An Assessment of the Land Claims and Rights of the Ogiek (Muthoni Wanyeki) in the Mau and Mt. Elgon Forests of Kenya

Abstract

Focusing on human rights and land claims of the local community that resides in the Mau Forest, this paper aims to analyze their struggles to gain customary land rights. The government demanded eviction of the Ogiek from their ancestral Mau Forest due to the conservation of water catchment zone[1]. As drought is a severe problem occurred Kenya, the conservation of the water catchment site incident has sparked a human rights dispute for the Ogiek[1]. Whether Indigenous people contribute to forest conservation or degradation has always been a contentious debate among stakeholders. The human rights dispute stems from the mismanagement and corruption of the local government which, according to Indigenous communities and NGOs, have brought irreversible sufferings and historical injustices[2]. Kenya Forest Services (KFS) failed to take into account the complicated relationship between the Mau Forest and livelihood of the Ogiek. Government documents and licenses given to interest stakeholders, livelihood situations and perceptions of the affected stakeholders, and local news of general updates will be used to assess the degree of success of statutory rights (both human and land claims) of the Ogiek to the access and management of the Mau Forest.

Introduction

Mount Elgon Forest, Kenya, Uganda. By Kristina Just via Wikimedia Commons. CC BY-SA 2.0.

The Ogiek (Muthoni Wanyeko) is one of the last forest-dwelling hunter-gatherer living in the Mau Forest in Kenya’s Rift Valley and in the forests around Mt. Elgon. Their ancestral lands consist of 400,000 hectares across seven legislative districts in government-owned land[1]. Three-quarters (~15,000) of the Ogiek’s population reside in the Mau Forest and around Mt.Elgon, they are fully dependent on the forests for shelter, food resources, identity, and survival in general[2]. Since immemorial of time, the Ogiek community settled in this region. They developed very strong cultural and spiritual bonds with their ancestral lands. As hunter-gatherers, their lifestyle integrates them into the ecosystem. Before the government of Kenya, the Ogiek has experienced eviction from colonizers. After their independence, the government of Kenya took over the governance and has been constantly demanding the Ogiek to leave the forest with respect to conservation of water catchment zone, according to Section 4 of Government Land Act of 2005. The government claimed to have the right to evict population resides in conservative lands. The Ogiek community has protested and refused to the move[3]. However, in 2009, the Kenya Forest Services (KFS) gave the Ogiek an order to leave the forests within 30 days[4]. This command from left the Ogiek homeless and hopeless. The Ogiek community figured that meanwhile they were given water and general environmental conservation as the reason to evict, the KFS has issued timber companies licenses to log the forests on a bigger scale[1]. This makes the Ogiek community really upset. Despite efforts to bring their grievance to local authorities, little has changed since the government of Kenya is being very ignorant. By 2012, enough evidence of the Ogiek’s suffers from injustice were collected by the NGOs to submit or file a case to the African Commission on Human and People’s Rights. This case lasted for eight years and has eventually reached a final verdict in mid-2017. However, the degree of success remains doubtful. The human rights and land claims protected by the legislative law and the actual enforcement of the law remains doubtful and currently still getting updates.

History

Pre-colonization of the British Government

Kenya, located at the east of Africa, was a multi-ethnic state. Thus its language has tons of dialects. It was not a claimed land by any governance, just has lots of trading around the region. In 1505, the Portuguese officially began their trades in East Africa. Massive trading, include slave trades. At this time period, historians say that the Ogiek may have just been a group of people that settled in the Rift Valley at times before Portuguese’s arrival. The Ogiek is hunter and gatherers tribe that lacked in corporately organized formal institutions[5]. This explains why the Ogiek is easier to be controlled and used by any outsiders.

Colonized Period to Independence gained

In 1886, due to the Anglo-German Agreement and due to the desire to abolish the slave trade the British colonized Kenya[6]. Under British colonization, Kenya was called Kenya Colony. In 1895, the British set up the East African Protectorate[7]. The British also blamed population pressure or overcrowding, traditional inheritance, land fragmentation, land deterioration onto Kenya’s customary rights[7]. Hence, the British colonizers abolished the customary rights and the slave trade in Kenya, and replace with an English-style governance in Kenya Colony. In the colonized time period, the Ogiek experienced eviction from the British colonial authorities to the purpose of forest reserves and spaces for white settlers[8]. The issue of the Ogiek getting evicted from the Mau Forest and forested areas near Mt. Elgon has started even during the colonized era. It is a past, present, and ongoing issue. British colonial authorities were overturned on December 12th, 1963 by Kenya and Queen Elizabeth II as head of State[9].

