Negative ethnicity is still alive in North-Eastern Kenya: it is perpetuated by criminal yet tolerated practices that turn individual grievances into clan conflict, guaranteeing constant tension in the region.

One common practice that has entrenched tribalism is the famous Maslaha system that provides common insurance to the clan while completely ignoring the individual's plight. 'Maslaha' is beautiful when pronounced; the word means peaceful arbitration without acrimony or hostility. The intent is to address every kind of grievance; the question is whether it protects the rights of the poor. Its essential feature is physical or material compensation for the wronged individual, while yet, most of the time, forgetting the victim and elevating the tribe to the centre of the dispute. If Maslaha is intended to bring justice, why, then, should it lead to tribal negotiations? Why not create a system accessible to all, even those unbacked by a tribe? Does Maslaha provide justice to the victims of rape and punish the rapist? Or does it, rather, set the rapist free to rape again while compensating the victim's tribe and not the victim herself?

How does Maslaha system deal with murder? By failing to clearly distinguish accidental killings from intended ones. But why should accidental death be treated the same as murder? While accidental death has a victim and no intentional perpetrator, murder is a grim crime which should attract punishment for the murderer. But Maslaha frees murderers for blood money paid by the larger tribe; the murderer remains triumphant while the victim's family is left vanquished as their tribe accepts compensation on their behalf. This is an abuse of justice; a maslaha system based on tribal norms and customs is unjust, and is an instance of negative ethnicity.

Another tool of negative ethnicity in North-Eastern province is colonial borders, or what are called seer. These have been the cause of many conflicts in North-Eastern province: they're tools for maintaining a distinct clan existence; clan control of grazing land and water; cattle rustling which feeds an upper market hungry for meat; regular inter-clan fights; and open discrimination against smaller and less numerous clans. The British colonialists created borders between major Somali clans so that they would not rebel collectively. Pre-colonial Somalis lived without borders and mixed with one another. The misconception that clearly demarcated grazing lands existed, and that Somali clans were separate nations before the white man came, is a creation of politicians whose interest is applying ethnicity to achieve individual goals. Negative ethnicity is applied here to create exclusive constituencies to insure that they are re-elected without opposition from smaller clans: the politics of the region have narrowed down to clan and sub-clan level; a few individuals now subvert the interests of their clans to achieve their own selfish objectives.

Indeed, the maintenance of colonial borders is the single most important tool of negative ethnicity, since it was used to perpetrate genocide. The location-specific clan system eased the demarcation of the killing zone in 1984 when the Degodia clan was almost wiped out by the Kenyan security forces. It had been used before in Garissa, and would be again at Malka Marri, Isiolo, Bagalla and many other places in the former NFD. The victims were easy prey because of their exclusion from other clans, and the enemy mentality and subsequent competition which meant that clans stood aside while their neighbours were butchered. Today, negative ethnicity is intensified by the creation of exclusive districts and constituencies, and resulting acrimony about the district headquarters and borders. A new country, it seems, is being created, a country that will belong to a specific clan.

The constituencies of North-Eastern Kenya now boast clan-based electoral colleges whose purpose is to ensure that stronger clans get their sons elected while smaller clans and corner tribes go unheard. Since the larger clans have sub-clans of varying strength, the smaller sub-clans are also treated as minorities while the larger sub-clans dominate leadership. The electoral colleges stifle competition and entrench mediocrity, as the most incompetent and uneducated fellows are elected to parliament on the backs of their clans. These colleges explain why well-known and high-performing MPs never make it back to parliament; and, too, why politics is so divisive, and why it is a matter death not development.

