This decision was the first time, in over a decade of operation that the African Court ruled in favour of an indigenous people. By judging that through a persistent denial of Ogiek land rights, their religious and associated cultural and hunter-gatherer practices were also violated, the court sent a clear message to African governments that they must respect the rights of indigenous peoples.
More than a week ago, many were waiting to hear whether the Kenyan government has handed out plots of land in Eastern Mau, the ancestral home of the Ogiek people. The community opposed the plans and turned to social media to ask for global solidarity. Though the government stated this was its intention, thankfully the operation did not go ahead.
Instead, it was good news for the Ogiek just a few days later. On December 15, 2020, the Environment and Lands Court in Nakuru issued conservatory orders barring the issuing of titles over Ogiek land in Eastern Mau.
This is a major victory for a community that has endured months of evictions, inter-ethnic violence and uncertainty concerning their ancestral lands during the COVID-19 pandemic.
Minority Rights Group (MRG), a leading international human rights organisation working to secure the rights of ethnic, religious and linguistic minorities and indigenous peoples, and the Ogiek Peoples’ Development Programme (OPDP), a Kenyan based non-governmental organisation founded in 1999 and registered by the Kenyan government in 2001, strongly condemn the government’s recent evictions of Ogiek communities, directly defying the 2017 judgment of the African Court on Human and Peoples’ Rights (African Court), which upheld the Ogiek peoples’ rights to their ancestral lands in the Mau Forest.
Since last July 2, the Kenya Forest Service (KFS) has been engaging in a large-scale and deliberate campaign to remove Ogiek communities from their lands in the Mau Forest, prejudicing the implementation of the 2017 judgment. As of July 9, over 100 Ogiek families, including nine families in Maasai Mau (approximately 600 people in total) had been evicted and rendered homeless.
MRG and OPDP anticipated that more people will be added to the tally in the coming days, as these evictions continue.
‘’The wonton destruction of property will have devastating economic consequences for Ogiek families who depend on subsistence farming and have been forced to abandon their crops and have nowhere for livestock to graze’’, says Lara Domínguez, Strategic Litigation Officer at MRG.
The sudden and unannounced nature of these evictions has traumatised victims who were sheltering in their homes from the Covid-19 pandemic. Some members of the community have been injured. Hundreds of Ogiek houses, structures and fences have been demolished or burned to the ground.
These evictions have taken place without notice, in the midst of the COVID-19 pandemic and the rainy season, in violation of the government’s domestic and international law obligations. While the government had previously announced it will establish a moratorium on evictions during the pandemic, it has continued evicting people, including the Ogiek.
‘’Evicted members of the Ogiek community have nowhere to shelter from the virus or the cold, inclement weather’’, notes Daniel Kobei, Executive Director of OPDP. ‘’Neighbours and relatives are being asked to take them in. We are concerned that the large number of people affected will inevitably result in overcrowded living quarters where the spread of the virus will do more harm.’’
KFS’ increasingly brazen conduct flouts the landmark judgment in the Ogiek case, where the African Court ruled that by routinely subjecting the Ogiek to arbitrary forced evictions from their ancestral lands, Kenya had violated seven separate articles of the African Charter, including the Ogiek’s right to property and natural resources.
Crucially, the court recognised that the Ogiek are indigenous peoples and have a critical role to play in safeguarding their local ecosystems and in conserving their ancestral territories and resources. The court specifically found that the government’s conservation objectives could not be used to justify the Ogiek’s eviction.
Nevertheless, the government willfully misconstrues the African Court’s findings and continues to cite the need to conserve the Mau Forest to justify its actions.
‘’Despite the government’s attempts to blame the Ogiek for environmental degradation, it is overwhelmingly non-Ogiek settlers who are responsible for destroying the forest’’, explains Daniel Kobei. ‘’Without formal legal recognition as owners, we don’t have the right to protect the land or keep them out ourselves’’.
As of July 11, KFS has ‘reclaimed‘ 45,000 hectares of Ogiek ancestral land in Eastern Mau. The areas are all in locations that the Ogiek claimed in their case and the African Court adjudicated in their favour. Astonishingly, Kenyan Government officials maintain that their actions comply with the 2017 judgment.
