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ST.

PAUL’S UNIVERSITY

BACSDIST291619

DEPARTMENT OF COMMUNICATION

MASS MEDIA LAW

COM 416

CAT 1
Identify any three cultural practices from within your ethnic group that became laws over the

years

Before embarking on the task of tackling cultural practices in my ethic group, it is important first and

foremost to understand the meaning of these words- culture and ethnicity.

In 2008, the UN declared culture one of six cross-cutting themes of the UN agenda, on the

60th anniversary of the Universal Declaration of Human Rights (1948). The choice of culture was explained

as:

The concept of Human Rights is bound closely to the belief that culture is precious and central to our

identity. The way we are born, live and die is affected by the culture to which we belong, so to take away our

cultural heritage is to deny us our identity. At the same time, we can all benefit from the experience of other

cultures and we have something to offer them in return.

Shaheed 2010; Belder & 2017, stipulate that cultural rights are rooted deeper within foundation of

human rights, but are often regarded as inferior and underdeveloped in comparison to other rights. (Shaheed

2010) points that cultural rights are in many respects ‘pivotal to the recognition and respect of human

dignity, as they protect the development and expression of various world visions – individual and collective –

and encompass important freedoms relating to matters of identity’ (2010: 3–4).

However, the lesser standing of cultural rights has changed in recent years, partly as a result of

lobbying by indigenous and minority rights groups which have successfully promoted the idea that culture is

indivisible from their humanity, dignity and self-realization and lies at the very core of life itself (Gilbert &

Sena).

As Amy Gutmann notes; questions concerning whether and how cultural groups should be recognized

in politics are among the most prominent and troubling on the political agenda of many democratic and

democratizing societies today. (1994: 5)


Across Africa, the push for or the renewed interest in culture and cultural rights may be read as part

of an ongoing process of shedding and secession of the colonial yoke through the expressed desire for a

return to ‘Africanism, and the reiteration or recovery of African beliefs, values, practices and histories.

The promulgation of a new constitution, marked an important new beginning in the life of the nation,

and offered Kenyans the chance to review individual and collective values, identities, their sense of

belonging, legislative frameworks and institutions, and to get directly involved in implementation hence

helping to make the constitution work. Kenya’s new constitution identifies culture as the ‘foundation of the

nation and as the cumulative civilization of the Kenyan people and nation’ (CoK (Article 11(1)).

Understanding the word ethnic or ethnicity, one realizes the controversies and magnitude that the

word carries. As Jean Comaroff and John Comaroff have written on ethnicity; ‘there is a lot about it these

days.’ They point out that the word ‘culture’ is substituted with ‘ethnic’ in phrases with no eventual

consequences or loss of meaning. For example, words like, ‘cultural awareness, cultural assertion, cultural

sentiment,’ etc. This even though was supposed to wither away with the rise of modernity and social

inclusion (Comaroff & Comaroff 2009).

The use of the word culture arguably makes certain subjects or issues that might otherwise spark

protest or outrage, respectable; for example, the politicization of misogyny; discrimination against women

and gender violence, male and female genital mutilation or cutting among others.

Kenya was meant to have moved beyond ethno-talk, because tribal hate speech has been banned by

two Acts of parliament. It can be realized therefore that the word ‘culture’ has come to stand in for ethnicity

and tribalism in contexts where it is no longer politically correct or safe to speak openly about ‘tribe’,

especially with the knowledge of the past Kenya’s dark history of tribal violence such as that which engulfed

Kenya in 2007/08.
Evidently culture is mentioned and stipulated in the law. The Kenyan Constitution recognizes culture

as the foundation of the nation and as the cumulative civilization of the Kenyan people and nation. The State

shall--

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. (The Constitution of Kenya 2010 (CoK) chapter 2)

Concluding the definition of culture and ethnicity, I can sadly point out a fact that Kenyans tend to

identify primarily with their tribe or ethnic group, and only secondarily with the nation.

My ethnic group is the Agikuyu. Agikuyu were better represented in the independence movement

than other ethnic groups, and continue to dominate the government. The Agikuyu are commonly known as

the ‘Kikuyu’ and are the largest tribe in the highlands, and tend to dominate the nation's politics. Over the

centuries, they consolidated their power by trading portions of their harvests to the hunter-gatherers for land,

as well as through inter-marriage. This gradual rise to domination was peaceful and involved a mingling of

different ethnic groups.

