The Ogiek, a traditionally hunter-gatherer community, have lived in the Mau Forest since time immemorial, and are evidently custodians of the forest. In fact, in its 2017 judgment, the African Court of Human and Peoples’ Rights declared it to be their ancestral land – their home.
They rely on the forest for their food, shelter, honey, essential for cultural and food purposes and medicine. It is therefore in the interest of the community to protect the forest. The Ogiek, like all indigenous peoples, have traditional knowledge that is important for environmental protection.
Kenya was party to that very prolonged litigation process, which started many years ago in the Nakuru courts, and was elevated to the African Court, and now returns to Kenyan courts, as the Ogiek seek local legal action to prevent their ongoing eviction.
Favourable judgments were delivered in favour of the community as the ancestral landowners of the Mau Forest. This case is not new to the state. Indeed, the state defence was paid for by taxpayers. If they now claim ignorance of these judgments by refusing to respect the rule of law and implement them, should they not now account to taxpayers for the expenditure incurred?
It should not be lost to independent Kenya that most of our land challenges culminate from brutal theft, racism and colonial rule. The Attorney General should be cognisant of the commitment of the Ogiek to forest conservation and facilitate rather than obstruct this. Similarly, the state should not be seen to be denying access to justice for the community.
Like all hunter-gatherer societies with ancient connections with their territories, the Ogiek have a deeply entrenched sense of home which keeps them close to the forest. It would also behove the AG and Cabinet Secretary for Environment and Natural Resources to recall the government's own studies on the matter.
The 2009 Prime Minister task force report on the conservation of the Mau Forest, and the task force on the implementation of the decision of the African Court issued against the government both calls for enhancing the participation of indigenous communities on the sustainable management of forests.
Some of the problems the Ogiek are suffering from culminate from a fallacy. The 1932 Kenya Land Commission (or Carter Commission – as it was chaired by Sir William Morris Carter), was tasked with investigating African land claims in Kenya and the problems caused by lack of clear land titles for Africans.
Carter had already demonstrated a racist attitude in his work for the colonial Government in Uganda and Southern Rhodesia. Unfortunately, following its conclusions, the colonial government proceeded to demarcate the so-called white highlands, meant for white settlers domination.
Although there were also recommendations to demarcate many native territories, the Ogiek were excluded, on grounds they needed to assimilate with other tribes (that is, take up farming). This left their lands free for illegal expansion of other tribes, state actors and white estates.
The Ogiek eventually turned to the African Court to resolve their continued dispossession and marginalisation. The state was represented throughout this litigation by the Solicitor General, and the Principal Litigation Counsel. The court delivered its judgment on the merits of the case on May 26, 2017, recognising the community as an indigenous people.
The court further absolved the Ogiek of any responsibility for the destruction of the Mau Forest, holding that conservation does not justify their eviction. It also found the government had violated their rights: right to property, natural resources, culture, religion and non-discrimination. In its reparations judgment of June 23, 2022, it specifically ordered the government to demarcate and return the community's ancestral land, among other things.
The state should have been at the frontline to correct such brutal dispossession, even as a means to economic empowerment. Partnerships with the indigenous Ogiek people can still go a long way towards preserving the Mau Forest. It should be recognised that community have grown more than 1.5 million trees in the last seven years, rehabilitating Logoman Forest in the Mau Forest.
It is fundamentally wrong to use the provincial administration to allege that the Mau has been destroyed by the Ogiek. This is both punitive and contrary to the judgments of the African Court – which are legally binding on the Kenyan state.
Significant evidence has been tabled that the state perpetrated illegal leases without involving the community. It would also behove the AG to recall the thousands of hectares of Mau Forest cleared under government's watch for Nyayo Tea zones and logging companies. The same provincial administration, therefore, has been found to protect those looting and destroying the forest. Such leases have been found to be null and void. They cannot be the ones now advising the state not to implement the judgements in full.
The future of the Mau Forest is in the hands of the indigenous peoples. The state, therefore, should facilitate full implementation of the May 2017 merits judgment, and the June 2022 reparations judgment, allocating the Mau to each of the 10 communities. who make up the Mau Ogiek people.
Human rights defender