Despite a landmark verdict, the Kenyan ogiek community is still struggling to return to their ancestral lands
It was a historic moment. On May 26, 2017, the African Court of Human Rights and Human Rights in Arusha, Tanzania, ruled after an eight-year legal battle that the Kenyan government had violated the rights of the Ogiek by repeatedly evicting them from their ancestral lands in the Mau Forest. The ruling, which found that the government had violated seven out of 68 articles of the African Charter on Human and Peoples’ Rights, called on the government to take remedial action.
But almost four years later, the Ogiek are still waiting for the ruling to be implemented. Conservation and environmental laws still deny the Ogiek access to forest life and hunting, while thousands of Ogiek and non-Ogiek settlers have been evicted from the forest in recent years, even during the pandemic.
According to a June 2020 article in the Washington Post, the government has announced that the ogiek will be able to return to the forest once all non-indigenous settlers are removed. However, the same article quotes senior officials who specifically say that no one should live in the forest.
As a result, with every week that goes by without a word from the government, the Ogiek are more and more concerned about their prospect of getting back to the forest unhindered. “The delay in the implementation of the African court ruling worries the community more,” says Daniel Kobei, executive director of the Ogiek People’s Development Program (OPDP), who, along with the minority, was one of the three applicants at the African court’s Rights Group International and Kenya’s Center for the Development of minority rights).
“The Ogiek need their land to settle, just like other Kenyans. We’re sick of the evictions. “
In the most recent case, more than 300 Ogiek families who lived in forests had their houses demolished or burned down and their farms destroyed by forest rangers. Human Rights Watch research suggests that more than 50,000 evictions have occurred on Mau Forest land since 2018. Both ogiek and settler communities, including some with legal ownership of the land from which they were evicted, were affected. The evictions resulted in numerous deaths, property destruction and the poverty of tens of thousands of people who became homeless and landless.
Forest protection or land grab?
The Ogiek (whose name means “caretaker of all plants and wildlife”) are one of the last remaining hunter-gatherer communities in Kenya. According to the 2019 census, 52,000 Ogiek live, of whom between 35,000 and 45,000 live in the 400,000-acre Mau Forest Complex in Kenya’s Rift Valley.
They have been brutally evicted since the days of British colonial rule, but since 2004 the evictions have continued under the pretext of protecting the environment. The Mau Forest is home to Kenya’s largest water catchment area and its largest “water tower” (forested mountains with springs and streams that flow into large rivers). Officially, the Kenyan government is evicting anyone who lives in the Mau Forest to stop its deterioration and protect the country’s vital water supply.
But the Ogiek say they are the protectors of the forest. They blame the damage done to the forest, the irregular allocation of land to outsiders, as well as the loggers and other settlers who cut the trees down, either to sell them for wood or to burn them for charcoal. “We see Mau Forest Land not as a factor of commercial production, but as central to the cultural well-being, religious sites, traditions and customs of our community,” said Kobei in the latest report by Minority Rights Group International on Defending Our Future: Overcoming the challenges of bringing the Ogiek back home.
Other parts of the forest have been turned into agricultural land, leading land rights defenders to wonder whether clearing the Ogiek is about forest protection or land grabbing.
The verdict of the African Court of Human Rights and Human Rights confirmed that the eviction of the Ogiek from their ancestral lands violated seven articles of the African Charter on the right to non-discrimination, life, natural resources, property, religion, culture and development.
In order to implement the judgment, the Kenyan government must officially recognize the Ogiek, one of the most marginalized communities in Kenya, as indigenous people. The government must also provide compensation and redress for the loss and destruction of their land. The Ogiek are also calling for the forest to be fully restored.
