UNIVERSITY OF NAIROBI

COLLEGE OF EDUCATION AND EXTERNAL STUDIES

SCHOOL OF CONTINUING AND DISTANCE EDUCATION

MA IN PROJECT PLANNING AND MANAGEMENT

UNIT CODE: LDP 601

UNIT NAME: FUNDAMENTALS OF MANAGEMENT

EMMANUEL STEVE OLELA

L50/87029/2016

TASK: INDIVIDUAL ASSIGNMENT

Cite the legal provisions that enhance mainstreaming of minority groups in private and
public sector.

Adopted by consensus in 1992, the United Nations Minorities Declaration in its article 1 refers to
minorities as based on national or ethnic, cultural, religious and linguistic identity, and provides
that States should protect their existence.

According to a definition offered in 1977 by Francesco Capotorti, Special Rapporteur of the

United Nations Sub-Commission on Prevention of Discrimination and Protection of Minorities, a
minority is a group numerically inferior to the rest of the population of a state, in a non-dominant
position, whose members - being nationals of the State - possess ethnic, religious or linguistic
characteristics differing from those of the rest of the population and show, if only implicitly, a
sense of solidarity, directed towards preserving their culture, traditions, religion or language
(OHCR, 2010)

However, the definition is flexible and minority group is not always that one is always inferior
in number. In effort to protect minority rights, the 1992 UN Declaration outlined that these
individuals have the right to enjoy their own culture, religion, language in public and private
freely without any form of discrimination (Atkin, 2012)

The constitution of Kenya 2010 provides several legal provisions for the marginalized and
minority groups. The following are legal provisions:

In the Implementation of rights and fundamental freedoms section under 10 (3) all State organs
and all public officers have the duty to address the needs of vulnerable groups within society,
including women, older members of society, persons with disabilities, children, youth, members
of minority or marginalized communities, and members of ethnic, religious or cultural
communities.

In Equality and freedom from discrimination section under (3) Women and men have the right to
equal treatment, including the right to equal opportunities in political, economic, cultural and
social spheres. (6) To give full effect to the realization of the rights guaranteed under this Article,
the State shall take legislative and other measures, including affirmative action programmes and
policies designed to redress any disadvantage suffered by individuals or groups because of past
discrimination.

The constitution provides for legislations in Minorities and marginalized groups section 56. The
State shall put in place affirmative action programmes designed to ensure that minorities and
marginalized groups (a) participate and are represented in governance and other spheres of
life; (b) are provided special opportunities in educational and economic fields; (c) are provided
special opportunities for access to employment; (d) develop their cultural values, languages and
practices; and (e) have reasonable access to water, health services and infrastructure.

In part 3 of political parties section, as part of legal requirements (e) respect the right of all
persons to participate in the political process, including minorities and marginalized groups, 91.
(1) Every political party shall(e) respect the right of all persons to participate in the political
process, including minorities and marginalized groups;

In chapter 11 of constitution on devolved governments, part 1 objects and principles of devolved

government 174 (e) which protect and promote the interests and rights of minorities and
marginalized communities. In the same chapter, under Membership of county assembly, 177 (1c)
the number of members of marginalized groups, including persons with disabilities and the
youth, prescribed by an Act of Parliament.

Article 204 of the constitution establishes Equalization Fund which is intended to provide basic
services including water, roads, health facilities and electricity to marginalized areas to the extent
of the extent necessary to the quality of those services in those areas to the level generally
enjoyed by the rest of the nation, so far as possible

Article 100 of the constitution advocates for promotion of representation of marginalized groups.
The article states that parliament shall enact legislation to promote the representation in
parliament of women; Persons with disabilities; youth; ethnic and other minorities; and
marginalized communities

