Conservation of monuments in Kenya : a case for a living heritage approach in heritage legislation

A Dissertation submitted in partial fulfillment of the requirements for the award of the degree of Bachelor of Laws (LL.B) at Strathmore UniversityThe World Heritage Committee in their Thirty First Session in New Zealand on July 2007, included a "Fifth C" to their World Heritage Convention strategic objectives, which is Community participation. The idea of community participation is the involvement of indigenous, traditional or local people presented as community groups, tribes, nongovernmental organizations, private enterprise or local authorities in the identification, management and conservation of cultural heritage. Community participation is considered necessary Since firstly , heritage protection without community involvement and commitment is an invitation to failure, secondly, coupling community to the conservation of heritage is consistent with international best practice, thirdly, conservation, capacity building, credibility, and communication are all intrinsically linked to the idea of community and fourthly, that heritage protection, should, wherever possible, reconcile the needs of the human communities, as humanity needs to be at the heart of conservation. In Kenya, community participation in respect to conservation of monuments is sidelined or subsumed in the roles of the heritage authorities both in law and practice. Additionally, monuments are viewed as mere property lacking any cultural significance hence there is no community engagement in their conservation. This study seeks to investigate the effects of defining monuments as mere property without any cultural significance. This research further seeks to delineate the role of communities in conservation of monuments and recommends ways that we can understand monuments as part of our cultural heritage, involve communities in conservation of monuments in a bid to ensure that the monuments are protected for and by the people not from the people. This research begins by setting out the definition of monuments as either cultural property or cultural' heritage. It establishes that monuments are better described as cultural heritage since such a definition incorporates the cultural significance and values of monuments. Further, the study seeks to distinguish the various methods of conservation of monuments: a material based approach, a value based approach and a living heritage approach. The study indicates that the approach in the current legislation is a material based approach that focuses on the fabric or form of the monuments. In as much as the values of the monuments are addressed, when community participation is minimal and the heritage authorities take charge of monuments conservation this results to a material based approach. In a bid to ensure that conservation of monuments involves communities, the recommendation is that we need an amendment in the current legal framework to mirror the proviso under National Policy on Culture and Heritage (2009) that the government should involve the community in immovable heritage conservation. The National Heritage and Museums Act Cap216 (2006) does not incorporate community participation in the monuments Conservation despite this principle being a national value under Article 10 (2) (a) of the Constitution of Kenya, (2010). Therefore, this research proposes inclusion of community participation in the heritage legal framewor