‘’The core problem lies in the Kenyan State’s outdated approach to forest conservation’’, comments Liz Alden Wily, a leading world expert on land and resource rights. ‘’It persists in the failed vision that guns and fences will save forests. If only it would learn from global experience that granting ownership where it is long overdue empowers customary owners to conserve and enables governments to hold them firmly to account. Communities – and especially forest peoples where countries are lucky enough to have them – are already doing so successfully in all regions of the world including in Africa.’’
Indeed, a way forward centered on making the Ogiek peoples’ customary rights to their ancestral lands effective, as required by the 2017 judgment and Kenyan law is possible. However, it requires the political will to do so. While the Ogiek community, MRG and OPDP continue to advocate for its implementation, the situation of the Ogiek is becoming increasingly desperate. MRG and OPDP are concerned that these latest evictions are just the beginning of a concerted plan to remove the Ogiek from their ancestral lands before the 2017 judgment is implemented.
‘’It is telling that the government has failed to release a report produced by a Task Force gazetted to implement the 2017 judgment, even though the final report was submitted to the Ministry of Environment on March 20, 2020’’, says Lara Domínguez. ‘’Failure to release the Task Force report has been compounded by delays in the reparations phase of the case before the African Court. The Government of Kenya is taking advantage of the situation and the Covid-19 pandemic to avoid complying with the judgment.’’
In the light of these ongoing abuses, MRG and OPDP demand that the government immediately cease all evictions, which are made worse by the Covid-19 pandemic. They further urge the Government of Kenya to release the Task Force report and to participate in the African Court process in good faith by fully complying with the 2017 judgment.
Failure to do so will exacerbate the decades-long suffering of the Ogiek people and undermine the legitimacy of human rights institutions, particularly in the eyes of victims seeking redress for violations of their fundamental rights.
However, the government’s Multi-Agency Team that is spearheading the process is also barred from conducting land audits, adjudication, surveys, or the placing of beacons. The orders will remain in place until the court determines the underlying petition filed by the Ogiek Council of Elders and the Ogiek Peoples’ Development Programme, on behalf of the Mau Ogiek community.
Although the court still has to make a final determination on the underlying petition, the orders offer a temporary reprieve to the government’s proposed course of action, which violated the African Court’s 2017 judgment.
While MRG welcomes the conservatory orders, it is urging the government to comply with them and immediately stop the Multi-Agency Team’s activities in Eastern Mau. During this time, the government should meaningfully and fully consult the Ogiek community on implementation of the African Court judgment, including restitution of their ancestral lands. ‘’We also urge the government to release the Taskforce report on implementation of the African Court judgment’’, says MRG.
Disturbingly, hunter-gatherer communities, including the Ogiek, Sengwer and Yaaku peoples, have long faced marginalisation and exclusion.
The largest of these, the Ogiek, comprise about two dozen ethno-linguistic groups, living in or near the highland forests of central Kenya. Traditionally hunter-gatherers and still dependent on forest resources, most are primarily involved in agriculture and/or pastoralism. Many Ogiek have land rights on the fringes of forests, but government policies of converting communal land to individual ownership led to much of it being sold off to others, jeopardising the long-term position of Ogiek.
Aweer (Dahalo) are traditional hunter-gatherers, numbering about 3,500, living in the Lamu district of eastern Kenya and largely dependent on shifting agriculture which is more destructive of wildlife and forest resources than the hunting which has been banned by the government in the name of conservation. Poor rainfall has resulted in chronic nutritional shortages; insecurity in this border region has grown even greater following the wars in Somalia, rendering government services almost nonexistent. Most men have left the region in search of work.
Deprived of their ancestral lands, the Boni community living close to Lamu on the North-Eastern coast, has been ravaged by famine. The drought hitting the area had been blamed – but the marginalised position of this small community meant that no official had paid the slightest bit of attention to their starvation, and they had not received any state assistance.
From the beginning of the colonial era, hunter-gatherers were routinely dispossessed of their highland savannahs, which were teeming with wildlife and often deemed uninhabited by people. Colonial administrators in Kenya encouraged the assimilation of hunter-gatherers into larger tribes, a policy that continued after independence.
Today, the Kenyan government recognizes 42 tribes in Kenya, but categorises hunter-gatherers as ‘other’, or simply lumps them together with neighbouring peoples. For example, the 1989 and 1999 censuses counted Ogiek as either Maasai or Kalenjin. Indeed hunter-gatherers in Kenya became so marginalised that many adopted the pejorative labels others used for them to refer to themselves. Until a recent trend toward re-adopting their proper names, many hunter-gatherers accepted the Maasai term ‘Dorobo’ or the Somali term ‘Boni’, both of which mean ‘people who have nothing’ or ‘primitive’.
