Kenya: Legal Impediments to Development in North

Ahmed Issack Hassan

22 October 2008

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Surveying a history of marginalisation and distance from government support, Ahmed Issack Hassan explores the legal and administrative impediments to have plagued the development of the region of Northern Kenya. Citing a litany of human rights abuses and the discrimination faced by inhabitants of the region, the author argues for the need for appropriate and effective legislation and sustained political goodwill from executive and national parliamentary power in the struggle to tackle tyrannical practice.

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Kenya's colonial government enacted several laws specifically targeting the north. The Outlying District Ordinance of 1902 effectively declared the Northern Frontier District (NFD - made up of the present-day districts of Wajir, Mandera, Ijara, Garissa, Isiolo, Moyale and Marsabit) a closed area; movement in and out was only possible under a special pass. The Special Districts (Administration) Ordinance of 1934, together with the Stock Theft and Produce Ordinance of 1933, gave the colonial administrators extensive powers of arrest, restraint, detention and seizure of properties of 'hostile tribes.' The latter legalised collective punishment of tribes and clans for the offences of their members. These ordinances applied not only to the NFD but also to present-day Tana River, Lamu, Kajiado and Samburu districts.

The net effect of this early colonial legislation was to turn the NFD into a closed zone that had no contact or relation with other parts of Kenya. Indeed, other Kenyans knew little about it. This situation continued after independence and is best captured by the statement of the American writer, Negley Farson: 'there is one half of Kenya about which the other half knows nothing and seems to care even less [about].'

INDEPENDENCE OF KENYA AND THE NFD

When political activities were legalised in 1960, the people of the NFD formed the Northern Province Peoples Progressive Party (NPPPP), whose main agenda was the secession of the NFD and its reunion with Somalia. At the Kenya Constitutional Conference of 1962 the Secretary of State for the Colonies proposed that an independent commission be appointed to investigate public opinion in the NFD regarding its future. The commission visited every district in the NFD. It heard oral submissions from 134 delegations, received 106 written submissions, and held meetings in Nairobi with the leaders of other political parties. The majority of people in the NFD were found to be in favour of secession.

However, the British government was unwilling to abide by the result of the commission on the grounds that it was not prepared to take a unilateral decision on the future of the territory so close to Kenya's independence. The Regional Boundaries Commission set up in 1962 recommended that the predominantly Somali-occupied districts of Garissa, Wajir and Mandera be constituted into the seventh region, and thus the North Eastern Province was born.

This was seen as a betrayal of the wishes of the people of the NFD in general and the NEP in particular. They boycotted the 1963 elections and the leaders of the NPPPP started what came to be known as the 'shifta' war. Somalia broke off diplomatic relations with Britain and supported the secessionists. Kenya's newly independent government was firm in its stand that it would not cede an inch of territory. Two weeks after independence it declared a state of emergency over the NFD which lasted for close to 30 years.

AMENDMENTS TO THE INDEPENDENCE CONSTITUTION AND EMERGENCY LAWS IN THE NFD

Kenya became independent on 12 December 1963. Section 29 of the independence constitution provided for the procedure to be followed in the event of declaring a state of emergency. However, Section 19 of the Kenya Independence Order in Council (Kenya subsidiary legislation, 1963) provided that the Governor-General:

'may, by regulations which shall be published in the Kenya Gazette, make such provision as appears to him to be necessary or expedient for the purpose of ensuring effective government or in relation to the North Eastern Region and without prejudice to the generality of that power, he may by such regulation make such temporary adaptations, modifications or qualifications or exceptions to the Provisions of the Constitution or of any other Law as appear to him to be necessary.'

When Kenya became a republic in 1964, the powers enjoyed by the Governor-General under Section 19 were transferred to the president, giving him the power to rule the North Eastern Region by decree. There have been several subsequent amendments to the independence constitution. For example, the sixth amendment Act No.18 of 1966 enlarged the government's emergency powers. It removed legislation relating to parliamentary control over emergency laws and the law relating to public order. Existing constitutional provisions were repealed and replaced by one which gave the president a blank cheque: 'at any time by order in the Kenya Gazette to bring into operation generally or in any part of Kenya, part III of the preservation of Public Security Act or any part thereof.'

The application of emergency laws meant that in effect Kenya had two separate legal regimes: one applied exclusively to the NFD and the other to the rest of the country. The detailed provisions of the emergency laws were contained in the North Eastern Province and Contiguous Districts Regulations, 1966. These regulations formed the basis for the degradation of human rights and explicitly endorsed instances in which the fundamental human rights of the person could be violated. In the process, the government arrogated powers that could only apply to the rest of Kenya when it was at war.

