Temperatures have soared to a fever pitch as the November 21 referendum on the approval of Kenya’s new constitution quickly approaches.
On October 1 in the Narok District, a large gathering of Maa speakers drawn from Marsabit, Isiolo, Nakuru, Laikipia, Baringo, Transmara, Samburu, Kajiado and Narok communities resolved to reject the most recent government draft constitution, commonly known as the Wako draft. The group opted instead to support the earlier Bomas draft, which more clearly reflected the communities’ views on how they should be governed.
For the past 100 years, pastoralists, hunter-gatherers, and other ethnic minorities have remained on the fringes of Kenyan society due to laws in the current constitution that deny the groups’ existence. Scores of traditional and civic community leaders, led by veteran politician John Keen and Cabinet Minister William Ole Ntimama, implored the gathered Maasai to reject the Wako draft, saying it was intended "to be final nail on Maasai coffin."
"If we go by the Wako draft, then all minerals shall belong to the government: Magadi Soda, the gold deposits in Transmara, the Gypsum in Kajiado and a horde of other minerals in our land that we sought to get ownership of in the Bomas draft shall be ceded to the government," said lawyer Julius Ole Sunkuli.
In 2003, the Constitution of Kenya Review Commission (CKRC) selected 620 delegates to come together at the constitutional conference known as the "Bomas."
The Bomas draft, often called the people’s constitution, called for an equitable distribution of resources in indigenous and minorities’ lands and territories, and the formation of a commission to address historical injustices, including historical land dispossessions in Kenya’s Rift Valley, Northeastern, and Coast Provinces.
It also contains clauses on affirmative action, ensuring that minority groups’ unique socio-cultural and economic practices of pastoralists and the coastal communities would be recognized and would be able to present their issues to the Kenyan government.
Shortly after reaching parliament, however, the Bomas draft underwent major revisions. These changes were widely regarded as serving only to dilute the proposed redistribution of political power, and resulted in the Wako draft.
In a recent article in The Daily Nation, law expert Ababu Namwamba wrote that the Wako draft states that community and public land shall be administered by a national land commission appointed by the president. If passed, the commission would "evenly" distribute all revenue accruing from natural resources like the Maasai Mara to the whole country.
Many in the Maasai community feel that this system of "even" distribution would facilitate abuse and further marginalize the Maasai. The Bomas constitution draft would have given the Maasai greater control over "blue chip" tourist resources like the Maasai Mara, Amboseli, Lake Naivaisha, Hell’s Gate National Parks, Naimina Enkiyio, and Mau forests, among others.
"This [provision] means that our dear forest shall become out-of-bounds for our livestock, and the families currently living there, without attempting to destroy our forest, shall be ejected like those of Mau (the Ogiek)," Assistant Minister of Planning and National Development Simeon Lesrima said at the October 1 gathering.
Since the current constitution, known as the Lancaster House Constitution, was put into effect in 1962, a series of subsequent amendments have created a top-heavy government with a concentration of political power in the Executive Branch—particularly in the office of the presidency.
In 1990, official opposition parties such as President Mwai Kibaki’s own Democratic Party (DP), the Forum for the Restoration of Democracy, along with members of civil society, institutions of higher learning, the diplomatic corps, church organizations, and political activists began to push for a new constitution that would mandate a more equitable distribution of power within the government. Once elected, however, Kibaki’s government changed its position, much to the frustration of the Kenyan people.
Following the rally in Narok, in what appeared to be a calculated move to appease the Maasai of Kajiado South, the government attempted to return Amboseli National Park to the Maasai-controlled Olkejuado County Council. However, there were procedural flaws in the proposed transfer.
The apparent overnight change of heart by the government about the Maasai was described by leaders and observers as a desperate attempt by President Kibaki’s administration to hoodwink the communities into voting for the Wako draft.
On October 5, more than 30,000 Maasai gathered at the trading center of Suswa to hear from Maasai lawyers, who emphasized that both the president and the tourism minister had breached the Wildlife Act with impunity. The Maasai reminded Kibaki’s regime that the community would not be coerced.
