There are various bits of the Constitution that have received little attention.

One is Article 7 clause (3). It says, “The State shall–– promote and protect the diversity of language of the people of Kenya; and promote the development and use of indigenous languages.”

It obviously has a relationship to Article 44, “(1) Every person has the right to use the language, and to participate in the cultural life, of the person’s choice.

“(2) A person belonging to a cultural or linguistic community has the right, with other members of that community— (a) to enjoy the person’s culture and use the person’s language…”.

These articles do reflect what many people told the Constitution of Kenya Review Commission. And there was a good deal of discussion of the subject in the CKRC’s own deliberations on a draft and at the Bomas NCC.

The draft constitutions adopted, however, did not include the detail originally proposed, nor the suggestion that at the devolved level (now counties), there could be a decision on a local language to be used officially. But the wording the CKRC adopted remained quite similar throughout the constitution-making process.

WHAT IS A LANGUAGE AND WHY IS IT IMPORTANT?

A language is an amazing achievement of a community of human beings. Language is like DNA – it reflects the community’s history, its environment, its beliefs and perceptions of the purpose of life, what it has suffered and what it has learned. You may have heard it said that the Tswana have very many words for beautiful cows, while Eskimos have many for different types of snow.

A language is an integral part of a community’s culture, and is shaped by that culture and also shapes it. But if a language dies, much knowledge may be lost, including about the environment, medicinal herbs and techniques. Stories, songs and poems in that language will be lost, too, and the human inheritance of beauty and wisdom diminished.

It is easy to assume that somehow there is in the world a set of objects, actions, states of mind and beliefs, and that it does not matter whether you use English, Chinese, Inuit or Dholuo there will be a word that just fits each of these things. But anyone who has been present at a session when translators try to agree on specific translation will realise this is not true. Language is much more than a mechanical tool for communicating.

Why did the constitution-making process focus on this?

One element was undoubtedly a sort of anti-colonialism. English was imposed on Kenya, and the linguistic achievements of Kenyan communities devalued.

An obvious factor is “inclusion” or inclusiveness, a national value. People who are deprived of the chance to participate in national life in the language they best understand are excluded.

How can public participation take place, if people do not even understand its language?

In fact such language communities are likely to be multiply excluded – in terms of services, education, politics and other ways. If their language is valued communities will feel more confidence that they are valued, too.

A practical matter is that children have the best beginning to their education, if this takes place in their mother tongue – meaning the language they first learn and are most at ease in. Unfortunately, many parents do not understand this and would prefer children have their education in English.

Some people might say English and Kiswahili are supplanting other languages and that the need to protect and promote those other languages has passed.

Apart from the value of languages already mentioned, there is some evidence to the contrary. Just this week The Standard reported that the Terik community (a Kalenjin group) were struggling to get support for a translation of the Bible into their language. And the Kuria, the Mbeere and the Kavirondo either already have or are pushing for translation in their languages.

Desirable as it is for believers to be able to read the Bible in their own language, true participation in society requires that much more is available to the people, not forgetting the Constitution itself.

WHAT DOES CONSTITUTION REQUIRE?

Article 44 is about freedom of choice. Just as with other rights, the right to enjoy this particular language may be limited. However, this limitation must be by law, and must be for a good reason, and must not be more limiting of the right than necessary to achieve that good reason.

But Article 44 clearly gives a national endorsement to the use of all Kenyan languages. Article 7 goes further. It is not about choice in the same way as Article 44. It places duties on the government (“shall” means “must” here).

Article 7(3) actually links to Article 44 because protecting right (including to use a language) is not just an individual matter. The state must protect and promote those rights.

“Protecting the diversity of Kenyan languages” means the state must consider what threats there are to that diversity. This is not easy. The same Article recognises Kiswahili as the national language and English and Kiswahili as official languages. Their very existence is some threat to other languages.

Article 7 also says the state must “promote” the diversity of language, and promote their development and use. “Promote” is not intended to support compulsory measures. It tends to mean encourage, educate, popularise, give status to, and perhaps give incentives about.

And the state must “promote the development” of languages. Languages develop as they tackle new issues or respond to new influences. Structured development of a language is not easy, and for the state agencies to do this is particularly controversial. This is not the place to debate this.

WHAT HAS KENYA DONE?

Promotion of local languages is a matter for the national government under the Constitution. Some counties have also made effort, or at least made commitments, to do this. Various efforts do seem to have been made at the national level. There were a draft language policy and a draft Languages Bill around 2014-15.

Yet in 2022, the National Policy on Culture and Heritage was newly adopted. It recognises Articles 7 and 44. It makes no mention of those earlier documents, and itself says little of what ought to be done.

A policy is to be developed. (Why does government keep trying to reinvent the wheel, ignoring past efforts?) “Governments shall harmonise education, language and cultural policies and ensure consistency and synergy while encouraging research and teaching of indigenous languages at all levels.” And there is more at this level of generality.

The period 2022-32 has been declared the International Decade of Indigenous Languages, a move welcomed by the African Commission on Human and People’s Rights.

This is an opportunity for Kenya to share in an international endeavour, learning from others and contributing its own ideas. The Global Action Plan for the Decade has interesting ideas and suggestions, but these are also just a beginning. Kenya, like other countries, should have its national action plan.

KENYAN REALITIES

The run-up to an election may not be the best time to consider this, because, not without reason, people are concerned about ethnic divisions, and the risk of violence. But communities are also concerned to be included in politics and in governance.

The issues are complex. Kenya, like other African countries, is not like those (often wealthy) countries where one or two languages are dominant and indigenous languages are spoken only by small, often oppressed, minorities. Kenya’s major languages are also threatened by English (and by Kiswahili, too).

Having common languages is also important. We have seen the value of this in Tanzania, and no-one would suggest that we de-emphasise our national language. But our Constitution, unlike that of Tanzania, or indeed of its draft new constitution some years ago, gives special recognition to Kenyan languages generally – which reflects popular concerns.

The challenge is to support and nurture languages and respect for them, enabling language and culture – as the Constitution envisages – to strengthen, not undermine, senses of nationhood.

By JILL COTTRELL GHAI

This Article was first published by the Star Newspaper (https://www.the-star.co.ke/siasa/2022-07-17-ghai-enabling-language-and-culture-to-strengthen-not-undermine-nationhood/) on 17 July 2022.

IMAGE: CHARLENE MALWA