The Northern region was thus technically a war zone and became a virtual police state. The regulations created offences that were punishable without due process. Possession of a firearm, or consorting with or harbouring someone with a firearm, was punishable by death. Harbouring someone who may act in a manner prejudicial to the preservation of public security was punishable by life imprisonment. Even the owning, operating or use of boats or any other means of transport on the Tana River was made a crime liable to imprisonment. Entry into the region by people other than civil servants and members of the security forces was prohibited. Members of the armed forces were given wide powers of search, arrest, restriction and detention. Members of the provincial administration and the security forces were given powers to preside over 'judicial trials.' The Regulations also suspended the application of Sections 386 and 387 of the Criminal Procedure Code, which require the holding of an inquest on the death of persons in police custody or under suspicious circumstances.

The constitutional and legislative framework for the application of emergency laws in Northern Kenya was completed in 1970 with the passing of the Indemnity Act, Chapter 44 of the Laws of Kenya. This was meant to indemnify government agents and members of the security forces working in the region against any claims on account of any loss or damage occasioned by their actions. Many human rights violations occurred in the NFD after 1967; those responsible for these violations cannot claim indemnity under this act.

EFFECTS OF THE EMERGENCY LAWS IN THE NFD

a) Human rights violations

Members of the security forces have been accused of gross violations of human rights in the course of their duties, including instances of genocidal killing, mass murder and rape, extra-judicial killing, arbitrary arrests and detention of persons and communities, and illegal confiscation and theft of properties. For example:

• Bulla Kartasi Estate massacre, November 1980. Following the killings of six government officials in Garissa town, the security forces retaliated by burning the whole of Bulla Kartasi estate, killing people and raping women, and herding the town's residents to a mini-concentration camp at Garissa Primary School playground where they kept them for three days without food or water. Human rights organisations estimate the dead at over 3000, with an equal number unaccounted for.

• The Wagalla massacre, February 1984. The security forces launched an operation in Wajir targeting the Degodia sub-clan of the Somali. Most of those rounded up were summarily executed after days of incarceration at the Wagalla airstrip. Close to 5,000 people are said to have died.

• Other instances of extra-judicial killings and collective punishment include those in Malka-mari, Garse, Derakali, Dandu and Takaba areas of Mandera District.

b) Discrimination

Kenyan Somalis in general complain of discriminatory laws, regulations, practices and procedures that apply to them and not to other Kenyans. This is especially acute in the area of citizenship and immigration, i.e., in the issuing of birth certificates, identity cards and passports. The screening exercise of Kenyan Somalis in November 1989 is also cited as a clear case of discrimination. Its justification was contained in a government statement:

'The Government is to register all Kenyan Somalis and expel those found to have sympathy with Somalia. The Government cannot tolerate citizens who pretend to be patriotic to Kenya while they involve themselves in anti-Kenya activities. The Government has therefore found it necessary to register Kenyans of Somali ethnic group to make them easily identifiable by our security forces.'

In effect this was a mass verification exercise, carried out by vetting committees made up of selected elders and members of the provincial administration and civil service. The burden of proof was placed on those who appeared before the committees to prove their citizenship or their right to claim it. Those who failed to satisfy the committee were effectively declared non-citizens. Some were deported to Somalia while others opted to settle elsewhere in East Africa.

The screening exercise and the requirement on Kenyan Somalis to produce their screening card in addition to their identity card as proof of citizenship was seen as a violation of their fundamental rights to protection from discrimination as enshrined in Section 82 of the constitution. The legality of the exercise was also questioned by many experts.

c) Marginalisation and underdevelopment

One of the most visible legacies of the period of emergency law in the region is the state of underdevelopment in all aspects of life. The government's energies and resources were largely directed towards security and the maintenance of law and order. Its policy has been described as one of containment not engagement. No constructive or meaningful development took place during this period. Indeed, over 80 per cent of the region's budget was spent on security. The net result is that the region is today the most underdeveloped and marginalised in Kenya.

d) Constitutional reform, multi-party politics and the repeal of the emergency laws

The clamour for constitutional reform in the 1990s, which led to the repeal of Section 2A of the constitution, the introduction of multi-party politics and the Inter-Parties Parliamentary Group (IPPG) talks that produced the minimum reforms to the constitution, also saw the repeal of the emergency laws affecting the NFD in general and NEP in particular. Section 127 of the constitution, which laid the foundation for the state of emergency, was repealed on 29 November 1991. The North Eastern Province and Contiguous Districts Regulations, 1966, was also repealed in 1991. The Outlying District Act and the Special Districts (Administration) Act were repealed under the Statute Law (Repealed and Miscellaneous) Amendment Act of 1997.

