To the Chairman,
National Land Commission,
January 20 2014
Dear Dr. Swazuri,
Tackling the Indigenous Forest Dweller Issue in Kenya Once and For All. The current eviction of Sengwer hunter-gatherers, along with recent settlers, from Embobut Forest Reserve brings to the fore a thorny problem which is yet to be successfully addressed in Kenya.
This is the apparent conflict between – the human rights of traditional forest dweller communities who want and need to retain at least core areas of their ancestral territories in order to sustain their culture and livelihoods; and the need to bring those same areas under effective conservation protection.
This is not an issue unique to Kenya. About 50 countries around the world face the same issue, including indigenous communities in Amazonian Latin America, forest peoples in the Congo Basin and similar groups in the Indian sub-continent and South East Asia.
The apparent conflict can be resolved. More and more states are finding the way forward, not by abandoning forest conservation in favour of indigenous land rights, or vice versa, but by integrating the two in a practical approach which says to the communities:
We will return these precious forest lands to your tenure on condition that you yourselves take on full responsibility for protecting and conserving these resources. Nor will you be able to dispose of those lands. If you fail, we will withdraw those rights.
Such strategies take some adjustment for all parties and the laws governing their duties. One of the most important is to move away from the following ideas and strategies:
The colonial-engendered idea that a valuable resource can only be protected so long as no human being lives there; hence, recurrent declaration of Reserves, and evictions; The notion that the only safe protector of resources is Government and its agencies;
The belief that traditional forest dwellers do not have the capacity to protect resources including keeping out those bent upon destroying the forest including by clearing; and
The illusion that granting a little bit of access, some minor use rights, and perhaps a share of benefits where the state is conducting exploitation schemes or perhaps a bit of compensation when evicted must satisfy the communities’ rights and demands.
What has proved far more important to indigenous forest-dwelling communities and to conservation of their resources in country after country is recognition of their lawful possession of those traditional territories – and the right to protect and sustainably use those lands and resources themselves.
States are finding different legal and strategic routes to achieve this change of strategy, with success, including our neighbour Tanzania, which in 1999 removed the presumption that, because an area was protected, it was therefore owned and controlled by the government.
Several hundred National Forest Reserves are also now governed by local communities, which can apply to have those areas returned to village tenure so long as the agreed village by-laws are upheld. But what is the situation in Kenya?
In 2014 there are plenty of national land policy and legal provisions that may be drawn upon to arrive at a workable and fair compromise on indigenous forest peoples’ rights and the safety critical water towers and related Forest Reserves as well protected areas.
Even better, arising from the Constitution, the crucial step was taken to mandate a specific actor - the National Land Commission – to be responsible for tackling such matters, including the issue of forest peoples and conservation, which variously relates to how public land is governed by state agencies, redress of historical land injustices, vigilance as to the purpose and conduct of evictions and other related policy and implementation matters.
A major reason why the situation has deteriorated as it has, with fundamental departures from constitutional provisions, is because the government has completely marginalised the Commission and disregarded its mandate, and starved it of funds—seemingly deliberately.
There is currently a further advantage: that those affected by this issue - indigenous forest dwellers whose lands have been reclassified as state-owned Protected Areas - are more actively seeking ways beyond the traditional conservation-land rights impasse.
An excellent example is the Ogiek of Mount Elgon, whose traditional lands are presently overlaid by four Protected Areas. These Ogiek are showing the Kenya Forest and Wildlife Services that, if given the chance, they can manage those threatened resources themselves, with their cooperation.
The entire Elgon Ogiek community have sat down and agreed to community by-laws to ensure protection and sustainable use of these Protected Areas which they regard as their (ancient) community lands.
They plan to be among the first to apply to be recognised as the lawful and registered collective owners of these areas as Community Lands. They are hopeful that the new Community Land Bill will concretely provide for restitution of these lands themselves - on condition that they actively sustain all the protection and conservation activities required under forest and wildlife management law. In short, they want to be the protectors, with technical agency help.
The problem in the above is clear – and, actually quite simple to resolve. Presently, all the legal bones with which the solution can be built exist in the Constitution, the Land Act, and other laws.
But these haven’t been linked into a strong skeleton for this to occur. We want to help the Commission to build that skeleton, and as quickly as possible. We also want to hold the Commission accountable for doing so.
There are a host of issues for the Commission to deal with, but we see devising a clear path on this matter as one of the most fundamentally important; if this can be cracked, then a lot of other thorny issues will fall better into place and be more manageable.
We are a handful of NGOs comprising Katiba Institute, Forest Peoples Programme, the Cheptikale Governing Ogiek Council and the Sengwer Indigenous Peoples Programme. Over coming weeks we will –
Identify the legal conditions that allow (or could with achievable adjustments easily allow) the necessary compromise conservation/land rights solutions involving Protected Areas and indigenous forest dwellers, and extending to matters of process (e.g. eviction, reasonable levels of compensation for those who are not part of those societies and/or who want to leave the areas);
Assist as friends of the court to ensure follow through on the injunction against eviction in the Sengwer Embobut case, and other cases that arise, to allow practical solutions to first be worked out with longstanding customary owners of those areas in conjunction with conservation needs;
Bring together representatives of present-day indigenous forest dwellers whose lands have been overlaid with Protected Areas so as arrive at a clear picture of the extent of the issue and to assist them to reach a unified and workable solution;
Lobby, with practical suggestions of necessary provisions, to ensure that relevant legislation, both existing and upcoming (Evictions and Resettlement Bill, Community Land Bill, Forest Bill, Water Bill, Mining Bill) concretely guide common sense conservation-rights solutions; and
Submit to the Commission a concrete strategy within the law that facilitates a sustainable and fair alignment of the interests of indigenous forest peoples and conservation in Protected Areas. We wish to do the above independently as civil society but with the knowledge and cooperation of the Commission.
Yash Pal Ghai, on behalf of
Forest Peoples Programme
Cheptikale Ogiek Governing Council
Sengwer Indigenous Peoples Programme
15 January 2014