Customary law and the protection of traditional cultural expressions in Kenya
Muthemba, Sylvia Wairimu
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Kenya is a culturally diverse country, rich in tradition and culture. Communities, as a product of their creativity have a vast collection of Traditional Cultural Expression or Expressions of Folklore. These expressions have faced threat of exploitation and extinction due to a failure to adequately protect them and secure the community interests. This study aims to assess the existing framework for their protection in order to identify gaps that exist which result in insufficient protection of TCEs. The main objective is to assert the importance and role of customary law in ensuring a more stable system for their preservation, promotion and protection. The study is carried out- systemically through an analysis of already existing literature and therefore identifying points of convergence and those of departure with the aim of the study. Both primary and secondary sources of data were relied upon and analyzed. It finds that the legal framework fails to institutionalize and formally recognize the application of customary law in matters regarding TCE protection. An argument is thereafter fronted that the community's interests are the primary consideration in providing protection to TCEs and this interest would only be adequately advanced through a formal recognition of the application of the customary law of the community concerned as regards their TCEs.