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Illegal eviction of Ogiek indigenous community from ancestral home in Mau Forest, Kenya

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Illegal eviction of Ogiek indigenous community from ancestral home in Mau Forest, Kenya

Dear Sir/Madam

Illegal eviction of Ogiek indigenous community from ancestral home in Mau Forest, Kenya

Minority Rights Group International (MRG) is a non-governmental organisation working to secure the rights of ethnic, religious and linguistic minorities and indigenous peoples worldwide, and to promote cooperation and understanding between communities. Over 40 years, MRG has developed extensive experience in the fields of indigenous rights, property rights and human rights law.

We are writing to request your urgent intervention with the Kenyan Government regarding the situation of the Ogiek people, an indigenous community living in the Mau Forest Complex, Kenya, who face immediate and forcible eviction by the Kenyan Government from their ancestral home, in serious violation of relevant international human rights obligations. The information below has been supplied to us by our partner, the Ogiek Peoples Development Program (‘OPDP’), whose contact details are as follows:

Ogiek Peoples' Development Program (OPDP)
Nyamakoroto Hse, 2nd Floor Rm 210,
Biashara Street, Nakuru P.O Box 424-20115 Egerton,
Kenya
Tel: 00 254-51-2213803/ 00 254-20-2045167/ 00 254-722 433 757
web. www.forestguardian.net
email: opdp2001@yahoo.com
Contact: Daniel Kobei, Executive Director

Background

The Ogiek indigenous community is a hunter gatherer group who depend on the forest for food, medicine, shelter and preservation of their culture. They are foresters and conservators of nature, and so live in places where trees, birds and wild animals provide them with psychological comfort. The Ogiek have a population of about 20,000 people throughout Kenya inhabiting mainly the Mau Forest Complex in the Great Rift Valley Province, and Mount Elgon. Approximately 15,000 Ogiek live in the Mau Forest Complex, which they have occupied for at least 150 years. The Mau is divided into 22 areas, with Ogiek inhabiting 12 of these (Marishooni, Nesuit, Saino, Sururu, Kiptungo, Sogoo, Nkaroni, Tinet, Sasimwani, Oltpirik, Nkareta and Olmekenyu).

However, in common with most indigenous people, the Ogiek have no title deeds evidencing their propery rights over the land. Both international and domestic courts have recognised that indigenous groups have a specific form of land tenure that creates a particular set of problems. Common problems faced by indigenous groups include the lack of “formal” title recognition of their historic territories, the failure of domestic legal systems to acknowledge communal property rights, and the claiming of formal legal title to indigenous land by the colonial authorities. The current leading international case on this issue, The Mayagna (Sumo) Awas Tingni v Nicaragua before the Inter-American Court of Human Rights , has held that as a result of customary practices, possession of the land should suffice for indigenous communities lacking real title to obtain official recognition of that property. Articles 26 and 28 of the 2007 United Nations Declaration on the Rights of Indigenous Peoples sets out these rights clearly, providing not only that indigenous peoples have the right to lands, territories and resources that they have “traditionally owned, occupied or otherwise used or acquired” but that they have the right to redress, including restitution or fair and equitable compensation for such lands that have been taken without their free, prior and informed consent. MRG therefore believes that the Ogiek are the legal owners of the land in question.

The Kenyan Government’s eviction plans

In July 2008, the Kenyan Government launched an aggressive campaign to evict people living in the Mau Forest Complex that it deems to be living there “illegally”, including the Ogiek, ostensibly in order to protect Kenya’s forests. The action was taken in response to concern about the loss of forest cover in Kenya and its wide-ranging negative impacts, including drought, loss of livelihood and reduced access to basic environmental services such as clean water.

The Mau Forest is one of five main water catchment areas in Kenya, feeding Lakes Victoria, Nakuru and Natron and supporting the ecosystems and livelihoods in the Maasai Mara National Park and the Serengeti. However, according to the OPDP and the international NGO Survival International, based on evidence from satellite imaging, the main cause of loss of forest cover is the more recent encroachment (over the past 20 to 30 years) of purely commercial interests, including logging and the clearing of forests for human settlement and agriculture, not the activities of the Ogiek and other indigenous people living there. In fact the Ogiek’s main source of livelihood – beekeeping – is beneficial to forest preservation and ecological diversity. Whilst the conservation goals of the plan are laudable, MRG are concerned that this blanket approach to resettlement fails to recognise or take into account the Ogiek’s ancestral rights over the land in question, and therefore is grossly disproportionate.

