Make your own free website on Tripod.com



Material above this line is advertising not related to and not endorsed by this site.
Online reproduction of an important historical reference FreeAfrica.Tripod.com/ogiekland/
Home / The Book / Contents / About this Site

This Web page contains the entire text of the book.
If you are on a slow Internet connection, it is probably better to view the book in separate chapter Web pages.

Ogiek Land Cases
and
Historical Injustices

1902 – 2004

“Your Resources, Our Relations”

Towett J. Kimaiyo

Vol. 1


Published at Egerton, Nakuru
© 2004, Ogiek Welfare Council
     P.O. Box 12069
     Nakuru, Kenya
© Towett J. Kimaiyo

Citations of this book may be made freely but copyright is vested in the author. Opinions expressed here are those of the authors and are endorsed by Ogiek Welfare Council, which is responsible for the contents of this publication.

Support by:
     Ford Foundation, East and Central African office, Nairobi
     International Working Group for Indigenous Affairs, Denmark


Contents

Images of front cover, back cover
 
 Contents See also Detailed Table of Contents
 Dedication
 Acknowledgement
 Abbreviations
Executive Summary
 
Chapter 1: Introduction
Chapter 2: Background List of Sections
Chapter 3: The Economy
Chapter 4: Constitution
Chapter 5: Historical Injustices List of Sections
Chapter 6: Kenya Land Policy since 1900 List of Sections
Chapter 7: Dispossession List of Sections
Chapter 8: The Reality List of Sections
Chapter 9: The Struggle List of Sections
Chapter 10: The Aftermath List of Sections
Chapter 11: The Future List of Sections
Chapter 12: Indigenous Peoples And Land List of Sections
 
Appendices List of Appendices
 Tribute
 Bibliography
 Genealogy
 Back Cover


Dedication

     This book is dedicated to the entire Ogiek community and their patriotic leaders for choosing to oppose the oppressive land laws and the suppressive conservational policies and practices. The successive regimes on executing their duties, orchestrated the historical injustices that were to follow as manifested in their official laws and policies. The incidence of November 18, 1995, where the Ogiek peaceful demonstrators were violently dispersed and all avenues of mediation blocked is recorded in history of turning point. The Ogiek heroes of November 12,1996, who at Molo courts resisted the misuse of our penal institutions by the mighty and powerful and fought vigorously, adds the much needed flavour. They later went to parliament with a memorandum titled “Help us live in our ancestral lands and retain our humanity as Kenyans of Ogiek origin” dated 16/7/1996.


Acknowledgement

     The completion of this work has been made possible by the concerted efforts of a number of people and organisations to which I owe my most sincere gratitude. First I would like to thank the Ogiek Welfare Council for providing me with space and opportunity to research and compile this book. I would like to specially acknowledge the intellectual and co-operative peerage of researches on the Ogiek community. The Ogiek Council of Elders, the late Mr. Parsaloi Saitoti Orop Monoso and his age group of Staron Meitubuny, Sigilai Taraya, Ngenywa Chepkobei, Toroigo Nemunge, Ngeiywa Kisato, Kenyinge Ringaso, Sembui Oris, Simon Rana, Mama Tapkelong Monoso, Seriseri Mageei Kimitir and the Ogiek elites Messrs Simon Ngayami, Solomon Kones Tiepogasi, and Daniel Chesot, Kipsang Kilel and Joel Torigo. Others are Lumumba Odenda, Dr. Johnson Masai Changeiywo and Chris Machafu.

     Mwangi Jane Muthoni gets special attention for her tireless efforts in typing and ensuring the contents are updated.

     Finally, I am grateful to the Ford Foundation, East and central Africa office for providing Research financial resources and the International Working Group for Indigenous Affairs (IWGIA Denmark) for providing publication funds.

     The contents of this book are wholly attributed to the author and do not in any way represent the views of the individuals mentioned and institutions acknowledged.


Abbreviations

AD – Anno Domini     The year before our Lord
HIV/AIDS HIV- Human Immune Virus
AIDS-Acquired Immune Deficiency Syndrome
DR Doctor
KIFCON Kenya Indigenous Forest Conservation and Nature Programme
OPNA Ogiek Peoples National Assembly
OWC Ogiek Welfare Council
OM Ogiek term meaning the “setting up of the sun” or “west”
HCCA High Court Civil Application
PFO Provincial Forest Officer
H.E His Excellency
I.D Identity Card
P.C Provincial Commissioner
SRMCC Senior Resident Magistrate Civil Case
IWIGIA International Working Group on Indigenous Affairs
D.C District Commissioner



Executive Summary

     This publication seeks to explore the historical injustices visited against the minority communities particularly on their land rights. In addition, it exposes other communities’ attitude towards these minority groups, which is perpetuated by negative stereotypes, segregation and denial of rights. One such minority group is the Ogiek of the Mau Forest. They have made all efforts at redress and are at present in courts, justice. They have been before the Constitution of Kenya Review Commission and other government formed bodies.

     This report attempts to explore the genesis of the Ogiek land problems and their history. It scrutinises the current much publicised settlement scheme, which has more political bearing than economic. It gives an account of how other communities were evicted from this forest under the pretext of conservation laws, only for the same area to be allocated to the “politically correct” a few years later. However, the Ogiek have not been passive, they have struggled against this historical dispossession, though with little success due to the insensitive laws and policies governing Kenyan land. The remarkable achievement is the avenues taken, which are given sufficient attention.

     The former regimes are on record as having maintained a clear, if unstated, policy to frustrate all efforts by the Ogiek to secure legal protection for their traditional lands, culture, ethnic identity and language.

     The settlement schemes pose a serious threat to the Ogiek existence as an ethnic and cultural entity. The developments that followed, which include clearing of forest, spontaneous and planned settlement and the burning of the indigenous forest cover, has more negative than positive effects. Any challenge to the status quo is seen as a threat to security and thus met with the stiffest resistance by the concerned authorities and the beneficiaries. Proposals for expeditious settlement of Ogiek land cases is viewed suspiciously, and met with stiff resistance by the beneficiaries, whose composition reads like, who is who, in the arena of land grabbing. It includes politicians, land speculators, forestry and provincial administration officials and timber merchants, both briefcase and licensed.

     The many Ogiek land cases pending in court owe to the fact that those who were in power were more concerned with their private needs as opposed to the collective needs of all the citizens. One such case took seven years before being heard. Other cases had rulings that favoured the aggressor. There are also the successive gazette notices by the Minister for Environment and Natural Resources. The former regime was characterised by coercion and repression. With the change of guard, from Kanu to Narc government, things are about to change, although, radical elements of the old order are still very much alive and active.

     The Ogiek community is known for its advocacy and defence of the natural resources being plundered by government and corporations. Presently, nature is more endangered than ever. The gifts of nature are under siege. They strongly believe that by leaders enhancing policies that work against them, then these leaders are at war with mother earth and there can never be peace.

     The settlement scheme outcome is akin to the ethnic cleansing that rocked various parts of the country at the introduction of pluralism, and during the 1992 and 1997 general elections. The need for a close scrutiny of the relationship between the current land adjudication processes in the country, the Presidential Commission of Inquiry into the Origin and causes of Tribal Clashes in the country chaired by the respected retired appellate Judge, Justice Akilano Akiwumi, the other Presidential Commission of inquiry into the Land Law Systems and the possible recommendations, commonly known as the Njonjo Commission and Constitution of Kenya Review Commission chaired by Prof. Yash Pal Ghai. These commissions operated under a hostile environment. The former regime were known for their disrespect for law and were even prepared to overlook both the law and the constitution in order to protect and possibly achieve their political goals.

     The new government is likely to be preoccupied with pleasing the external lenders at the expense of the minority rights. To confirm our fears, a Presidential Land Commission was formed to finalise, what the Njonjo Land Commission left unsettled. Its main focus being on the far reaching recommendations on irregularly and illegally acquired or allocated government land. They might also be interested in showing their expertise at conservation and protection of the already degraded environment while shunning the Ogiek sacrificial contribution in resisting the grabbing of their ancestral lands both by powerful communities and also by the successive regimes through the enactment of laws and policies that work against them. The proposed National Land Commission in the Draft Proposal might be of little help when finally formed, as it might also be tempted to overlook the Ogiek rights and claims.

     All title deeds which were issued within the last decade of Kanu rule and the subsequent land adjudications were tools of entrenching federalism in the country, as the politically correct sought to expand their political domain. The many historical injustices to be investigated by the Truth, Justice and Reconciliation Commission, has its root causes in these institutionalised notions of territorial expansions.

     It is thus no wonder; that any mention or move aimed at authenticating the former transactions is seen from a political angle. Already, threats have been issued to that effect. Tensions have continued to mount as possible nullification of the scheme became visible. The indications that the environmental policies are finding way into our national plan, is evident in the new constitution. The environmental management and co-ordination of 1999 is a pointer of this.

      This research was motivated by the needs of the Ogiek community to draw a parallel between state perception of fighting imaginary enemies, at the pretext of conservational laws and policies and what they said was settlement of deserving cases, which turned out to be contrary.

     The author had the Ogiek customary laws and practices in mind in which land, animal and tree tenures formed its components and the government laws and statutes that deal with land, the political establishment bias to Ogiek rights and the secrets behind the whole resettlement programmes. The simplest harmonious forms of a constitution is found at the community and family level.

     A total of six cases have so far been filed by the Ogiek in separates courts in the Republic of Kenya. Some groups have had their cases secretly withdrawn, or are considering filing. A common factor is that, all Ogiek wherever they are have got no place to call a home. To add insult to injury, they have faced more than 50 criminal cases all instituted by the state and their allies in a bid to silence them from seeking justice for their ancestral lands and way of life.

     Since there is no limit to the time the laws and the constitution review will take, the case of the Ogiek warrants efforts to rectify the obvious constitutional inadequacies. We should restore their rights to their own land. The Kenya government should ensure that its laws conform to international laws if human rights are to be enjoyed by all.

     “Your resources are our relations.”



Chapter 1: Introduction

     The Ogiek have a long history of resistance and struggle aimed at sustaining their unity, identity and cultural distinction. Lately, however, the very existence of the Ogiek as a distinct people has come under concerted threat due to excision of large chunks of land from their forest homes and settlement of purported squatters thereon by the Office of the President in total disregard of Ogiek identity, culture and way of life.

     Throughout the period of colonialism, post-colonialism and the present government, the Ogiek have been perceived as harmful and barbaric. Subsequently, the state continued to sanction efforts to dispossess them of their land besides seeking to exterminate, assimilate and impoverish them through constant evictions and disruption of their traditional lifestyles. To facilitate this, the state has successfully used the provincial administration as agents of conquest through violation of Ogiek civil liberties such as denial of democratic processes, and legal, economic and cultural persecutions. Sadly, the Ogiek are not considered a people in this country under any known legal regime, but are famous to the state as lawless trespassers and poachers. Wherever considered, they are treated as second-class citizens. Notably, in the recently concluded general election in which, the incumbent party lost to a united opposition; the twelve slots provided for in the nominations, which are specifically meant for special vulnerable groups such as the Ogiek and other minorities, were used by the established political parties to reward their cronies. It is sad that our constitution is generous to powerful forces and mean to weaker or lesser mortals.

     Government harassment of the Ogiek slackened only in 1992 as multi-party elections drew near. This is symbolised by the opening up of schools and other favours. The harassment is reminiscent of the 1930s colonial harassment where Ogiek livestock were confiscated, their beehives and barrels destroyed, and the Ogiek subjected to permits and agreements. The enactment of insensitive game and conservation laws, was one sure way of achieving this barbaric goal.

     Livestock diseases were used as the major excuse to justify the colonial harassment and evictions. Today, underdevelopment is being used to justify the government assimilative policies and programmes. While the colonial authorities employed game officers and forestry officials to help carry out their intended acts. Today the provincial administration and development agencies are being used to carry on the proposed activities.

     The early colonial policy first separated the forest from its age-old custodians. After handing out good land to white settlers, the British administration registered Kenyan tribes and settled them on reserves, with the Kalenjin north of Mau, and the Maasai to the south. But in an effort to protect the forest, the Ogiek, then known by their derogatory name “Dorobo” or “Paupers” –were ignored. Chillingly, the colonial power decreed that the “overall solution” to “the Dorobo” problem would be to “evict them from the Mau, and assimilate them into neighbouring tribes.”

     This was meant to extinguish their right to make claims in future. The provincial administration policy was to worsen the Ogiek fate. For instance, the last time one of numerous Ogiek law suites was allowed to go far, was in 1999. First, the court invited the Catholic Church to add to its name to the so called Ogiek appeal against eviction, to protect the churches it had built for them. Then the two judges found that this proved the Ogiek had renounced their ancient traditions and had thereby forfeited their land rights. This was to pave way for the colonial style where the Ogiek were forced out of the forest and branded trespassers. Ever since, lies have been told repeatedly. For instance, the world has been made to believe that the Ogiek were outlawed and periodically evicted, while the true position is that, these were paper evictions. The existence of honey barrels in all the indigenous forests and river banks, and Ogiek villages and graves littered all over the forest, and the many development initiatives by the colonial and independent regimes is itself proof that the said evictions were a ploy to hoodwink the outside world and the settler communities.

     In both approaches, the reality has been that the Ogiek are losing their land and culture. Their identity is being nullified. They are being wiped out of the face and map of Kenya. To achieve this goal, presently, cattle rustling is being encouraged by the ruling authorities, courts are being manipulated to settle political scores while the provincial administration is being used to run the Ogiek affairs politically.

     For instance the Mau-che Settlement Scheme and other settlement schemes in the Mau Complex is a political initiative aimed at accommodating political, economic, religious and cultural interests, of the old order who are positioning themselves as born again saints.

     The term trespass was coined to bar the Ogiek from visiting or even having access to their beehives, sacred sites and their ancestral graves. Today, the Ogiek are said to have no legitimate claims to the above farms.

     Kenya is mostly arid or semi arid and its rivers flow from a handful of wooded catchments areas. The forest regulates the supply, sponging up water during the dry seasons. It is a perilously balanced ecology. Experts say 10% tree cover is needed for a regular water supply; Kenya has only 1.7 % of the forest cover.

     The Mau forest complex supplies Kenya with 40% of its water. The effects of state sponsored deforestation are evident. Five of the six major rivers flowing into the Rift Valley have become seasonal in the past few years running in spate and then drying up. One of the rivers, Makalia has dried up completely. Ironically and tragically, the country is slowly recovering from a three year drought, and about 2.5 million Kenyans live on western food aid. Any lifting of the imposed logging ban would be suicidal. Farming activities have prevented successful regeneration of the newly harvested tree plantations. With each day, more and more Ogiek are encouraged to renounce their traditions, a legal trickery, where degradation is called development, it is time this culture erosion trend is arrested.

     It is for the country’s peace and the community benefit, where these traditionalists are encouraged to live in a perfectly harmonious relationship with their natural environment, and the use of individual title deeds discouraged. They should also be encouraged to adapt reasonable modernity that is environment friendly as well as enable them to follow their traditions. This is best captured in the words of Justice Richard Kuloba and Samuel Oguk in the HCCA 238/99 in Francis Kemei and 9 others vs. the Hon. AG and 3 others. They stated, “So, whilst in his undiluted traditional culture the Ogiek knew their environment best and exploited it in the most conservational manner they have embraced modernity which does not necessarily conserve their environment."



Chapter 2: Background


Profile

     The Ogiek is a community of approximately 10, 000 to 20, 000 people scattered in various parts of East Africa. The majority of whom live in Nakuru district. Others reside in Mt Elgon, Koibatek, Nandi, Samburu and Narok in Western and Rift Valley provinces of Kenya, while another group lives in Tanzania.

     The Ogiek community has a culture and is an entity. They speak the Ogiek language and practice a unique lifestyle common to the forest-dwelling communities. They survive by hunting wild game and gathering fruits and honey. Although most of their ancestral names are similar to those of the Maasai, they strongly disassociate themselves from the Maasai and Kalenjin communities. A good number keep livestock, while others practice peasant farming. Bee keeping and farming form a common factor. Some are good herbalists, while others are skilled in iron making and pottery.

     They have been ethnologically nicknamed “Dorobo,” a term adopted from the Maasai word “Iltorobo,” meaning poor. This is because the Ogiek had no cattle, which to the Maasai is a measure of wealth. The word “Ogiek” literally means the caretaker of all animals and plants.

     They have rejected the cruel name “Dorobo” and accepted the correct one, Ogiek (singular, Ogiot). Other communities have similarly rejected such demeaning names. Notables, are the Kipsigis who refused to be called “Lumbwa,” Tugen - “Kamasia,” Luo - “Kavirondo,” Pokot - “Suk,” Kuria, - “Watende” and the Sengwer - “Cherangany”

     It is believed by the Ogiek and surrounding communities that hunters were the first people to settle in the East African forests. They are regarded as the aborigines together with the Sanye and Wata of Ethiopia as there is no evidence of them having migrated from elsewhere has so far been adduced. Their great affinity with forests has made them successful foresters and environmentalists in the past. Trees, birds and wild animals provide them with the psychological comfort that other people attain by being members of larger communities. Thus, the Ogiek have always lived in areas where there are forests adjacent to plains. During the dry season, they would live in the forests, moving out to the plains during the rainy periods. Guy Yeoman captured the Ogiek uniqueness as follows:

The Dorobo also known as the Ogiek are unique people intimately related to a particular ecosystem. They are incapable of retaining their essential characteristics if that ecosystem is destroyed.
               — Guy Yeoman, "Swara" magazine, 1979

     The Ogiek community is believed to have occupied the coastal regions of East Africa as early as 1000 AD. They moved from these areas following attacks by slave traders and other migrating communities. This was the Ogiek first dispersal. It saw one group moving to Tanzania where they settled among the Hadzabe and Maasai tribes. This first group has been partially assimilated by the Maasai and now speaks a dialect that is very close to Maa and are locally known as Akie. A second group moved to the plains of Laikipia bordering Mt. Kenya forest from where they dispersed to various locations in northern, central and western Kenya.

     By the turn of the century, the Ogiek were to be found in Mt Elgon, Cherangany, Koibatek and Nandi, as well as the Mau forest region, which straddles Nakuru, Narok, Kericho and Bomet districts in the Rift Valley province of Kenya. One group moved from Laikipia and settled in Samburu in northern Kenya.

     The wide dispersal of the Ogiek split them into small defenceless groups prone to attack by other stronger close-knit tribes. In 1856, during the Ilpeles age set, conflict between the Maasai and the Ogiek over land rights in Laikipia and Mau resulted in serious loss of life on both sides causing further depletion of the Ogiek population. Further reduction in the Ogiek population took place in 1876 when a cholera outbreak wiped out sections of the population. The cholera affected man and wild animals.

     Due to their small numbers, the Ogiek have been an easy target for those seeking land on which to farm or graze. They have not been able to speak up and be heard. Everyone has ignored the fact that they too have a right to life. When the British carved areas of Kenya into tribal reserves to be occupied by various tribes, the Ogiek were excluded as they lived in small, scattered groups over a large geographical area and did not appear to have any property.

     The Ogiek’s dominion over his home fell under threat fairly early in time. The colonial government itself orchestrated a systematic campaign of oppression, suppression and brutality. It sent members of the Ogiek community, the aboriginal occupants, away from forestlands. It declared the forestlands crown land, gazetted a notice of this declaration and in effect messed the Ogiek person’s dominion over his land. It went on to pursue them in their newly found places of refuge and hounded them with policies aimed at their marginalisation, ostracism, impoverishment, decimation and ultimate assimilation. Those policies were taking the Ogiek the route of the dinosaur.

     It was during the purported saviour reign that the Ogiek noticed the grave threat to his beloved home. Frequently, there were arbitrary and irregular degazettements without his permission of inexplicably large portions of his God given home. State authorized deforestation escalated as did commercial logging. State sanctioned, crude, wasteful, charcoal burning. Allocation of huge chunks of the forest to politically correct persons for uses for purposes consistent only with its shrinkage.

     The announcement of further degazzettment of huge chunks of the Mau forest ostensibly to settle squatters, but in reality to reward and entice politically important persons, prompted legal action by the Ogiek people against that decision.

     The forest is the hand that feeds the indigenous forest dweller; why would he ever want to bite it. Instead he requires the tree not for logging, slash and burn or wanton felling but to pitch his beehives. To get his medications, his shade, his condiments, and his climate regulator.


Education

     Forty years after independence, the state has not seen the need to come up with educational policies to suit the needs of minority communities. Marginalisation and constant evictions of the Ogiek by the state machinery has disoriented the community, such that they lack access to information on their right to education. The few with little education remain marginalized in all spheres of life. The political establishment has constantly suppressed the voice of the few elites in an effort to instil fear and stop them from championing the community cause. This situation is exacerbated by lack of constitutional recognition of indigenous minority communities. The natural foresters are self-sufficient in their wisdom and knowledge of the environmental utilisation as pharmacies and laboratories.


Health

     For many years, the Ogiek have relied on their traditional medicine for treatment. They have little access to primary health care and the high mortality rate explains why they are few. HIV/AIDS was alien to the Ogiek, but it has now become common among the Ogiek. It was introduced to them during the scramble for their ancestral land. Forests were and still are Ogiek pharmacies and laboratories despite the high magnitudes of destruction. Tuberculosis, highland malaria and typhoid are common diseases.


Socio-Political Rights

     The past and the present governments have institutionalised marginalisation. This creates special problems in the democratic processes because no one is responsible for indigenous minority issues. The present constitution does not recognise indigenous constituencies as distinct. State officials tend to be ignorant of the needs, cultures and conditions of minority communities. For instance, the Ogiek have been marginalised in their own land and have no political representation, hence, they do not participate in decision-making on issues affecting their lives.

     Besides belonging to a particular household, an individual belonged to an extended family, a sub lineage (Kot), a lineage (Kurget), a clan (Oret) and an age set (Ipinta) and an age grade (Ipin). His/her rights, duties, responsibilities and obligations went hand in hand with one’s intelligence, skills, age and gender. These cross cutting relations existed in a constitutional framework, which has come to be known as kinship.

     It was within this kinship structure that one’s rights and duties were defined and articulated. Kinship was not a suffocating ideology that hindered individual progress or excellence. Rather, it was a constitutional framework within which personal, social, economic, marital and political issues and matters were raised and tackled. To a stranger, such as the provincial administrator, it was and still is a bewildering concoction of relationships that ensnared an individual.

     For a long time, our indigenous institutions enabled us to co-exist peacefully. Any wrong doing was seen from a wider perspective and the justice delivery system ensured that, at the end of a dispute resolution, both parties walked away as friends. A possible future revenge was always the guiding principle in our indigenous justice delivery systems.

     For instance, a victim may not want the state imprisoning the son of a neighbour he has seen grow up, just because he stole his cow. He would rather have the clan of the offender give him another cow. Others may want reconciliation and not drawn-out courts battles that destroy enduring social relations.

     This borrowed administrative idea, is what has been hindering the Ogiek collective democracies.