V. The constitution recognizes dual citizenship. This paves the way for indigenous communities,
like the Somalis, Boranas and the Maasai, that live across boundaries to benefit.
Chapter five of the new constitution classifies land as public, community and private. Under
Article 63, community land shall vest in and be held by communities identified based on
ethnicity, culture or similar community of interest. Community lands include those lawfully held
in the name of group representatives, lands lawfully transferred to a specific community and any
other land declared to be community land by any Act of parliament. It will also include lands
lawfully held, managed or used by specific communities as community forests, grazing areas or
shrines and ancestral lands and lands traditionally occupied by hunter gatherer communities

Article 11 recognizes culture as the foundation of the nation and obliges the state to promote all
forms of cultural expression through literature, the arts, traditional celebrations, science,
communication, information, mass media, publications, libraries and other cultural heritage. The
state is also obliged to recognize the role of indigenous technologies in the development of the
nation.

Article 177(c) talks of the representation of members of marginalised groups, including persons
with disabilities and youth in the county assembly.

Q2. Discuss the strategies that should be applied in implementing these provisions.

In chapter two, under the national official and other languages 7(b), it promotes the development
and use of indigenous languages, Kenyan Sign language, Braille and other communication
formats and technologies accessible to persons with disabilities. Under national values and
principles of governance 10 (2b) it provides for human dignity, equity, social justice,
inclusiveness, equality, human rights, non-discrimination and protection of the marginalized.

Outreach and sensitization

Increased the knowledge base among the minority and marginalized communities and groups
through public education and information sharing on their rights and obligations. By holding
sensitization and awareness trainings targeting marginalized groups, they gain empowerment to
exercise their rights. Exercise of the right include participating in government processes such as
budget planning, vying for political posts and championing for inclusion of the minority in top
decision making organs. (Makoloo, 2005)

Establish regional and community-based networks to build trust and ensure accessibility. This
could be done by creating centers where cases can be registered and responded to promptly by
the legal system. Design outreach strategies, programs and messages that are tailored to specific
communities and that take account of their self-identification as a minority or indigenous group.

The County Government together with other actors should explore how to engage the Kenya
Human Rights and Equality Commission National Equal Opportunities to come up with Policy
to guide the whole on issues of protecting marginalized groups. They should also have officers
who will monitor protection of marginalized groups at the County level. A department within the
commission should be created that is focused on marginalized groups and communities.

Start-up and Hiring

Immediately reach out to civil society groups that work with minority and indigenous
communities to develop regularized communication.

Allocate dedicated funding to minority and indigenous engagement.

Undertake measures to ensure that members of minority and indigenous communities are
represented among commission staff.

Key lessons can be drawn from the experience of integrating gender into truth commissions.
Ensuring that diverse communities are welcomed and encouraged to apply for staff positions
within the commission is critical. Moreover, hiring staff from minority and indigenous
communities into positions of leadership demonstrates an important commitment to diversity.
However, it is clear that ensuring representation is only the first step. (CEMIRIDE, 2010)
Staffing

Trainings should cover, at a minimum, the international legal framework of minority and
indigenous rights, reasons why minority and indigenous communities may be more vulnerable to
human rights violations, ways in which to gather information about human rights violations
committed against minority and indigenous communities, concerns of minority and indigenous
communities in various regions, and the overlap of minority and indigenous rights with other
concerns such as gender.

Access to justice

Access to justice is another area which the groups have encountered challenges in the past. One
way of enhancing access to justice for previously marginalized groups is to expand and
institutionalize legal aid and public interest litigation. The Constitution provides a basis for
practically anyone to approach the courts for a remedy on behalf of him/herself or on behalf of
others. It was noted that in marginalized regions, formal justice is largely absent and traditional
justice is often the only form of justice. Even with enhanced access to formal justice, traditional
justice systems will continue to play an important role in various communities. For this reason,
relevant actors in particular CSOs should begin to reflect on how a traditional justice system
that is constitutionally complaint should look like. Measures can then be taken to operationalize
Article 159.

