• CS Tobiko has made it clear that the evictions were a necessary evil, to ensure no further encroachment of the Mau and allow for the restoration of the forest to its original state.
• The good intentions of conservation must be pursued in a manner that comports with the law of the land.
Absolutism is governance by decree. It stands in sharp contrast to constitutional governance, where state conduct is constrained by a constitutional and legal order rigorously enforced.
Open and flagrant disregard to existing laws in a constitutional governance system is the very definition of impunity. The Mau Forest evictions, which are underway, increasingly bear the imprimatur of absolutism and dramatise impunity. This assertion is not frivolously made as substantiated in this following summation of the situation.
By a series of pronouncements between July this year and today, Environment Cabinet Secretary Keriako Tobiko pronounced a new round of evictions to allegedly rid the Mau water tower of forest invaders. In his estimation, 60,000 families will be flushed out of the Mau.
In his highly publicised statements, Tobiko has made it clear that the evictions were a necessary evil, to ensure no further encroachment of the Mau and allow for the restoration of the forest to its original state. Thus, securing a critical catchment area that feeds the entire Maasai Mau and Serengeti ecosystems, a strategic, transboundary natural resource-rich in wildlife and other biodiversity. The good intentions of conservation must be pursued in a manner that comports with the law of the land.
International law recognises the multiple impacts of forced eviction, including the inevitable break up of families, undermined social and cultural ties, disruption of educations, deprivation of necessities such as food, shelter and medicine to such populations, and exposure of innocent persons, especially children to acts of violence, disappearances and rape in camps.
As a result, international law, specifically the United Nations Guiding Principles on Internal Displacement embodied in the Great Lakes Region Protocol on IDPs, and the Kampala Convention on IDPs, takes the view that forced removal should be conducted as a measure of last resort. This is where no other feasible alternatives exist.
The goal of international law governing displacement is the prevention and avoidance of "conditions that might lead to the displacement of persons."
International law extends to every person the right to be "protected against being arbitrarily displaced from his or her home or place of habitual residence." It means, even where property rights are in question such as in the case of the Mau, international law recognises that habitual residence is ordinarily sufficient safeguard against forced eviction.
International law further enjoins states to undertake displacement, if necessary, only after procuring free, informed consent of the affected persons.
It is noteworthy that since Kenya has acceded to many of these instruments, the above international standards are applicable by dint of Article 2(4) of the Constitution.
In recognition of Kenya's strong commitment to these standards, and the need to ensure the existence of a domestic framework to facilitate implementation, Parliament enacted the Prevention, Protection and Assistance of Internally Displaced Persons and Communities Act of 2012. This law does the following.
First, it incorporates the UN Guidelines and the Great Lakes Protocol on IDPs explicitly as part of the Act. That means all the prescriptions of these instruments, including what has been advanced above, are binding upon the state.
Second, Section 5 (1) (2) of the Act enjoins the government or any other organisation, body or individual, to guard against factors and avoid conditions that have the potential to result in the displacement of persons and, shall prevent internal displacement including in development projects and environmental conservation. The Act further provides that in exceptional cases, where displacement and relocation due to development projects or projects to preserve the environment may be justified, they must be undertaken in accordance with the applicable law, and proper assistance extended to the affected groups.
In such a case, the Act requires that the government shall seek the free and informed consent of the affected persons and hold public hearings to ensure the affected persons' informed participation. A 60-day notice issued by the CS presents a fait accompli that constitutes no accommodation contemplated under the Act and is nothing but an arbitrary decision that provides no durable solution to the affected.
Third, under the Act, the government is obliged to seek international assistance to ensure protection and assistance to internally displaced persons if its capacity is inadequate. Failure to seek such assistance, therefore, constitutes malicious intent on the part of the ministry of environment to subvert the intentions of the Act by facilitating undignified forced removal of occupants of the Mau.
More significant from an individual responsibility perspective, the Act prohibits the aiding or abetting of forced displacement by any person, including by the Environment CS, through acts amounting to genocide or crimes against humanity.
Given the population targeted for removal in the Mau are primarily members of a specific community, genocidal intent can be inferred (and the right to pursue action in international tribunals seized with competence to try mass atrocities against persons who knowingly use forced eviction targeted at a population can be fairly reserved).
The critical question to ask is, who has raped the Mau ecosystem? Is it these peasants targeted for forced removal? Isn't the Mau's present state, a function of the unsustainable activities of large scale logging companies, including TimSales, Rai Plywoods, and others, licensed by the Kenya Forest Services, which ironically is the lead agency in the current eviction operations? Who has benefitted from logging licenses in the Mau over the last two decades? I highly doubt that the large scale destruction of the Mau can be attributed to the peasantry. It is time KFS, opens its licensing registry to the public so that we can know who have benefited from the wealth of the Mau.
In the meantime, the current program perpetrated by the CS environment will neither yield conservation dividends nor prevent further encroachment and should be halted.
Korir Sing’Oei is a legal adviser at the Office of the Deputy President. Views here are personal.