Ministry of public service, youth and gender affairs kenya youth employment and opportunities project vulnerable and marginalized groups framework

Rationale for a VMGF

Projects affecting the vulnerable and marginalized, whether adversely or positively, need to prepare in advance a framework to guide project impemenation.The framework need to be prepared with care and with participation of affected communities. The requirements include social analysis to improve the understanding of the local context and affected communities; a process of free, prior, and informed consultation with the affected vulnerable and marginalized communities in order to fully identify their views and to obtain their broad community support to the project; and development of project-specific measures to avoid adverse impacts and enhance culturally appropriate benefits.

The need for VMGF’s will depend on (a) the presence of VMGs and (b) the nature and scale of the subproject impact groups that meet the OP 4.10 criteria. The VMGF s will capture the nature and scale of the subproject impact and vulnerability of VMGs, including (i) adverse impacts on customary rights of use and access to land and natural resources; (ii) negative effects on the socioeconomic and cultural integrity; (iii) effects on health, education, livelihood, access to the project benefits, and social security status; and (iv) other impacts that may alter or undermine indigenous knowledge and customary institutions. It will also identify ways in which to bring benefits of the project to VMG communities if technically feasible. The social assessment will identify requirements for preparing a VMGF and/or incorporation of VMGF elements in other project design documents.
The VMGFs will set out the measures whereby the executing agency will consult with VMGs and ensure that (i) affected VMGs receives culturally appropriate social and economic benefits; and (ii) when potential adverse impacts on VMGs are identified, these will be avoided to the maximum extent possible. Where this avoidance is proven to be impossible, VMGF will outline measures to minimize, mitigate, and compensate for the adverse impacts.
The VMGF sets out:

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  The types of investments likely to be proposed for financing under the project.
  
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  The potential positive and adverse effects of such investments on VMGs.
  
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  A plan for carrying out the social assessment for such investments.
  
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  A framework for ensuring free, prior, and informed consultation with the affected VMGs at each stage of project preparation and implementation.
  
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  Institutional arrangements (including capacity building where necessary) for screening project-supported investments, evaluating their effects on VMGs, preparing VMGFs, and addressing any grievances.
  
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  Monitoring and reporting arrangements, including mechanisms and benchmarks appropriate to the project.
  
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  Disclosure arrangements for VMGF s to be prepared under the VMGF.
  

3. LEGAL RECOGNITION OF THE VULNERABLE AND MARGINALIZED COMMUNITIES/GROUPS

There is no specific legislation governing vulnerable and marginalized peoples in Kenya. However, the Constitution of Kenya (CoK) 2010 recognizes the rights of VMGs and requires that they be accorded special focus, attention and support. The CoK goes further and defines who are VMGs in Kenya and describes the VMGs in Kenya.

1. 2010 Constitution of Kenya

The new constitution of Kenya 2010 specifically includes minorities and marginalized communities as a result of various historical processes, with specific reference to indigenous peoples. The definition of marginalized groups, being broad, encompasses most of the groups that identify as indigenous peoples. Kenya however, abstained from the vote when the UN Declaration on the Rights of Indigenous Peoples (UNDRIP) was adopted by the UN General Assembly in 2007.

The definition of marginalized groups encompasses most of the groups that identify as indigenous peoples. Kenya defines marginalized and indigenous people “as group of people, who as a result of laws and practices, were or are disadvantaged by unfair discrimination on one or more prohibited ground or a community which by reason of its relatively small population or otherwise, has been unable to fully develop its internal structures or resources sufficient to participate in the integrated social and economic life of Kenya as whole or a traditional community which, out of the need or the desire to preserve its unique culture and identity from assimilation has remained outside the integrated social and economic life of Kenya as whole or an indigenous community that has retained lifestyle and livelihood based on a hunter or gatherer economy or pastoral persons or communities, whether they are nomadic or a settled community which because of its relative⁷”. The recognition of minorities and marginalized people would contribute to the preservation of their identities and enable them to obtain quality with other groups in that state, including in relation to participation in political life as well as development matter.

2. Other legal recognition instruments

The following are some of the key human rights treaties to which Kenya is party.

Instrument	Date of deposit of ratification/accession
International Covenant on Civil and Political Rights (ICCPR)	1 May 1972
International Covenant on Economic, Social and Cultural Rights (ICESCR)	1 May 1972
Optional Protocol to ICCPR	-
International Convention on the Elimination of All Forms of Racial Discrimination (CERD)	13 September 2001
Art 14 of CERD	-
Convention on the Elimination of All Forms	9 March 1984

of Discrimination against Women (CEDAW)
Optional Protocol to CEDAW	-
Convention on the Rights of the Child (CRC)	30 July 1990
Optional Protocol to CRC- Armed Conflict	28 January 2002
Protocol to CRC - Sexual Exploitation
Convention on the Prevention and Punishment of the Crime of Genocide	-
Slavery Convention 1927	-
Supplementary Slavery Convention 1956
Convention Against Torture and other Cruel, Inhuman or Degrading Treatment or punishment(CAT)	21 February 1997
Art 22 of CAT	-
International Convention on the Protection of the Rights of all Migrant Workers and Members of their Families (CMW)	-
Art 77 of CMW
Convention on Biological Diversity	26 July 1994

Relevant ILO Conventions

Convention	Date of ratification
ILO 29 (Forced Labour)	13 January 1964
ILO 105 (Abolition of Forced Labour)	13 January 1964
ILO 100 (Equal remuneration)	07 May 2001
ILO 111 (Discrimination in Employment and Occupation)	07 May 2001

ILO 107 (Indigenous and Tribal Populations)	-
ILO 169 (Indigenous Peoples)	-
ILO 138 (Minimum Age)	09 April 1979
ILO 182 (Worst Forms of Child Labour)	07 May 2001

AU instruments

African Charter on Human and Peoples' Rights	23 January 1992
Convention Governing the Specific Aspects of Refugee Problems in Africa	23 June 1992
Protocol to the African Charter on Human and Peoples' Rights on the Rights of Women in Africa	-
Protocol to the African Charter on Human and Peoples' Rights on the Establishment of an African Court on Human and Peoples' Rights	4 February 2004
African Charter on the Rights and Welfare of the Child	25 July 2000
Cultural Charter for Africa	2 8October 1981
Convention on Nature and Natural Resources, 1968	12 May 1969
Revised Version of Convention on Nature and Natural Resources, 2003	-

Details of VMGs legal recognition instruments in Kenya are contained in Annex 1.