Retention of indigenous groups identities

In terms of legislative proposals, there is need for a law on minorities and marginalized groups
enacted to: define minorities and marginalized communities which is still not clear from the 2010
Constitution. The proposal would consolidate the benefits accorded to these groups and provide
legal and institutional mechanisms for realizing the benefits outlined in Art.56 and 204 of the
Constitution.
In line with the legislative proposals, county government that host many clusters of minority and
marginalized groups a facilitator of rights to ensure that: indigenous peoples are allowed to
maintain their distinct identities, to maintain their languages, and to maintain the integrity of
their relationship with their traditional lands.

Minority groups empowerment at County level

County governments should explore the opportunities for the County to invest in culture and
cultural activities with special consideration for the minorities. Consistent with the constitution,
the County government is empowered to allocate the resources to manage minority issues under
Schedule IV of the Constitution. Therefore, there is need to increase the resources allocated to
manage minority issues with regards to their participation in governance and leadership.
Counties throught he county public service board should ensure minority representation
especially at the ward level. (Mukabi Fredrick Khaunya, 2015)

Attitude and belief systems

County government develop a framework for public education and awareness raising are key
aspects in realising the benefits promised to previously marginalised groups. Illiteracy amongst
both men and women, amongst the minority and marginalized groups is alarming thus exclusion
from the county appointments is real. Even in areas of high literacy, there is profound ignorance
about how Constitutional rights can be upheld.
Furthermore, the beliefs and perceptions among men about womens inferior rights to property
will not disappear immediately. These beliefs and perceptions even stretch into the legal
community and the judiciary. Active enforcement of the Constitution- perhaps through public
interest litigation and other measures- is required to entrench the principle of equality between
men and women not just in the law, but in society.

Minority challenges of land

As the constitution of Kenya and the Land policy tries to balance a nascent relationship between
transitional justice and land evolution, it is argued that current transitional justice approaches to
land is aged. Socio-economic issues such as land disputes that trigger conflicts are often confined
to the background. Consequently, this peripheral engagement with land issues means that even if
they are looked into by truth commissions, systematic patterns of land injustices, often stemming
from colonialism, are excluded from final recommendations. This is an issue that the county
government would contend with. The National Land Policy constitutes an adequate framework
for the realization of the provisions of the new Constitution dealing with land.

The community land act 2016 recognizes community land where minority ethnic groups have the
chance to register land areas they occupy through the legal system. This will reduce the previous
challenges faced by the monirity over land problems that generated from colonial times. Once
established and operationalized the law will give minority groups opportunities to incur minimal
costs in registering community land and ensuring communities live collectively as a nation.

Governance and leadership representation

IEBC and political parties should be able to reduce charges for candidates from minority
communities especially women to ensure increased participation in the electoral process. The
national parliament has 12 seats reserved for the marginalized and minority groups. It can only
be achieved by full participation of the minority through the political process given an
exemption. The electoral body could also have guiding policies that ensures political parties have
a representation from minority groups as a compliance policy. (Cottrel, 2013)
References
Atkin, C. (2012). Education as a Humanitarian Response: Education and Minorities. New York:
Continuum International Publishing Group.
CEMIRIDE. (2010). Engaging Minorities and Indigenous Communities in the Kenya TJRC.
Nairobi.
Cottrel, J. e. (2013). Taking diversity seriously: Minorities and political participation in Kenya.
London: Minority Rights Group International.
Makoloo, M. O. (2005). Kenya: Minorities, Indigenous Peoples and Ethnic Diversity. Nairobi:
Kavita Graphics.
Mukabi Fredrick Khaunya, B. P. (2015). Devolved Governance in Kenya: Is it fale start in
Democratic Decentralization for Development. International journal of Economics,
Finance and Management Vol 4 No. 1, 36.
OHCR. (2010). Minority Rights: International Standards and Guidance on Implementation
(HR/PUB/10/3). Retrieved from United Nations Human Rights Office of the High
Commissioner: http://www.ohchr.org/Documents/Publications/MinorityRights_en.pdf