Post Independence

In 1964, Kenya declared its independence and itself as a Republic[9]. The government of Kenya re-framed the constitutions entirely. From 1991 to 1994, the Ogiek ancestral lands were cultivated by the government of Kenya for various use, such as education and agricultural lands. In 1995, the government of Kenya sent out an allocation of land use to the Ogiek, which the Ogiek refused the operation of the plan. Later in 1996, elites in the Ogiek petitioned the Parliament, but ended up getting arrested and eliminated from the political system. Starting in 1997, the Ogiek has been constantly trying to challenge the government of Kenya. But during this time, the Ogiek has only been trying to reach out to the provincial government. Fortunately, in 1997, the Ogiek did win a case against the government of Kenya on the Provincial Court, and the Government of Kenya was asked to legitimize the illegal land allocations[10]. The animosity between the Ogiek and the Government of Kenya started to grow rapidly in this around this time period. The Ogiek people who were part of the political system got arrested for all kinds of reasons, the law cases filed to the provincial courts come in high frequency. The chaos between the government of Kenya and the Ogiek has brought attention from all over the world. The NGOs started to keep up with conflicts while collecting useful information and shreds of evidence for the Ogiek to file a case to the African Union’s African Commission on Human and People’s Rights[11]. The Ogiek intensifies the documentation of government commanded activities on their ancestral lands, commissioned out to the Environmental and Social Economic Impact Assessment on the destruction and deprivation that the government of Kenya has done to their ancestral lands[10]. Up until 2009, the Ogiek has been continually threatened by the government of Kenya to withdraw the cases, the threats came through verbally, written papers, and physically. There were armed officers constantly purposely interfere with the Ogiek during their cultural activities and daily lives[10].

The Interference of the African Union (2009 - 2017)

The NGOs, Centre for Minority Rights Development (CEMIRIDE) and Minority Rights Group International (MRGI), collected evidences to help the Ogiek to bring their case onto a higher level authorized court, the African Union (AU)[12]. AU referred this case to its legislative charter, the African Commission on Human and People’s Rights. By 2012, there were enough pieces of evidence collected to meet the admissibility to file a case in the African Commission on Human and People’s Rights. Hence the Ogiek’s case got filed and referred to the judiciary enforcement arm, the African Court on Human and People’s Rights. In the span of eights years, the Ogiek against the government of Kenya case has eventually welcomed its final judgment on May 27th, 2017[13]. The Ogiek of Kenya has won the landmark land rights case at the African Court on Human and People’s Rights. This ruling not only justifies that eviction of the Ogiek from their ancestral lands will not contribute to the protection of the forest lands but also the fact that forest conservation cannot justify the eviction of the Ogiek of Kenya.

Tenure Arrangement

      Three types of lands
      1) Government land
      2) Private land
      3) Trust land
       

In the Ogiek case, they aimed to get legal land rights over their ancestral lands, the rights to access without any limitations and reside. Government land can be turned into a trust land or private land[7]. In May 27th, 2017, the final verdict is delivered to the Ogiek. It is asserted that the Mau Forest is the Ogiek ancestral home and the Ogiek morally have an existing right to their ancestral lands[14]. The AU clarifies that the government had illegally evicted the Ogiek from the Mau forests and forests areas near Mt. Elgon, AND have failed to prove that eviction of people would contribute to forest conservation, hence, the Ogiek now have gained statutory rights of unhindered access and use of their ancestral lands[15].

Administrative arrangement

NGOs (CEMIRIDE and MRGI) figured the severe human rights associated with this issue, then they took 3 years (from 2009 to 2012) to collect evidence for the Ogiek’s case to meet the admissibility criteria to submit a case to the African Union (AU). The case got passed on to the African Commission on Human and People’s Rights, which is the judiciary law institution established under the African Charter on Human and People’s Rights in AU. It then referred the case to African Court on Human and People’s Rights, which consists of general legal matters and ruling on the human rights treaties, to inspect this case[11].

Affected Stakeholders

     The Ogiek Community[16]
     1) Relations between Ogiek and supernatural beings living in the forest 
     2) Relations between Ogiek and animals of the forest
     3) Relations between Ogiek and others 
     *Others here refers to enemies, those who partition the sources with the Ogiek

The Ogiek – indigenous group that has strong ties with the forest, anything to do with the forest will directly affect them. They were a hunter and gatherer tribe. The Ogiek’s flexibility and adaptation allowed them to survive as a discrete group and to maintain intact their ethnic identity[16]. Their lifestyle got heavily impacted by the changing society linguistically, economically, and socially since it takes time for them to keep up with the changes as one of the most marginalized communities. Recently, the Ogiek’s nomadic lifestyle for as hunter and gatherers have changed, the Ogiek had gone through a very short and fast process of sedentarization (as in settlement), however, this change of lifestyle did not make their lives less dependent on the forest resources[16].

Interested Stakeholders

Logging companies get licenses issued from the government of Kenya to log the Mau Forest. They are interested stakeholders because they rely their product source on the forest. They care about the benefit they derive from the timber production, but not the forest itself. Degradation or any impact on the forest would not bring an impact to these companies because these companies can always find another forest to support its supply chain. The government of Kenya plays a role as interested stakeholders since they charge loyalties from logging companies. NGOs and AU are interested stakeholders because they care about what happened to the forest. Even if they are not directly affected by the forest they still care about the outcome of the allocation of land rights upon this forested area.