     The origin of the Ogiek is centred on a leader called Parusworm whose three sons were Morisiek, Kurereg and Chorngiwonig, the ancestors of present day Ogiek. They were organisaed in clan leadership of a council of elders whose mandate was the community’s welfare, land and security.

     This council did all the governance including policy formulation, order enformcement and dispute resolution. This was voluntary work, where the leaders worked for the community, besides their private work. The notable leaders are Kopiro who led the last part of the nineteenth century followed by Tiwas, who was assisted by Kererug and Esageri. After him there was Kitango A.Teresit who was confirmed by the colonial authorities on 16/3/1953. He was succeeded by Kurosoi and Sururu Tarimbo Ole Kiwanja and Matingo. This group had the interim youthful elders of Kugo Korented, Staron Meitubuny, Parsaloi Saitoti Orop Monoso and Chumo Mebarne. The other leaders have been discussed separately in this book.



Chapter 3: The Economy

     The indigenous peoples’ economic systems were designed to mediate between the needs of an individual, the collective stability of the nation and the respect and conservation of the environment. The interconnectedness between these three factors, the individual, the community and the environment formed the core values of our political, economic, cultural and religious national systems prior to the British and their successor’s intrusion and interference.

     The Ogiek derive their livelihood mainly from trade comprising the sale of surplus honey, animal products such as hides and skins, iron ore products such as arrow heads, bows, spears and knives, and pot-making. They also generate income from trading in herbs and herbal skills, and to a large extent, from offering services for the initiation of young men into adulthood, mainly within the Maasai community. The Ogiek, who have livestock, have a strong defence system against attacks by wild animals. However, there is a long history of raids on Ogiek animals by pastoralists and agriculturist neighbours. One such raid by the Maasai took place in 1856.

     Biodiversity being a source of cultural development, plants and animals play specific major roles in the cultural evolution of many societies. The complexity and diversity of the traditional socio-economic systems of the hunters can also be measured by the range or diversity of both animal and plant genetic resources utilised. This makes the Ogiek true paracticle adherence of biblical teachings, see Genesis 1 verses 29: “I give you every seed bearing plant on the face of the whole earth and every tree that has fruit with seed. They will be yours for food. And to all the beasts of the earth and all the birds of the air and all the creation that move on the ground, everything tht has the breath of life in it. I give every green plants for food.” By the following the good news in the Holy Scriptures, then the Ogiek are dong justice to nature, and are enforcing God’s order.

     Between 1897 and 1963, the colonialists were out to destroy the Ogiek by defaming their economic livelihoods. They were branded hunters, meaning that they move within the forest and plains in search of wild animals for food. They were also branded honey gatherers instead of bee keepers. Although the Ogiek had very organised animal, land and tree tenure systems, the colonialists described them as people with no fixed abode. Since the colonialists knew the real truth about the Ogiek, they planned to justify their allegations by mistreating the Ogiek, as they felt threatened. Hence, the Ogiek were declared landless and became trespassers and squatters on their ancestral lands in what later became Government Land, originally Crown Land.

     The current structure puts bee keeping under the Ministry of Agriculture, Department of Insects Physiology, wild animals under the Ministry of Environment, Natural Resources and Wildlife. The Ogiek way of life is put under the Ministry of Sports, Culture and Social Services. The demand for Ogiek constitutional rights is treated as ungratefulness; the real position being, they are reduced to mercy seekers from this arrangement.

     Historically, the Ogiek are accepted as hunters and gatherers. This was before the Kenya nation was born in 1895. Our ancestral land has been intact ever since. The Kenya government banned game hunting in 1977. This further increased Ogiek problems with some people viewing Ogiek as lawless poachers. Guy Yeoman has answered this false charge as follows:

How can you poach game on your own ancestral land? It was the introduction by the British of inflexible and insensitive game laws that made the Dorobo a criminal in his native heath.
               — Opcit

     Today, about 10% of Ogiek rely on game meat, about 50% on bee keeping and honey collecting. They hunt gazelles, antelopes and tree hyrax. Honey is sold in the market while livestock is an additional source of income. Some of Ogiek have taken up employment, while others are practicing peasant farming and traditional agriculture. In early 1960s, growing of crops started among a few Ogiek. Guy Yeoman has described the changes in these fortunes as follows:

The above description of the essential qualities of the Dorobo, whilst still valid, must be modified by the severely damaging effects of the (to them) catalytic political, social and above all, ecological areas of the past century. This has combined to restrict their traditional sources of food and compel an increasing dependence on arable cultivation and cattle keeping. The limited areas at their disposal, the absence of secure land tenure, and their own tradition have prevented them from becoming very successful arable farmers.
               — Opcit

     Despite this, while other more established communities occasionally rely on relief food, the Ogiek have been able to sustain themselves without any external assistance. They have been able to lead their normal way of life despite the pressure from hostile quarters and the successive regimes that have institutionalised marginalisation. Being self-sufficient in forest products except for some few irons to make arrow heads, spears and knives. The secret of their skills and expertise lies in their:

     All this is done in a wasted slope of the Great Rift Valley, littered with charred and jugged tree stamps, with islands of lone clumps of cedar. Somehow, the Ogiek manages to get enough food for his family and surplus for the market. The culture of begging and destitution are unheard off in the Ogiek world.



Chapter 4: Constitution

     Our land problems can be traced back to the independence constitution, which made no special provisions to protect the rights of minority communities. Their peculiarities and special needs were ignored.

     The group most affected by this post-independence deficient constitution are the indigenous Ogiek of the larger Mau forest complex. The Mau Forest comprises 70-80% of the total forest area earmarked for excision. The Ogiek have occupied this forest from time immemorial and are customarily entitled to it. Settling squatters on this land will deprive them of their land. It will also lead to their economic and political domination and marginalisation by the larger communities.

     The Mau forest complex is the source of 40% of Kenya’s water. The effects of its deforestation are evident. The government’s forest excisions are suicidal. In the words of Judges Richard Kuloba and Samuel Oguk, "In grappling with our socio-economic, cultural problems and the complex relationship between the environment and good governance, we must not ignore the linkages between landlessness, land tenure, cultural practices and habits, land titles, and natural resources management, which must be at the heart of policy options, environmental, constitutional law and human rights litigation such as this one".

     The latest edition of the draft constitution puts more emphasis on the bill of rights-- the cornerstone of the whole constitution and statutes. Incidentally, the laws are and have been applied selectively. For instance, it will be right for a section of the society to be recognised as having rights of common ancestry claims and protection. When other communities, like the vulnerable indigenous minorities, seek equal treatment, they are overlooked and at other times their rights are infringed and even forced to denounce their identities in exchange for favours.

     The independence constitution in section 82(I) provides for this discrimination. This saw the Ogiek being denied rights to land, hunting and gathering, self-determination, social amenities and equal citizenship.

     Policy and economic planners do not view discrimination as the issue, when they prescribe assimilation into the mainstream established entities. The change in regimes provides hope for minority communities.

     In 1997, for example, despite Kenya’s High Court ruling that the eastern Mau forest must not be re-allocated until the Ogiek land rights problems are resolved, this case is yet to be heard. Indeed, a legal system which provides extensive and simplified procedures for converting public land to private ownership, or which gives a reckless access to public national resources, with little or no regard for ecological and sustainable social development impacts, is a national enemy of the people. We must be free from ecological ignorance. A just system which does not uphold efforts to protect the environment for sustainable development is a danger to the enjoyment of human rights. There is general belief that the creation of the Justice and Constitutional Affairs Ministry will go a long way in addressing the weakness in our current justice administrative system. Many have faith that their constitutional matters will be sorted out, after the recent purge in the Judiciary, where corrupt and inefficient judges were weeded out to pave way for judicial reforms.

     The promise by the minister for Environment and Natural Resources to restore all the forest boundaries and empower the local communities in the management of forests is good news. Already mass exodus of the beneficiaries to their ancestral lands is being witnessed. The greatest hope is in the new constitution. One of the most important pillars in the preservation of the forests is environmental suite No. 421/2002, a judicial review that is supposed to guide future forest policies. The God of the Ogiek is back to healing their nation, if the judicial review becomes a success. The recent suspension of all the forestry officials, and the quit notice of the forest land beneficiaries set for 31st December, 2003, is welcome news, both to this community and the people down stream who depend on the preservation of human ecology for survival.



Chapter 5: Historical Injustices


Pre-Colonial and Colonial

     The Ogiek have not yet recovered from cheating, coercion and dispossession, the telling indictment of an early colonial policy, which first separated the forest from its age-old custodians. After handing out good land to white settlers, the British administration registered Kenya’s tribes and settled them on reserves. Ogiek wattle huts and beehives were torched, and their schools and clinics closed. Consequently, 80% of them are illiterate, the highest rate in Kenya, and there is no doctor for the 6,000 people living in eastern Mau. The same case applies to all Ogiek groups across the country.

     While the report of the Kenya Land Commission of 1933 is full of unresolved demands for an Ogiek Reserve, the colonial rulers never paid attention to the Ogiek land claims. The Ogiek wanted recognition and thus rejected attempts to make them an appendage of the Maasai or of any other community. The colonialists sought the contrary such that negotiations leading to the independence constitution had nothing on the plight of the Ogiek. The places inhabited by the Ogiek were turned into government forests during the colonial times and thereafter. Today, the same forests are up for grabs by the mighty and the powerful, jostling and jockeying for power and control over natural resources continues. Today, the Ogiek have no future to look forward to and unlike other communities, have no community land to fall back to. While the purpose of any law review process is to revisit any shortcomings of any previous system and provide remedial solutions, the current land sharks cannot allow the Ogiek to enjoy the review process, as they are only concerned with their personal interests.

For indigenous minority communities, such as the Ogiek the relationship with land is not merely a question of possession and production but a material and spiritual element, which they should fully enjoy as well as means to preserve their cultural heritage and pass it on to the future generations.
               — Towett J.K. "The Oasis" magazine, ---2002

     The process of dispossession from the colonial time to the present has entailed primarily the declaration of their ancestral lands as forest reserves over which they have no rights, degazettement and alienation of their land to other communities.

     Believing there is no limitation as to the time the laws and the constitution are to be reviewed, while deprivation of indigenous rights is under review, the case of the Ogiek warrants efforts to rectify the obvious constitutional inadequacies. We should go to the drawing board and restore their rights to land. The Kenya government should conform its domestic law to the indigenous rights under international laws.

     Although the Ogiek Community are the only remaining forest dwellers in Kenya, the current Forest Bill 2000 does not take into account this fact, leave alone the historical contributions of the Ogiek community to conservation.

     Serious encroachment of Ogiek rights to their land started in 1856 when the Maasai attempted to annex Ogiek lands in Mau and Laikipia. This led the two tribes to go to war. The Ogiek lost the areas around Lake Naivasha but continued to retain the lands around Nakuru and other sections of the larger Mau forest complex.

     In 1903, the British colonial administration planned to evict the Ogiek from forests near the Kenya-Uganda railway line so as to secure firewood for locomotive engines. Those who resisted the evictions became the targets of the colonial authorities, with many being killed and others arrested, charged and jailed without options of a fine. This further reduced their population, besides traumatizing them.

     Around this time, the colonial administration started negotiations with the Maasai over the transfer of land. This culminated in an agreement, signed in 1904 and 1911 between the Maasai and the colonialists in which the Maasai handed over rights to land in Nakuru, Naivasha and Laikipia to white farmers. The land signed over by the Maasai effectively dispossessed the Ogiek of their ancestral land. This was followed by another agreement in 1932 between the Maasai and the colonial authorities, which saw the handing over of Mau Narok to the colonial settlers. In 1936, the colonial authorities scrapped the Ogiek administrative unit that was formed in 1916. To the Ogiek, the Maasai –colonialists agreements were done in bad faith and only a group or sections of the Maasai lost their lands but not the whole group as portrayed by the agreements. If indeed the agreement was genuine, it should have mentioned other communities who were stakeholders in the lands.

     The year 1937 saw the issuance of the first national identity cards and a national population census. The period also ushered in new white settlers into lands within Nakuru and adjacent districts. It is also during this time that many land laws were enacted in favour of the colonial settlers, the Forest Policy Land Act, Chapter 385 of 1942.

     In light of the above, the first forceful eviction of the Ogiek took place between 1911 and 1914 following the signing of the first pact between the colonial authorities and the Maasai. The Ogiek and their animals were evicted by colonial soldiers from Mau in Nakuru to Narok, where they were accepted by the Maasai on condition that they surrendered their animals, language and culture. A second eviction took place in 1918.

     In 1922, Africans were encouraged to take employment in settlers’ farms. At independence there were labour tenants, farm dwellers, forest dwellers, landless and displaced persons. The British colonial administrators executed further evictions of the Ogiek from their ancestral lands in 1926 and 1927. In these evictions, those who had remained on lands that had been converted to settler farms were forced into the forests. However, these forests had already been declared Crown Land. The Forestry Department was, therefore, unwilling to allow them into the forests and further evictions took place. Fierce resistance led to a ceasefire between the Ogiek, the colonial administration and the white settlers. This agreement was dated 23rd September 1932.

     Following the agreement of September 1932, Ogiek were invited to testify before the Carter Land Commission. Their elders appeared before the Hon. Harris Carter on 17th October 1932. The elders presented the case that they would not vacate the forests. The commission was appointed to inquire inter-alia into the following issues:

     Ogiek position was basically that they would not move out of the forest because if they were separated further, their community risked being extinguished. Consequently, they preferred to stay together in one place, the Mau forest.

     In general, the commission recommend that Africans had little claim of right over the land in the highlands. Where such claims could be legitimately made, alternative areas near each reserve, should be made available for compensation. The commission flatly rejected the principal that if a tribe had lost land it was entitled to receive equivalent land elsewhere. In as far as they were concerned, the commission denied their claim to their ancestral land. It recommended that:

Whenever possible the Dorobo (Ogiek) should become members of and be absorbed into the tribe in which they have most affinity. Where as this is done, a reasonable addition should be made to the reserve concerned, if there is any land available for this purpose. It was further recommend that al l Ogiek living on farms or forests reserves should go to the reserve to which the rest of the group has gone.
               — The Carter Land Commission Report, cmd 4556, 1934

     The Carter Commission recommended that they should be moved to reserves of the bigger tribes with whom they have close affinity. These were the Maasai and the Kalenjin. These recommendations were drawn from those of a committee made up of white settlers and colonial administrators who had expressed fears that should Ogiek be left in the forests, their population would increase leading them to claim their land, which was now under the white settlers. They saw the dispersal of the Ogiek to various different locations as a means of having them assimilated by bigger tribes hence reducing the possibility of claims on their ancestral lands. In 1933, the Provincial Commissioner recommended to the Chief Native Commissioner,

… that whenever possible, the Dorobos should become members of and be absorbed into the tribe with which they have most affinity.
               — Opcit

     Following the recommendations of the Carter Commission, harassment and dispossession of the Ogiek continued. This attitude spilled over to the independence regime, who incidentally, inherited everything intact from their colonial masters. They stepped into the shoes of their colonial predecessors thereby inheriting whatever the colonial states had upheld in terms of institutions of governance and development paradigm.

     When the colonial administration realized that the Ogiek were not ready to move to other tribes’ reserves, they hatched the idea of using them to indirectly work for their own extinction. They did this by encouraging the Ogiek to take up jobs in the Forest Department, while others were encouraged to take up employment in the nearby white settlers’ farms. Religion and formal education were also introduced. These impacted negatively on their resistance to eviction, as token development became the official policy of the rulers of the day.

     As Guy Yeoman noted:

In as much as the Ogiek are offered employment by the forestry department and are encouraged to leave the forests and join the great labour camps, they are … working for their own extinction, since every hectare of trees they plant is a hectare of their birth right lost forever.
               — Guy Yeoman: Opcit

     Between 1946 and 1956, the colonial authorities evicted the Ogiek from West Mau. They issued gazette notice No. 117 of 1960 barring the unauthorized persons from entering the forest reserve. The legal notice was placed at Beestone gate seven kilometres from Njoro township.


Post-Colonial Injustices

     The 1960s ushered a new era in the history of the continent. Direct European colonization came to an end. However, the colonial legacy left a strong imprint in the newly independent African states. The legacy that was to bedevil the continent is the development paradigm.

     The consequences of this policy started to be felt as soon as African states came to power. Here in Kenya minority hunter-gatherers were victims of this policy. The independence constitution, which was negotiated in the Lancaster Conference, had this to say of the minorities:

Our objective is a united Kenyan nation, capable of social and economic progress in the modern world and a Kenya in which men and women have confidence in the sanctity of individuals rights and liberties and the proper safeguarding of the interests of minorities.
               — Kenya constitutional Conference of 1962, Appendix ii, paragraph 1

     The independence constitution in its latest edition of 1998, mentions group rights generally without specifically referring to indigenous people. On discrimination, Article 82(i) provides that “no law shall make any provision that is discriminatory either of itself or in its effect”. Despite this, the Ogiek have been discriminated upon as regards; denial of rights to land, rights to hunt and gather, rights to be represented, denial of the provision of social amenities, and denial of rights to equal citizenship.

     Encroachment of their lands by fellow Africans started in 1958 when national identity cards were issued to Africans for the second time, with the first national identity cards having been issued in 1937. Some members of the Kalenjin tribe registered themselves as Ogiek in the hope of staking claims to Ogiek ancestral lands.

     By 1968, the Ogiek had leaders with a vision and were very clear about their demands for the community’s rights. As a manifestation of their struggle for their land rights, a Wednesday Magazine of 23rd August 1968 that gave an update of the Ogiek struggle across the country was published. The magazine was dubbed, “The brave tribe without a home.”

     In August 1968, Mr. Amos Naisuru wrote a letter to the first President of the Republic of Kenya Mzee Jomo Kenyatta, drawing his attention to their plight. In 1972, Lake Nakuru Settlement Scheme was initiated. Ogiek refused to take part in it alongside other dominant communities because they feared a forced assimilation by other communities. Mr. Warioko, the then Nakuru District Commissioner presided over the allocations. This alienation saw the coming up and booming of the charcoal business industry. The only big indigenous forests adjacent to Lake Nakuru, disappeared within a span of three years.

     In the first 15 years of independence, the Kenya government did not interfere with Ogiek until 1977. In that year, government forces, led by the Rift Valley Provincial Commissioner, Mr. Isaiah Mathenge invaded Western Mau Forest and torched their houses, and arrested members of this community who were then arraigned before the court on charges of squatting in the forest illegally. This rendered many families destitute due to loss of animals and property. Parents who had children in school were unable to pay school fees forcing the children to drop out. This was a formula used to weaken them so that they could not continue demanding rights to their ancestral lands. In 1985, members of the Kipsigis sub-tribe invaded and settled in western Mau forest. The excuse given was that there was severe drought in the native areas. It later emerged that they were indirectly and secretly invited by the government to settle in this forest and help check the movement of the farming communities, with whom the agents of government had developed animosity. It was felt they were using the forests to plan guerrilla acts against the regime. This is explained by the then government directive that all the forests farming and dwelling communities obtain grazing and farming permits. Secret militias started around this time. Almost every prominent person had a militia of his own, thus enjoyed exclusive rights to private security as long as he had resources and was in good books with the government of the day.

     Between 1985-1987, Ogiek were reduced to permit seekers, if they were to have or obtain grazing rights within the so-called protected areas. Controlled farming and livestock grazing fees were the new mode of harassment. De-stocking was a factor too. Those in the settler farms were were evicted on notice, which shows some recognition. This was an indirect way of appeasing the ones in the forest to stay in settler farms where they could enjoy rights and related privileges.

     Landlessness was a term adapted by the ruling elites to facilitate land grabbing, while hiding in the so called squatters plight. The Mau settlement is a case in point. Here people were encouraged to build temporary structures in a designated area. Surveyors soon followed while those in the temporary camps were used to facilitate survey work. In return, the surveyors would be rewarded with pieces of land. Others would be promoted to administrative positions while the lucky ones would take electoral positions. Territorial expansion became the vision of the favoured.

     In 1987, there was a shift in the government policy whereby the rule governing hunting in the country was amended, thereby making hunting impossible. The Government banned livestock keeping and farming activities in forests. This ban was applied selectively and targeted only the non-Kalenjin communities. The Ogiek were compelled to seek famine relief for survival. Following this ban, all schools in Eastern Mau were closed, affecting 500 Ogiek school children. During the same period, the government initiated a settlement scheme in Ndoinet, Mau West and settled members of the Kipsigis community alongside the Ogiek. The Ogiek declined to join the scheme.

     The 1987, a forest policy was formulated as part of the Kanu government weapon to fight its perceived enemies like Mwakenya. The forests were seen as secret training grounds for those planning to overthrow the Moi government. As a security measure, most parts of the Mau complex were invaded and earmarked for settlement by the politically correct. In Narok district for instance, the local Maasai made a mistake for they sold most of this land to farming communities who the Kanu government was not comfortable with.

     This explains the subsequent evictions that followed in most parts of Narok through various well coordinated clashes. In Narok, the conservation excuse worked, while in Nakuru and other districts, the forest policy was to be the weapon.

     The government in power instigated tribal clashes as part of a wider scheme meant to supplement what the earlier formula failed to achieve. The last part of this assault was the invasion and the subsequent sub division and allocation of all government forests and Agricultural Development Co-operation and research lands in the same areas as the government embarked on new adjudication process across the country. The new generation identity cards of 1996 to date and the increase in administrative and political units, were meant to achieve the same. The re-adjudication of the privately held lands in areas vacated by unwanted or targeted persons was to be the final blow. The rush for title deeds to prove ownership has never ceased ever since.

     Between 1989 and 1991, the Ogiek participated in various commissions and contacted the authorities regarding their rights to land. One such commission was the Saitoti Kanu Review Commission on multiparty politics. The provincial administration finally responded positively to the Ogiek demands in a letter dated 19th January 1991. In 1992, as pluralism became a reality, the Ogiek were allowed to present their memorandum to the Head of State at State House, Nakuru. The previously closed schools within their ancestral land were re-opened. This was part of the government preparation for the population transfer it was to carry out later. This population transfer has so far seen the allocation of land to more than 60,000 new settlers in the Ogiek home, environmental degradation notwithstanding. It is estimated that 40,000 people were settled in East Mau and 20,000 people in West Mau. This fell short of the targeted projection of 85,000 allottees.

     In 1993, during the tribal clashes, which rocked part of Ndeffo in the months of November, this area was claimed to habour Kikuyu militia. The clashes were aimed at provoking them to use their arms if they had any. This clash claimed several lives Clashes were instigated in several parts of the country, with a deadlier one taking place in Enoosupukia and other parts of Narok. Later on it was claimed that a few arrests were made. This justification set the mood of the settlement scheme, which was initiated as a security measure. At the commencement of the survey process, members of the disciplined forces were in the forefront parcelling the land for themselves before the whole issue was temporarily halted. This made it clear to us whom the intended beneficiaries were.

     At around the same time, it was alleged that a Mr. Moi, in the company of several District Officers and senior ruling party officials had been spotted in the areas around Gichagi Forest Station, their mission has never been known, what can only be remembered is the big fire that destroyed most of this forest and the new beneficiaries who were in high spirit after the reward was given. The Ogiek’s were not party to the on goings.