According to the report by Minority Rights Group International, implementation would “mark a new chapter in the protection of the rights not only of the Ogiek peoples, but also of all Kenyans and other indigenous communities in the world. Significantly, this was the first case on indigenous peoples’ rights to be dealt with by the African Court of Justice since its inception. It has therefore set a precedent for handling similar cases and has great legal value in relation to the land rights of indigenous peoples. “
No representation and non-implementation
In November 2017, the Kenyan government set up a task force to deal with the implementation of the judgment. However, the task force did not include members of the Ogiek community, nor were they consulted about their work. The Task Force should submit a report before the end of its term of office (January 2020), but no report has yet been published. “We even wrote to the government asking them to publish the report so that the Ogiek would know their fate, but everything fell silent,” said Kobei, who says no explanation was offered.
Kenya’s Chief Secretary in the Ministry of Environment and Forestry, Dr. Chris Kiptoo, told Equal Times that he has received the final report from the task force and that it will be released to the public after cabinet approval. He also revealed that “the Ogieks could get a section in the Mau Forest,” despite demanding full access to it. But here too, says Kiptoo, “this will only be possible with the approval of the cabinet.”
He continues, “Protecting the Mau is of the utmost importance and the government will not allow this vital water [tower] destroyed by loggers and attackers who use the name Ogiek to protect themselves from the law. “
He also warns that the people who live on government properties, especially in sensitive areas, will not be spared regardless of their position in the political arena, as the government is committed to protecting the environment for the benefit of future generations.
The Center for the Conservation and Restoration of Mau Forests (CMFCR) is one of the many local conservation groups working to enforce the court ruling. CMFCR director Patu Naikuni tells Equal Times that the Ogiek can return to the Mau Forest without any conditions. “As long as they don’t destroy the forest, the rights of the ogieks must be respected without anyone interfering. They should be allowed to practice their traditional way of life. “
He claims that the malicious destruction of the forest in Mau was not committed by the Ogieks, but was actually a result of their eviction.
“The Ogieks are great preservationists. They don’t cut down trees like other communities, ”explains Naikuni. “If the government can allow the Ogieks to return to their ancestral lands, the Mau Forest will return to what it was 100 years ago.”
In July Naikuni wrote a letter to the Department of Environment and Forestry alleging the invasion of some sections of the Mau Forest by invaders posing as ogieks to run their lumber business. Observers say the only way to prevent this from happening is for the Kenyan government to work directly with the OPDP and the Ogiek community.
In what proponents of the Ogiek community describe as an attempt to silence them, the government had planned to allocate 10 acres of land to an unknown number of members of the Ogiek and non-Ogiek community in east Mau. “We are against it because we see this as a way to assimilate the Ogiek, to make our community disappear so that they don’t have to implement the ruling of the African Court of Justice,” says Kobei.
However, after the Ogiek Council of Elders and the OPDP petition requested a local court, the granting of land titles in East Mau was suspended. Justice John Mutungi’s judgment cited the government’s plan to demarcate and name the common land as a total violation of the landmark decision of the African court.
“We won’t surrender until we get our land back.”
Minority Rights International described the ruling as “a great victory for the community that experienced months of displacement, interethnic violence and insecurity regarding their ancestral lands during the Covid-19 pandemic”.
Lara Domínguez, the acting litigator at Minority Right Group International who worked on the reparations phase of the Ogiek case, told Equal Times: “We will continue to support the Ogieks until their rights are respected. It is our priority to see them live in their ancestral lands. “
She continues: “We will continue to work closely with the OPDP and the Katiba Institute [an NGO that promotes the implementation of Kenya’s Constitution] assist the Ogiek through legal counseling and domestic litigation to halt evictions and the issuance of title deeds on the Agiek ancestral lands. “
However, the focus is on ensuring that the Kenyan government enforces the ruling of the African Court of Human Rights and Human Rights.
“It may take longer than we’d like to achieve full implementation, but we’re not going to stop until that is achieved. That is our commitment to the Ogiek, ”she confirms.
Kobei says the Ogieks share this goal. “We won’t surrender until we get our land back. It doesn’t matter how long it takes the government to implement the ruling. The Ogiek need their land back. “