KENYA: Ogiek Hunters And Gatherers Win Historic Case Against The Kenyan Government

Following today’s 26/05/2017 ruling by the African Court on Human and Peoples Rights that the Kenyan government violated the rights of the Indigenous Ogiek people when it evicted them from their land, Muthoni Wanyeki, Amnesty International’s Regional Director for East Africa, the Horn and the Great Lakes, said:

Today’s ruling is a historic victory for the Ogiek community, and gives hope to all Indigenous peoples everywhere.

The Kenyan government must now implement the ruling and let the Ogiek live freely on their ancestral land.

In this one ruling, the court has both affirmed the Ogiek’s right to live freely on their ancestral land, and proved to the continent that regional justice mechanisms work.

But a ruling is not enough, it must be respected. The Kenyan government must now implement the ruling and let the Ogiek live freely on their ancestral land.

The Ogiek, who live mostly in Kenya’s Mau and Mt Elgon forests, are a hunter-gatherer community. They have fought for a long time in the national courts, and now at the African Court, to live on their land of their ancestors, but the government has routinely subjected them to arbitrarily evictions citing the need to conserve the environment, claims the court rejected.

The case was initially lodged by Ogiek Peoples’ Development Programme, Minority Rights Group and the Centre for Minority Rights Development (CEMIRIDE) at the African Commission on Human and Peoples’ Rights, before being referred by the Commission to the Court in 2012.

Kenya's Ogiek, an indigenous minority of hunters and gatherers, have won a historic case against the Kenyan government, close to a decade after they began their legal battle.

The African Court on Human and People's Rights, a continental court established in 2006 by African countries, on May 26 delivered its verdict in Arusha, Tanzania - ruling in favour of the Ogiek and recognising their right to Kenya's Mau Forest, as their ancestral home, and their role in protecting it.

The court ruled that the Kenyan government had violated seven articles of the African Charter on Human and People's Rights, of which Kenya is a signatory, and is intended to protect basic freedoms and human rights.

The verdict recognises the Ogiek's indigenous status and their right to reparations from the Kenyan government for the suffering they have endured through forcible evictions. It recognises the Ogiek's "strong attachment to the forest", their legal right to live on the forest land, their freedom to practice their traditions and deemed evictions to be disproportionate to conservation aims. The Kenyan government in court said it accepted the judgment.

The room has never been so full, it was packed to the brink, said Lucy Claridge, legal director of Minority Rights Group International (MRG), a campaign group working closely with the Ogiek, who has been working on the case since April 2010.

Speaking from Arusha, Claridge said around 75 Ogiek attended the court hearing, dressed in their traditional clothes. Following the victorious judgment, the Ogiek broke out in celebratory singing and dancing.

It is an unprecedented legal victory for an indigenous people in Africa. The ruling marks the first judgment from the highest institutional human rights body in Africa to favour the cause of indigenous peoples.

This sends a message to governments of the standards around indigenous people's rights in Africa, says Claridge. It's a very clear message for governments that they need to respect indigenous people's rights.

The victory could set a precedent for similar cases across the continent.

I know that the case also gives hope to other indigenous peoples, said Daniel Kobei, executive director of Ogiek Peoples' Development Program (OPDP), an NGO which advocates for the community's rights, in an MRG press release.

The Ogiek have dwelled in Mau Forest for generations. This small community of about 35,000, which lives in and around the forest complex spanning about 4,000 hectares and five counties in the country's west, claim to have suffered injustices, harassment, and evictions at the hands of successive governments and more powerful groups with an interest in the forest's resources.

We saw different people take our land, Lebidas Lesingo, a 78-year-old Ogiek elder, said in February.

The Ogiek, sometimes referred to as "Kenya's castaways", have always maintained they have a right to this land. Our fight has never changed, Lesingo said.

Mau Forest is the source of the Ogiek's traditional livelihoods and is synonymous with their cultural and religious identity. They hunt game such as hyrax and bushbucks and collect nuts and berries and harvest honey, which they use for healing and nutritional purposes. They use the forest's indigenous plants as medicine, such as the bark of the Kopukeriet tree.

Mau Forest is also the site of Kenya's biggest water catchment and the source of seven rivers. It is also the largest closed-canopy forest in Kenya, thus seen by some as a lucrative source of timber.