Efforts

     Starting from 1993, the Kenya Government has systematically carved out huge parts of Mau forest for settlement by other communities. This has caused constant conflict between the Ogiek who see the destruction of the forests and the alienation of their lands as a continued threat to their existence.

     In March 1993, the government re-gazetted the current Ogiek locations and sub-locations of Nessuit, Mariashoni, Bararget, Tinet and Kiptororo. The only ward or electoral position available was Marioshoni ward. The rest were politically initiated later so as to help speed up the resettlement process.

     On 23 February 1994, the government officially announced their land claims approval through the Provincial Commissioner, Rift Valley Province, Mr. I.K. Chelang’a. Upon this, the land was subdivided on the basis of clans and individual occupation but under communal ownership and protection. They compiled their own registers in readiness for approval by surveyors and the Land Registrar. The Ogiek further disowned the Green Book compiled by the Kenya Indigenous Forest Conservation Program (KIFCON) and its contents, which was modified by the Chelang’a team, to give room to the current settlement. While the original list had 1800 persons, the one that followed had 3500 persons, all balanced to ensure the Mau cake fed the whole Kalenjin group.

     In 1995, the provincial administration refused to recognise Ogiek traditional land demarcation and allocations. They instead sent the surveyors to begin the work afresh, thus marking the genesis of the Kalenjin exodus to Mau Forest. For instance the Sigotik land dispute started in 1995, when the Ogiek who lived there dispersed to various clan land parcel’s where they were to wait for surveyors. A Mr. Kirui, the then Provincial Surveyor stopped the move and was supported by the then Nakuru District Commissioner, Mr. Noor Aden.

     Instead he chose to send for a surveyor from Kericho, a Mr. Rotich who came and surveyed day and night with the help of forest guards, land speculators, the administration police and the entire government machinery. This behaviour saw the Ogiek seeking audience with the government preferably the Head of Statewithout success. Constant links with the media houses highlighted the Ogiek plight and their inability to see the Head of State, or even get protection and recognition for their ancestral lands. The then provincial police boss, Mr. Kavila, ensured that they were made permanently silent, after all, might is right.

     In 1996, the same attempt was made with a memorandum forwarded to parliament and the following year, constitutional and statutory protection and recognition was sought through the law courts, where the matter has been pending ever since.

     Legitimacy has been sought from all corners with the constant change of provincial administration and the in boundaries. It was under this arrangement that the Mauche division was born on march 1998. Other infant divisions included Kuresoi, Naishi, Mau Narok and Elburgon.

     The year 1996 saw the creation of numerous polling stations within the targeted settlement scheme and the issuance of the new generation identity cards. Youth as young as 14 years were given identity cards and five acre parcels of land. These polling stations were used to rig votes in favour of the ruling party’s presidential candidate. For instance, in 1997 elections at Kiptororo ward, a total of 23,618 persons from Kericho were ferried to vote. They also voted in Kericho. This act saw the voting duration extended to two days, an order which came from above.

     The Ogiek resisted this move and unsuccessfully sought audience with the already hostile authorities. They attempted to meet the Head of State by marching to State House, Nakuru, but were dispersed on the way. This violent dispersal was widely covered by media houses, especially the Daily Nation of 26th November 1995. With all the avenues closed, the only options left to the Ogiek were the courts and Parliament.

     Through their elders, the Ogiek have made strenuous efforts to defend their rights. In 1996, the community engaged an advocate. As a first step, a memorandum was prepared and circulated to all Members of Parliament. The issue of Ogiek land was raised during question time in November 1996. Mr. Jackson Kalweo, the Minister in the Office of the President made a statement on November, 29, 1996 to the effect that “The Ogiek have been settled in East Mau Forest. They have 26 primary schools and 400 teachers. The Ogiek are being treated like any other landless Kenyans.” Dissatisfaction with the Government statement, which was totally far from the truth, compelled them to file a constitutional land suit in June, 1997. Consequently, Ogiek leaders were arrested in great numbers and charged with incitement, holding of illegal meetings, membership of unlawful organizations, aiding prisoners’ escape, sabotage and arson. A total of 67 Ogiek were arrested and spent three weeks in custody before being released on bond on 29 November, 1996.

     On 10 January, 1997, a few Ogiek self-seeking elders were sneaked to the President’s home in Kabarak, at the pretext hat the Head of State would hear their grievances regarding land allocation. The frightened and confused elders were unable to present their case properly, as they only highlighted the encroachment of their ancestral land by outsiders. To ease the tension, the Head of State promised to look into their plight and the elders have since then believed the words to mean that the Mau forest complex was declared an “Ogiek Reserve”.

     Since then, the elders have been used and are still being used to implement the resettlement process. Through the selfish provincial administration who have formed a habit of running their affairs politically, Ogiek are being cheated into giving their land by accepting a small commission. Incidentally, the same government the Ogiek had been quarrelling with is the one giving out the money and related handouts to its clients for land buying, just as it was during the colonial administration. They are being encouraged to give the land without knowing that it is their birthright they are selling for food and luxuries. Luckily, there are some patriotic Ogiek who are opposed to the whole idea of the settlement scheme. However, their views have been ignored by those who are out to disinherit and dispossess them of their birthrights.

     On 21 January 1997, the then Rift Valley Provincial Commissioner Mr. Mohammed Yusuf Haji visited the Ogiek and warned them against suing the Government. On 19 February 1997, the then District Commissioner, Nakuru, Mr. Kinuthia Mbugua visited the Ogiek with the same message. Kinuthia Mbugua later defended the government in court. He swore an affidavit to this effect on 22 October, 1997. The Ogiek defied those threats and were arrested en mass. On 25 June, 1997, the Ogiek filed their constitutional matter, seeking nullification of the settlement scheme and affirmation of their traditional way of life and practices. On 15 October 1997, the court put an injunction to further allocations and sub-divisions of Ogiek land until all issues are resolved in court. However, this was not to be the case, as the President himself seemed to have taken over the matter, for on 24 November 1997, he issued 700 title deeds for the land in dispute. The Ogiek democratically elected councillors on a Kanu ticket, Mr. Daniel Kibet Chesot (Mariashoni) and Francis Rungira Cheggeh (Nessuit) were rigged out at the eleventh hour on 9 December 1997. The intention was to cripple the Ogiek land rights struggles.

     Mr. Daniel K Chesot was accused of taking the Chairman of the ruling party Kanu, to court. Incidentally the chairman was retired President Daniel Toroitich Arap Moi. Mr. Rungira was accused of seeking an electoral position, without first resigning from Egerton University, where he worked with the University security team.

     Following the politically instigated land clashes that rocked Njoro in 1998, 261 clash victims were resettled in Bararget area of East Mau, thus opening up the land for grabbing in total disregard of the court orders. The victims were resettled on 3 August, 1998 and the official allocations were done on 15 December, 1998. The Akiwumi Commission of Inquiry into the Land Clashes did not benefit the Ogiek as the commission was controlled by government agents. The Ogiek had a chance of recording statements and forwarding their memorandum.

     Up to today, the government is against any formal structures that champion the Ogiek cause. The theft of Ogiek land, coupled with the destruction of their property and forceful eviction have left them seriously impoverished with an uncertain future. Their very survival as a people is seriously threatened by their disenfranchisement, loss of their natural habitat, assimilation by bigger tribes and abject poverty.

     On 14 May, 1999, the government issued a fourteen-day quit notice in Tinet. This land had been taken by the Nandi sub-tribe. Ironically the government planned to evict the ancestral land owners, instead of the intruders. On 23 March 2000, when they went to court, the eviction was upheld. “For these reasons the court dismisses all the prayers sought. Allow us to add that any other determination would be of mischievous consequences for the country, and must lead to an extend to prodigious vexatious litigations, and, perhaps to interminable law suits. It would be a fallacious mode and an unjustifiable mode of administering justice between parties and for the public good of this country”. This was a hostile judgment that had far reaching implications as it was meant to create precedence of stopping further gestures for justice. Ogiek were further marginalised in the Forest Bill 2000 debate with the state machinery lobbying for the unconditional withdrawal of the Ogiek cases. On 5 April, 2000, Tinet Ogiek obtained a stay order from the Court of Appeal pending a formal appeal.

     While of East Mau Ogiek were taking the provincial administration to court for contempt, the government was busy gazetting a section of Mt. Elgon into a National Park on 6 June, 2000. The government continued its threats of evicting the Mt. Elgon group. The demarcations and allocations of the Ogiek land continued with full blessings of the authorities in preparation for degazettement, which indeed was effected on February, 2001.

     In 2001, de-gazette notices of areas occupied by the Ogiek and other forests across the country were issued by the minister of Environment and Natural Resources, Hon. Francis Nyenze. East Mau Ogiek raised objection and filed a suit in High Court with the aim of quashing the gazette notice. The court issued an order putting an injunction into the implementation of the gazette notice until the matter was resolved in court. Another suit was filed at Eldoret High Court by an environmental lawyer, Lawrence Sifuna. This case was dismissed later on 4 October 2001 on legal technicalities. We believe that Sifuna and the officials of the former regime had one thing in common, which was justification. For instance, on 3 October, 2000, the provincial administration summoned more than 40 Ogiek elders and threatened that the Ogiek would lose and suffer greatly if they did not withdraw their cases unconditionally, and allow the government to finalize the “Ogiek resettlement programme.” The elders refused and demanded that the administrators evict all the people who were illegally occupying their ancestral land. They further told the attentive administrators that all Kenyan communities were aware that these land beneficiaries were forcefully settled as part of the government of the day policy of population transfer. They said the title deeds, were fraudulent and thus they would not need them. On 19 October, 2001, the then minister for Environment and Natural Resources, Hon. Noah Katana Ngala issued a subsidiary legislation to fully approve the alteration of the forest boundaries. In the year 2002, the Ogiek resolved to send a detailed memorandum to the Head of State detailing the dispossession of their land and torture. However, full-scale demarcation and allocation continued, notwithstanding the change in regime.

     On 16 February, 2001, the government went ahead and issued a gazette notice with an intention to alter forest boundaries in Kenya and also legalize the disputed areas. The Ogiek raised an objection and moved to court to seek an injunction to quash the gazette notice. On 17 March, 2001, a steering committee comprising of all the Ogiek from Narok, Nakuru, Koibatek and Mt. Elgon was formed. It was known as Ogiek People National Assembly (OPNA) and comprised of seven people with the following mandate:



Chapter 6: Kenya Land Policy since 1900

     Land policy in Kenya and its legal development has a long history. This is attested to by the long list of policy papers, reports and commissions set up by the various regimes.

     On 15th June, 1895, what is largely known as Kenya was declared a British Protectorate. The legal effect of the declaration was merely to confer on the British crown Political Jurisdiction over the area, whilst it remained a foreign jurisdiction. Beyond that, the declaration of Protectorate did not confer any rights over land in the territory. Any rights over the land would have to be on the basis of conquest, agreement, treaty or sale with the indigenous people. In 1897, the Indian Land Act was extended to the territory, thus enabling the appropriation of lands in the main land beyond Mombasa for public use. This appropriation was however limited to land within one mile of either side of the railway line.

     To overcome the problem of title to land in the territory, in 1899 the law officers of the crown advice that the Foreign Jurisdiction Act, 1890 empowered the crown to control and dispose waste and unoccupied land in the protectorates with no settled forms of government and where land had been appropriated to the local sovereign individuals. In 1901 the East African (Lands) ordinance-in- council was enacted conferring on the commissioner of the Protectorate (later named Governor) power to dispose of all public lands on such terms and conditions as he might think fit.

     The land, now called crown land was vested in the commissioner in trust for the British crown. This was effectualised in the crown land ordinance, 1901, which defined crown land as all public lands within the East African Protectorate which for the time being are subject to the control of his Majesty by Virtue of any Treaty, Convention or agreement or by virtue of His Majesty’s Protectorate and all lands which have been or may hereafter be acquired by His Majesty under land acquisition Act, 1894 or otherwise however. The Crown Land Ordinance, 1902 followed suit and empowered the commissioner to sell free holds in crown land up 1,000 acres to any person or grant leases of 99 years.

     The Swynnerton Plan of 1954, the Kenya Land Commission of 1932-4 to the East African Royal Commission of 1953-55, are some of the commissions set up to look into land cases. Along the road, little was done to eradicate some of the anomalies introduced by the colonial authorities in the early legislations.

     The most pressing concern for indigenous communities the world over is land, its use and occupation. Land is not an asset that they should only posses, but it is also a spiritual element that defines their cultural heritage and identity.

     The primary objective of the law since Kenya became a colony was to consolidate land and its various resources within the hands of the ruling elites class, which is essential for political control in an agrarian society and its related set ups. This indeed explains the antagonistic relationship between the government and local communities on usage of forest resources. This is the situation the Ogiek found themselves in alongside other Kenyans, when the law was perceived to be aiding and abetting the interest of one group over them. The law has lost legitimacy for the same elite encroached on the forest at the pretext of settling landless people. The absence of a comprehensive land policy is to be blamed for all these wrongs.

     In Kenya, the Ogiek are known as natural conservationists and have co-existed with nature and its bio-diversity for their survival. However, their livelihood is now under threat as the forest resource, which is their only home, is being systematically degazetted by the state to facilitate logging and flower plantations for the European markets, as well as for political gains and mileage.

     Before the establishment of British rule in 1895, Kenyan communities occupied certain portions of land where they lived either as pastoralists, cultivators or as hunters and gatherers, while some communities cultivated and fished. Their land laws were the customary laws. After the British rule was established in 1895, the Crown asserted it was the sole owner of all the land and defined the rights that were to be recognized. This was made clear in the Crown Lands Ordinance of 1902.

     Initially, the Crown Lands Ordinance respected the customary land rights to some extent, and this made the colonialists unhappy. The 1915 amendment of the Crown Lands Ordinance facilitated the dispossession of the Africans of their land. It was during this time that some parts of Mau Forest were recognized as Crown Lands. In most cases, the indigenous owners of the confiscated land became labourers of the British farmers.

     The 19O2 Crown Lands Ordinance, the first version of today’s Government Lands Act, Chapter 280 of the Laws of Kenya, recognized a situation where the indigenous people would be allowed to continue occupying land, which had been taken away by colonialists. This caused great anxiety. Consequently, some of the Crown Land Native Reserves were to be designated from which the colonialists were excluded. Between 1919 and 1939, many Native Reserves were reclaimed.

     The history of Kenya between 1918 and 1939 is one of trying to increase the indigenous people’s security of tenure, and since the economy was agricultural, the land question was a constitutional issue, as it is today. The British government appointed the Kenya Land Commission, which inquired into the land issue and made its recommendations. One of the far-reaching recommendations that resulted in the establishment in 1938 of Land Racial Reserves was the one referred to above. The forests have since 1901 been part of government land. Under the Forest Act, through degazettement, land, which was once a forest, could cease to be a forest. The Forest Act, Chapter 385 came into operation on 1st March, 1942. Ever since that time the official day light robbery of the Ogiek lands via power of the pen has become common. The genesis of Ogiek problems has its root cause in this colonial arrangement.

     The government has initiated a number of land reforms, but in all these, the Ogiek do not benefit as they have been ruthlessly marginalized. For instance, in the land reforms of 1957, the Olenguruone area council trust lands were allocated to other tribes, but the area that was set aside for the Ogiek was declared Free Land. This was not convenient for their cultural and economic activities, but the part of land they were claiming was said to legally belong to the government, hence, State Land.

     According to the Kenyan Constitution of 1963, section 205, all land formerly belonging to the British Crown (Crown Lands) was transferred to the President of Kenya on behalf of the Government of Kenya. By the Crown Land Ordinances of 1902 and 1915, such lands included:

     The Ogiek were, therefore, said to be illegally occupying government land, hence they became squatters, in their own land. This problem of land rights delivery is best captured in the report of the Kenya Land Commission of Inquiry into the land laws and systems and I quote, “Land rights delivery is a process which entails the mobilisation of instructional mechanisms and personnel for ascertainment of rights, registration, demarcation and/or survey, the preparation of cadastres and land market regulation among others. These are processes which, in Kenya, are run as part and parcel of public administration. The operation of the specific modalities established for this purpose, therefore, has always been overtly political. At the territorial level, Government and Trust Lands are administered by the Commissioner for Lands directly or in the case of the later on behalf of county councils. This means that ultimately access to land in Kenya is controlled by the Commissioner. Although procedures exist in the Government Lands Act for the proper notification to the public of land available for grant and for the assessment of applications, these are routinely ignored or by-passed by public officers in the Commissioner’s office. Private (i.e. registered) land is administered by the proprietors themselves but under the facilitation of a complex bureaucracy consisting of staff from central government line ministries, local political functionaries and local or traditional administrators. The overall effect is that decision making on these issues is often contradictory and ineffectual. Need therefore exists to rationalised and simplify this system.

     Between 1969 and the 1990s, the government established Lake Nakuru and Mauche Settlement Schemes, with the aim of settling the landless Kenyans including the Ogiek community. However, this was never to be the case, for those settled were senior civil servants, politicians and businessmen. East Mau Forest alone has 1,700 senior government officials each with 50 acres and above. Between 1963-71, 48,000 hectares of land were excised from government forests across the country.

     The Ogiek were probably the first people in East Africa to have a well-defined land tenure. This land tenure composed of land tenure, animal tenure and tree tenure. First, the land is divided amongst various branches of the Ogiek lineage. The major branches are:

     Individuals enjoyed subsidiary rights of use and occupancy of communally owned land. Permanent features such as swamps, glades, rivers, sacred sites and trees served as boundaries. Each clan had their own parcel of land and others respected this. There was land for use during the dry season and land for use during the rainy season. These land holdings arrangement were meant to solve disputes arising from disagreements. Trespass to another clan’s parcel of land would mean instant death by poisoned arrows. This mode of land tenure made them great environmentalists of the past and the present.

     The legislation concerning forest is fairly comprehensive and spread over various acts, which are administered without coordination by a wide range of public bodies and individuals (see Kenya Forest Master Plan, 1994). These acts include:

     A brief look out of these legislation gives us the following picture:


The Trespass Act, Chapter 294

     This Act was enacted in 1963 and revised in 1982. This Act makes provisions with regard to trespass on land. In this Act “Private Land” means:

     The Trespass Act is an act of parliament to make provision with regard to trespass on land. As such it would readily apply to the administration of forests, as they are private property to the Kenyan people. The definition of private land in the Trespass Act read with Sec. 4 of the forests Act could make forests private land.

     Trespass arises where a person causes physical matter to come into contact with another’s land. Trespass, therefore, protects an occupier’s right to enjoy his or her land without unjustified interference.

     The side-notes to section 3(1) read “Trespass upon private land”. Thus the operative terms here are private land. The complainant can only have a valid compliant if the land on which the trespass is claimed to have taken place is private land. It should be noted that the absurdity of this charge becomes even more obvious when one considers that in a charge under section 3(1) the charge sheet must allege that the entry into the land was “without reasonable excuse” and “Without the consent of the occupies thereof”.

     This act reduces the conservation and protected areas into a private property, owned by the business and rulings class indirectly, but invoking the government title to conceal the truth.


The Registered Land Act, Chapter 300

     The Registered Land Act is an act of parliament to make further and better provision for the registration of title to land, and for the regulation of dealings in land so registered, and for purposes connected therewith. This Act was enacted in 1985 and revised in 1989 applies to the following areas:-

  1. Every area to which, immediately before the commencement of this Act, the Land Registration (Special Areas) Act applied;
  2. Any area to which the land Adjudication Act applies;
  3. Any area to which the minister may, by orders, apply this Act; and
  4. All land which from time to time is set apart under section 117 or section 118 of the constitution.

     The idea behind the RLA was to get simple code that could be understood by a majority of people in Kenya. The act has simple particulars and provisions governing land transactions under the Act. The Act contains various statutory forms that need to be filled by parties to the transactions. Their signatures need to be attested after which the forms are to be forwarded to the Registrar for registration.

     Section 109 of the RLA states that any disposition of land, lease charge must be in the prescribed form. Every instrument must be signed by both or all parties to the transactions.

     Sec. 14 of the Act defines what is meant by first registration under sec. 143(1) a first registration shall not be questioned and the register shall not be rectified in so far as the first registration is concerned.


Trust Land Act, Chapter 288

     This Act was enacted in 1939 and enacted in 1962and came into force in 1963. It was revised in 1970.Under this Act, “Trust Lands” refer to what were previously known as “Native Reserves” or “Special areas”

     Chapter nine of the constitution of Kenya deals with Trust Lands. Section 115 vests the Trust Lands in the County Councils to hold “for the benefit of the persons ordinarily resident on that land”. The County Councils are enjoined to give effect to such rights, interest or other benefits in respect of the land as may, under African Customary Law for the time being in force and applicable thereto, be vested in any tribe, group, family or individual”. The frame work for administering trust land is set out in the Trust Land Act.

     Sections 53 of the Trust Lands Act confers direct powers to the commissioner of lands to administer Trust Lands on behalf of the County Councils. The Commissioners mandate may be terminated by the Minister where the ministers is satisfied that the council has made satisfactory arrangements to administer its trust land by itself.

     In administering the trust lands, the commissioner of lands may:

     That the commissioner of land is also the one who on behalf of the President administer government land under the Government Lands Act raises questions whether the Commissioner of Lands can be trusted to administer the trust envisaged by the constitution on behalf of the local residents.

     Indeed, experience shows that section 53 has created a leeway which has been used to appropriate trust lands and deny the local inhabitants the benefits envisaged by the Constitution. The manner in which Trust Lands have been managed has excluded the communities altogether.


The Forest Act, Chapter 385

     This is an act of parliament to provide for the establishment, control and regulations of central forests, forests and forest and on unalienated government land. Forest areas means an area of land declared under section 4 to be a forest area.

     Section 4(1) empowers the Minister from time to time, by notice in the Gazettee:-

  1. Declare any unalienated Government land to be a forest area:-
  2. Declare the boundaries of a forest and from time to time after those boundaries;
  3. Declare that a forest area shall cease to be a forest area;

     Section 4(2) Before a declaration is made under paragraph (b) or paragraph (c) of subsection (1) twenty - eight days notice of the intention to make the declaration shall be published by the minister in the Gazette. The Forest Act was enacted and became operational on 1st March 1942. It was amended in 1962, 1957 and revised in 1964.


The Wildlife (Conservation And Management) Act, Chapter 376

     This is an act of parliament to consolidate and amend the laws relating to the protection, conservation and management of wildlife in Kenya; and for the purposes connected therewith and incidental thereto.

     Its objective is to make sure that wildlife is managed and conserved so as to yield to the Nation in general and to individual areas in particular, optimum returns in terms of cultural, Aesthetic and scientific gains as well as are incidental to proper wildlife management and conservation and which may be secured without prejudice to such proper management and conservation. It to ensure that full account is taken of the varied forms of land use and the inter-relationship between wildlife conservation and other forms of land use. ThisAct was enacted in 1976 and 1989 and amended again in 1997. it was revised in 1969.