The old and the uneducated perpetuate negative ethnicity. They make the clan an economic and political issue rather than a social and cultural one. The old men and tribal elders are instilling in every clan member the mortal distrust and hatred of other clans. Their sense of justice is crooked: justice is justice only if it furthers the interest of the clan. Cheating, corruption, murder and rape, all are worth it so long as they're helpful to the cause. They threaten minorities with death if they won't follow the majority line and they actually follow up on their threats. The implications for human rights are grave: the right to life is violated in the name of protecting the clan; innocent people are killed in revenge when conflicts occur; all kinds of criminality -- rape, looting and murder -- are perpetuated in the name of the clan. Clans protect their murderers and, when they feel charitable, brave murderers are pardoned by payment of blood money to the victim's clans; in almost every case murderers remain unpunished -- life is equated to a few head of cattle even when the murder was gruesome and intentional and the murderer unrepentant. The clan system dictates the ownership of property: there have been cases where the local government forced individuals to sell their land to others because the land was considered prime, and the local council was dominated by one clan; in district headquarters, specific clans dominate business where they allocate themselves prime spots and evict non-tribesmen from legally-owned land; businessmen from smaller clans can only be tenants and are not even allowed to show their success off. The right to marry and found a family is dictated by schism against other tribes; intermarriage is frowned upon even as it is practiced widely. In fact, there are some clans who will not marry others, as they feel superior to them. There is a lack of security for self and family in many places in the region because of being different from the dominant clan. In some towns, thugs attack those termed foreigners and nobody will come to their aid. Even the government will not dare upset a dominant clan. In a region where you may be killed, robbed in daylight with the approval of the local government, and raped because of clan vendetta, there can be little hope that human rights will be respected.

How will this menace be addressed?

First should come a review the Maslaha system to incorporate elements of just and fair punishment. The system is perpetrator-friendly and very hostile to victims; it should be divorced from the clan and become merely a system of arbitration where justice and mutual reconciliation, not blood money, are the targets. Independent judges whose oath is to be fair and impartial should arbitrate and administer justice as agreed by the parties to the conflict; clan precedents and prior judgments should no longer inform the system. It should be case-specific and there should be alternative solutions to ensure that deliberate offenders cannot escape the law and their due punishment. The government should develop an active detribalization policy where integration and nationalism are rewarded, and tribalism and nepotism punished; it might begin by cosmopolitanizing the rural areas and halting its clannization policy. It should certainly create districts in existing cosmopolitan towns and make it policy to prevent particular tribes dominating whole districts; the same should apply to constituencies, which should not be allowed to become clan fiefdoms.

Active identity-management for the youth ought to make them non-tribal in their outlook on life. The question "who are we?" should not be answered with a clan, but rather with a nation, in mind. Identity can be managed through integration: Ghana has been relatively successful in identity-management for its people through extensive boarding school system; Uganda is managing to create a generation of non-tribal Ugandans through the boarding school system, and through the dominance of Luganda as the national language despite the fact that the language itself originated from just one tribe, the Baganda. The method of managing identity can be discussed, but the intention is to create a group of people who will not use ethnicity to help or hurt others. Ethnicity must not be allowed to run riot and take over the mind of the individual.

Tribes have become a state within a state in North-Eastern Kenya. They have become so powerful that they now trap people inside them: they control land, offer themselves jobs in the civil service, distribute resources like CDF and bursaries, and they now control districts and constituencies. They have actually abrogated the constitution of the country and replaced it with tribal edicts rewarding the powerful and trampling on the rights of the vulnerable. A strong legal system that is independent, able to administer justice, and which has the trust of the people, is the perfect antidote to tribalism. People use tribe as a cover of protection against their enemies. Where there is protection offered to all citizens, there is little need for tribal cocooning. A strong legal system at the grassroots means that the poor and the vulnerable will be emboldened and cannot be threatened to put themselves at the mercy of the tribes.

Finally, there is a Somali saying: tribalism and nationhood are arch-enemies; they cannot fit into the same room. The interest of a tribe is contrary to that of a nation: the tribe will dominate others and take away their land, wealth and women and kill their men; the nation will tax everyone in equal measure and build roads among the tribes to enable them to mix with one another. Where the tribe wants to allocate its sons all bursaries and block the corner tribes from accessing them, and to limit all CDF projects to its own part of the constituency; the state, on the other hand, cares about its entire people and wants the bursaries distributed to bright children from poor families. The state wants to develop every inch of the land and sees no sign of tribal border unless one tribe controls the state; the tribe wants exclusive zones, wants no competition in politics and will kill to protect its turf. The state wants to be the only gun around and will enforce a law on everyone regardless of tribe; the tribe intends to finish off its opposition, kill them, behead them, gag them, forcefully take away their property and, if forced to share the resources, only allow them just enough to exist. The state thrives on opposition and government. One cannot exist without the other. The government and opposition share the parliament where they call each other names and then they all troop out for tea in the canteen. Negative ethnicity is the enemy of the state and a sure enemy of human rights.

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