tree for rain and other things 
which is contrary to Christian teachings. They had to be stopped," he said.

He said he believed in God and trusted that no curses would affect him or 
his family. He said: "However, they have now made my work very difficult. I 
cannot go preaching to families in their homes I fear for my life”.

Many of them have also warned their wives and children not to come to 
church," he added. He said he had requested the police and the provincial 
administration to protect him from the traditionalists. During the previous 
three years of severe drought which killed thousands of livestock, several 
offerings were performed by elders under the fig tree - locally called 
Oreteli. The last rites were performed last October.

The Mukogodo community, largely made up the Maasai and the Dorobo, still 
practise most of their traditional spiritual and cultural values. They are 
recognised by the United Nations as among the world's few remaining but 
threatened indigenous and tribal communities.