Some of the cultural practices by the Agikuyu that have come to law over the years are numerous. The

following are a few of the practices.

The Agikuyu ethnic group, especially during election campaigns, voting is still influenced by ethnic

division and clan politics. Politicians from the Kikuyu ethic group seeking permission and blessings from the

Kikuyu community elders. Political parties both in the colonial period and after independence in Kenya were

formed along ethnic lines. This is brought out for example, by the fact that KADU advocated "...a quasi-

federal constitution, majimbo system, for fear of being dominated by the so-called major tribes, the Kikuyu

and the Luo". The Kenya African Nation Union (KANU), which KADU opposed at that time (1961-64), was

also a party dominated by ethnic groups, the Agikuyu, the Luo and the Akamba. Ethnic-based associations

continue to exist even today. The tendency of politicians to go to the rural areas seeking audience with
community elders has become so common that it is not fraud upon by the law. This has even led to formation

of new alliances which do not try to hide the tribalism and ethnic bipartisanship. The formation of ethnic

political movement formed by the alliance of Gikuyu, Embu and Meru peoples. Named GEMA, with its

goals as to promote education, welfare and the spirit of brotherhood among the Gikuyu, Embu and Meru

people. GEMA therefore continues to foster and develop ethnic division. This despite the fact that the general

laws of Kenya call for unity and equality among all in the country. The practice of politicians associating

with their tribe has contributed to more divisions and ethnic clashes. Also it has led to unaccountability

among the leaders since they feel protected by their ethnic groups.

Another cultural practice the Agikuyu engage in that has become law is the activities and steps

involved in the process of customary marriage. The Agikuyu is a polygamous community. The ceremonies

and practices during marriage have come to be identified by the law of the land as important practices that

foster and allow continuation of culture and traditions. The acceptance of the marriage practices and the

diversity of norms has led to the inclusion of customary marriage clause in the constitution of Kenya. The

custom of the Agikuyu community of dowry payment which is a precedence of every marriage – one which

follows the traditional conventional nine processes of marriage- is a practice that has over time became law.

This is most often evident when cases over dowry refunds reach the corridors of justice and the cases

resolved.

Lastly, one controversial practice among the Agikuyu that has stood the test of time and challenges, is

the right to inheritance. Among the community, the custom dictates that the oldest male child in a family gets

the complete rights of inheritance of the father’s property incase of death. The wife to the father gets nothing.

This practice which has led to many challenges including the obvious gender inequality. The customary law

which dictate this practice is well revered and widely accepted. Although in recent years the modern laws

have fought hard to bring equality to both genders, the custom is still prevalent and recognized.
To sum up, I would point out the obvious benefits and challenges that customary laws have. The laws in one

hand play a big part in the cohesion, identity and development of traditional beliefs of communities which in

larger part works to build the uniqueness of a country as a whole. On the other hand we witness how these

laws work to marginalize and create more divide among the ones that might be subjected as minorities in the

communities. The Agikuyu community being one of the largest communities in Kenya has certainly largely

influenced the adoption of some laws. Which in one way or the other, written or otherwise have dictated our

interactions between communities in Kenya. The ethnic factor in entirety needs to be eradicated. The Kenyan

communities should practice traditions and customs without division and meaningless ethnic hate.

References

Gutmann, A. 1994. ‘Introduction’, in A. Gutmann (ed), Multiculturalism: Examining the Politics of


Recognition. Princeton: Princeton University Press. [Crossref], 
Comaroff, J.L. & Comaroff, J. 2009. Ethnicity, Inc. Chicago: University of Chicago Press. [Crossref], 
Belder, L. & Porsdam, H. 2017. Negotiating Cultural Rights. Issues at Stake, Challenges and
Recommendations. Cheltenham & Northampton: Edward Elgar Publishing. 
Taylor, C. 1992. Multiculturalism and the Politics of Recognition. Princeton: Princeton University
Press
Taylor, C. 1994. ‘The politics of recognition’, in A. Gutmann (ed), Multiculturalism; Examining the
Politics of Recognition. Princeton: Princeton University Press. 

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