Kenya - Hunter-gatherers
Updated: November 2012
Ethnicity: Several hunter-gather groups have been grouped together under derogatory term Dorobo (meaning 'primitive' in the 1989 Kenya Population Census) amounting to an estimated 24,363 (0.11%). However, dorobo comprise of the Ogiek, the Sengwer and the Yaaku. There are an estimated 78,691 Ogiek in Kenya. Other communities include the Boni-Sanye 10,891 (0.05%); Elmolo 3,600 (0.02), (Kenya Population Census, 1989)
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, jeopardizing 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.
From the beginning of the colonial era, hunter-gatherers were routinely dispossessed of their highland savvanahs, 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 categorizes 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 marginalized 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 lost 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. In 2005, 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 marginalized Kenyans, as well as a bill of rights and the devolution of power. Hunter-gather 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.
When the UN Special Rapporteur on the Rights of Indigenous People, Rodolfo Stavenhagen, visited Kenya in December 2006, the government attempted to continue its policy of non-recognition of indigenous peoples by claiming that all Kenyans are indigenous. In early 2007, however, the government entered into an agreement with the World Bank on funding for a project to rehabilitate the forests of the Sengwer and Ogiek. The potential benefits stemming from the project remain to be seen, but the agreement represented a milestone in government recognition for these peoples.
Throughout 2007, the Ogiek found themselves caught up in the conflict around Mount Elgon in Western Kenya, as rival Sabaot sub-clans fought for control of the land in the area. The shadowy SLDF miltia reportedly attacked the Ogiek living around Mount Elgon. Ogiek activists reported that about 20 had been killed. Attacks accelerated after the disputed 2007 elections, when violence gripped the country, with militias taking advantage of the disorder to grab land and resources. Ogiek took refuge in the forests of Chepkitale, and found it hard to venture out, suffering food shortages. Ogiek families were displaced and 11 houses were destroyed in the hills close to Lake Nakuru. Ogiek homeless were given shelter by their extended family members – Ogiek cultural traditions mean that they help each other out in times of hardship. But unlike Kenyans, who fled to IDP camps, they have not received any official help – leaving many facing months of hardship.
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 where allocated, none went to the hunter-gatherer communities. The Ogiek have, however, been encouraged by the new attempts to get the ‘settler’ communities – which they claim have stolen their traditional territory – expelled from the Mau forest. The destruction of this precious woodland, cleared by loggers and small-scale farmers, has led to serious depletion of a vital water catchment area. The ODM wing of the power-sharing government – led by prime-minister Raila Odinga – is championing the renewed efforts to protect the forest.
In among the election turmoil and the political drama being played out in Nairobi, the desperate plight of the Boni community would have gone unnoticed – until the Kenyan national daily Standard newspaper and the KTN television channel ran a special feature. Deprived of their ancestral lands, this hunter-gatherer 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 marginalized 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.
Centre for Minority Rights Development, Minority Rights Group International and Ogiek Peoples Development Programme (on behalf of the Ogiek Community) v Kenya
In June and November 2009, the MRG legal cases programme supported OPDP in the preparation of a detailed advocacy memo, which reached key domestic and international actors and assisted in galvanising the community and in early 2010, the Ogiek were informed that the most recent round of evictions would not proceed. We also lobbied various UN bodies on the issue, engaging successfully with the UN Special Rapporteur on Indigenous Peoples – who subsequently included a large section about the proposed evictions in his annual report (2010) to the UN Human Rights Council.
However, the situation remained precarious so, buoyed up by the successful outcome of the Kenya Endorois case, the Ogiek community (in consultation with Korir Sing’oei of CEMIRIDE, who also represented the Endorois) decided to pursue an international legal remedy. A vast number of domestic cases had already been lodged in the Kenyan courts challenging these evictions but these have largely been either unsuccessful, or remain pending before the courts due to lack of engagement by the Government and lack of progress within Kenya’s notoriously corrupt judicial system. The Ogiek community therefore lodged a case at the ACHPR in November 2009, challenging the Government’s gazetting and subsequent de-gazetting and excision of the Ogiek community’s land, their unlawful allocation of this land to other non-Ogiek individuals, and continuous threats of further eviction. In April 2010, MRG became involved in the case, conducting an extensive evidence gathering trip and visits to the community in June, together with a community consultation meeting and subsequently leading in the drafting of admissibility submissions which were filed in August 2010.
At the 11th extraordinary session of the Commission in March 2012, the Commission took the decision to refer the matter to the African Court on Human and Peoples Rights (“the Court”) on the basis that it evinced serious and mass human rights violations. (This was despite no decision having been taken on admissibility by the Commission). This will be the first opportunity for the Court to deal with a case involving indigenous peoples’ rights. It is also only the second case before the Court which started life as an individual communication before the Commission. At the time of writing, the Court is in session and a decision is expected as to whether the application submitted by the Commission to the Court is complete and in accordance with the Court’s rules such that the Court will be seized of the matter. Once it is seized, the Court will send a copy of the application to the Kenyan government giving it 60 days to present its submissions, after which the Commission will have a further 30 days to provide a response. While the original complainants before the Commission are no longer strictly a party before the Court proceedings (the case now being the Commission versus Kenya), we will be seeking permission to be heard (as provided for under the Court rules) and so to make full written submissions, expanding on the rather limited nature of the Commission’s referral. If things proceed to the above timetable, the case could be considered at the Court’s March or June 2013 sessions. (However, practice to date, suggests that the timetable might well slip). Given the importance of the case not only for the Ogiek but also other indigenous peoples across Africa, we will be applying for the case to be considered at a public hearing (not automatic) to ensure the Court has the benefit of full legal argument and direct oral evidence. (MRG legal cases staff had the opportunity of directly visiting the Court and speaking to the Registrar so as to express MRG’s clear interest in the case during a visit to Arusha, Tanzania in August 2012).
In May 2012, MRG legal cases staff visited the Ogiek of Mau to provide an update on the regional proceedings, in particular explaining the significance and impact of the referral of the case to the Court. During this visit various areas of the Mau Forest complex not visited in previous MRG visits were visited and statements taken. However, it is apparent that given the scattered nature of the Ogiek throughout the Mau Forest, the different experiences faced by different local groups and the lack of any central leadership structure, the situation is factually complex and more time and resources are required to enable more evidence gathering so as to build up as comprehensive a picture of the situation as possible for the legal proceedings. A further visit was conducted by MRG legal staff in August 2012, followed by a visit on a pro-bono basis in September 2013 and a further, long visit is scheduled for October.
There is an outstanding issue as to whether the Ogiek of Mt Elgon were part of the original communication to the Commission. The Commission claims not and has refused to extend the provisional measures it granted to benefit them and has made it clear that its referral to the Court only relates to the Ogiek of the Mau. MRG is currently in discussions with the Ogiek of Mt Elgon, who at an organisational and daily communication level are quite separate from the Ogiek of the Mau, as to whether they would wish for the Court to be petitioned for them to be included as part of the case.
Alongside the direct work on the legal case before the African Commission, MRG staff have provided training to members of the Ogiek community. This included assisting at a workshop organised by the partner (ODPD) in April 2011 whose emphasis was on female participants and where the case and the mandate of the African Commission were explained; minorities and indigenous peoples’ rights were addressed; and women’s rights under the new Kenyan Constitution were examined.