Minority Rights Group International (MRG) Deputy Director, Claire Thomas, writes this opinion piece for the Thomson Reuters News Foundation.+ LEARN MORE
The 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.
From the beginning of the colonial era, hunter-gatherers were routinely dispossessed of their highland savannahs, 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 continued to lose 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.
The same year, 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-gatherer 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.
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 were, however, encouraged by the new attempts to get the ‘settler’ communities – which they claimed had stolen their traditional territory – expelled from the Mau forest. The destruction of this precious woodland, cleared by loggers and small-scale farmers, led to serious depletion of a vital water catchment area.
The situation of the Ogiek has in recent years attracted international attention due to the community’s protracted litigation against the Kenyan government following its issuance of a 30-day eviction notice to the Ogiek in the Mau Forest, demanding that they leave the forest. Concerned that this was a perpetuation of the historical land injustices already suffered and having failed to resolve these injustices through repeated national litigation and advocacy efforts, the Ogiek decided to lodge a case against their government before the Commission, with the assistance of Minority Rights Group International, Ogiek Peoples’ Development Programme and CEMIRIDE. In November 2009, the Commission, citing the far-reaching implications on the political, social and economic survival of the Ogiek community and the potential irreparable harm if the eviction notice was actioned, issued an Order for Provisional Measures requesting the government to suspend implementation of the eviction notice. The Ogiek were not evicted on that occasion, but their precarious situation continued, and in the years that followed the community were obliged to take further legal action that again concluded that Kenyan authorities suspend its activities. However, evictions, harassment and intimidation of Ogiek continued, including a violent eviction of approximately 1,000 Ogiek and police intimidation in March 2016.
In May 2017, the African Court of Human and Peoples’ Rights ruled in favour of the Ogiek regarding forced evictions in the Mau Forest. This outcome meant that the Court recognized the role that Ogiek and other indigenous groups in Africa play as guardians of local ecosystems, and in conserving and protecting land and natural resources. This decision was the first time, in over a decade of operation, that the African Court ruled in favour of an indigenous people. By judging that through a persistent denial of Ogiek land rights, their religious and associated cultural and hunter-gatherer practices were also violated, the Court has sent a clear message to African governments that they must respect the rights of indigenous peoples.
However, in practice the provisions of the ruling have yet to be implemented, due in part to the piecemeal and inadequate steps taken to achieve change. Though the Kenyan government gazetted a Task Force to facilitate implementation in November 2017, it failed to consult with the community or name any Ogiek representatives to the Task Force. Its mandate ultimately expired without the Task Force issuing any recommendations on implementation, in part because it lacked the budget to adequately engage with and consult the affected communities. One year later, the government gazetted a second Task Force to facilitate enforcement. It expanded the Task Force’s mandate to include recommendations not only on implementation, but also on enhancing the participation of indigenous communities in sustainable forest management. Two years on from the ruling, however, MRG reported that none of the reforms had yet to be put in place.
The situation has deteriorated significantly since then, particularly in the months following the outbreak of Covid-19. In July 2020, the Kenya Forest Service (KFS) engaging in a large-scale and deliberate campaign to remove Ogiek communities from their lands in the Mau Forest, with hundreds of Ogiek evicted and rendered homeless. The sudden and unannounced nature of these evictions, in clear violation of the 2017 ruling, traumatised victims who were sheltering in their homes in the midst of the Covid-19 pandemic and the rainy season. Some members of the community were injured and hundreds of Ogiek houses, structures and fences have been demolished or burned to the ground. By 11 July, KFS has ‘reclaimed‘ 45,000 hectares of Ogiek ancestral land in Eastern Mau. The areas are all in locations that the Ogiek claimed in their case and the African Court adjudicated in their favour. Astonishingly, Kenyan Government officials maintained that their actions comply with the 2017 judgment.
A way forward centered on making the Ogiek peoples’ customary rights to their ancestral lands effective, as required by the 2017 judgment and Kenyan law, is possible. However, it requires the political will to do so. While the Ogiek community continue to advocate for its implementation, their situation is becoming increasingly desperate, as activists fear that these latest evictions are just the beginning of a concerted plan to remove the Ogiek from their ancestral lands before the 2017 judgment is implemented.
Updated December 2021
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