Degree of success

The Ogiek thought life would be in peace after they have gained their rights to access and reside the Mau Forests freely with constitutional rights, but a minority of them are still experiencing evictions. On a published article on local news, a photo of a woman picking up her belongings in the debris of her house that got burnt down by the Kenya Forest Services (KFS) got published (Kibor, 2018). The news reporter did an interview with this aggrieved suspect Emily Sitienei, she claimed that this time, 14 houses were burnt down by the KFS (Kibor, 2018). Apart from the KFS, the East African news also published a post illustrating that the Ogiek are posed with new threats. In their article, the new threats are posed by outsiders. Outsiders, who some held real licenses to enter the forest and some with fake titles as well[17]. Four indigenous communities had a meeting with people of authorities and NGOs, claiming that they want the Kenyan government to implement judgment and set up a task force to assist and enforce the land rights. The Ogiek also brought up that last year (2017) in November, the government of Kenya has formed a task force that was supposed to study the ruling of the Ogiek case for six months, never showed up. And the term for the task force to inspect has already expired[17]. Hence, although the Ogiek won the case again the government of Kenya at the African Court on Human and People’s Rights, the degree of success and enforcement of the law remain unauthentic.

I suspect that eviction happened to the Ogiek after they have gained their legal rights to access and use the land is because of the miscommunication and disunity between the government officials and departments. From this case, it is visible that the government of Kenya value economy values over indigenous people's human rights. As aforementioned, the government are still giving out licenses to the logging companies, throughout the Ogiek case, they have never stopped issuing these forest access and logging licenses. In return, the government do charge these companies loyalties. Thus superficially, it seems like the government is doing its business fair. However, we never know did any government officers privately collect money from these logging companies or other outsiders hence issue them more rights to use the forest resource. This may be the reason why the government is being ignorant towards the request of the Ogiek and other communities after they claimed there are new threats on them to evict the forests.

References

  1. 1.01.11.21.3 Sena, K. (2011) Mau Forest: Killing the goose but still wanting the golden eggs. IWGIA.
  2. 2.02.1 Siegel, N. (2018, October 8). Kenya: Indigenous Ogiek face eviction from their ancestral forest...again. Retrieved from https://news.mongabay.com/2018/10/kenya-indigenous-ogiek- face-eviction-from-their-ancestral-forest-again/
  3. The Government Land Act. (2010) Kenya: National Council for Law Reporting with the Authority of the Attorney General.
  4. Aka, P. (2017). African Commission on Human and Peoples' Rights v. Republic of Kenya (Afr. Ct. H.P.R.). International Legal Materials, 56(4), 726-764. doi:10.1017/ilm.2017.27
  5. Kamau, J. History of a Forgotten Tribe. Retrieved from https://www.ogiek.org/report/ogiek-ch1.htm
  6. Hallett, R. (1970) Africa to 1875. A Modern History. University of Michigan Press. pp. 560-561.
  7. 7.07.17.2 Kieyah, J. (2007). Indigenous peoples' land rights in Kenya: A case study of the Maasai and Ogiek people. Penn State Environmental Law Review. 15. 397-437. Retrieved from www.lexisnexis.com/hottopics/lnacademic
  8. Rachel Savage. (2016, August 18). Kenya's Ogiek people forced from homes amid 'colonial approach to conservation'. Retrieved from https://www.theguardian.com/global-development/2016/aug/18/kenyas-ogiek-people-are-seeing-their-land-rights-brutalised
  9. 9.09.1 Kyle, K. (1999). The Politics of the Independence of Kenya. Palgrave Macmillan.
  10. 10.010.110.2 Ogiek Chronology 1991-2001. (2001, January 1). Forest Peoples Programme. Retrieved from http://www.forestpeoples.org/en/region/kenya/publication/2010/ogiek-chronology-1991-2001
  11. 11.011.1 Case Summary of the Ogiek Case. (2012, June). African Court on Human and People's Rights.
  12. African Commission on Human and People’s Rights v. Republic of Kenya: Judgment document. (2017, May 26). African Union: African Court on Human and People's Rights.
  13. Minority Rights International Group. (2017). African Court Delivers Landmark Judgment on Ogiek Land Rights Case Against Kenyan Government. Cultural Survival.
  14. Kenya: Guaranteeing Ogiek rights. (2016, November 14). Minority Rights Group International.
  15. Ogiek of Kenya win landmark land rights case. (2017). Forest Peoples Programme.
  16. 16.016.116.2 Micheli, I. (2014). The Ogiek of the Mau Forest: Reasoning between identity andsurvival. La Ricerca Folklorica, (69), 189-204.
  17. 17.017.1 Oluoch, F. (2018). Ogiek face new eviction threats. The East African.
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