Since the early 20th century, the tribe's way of life has come under threat. The first forcible evictions date back to 1911 after a deal between the Maasai community, one of Kenya's tribes, and colonialists culminated in the former losing land to the white settlers.

It was lost on the colonial authorities that the land signed over by the Maasai was Ogiek land, writes Joseph Sang, an Ogiek activist, in a 2001 report for the advocacy organisation Forest Peoples Programme.

That was a problem we inherited from our elders, Sang says.

Governments since independence in 1963 have expelled Ogiek from the forest, citing conservation reasons such as re-planting. But the Ogiek say the forest is being destroyed.

The forest has turned into a plantation forest, where fast-growing trees are planted for commercial work, says Kobei, adding that indigenous plants are disappearing.

There is illegal logging, illegal settlements and encroaching, says Sang, the activist, who is a paralegal at Namati International, an international NGO working at the grassroots level to help people understand, employ and shape the laws affecting them.

The Ogiek allege that they are being forcibly evicted by land grabbers and illegal loggers, while corrupt authorities stand by. Their homes have been ransacked and burned to the ground.

Sang says evictions have displaced and dispersed their people, who respect and revere the forest. The term Ogiek literally means "carer of all plants and wild animals".

The forest is what we call home, Sang says when asked why it is so important to the Ogiek.

When you talk to them, what really comes across is that they want their land back because it's part of their livelihood, it defines them, says Lucy Claridge, legal director at MRG.

It might be difficult to understand, but the forest is part of them, it is where they feel home, it's where they feel Ogiek.

In 2008, the Kenyan government began a campaign to evict inhabitants of the forest.

The following year, in a David against Goliath scenario, the Ogiek filed a case against the Kenyan government. They claimed that in October 2009, the Kenya Forest Service (KFS), an agency of the Kenyan government, gave the Ogiek and other people living in Mau Forest a 30-day eviction notice on the grounds that they lived in a reserved water catchment zone.

They reject that this decision was a conservation attempt and alleged a number of violations of the African Charter.

The Ogiek demanded the halting of evictions, and that their ancestral land in the Mau Forest be legally recognised as theirs. They are also asked for compensation for loss of property and natural resources, and freedom to practice their culture and religion, among other things.

The OPDP and MRG, with Claridge as the lead lawyer, brought this case to the court. It is the first time the African Court on Human and People's Rights has heard a case from an indigenous group.

In 2013, the court ruled that the Kenyan government ban all land transactions in Mau Forest, and suspend evictions until it reaches a final verdict.

Despite the ruling four years ago, the Ogiek claim they continued to suffer abuses. In June last year, police and KFS rangers forcibly evicted Ogiek families in Mount Elgon and burned down their homes.

In March last year, Stephen Munyereri, an Ogiek elder in his 60s, was salvaging belongings from the burnt-out remains of his son's property when he was shot and killed.

Just days earlier, land grabbers had burned down his son's house.

Munyereri's death came at a time when the Ogiek had been involved in land disputes with members of a neighbouring tribe in the Ngongongeri area of western Kenya. More than 100 Ogiek families had been evicted from their homes, and 15 houses were destroyed.

While Munyereri was at the property, a man claiming to be the landowner confronted him. According to neighbours, an argument over land ownership escalated and the man shot the Ogiek elder, who was unarmed. The culprit was arrested but released on bond that same day.

Kobei, of OPDP, says Munyereri's family is still waiting for a trial, which has already been postponed several times.

How would you feel seeing somebody who has killed your father moving around? Kobei asks.

MRG have demanded a proper investigation.

Before we used to experience eviction, but nobody had been killed, Kobei says.

The Ogiek have in the past turned to the courts to address their grievances such as land grabs, without much success.

Some cases dated back to 1997 and were determined in 2014, Kobei says. This length of time is indeed an insult to human rights especially in a community where mass violation has been experienced.

In a fast-changing world, the Ogieks have had to adapt to modern life, and consequently have already lost many of their traditions, such as those related to medicines or coming of age ceremonies connected to the forest.

If they are not allowed to have their land back then, as a people, they are threatened with extinction, Claridge said in an interview before today's verdict.

Sang, who is in his 40s, has worked towards securing the Ogiek's indigenous and land rights for decades.

He said that his activism has taken him around the world with different organisations to conferences on indigenous rights and he has been inspired by groups such as New Zealand's Maoris.