The Agriculture Act, Chapter 318

     This is an act of parliament that came into operations in 1980, revised in 1986. Its purpose is to promote and maintain a stable agriculture to provide for the conservation of the soil and, its fertility and to stimulate the development of agricultural land in accordance with the accepted practices of good land management and good husbandry.

     Agricultural land means all land which is used for the purposes of agriculture, not being land which under any law relating to town and country planning, is proposed for use for purposes other than agriculture.

     The state intervention has taken two forms:

  1. Regulation of use and development of agriculture land.
  2. The control of transaction in agriculture land.

     The primary objectives have been first of all to secure proper utilization and management of agriculture land so as to maximize output. Secondly, to ensure that economic units are efficient agricultural production, thirdly to ensure that those who hold agriculture land are able to farm it well.

     The statutory frame work for the realization of these is provided by the Agriculture Act Chapter 318; which is concerned with the regulation of use and development. Secondly by the Land Control Act, Chapter 302, which deals with agriculture transactions.

     The objectives of the Agriculture Act are

     The institutional framework within which these objectives are pursued is as follows. There is the

     Sec. 22, 25, 29, 32, 35 and 37 deals with the composition and function of this institution.

     Parts iv, v, xii, xiii deals with the normative framework for the regulation and development of Agriculture land.

     Under section 48, the Minister has power to make rules for the conservation of the soil and the prevention of the adverse effect of soil erosion on land.

     Part (xii) and (xiii) of the Act which also deals with preservation, utilization and development of Agricultural land have for reaching implications for access or ownership of agricultural land.


The Water Act, Chapter 372

     This is an act of parliament to make better provision for the conservation, control, apportionment and use of the water resources of Kenya, and the purposes incidental thereto and corrected therewith. The Ogiek have lived and learned to exist since creation time. Today our rulers behave as if without laws our water bodies cannot be protected. They tend to forget that in every society there are rules and regulations.


The Fisheries Act, Chapter 378

     This is an act of parliament to provide for the development, management, exploitations, utilization and conservation of fisheries and for connected purposes. This Act came into operation in 1989.


Government Land Act, Chapter 280

     This Act was enacted in 1915, repeated in 1970 and revised in 1976. It originated in the Crown Lands Ordinance of 1902. The GLA deals with government grants prior to 1920 whether leasehold or freehold. The register under the GLA is modeled under the Land Title Act, that is its system of registration of documents. Under this system it is necessary to trace title backwards up to the government grant. Conveyance under the GLA must be by way of deed. A deed has three essential requirements. It must be signed sealed and delivered.


Land Adjudication Act, Chapter 284

     Under this act, claims for Adjudication and award of title are made. Once an area of land has been declared to be subject to adjudication, any claims made in respect to the land are dealt with Act. The titles granted under Registered Land Act, Chapter 300. The title under RLA is guaranteed by the state and anyone who suffers loss by reason of mistake is to be indemnified by the state. The general rule under the RLA is that the proprietor’s title is unimpeachable except in the case subsequent registration which can be impeached on the grounds of fraud and mistake. A first registration cannot be questioned under the Act. This Act came into operation in 1968 and revised in 1970.


The Land (Group Representatives) Act, Chapter 287

     This is an act of parliament to provide for the incorporation of representatives of groups who have been recorded as owners of land under the Land Adjudication Act, and for purposes connected therewith and purposes incidental thereto.

     In this act group representatives means where at a meeting held under sections of this Act the members of a group resolve that group representatives shall be incorporated, and elect not more than ten and not less than three persons to be group representatives, the persons so elected shall make application to the registrar in the prescribed names for theirs incorporation under this Act.

     Part III of this Act deals with the incorporation of Group Representatives. Part IV of the Act lays down how the groups are administered.


The Antiquities And Monuments Act, Chapter 215

     This is an act of parliament to provide for the preservation of antiquities and monuments.

     In this act “antiquity” means any movable object other than a book or document made in or imported into Kenya before the year 1895, or any human, fauna or floral remains of similar minimum age which may exist in Kenya.

     In this Act, “monument” means

  1. An immovable structure built before the year 1895 other than an immovable structure which the minister may by notice in the Gazette either specifically or by reference to all immovable structures in a specified area declare not to be a monument for the purposes of this Act;
  2. A rock –painting, carving or inscription made on an immovable surface before that year;
  3. An earthwork or other immovable object attributable to human activity constructed before that year;
  4. A place or immovable structure of any age which, being of historical, cultural, scientific, architectural, technological or other human interest, has been and remains declared by the minister under section 4(10)(a) to be a monument.

     Part II of the act deals with protective declarations, part III of the Act deals with searches and discoveries, part IV protected areas, part V monuments, part VII export and part VIII of the Act deals with powers of enforcement.


Chief Authority Act, Chapter 128

     This is an Act of parliament to make provision in regard to the powers and duties of chiefs and to provided for matters incidental thereto.

     Part II of this act deals with duties of the chiefs, his powers, penalty for disobeying his orders and offences by chiefs. Part III deals with famine relief.

     This Act was amended in 1997 during the IPPG (Inter parliamentary Group, thus making the functions of the holder of office people friendly, as it reduced the oppressive powers.

     Looking at the above acts, it is clear that most of the land laws were enacted after independence, thus, each of the laws impacted on the Ogiek way of life both directly and indirectly as it sought to dismiss their very existence and survival.

     If the government were seriously concerned with the Ogiek plight, an Ogiek Land Act would have been enacted. In doing so, the harmonisation of all this legislation would have been eased, and today, Kenya’s water towers would be intact and safe. Any encroachment would have been met with the stiffest resistance and zeal.

     This might sound unbelievable, but if one were to closely examine the whole complex transactions of the extractions of our natural resources alongside the sustainable development process, one would arrive at the conclusion that our national states, corporations and global elite have had their chance to attain “sustainable development” within the last 10 years since Rio. National and international protocols have largely failed both the forest and the communities who depend on them. This sorry state is repeated across the continent and is the genesis of the ecological conflicts which seem to bedevil our national planning and development process.



Chapter 7: Dispossession


East Mau

     Twelve major clans of 543 families with a total population of 5,484 members communally own the East Mau Forest. The land is held under customary tenure. This form of tenure is what the current advocates of market economy are seeking to nullify at the pretext of poverty reduction and conservation.

     The East Mau Ogiek are set to lose a total area of 35,301.01 hectares and a further 901.62 hectares if the decision by the minister for Environment and Natural Resources to alter the forest boundaries is implemented. The only consolation is that the new regime has promised to restore the rule of law. Ministers have on their part pledged to revoke all the forest excisions done by the previous regimes. The judicial review filed by the environmental groups was set to be heard by a two-judge bench on 24 March, 2003. It will now be heard by a three judge bench, this might be possible in early 2004.

     On that date the government seemed to have changed their mind after failing to justify their acts. This is what they told the Chief Justice. State lawyer Muthoni Kimani said consultations were going on over the government decision to alter boundaries involving 175,000 acres. She told CJ Evans Gicheru that she needed more time to get instructions from the Chief Conservator of Forests, Mr Gideon Gathara, who has since retired on inefficiency and incompetence grounds, alongside 829 forestry officials. The Minister went ahead to make good his intention as per the contents of the Kenya Subsidiary Legislation of 19 October 2001, Legal Notices Nos. 145 and 142 of Molo Forest and Eastern Mau Forest respectively.

     Historically, this was to be the biggest threat to Ogiek of East Mau for they were totally opposed to the settlement process, that would propagate serious erosion of the Ogiek identity, culture and language via assimilation and related processes. This is tantamount to colonisation for which the community has been struggling against for the last hundred years. This propelled them to seek a court order to bar the minister’s decision. This to them was a serious mockery of the courts and the law process.

With the existence of the court orders the Ogiek suit has been and is being rendered a big joke, by the ongoing demarcations and allocations and to a larger extent the gazette notices and the legal notices by the successive Ministers for Environment and Natural Resources.
               — Survival International bulletin (2002)

     This is an indication of how the Kenya Government has maintained a policy, to frustrate all the efforts aimed at legal recognition and protection for Ogiek traditional lands, culture, ethnic identity and language.

     In 1995, the provincial administration refused to recognize the Ogiek land demarcation and allocation exercise. They sent surveyors to begin the work afresh thus marking the genesis of the exodus to Mau Forest that followed. As a first step government draws allotment letters under the heading “Allocation of land at Mauche Settlement Scheme” and each household is entitled to a five acre piece of land. This was a great mockery that rekindled the Ogiek wrath, making them decline the offer and further to march to Kabarak in protest in a bid to see the Head of State. The marches of 14 July, 1995 and 23 July, 1995 were not successful but showed that the Ogiek could not be cowed easily. Attempts by the State House schemers were unsuccessful forcing them to rethink their strategies.

     Secret intelligence groups were sent, all disguised as friendly people who were ready to assist the Ogiek to see the Head of State. The information they gathered was used to kill our plans. The press were hijacked and driven to Tinet where they covered the Tinet Ogiek plight. This was followed by Mr. Ismail Chelang’a’s visit to Nessuit Primary School on 4 September, 1995. He issued a scathing attack on his hosts for being cheated not to accept the offer he initiated in good faith. The elders maintained that they were opposed to the five acres arrangement and further they were not ready to welcome the selected beneficiaries to their ancestral lands. They demanded that they only needed a boundary to separate the proposed forest area and the yet to be, Ogiek trust land. The meeting ended up unceremoniously with both sides dissatisfied, even after the Provincial Commissioner employed four Ogiek youth in the Administration Police Unit, a gesture meant to buy the Ogiek trust in government plans and programmes.

     Back at State House a scheme was worked out. The more than three thousand people in Nessuit slums were moved to Teret, Likia and Sururu areas where the demarcation and allocation started in earnest. Private surveyors were employed to speed up the work while four thousand of their brothers were transported in government lorries to join the three thousand plus people. They were given acting leaders, served with relief food and mobile clinics. They were also given handouts in form of cash and were allowed to sell the trees to meet their needs. Indeed, they were comforted and warmly welcomed. Forest officials were transferred from these stations so as to ease the settlement process. The forests were set on fire, mounted sawmills were banned in Mt. Kenya, but allowed in the newly settled areas, thus marking the exodus of the sawmills and timber merchants to this area to make a kill. The mature trees were sold for as little as one hundred Kenyan shillings or even less.

     The felling of trees and forest burning saw the extermination of bees as well as uncontrolled hunting, thus marking the genesis of the Ogiek economic destruction, suffocation and suppression. To conceal the conspiracy, the Kipsigis were sneaked to Sate House on 4th November, 1995 where they masqueraded as Ogiek and were granted audience. The press also highlighted this occasion. This was done after the Ogiek were able to meet Hon. William Ole Ntimama, Member of Parliament, Narok North who promised them that he would take them to see the Head of State over the invasion of their ancestral lands. After this State House coup the Ogiek were furious, but consoled by the knowledge that there was a very good chance to meet the Head of State on 17 November, 1995 during the 42nd World Ploughing Competition at Egerton University. State House machinery schemed to block them from seeing the Head of State.

     On that day, the same Kipsigis were lined up at Njoro, near the District Officer’s offices to give a rousing welcome to the President, who addressed them and urged them to quickly develop their new pieces of land. The Ogiek’s bid was totally shut out and on learning what had transpired, they went home and planned a major march to State House the following day. As part of the plan, it was suggested that the Ogiek put on their traditional attire and march throughout the night so that by dawn, they would be approaching Nakuru town. The march attracted about 300 Ogiek, all dressed in their traditional attire ready to challenge the gods of life dispossession.

     Word quickly reached the State House machinery and the hostile provincial administration. The next day, the Ogiek were intercepted at Total roundabout, about three kilometres from State House, Nakuru where they were violently dispersed. Luckily enough the press covered the incident and further in its Sunday Edition of the Daily Nation of 26 November, 1995, the Ogiek plight was covered, titled, “The scramble for Dorobo (Ogiek) country”. On the same day at State House, members of the Endorois community were meeting President Moi over their lands in Marmanet forest and Lake Bogoria Game Reserve revenue. A meeting addressed by DC Noor Aden at Mariashoni on 29 November, 1995 ended unceremoniously when Ogiek left the baraza.

     Since then, things have never been the same again. The Ogiek thought of new ways of challenging the land thieves. A strong committee of young patriotic youth was put in place to map out strategies. The vision crafted was that the planned scheme must be opposed at all costs including any government planned barazas. The provincial administration was seen as determined enemies of Ogiek people.

     In 1996, the Ogiek started by identifying with human rights and environment groups. They explored the legal avenues where an advocate’s services were sought, with a detailed memorandum prepared and forwarded to members of parliament to seek help. This was on 16 July, l996.

     The first move by the establishment was to hunt down all the Ogiek rights activists. This saw the mass arrests of the Ogiek youth and elders who were charged with incitement, illegal meetings and gatherings, membership of unlawful organisations, aiding prisoners to escape, sabotage and arson. A total of 67 Ogiek were arrested and locked up for three weeks before being released on bond. One year later the charges were dropped by the state.

     In 1997, the government conspired to kill the Ogiek fighting spirit. It employed divide and rule policy. The first move was made on 10 January, 1997 when a few moderate Ogiek elders were sneaked to Kabarak where they were granted audience by the President. Their talks dwelt mostly on development in which the President supported and further cautioned them against involving outsiders in their land problem and further warned them from allowing their sons to divulge government secrets to the press. He said that this was the only way the settlement process would be smooth. He promised more political favours after the general elections.

     After this visit, the Provincial Commissioner Mr. Yusuf Haji visited the Ogiek on 21 January, 1997 and repeated the same message. He further cautioned the Ogiek not to sue the government if they expected political favours and peace.

     On 19 February, 1997, Mr. Kinuthia Mbugua, the District Commissioner was at Mariashoni again with the same message. In March 1997, Both Mr. Kinuthia Mbugua and Mr. Yusuf Haji allocated themselves pieces of land at Ngongogeri area of Mariashoni location with each getting thirty and ninety acres respectively. They have since subdivided and sold the lands, thus setting the phase for other senior government officials. Mr. Haji opposed the Kenya Forest Working Group visit to Mau forest and on 2nd and 22nd April, 1997 the second Ogiek crackdown was witnessed, with the arrest of Joseph Letuya, Simon Rana, Semboi Oris and some elderly women by both uniformed and plain clothed police.

     When the legislature mocked the Ogiek land claims, the Ogiek mapped out new strategies. On 25th June 1997, the Ogiek filed a HCCA No. 635/97 against the authorities and obtained a court order on 15th October 1997 stopping further allocation and demarcation of the disputed lands. Among the declarations sought in this case were:

  1. A declaration that the right to life of every member of the Ogiek community in Mau East forest including the applicants has been contravened and is being contravened by forceful eviction from their parcels of land in the Mau Forest and the alleged settlement by the Rift Valley Provincial Administration of other persons from Kericho, Bomet and Baringo to the exclusion of the applicants.
  2. A declaration that the eviction of the applicants and other members of the Ogiek community from their land in Mau Forest and settlement of other people on their land by the Rift Valley Provincial Administration is a contravention of their right to protection by law and their right not to be discriminated against under Sections 77 and 82 of the Constitution.
  3. A declaration that the alleged settlement scheme under which the Rift Valley Forest Officer (PFO) and Nakuru DC are allocating to persons from Kericho, Bomet, Transmara and Baringo districts the applicants’ land in the Mariashoni location, Elburgon division and Nessuit location, Njoro division and Nakuru district occupied by the applicants is ultra vires the Agriculture Act, Chapter 318 and the Forest Act, Chapter 385 and is null and void.
  4. An order restraining the second and third respondents (the Rift Valley PC and PFO respectively) from allocating the applicants’ land to other persons to the exclusion of the applicants.
  5. An order restraining the fifth respondent (Wilson Chepkwony) from interfering with the first, second and third applicants (Joseph Letuiya, Patrict Kuresy and James Rana respectively) use of their parcels of land in Mariashoni location, Elburgon division.
  6. An order that the fourth respondent (DC, Nakuru) do remove forthwith from Sururu, Likia, Teret and Sigotik forests and Mariashoni and Nessuit all persons who have purportedly been allocated the land belonging to the applicants.
  7. An order that the first respondent do pay compensation to the applicants.

     On 22 October, 1997, the government defended itself through the then Nakuru DC, Mr. Kinuthia Mbugua. He swore an affidavit on 22 October and told the court on behalf of the government that:

  1. The Mau forest is a gazetted government forest and the Ogiek have been using it illegally.
  2. The settlement scheme covers only the plantation area and does not affect the indigenous forestland.
  3. The settlement scheme does not involve indigenous forestland from which the community, if it so desires will still be able to gather herbs, honey and fruits in the traditional manner.
  4. The plantation forestland is the property of the government who planted the trees therein for environmental and economic purposes.
  5. The applicants would be treated for the purpose of the settlement as any other landless Kenyan without discrimination on account of clan, tribe, religion and place of origin or any other local connection.
  6. The Mau Forest is a gazetted government forest and not a reserve of the Ogiek community as ancestral land.

     The continued surveying of the Ogiek ancestral lands, saw the Pokots community too coming for their share. A word has it the at sixteen hundreds Pokots were to be allocated five acre parcel of land at Logoman forests. The exercise started late 1999 and was to be concluded early 2000. they were to be drawn from East Baringo and West Pokot. The exercise was marked by slow demarcation caused by the thick indigenous forest. The first group of six hundred had to spend several mouths in the thick forests where they were discovered by the Ogiek hunters working on their guns. Word quickly spread and as we alighted via the media and protestory letters, the Pokot who could not take chances, came in dozens by lorries, thus occasioning blackouts in Nakuru district. The five thousand Pokots took from Narok district, who despite reporting of lost cows to relevant authorities, saw new faces who were said to be allocating the whole forest block for themselves. The government moved quickly to evacuate the Pokots. Councillor Letulal was promised to be given the Kiptunga and Lengape areas for his Maasai and Samburu groups. He was assured that no forest block will be left unsettled. This new development leads to total burning of all the indigenous forest.

     The East Mau Ogiek forwarded a memorandum to the Kenya Land Commission of Enquiry into land law system of Kenya chaired by Hon. Charles Njonjo on 29 January, 2000 and were never accorded audience despite the promise. The commission has compiled its report and forwarded it to the former president who in turn dissolved it. Its findings were made public by the minister for Lands and Settlement, Hon. Amos Kimunya.

     Under Gazette Notice No. 6593 of 17 November, 1999, The President appointed a commission to inquire into the land law system of Kenya. The terms of reference of the commission were:

  1. to undertake a broad view of land issues in Kenya and to recommend the main principles of a land policy framework which would foster an economical efficient, socially equitable and environmentally sustainable land tenure and use system;
  2. to undertake an analysis of the legal and institutional framework of land tenure and land use in Kenya and to recommend a programme or programmes of legislation that would give effect to such polices;
  3. to recommend guidelines for a basic land law and complementary legislation and associates subsidiary legislation which would address, inter alia, the following issues:-
    1. the systems of land tenure appropriate for the country;
    2. the system of land ownership and control;
    3. the system of acquisition and disposition of land rights whether by inheritance or otherwise;
    4. the structural framework for the administration of all categories of land whether state, communal or private including the consolidation, updating and improvement of all procedural legislation relating to the registration of titles to and of all other instruments concerning dealings with land and of interests and rights therein, thereto or there over;
    5. the structural framework and principles for the administration and management of protected areas including wildlife sanctuaries, coastal and marine zones, wetlands, catchments areas, forest and nature reserves;
    6. the system of land use, planning, management and development;
    7. the process of land delivery including survey, registration and the preparation of official records relevant to such survey and registration;
    8. the structural framework for the processing and settlement of land disputes;
    9. the replacement of the foreign applied laws.
    10. The repeal and/or replacement of all laws deemed to be obsolete;
  4. to take into account all customary laws relating to land and so far as is practicable to incorporate such of those laws, with such modifications, if any, as may be considered to be desirable for the purpose of making them consonant with present-day conditions;
  5. to incorporate in such new legislation, if thought desirable in the interests of the people of Kenya, with or without modifications, the provision of any laws of other states relating to the tenure of or dealings with land and of any rights of interests thereto or therein;
  6. to prepare a draft or drafts of such new or amending legislation as may be necessary to implement the recommendations of the commission to be developed as indicated above; and
  7. to make such further recommendations as the commission may deem necessary.

     The commission called up on relevant government ministries and institutions; state corporations; professional societies; non governmental organisation; interest groups and individuals to submit to it written memoranda.

     The then President of Kenya, Daniel Toroitich Arap Moi at the State House, on the eve of the new year, had this to say:

My government has addressed the issue of environmental degradation in several ways. I have given instructions to the relevant Ministry to restore forest boundaries in all areas where harvesting of trees for timber has taken place, and from this year onwards, replanting must take place. I have already authorised the importation of timber for commercial use and I will expect that this measure will take away pressure from our meagre forest resources. I expect our learning institutions, including schools, polytechnics and universities to lead the way in environmental conservation and regeneration.
               — Daily Nation, January 2, 2001

     The most visible disguise under which the government has continued to evict the Ogiek has been that of resettlement. For instance, when the Ogiek were evicted from Tinet in 1939, they were said to have been resettled in Chepalungu and Olenguruone which were referred to as Native Settlement Areas. However, some of those who went to Chepalungu got sick and died due to unfavourable climate, hence, the rest returned to Tinet and Olenguruone. This forceful resettlement, was only welcomed by members of the Kipsigis community who masqueraded as the Ogiek and took claim of Ogiek ancestral lands. In 1941, a settlement scheme was initiated at Olnguruone area, hived out of Narok, but the scheme went to the Kalenjin members. The same scenario has been repeated occasionally. For instance, since 1991 and even earlier, the land buying companies of Kalimbula Investment Squatter Company and Kalembula Housing Co-operative Society, both headed by Mr. Gerald Njoroge and Mr. Gachie Wamboto respectively.

     During its year of operations, they did recruite members to buy the land in the Mau Forest Complex. The initial 411 people accepted by the late Thomas Saiyalel Ngayami had the blessing of those organisations. By 2001, the Kalimbula Investment Squatters Company, commissioned a physical planning survey of an area of 11736 hectares in the Mau East. The land is known as Mau Narok East. The land registration No. is LR No. 4426. This is the one area that constitute the 35,000 hectares proposed for excision in the Mau East Forest Complex. Of late the government has been crying foul that the organisations are illegal, although they have been in existence since 1986. The firms are based in Nyeri, but has offices in Nakuru and Laikipia districts.

     The biggest irony is how the government were able to receive the societies physical planning and approving the same. Evident to this is the letter signed by the then Assistant Minister for Environment and Natural Eesources Hon. Stephen Ole Ntutu in February 2002.

     This confirm to us the nature of the business that flourished as a result of the resettlement process which was initiated by the Kanu regime. Indeed it would be right to say that for any looting that took place in our forest, the regime had a share of the spoils. Of late the Nyeri District Commissioner was quoted saying, “we are using relevant authorities to investigate if there is such a land for sale in Nakuru and Laikipia districts”. This is being the greatest joke of the millennium as the security machinery in these districts to have been part of the general mess.

     The firm which did the physical planning is the firm of J.M. Ohas Company.

