Cattle Rustling: The Human Rights and Constitutional Perspective in Kenya’s North Rift Region with Possible Intervention
Access to Justice / Advocacy Statements / ArticlesJanuary 24, 20180 CommentsKituo Cha Sheria
Cattle Rustling v. Cattle Raids
Cattle rustling as opposed to cattle raids in Kenya may be traced to the 90s; with the latter documented as a metamorphosis of the former. These two may be distinguished by the kind of weapons that accompany the activities, the motive and the societal impact. Conducting cattle raids is an activity synonymous to ‘culture’ in most African Pastoralist Communities. They were conducted using sticks and crude weapons and with the aim of getting wealth for those who were poor and disabled in the community. It is also important to note that there was no killing and destruction of property. The agenda was to scare the owners of the cattle as they drove them away. However, today cattle rustlers employ the use of guns, massive destruction and loss of properties, injuries and sometimes death. There is also uncertainty and fear that engulf communities in the North Rift Region hence affecting trade, schooling and the general day to day life. The motive is different too, while in the past it was all about mutuality, today it is a commercial activity which recent media reports attribute to cartels and political leaders in the region.
At a chancery glance cattle rustling appears uncouth and primitive yet with all the laws, education, modern technology and a rapidly developing country, people still die, property is lost and the police and Government agencies maintain a defeatist attitude. This paper reflects on cattle rustling from the lense of property theory, it builds a case against the vice from a constitutional legal and human rights perspective and finally offers a few solutions to the problem.
John Locke’s property theory in the Second Treaties of Government interestingly may explain the situation. He explains that property in the ancient times was communally owned as they were given by God. Individual rights to property were only gained through an individual’s industry. The best way to explain this is the example of fishing. An individual cannot claim all the fish in a lake but by virtue of putting industry and going out to catch fish, they own what is caught. Likewise, cattle raiders assume that cattle are communally owned and given by God and by putting their industry (going out for raids); this gives them property rights. Therein lies the disconnect, we have a people who believe in an ancient concept of property in a world that has moved past that theory and a Government which assumes that these communities understand rights in rem and personam. Studying this subject does not excuse the unruly manner in which this happens however, it is clear that it may not but be a simple case or robbery and violence but a tradition grounded in strong canons of property theory. One way to solve the problem of cattle rustling may be by putting in place policies and making steps towards revolution of the concept of property among these communities. Before we get into that, what are the human rights and constitutional implications of cattle rustling?
The Constitution of Kenya, 2010 is grounded on the principle and value of the rule of law. This principle envisages a situation where there is a standard law that everyone needs to adhere to regardless of status in the society. Applied to cattle rustling in the North Rift Region, the rule of law means respect for one’s property and life. Adherence to the rule of law further means acquiring firearms in accordance with the law. Article 40(1) of the Constitution expressly permits individuals, association or even communities to own property. Article 26 (1) of the Constitution further protects life and finally Article 28 deals with human dignity. It is therefore clear that “cattle rustling” is not just a breach of human rights but it is unconstitutional.
The Penal Code (Cap 63) laws of Kenya also touches on a few things related to cattle rustling that make it an offence. Murder in Section 203 is the first which carries a sentence of death or life imprisonment upon conviction. Section 220 is attempted murder which also attracts a punishment of life imprisonment. Assault causing actual bodily harm in Section 251 always occurs a misdemeanor that carries a sentence of five years upon conviction. Robbery with violence in Section 295 which carries a sentence of death upon conviction may also be another count. Section 322 deals with handling stolen property. This is a felony which attracts a sentence not exceeding fourteen years imprisonment upon conviction. Section 333 deals with arson which attracts a prison sentence of fourteen years upon conviction. The Fire Arms Act is another legislation that makes cattle rustling an offence.
International laws further prescribe certain rights which cattle rustling contravene. First is the United Nation Covenant on Social, Economic and Cultural Rights. Cattle rustling activity unsettles especially the Marakwet and Pokot communities such that they cannot grow socially and economically. Some people in these communities have migrated to other places because of fear of cattle rustling. This vice is also in contravention of the United Nation Convention on the rights of the child. This comes to play as children are always some of the most vulnerable and often victims of these raids. There are also young girls who are forced into early marriages so as to get protection from cattle rustlers. The Convention of elimination of all forms of discrimination against women (CEDAW) further frowns upon cattle rustling because just as children women are also victims of these circumstances and always bear the heaviest brunt. Finally, there is the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (commonly known as the United Nations Convention against Torture (UNCAT)) which also condemns the activities of cattle rustling.
The most disturbing thing in this is that while the law is sufficient, this activity keeps thriving with very little prosecution or success in combating the vice. Several leaders, politicians always talk tough but that seems to be all that goes on.
The possible measures and inteventionary steps include:-
Firstly, there need for advocacy and sensitization against cattle rustling among these communities. For a long time these pastoral communities in Kenya have been marginalized. They were either rubbished or left to their own devices hence they still hold on to this ancient and outdated concept of property. This has even led to a misdiagnosis of the actual problem, hence branding it a cultural problem. The Sapana cultural rights among the Pokot may encourage young men to get cattle but if they understood the modern conceptualization of property ownership in modern day Kenya and the criminal consequences, this may not be a problem.
Advocacy helps in teaching the law, opening up the community, disarmament efforts and changing the mindset of these people.
Secondly, the National and County Governments as well as traditional community leaders need to work on modernization of pastoralism as an economic activity. Employing modern methods in taking care of their animals such as ranching may require that they work with a specific number of animals, may improve the yields, and help them get better market prices hence help in eradicating illiteracy and levels among the communities. This also opens up the areas in terms of roads, access and infrastructure.
Thirdly, the Government needs to stop talking tough and properly enforce the law. The biggest catalyst of cattle rustling is the availability of illegal guns and light weapons. If these guns can be taken out of the equation it will take the sting off.
Police administration need to take this seriously and clean these communities and if they can’t why not get the military involved. Criminal law may kick in, with arrests being made and guilty persons convicted. When this is done cattle rustling may be finally recognized as an offence it is rather than a cultural activity.
Finally, cattle rustling has nowadays taken a commercial dimension with political patronage. The challenge here is that some politicians provide the weapons and the market for the stolen cattle. As much as it may be uncomfortable, the best way is to cut off the head. These politicians should be arrested so that peace may prevail.
In conclusion, cattle rustling is a problem that touches on a number of areas within the fabric of society. Whenever these raids take place it is a question of tribes and ethnic groups living together, it is a matter of security, human rights as well as social cultural and economic issue that the Kenyan government should take seriously.
Ouma Kizito Ajuong’
Poet, Lawyer, Advocate of the High Court of Kenya, LLB (Hon.) Kenyatta University, PGD KSL, Legal Practice
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