Understanding the Work that 'Culture' does: A Comparative Perspective on Cultural Rights Provisions in the Constitution of Kenya 2010

This article analyses cultural rights provisions in the new Constitution of Kenya 2010 (CoK) in comparative perspective, as a background to other articles in this Special Issue that discuss the negotiation process within Kenya from which the constitution emerged in 2010, and the way in which various stakeholders have sought to use the new rights enshrined in the constitution. The CoK borrows widely from other constitutions and international law to tie together three conceptualisations of 'culture', associated with different rights and responsibilities at the national, group and individual level. At the national level, 'culture' represents aspirational values and principles that underlie the Bill of Rights and the new system of devolved, democratic governance. Culture as the basis for group membership is used as a rationale for devolution, but it is also used to recognise and protect the rights of minority groups within counties. Protecting individual cultural creativity and choice as human rights justifies state intervention against 'harmful' cultural practices. These different concepts of culture work to lubricate some of the tension in the CoK between efforts to reduce the politicisation of ethnicity by applying a generic human rights framework, and bolstering the domestic legitimacy of the CoK by acknowledging the important role of culture in ethnic or minority group identity.