     On the other hand, livestock diseases were used as the major excuse to justify the colonial harassment and evictions. Today, lack of civilisation and underdevelopment are being used to justify the government assimilative policies and programmes. While the colonial authorities employed game officers and forestry officials to help carry out their intended acts, today the provincial administration and the development agencies are being used to carry on the proposed activities.

     In spite of the Ogiek land question being raised in Parliament in the 1970s, the hostile response ensured that it always ended up prematurely. Consequently, the Ogiek continue to suffer as a result of improper settlement that among other things denied their children access to formal education and quality education due to unplanned transfer from one school to another. In Narok, the Ogiek co-exist with the Maasai. The land is communally owned under the Group Representative Act commonly referred as Group Ranches. In these ranches, the Ogiek are also stakeholders but when it comes to compiling up the members names in the register, the Ogiek youth names are deliberately left out. This means that they are not entitled to get lands and other benefits that go alongside it. The elders who happened to be lucky to get lands are slowly disinherited by the Maasai or made to sell the very same land to the Maasai at throw away prices. However, the Ogiek have not been passive as they have actively fought for their cause. The latest attempt was made by Joseph Towett in a memorandum addressed to the Provincial Commissioner, Rift Valley Province, on the Koibatek communities’ plight and this received a good reaction and by November 2001, the families were promised resettlement.

     Since the whole resettlement scheme had a political agenda, the then government was not ready to face the legal challenges, instead, it successfully manipulated the laws and the courts in order to settle political scores as is evident from the acts below:

     In conclusion, the Ogiek community identity and culture was and is still being nullified, their significant contribution to the rich Kenyan history notwithstanding.

     With the change of guard in the political arena, it would be unfair to accuse the new government at this early stage, but it is safe to point out that what the former regime did and the path it pursued, negatively impacted on the Ogiek lives. Any process aimed at securing the Ogiek rights should begin with the shortcomings of the former administrations. To be friendlier and reverse the conquering and subdue policies, is the road map to peace.

     Politicians should look for other ways of securing votes, besides repayments of their loans. President Kibaki on 18th/2/2003, during the state opening of the ninth parliament, had the following to say about our forests:

     Mr. Speaker, we all know that water is life. My government is committed to ensuring that Kenyans have access to clean water. Plans are underway to carry out institutional reforms within the water sectors. This will separate matters of policy formulation, regulation and water service delivery.

     Sustainable development depends on prudent management of our environment. Honourable members know that this country is faced with serious environmental degradation. This is due to reckless destruction of our forests and catchments areas. My government promises to move fast. It will put in place measures to rehabilitate and protect our environment. I want to declare that, from now on, anyone caught destroying forest and water catchment areas, will face the full force of law.

     The recently concluded UNEP meeting in Nairobi called for tough environmental laws to protect the rich biodiversity. The meeting came up with serious environmental policies and resolutions, with the toughest challenges as noted being the actual implementation.


Narok

     This is an area inhabited mostly by the Maasai and the Ogiek who number about 3000 in the whole district. The land is communally owned under the Group Representative Act commonly referred to as Group Ranches. In these ranches, the Ogiek are also stakeholders. However, when it comes to compiling up the members’ names in the register, the Ogiek youth names are deliberately left out.

     Some 200 members of Ogiek community in this region were evicted from Esinoni Group Ranch and six elders were arrested. Sources reveal that the purported land had a court injunction in suit No. 19 of 1997 and the local district officer had ordered the eviction. The elders were later released on bond of K. shs 20,000 though this happened after spending several days in police custody. In the month of October 2003, the District Officer, Ololulunga division Mr. Richard Ojwang, in cahoots with the local Maasai leaders, instigated a few arrests of the Ogiek leaders on fabricated charges which could not stand in courts. These barbaric acts are meant to make the local white farmers loosened the cash strings from his wallet for that was the land leasing season. This translates to and those who have shall be added and those who have not even the little they have shall be taken away from them, a direct implementation of a biblical verse in the book of Mathew chapter 35.

     In the same region, there also exists another case No. 7 of 1999, Isaiah Cheluget Vs Ogiek elders. Mr. Cheluget once served as a civil servant in the Kanu government, as a Provincial Commissioner. We have also the Enosupukia Ogiek/Dorobo who have been in the centre of the conflict especially the famous ’92 ethnic clashes where they were victimised. Like the rest of the community they have no permanent settlement. The Ndabibi and Moi Ndabi ADC farms which are in their midst subdivided and allocated to outsiders were as they watched only at a distance. They were evicted from fertile places in their ancestral lands and today they live in slopes that are economically unfit for human habitation besides contravening the Agriculture Act. The Sasimuanik and Engaroni Ogiek face the same problem. They are constantly disinherited their birthrights by mainstream societies. Like their counterpart Enoosupukias’, Esinoni and Engaroni group too were affected by clashes. Recent clashes in Mulot area cost them losses when their houses were torched, property looted and displaced, to the colds.

     Spiritually, they have not been left out. They are God fearing people. With the help of missionaries they have constructed an educational centre and several worship centres. Majority of them belong to AIC Church.

     The ruling of SRMCC 19/97 - Narok in Simon Kiwape and 19 others verses Muneria Naimodu and 2 others. dated 27/2/2001 delivered by Narok resident Magistrate S.K. Koros, cancelled all the titles of Esinoni Group Ranch Land Ref: Narok Cis-mara/Olololunga/133 as the learned Magistrate was able to note that, the officials of the ranch continued with their subdivision and allocation in total contravention of the orders of the court and with full knowledge of the cases in which they are named as respondent. The major aim of their acts was to fully lock out the applicants from getting a share of the ranch. It has since been established and confirmed that the applicants are bona fide members of the ranch.

     The respondents have since contested the ruling by appealing in the superior court where appeal No. 164/2001 was heard and determined, with the applicants winning the case. While on the ground, the local Maasai and their allies, the Kipsigis instigated a land clash on the dates of 4-8 July, 2001 which has so far led to the displacement of the Ogiek families in this ranch. A visit to the ranch on 11 and 12 November, 2001 revealed that the families had sought refuge on the nearby group ranches. The Maasai totally barred the families from coming back and further accused them of abandoning the Maasai at the height of the ethnic clashes.

     Their appeal was unsuccessful and, therefore, the courts decision that the titles be cancelled can not be challenged. Where this is not the case then corruption can not be ruled out, as this is the only monster that defies the law. With the change in regime things are bound to change totally as political and corruption patronage comes to an end. The Ogiek families have since supported the minister’s decision to introduce second generation title deeds. Sadly, it seems there would be more parties for there are already people who have bought pieces of land in these disputed areas.

     Some people are eyeing the land to buy and have grown impatient as the courts take long and also seem to be bending towards the Ogiek, which was against the interests of the already established officials-cum-elites. This scene is repeated in most of the group ranches Sasumuani, Olmekenyu, Enkaroni, Enosubukia, and Olokurto where Ogiek are found. In most of these areas, the Ogiek have abandoned their land rights crusades in exchange for peace. For instance, as early as 1970s, the local Maasais who viewed the forest as empty, with the help of their leaders subdivided the lands irrespective of Ogiek protests. This led to serious degradation of the forests thus occasioning the 1986 evictions, which had disastrous effects to the already marginalised Ogiek. They were allowed back in 1992, as multiparty drew closers and today they are faced with evictions as the authorities move into arrest the already escalating environmental degradation. The threat is repeated in all Ogiek groupings. But in areas such as Olpusimoru, the Kimisoi family have found it rough. Mr. Ole Ruba Kutu’s parcel of land was invaded by the local Maasai, subdivided and sold. The original plot no. 347 were retained to conceal the conspiracy. This is how it was shared:

     Another portion of land was taken over for the construction of a primary school. The Kimisoi family have made several appeals to the former ministers for lands and settlement without success They have followed all the complaints channels but the land sharks interest were no match, today all the parties have titles to prove that they own the land. The historic injustices continue. They wrote to the Kenya Land Commission of Inquiry into Land Laws and Systems, chaired by Charles Mugane Njonjo, who replied but ever since their promise of action by the Ministry of Lands, seems to be a foregone issue. The only hope might be the presidential land commission, which was recently given a six months mandate. This is only possible if their recommendations are followed which included titles cancellation.

     Marinwa, Sogoo and Olloigero families have been battling one senior and powerful man, Mr. Isaiah Cheluget and retired Chief Sangale. It is said Mr. Sangale gave Mr. Cheluget 200 acres of land as a friendship gesture in return for political favours. Mr. Sangale was a chief, while Cheluget was a Provincial Commissioner. The main reason, was to strengthen the land subdivision process. Mr. Cheluget used his influential position in liaison with surveyors to acquire a huge chunk of land. His insatiable greed made him get more land and thus preyed on the above families’ land taking about 7000 acres. The families did not raise a finger as by that time he was a very powerful person (Provincial Administrator) and was many kilometres away and only used provincial administration police and officials to protect the land. He is known to have come once and intimidated the local elders, and gave them blankets and some money, a tricky way to buy blessings and assurance.

     During the second adjudication process, the above families lodged complaints with the newly formed land tribunals, thanks to the enactment of the Land Disputes Tribunal Act. The sons of these families Mr. David Mopir, Kamalel Koko, Sigilai Taukei, Joseph Tanki, Kikprop Arap Koko and Maiyo Sang presented the detailed complaint to the tribunal who on assessing the facts approved the restoration of the families’ land. This decision angered Cheluget who moved to court to quash the decision of the tribunal. Judge Andrew Hayanga, dismissed the tribunal findings and thus restored the land to the powerful man, a sure manifestation of how the laws are made for the weak and poor but not for the rich and powerful. The case has so far moved to the Court of Appeal. In the course of the hearing of the matter, it was discovered that in Nairobi, the acreage was more in the map while at the Rift Valley Provincial offices, the map showed a smaller space hence giving the families a legitimate claim.

     So far a permanent secretary in the Ministry of Lands, Mr. Ngeno, has ordered that the disputed piece of land be registered in the name of Mr. Isaiah Cheluget a manifestation of how the powerful are defended by the powerful. The court battle continues! On the ground, criminal charges have been preferred against the leaders of these families, a way of silencing them. With the formation of a Truth, Justice and Reconciliation Commission, a Pandora’s box will be opened.


Enoosupukia Region

     This is region 5000 feet above the sea level, with fertile soils and a high agricultural potential area as well as a water catchment to a number of rivers and streams.

     Ogiek (Dorobo) from Enooseyia, Ilkirragarien, Olmurutie, Ilekinkish and Enoosupukia settled in their present areas before the colonial era. A big population of Ogiek in Mau division (Narok) is settled in Enoosupukia. The Ogiek living in Enoosupukia and Enooseyia are called the Saleita. The Ilkiragarien group are called Olkume, and Ilekiminkish group are called Ilesinoni. The Naro-sura group are called Ildikiri. All these groups combined have 127 families, who constitute three major clans of Ilmakesen, Ilkumae and Ilaiser.

     It is believed that they settled in their present place before 18th century. The environment suits their way of life, as there are plenty of herbs for their health and good neighbourhood. Nobody did any allotment, but according to them, Enkai or Tororo (God) did. Therefore, they believed that nobody could take from them what God gave them. The community is a Maa-speaking group although they are referred to as Dorobo. They are a social to people they know and they hide when a stranger passes by. Their environment guarantees herbs, health, weather and good neighbourhood. Hunting and gathering is considered God given rights, agriculture food stuffs are only a supplement.

     With the environmental changes that are impacting negatively on them, they have started adapting their neighbours’ lifestyles of farming, from the Kikuyu and livestock keeping from the Maasai. They live along the plains of the Loita Trust Land in Naimina Enkiyio Forest. Here, they hunt wild animals and keep bees in rock/stone, tree and earthen caves. Their living standard is very low as compared to the one of the Ogiek living in Mau division and the rest of the Ogiek territories.

     They have enjoyed long periods of peace with very little interruption. This dream was suddenly halted on 26 March, 2002 by the District Officer, Mau division in the company of councillors Lorema Ole Surum of Keekonyokie ward and Tilal Ole Sunguiya together with other administrators. Also present were the Deputy Forest Officer and Divisional Forest Officer. They issued a fourteen day eviction notice after which they would be forcefully evicted.

     The eviction threat was made good by the then Narok District Commissioner, Mr. Joseph Kimiywi. Although the move was politically motivated, it was meant to give the local councillors a chance to reward their followers under a planned renewed land adjudication process.

     The residents of this area say that the first land adjudication process took place in 1984. At around the same period when all the development plans had been finalised, the local Maasai took advantage and sold the land to the farming communities. Ten years later, the people were violently evicted by the very locals occasioning massive loss of life. The reasons given were that the farming communities had interfered with water catchments leading to the drying up of rivers and other watering points. Ever since this eviction, of the Kikuyu, Purko, the Keekonyokie and Samburu, the Ogiek have known no peace. Those who left, questioned the arrangement of having this group left behind. It was seen as a special favour.

     Though all these groups speak the Maa dialect, they still observe and practice their own rites of passage. Child naming and dispute resolution mechanisms have roots in the Ogiek traditions and way of life.

     With the ongoing political, economic and cultural persecutions, the group is yearning for a place to call home, a very logical belief shared by all Ogiek separate entities.

     Politically, the community is only valued when it approaches the electioneering period simply because of their votes. They were not given any civic education, and were only told to vote for the ruling party without being given the benefits. In an official government letter dated 8 June, 1967 Ref: No.ADM.15/28/3/Vol.11/18, headed RE: DOROBO REPRESENTATIVE IN KEEKONYOKIE SECTION: WRITTEN BY Mr. J.Z Rongomas who was the then District Commissioner, promises are made for security and related concerns. The welfare is given weight, which gives an impression that this was a mere acknowledgement that this group exists.


Southwest and Western Mau


Tinet

     This is an area inhabited by Tinet Ogiek (commonly known as Ogiek op Om). It is also an area where many evictions targeting the Ogiek have been registered. A total of sixteen evictions are on record. The government started the subdivision and allocation processes in this area about eight years ago. The beneficiaries of the settlement have been government officials, politicians, businessmen and people from the neighbouring Kalenjin districts. The locals have been taken for a ride and only three hundred and fourteen grown up adults are genuine.

     The assumption by the colonial authorities, is that the Ogiek were officially moved to Chepalungu where an area of 98 kilometres square was earmarked for their settlement. Practically, this was not the case, instead, it was a justification for their settling white settlers within Ogiek ancestral lands. This could be attributed to the quick recommendations that the Ogiek be moved to the reserves of people with whom they had the closest affinity. The fact is that the Ogiek never moved to Chepalungu but instead moved deeper into the forest. Those who moved to Chepalungu were the Kipsigis who had masqueraded as the Ogiek. In Tinet area, there are approximately 2000 Ogiek, the rest are Ogiek impostors. This population includes children and those whose identities are still doubted.

     Between 1939-1941 the Ogiek were said to have been chased out of Tinet. It is further alleged that some were taken to Chepalungu and Olenguruone. Their houses were burnt and cattle confiscated by the colonial government, but they later returned to Tinet because of unfavourable climate. They were chased away again around 1954/1955 but returned to Tinet. These evictions were vicious in nature, the reasons are that, the people to be evicted had no fixed abodes, leave alone property. They had no alternative homes within the forest and could thus move from one home to the other without being seen or discovered. The question of relocation, therefore, can not arise and this raises questions as to the government claims of relocation and the subsequent compensation. The oral history of the community on the ground does not give account of migration.

     In 1977, the government sought to forcefully evict them from Tinet. Their houses, schools and shopping centres were completely burnt down, livestock sold and all their properties destroyed. Most of them were either imprisoned or fined. In 1980-81, the government agreed to their request to be allowed temporally stay in forest stations as squatters until their fate could be decided upon.

     They were not allowed to cultivate or keep livestock, which start to cultivate food crops. They were allowed to construct temporary structures and the normal honey collection, hunting and gathering rights. In 1985 they were evicted again by the government and their houses, schools, and shopping centres burnt. Their properties were also destroyed. They were herded back to the forest stations where they were surrounded by security personnel who harassed and intimidated them. This brutality and lack of respect for the Ogiek dignity included raping and molesting of women and girls.

     The latest eviction threat was curiously issued in a 7-minute meeting where the local district commissioner gave the Ogiek a 14-day ultimatum to leave Tinet. This was in May 1999, it followed utterances by the local Member of Parliament to the effect that the Ogiek should be driven from the forest. Moreover, there was harassment of the Tinet Chief by the District Officer and his enforcers, which the Ogiek protested against by demonstrating in public.

     The latest eviction attempt, which targeted the Ogiek while leaving the other beneficiaries intact, forced the Ogiek to go to court and file suite No. 238 of 1999. The case was highly contested by both parties to challenge the government’s eviction order. The legal advise the district commissioner received from the government legal adviser and which the court admitted as the correct position is that “The rights and freedoms enshrined in the constitution are subject to limitations designed to ensure that their enjoyment by any individual does not prejudice the rights and freedoms of others or the public interests”.

     The court further upheld that the applicants did not give the details of the other persons in this forest. The questions they were to answer are:

     Finally, the community challenge was dismissed on environmental grounds. They were given a fortnight to appeal. Following this decision, the community is said to be on temporary stay notice of the High Court awaiting formal appeal. Ironically, exactly one year later, the minister for Environment and Natural Resources issued a gazette notice with the intention of altering the forest boundaries and excising an area approximately 167,000 hectares. The latest development is case No.38 of 2001 by an environmental lawyer, in Eldoret High Court where an application was filed seeking to quash the gazette notices that sought to alter the forest boundaries. The Ogiek who were in the government side lost the court case for the second successive time. The community were seeking to be enjoined in the suit but the court dismissed them for they were not a party to the government acts of de-gazettement. The Tinet people would have lost 24432.71 hectares to the forest excision scheme, to them a half a loaf is better than no bread at all. The excisions are, therefore, supported since at least some rights to shelter have been recognised and restored.

     The Tinet Ogiek filed Nairobi High Court Civil Case Number 238 of 1999 (Originating Summons) of Francis Kemei and 9 others vs The Attorney General and 3 others. On 23rd March, 2000, the court ruled in favour of the government in a bid to evict the Ogiek to pave way for new settlers in the pretext that the environment is being conserved for the good of the country. After this, the government issued a fourteen-day notice for the more than 5,000 members of the Ogiek community in Tinet (South Western Mau) to quit the forests, they had sought among other declarations:

     This judgement of the High Court rendered by judges Richard Kuloba and Samuel Oguk raises very important issues as regards the Ogiek as an indigenous people. The overall question, which the High Court answered in the negative, is whether the Ogiek are an indigenous people who would claim protection under Kenyan law and International Human Rights Law. This judgment raised a number of questions that depending on the answers that one supplies to each of these questions, would determine whether one can comfortable accept the decision by the High Court or reject it as jurisprudentially limiting and seek alternative ways of vindicating the rights of the Ogiek and similarly situated communities.

     The court dismissed all the prayers that were basically premised on the argument that the Ogiek were an indigenous people. This means that court accepted the explanation by the government that it was evicting the Ogiek for environmental conservation reasons. It further confirms that they upheld government claim to the Mau Forest as government land and therefore do not recognise customary law title of the Ogiek to the forest lands.

     The Ogiek argued that they depended for their livelihood on this forest for hunting and gathering, bee keeping and that their culture was closely knit with the forest. That their lifestyle has been one of conserving the forest except to build schools and churches.

     The government argued that the applicants are not genuine members of the Ogiek community since the genuine members had been settled in Sururu, Likia and Teret. That the government had intended to settled landless Kenyans around the area and later changed its mind when it was realised that the intended area of settlement was a water catchments area.

     The court argued that the Ndorobo have reasonably changed theire economic activity such that it is not dependant on the forest- they no longer hunt or gather. They have modern homes. Their history in the areas is quite recent traceable only to the 1930s. they were nomadic. They build schools and trading centres, activities that lead to environmental degradation. Their culture is also fairly modernized and therefore hunting is a secondary economic activity since they cultivate the land, they are Christian and present generations of the Ogiek are no longer held together by honey but by Christian faith. The court further argued that the fact that the applicant did not challenge the legitimacy of the Forest Act meant that they recognised government title to the lands. They should no, therefore, seek the protection of the law when they are in the forest illegally in contravention to law; which they arguably recognise its legitimacy since they have not challenged it. Further, the fact that the applicants accepted allotment cared from the government shows their acceptance of government title to the forest lands. How could they otherwise allow one who they claim does not have title to the land (the government) to allocate it to the?

     The applicants were not denied their livelihoods since to hunt and gather in the forest one does not need to live in the forest or even own it just like to fish in Lake Victoria one does not have to own it. When the colonial government moved the Ogiek to other land it adequately compensated them. The court further argued that the Ogiek are not comparative with the aborigines of Australia whose native title to land was recognised in the Australian Native Land Title Act since the aborigines were settled agriculturalists. Further more counsel representing the applicants did not adequately address the place of native title in our land laws.

     The argument by the court that the Ogiek cannot accept land allotment cards from the government if they believe that the government does not hold title to the land seems to forget history of land tenure in this country. The nationalists accepted land from the colonialists while fiercely opposing the legitimacy of her majesty’s title to Kenyan land. A history of a subjugated status in society has been considered a factor that would negate the argument of laches or estoppels. This was the finding of the arbitral tribunal in the Cayaga Indians case (Great Britain v United States). The reasoning by the court is conservative and is behind current thinking in the area of group rights. The international consensus is that culture evolves and does not therefore remain static. Under international rights law the question of the right to a distinct culture is provided for in article 27 of the International Convent on Civil and Political Rights (ICCPR).

     In its interpretation of article 27 the UN Human Rights Committee makes it clear that the notion of culture cannot be frozen but is subject to technological transformation over the centuries and decades. The Human Rights Committee observes that article 27 does not only protect traditional means of livelihood but that indigenous peoples could adapt their methods over the years to technological developments and to new knowledge acquired over the years. If indigenous protection will only protect those activities that symbolize time old cultural activity-primitive agriculture, hunting – the culture shall be frozen in time and will in so doing deny the group social and economic development. Legal protection cannot be premised on the fallacious notion of a static culture. If this happened the law would only succeed in facilitating the cultural extinction of the group if they decided to live only within the straits dictated by the protecting the law. The indigenous culture would therefore be delegitimized since it is not meeting the economic demands of the 21st century thereby killing it. Protection must be such as to afford the indigenous culture space to evolve and grow and also borrow from other civilizations.

     The most visible disguise under which the government has continued to evict the Ogiek has been that of resettlement. Indeed, when the Ogiek were chased out of Tinet in 1939, they were “resettled” in Chepalungu and Olenguruone which were called native settlement areas. This so called resettlement programme has continued to date. Every time, the political establishment wants to acquire land, the Ogiek resettlement programme is resurrected and the trends continue as manifested in all the land dealings that were to follow.

     In 1982, part of Tinet named Kiptagich Settlement Scheme was demarcated by the government in order to settle the Ogiek community. However, this effort came a cropper when those who benefited included only government officials such as the then District Commissioner, Benjamin Ogol B. (60 acres), Councillor Lasoi (50 acres) the then Provincial Commissioner, Hezekiel Oyugi (100 acres) and the former head of intelligence Mr. Kanyotu together with some people from Bureti in Kericho district.

