The Constitution of Kenya recognises culture as the foundation of the nation and as the cumulative civilization of the Kenyan people and nation. Article 11 of the Constitution specifically requires the government to promote all forms of national and cultural expressions through literature, the arts, traditional celebrations, science, communication, information, mass media, publications, libraries and other cultural heritage. The draft National Policy on Culture is an attempt by the Government of Kenya in consultation with academia, practitioners, civil society organisations and other stakeholders to provide a framework that will guide the implementation of the constitutional provisions on culture as well as inform both existing and future laws touching on culture.

The draft covers a range of broad areas related to culture such as national development, national heritage, languages, cultural industries, the family, human rights, education, media, education and tourism. With regard to the goals, rationales and policy aims of the policy, the opening section of the draft states as follows:

“The National Policy on Culture guides people’s participation in determining their social and economic life based on their culture (…) Through the policy, Kenya responds to both international and national requirements for the protection and appreciation of diversity of cultural expression while at the same time charting a path that promotes her unique identity and culture. (…) The country seeks to realize her dreams and aspirations as captured in its constitution which underscores Kenya’s pride in her ethnic, cultural and religious diversity as well as her determination to live in peace and unity as one indivisible and sovereign nation (…) This policy seeks to protect and preserve the unique identity of the people of Kenya and use it for their well-being and development (…) The policy guides the practice of democratic governance through promotion of inclusion and participation for all citizens as a guarantee for social cohesion and peace (…) The policy emphasizes the appreciation of cultural diversity and recognizes it as an opportunity towards widening the range of options open to every citizen and as a root of development, not simply understood in terms of economic growth, but also as a means for achieving a more satisfactory intellectual, emotional, moral and spiritual existence.”

Perhaps of interest to our readers, the draft considers the interface between culture and intellectual property (IP) as well as culture and information technology (IT). The draft discusses IP in the context of economic development and contains the following 3 policy statements: 1) The government shall create conditions, including enactment of new legislation and strengthening of existing laws, for cultures to flourish and to freely interact in a mutually beneficial manner; 2) The government shall protect intellectual property rights by fortifying its intellectual property policies and legislations at national and county level; and 3) The government shall enact legislation to ensure that communities receive fair compensation or royalties for the commercial use of their cultural heritage. In the context of information and communication technology (ICT), the draft makes the following 2 policy statements: 1) The government shall promote the use of ICT to enhance, preserve and safeguard Kenya’s cultural heritage; and 2) The government shall put in place legislation and mechanisms that support the use of ICT in the production, preservation, marketing, protection and distribution of cultural goods and services.

As thoughtful and deliberate as it may seem for the drafters to include IP and IT into the document, the policy statements appear too vague, generalised and unhelpful for law-makers, policy-makers or the public at large. The draft does give any context to its statements and no evidence or data is presented to support its position. These policy statements along with many others within the draft appear to be merely adapted from the Constitution itself as well as other relevant documents. The statement thus seem to regurgitate the existing position in the country without providing any guidance or philosophical underpinnings that would inform future laws and policies particularly with regard to the protection of traditional knowledge, traditional cultural expressions and/or genetic resources.