It cites the Preamble to the 2010 Constitution about being proud of our diversity, and Articles 11 and 44 which, it says, ‘enshrine the duty of Government to promote and protect the diverse cultural heritage of Kenya’. The President says that he recognises, proclaims and orders that ‘Kenyans of Asian heritage’ constitute a ‘Community that is one of the Tribes of Kenya’. Also that ‘from now on they are one of the Tribes of Kenya’. Finally, that all ‘Persons, Bodies and Authorities’ in Kenya shall recognise the community as the 44th Tribe.
What does it mean?
Firstly, for social media users: no it does not include the ‘Rockets’— recent arrivals from India—because they are not Kenyans. Then some people have pointed out that the term ‘Asians’ covers a lot of people: you might say from the Bosphorus to Tokyo so does it include the Chinese and the Arabs and many others? This would be terribly bad law-writing, but no doubt the word will be read as it is usually used in Kenya. And—this is not law!
Articles 11 and 44 speak about culture, indeed. Article 11 says that the State must ‘promote all forms of national and cultural expression through literature, the arts, traditional celebrations, science, communication, information, mass media, publications, libraries and other cultural heritage’. And Article 44 that we all have the right to use the language, and to participate in the cultural life, of our choice. And if we belong to a ‘cultural or linguistic community’ we have the right —with other members of that community—to enjoy the culture, use the language and join cultural and linguistic associations. The State must respect (not disobey), protect, promote and, if needed, fulfil all our rights.
The most important comment on this is that it is all about culture. Not about involvement in public life. Not even about equality.
What does it mean to be a tribe in Kenya?
So what is the significance of being a ‘tribe’ in Kenya? The word is used in eighteen Kenyan laws. Most of the uses are in the Stock and Produce Theft Act, a colonial era Act that provides for things like levying a fine for stock theft on the tribe or sub-tribe of the offender if the offender cannot pay, or for a magistrate to order ‘all or any’ of the members of a tribe whose members seem likely to act in a manner which may lead to bloodshed or to the theft of stock, enter into a legal undertaking to be of good behaviour for up to three years. This sort of collective punishment is probably unconstitutional.
Otherwise its use tends to be about non-discrimination on grounds of tribe (or any other factor) — already dealt with in the Constitution that forbids discrimination on any ground — or customary law or oaths by Africans in court, The Registration of Persons Act says that the register of persons shall include a person’s ‘declared tribe or race’. And the Rabies Act speaks of the feline and canine tribes!
The Order about the 2009 census made under the Statistics Act does say rather oddly — that the questions to be asked of everyone should be their ‘Tribe or Nationality’. But this created a controversy; the National Cohesion and Integration Commission protested: the Chair of the time said ‘Why should anybody think of issuing a national census on tribal lines? What do they want to achieve by doing that?’ Apparently the census enumerators had been told not to insist — but they could make their own estimation of the response. The results recorded 46,782 ‘Kenyan Asians’ and 35,009 ‘Asians’.
In the 1999 census the information had not been released in those terms. That spirit was akin to that which led the CKRC to provide in its 2002 draft Constitution: ‘No person may be compelled to indicate or define his or her ethnic or racial affiliation’. This survived till the Committee of Experts’ first draft, but disappeared in their second.
Are there 42 tribes?
The 2009 results show that the notion of ‘42 tribes’ is nonsense. People self-identified: some said they were Luhya but some as belonging to one of 18 groups within the Luhya. Some said they were Mijikenda, but there were 12 groups within the Mijikenda. Overall there were far in excess of 42 groups. However, this number has been far from stable over time. For example, the 1962 census coded 40 groups, while the 1979 census recognised 38 ethnic groups.
What is a ‘tribe’?
David Wiley, then of the African Studies Center, Michigan State University, wrote about it in 1981, updating his reflections in 2013. He said,
Tribe, a concept that has endeared itself to Western scholars and journalists for a century, is primarily a means to reduce for readers the complexity of the non-Western societies of Africa, Asia, Latin America and the American plains. It is no accident that the contemporary uses of the term tribe were developed during the 19th-century rise of evolutionary and racist theories to designate alien non-white peoples as inferior or less civilized and as having not yet evolved from a simpler, primal state. The term had no validity in the pre-colonial period. It has less legitimacy now.
Clearly the term ‘tribe’ is a colonial, racist and derogatory description – so much so that there has been a concerted effort to replace it with ‘ethnic community’ for a distinctly identifiable cultural group. Tribe falls into the same category as coolie, boy (for an adult male), negro, wog, paki, and so on. These are words which should no longer exist in our vocabulary. And not just in our vocabulary, not even in our society.