     In 1986, part of Tinet was carved out yet again. It was demarcated and named Sinendet with the intention of settling the Ogiek community. This area, formerly called Sotik, eventually did not serve this purpose. Those who were identified to benefit from this land were non-Ogiek majority, again, from Bureti. Moreover, the beneficiaries included senior government functionaries such as the then Deputy Provincial Commissioner, Rift Valley province, Zakayo Cheruiyot (100 acres), Councillor Leitich (40 acres) and the District Surveyor, Langat (20 acres). The government refused to entertain the complaints that the Ogiek raised due to this dispossession.

     In 1988-89, people from Transmara, Chepalungu and Bomet invaded the forest and built shelters. The government said that their settlement there was temporally as it was necessitated by drought and famine and, hence, they would vacate as soon as conditions improved. Later, when the government sent its investigators to find out who in the area needed resettlement, these were the only people whose plight was considered and not that of the Ogiek who were in the forest stations. Subsequently, these investigators went to the forest stations and recorded the names of a few among the Ogiek community for resettlement. Their investigation resulted in the release of the Green Book with registered names of those who needed the resettlement. Only about 200 out of over 3,500 belonged to the Ogiek people. On complaint, a review of the names was done and a White Book was produced. Out of a total of 5,016 people, only about 1600 names belonged to the Ogiek. This was as a result of compromise by the Ogiek self-seekers and the provincial administration who were the principle agents of the state machinery.

     Resettlement was done in Mauche Settlement Scheme and the government stated that it would be using the Green Book and not the White Book to settle people. Non- Ogiek were the first to be settled as they were in plots number 1 to 4,000 and the Ogiek were waiting to be settled in numbers 4001 to 6000. However, when the allocation reached numbers 4000, the operation was temporary suspended only for it to proceed from numbers 7,000 to 10,000. In total, only about 20 Ogiek were finally settled and the rest were told to await further resettlement.

     Representatives of the Ogiek complained directly to the president about this in 1995. The president instructed public officials to record all the names of the Ogiek so that they could be resettled. This was done but the list disappeared mysteriously. However, there were other such lists and these were used to develop a Blue Book consisting of 5,016 people. The Blue Book was presented to the president who promised to initiate a resettlement programme. While the land set aside for this was being demarcated those carrying out the exercise at a place called Laangam met some illegal settlers who chased them away.

     These strangers had been there since 1988. Later, a government representative discovered that there were over 9,000 strangers who had illegally invaded the forest. Another group of over 7,000 had settled in a place called Siratet, also in Tinet forest. The invaders were all ordered to vacate the forest, whereupon they began burning the Ogiek houses and also chasing them away. They raped women, slaughtered cows and stole Ogiek’s properties.

     Former senior government officials among them former powerful permanent secretary in charge of provincial administration and internal security, Mr. Zakayo Cheruiyot, Councillor Wilson Leitich, Kuresoi former Member of Parliament, James Koskei and others forcefully took parts of the plots belonging to the Ogiek to settle their own, namely, Korau (381 plots), Kipsirat (54 plots), Kiplmeywo (over 400 plots), Plantations (100 plots) and Tach Asis (60 plots).

     The Ogiek complained about the invaders to a district officer who, on visiting the area, was violently sent away. He reported this to the District Commissioner who in turn transferred the DO. There was a meeting in July 1998 that brought together all the Ogiek and the outsiders to discuss the disconcerting situation in the area. Later on, there was another meeting where it was agreed that only 384 outsiders be settled in the area. However, the outsiders subsequently refused to abide with this decision, as they wanted over 9,000 resettled. In January 1999, the District Commissioner ordered all illegal settlers out of the forest, which was temporarily adhered to before the illegal settlers returned. However, whatever hope the Ogiek had that they would be allowed to permanently settle in their ancestral lands came to naught in the month of May.

     This was when the Nakuru District commissioner Mr. John Litunda went to Tinet and at Kapongoi Primary School issued a 14 day quit notice. He further disbanded the settlement committee accusing it of corruption and abusing the settlement process. Their major crime was the refusal to accept the settlement of outsiders and further exposing members of Kipsigis community who had invaded their ancestral lands in deeper parts of Ndoinet forest.

     The Ogiek went to court to challenge the eviction order and also to enforce their right to life. The case was lodged at Nakuru, but was later transferred to Nairobi to be conducted by a two judge bench. The case was heard before judges Samuel Odhiambo Oguk and Richard Kuloba. The government decisions were upheld by the judges for reasons best known to the courts. Prayers sought were dismissed. They hastened to add, “in the context of this case we know no safe way for this country and for these litigants, than dismissing this case with cost to the respondent, legal trickery to fill the balance in favour of the aggressor.

     The Ogiek have since appealed, but the scheming behind the scene has stalled the finalising of the appeal. Even with the change in regime, the scheming has never stopped, why stop the it when the business is not over? This invites total scrutiny of the political and legal disputes revolving around Tinet forest which is part of the Mau forest block. The case is between the minority Ogiek and majority called others.


Facts

     The facts of the case were as follows: about 5,000 members of the Ogiek community applied in the high court for among others two declarations namely; that their eviction from Tinet forest by the government contravenes their rights to the protection of the law, not to be discriminated against, and to reside in any part of Kenya; and secondly, that their right to life had been contravened by the forceful eviction from the Tinet forest. The community also sought compensation from the government.

     In the judgement of the Ogiek case, the government opposed the application among others on the ground that Tinet forest is a water catchment area. The learned judge captured the case of the state as follows: “Concerning the position taken by the applicants that they are completely landless, the respondents say that is not the true position and that archival administrative records availed from our National Archives show the contrary and that the colonial government resettled them elsewhere along with other Wadorobo people. But after the said resettlement elsewhere, some people entered the forest of Tinet, with an intention to dwell there without any license given by the forest authority on behalf of the government. The unauthorised occupation of the forest has been followed by numerous evictions since the date of the gazettement of the forest as such. Speaking during the hearing of HCCA 238/99 of Francis Kemei and Others versus Hon. Attorney General and 3 others, Judge Richard Kuloba and Samuel Oguk said, "The government’s 1991-1998 plan to settle all the landless persons (including some Ogiek people) was purely on humanitarian considerations, but the programme did not materialise when it was later found that to go ahead with it would necessarily result in environmental degradation which would adversely affect the role of the forest reserve and a water catchment area, with dire consequences for rivers springing from there which, presumably sustain human life, the fauna and the flora there and down-stream and their environs. So the plan was shelved, at least for the time being". The proposed time being expired on 16 February, 2001, when finally the authority agreed to part with a total area of 24,432.7 hectares under the continuous excision of the more than 67,000 hectares.

     After a careful analysis of the facts and the law, the learned judges dismissed the applicants’ case. With apparent reboding, the judge hastened to add that, “the eviction bid for the purpose of saving the whole Kenya from a possible environmental disaster, it is being carried out for the common good within the statutory powers …. In the context of this case, we know no safe way for this country and for these litigants, than dismissing this case with costs on the respondents”.

     For good measure, Justice Oguk and Richard Kuloba who delivered the landmark ruling added:

     There is a failure to realise that the unsustainable utilisation of our natural resources undermines our very human existence. In grappling with our socio-economic cultural problems and the complex relationship between the environment and good governance, we must not ignore the linkages between landlessness, land tenure, cultural practices and habits.

     Land titles, land use and natural resources management, which must be at the heart of policy options in environmental, constitutional law and human rights litigations such as this one … Indeed, a legal system which provides extensive and simplified procedures for converting public land to private ownership, or which gives a reckless access to public natural resources, with little or no regard for ecological and sustainable social developmental impacts, is a national enemy of the people. We must all be ecological ignorance free; and a justice system, which does not uphold efforts to protect the environmental sustainable development, is a danger to the enjoyment of human rights.


Ndoinet

     The government imported people from Nandi, Kericho, Keiyo, Bomet, Transmara, Baringo, Koibatek and Eldoret. The reason behind was to increase the voting strength of the ruling party. The fruits of this were the creation of two divisions namely; Keringet and Kuresoi Division in this area.

     In 1981, the then D.C Benjamin Ogol held a huge public baraza at Saino Forest Station where he informed the outsiders that the land was meant for the Ogiek only and warned the outsiders to vacate immediately. The outsiders were evicted and Ogiek’s grouped in villages to await proper settlement. But because of political grounds the outsiders once again joined the Ogieks, in villages. These outsiders were once again given first priority to be settled. In 1993 few Ogiek were used as key to settle outsiders at Sirikwa A.D.C farms. These outsiders are from Nandi, Bomet and Marakwet districts. The Ogieks name was used as a bridge to cross the outsiders, for all these settlements Ogiek were still left in villages awaiting their promise but all in vain.

     In 1995 people from Teret (Mauche) were brought to Ndoinet (around Chepkobwot village) where the Ogiek were assembled and about 1300 people were settled immediately on the promised land of the Ogiek. Further settlement was done in 9/5/1996 to these outsiders along with very few Ogiek. The allocation was done by the then D.C. Mr. Aden Noor. Those allocated included prominent people. The Ogieks were allocated deep into the forest which was declared the cut-line area. When the declaration was made in 1997, the Ogiek found themselves once again landless. Once again the Ogiek were cheated. So in our present government we appeal for the total eviction of all these people (outsiders) to give room to the real Ogiot to occupy their ancestral land.


Londiani

     In Londiani forests there are pockets of Ogiek People. Some have been totally assimilated while others are still struggling to regain their identity. The former member of Parliament, Hon. Dr. Bishop D.K. Arap Tanui, made several unsuccessful appeals. One such appeal is contained in a letter to the then Rift Valley Provincial Forest Officer, where the Dorobo (Ogiek) plight was the central focus. The letter is dated 08.05.1997, Ref:DKT/Cons/97. At the time of writing this letter Bishop Tanui was an Assistant Minister in the Ministry of Commerce and Industry.

     The other acknowledgement of this group appeals is from the then Londiani District Officer H.K.RONO. In a letter dated 3 October, 1999 Ref: LON/LOD.16/1 Vol.IV(185), headed BRIEF ON UNSETTLED DOROBOS, The DO acknowledges historical claims, which date back to the colonial era. It goes on to give the reasons of eviction of these groups. The eviction is said to date way back to 1978, where the eviction was justified to create room for reforestation of the Mau Hills. Government records classified them as squatters.

     According to the officer, there are only four groups claiming forests occupation rights these are: Masaita, Sorget, Malagat and Tendeno. Their request was directed to Mololo – Sorget settlement. They appealed to the then President of the Republic of Kenya H.E Daniel Toroitich Arap Moi who issued instructions to successive district commissioners, Kericho District, who were Timothy Sirma, Nicholas Kipchumba Mberia, Joseph Mangira, Athman Shauri and others. To them the target was Moi Sorget Secondary School and Primary Schools which were closed way back 1988.

     There are about 150 people of Ogiek descent in the Tinderet forests (Warego forest blocks) whose problems are similar to those of other Ogiek. Their evictions date back to 1992. In the month of April, 2000, the then Kericho DC wrote a confidential letter to the PC, Rift Valley Province, Ref:G.43/Vol.1/88 in reply to the allegations that there was a presidential directive that the squatters be settled. The genesis of the so called presidential directive, was a letter to by John K Koech, Samuel K. Sigei and Francis K. Martim to the PC, through all the juniors offices. This letter was a follow up of an open letter “To Whom It May Concern” by the Locational Chief Mr. James K. Koskei. John Rotich (Provincial Forester) allocated himself 17 acres of the forest land and built a saw mill at Sorget Forest Station. Minister Kipng’eno Arap Ngeny brought his people from Soin location, Belgut division of Ainamoi constituency and renamed the scheme, Soina Settlement Scheme, hence driving away the Ogiek. Most of the schemes around this area were taken by the mighty the powerful in the former regime. These schemes are partly stalled, due to inside fightings.


Koibatek

     Koibatek district was recently created after being curved out of Baringo and parts of Nakuru districts. The forest areas bordering Nakuru district were transferred to this new district for strict conservation and for extracting of their natural resources by the local people. The scramble for the resources has only been left open in the areas occupied by the Ogiek in East and West Mau forests.

     In 1995, a local saw mill owned by Raiply and its sister, Timsales, was closed down on political grounds. Since then its facilities have been moved to Elburgon town near East Mau forest. This was to pave way for quick clearing of the intended lands in East Mau for settlement. Eight years later, thousands of acres of forest plantations have been cleared and ten thousand people settled. What a clever move! The West Mau forests were being preserved as total or partial clearing would lead to increased frost which would affect the tea farming and flower industry, in the sistrivts of Nakuru, Kerivho and Bomet.

     This is an area mostly dominated by Kipchorngwonig clan which has its family roots in Tinet forest ((South West Mau Region). The population in this region is approximately 300 people comprising of 13 families. Their re-settlement question is still pending. They consider themselves as squatters in government forest. They live in village centres or neighbouring farms where they depend on forest for their survival. They are found in the Mosop (Tinet Timboroa) Esageri (Visoi Ogiek)E/Ravine (Maji Mazuri Ogiek)divisions of Koibatek district.

     Major families in this group are Matingo, Tango, Ndigis, Boisima, and Lees respectively. Their grandfathers are said to have lived there since time immemorial and to date their children are yet to taste the fruits of independence and their birthright. They have lived in the forest until they were evicted on 15th April 1987. Following this eviction they moved to neighbouring farms like Ngesumuna, Nakuru, Tarkwei, Mawe, and Kimage while others went back to the forest. In all these farms they work as casual labourers earning very low salaries and live in abject poverty. They can not afford to take their children to school and meet family needs. The other side of the story is that the community’s suffering was as a result of improper settlement which caused children to suffer for lack of access to formal (quality) education.

     During the colonial era, they had a leader by the name Esageri. This is what gave them the name Esageri Ogiek. During this exodus, their acting chief was Mr. Motingo. Koibatek is a name given by their neighbours. Its correct spelling is “Koi-po-tek” whose translation is “this house of bamboo,” this is because they made dome shaped houses using bamboo reeds or stems for camouflage during the night and during raids by close knit societies and groups.

     History has it that the Ogiek dynasties were dispossessed from the mountainous regions. Ironically, it is here at Rongai that the first forest station was established by colonialists. Today, out of the 45 forest stations across the country, 15 or one third are in Nakuru district.

     Archival records show that the colonial authorities made the following recommendations on behalf of Ravine Ogiek:

     The concession was confirmed as from 1 January 1912. However, 48 years after the concession is over, they are yet to get their native reserve. Any move to ask for their rights invites the wrath of the millennium from what has come to be known as their host. The provincial administration too are not left behind, the only difference with interested party, is that they address the issue from a district security and development forum point of view.

     Dr. Misoi the former MP for Eldoret South has severally raised their land matter with the Uasin Gishu District Commissioner but with little success. The Ogiek land question is said to have been raised in 1970s in parliament but the response was always hostile.

     A memorandum by this writer addressed to the Provincial Commissioner Rift Valley Province on the Koibatek community’s plight received a response and by November 2001 the families were still being promised resettlement. This promise sent them in deep sleep. Today, they have no future plans as long as their peace is maintained. The quest for their land rights is almost a foregone conclusion.


Laikipia

     Laikipia is one of the administrative districts within the expansive Rift Valley province. It is the home district to several pastoralists and agriculturists, with scores of white settlers. The district is rich in wildlife and has been a very important tourist destination for the country. Nanyuki town, its headquarters, is the gateway to the Northern frontier. Given the background, it is clear that a people with insignificant background such as the Ogiek have very little or no influence as they are not counted as part of the district natives. It is thus not surprising to hear that for the last 50 years, the Laikipia Ogiek have been battling against discrimination by the locals. Presently, most of them are found in Oljogi areas where they live in harmony with the Laikipia Maasai. Historical legend has it that the Ogiek dispersed from a place called Masaapa. This was when they were evicted from Mt. Kenya and Aberdares by the farming communities. At Laikipia, it is said they were violently dispersed by the pastoralists after the death of their only leader “Paruswom”.

     As survival for the fittest became the option, the Ogiek dispersed to various directions, thus leading to their current respective areas of occupation. However, a few people remained behind and are currently called Oljogi and in another term marti – a Masaai term meaning a swarm. In Samburu area they are locally known as Ilng’wesi’.

     Some were at the Thomson Falls area. Their lands were later taken by the white settlers, who not only sought to criminalize Ogiek affairs, but also evicted the few who remained. Archival records show that they were herded to Samburu tribal reserve. This is in line with what was done in 1930s by the colonial authorities, to one of our members in Naivasha by An assistant superintendent of police, Naivasha on 16 March, 1931 (See Archival records of the colonial authorities RE: A77/14/31). We quote from a letter addressed to the attention of Provincial Commissioner, Rift Valley Province, Nakuru, “I have the honour to inform you that the Dorobo (Ogiot) is a trespasser on Captain Hughes farm was fined Kshs. 30.00 by District Commissioner, Rumuruti.” This amount of money by that time was not easy to get and thus ensured a jail term without appeal. This was meant to send a clear signal to the rest that they either toe the line or face the music.

     The farms he is said to have trespassed are Dorobo farm No. 2911 Thomson (22/2/1931) and farm No. 2913 Captain Hughes 13/2/1931). The Ogiek who were thus residing in Laikipia were traumatised and lost their self-worth. Today, they have been reduced to landless and identity beggars. Their fate seems to have been sealed. Those who still strongly identify themselves with the Ogiek have since moved to Eburu forest where they are leading a quiet life. The conservation authorities do not want them either in this Eburu forest. Their calling Eburu their only home and identity, is seen by distracters as a joke carried too far. They have organised themselves though they are only three families, Chuma Mebarne is their leader.


Mount Elgon

     Mount Elgon is in Western province in the Kenya-Uganda border. The surrounding communities are the Saboat, the Pokots, the Sabei, the Gishu and the Luhya. The Ogiek are the original occupants of this mountain. However, successive governments and their provincial administrators have refused to recognise this fact. For many years, the land has been alienated to benefit the neighbouring communities, while the plight of the Ogiek has been ignored. The community has made various attempts to address this issue but in vain. Instead, the government has gone further to encourage cattle rustling and other criminal activities. Marginalisation and disinheritance, forms part of the government policies and programmes, as it seeks to please the dominant communities.

     The Chepkitale community is a small ethnic group that has resided on the slopes of Mt. Elgon for many centuries. They are part of the Ogiek community, but since the colonial era, there has been total confusion concerning their identity. They have received mistaken identities either intentionally or otherwise from the administration of the day and from other neighbouring communities. They have been considered as the El Gonyi (Konyi), Elgon Maasai, Kalenjin minority group of the Saboat as well as the Ndorobos of Mt. Elgon (Chepkitale).

     The confusion about the identity of Chepkitale community has created a lot of problems as regards land and, political rights, cultural interference as well as socio-economic issues. The land problems experienced by the Chepkitale community started when colonial settlers took land in Kenya. This was highlighted through evidences and complaints in the Carter Land Commission of 1932 and other subsequent commissions and ordinances. During the colonial period, the Chepkitale were pushed to a Native Reserve (Trust land) of about 80, 000 acres on the top of Mt. Elgon. They were denied access to the lower part of the mountain that had a thick forest and was more hospitable. After independence, this community was not considered among other Kenyans in settlement programmes within the former white settlers’ farms.

     In the 1970s, the government proposed to settle them in Chepyuk, which forms part of the Mt. Elgon Rain Forest. The settlement exercise brought in a lot of problems for this community as they were forced from their native reserves in the pretext of settling the Ogiek (Ndorobo). However, the Ogiek have not been settled in the proposed land up to date due to interference from the land grabbers and “politically correct” members of the neighbouring communities. They have been subjected to all manner of humiliations and mistreatment and ended up being landless and unable to lead a decent life like other Kenyans. Recently, the Government robbed them of their Trust Land by turning the Chepkitale Native Reserve into a National Game Reserve. This was done on 6 June 2000 as per the recommendation of the Mt Elgon County Council to the Minister of State in the Office of the President.

     They number about 2000 with leaders in both the local administration and civic authorities. They have appeared and sent memorandum to government bodies and commissions with the highest attempt being to see the president. Dr. Johnson Maasai Changeiywo is a son of this group. He is the current chairman of the Department of Curriculum and Instruction in Egerton University. When he saw that the land struggle was far from being won, he took the initiative of encouraging the youth from his community to take education seriously. Fred Matei, has for the last three years has been translating the bible into the Ogiek language.



Chapter 8: The Reality


Message

     In this time of environmental and cultural terrorism, the Ogiek feel humanity must work together not just for survival but also for quality of life based on universal values, that protect the delicate inter-relatedness of life that protects us all. Biodiversity is the term for this intricate interweaving of life that sustains us. “Yes own the resources but remember that we are related to this life” The Ogiek share the following views on the settlement schemes initiative:


Tidings

     Members of the Ogiek community have seriously suffered in the ever changing political landscapes of our nation. They have been sacrificed for political selfish gains and are still made Trojan horses for a race they have never applied for. Without their consent they have been made proposals and successfully marketed. Today in the outside world, it is difficult to understand the Ogiek demands for there are different group’s speaking for and on their behalf.

     In accordance with the Ogiek understanding of multi-party and also the insider’s views, multi-parties started in 1985 and was only made official through the repeal of section 2A in 1991. We would like to explore a few activities that justified the existence of multi-parties as from 1985 to date.

     By 1985, I was already a grown-up youth and in the same year I was initiated into adulthood. With this initiation I thus got a privilege to be with the Morans (Maasai Morans) in some parts of Narok where the members of Ogiek live among the Maasai. Here I got to hear that there are certain members of certain tribes who were disaffected with the existing regime. The same members had benefited a lot by grabbing land from other tribes, particularly the Maasai and thus, if the Maasai wanted to reclaim their sovereignty, then they had to evict this group from their land and possibly drive them to their areas of nativity. In the same areas, it was rumoured and later it came to pass, that the same group were training in the forests using arms with a view of overthrowing the government. It was also taken that this group was not grateful that they had been hosted and that explains the reasons as to why they wanted to totally subdue the area natives. We the Morans, felt that we had a duty to reclaim ancestral lands as well as nip these dishonest groups in the bud.

     But this was not possible as it could have drawn them to the state owned forests where they were already settled in large numbers. So, the rumours continued that the same group had guns hidden in the forests, in tree trunks and in the beehives. The beehives were targeted for destruction.

     The rumour continued and it got roots and flourished. By then I was still a student at a local primary school and a candidate for that year (1986) Kenya Certificate of Primary Examination. Although I spent most of the time in school, I still had an opportunity to be with my neighbours and thus get wind of the rumours.

     To counter this emerging force, it was suggested that a number of modalities be put in place. One of these strategies was that all the land be surveyed and allocated. It was said that the indigenous forest bordering these communities be allocated reclaiming the lost land as well as putting a buffer zone to areas between these communities and the forest. The most important part, being to monitor the arming activities. This part of the activity continued in both Narok South and North constituencies. I believe that the same was carried out in several other parts of the country.

