One of my most painful memories in primary school was an annual ritual called Parents Day when all the students would showcase their talents to relatives who bothered to show up.
Besides the fact that many parents didn’t bother attending
Parents Day (burdened as they were with other survival issues and also
because schooling was not as competitive as it is today), the ritual
was made even more painful by the fact that every year, the teacher
assigned to carry the day through would choreograph what was known as
“a traditional African dance”.
Girls would line up in brightly-coloured sisal skirts and do a boring routine that was uninspiring and repetitive – a monotonous one-foot-forward-and-backward step that put both students and parents to sleep. I was reminded of Parents Day when I read Chapter Five of the harmonised draft constitution. Titled “Culture”, this short chapter seems to be cobbled up in haste, almost as an after-thought.
As pointed out by lawyer Sekou Owino, this ill-conceived chapter not only fails to define “culture”, it also tries to legislate a concept that does not belong in a constitution. Implicit in the text is the belief that all things traditional are good, and need to be protected. The chapter states, for instance, that the State shall “promote, where applicable, the use of traditional farming systems and traditional food and drinks”.
What does this mean? That farmers should give up their tractors and revert to the hoe? And should Kenyans be encouraged to drink busaa instead of Tusker Malt? The chapter also states that the State shall support, promote and protect indigenous knowledge and traditional medical practices.
Now, I am all for traditional medical practices such as homeopathy, which are recognised internationally and being protected intellectually by various organs that protect intellectual property. But as Owino has stated, indigenous knowledge is better protected by existing intellectual property legislation, not through a constitution.
If we are serious about ensuring that our indigenous knowledge is not “stolen” by outsiders, then let us seek to amend international agreements dealing with patents and intellectual property rights, such as the contentious Trade-related Aspects of Intellectual Property Rights (TRIPS), which has benefited transnational corporations in highly industrialised countries that hold 90 per cent of all technology and invention patents.
The drafters of this chapter are also vague about what constitutes cultural heritage. For example, the draft states that the State shall “through legislation, ensure that communities receive compensation or royalties for the use of their cultures and cultural heritage”.
I am confused. If I decide to cook irio, a traditional food, in my home, will I have to pay royalties or compensation to the Kikuyu community that invented it? What about if I decide to decorate my house with traditional Lamu furniture? Who must I compensate?
And let us not assume that all traditional practices were safe, ethical or even beneficial to people. Before Christianity arrived in Kenya, some Kenyan communities left their old and dying in forests to be eaten by hyenas. Is that a custom we want to encourage in this day and age? What about female genital mutilation? Is that a part of our culture we want preserved? And how do we define witchcraft? Does the draft categorise this as a traditional medical practice?
Besides, culture is never static; it is dynamic and organic. Five hundred years from now, an archaeologist or a historian may stumble upon a poem written entirely in Sheng, and will declare Sheng an indigenous Kenyan language. In the year 3050, if Nairobi, for some reason, disappears and becomes merely an archaeological site, the mabati covering the whole of Kibera may be preserved in a museum to showcase “traditional building materials”.
In other words, the objects in a slum may come to define traditional Kenyan culture, as would matatus, shopping malls, nyama choma joints and sausage-and-chips shops. One great-great-great-great grandchildren will see our way of life as quaint and archaic, and will preserve the material artefacts that they inherit from us as “antiques”.
Culture rarely belongs to an individual or a community. Often it is an amalgam of various local and global forces. For instance, thousands of years ago, before the Chinese, Arabs, Portuguese and Indians arrived on the east coast of Africa, there was no distinct Swahili culture. But who can claim that Swahili culture is not Kenyan or East African?
Culture is not a permanent entity that can be captured in a constitution. While I am all for the harmonised draft, I would strongly suggest that anomalies like the “Culture” chapter be either drastically amended or scrapped.
This article was first published in the Daily Nation and has been republished with permission from the author.
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