MARGINALISED COMMUNITIES (INDIGENOUS PEOPLES) KEY PROPOSED AMENDMENTS TO THE CLIMATE CHANGE (AMENDMENT) BILL, 2023

MARGINALISED COMMUNITIES (INDIGENOUS PEOPLES) KEY PROPOSED AMENDMENTS TO THE CLIMATE CHANGE (AMENDMENT) BILL, 2023

1. Proposed S 6 (v) amending the Principle Act by deleting “words within the meaning of Section 260 of the Constitution who has knowledge and experience in matters relating to indigenous knowledge” appearing in Paragraph h should be rejected.

Rationale/ justification for amendment recommendation

Article 260 is a Constitutional provision, which read together with Article 56 (State shall put in place affirmative action programmes designed to ensure minorities and marginalised groups participate and are represented in governance and other spheres of life. Deleting this section denies the marginalised communities/ indigenous peoples their right to self-represent as provided for in the Constitution of Kenya 2010. This will make Act, is passed and accented to, unconstitutional.  Indigenous Peoples are natural resource dependent for their livelihood. Climate change present an additional burden to these communities who are already disadvantaged socially, politically, and economically by the fact that they are marginalized. These are a unique constituency not only because of the impact of climate change but also the role they play in ensuring success of intervention measures as well the perspectives and experiences they bring on board through their indigenous and local knowledge. Their unique circumstances should be integrated into the amendment bill as envisaged by the Constitution of Kenya 2010.

2. Impacted Community is not defined in the proposed amendment. There is therefore need for inclusion of the definition of “Impacted Community” in the definition section, to include communities as defined under Article 260 of the Constitution of Kenya 2010.

Rationale/ justification for amendment recommendation

Kenya recognises the existence of Indigenous Peoples through Article 260 of the Constitution of Kenya 2010. The identification of marginalised communities in Article 260 echoes the key characteristic of African indigenous communities which is that the survival of their way of life depends on access and rights to their traditional land and the natural resources thereon. These communities occupy and use of a specific territory; voluntary perpetuate cultural distinctiveness; self-identify as a distinct collectively, as well as recognition by other groups; and an experience of subjugation, marginalisation, dispossession, exclusion, or discrimination.

The recognition and use of the term “indigenous peoples” has steadily gained prominence in Kenya in the recent past. Through the Universal Periodic Review (UPR) and its recommendations, as well as in its 4^th Report on International Covenant on Civil and Political Rights (ICCPR), including its concluding observations, the Kenyan government affirms the existence of indigenous peoples in Kenya and the need to protect and promote their rights.

in its 6^th Sixth periodic report to the Committee on Economic, Social and Cultural Rights report, Kenya affirms that “Constitution recognizes that indigenous people form part of marginalized communities who must be protected through the development of specific affirmative actions designed to ensure that they enjoy their human rights and fundamental freedoms on an equal footing with others

3. Proposed amendment through Section 23 E (5) (b), on the Provision of an annual social contribution of at least twenty-five percent (25%) of the aggregate earnings of the previous year to the community, to be managed and disbursed for the benefit of the community, it is suggested that this section of the Bill references the relevant provisions of the Natural Resource Benefit Sharing Bill for consistency.

 Rationale/ justification for amendment recommendation

Sessional Paper number 3 of 2021 on the e National Action Plan (NAP) on Business and Human Rights (BHR) (2021-2025 recognizes that Land is a prerequisite for the enjoyment of economic, social and cultural rights relating to an adequate standard of living, housing, food and natural resource benefits sharing. It notes further that land often a source of conflict due.to population pressure, rapid urbanization, environmental degradation, land-intense large-scale projects such as mining, oil and gas and commercial agriculture, all of which result in competition for available productive land. The Sessional paper affirms the protections for indigenous peoples that recognize their unique importance, cultural and spiritual values that they attach to their lands, territories and natural resources. These guarantee land rights for indigenous people and provide protections against displacement from their lands. They also provide for consultation and consent to development projects. that provides for the need for protection of the rights of indigenous peoples and their prior consultation and consent to development projects in the implementation of Climate Change actions, in this case the Carbon Credits Programmes, with a very elaborate provision on their benefits sharing mechanism built into the proposed amendment.