     The first part of the exercise of settlement scheme saw the introduction of the change in the Forest Policy by the government in 1987. This was meant to evict all communities who were residing in the forests and relocate them to urban areas and other rural areas.

     There was also the introduction of the Nyayo Tea Zones that were set to achieve the same aim. This led to the eviction of all the members of non- Kalenjin tribes in 1987 from East Mau, West Mau and other forests across the country and the attempted relocation of the members of the Ogiek Community to Ndoinet area in West Mau in 1989.

     To protect their existence, the Ogiek did participate in successive commissions, task forces and select committees. The famous one is the Saitoti Kanu Review Commission. They also wrote letters and correspondences to the provincial administration. One such letter was answered by the Rift Valley Provincial Commissioner, Mr. Yusuf Haji on 19 January 1991, Ref SR.CORR. 3/1/1 Vol.XI/154. Around this time, ethnic clashes rocked several parts of the country, with the hardest hit areas being those that bordered the targeted forests and Agricultural Development Corporation lands. The effects of the clashes included cattle rustling by the Kalenjin, but this was blamed on the Ogiek. They were also blamed for the clashes and the idea was to isolate the Ogiek from other communities with the aim of making them to accept the Kalenjin community, who were then eyeing their land. This was partially successful, since not before long, the Kalenjin started arriving in the Ogiek ancestral land. Ever since justification has been made that the Ogiek are part of the Kalenjin company, despite the fact that the Ogiek have got no shares in the Kalenjin, culture.

     The East Mau forest is said to be leading in Kenya in timber production from the harvest of both exotic and indigenous trees. There were approximately 150 saw mills situated adjacent to the forest in addition to about 200 illegal tractors mounted with saw-benches all over the forest. The forest was declared Crown Land in 1930, and made a nature reserve in the 1940s, it was officially gazetted in 1954 as a forest reserve under the Forest Act, Chapter 385. On retirement, the Forest Department employees were taken back to their original areas of abode. It has been argued that the original intention of the colonial government for declaring East Mau forest gazetted was to create a buffer zone between the Nature Reserves (Maasai who had cattle) and their areas of residence; the white highland. This would stop Maasai cattle from getting into contact with settler cows, for they would spread diseases.

     By the end of 1994, the Ogiek had witnessed the arrival of the Kalenjin sub-tribe in their ancestral land. Surveyors from both the government and the private sector from the same ethnic background were deployed in strategic areas in East Mau Forest in readiness for the settlement exercise. In early 1995, survey work started in Sururu, Likia and Nessuit respectively. This was the beginning of the scramble for Ogiek ancestral land. Forest laws and policies were set aside, land adjudication process was shunned while Ogiek customary land rights were disregarded. The question of who is smarter in grabbing was the issue, political supremacy notwithstanding.

     Between 1998 and 1999, there were warriors or militia present in most of this forest. The groups were in thirties to several hundreds. They were trained and fed on relief food. Their presence worried the Ogiek who felt the hidden agenda was purely aimed at their lives and economies. It is believed that the group is very much alive. The group of militia is said to be from Transmara and Baringo districts.



Chapter 9: The Struggle


Facts

     The Ogiek struggle to repossess their ancestral land is not a new phenomenon. They have been fighting against the invaders of their ancestral land ever since they encountered other migrating communities in search of pasture and land. They have been fighting to restore their hunting grounds and ancestral territories for close to five centuries. Despite these undocumented struggles and existence of treaties between the Ogiek and the incoming communities, little has been done to respect their hospitality and generosity.

     Lately, politicians have decided to use the Ogiek ancestral land as baits to secure votes. This started immediately after the 1992 general elections, although it had been planned much earlier. The climax came in 1995, when the allotment letters were to be given to the Ogiek people to test whether their entrenched poverty would make them accept the offer, and to a larger extent, swallow their pride.

     The Ogiek resisted and went ahead to hold several unsuccessful demonstrations. They tried and indeed engaged the press and on 26 November, 1995, they hit the headlines. This was to be the genesis of the real struggle as they were determined to expose the identity of the land thieves. Disowning the whole settlement process, was the only option, for any partial acceptance would be the end of the whole bargaining process. Ogiek elders approached Hon Njenga Mungai who promised to table the Ogiek matter in parliament. President Moi invited some Ogiek to Kabarak and accused them of being traitors for not supporting the settlement scheme. He made them many promises including nomination to parliament if they supported the scheme.


Commencement

     The department of Overseas Development Association (ODA) as early as 1991 – 1992 was contacted by the Kenya Government to conduct an environment impact assessment on the Mau forest complex. The research was conducted by Kenya Indigenous Forest Conservation known as KIFCON led by Dr. Peter Waas, J. Rotich and Liz Alden Willy, all renown conservationists, the aim being to determine areas where the members of Ogiek Community could be made to reside permanently. They did the work for two years, and compiled a list of 1800 names. Their recommendation was that they doubted the authenticity of the people in whose names they compiled. The details being the mobile houses, the absence of evidence of settled life, and development related activities. The report was handed over to the then President of the Republic of Kenya, Daniel Toroitich Arap Moi, who in turn handed it over to the provincial administration who doctored the report and came up with a book which had three thousand five hundred out of which the Ogiek were two hundred only. The two hundred were to be used to appease the Ogiek and make them soften their stand and approve the planned exercise. This was made possible through a meeting held on 23 February 1994 between the provincial administration and Ogiek leaders, at Nessuit Primary School. This historic gathering was well attended.

     The ODA, currently the Department of Finance International Development (DFID), recommendation was that the habitable area available in Mau forest was only twenty five thousand hectares. They were to be available to the Ogiek to make them human shields occupying five kilometres radius surrounding the forests. This new approach of conservation was hijacked and instead land made available to government political and economic supporters. The generosity made it even worse for the land and trees was open up for grabs. Today the Ogiek are blaming the aggressor who woke up the antelope but not the killers. To them the surveyors and beneficiaries are innocent. Security is vital to conservation. The security of the government is said to be paramount, unlike making the forest a habitation for criminals and government saboteurs.

     In February, 2002, the Kenya government on the advice of the multinational co-operation, commissioned a new survey in the proposed areas for excision with a view of retaining critical water catchments zones which politically were put as part of settlement areas. The area found habitable was a total of 32,000 hectares part of the total 67,000 hectares. To redress the historical injustice, this was to be an Ogiek home, devoid of the land grabbers. On March, the same year the environment organisations went to court in a judicial Review No. 421/2002, this too had the Ogiek blessing.

     When the environmental groups, church organisations and multinational co-operations, both from local and international made wild noises concerning the government move to part with part of its forest cover for the so called settlement purposes, the then Kanu regime gave up to its demands and a reputable consultants who works with the United Nation Environmental Programmes, was contracted to review the excised boundaries, with the sole aim of restoration of important water catchment areas. This work started on February 26, 2002 and ended on 2nd March 2002.


Conspiracy

     The government conspired to degazette huge chunks of forest in the Ogiek ancestral lands for what they termed as settlement purposes. The Ogiek were torn between rejecting and accepting the scheme. For those who accepted the scheme had to strike a deal with the powerful land sharks in accepting the proposed five acres system and also by going to courts to defend the government decision. It was against this background that our Tinet brothers went to Eldoret court to oppose the environmentalists who wanted the excision notice quashed. Those who felt that the government had ill motives in the degazettement saw the scheme as seeking to interfere with their land holding arrangements, besides nullifying their identity and robbery of their ancestral lands. These patriots have always understood that the government was giving away their ancestral lands to buy political and economic patronage. This is because those who were settled are the very same people who were used to create buffer zones for the ruling party during the infamous ethnic cleansing. They did this by disorganising and disrupting their lifestyles and economic bases. The wave of federalism was engulfing the country like fire. They had a moral right and duty to challenge what did not please them, despite having enemies and traitors too among them. The traitors harboured the feeling that they had lost an opportunity of grabbing land before the departure of the then president from the office. They hoped to benefit from his generosity addressing the plight of the landless including the Ogiek. Getting title deeds was proof that they owned land besides the much touted advantage that titles can be used as collateral to secure loans.

     The government too supported the side it felt comfortable with. It supported them financially, morally and materially. It thus encouraged their active participation in the Eldoret case, while in Nairobi courts the less favoured had their case postponed and the government refused to file replying affidavits. By June, the Nairobi Ogiek case lawyer was being persuaded to have his case transferred to Eldoret and have it consolidated with the environmental lawyers, a position the Ogiek objected and felt they need to go it alone, and have their case stayed in courts no matter how many times it would be postponed. They saw the government move as refusing to accept the Ogiek challenge and wanted the Ogiek case to be seen as an ill advised move by the environmental groups. They also wanted to show that the Ogiek do not know what they want or were hijacked by individuals or groups keen to sabotage government programmes, for selfish reasons. There was even a secret move, to hire a hit squad to eliminate this group and their supporters, particularly the rigid leaders. The biggest question was why a whole group of peoples’ lifestyle would be disrupted, by a bunch of ungrateful fellows? The majority must be saved at all costs.

     With this vision and with the Ogiek support, the Ogiek patriots have maintained their struggle and faith. On July, the Government side still maintained belief that the Ogiek have got no business in Nairobi since the determining case of the whole degazettement success lay with the outcome of the Eldoret case. It was thus surprising that when the Eldoret Judge, Roselyn Nambuye ruled that the Ogiek and other purported squatters had no business in seeking to be enjoined in the suite. A sinister motive was read in the ruling.

     Councillor Tuei from Kiptororo ward in Mau West forest was the first to speak and told the administrators that their office was the stumbling block in the Ogiek pursuit for justice. He narrated how these offices were instrumental in subdividing the community’s land and allocating to the politically correct and thus setting the current exodus of these people to the Ogiek ancestral lands. He informed them that the surveyors were the greatest culprits in the plunder of his community’s ancestral lands. A trend of emergent events never witnessed in their history of existence. To him, title deeds are tools for legitimising the institutionalised fraud and robbery. He informed the attentive audience that they knew each other well and they are capable of solving their land problems without the involvement of outsiders, including the provincial administration.

     The elders present, represented all the villages in eastern Mau, south west and western forests. The administrators told the elders that they were capable of enforcing their demands and on condition that they withdrew their pending cases in courts unconditionally. The elders objected and demanded from the Provincial Commissioner that his office should first remove the people planted in the Ogiek ancestral lands, and return them to their areas of nativity. They went ahead to say that if it is the question of security, the Ogiek are not enemies for they have always protected these forest from unlawful activities.

     On hearing this, the then Provincial Commissioner, Mr. Peter Raburu lost his temper and threatened the elders with dire consequence before he regained composure and said that he will meet the Head of State concerning the matter. The furious Ogiek elders told the Provincial Commissioner that the Ogiek are not in any hurry to withdraw or conclude their cases and were patiently waiting for the president to remove his people, and further added that he should not try to interfere with their cases in courts. The meeting which had initially started with a word of prayer ended unceremoniously. Since then, the Ogiek unity was hammered and this writer was mandated to prepare a detailed memorandum to forward to the Head of State at an appropriate time.

     In December, it was the Ogieks’ turn to put their demand before the Constitutional Review Commission at their invitation. Dressed in their traditional attire, Charles Sena Saina and Kimaiyo Towett made extensive proposals at Water Buck Hotel Nakuru. This chorus was echoed throughout, with the opposing camp receiving scathing attacks for their paymasters and clients, the land grabbers.


Independence

     In 1963 when Kenya attained self-internal rule, the Ogiek were caught unaware at the eve of independence. At the midnight of 1 June 1963, the Ogiek of Nessuit village armed themselves and kept vigil throughout the night, fearing the possibility of attack by the majority Kikuyu in the neighbouring village. This village is on government record as a Dorobo village.

     To them, the independence could mean that they would be attacked in revenge for their support for the colonialists who were cracking down on Mau-Mau dissidents at the peak of the emergency period. This could be supported by the existence of two police camps at Nessuit Kemunto village and Mariashoni in Kaprop village. These police units were used to guard the colonialists’ property such as the local saw mills and livestock in white settlers farms. The Ogiek were employed by colonialists because they knew their hunting terrain well and thus, they could provide useful information about hiding grounds of the freedom fighters and their supporters. This working relationship was based on the understanding that the colonial government would approve the Ogiek as the true owners of the Mau forest as well as the targeted beneficiaries of the white settlers farms when the country attained independence. It had become clear that independence was inevitable. Self re-organisation and future security was a matter of concern. Burying the hatchet was inevitable for mutual trust and co-existence. The Ogiek ancestral land, which was under the central forests of 1930s and still is, comprises the Ogiek trust land but the independence government has since refused to recognize or restore it. The Ogiek honour this forest for its religious significance, their land tenure and as a symbol of ethnic and language identity. While other communities too support them, the establishment finds it hard to release a vote catchment zone to an insignificant group.

     Although the Ogiek ancestral land was classified as a central forest and enshrined in the constitution, the subsequent sub-division that took place altered the forest boundaries without extinguishing the existence of forestry. However, by 1968, Ogiek unity had been restored across the country as leaders were meeting regularly to chart the way forward for the Ogiek community. They were at the same time preparing a memorandum to request the government to address their land question and identity. The press also was able to highlight the community’s plight, which was covered in the Nation Daily of Wednesday 23 August 1968. This saw the biggest Ogiek leadership gathering ever witnessed and which made the regime to rethink its strategies.

     By 1970, the Kenyatta Government had come up with a solution to the Ogiek land problem whereby Lake Nakuru Settlement Scheme was initiated. It was officially opened in 1971, but in 1972, the then Nakuru District Commissioner Mr. Warioko cheated the Ogiek elders into accepting sub-division and allocation upon which the scheme was invaded and flooded. The Ogiek later changed their minds with the majority rejecting the scheme and opting to stay in the Mau forest complex. This could be likened to the Colonial Government’s setting up of the Olenguruone Settlement Scheme in 1941 after their earlier mission of relocating the Ogiek to Chepalungu failed. This ceaseless scheming has continued to date.

     The Kenyatta Government felt threatened by the Ogiek demands and their resistance to form land-buying companies so as to participate in the land distribution. Mau forest was a source of raw materials for Timsales Company in which President Kenyatta owned shares. He thus had to counter the Ogiek claims by destroying their identity and their economic base. Grazing permits were introduced, education programmes disrupted and shelter and housing reduced to particular areas with the river banks and water catchment areas, which was hidden from the outside world. This was to ensure that visible claims are brought to an end or obscured from the development agencies. The Ogiek villages littered all these forests and their life was uninterrupted as long as they kept their peace.

     On 16 April 1977, the Ogiek awoke to the wrath of Kenyatta men. The Provincial Administration, led by the PC, Rift Valley, Mr. Isaiah Mathenge, moved to areas inhabited by the Ogiek and torched their huts, confiscated their livestock and arrested those who resisted. They were to face fabricated charges later. The Ogiek livestock were used to feed the then Ngorokos or private army that were led by Mr. Benard Hinga. The areas mostly affected were Sotik in West Mau and some parts of Transmara and Tirap forests. The Ogiek of Mau East Forest were less affected as they stood united and had the option of going to Narok if things did not work in their favour. This was a repeat of another failed attempt of 1968 by the same forces who sought ways to counter the emerging unity. Some events that happened before and after the Kenyatta succession had some impact in the Ogiek way of life. Allowing of people to farm in the forest during Kenyatta’s regime provided a pool of votes and made those doing the shamba system to temporarily forget the quest for land as they were content with the profit they were making besides their flourishing business. These short term political gains led to an increase in the population of farming groups. Others were just as it is today, involved in the indirect exploitation of the forest resources.

     One remarkable event occurred when Mzee Jomo Kenyatta was travelling to Molo area. On his way he noticed that some rivers had their water volume reduced or drying up. He suddenly stopped his entourage, and demanded an explanation from the water minister and also from the minister of Environment and Natural Resources. The answer he got was that some people had interfered with the water catchment areas and the indigenous forest. His immediate reaction was that the majority of Kenyans downstream should not suffer from the misdeeds of a few ungrateful people upstream who want to turn Kenya into a desert. This planned ecological disaster will not be condoned by his government and thus demanded immediate action.

     The following day, the people awoke to find forest guards who cleared off their farm produce without notice. Since then the Kenyatta regime was lauded for respecting the environmental rights and the rights of the Kenyan majority who depended on the forests, as regulators of streams flow and flood control.

     This eviction did not hurt the Ogiek. In fact it was welcome news because to them those who targeted the destruction of the indigenous forest were invading the Ogiek privacy, besides destroying their beehives and sacred hunting zones. This eviction also ensured that no more exotic trees were planted to replace the indigenous ones. The farming groups had formed a habit of clearing the virgin forest which was ideal for maximising profits, while the forestry department planted the exotic trees. The clearance ensured that the growing population had enough room for cultivation.

     During this Kenyatta succession, the interests of the Kenyatta people utilising the Ogiek ancestral lands for economic purposes outweighed the Ogiek interest. Thus the Ogiek land question was shelved. Since addressing it could have meant the end of the lucrative timber industry and also the loss of the many farming families in the forest. It also meant a change in forest policy to allow joined forest management and the Kenyatta’s were not ready to accept this game of minority rights after all the Kenyatta regime was against the federal system. Being an economist, he was against the customary system of land tenure that was considered economically insignificant. Hence, all the communities were to move towards market economy. To him the Ogiek were just like any other person, after all they did not suffer in the struggle for independence, and were not grateful to any offer that the government was willing to give them, besides their being rigid to change.


Two Decades

     The Moi regime was a very interesting one. Its philosophy seems to be that “since Kenyatta men ate and acquired property, then this is our turn.” We have so far witnessed ethnic cleansing, the lapse of parastatals and companies, the grabbing of Agricultural Development Corporation and Kenya Agricultural Research Institute lands with the encroachment of forests being the latest incidence. Cattle rustling activities and setting up of private armies, burning of the forests to clear way for grabbing and the cutting of all the forest trees without replanting have been witnessed.

     The last time tree seedlings were put in the seedbeds was in 1989 and the last planting of seedlings was done in 1991. Since 1992, there was no planting of the trees. Around 1987-1988, the experiment of planting indigenous trees was started. This new initiative lacked the seriousness it deserved. The main language was "let us harvest what we planted, they will come and plant theirs". Also during that time, many Ogiek were made to retire from the Forest Department on voluntary basis after receiving the golden handshake.

     Other activities that preceded these layoffs were the taking of the water pumps and engines by the forestry officials, the demolition of government houses and schools to provide building materials for the very group of people including the auctioning of government vehicles at throw away prices. These early acts were signals that the forestry industry was headed for collapse. It is sad to note that the very same architects of destructions are now being given the mandate to construct what they messed up with. What a fallacy?

     The events that followed were the creation of new administrative units, the exodus of people from well selected districts to the targeted forests, in our case Nakuru district falls within our interest and the selected districts are Baringo, Keiyo, Koibatek, Nandi, Kericho, Bomet, Bureti, and Transmara.

     The latest development is that each tribe or home districts is seen to have been allocated at least two blocks per district with an almost equal number of persons. The Kalenjin conference of 1987 where the Majimbo crusade was launched after years of soul searching, must have subdivided the Ogiek land amongst the Kalenjin nations with the blessing of the highest office in the land. The Maasai were later added to list to appease their visible anger, for they have been victims of historical dispossessions and neglects.

     Since the introduction of multi-party politics, the ruling party and the opposition have been viewing each other with suspicion. Accusations became common. The suffering of the Ogiek it seem has a direct link to this conflicts between powerful forces jockeying for power and control over natural resources. In our current state, the strategy is to invite one’s close allies and tribesmen to get a maximum share in the national cake no matter how disastrous it might be to others. In the case of Mau forest complex the aim was to destroy the economy of opposition supporters. Cypress trees had been affected by aphids. The government proposed that the forest land be opened up for cultivation in order to destroy the trees. This was to take five years and tree planting would resume. Land sharks took advantage. Once they settled they never left. Instead, documents of ownership proof is the target for a final settlement. The task and matter must be put to rest.

     The other target is the creation of high unemployment and also the rising cost of living. Ogiek land has been used as bait for votes. Each powerful man with powerful connection was given a piece of land to subdivide and allocate to his followers. In turn he himself has to become loyal to the highest authority. Some would subdivide the land and sell it to service his loans. One such a powerful personality sold ninety two acres of cedar trees to leading sawmills such as Velbros, Timsales and Raiply.

     Those with permanent interests have caused the Ogiek the most trouble. Politicians from the former ruling party saw the Ogiek as spoilers of votes and good fortunes. Yes, because trees acquired free of charge fetch millions once made into timber, this free money, is to be used in financing elections besides buying political support.

     The Ogiek have also been viewed with suspicion as people who expose government secrets. They also have been made scapegoats for sins committed by others. Some barbaric acts such as cattle rustling and even ethnic cleansing have been blamed on the Ogiek under the derogatory nickname Dorobo. The struggle for identity and recognition via the courts, were overshadowed by the number of settlers already planted in Ogiek ancestral lands by the political establishment.

     To allow Ogiek to succeed in court when they were already saying that the whole settlement programme is illegal is to commit political and economic suicide. They were to be stopped at all costs and where possible eliminated. The persecutions are economic, political and cultural in nature. It is said that the Ogiek have nothing to tell the courts, since they own no land legally. It is against this background that their frustrations should be viewed. While the former regime was to blame for its short-sightedness, the present one is yet to make good its promises.

     Even with the change of guard, behind the scenes the provincial administration is busy urging Ogiek elders to withdraw their pending suites in the High Court. Ironically, the withdrawal is unconditional. Those playing the votes catchment game, fear losing the battle as they will be viewed as weak in the succession game. To win Ogiek support, often the term Majimbo or federation is invoked. When the Ogiek demand their own Jimbo, it becomes a sin. When they talk about federalism, things change and it is taken that the Ogiek are not serious, but are being used to spoil the Majimbo debate. When they demand the restoration of their ancestral lands, they are seen as people interested in evicting their kin besides being not appreciating government projects and generosity.

     Ogiek are victims of this institutionalised mistrust, while the provincial administration are heroes of conquest of the Ogiek ancestral lands as they have successfully imposed settlers who cleared forests and ensured security. The wisdom of provincial security team is to have trusted followers in strategic positions and places.



Chapter 10: The Aftermath


The Settlement

     The settlement schemes within the Mau forest complex commonly referred to as “Mauche Settlement Scheme” was politically initiated with the aim of achieving political and economic interests and security. By 1991, plans were at advanced stages, but the tribal clashes curtailed the plan, as beneficiaries needed a peaceful atmosphere to settle. The first step was to invite enough saw millers to clear the trees followed by burning of both exotic and indigenous trees. There was a wild fire that destroyed a sizeable portion of forestland in Sururu and Ndoswa areas of East Mau.