Once, while at a conference in the Philippines as coordinator of the Ogiek Welfare Council, an NGO working towards Ogiek rights until it closed in 2005, he saw farmers mapping their land.

I thought, how can we reclaim our land using this method, he said.

Using aerial photographs and elder knowledge, he says the Ogiek mapped their land in eastern Mau by 2010.

Now we had evidence of the land we were claiming, said Francis Lesingo, an Ogiek elder from eastern Mau.

Although mapping one area wasn't enough to support a comprehensive land claim, Lesingo believes the exercise was important for his community.

When the elders came together and mapped their land across all the clans, they finally realised they were one, he said.

Namati International is currently supporting OPDP in finding ways to expand the mapping exercise to cover all Ogiek land.

The Ogiek have tried to safeguard their culture by passing traditional knowledge on to younger generations. The OPDP also organises a cultural festival every year in Nakuru, but the months change, depending on how successful they are at fundraising.

Nevertheless, experts say these efforts are not enough for the Ogiek's cultural survival.

It's dying out. It has already died out, said Claridge of Ogiek language and traditions.

The Ogiek were initially expecting a verdict from the African Court in March, but the hearing was delayed, according to Claridge, because the judges needed more time to deliberate on a case with such wide-reaching ramifications.

This case is of fundamental importance for indigenous peoples in Africa, and particularly in the context of the continent-wide conflicts we are seeing between communities, sparked by pressures over land and resources, said Claridge in a press release on May 22.

Speaking ahead of the May 26 ruling, John Samorai, programme officer at the OPDP said: Many of us will be able to see our fate determined. Then he had added, with pride: Whatever the verdict, we will have fought our battle.

With general elections taking place in August, Claridge said today: The Kenyan government needs to honour the court decision immediately. It cannot continue to give out land to carry political favour, it needs to respect Ogiek land rights, it needs to respect the distinct culture and identity and it needs to do so now.

Kobei said this evening that he is optimistic that the current or incoming government will honour the court verdict.

This is a historic moment for the Ogiek, we have seen success for the first time, he said. We expect the government of Kenya to respect the decision and give Ogiek recognition.

Mau Forest is a forest complex in the Rift Valley of Kenya. It is the largest indigenous montane forest in East Africa. The Mau Forest complex has an area of 273,300 hectares (675,000 acres).

The forest area has some of the highest rainfall rates in Kenya.Mau Forest is the largest water catchment area in Kenya.

Numerous rivers originate from the forest, including Southern Ewaso Ng'iro, Sondu River, Mara River and Njoro River. These rivers feed Lake Victoria, Lake Nakuru and Lake Natron.Western slopes of the Mau Escarpment are covered by Mau Forest.

Typical tree species in Mau Forest include Pouteria adolfi-friedericii, Strombosia scheffleri and Polyscias kikuyuensis. Olea capensis, Prunus africana, Albizia gummifera and Podocarpus latifolius are also found there.

Endemic bird species in the area include Hartlaub's turaco (Tauraco hartlaubi), Hunter's cisticola (Cisticola hunteri) and Jackson's francolin

The forest has been traditionally inhabited by Ogiek people, whose hunter-gatherer lifestyle is sustainable. However, due to immigration from other ethnic groups, large parts of the forest area have been cleared for settlement. Human activities, especially logging, have led to deforestation of more than a quarter of the area since 1973.

In 2008, the inauguration of the Sondu-Miriu hydro power plant was postponed due to low water levels, that are said to be resulting from the destruction of Mau Forest.

In summer 2008 there has was a political row over resettlement of people, who had been allocated land there during the KANU era during the 1980s and 1990s. Some of the settlers are famed politicians, like Franklin Bett and Zakayo Cheruiyot.

In 2004 Paul Ndung’u released "Ndungu Report", which listed these land allocations, terming them illegal and recommended revocation of them. Some evictions were implemented between 2004 and 2006, without a resettlement scheme.

On July 15, 2008, Prime minister Raila Odinga issued an order that these evictions to be implemented by October 2008 in order to protect the forest from destruction. The order has been opposed by number of Rift Valley area politicians, led by Isaac Ruto.

Some politicians, led by Vice President William Ruto, proposed that if evictions are implemented, the government should allocate them land elsewhere.

The evictions began in November 2009. Some prominent people are set to lose their land, including family members of former president Daniel arap Moi. Also under threat is the Kiptagich Tea Factory owned by former president Moi.