UPDATE 08. June 2021: Ogiek lay case for Mt Elgon Forest reoccupation
PROLOGUE: What the Indigenous Peoples in Eastern Africa and elsewhere do mostly not understand is the fact that their governments have under the disguise of CONservation, forest or wildlife-"protection" actually sold out their land since long - either as collateral for the dealings of their Central Banks and state obligations or in the most vicious arrangements with the United Nations under the 30x30 plans of Agenda 21 and 2030 that wants 30 % of all land of each country be turned into natural areas without any humans. Local courts will most likely get the Indigenous peoples especially in Africa nowhere and just waste their time and resources by endless legal twists and turns, since they are under government instructions. If the land of the Indigenous peoples was never handed over to the previous colonial or the present government under any treaty, then it still has to be considered unceded land and the United Nations would have the duty under the legal framework of decolonization to stand by the Indigenous people to live freely on their ancestral land.
Despite a landmark ruling, Kenya’s Ogiek community are still fighting to return to their ancestral land
By Shadrack Omuka - 10. March 2021
The Ogiek have been the custodians of Kenya’s Mau Forest long before the state of Kenya even existed. However, waves of encroachment and evictions have left the Ogiek marginalised and increasingly landless, while the forest has been degraded by logging and agricultural activities.
(Jason Taylor/International Land Coalition )
It was a historic moment. On 26 May 2017, after an eight-year court battle, the African Court on Human and Peoples’ Rights based in Arusha, Tanzania, ruled that the Kenyan government had violated the rights of the Ogiek people by repeatedly evicting them from their ancestral lands in the Mau Forest. The judgement, which found that the government had broken seven out of 68 articles of the African Charter on Human and Peoples’ Rights, ordered the government to take remedial action.
But almost four years later and the Ogiek are still waiting for the implementation of the judgement. Conservation and environmental laws still deny the Ogiek access to live and hunt in the forest, while thousands of Ogiek and non-Ogiek settlers have been evicted from the forest over the last few years, even during the pandemic.
According to a June 2020 article in the Washington Post, the government has said it will allow the Ogiek to return to the forest when all non-Indigenous settlers have been removed. But the same article quotes senior officials explicitly saying that no-one should live in the forest.
As a result, with every week that passes by without word from the government, the Ogiek are feeling more and more concerned about their prospect of returning to the forest unhindered. “The delay in the implementation of the African court ruling is causing more anxiety to the community,” says Daniel Kobei, executive director of the Ogiek People’s Development Program (OPDP), which was one of the three complainants to the African Court (alongside Minority Rights Group International and Kenya’s Centre for Minority Rights Development).
“The Ogiek need their land to settle in, just like other Kenyans. We are tired of evictions.”
In the most recent case, more than 300 forest-dwelling Ogiek families had their homes demolished or burnt down, and their farms destroyed by forest guards. Research by Human Rights Watch estimates that more than 50,000 forced, sometimes violent, evictions have taken place on Mau Forest land since 2018. Both Ogiek and settler communities, including some with legal title to the land they were evicted from, have been affected, with the evictions resulting in numerous deaths, property destruction and destitution for the tens of thousands of people made homeless and landless.
Forest protection or land grabbing?
The Ogiek people (whose name means ‘caretaker of all plants and wild animals’) are one of Kenya’s last remaining hunter-gather communities. According to the 2019 census the Ogiek number 52,000, of which between 35,000 and 45,000 live in the 400,000-hectare Mau Forest Complex in Kenya’s Rift Valley.
They have been subjected to brutal evictions since the days of British colonial rule, but since 2004, the evictions have continued under the pretext of environmental protection. The Mau Forest is home to Kenya’s largest water drainage basin as well as its largest ‘water tower’ (forested mountains that contain springs and streams that run into major rivers). Officially, the Kenyan government is evicting everyone that lives in the Mau Forest to stop its further degradation and to protect the country’s vital water supplies.
But the Ogiek say that they are the protectors of the forest. They blame the damage being caused to the forest on the irregular allocation of land to outsiders, as well as the loggers and other settlers who cut down the trees to either sell it for timber or burn it for charcoal. “We do not view Mau Forest land as a factor of commercial production but as central to the cultural wellbeing, religious sites, traditions and customs of our community,” said Kobei in the recent Minority Rights Group International report Defending our future: overcoming the challenges of returning the Ogiek home.
Other parts of the forest have been converted into agricultural land, leading land rights defenders to wonder whether the eviction of the Ogiek is about forest protection or land grabbing.
The African Court on Human and Peoples’ Rights judgement affirmed that evicting the Ogiek from their ancestral land violates seven articles under the African Charter on the right to non-discrimination, life, natural resources, property, religion, culture, and development.
To implement the ruling the Kenyan government needs to officially recognise the Ogiek, one of the most marginalised communities in Kenya, as Indigenous people. The government must also provide compensation and reparations for the loss and destruction of their land. The Ogiek are also calling for the full restoration of the forest.
According to the Minority Rights Group International report, implementation would mark “a new chapter in the protection of the rights of not only the Ogiek peoples but of all Kenyans too and other indigenous communities in the world. Significantly, this was the first case on indigenous peoples’ rights to be handled by the African Court since its inception. It therefore set a precedent in the handling of similar cases and is of great jurisprudential value with regard to indigenous peoples’ land rights.”
No representation and non-implementation
In November 2017, the Kenyan government formed a taskforce to look into the implementation of the ruling. However, the taskforce did not include any members of the Ogiek community, nor have they been consulted about its work. The taskforce was supposed to present a report before the end of its term (January 2020) but until now no report has been published. “We have even written to the government requesting that they make the report public so that the Ogiek know their fate, but everything has gone silent,” according to Kobei, who says that no explanation has been offered.