Indigenous peoples have continued to lose forest land to logging and clearing for agriculture, while in recent years also facing prohibitions on hunting, in the name of wildlife preservation. In 2005, Kenyan police burned down some Ogiek settlements in the Mau forest, and the government has failed to provide hunter-gatherers with even rudimentary services, such as access to healthcare. Hunter-gatherer peoples have almost no political representation in Kenya.
The same year, a draft Constitution proposed by the Constitution of Kenya Review Commission after three years of exhaustive consultations included the recognition of hunter-gatherers and other marginalised Kenyans, as well as a bill of rights and the devolution of power. Hunter-gatherer peoples strongly supported the draft, but the Kenyan parliament gutted all such provisions from the draft that was eventually rejected by voters in a referendum.
Hunter-gatherer groups were disappointed when the new power-sharing government also failed in their demand to be nominated to a ‘special interest’ seat. In the run-up to the 2007 vote, the Hunter-Gatherer Forum which represents the Ogiek, the Yaaku, the Sengwer, the El Molo and the Awer, wrote letters to the officials at the main political parties, telling them of the need for nominated MPs. However, when the reserved seats were allocated, none went to the hunter-gatherer communities. The Ogiek were, however, encouraged by the new attempts to get the ‘settler’ communities – which they claimed had stolen their traditional territory – expelled from the Mau forest. The destruction of this precious woodland, cleared by loggers and small-scale farmers, led to serious depletion of a vital water catchment area.
The situation of the Ogiek has in recent years attracted international attention due to the community’s protracted litigation against the Kenyan government following its issuance of a 30-day eviction notice to the Ogiek in the Mau Forest, demanding that they leave the forest.
Concerned that this was a perpetuation of the historical land injustices already suffered and having failed to resolve these injustices through repeated national litigation and advocacy efforts, the Ogiek decided to lodge a case against their government before the Commission, with the assistance of MRG International, Ogiek Peoples’ Development Programme and CEMIRIDE. In November 2009, the Commission, citing the far-reaching implications on the political, social and economic survival of the Ogiek community and the potential irreparable harm if the eviction notice was actioned, issued an Order for Provisional Measures requesting the government to suspend implementation of the eviction notice.
The Ogiek were not evicted on that occasion, but their precarious situation continued and in the years that followed, the community was obliged to take further legal action that again concluded that Kenyan authorities suspend its activities. However, evictions, harassment and intimidation of Ogiek continued, including a violent eviction of approximately 1,000 Ogiek and police intimidation in March 2016.
In the mean time, Kenyan Forest Service guards have also been responsible for the repeated forced removals of the Sengwer community from their land in the Cherangany Hills area of the Embobut Forest. The evictions occurred as part of the World Bank-financed Natural Resource Management Project (NRMP).
According to an investigation by the LA Times, the World Bank knew as early as 2010 about the removals in conjunction with its Natural Resource Management Project (NRMP) and warned the Kenyan government in 2011 that it would take action if they continued; however, the house-burnings and evictions persisted but no action was taken.
A revealing report by the World Bank Inspection Panel in May 2014, while exonerating the Bank from direct responsibility, concluded that it had failed to follow the ‘spirit and letter’ of its own policies by failing to safeguard the rights of the indigenous Sengwer or mitigate the risk of violations by the Kenya Forest Service in the implementation of the project. In the light of the report, the World Bank scheduled a meeting with the representatives of Kenya’s Ministry of Environment, Water, and Natural Resources, the International Union for Conservation of nature (IUCN) and the Sengwer community in March 2015.
A week before the colloquium however, allegations emerged of a fresh wave of house burnings by government authorities. The subsequent talks were condemned by Sengwer representatives as a cosmetic process that failed to improve the security of the community. The EU’s new €31 million Water Tower Protection and Climate Change Mitigation and Adaptation Project in the same location looks set to continue the destruction.
At the beginning of December 2016, the Kenyan government announced that all Sengwer will be evicted by the end of the year. And in the days after an EU delegation visited the community in spring 2017, a further 90 homes were reportedly destroyed.