The repeal of these laws was a big step forward in restoring to the people of the NFD their fundamental rights and freedoms as guaranteed in chapter five of the constitution. They are now much freer than before and are slowly becoming aware and assertive of these rights. Their potential and morale was not destroyed by the colonial and post-colonial emergency legal regime applied to them. They have refused to regard or see themselves as inferior or second-class citizens, and have proved right Eleanor Roosevelt's statement that 'no one can make you feel inferior except with your own consent.'

e) Continuing legal and administrative impediments to the development of Northern Kenya

1. The creation by the coalition government in April 2008 of the Ministry of State for the Development of Northern Kenya and other Arid Lands is an important milestone. The ministry can become the focal point for the government's efforts in addressing historical injustices, marginalisation and underdevelopment. However, the ministry was created by executive fiat. If it is to be effective and not just symbolic, there must be a legal framework that sets out its functions, the procedures for their implementation, and the powers of the minister.

2. Despite the repeal of the emergency laws, there are still some vestiges of laws and administrative practices. These include but are not limited to the following:

• The Stock Theft and Produce Act that provides for the collective punishment of pastoralists in Northern Kenya is still part of our laws. So too is the Indemnity Act, which was not repealed with the other emergency laws. These two Acts of Parliament should be repealed in order to formally lay to rest the emergency law regime. In 2001 parliament passed a motion brought by the MP for Wajir West, the Hon. Adan Keynan, to repeal the Indemnity Act, but to date no bill has come to the house to repeal it.

• The security forces still operate under the mentality of the emergency law era. There are many unnecessary barriers that result in harassment, corruption and the hindrance of the free movement of people and goods. The police force is yet to change its mindset in the region. It is common knowledge that when police recruits from Kiganjo are posted to North Eastern Province, they are given more training at the Forces Training Centre in Garissa before deployment. While all police officers are required by law to wear their uniform and display their force numbers, those in Northern Kenya do not do so. This even includes traffic officers, who are mostly dressed in jungle fatigues. The anonymity granted to them by this mode of dressing aids and abets the culture of impunity. This practice must be reversed. The security forces operating in Northern Kenya must do their work under the same conditions as their colleagues in other parts of the country.

3. The absence of a legal mechanism for restorative justice must be addressed. Those affected by gross violations of human rights during the emergency law period, such as the victims, widows and orphans of the Wagalla massacre, need closure. There has not even been a commission of inquiry into the excesses of the security forces in the region.

4. The lack of a legal framework for affirmative action and positive discrimination to help the people of the region recover from historical injustices remains an impediment to the region's catching up with other parts of Kenya.

5. The lack of lands registries is a major impediment to economic progress. Title to land or property enables the owner to offer it as security to access financial loans, guarantee payment of goods and services, or give surety for bail or bond in court. There is no lands registry in the entire Northern Kenya where a title can be processed, or sales, transfers and charges can be registered. The system of land registration should be brought into effect and land registries established in every district's headquarters.

6. The Districts and Provinces Act, No. 5 of 1992, established the composition of Kenya's provinces. Moyale, Marsabit and Isiolo districts fall under Eastern Province, whose headquarters is far away in Embu. Bringing these three into one province would be consistent with the spirit of bringing government services closer to the people.

7. Under the Judicature Act, Chapter 8, Laws of Kenya, the Chief Justice is empowered to create high courts and magistrates courts in any part of the country. There is no high court in the whole of the north. Appeals from magistrates' courts must be filed in the high court in Nairobi, Embu or Meru. This limits access to justice. Magistrates' courts are also few in number, as are the Kadhis courts which attend to matters of personal law for Muslims.

8. The potential for tourism of the region has never been harnessed. Instead of taking the camel to tourists at the coast, tourists should be taken to the camel in its natural habitat. The few game parks and reserves in Northern Kenya, such as the Kora and Arawale, have been neglected by the Kenya Wildlife Service.

10. Livestock is the economic mainstay of the region. The absence of a legal framework for the marketing and sale of livestock and livestock products is a major obstacle to its development.

11. The problems encountered by the people of Northern Kenya in obtaining birth certificates, identity cards and passports are a matter of public notoriety. The Registration of Persons Office and the Immigration Department have made it very difficult for young people to obtain these important documents that enable them to register as voters and take part in political affairs, or to travel out of the country to study or seek other opportunities abroad.

12. The role played by civil society and charitable institutions in supplementing government poverty alleviation efforts cannot be ignored. However, the rigid and strict application of the NGO Coordination Act and the Societies Act makes it difficult for local professionals to register local NGOs and charitable organisations.

13. With the relative peace in the region and the availability of raw materials and cheap labour, there is an urgent need for legislation that encourages private investment. This should contain provisions for tax incentives to spur wealth creation and economic growth in the region.

The legal and administrative impediments to the development of Northern Kenya can be overcome by enacting appropriate legislation where necessary, or by administrative action by the relevant ministry or government department concerned. This can only be achieved successfully if there is political goodwill from the executive and an accommodating parliament.

Ahmed Issack Hassan is an advocate at the High Court of Kenya.This is an abridged version of a longer paper by the author, which can be obtained by writing to ahmed@ibrahimandisaack.com