Tribalism – Kenya’s albatross
The most glaring impediment to progress in Kenya today is the issue of ‘tribalism’. Few would disagree with this statement, especially right now as we agonise over the forthcoming elections. Any right-thinking Kenyan should be advocating the purging of tribalism so that we can begin to assess our politics on the basis of vision, competence and actual performance and not the ‘tribe’ of the proposed leader(s).
The South Asian community in Kenya today is in a unique position to lead the march towards building nationhood, towards us all becoming ‘Kenyans First’. What a tragedy that a few of us are attempting to drag us back into our colonial and racist past. And can anyone enumerate what benefits, outcomes or even just changes are expected after our endorsement as the 44th tribe?
As we said earlier, even if a group is recognised as a tribe no legal consequences flow from it. In its own terms all the so-called Proclamation purports to do is to recognise culture and heritage. There is no need to be ‘recognised’ as a ‘tribe’ to have culture and heritage. The right to enjoy one’s culture are already there.
If (when) Asians, or any other Kenyans, are discriminated against on the basis of their ethnicity or place of birth this is already wrong – under the Constitution, Article 27. Rights of minorities, especially in public life, are underlined in Article 56. This says that there must be ‘affirmative action’ to ensure that minorities and marginalised groups ‘participate and are represented in governance and other spheres of life’ among other things. ‘Minorities’ are not defined. Clearly Asians are a minority (or minorities)—but the presidential proclamation says nothing about this, only about a tribe.
As for equal representation, during the expiring Parliament, there were four ‘Asian’ MPs — out of a total of 349 in the National Assembly or 416 including the Senate. That is 1.1% of the members of the National Assembly or .96% of the members of Parliament as a whole. Going by the 2009 census Kenyan Asians were 46,782 or .12% of the population of 38 million. In other words they were over-represented by a factor of about eight. And for the 2017 General Elections there are at least 15 Kenyan Asians, including one woman, running for Parliamentary seats. What more representation is the ‘tribe’ seeking?
But coming back to the reality on the ground – clearly the President and his advisors were unaware that the Asian community in Kenya was officially accorded ‘tribal’ status just 6 years after we gained Uhuru. The 1969 Kenya Population census noted the ‘tribe’ of Kenyan Asians as being 62, 998, 0.25 of the population. The 1979 census the Asian tribe totalled 32, 554. 0.25 of the population. In 2009, the Kenya Statistics Bureau classified Asians as a ‘tribe’.
The fact that this information is virtually unknown even to the ‘community’, leave alone the powers-that-be, is ample evidence of how utterly and completely inconsequential it is. Did it need a presidential proclamation and gazette notice to activate it; and now that it is ‘activated’ what momentous change can we expect? Do these patriotic South Asians feel more welcome, safer and more secure? Are they rushing to join the police force or the army, or apply for jobs in the public sector? Do they feel more equal? To what? Other tribes? As far as we know, many of these tribes complain of being unequally treated in present-day Kenya.
And are the South Asians themselves really ‘a tribe’? They are comprised of a multitude of communities which do not share a common religion or even language. They have no ancestral village or land they can call their own, perhaps they should now be given this land - after all every other Kenyan tribe has a particular land or region it identifies with, including the Makonde! And the Asians immigrated to Kenya long before the Makonde did.
Will this proclamation bridge the ever-growing divide between the Hindu and Muslim Asians? Just prior to Kenya’s independence the Congress, the voice of the Asian community, split into the Muslim League and the Kenya Indian Congress and this division has become more and more entrenched ever since. Will the Hindu Council now consult with SUPKEM and elect a tribal leader? Will ALL Asians henceforth be subject to a customary law which will include the kadhi courts, etcetera? We could go on ad infinitum.
What happened (legally speaking) on 21st July?
The President has no power to command us to do anything unless he is given
legal authority to do so. The only ‘proclamation’ that the President has the
power to make that has any legal implication is to call out the reservists when there is a state of emergency. In other words, in terms of law, nothing
KAF wishes to stress again (as was done in an earlier statement) that the way ahead for humanity to progress and save our planet is to work towards achieving a national, continental, international and universal humanity where all people can live in harmony and fulfil their potential. Surely it is not to retreat even further into cocoons and build higher walls ……. Kenyan South Asians are in a unique position where they can make a major contribution towards nurturing an overarching Kenyan identity –– the move to securing a tribal identity (whatever the number) is not only backward, it is non-productive, impractical and divisive.
Zarina Patel and Jill Ghai
KAF Steering Committee Members