On 15 July 2008, the Kenyan Government established a taskforce who are charged with developing and implementing a plan to preserve the Mau Forest ecosystem, and which recommended the evictions. Although two of the taskforce’s 22 members were Ogiek, and despite considerable lobbying and advocacy work by OPDP and others aimed at mobilising the international and domestic community to encourage Kenya to respect their human rights, the evictions are still due to go ahead.

An official Government statement later claimed that although the Ogiek would be removed from the Mau, they would then allowed to return. The Ogiek firmly believe that this statement is being used as a ploy to remove them from their homes, following which obstacles and bureaucracy will be put in their way to stop them returning. The Ogiek have reason to doubt the Government’s word given the poor record on promises to resettle those displaced by the election violence. It is also very likely that commercial interests will lobby hard to prevent their return so they can carry on with their logging unimpeded.

On 19 October 2009, the Mau Forest Complex Secretariat Chair Hassan Noor released the proposed eviction timetable. This sets out a total of 24,000 hectares to be “recovered” by 31 December 2009, with service of eviction notices starting on 26 October 2009. The eviction will take place in 5 phases, starting with Marishooni and Likia, and then moving to southwestern Mau (see attached article from Nation newspaper dated 24 October 2009). Marishooni is the main area of habitation of the Ogiek, so it would appear that their community is the first to be targeted with eviction. Only those with title deeds will be compensated: this therefore does not include the Ogiek.

It is unclear where the Ogiek will be resettled (temporarily or permanently) but it is clear that in Kenya there is very little in the way of fertile, empty land that would suit them. The Ogiek are also used to the cool mountain climate of the Mau Forest Complex and do not have resistance to the diseases which are prevalent in hotter more humid or drier areas of Kenya. As a result, the removal and eviction of the Ogiek from their ancestral environment is likely to result in the death of their culture, language, livelihood and therefore existence, which is ultimately bound to their habitation in the Mau Forest Complex. It also represents a serious violation of Kenya’s international human rights obligations.

Violation of Kenya’s international human rights obligations

MRG submits that the actions of the Government of Kenya in forcibly evicting over 15,000 Ogiek from their ancestral homes violates a number of key human rights obligations contained in international instruments to which Kenya is a State Party.

These include Article 11(1) of the International Covenant on Economic and Social Rights, which provides for the right to adequate housing; Articles 14, 16 and 18 combined of the African Charter on Human and Peoples’ Rights, which have been interpreted by the African Commission as incorporating the right to housing ; and Article 17 of the International Covenant on Civil and Political Rights, which prevents forced eviction as part of the right not to be subjected to arbitrary or unlawful interference with one’s privacy, family and home.

Further, the UN Committee on Economic, Social and Cultural Rights has spefically stated in General Comment No 7 that evictions can only proceed where they are fully “justified”, “carried out in strict compliance with the relevant provisions of international human rights law and in accordance with the general principles of reasonableness and proportionality” with “appropriate procedural protection and due process” . The General Comment also imposes obligations to provide alternative housing, resettlement or access to productive land.

As stated above, whilst the goal of forest protection is legitimate, the means by which the Government of Kenya seeks to achieve it is not. Protection of the forest and protection of human rights are not mutually exclusive: evictions should only be seen as a last resort, where necessary, and always in a manner compatible with human rights law.

Request for urgent action

In light of the above, MRG urgently requests the UN Special Rapporteurs to engage with the Government of Kenya and request the following:

1. The immediate end to the practice of forced evictions of the Ogiek people, and others, from the Mau Forest Complex;
2. Review its eviction procedure in relation to the Mau Forest Complex and ensure that any future eviction conforms with international human rights standards, including but not limited to those set out above;
3. Ensure that Ogiek victims who have already suffered forced eviction are allowed to return to their land.

Please do not hestitate to contact us should you require any further information.

Yours faithfully

Lucy Claridge
Head of Law
+44 20 7422 4223
+44 20 7422 4201
lucy.claridge@mrgmail.org
www.minorityrights.org

Filed Under: Uncategorised
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