- Evictions of the Ogiek continued after Independence, as they watched their lands decline in area and quality under the Forest Department.
- Loss of area was due to continued excisions often for private purposes, and settlement schemes.
A worrying trend is appearing for communities who own more than half of Kenya’s land area on the basis of customary law.
The issuing of community titles languishes at less than 50 deeds, while some other African states are issuing titles in the hundreds to double-lock these most basic of collective properties. While many assumed famously ‘modern’ Kenya would lead the way with its progressive Constitution including tackling historical land injustices, compliance with the rule of law is demonstrably shaky in this area. With our backward-looking forest conservation strategies, this is a double blow to progress. A topical example is Government’s handling of the Mau Ogiek.
THE MAU OGIEK TRIBULATIONS
Mau Ogiek are one of five marginalised Kenyan forest hunter-gatherer societies. All have been dispossessed of their territories held over thousands of years, up until 1900. The loss since has been to both forest dwellers and forests.
For Mau Ogiek, dispossession first came with white settlers, later through allocations to settlers’ workers from other areas, issue of lands to Masai who had been moved from Laikipia, and, by 1920, substantial logging concessions in their territory. Government declared the remainder of Mau Ogiek land Forest Reserves.
Evictions of Ogiek continued after Independence, as they watched their lands decline in area and quality under the Forest Department (since 2005, the Forest Service). Loss of area was due to continued excisions often for private purposes (including self-allocation by a former President), and settlement schemes, supposedly for themselves but in practice benefiting many non-Ogiek. Clearing for Nyayo Tea Zones took more land from the 1980s, still expanding, to the benefit of the Forest Service and private tea farmers. A Presidentially appointed Task Force declared enough was enough in 2009, but its recommendations were not acted upon.
In 2012, having seen their rights acknowledged in Kenya’s courts but not applied, the Mau Ogiek appealed to the African Commission of Human and Peoples’ Rights. They limited their claim to the Mau Forest Complex and the attached ungazetted Masai Mau forest, as the only useful areas left to recover. The remainder of their territory of 1900 was covered by towns, villages and longstanding private farms. The Commission forwarded the matter to the African Court of Human and Peoples’ Rights (ACtHPR), choosing to act itself on behalf of the Ogiek. The Court heard the case in 2014, issued a Merits Ruling in 2017, and a Reparations Ruling in 2022
The Court ruled in 2017 that the Mau Ogiek were the owners of the forests, that they were not to blame for its degradation, and ordered that they be part of any decisions made in regard to the Complex and Masai Mau Forest. In 2022, the Court ordered Government to restore ownership of these forests by June 2024 to the Ogiek under community land titles; to immediately commence dialogue with the Ogiek, respecting their free, prior and informed consent, and to report progress in June 2023. No Orders have been implemented.
Instead, Government is once again doubling down on its outdated ‘fortress conservation’ approach, involving eviction of Ogiek where they have managed to remain within their sub-territories; once evicted, their ancestral forests will be protected against themselves (and others) by newly militarily trained and armed Forest Guards.
This is a curious choice in 2023, which many other Governments have abandoned in recognition that land and resource dependent communities, and forest communities in particular, have more vested interest than others in keeping forest intact. This stems from the depth of their socio-cultural ties with their homelands, and need for forest for beekeeping, medicinal and food plants. Following landmark developments in the 1990s and 2000s more and more governments invest in assisting communities to secure their lands and protect forest and other key biodiversity areas within those properties, monitoring their efforts. In contrast, Kenya’s Government is visibly still stuck in the colonial idea that only Governments can own and protect forests.
In fact, foresters were shamefaced just last month when a biologist showed them before and after satellite images of forest from which a group of forest dwellers had been evicted in another government forest. Within three months of eviction intact forest was half cleared, by outsiders renting plots from the Service to farm under the banned and now revived shamba system. Moreover, despite Kenya’s forest law providing for communities to declare and protect Community Forests, no investment has been made to promote and support this. Government seems intent on ignoring the success of community owned conservation so widely underway on the continent.
Mau Ogiek have done their best to assure endless inquiries that they will not destroy restituted forests. They are aware of concerns that they will be enticed to sell these lands to the highest bidder, and have accordingly repeatedly requested to be granted title in perpetuity without right to alienate. They counter fears that with population growth they will end up clearing all the forest, with commitment to limit settlement to present areas in agreement with the Service, meeting the needs of homeless Ogiek with allocations to them of lands unlawfully allocated to non-Ogiek during the 1990s and 2000s. The removal of such persons was agreed by Parliament in 2009 but never implemented.
Ogiek have also been clear that they need restoration of their ancestral forests for socio-cultural and beekeeping and will protect every residual patch of forest, all river banks, and recoverable degraded areas under demarcated Community Forests, some30 of which have already been defined. Finally, the Ogiek expected the Forest Service would be pleased to work with them on this mission.
Adding to the misery of those Ogiek evicted over the last month, now hungry and homeless, is the reality that the recent evictions are unlawful. Government cannot be unaware that our Constitution binds the State not only to uphold but also to promote principles of social justice, human rights, including rights to culture, freedom from hunger and protection of property, alongside a duty to protect marginalized groups including affirmative actions as required (Articles 10,11, 20, 21, 40, 43, 56, 260).
Those being evicted are not even on public (forest) land as they live in the ungazetted Masai Mau forest which is former trust land, now community lands (Articles 71, 63). The Constitution is also clear that community lands include ‘the ancestral lands and lands traditionally occupied by hunter-gatherer communities’ (Article 63 (2)) meaning extension of evictions to those within the gazetted Forests will be as unlawful.
As if this is not enough, Government is wilfully ignoring the rulings of the African Court. Even if Kenya were not a member of the Court (which it is) Government is bound to uphold the terms of the African Charter of Human and Peoples’ Rights and against which provisions the African Court took pains to assess the complaints made.
Which bit of the law, a network of community landholders asked in a letter to the Attorney-General on 4th November, do Government agencies not understand? And could he please, as Government’s principal legal adviser and bound to promote and protect the law, advise Government of the illegality of its actions?
And where, additionally, does Government’s mishandling leave its agreement, along with 187 other States Parties, to the Framework for Biodiversity Conservation in December 2022? The Framework ‘acknowledges the important role and contributions of indigenous peoples and local communities as custodians of biodiversity…’ and pledges that ‘nothing in this framework may be construed as diminishing or extinguishing the rights that indigenous peoples currently have or may acquire in the future’ (Section C 7 (a)).
It is unsurprising that global and local eyes are upon the Kenyan State. Investigations by global organisations suggest Government actions in this instance have less to do with conservation than with earning lucrative carbon credits by holding onto rightfully recognised community lands.