Kenya’s principal secretary at the Ministry of Environment and Forestry, Dr Chris Kiptoo, tells Equal Times that it has received the final report from the taskforce and that it will be presented to the public after cabinet approval. He also revealed that “the Ogieks may get a section in the Mau Forest,” despite the fact that they are demanding full access to it. But again, says Kiptoo, “this will only be possible after cabinet approval”.
He continues: “The Mau conservation is paramount and the government will not allow this important water [tower] to be destroyed by loggers and encroachers who are using the Ogiek name to shield themselves from the law.”
He also warns that those people living on government land, especially in sensitive areas, will not be spared regardless of their position in the political field as the government is committed to protecting the environment for the betterment of future generations.
The Center for Mau Forest Conservation and Restoration (CMFCR) is one of the many local conservation groups pushing for the implementation of the court ruling. CMFCR director Patu Naikuni tells Equal Times that the Ogiek should be allowed to return to Mau Forest without any conditions. “So long as they are not destroying the forest, the Ogieks’ rights must be respected without any intrusions from anybody. They should be allowed to practice their traditional way of life.”
He claims that the malicious destruction of the forest taking place in Mau is not being done by the Ogieks but is actually a result of their eviction.
“The Ogieks are great preservationists. They don’t cut trees as other communities do,” Naikuni explains. “If the government can allow the Ogieks to go back to their ancestral land, the Mau Forest will return to what it used to be 100 years ago.”
In July, Naikuni wrote a letter to the Ministry of Environment and Forestry claiming the invasion, in some sections of Mau Forest, of intruders who are pretending to be Ogieks in order to do their logging business. Observers say that the only way to prevent this from happening is for the Kenyan government to collaborate with the OPDP and the Ogiek community directly.
In what Ogiek community advocates describe as a move to silence them, the government had planned to allocate 10 acres of land to an undisclosed number of Ogiek and non-Ogiek community members in eastern Mau. “We oppose this because we see this as a way of assimilating the Ogiek in order to make our community disappear so that they do not have to implement the African Court ruling,” says Kobei.
However, after the Ogiek Council of Elders and the OPDP petition a local court, the issuing of land titles in eastern Mau was suspended. The judgement by Justice John Mutungi cited the government plan of demarcating and titling of the community land as a total violation of the landmark ruling by the African court.
“We will not surrender until we get our land back”
Minority Rights International described the ruling as “a major victory for the community, who have endured months of evictions, inter-ethnic violence and uncertainty concerning their ancestral lands during the Covid-19 pandemic.”
Lara Domínguez, the acting head of litigation at Minority Rights Group International, which has been working on the reparations phase of the Ogiek case, tells Equal Times: “We will continue supporting the Ogieks people until their rights are honoured. Seeing them living in their ancestral land is our priority.”
She continues: “We will continue working closely with the OPDP and the Katiba Institute [an NGO that promotes the implementation of Kenya’s Constitution] to support the Ogiek through advocacy and domestic litigation to stop evictions and the handing out of title deeds on Ogiek ancestral land.”
The focus, however, is on ensuring that the government of Kenya implement the African Court on Human and Peoples’ Rights judgement.
“It may take longer than we would like to reach full implementation, but we will not stop until it has been achieved. That is our commitment to the Ogiek people,” she affirms.
Kobei says the Ogieks share this objective. “We will not surrender until we get our land back. It doesn’t matter how long the government takes to implement the ruling. The Ogiek people need back their land.”
READ MORE and CONTACT the OGIEK www.ogiek.org
EVICTED IN 2016
Ogiek lay case for Mt Elgon Forest reoccupation
Community members tell judges the Ogiek and their forests are inseparable as hearing starts
By JOHN NALIANYA - 08. June 2021
• They want the government to degazette the national game reserve and compensate them for the loss of property they incurred during eviction.
• Petitioner Kitelo told the court that they had nowhere to go.
Cosmos Chemwotei, a member of the Ogiek community, outside the court
Image: JOHN NALIANYA
Judges Boaz Olao, Stephen Kibunja and Nelly Matheka at Mabanga FTC during the proceedings
Image: JOHN NALIANYA
A three-judge bench has begun hearing a petition in which the Ogiek community has sued the government for evicting them from Mt Elgon Forest.
The Ogiek community living in Chepkitale in Mt Elgon Forest says the government erred in evicting them from the land and gazetting it as a national game reserve.
Community members say they have occupied the land since 1932 after colonialists chased them away from their farms in Trans Nzoia.
Their case is being heard by judges Boaz Olao, Stephen Kibunja and Nelly Matheka.
Eleven petitioners, led by Peter Kitelo, appeared before the bench sitting at Mabanga Farmers Training Centre on Monday. Justice Olao is the presiding judge.
The community wants the government to degazette the national game reserve and compensate them for the loss of property they incurred after the Kenya Forest Service, wildlife officers and the police evicted them in 2016.
Kitelo told the court that they had nowhere to go.
"The community has suffered a lot over the last eight years and now we want justice to be done," he said.
Petitioner Johnson Ngeywo said they do not understand why the government decided to act brutally on them.
He said his parents were buried in Chepkitale and according to their culture, he is not supposed to abandon their graves.
"My parents died in 1948. There is no way I can abandon their graves," Ngeywo said.
He said their livelihoods depend on Mt Elgon Forest, where they farm, keep bees and gather fruit.
"In fact, it's a taboo to move Ogieks out of the forest as they will die. Forests and us are inseparable," Ngeywo said.
Nixon Sifuna, who was representing KFS, said Ogiek's can still engage in beekeeping and other agricultural activities outside the forest.
JOHN NALIANYA is a journalist with Radioafrica reporting on general issues and based in Bungoma county
Edited by A.N.