     Around the same time, a big plot was hatched, that all the Ogiek who were leading the crusade against the scheme implementation be eliminated. The first to go was Mrs Linah Tapsaloi Njala, who survived a hand made bomb at Ogilgei on November 1993. She suffered intestinal injuries and to date she has became weak, improverished and withdrawn from public life. The scheming by the dangerous eliminators, didn’t end there, success came when Micheal Rotich Cheres was successfully eliminated and culprits went scote free. Although he was not a strong handliner, but the threat was always felt, this was on 5th July 1994. About a year later he was followed by Amos Naisoru Sang, who was made to contract a mysterious disease, inflicted through a sharp object at the street of Ogilgei in Nakuru. This was in the month of August, 1995 after the unsuccessful demonstration of July 23rd, 1995, in which he was to lead. His major sin was the book he was working on, through the assistance of Egerton Master of Arts Degree student Mr. Sitati Wangero, with him was a detailed memorandum which he intended to present to the Head of State, if the match to Kabarak became a success.

     The next victims were a vocal political activist Mr Justus Kuresoi Njala, who has ever since been a customer to political and economic thugs. Together with this writer they were being the main targets of November 27th – 30th, 1995. It was by God’s grace and the Mariashoni patriots who on November 29th, 1995, boycotted a District Commissioner gathering, in the protest of their sons being targeted in abide to implement the five acres scheme, then D.C Mr. Noor Adan Noor, will recall this great day of awe and show.

     Although the issue of selling forest trees was subject to licensing from the authorities and people were allowed only to sell a certain number of trees, the “politically correct” were clearing all their farms. There were also the mounted sawmills which were traversing Mau forest between 1996 and 2002. The sawmills were even allowed in the forest plantations that were not demarcated by the “correct persons.” The tree harvesting extended to the indigenous forests, totally damaging the fragile terrain.

     The foresters benefited from this looting, while the forest guards acted as tax collectors for their masters. business boomed and for the first time in the Ogiek history, commercial sex was witnessed. Sexually transmitted diseases flourished and divorce and broken marriages became the norm. This is because the poor Ogiek men had nothing to offer to their spouses. The love of money made young ladies opt to be married to newcomers. There was mushrooming of business centres with uncoordinated buildings as business amateurs ventured into the trade. The provincial administration supported the move as this would lead to the success of the settlement scheme. They even supported the temporary marriages which almost led to the total collapse of the community’s traditions and norms.

     Court orders were ignored and the Provincial Forest Officer, Mr. John Rotich, visited Bararget area and started recruiting private askaris cum-army and surveyors to help in the sub-division of this area. In 1999, the Ogiek lawyer pressed hard for the case to be heard but this was not to be. The dates of 11th and 12th May 1999 were fixed. To prepare the Ogiek community for this case and to expose what was going on in East Mau, the Ogiek hired a freelance journalist, Mr. William Munuhe Gichuki--who has since been eliminated, to write facts of what was happening on the ground. He did write a feature that appeared in the People Daily of 9 April 1999. On 16 April 1999, a third crackdown was carried out and this time Mr. Kimaiyo Towett and Jackson Kumari were the casualties. They were arrested and charged with incitement, disturbance and obstruction of government officials from their lawful duties of land allocation. The charges were later dismissed due to lack of evidence, an official position adapted by the state.


Threats

     The influx of persons seeking land for settlement. grazing and logging is a political move aimed at ensuring political control and dominance, by the elements of the old order.

The whole settlement scheme programme is said to spark more questions than answers. The many questions are:

  1. Why was the former President Daniel arap Moi directly and indirectly involved?
  2. Why was the provincial administration and State House operators privy to the on goings?
  3. Why would a mere group of village elders be made so powerful as to report directly to the former president?
  4. And why would the same elders decide who was to become a district head in the district of interest?
  5. Why would the Office of the President choose this forest, of all the forests to initiate a settlement scheme?
  6. When parliament requested for the list of the beneficiaries, the government could not make it available, leave alone the maps of the proposed boundaries.
  7. Why would the government be reluctant to file replying affidavits if and when sued?


Attempts

     Mrs. Ruth Chepngeno Cheres was a strong secretary of Ogiek elder from 1985-1991. she was instrumental in lobbying the authorities to respect and affirm the Ogiek rights. She made remarkable achievements. The Ogiek voice was put in the political track, thus earning them their rightful place and position.

     The Ogiek evictions came to an end. The grazing permits were withdrawn and a number of Ogiek children secured employment in the civil service, others were employed as teachers and others as forest guards and others as subordinate staffs in the forestry department.

     She led the Ogiek to secure their attendance to tradition cultural festivals at the Bomas of Kenya in 1987, where the Ogiek were awarded a gold medal in medicinal herbs and runners up in traditional houses construction. She further led the Ogiek in participation at State House festivals where they left the honey barrels at state house precincts in 1998 in 1989. She successfully opposed the relocation of the Ogiek to Ndoinet Settlement Scheme where they were to be settled alongside other communities. This was during the reign of powerful Nakuru District Commissioner, Mr. John Anguka. She led the Ogiek elders to petition the Saitoti Kanu Review Commission on the Ogiek plight and further appealed to the authorities in her letters of 1990 and in 1991 got a favourable response allowing and affirming the Ogiek rights and existence in Mau forest. This attempt gave the Ogiek the much needed hope to rebuild and reorganise themselves. Our very achievements have roots in these acts and heroic deeds.

     It is alleged that they once met Mr. John Keen who forwarded their plight to the then President, Moi. The government response was contained in a letter which was confiscated without reaching the Ogiek by the Forest Department messengers who then availed the letter to a leading Ogiek critic, Mr. Wilson Leitich. This very same letter was to cost her life. She had only seven months to leave, but she left behind an enduring legacy to be emulated by patriots.

     Mrs. Ruth Chempngeno Cheres contracted a mysterious disease and died in July 1991. Her death was celebrated by those who were eyeing Ogiek lands and who also wanted to speak on their behalf. This message of self-sacrifice was to inform the Ogiek struggles throughout the successive generations. This writer is such a product.

     Other notable elders in this struggle from East Mau were Kapteri Mutarakwa, Ingopiriot Tigani, Belati Sorogony, Thomas Ngayami Saiyalel, Amos Nairuru, John Willa Mureno, Justus Kuresoy, Johnson Nemunge, Linah Tapsaloi, Parsaloi Saitoti and Daniel Kibet Chesot. In West Mau we heard of Kugo Korenket, Busienei Kitango, and Lependo, from Sururu area of East Mau.

     Although most of these elders were not educated enough to challenge the dishonest elites who were administrators, at least they had faith and unity and a very strong vision. They were committed to securing an exclusive territory for their community, in which they had a strong faith. The elites on the other hand created a factional group, which betrayed the Ogiek efforts.

     Mauche Settlment Scheme was to accommodate political interests. These interests range from security, economic, political and cultural. It was to be a white wash to the many years of their efforts. The scheme was to start with the opening up of the earlier on closed schools in areas inhabited by the Ogiek. Then followed the civic authorities elections of councillor John Sitienei and nomination of councillor Hezron Kipletich Tiemosi in December 1992. They were joined later by nominated councillor Charles Cheruiyot Rono in 1997.

     The locations gazetting took place on 11 March 1993, with the interviews taking place on 12 July 1993 and the full appointment of chiefs on 11 November, 1993. This was in Bararget, Nessuit, Mariashoni and Tinet locations with each given on a sub location with an assistant chief.

     The ground had been laid for the demarcation and allocation. On 5 January 2003, cattle rustlers stole Ogiek livestock and when the Ogiek followed, the authorities had to intervene. Mr. William Kirario, District Commissioner, Nakuru, came to Mariashoni where he addressed a rowdy gathering. He told them to mind of their future by protecting their land issues and shun activities that were likely to disrupted peace. He said that the government would compensate the Ogiek who lost their livestock in which he said totalled to seventeen.

     He told the Ogiek gathering that the government was on the process of initiating a settlement scheme for them and asked them to pick a few trusted elders who were to meet the Provincial Commissioner Mr. I.K. Chelanga on 17 January 1994, and work out modalities on how best to conduct the exercise. The day came and more than seventeen Ogiek appeared before the Provincial Commissioner who told them frankly that the government would initiate a scheme as part of addressing the Ogiek plight. He told them to go home and get organised. This was to be the genesis of the Ogiek problems, and today’s struggle.

     Mr. Chelanga, in the company of other government officials came to Nessuit Primary School on 23 March 94. He was dressed in blue jeans, with sports shoes in a Sunday. After the Ogiek performance of traditional dance and a few well coordinated speeches by the already confused Ogiek elders, the local leaders and chief, Mr. Chelanga was finally welcomed by Mr. William Kerario to a standing ovation standard welcome by the jubilant gatherings. He took to the dais and with discretion; he delivered the long awaited message. “The all important land question”.

     Mr. Chelanga began his speech after inquiring whether the Ogiek were alone, so as to facilitate the much needed secrecy. His speech contained the following message; “I have been sent by the higher authorities to come and officially give you with open hands your ancestral lands. The government loves you so much that it has arrived at this decision. I thus request you to organise yourselves in your respective clans and subdivide the said land secretly, leaving only the indigenous forest. When this exercise is complete, then the Head of State will come and hand over the land to you officially. However, I shall warn you that in case of leakage, powerful forces will came and take away your lands and trees and it will be the worst problem to be experience in the history of the Ogiek”. He concluded, to ululation by the much attentive gathering. Everybody was happy, for at long last their prayer had been answered. The meeting ended up with a word of prayer followed by a well prepared traditional meal and blessed by the Ogiek. Mr. Chelanga was given a traditional club and a walking stick and twenty litres of honey. A sheep to supplement the good gesture was soon delivered traditionally after the meal.

     After the historic gathering, the Ogiek went home a happy people for they had been assured of their ancestral lands. To them, Chelanga was a hero.

     It was not long before they started compiling their names in a register in readiness for resettlement. Each clan moved to its own parcel of land where it was parcelled to each individual and the parcelling was to await the arrival of surveyors and the approval of the allocations to follow. While behind the scenes a conspiracy was being hatched, to disinherit the community off their ancestral lands. After all who are they to benefit from a resource set aside for all Kenyans a gesture not extended to all Kenyans? This is best captured in the words of Richard Kuloba and Odhiambo Oguk in HCCA 238/99 judgement. “There is no reason why the Ogiek should be the only favoured community to own and exploit at source the sources of our natural resources, a privilege not enjoyed or extended to other Kenyans.”

     No sooner had the authorities got the register that they conspired to defraud the Ogiek off their ancestral lands. They did prepare allotment letters headed "Allocations of land at Mauche settlement scheme". The letter was not copied to the Commissioner of Lands and has never been clear whether he is aware of the scheme. The fate of documents of the title is also not clear. The name of the allottee is also anonymous.

     This was a clear indication that things were not okay. The Ogiek started distancing themselves from the proposed plans but it was too late as the other side were ready for any eventualities. This was in October 1994. At Nakuru, the land sharks were busy preparing their registers and likewise it was being done in selected villages in Baringo, Kericho, Bomet and Transmara.

     It was not long before the real events unfolded. The first surveyors were taken to Sururu area where the demarcation targeted the indigenous and exotic forests. Relief foods also followed in accordance to loyalty and willingness. Land hungry people flooded this area, they in turn provided the much needed labour and comforts.

     Mr. Thomas Saiyalel Ngayami was persuaded to accept 411 people only whom the government recognised as having deserving cases. He was also made to believe that the land allocations were being done in his interest. He was told that the list of the genuine members of the Ogiek he helped compiled would be given priority. As the survey was getting into full gear, the work got started at Nessuit centre, where the five acres were being allocated. The Ogiek were opposed to this arrangement, for they feared the five acre system would open flood gates for the land speculators. They were more opposed because the surveyors and officials handling the subdivision exercise, were foreign. They argued that the land was big enough to accommodate each person to get not less than eighty acres and could not understand how the five acre decision was arrived at.

     When the demand was not heeded they immediately knew that something was amiss. They refused to participate in the exercise and further demanded that the surveyors go back to Nakuru and the allotees to their respective areas of nativity. When the government intervened, the Ogiek demand to know why the surveyors were hostile to the Ogiek land parcelling process and further why the surveyors were interested in the five acre system. The District Commissioner during this time was Mr. Aden Noor Aden, who was frank in his dealings. He told the Ogiek elders that they were right in their demands and gave an example of their ancestral land in East and North Eastern provinces, where the land was owned communally and no subdivisions has been done except the recognition of each clan’s parcel of land and its territory. He further asked them whether they needed the surveyors in the first place and if they knew that the surveyors would bring problems to them as they had their own interests. The community’s response was that the surveyors should go and never come back again.

     The surveyors were temporary withdrawn, only to resume the work when the local politicians in liaison with powerful forces imported members of Kipsigis descendants who did the surveying work. The administration police and forest guards were used to guard the exercise twenty four hours with the relief food being in constant supply. The allotment forms and cards were sold in the restaurant and hotels and at other times in the street at the cost of even as little as two thousand (2000.00) shillings per parcel of land. A local district officer Mr. Peter Kingola did made a big kill in the Ogilgei Hotel, Nakuru. Today, he boast of a one storey building in Njoro town.

     To ensure the quick implementation of the scheme, Sokoro Saw Mill was closed at Maji Mazuri and thus left the Koibatek forest intact as pressure was increased in East Mau. In West Mau, Mr. Franklin Bett, the then state house comptroller was allowed to operate a saw mill, this saw mill is said never bought trees from the government, instead it got trees free due to state house factor. The state house letter were used to intimidate the foresters and forestry officials.

     The very same year of 1996 saw the creation of Molo constituency from the larger Molo, the name was later changed to Kuresoi. It also saw the creation of Kuresoi, Elburgon, Naishi and Mau Narok divisions. It also saw the creation of new administrative units within the locations. It also saw the gazetting of new poling stations in the various forest stations, each station with at least three poling station, ironically, when this was being done, there was no habitation, it was still a plan, the forests intact, but the projected population was being imported. A target of eighty five thousand people was to be achieved at all cost; this population transfer exercise is still going on today, not withstanding the change of guard.

     There was also the issuance of the second generation identity cards which then went on uninterrupted beginning with the selected beneficiaries in East Mau being given first priority. Children as young as fourteen years old were issued with identity cards in Teret, Likia and Sururu area, on top of Olenguruone and Keringet divisions. Their adults who were new from other districts also got identity cards with ease. The Ogiek on the other hand had a rough time in getting Identity cards. They were issued once they accepted to be classified as Kalenjins. The Ogiek code was taken over by the new beneficiaries. This was followed by the voter registration exercise where most of the Ogiek were not registered as voters due to lack of Identity Cards. To date majority of Ogiek have not been issued with identity cards, with the old ones still not replaced.

     The title deed issuance was officially launched by the then Head of State on 24 November 1997 at Olenguruone, but not before issuing a scathing attack on those opposed to the exercise and also importation of the so-called tribal clashes victims. He said that if those opposed to the exercise thought that they were more of human rights, he was also a human right advocate.

     Sururu, Likia, Teret and Sigotik had by now been encroached by members of the Kipsigis tribe and renamed Mauche to conceal the original names. This trend of new names was repeated across the Mau complex, followed by small administrative units, schools, churches and trading centres.

     The Ising’etit area of Mariashoni location was equally invaded by one thousand seven hundred senior governments officials and the prominent personalities. Today the area has been nicknamed Kongoreri settlement area. The locals call it the officer’s mess. By 1998, there were thirty seven administration police guarding parcels of lands for senior civil servants in the government, since then, there are twenty six general service unit police guarding for senior police and army officers. Details of those guarding other farms is yet to emerge as everything is kept secret and also the hostile attitudes do not allow socialisation between the Ogiek and the selected beneficiaries, servants and farm labourers. What is only known is that influential officials in the government employed the services of the security personnel in the government. Members of the prisons forces used the prisoners to provide labour in their farms.

     What is known is that while the issue of selling the forest trees was subjected to licensing from the authorities, where the lesser mortals were allowed only to sell a certain number of trees, the untouchables were clearing all their farms and had the saw millers directed to do so. There were also the mounted saw millers which were traversing Mau forest between 1996-2002. The saw mills only operated in farms where they got no interference. These saw mills were even allowed in the not demarcated forests plantations as long as the correct persons were the one licensed to clear the plantations. State machinery have also been used in the same area to uproot tree stamps, in preparation for wheat and barley and also flowers for European market.

     The foresters benefited from this looting while the forest guards were to appear as tax collectors for their masters. There was booming of business and for the first time in the Ogiek history, commercial sex was witnessed. Sexually Transmitted diseases flourished and divorce and broken marriages become the norm. it is a new culture indeed, a cultural matrix transformation in the Ogiek history.

     The poor Ogiek men had nothing to offer to their spouses who thus resulted to this sort of business as part of gaining access to selling forest trees. The love of money took the lead as young ladies opted to be married by new comers. Temporary marriages resulted to temporary wives and husbands.

     The next part was Kapseita area. Here two hundred and eighty eight tribal clashes victims were imported all the way from Chepakundi in Olenguruone. They were used as a key to open up this area, now for the powerful and influential people to allocate either to themselves their wives, girlfriends and kin. This even led to temporary marriages.

     Today, Kapseita has three phases i.e. Part I, II and III. The Ogiek were evicted and a conflict was created. The powerful personalities had started commercialising this land, before the plot was unearthed in which was shelved for the time being. The proposals to this area were made by the local Catholic Church, Nakuru, who made the allocation of 288 clash victims of 1991-92 Chepakundi in Oleguruone.

     On 3rd August 1998 the work was officially set to start by the then new Nakuru DC Mr. John Litunda. He took the map of Bararget and the official work started officially on 5th August 1998. The survey work was done by three private surveyors, one being Mr. P.N Kamanda from Koibatek district. For several months they were hosted by a Mr. Wilson Leitich, as they waited for the government to finalise the security and working arrangements. It has been argued that the Lare clash victims were two hundred and sixty one people only. This being from the correct group had to be secured and thus justified the sub-division of this water catchments area which has so far been allocated to five thousand people. The proposal were supported by the Eldoret branch of National Council of Churches of Kenya (NCCK).

     The subdivision had already started and the allocation or issuance of allotment letters was issued by the Rift Valley Provincial Commissioner Mr. F.K. Baya. While on 15/12/98, the court orders were being disobeyed by the provincial administrators, the courts on their part listed the Ogiek case only for mentions. Those government officials who favoured the allocation processes were put in strategic areas of approval so as to speed up the officiating process.

     In 1999, our Lawyer pressed hard for the case to be heard and finally we thought that a hearing was finally fixed. The dates of 11th and 12th May 1999 were taken. On 16th April 1999, a third crackdown was carried out and this time Mr. Kimaiyo Towett and Jackson Kumari were the casualties. They were arrested and made to face charges related to incitement, peace disturbance and obstruction of government officials from their lawful duties of land allocation. The charges were later dismissed due to lack of evidence. On 11th and 12 May 1999, the Ogiek were in the high court to hear the case, but to their surprise it was a mention.

     Reasons, no judges allocated. A few days later, the deviant administrators were in Tinet with threats of evicting people. The people of Tinet too went to court. They tasted the wrath of our politically controlled courts, for the judgment was hostile.

     In August, Tinet Ogiek were advised to drop their case and at one time at State House, Nakuru the Head of State reproached them for taking his government to court. After a brief explanation on the circumstances that led to the filing of their case by Mr. Kilel who is one of the suite applicants, the President was convinced that there was no witch hunting. The President went to a separate room only to come back with a document in the company of the then Rift Valley PC, Mr. Francis Kazungu Baya. He read the list of the ten applicants and when he came across Mr. Kilel’s name he stopped briefly and asked Mr. Kilel if he too had gone to accuse his government. Mr. Kilel said that he did it in good faith since all the available mediation avenues were closed. He further added that his community was ready for dialogue as long as it will assure them of their continued stay in Tinet. The President responded that he was part of the court and instructed Baya to see to it that the needs of the Tinet Ogiek were met. Sadly, the government defended their acts in court to the end where the judgment was delivered in their favour.

     At the courts, there was only a mention. The community counsel Mr. Joseph Sergon and Catholic Diocese Attorney Mr. Mirugi Kariuki were not present. This government behaviour set the atmosphere in which the cases were to be argued as witnessed in the of judgement on 23rd March 2000. The government has taken up the matter as part of its political campaign tool. The Kanu government saw it as bait for votes while the Narc government sees it as a conservation tool. In both perceptions the interests and rights of the powerful will override those of the weaker minority as each group will try to outdo the other.



Chapter 11: The Future


Legal Policy

     The Independence Constitution made no special provisions to protect the rights of indigenous minorities in Kenya such as the hunter-gatherer Ogiek community of the Mau Forest. The colonial rulers ignored their plight. The report of the Carter Land Commission of 1933 abounds in unresolved claims by the Ogiek for their ancestral territories. Whereas they wanted recognition as a distinct nation and rejected attempts to make them appendages of either the Maasai or Kalenjins, the colonial authorities sought the contrary, thus denying them identity. This position was carried over by subsequent Governments in Kenya. This position is what justified the subsequent harassment and evictions.

     Ogiek traditional territories were turned into protected areas, trust lands and government forests, and what remained is currently under distribution to outsiders in an effort by the state to destroy their culture, identity and existence. Consequently, they have been branded squatters in their own land. The continued dispossession and displacement from their land has been enhanced by selfish legislation by the state and conservation agencies. The hunting and gathering which was traditionally practised has been outlawed and wild animals have become either the property of the state or the individual farmer. Suddenly, feeding the family became difficulty as all the highly specialised economic skills developed over centuries were rendered redundant and obsolete. The continued dispossession of land and natural resources has condemned the previously self-reliant Ogiek to poverty and dependency on external resources.

     However, the Ogiek will enjoy total peace if the following options and interventions are put in place. The emphasis of them having lived in the forests surviving as hunters of wild game and gatherers of fruits and honey, a fact underlined by their name, which means, “the caretaker of all plants and wild animals”. They are self-sufficient on natural products of the forest through hunting and bee keeping and are great conservators of the forest and the creatures that inhabit them. One author has stated that the Ogiek are happiest in situations of isolation where trees and animals provided them with psychological support, which one may seek by becoming a member of a larger society.



Recommendations

     The Ogiek community have never known peace ever since they were denied their home and subjected to constant harassment by the successive selfish regimes. However, the following recommendations would shine a light into the Ogiek future if they are incorporated in the draft or the new constitution.

  1. Formal recognition of indigenous minority communities in Kenya as people with collective rights distinct from the mainstream national society, with distinct linguistic and cultural identity and desire to continue living by their traditional lifestyle. The constitutional set-up should thus refer to these indigenous minority communities, notably the hunter-gatherer aboriginal to the Kenya State, hence Chapter V of the present Constitution should be amended to read individual and “peoples” rights.
  2. The Constitution to make provisions for the “restitution” of indigenous people’s lands by vesting indigenous people’s lands and territories to the community. The new Constitution should stipulate that as a result of colonization, indigenous minority people’s rights to their ancestral land were not extinguished as a result of conquest. Indigenous people’s land held and protected by the current Constitution either as Government Land or Trust Land be restituted to the respective communities and where restitution is not possible compensation be made. A body should be set up to check what injustices were committed against the minority Ogiek and remedy the same. An all inclusive Truth, Justice and Reconciliation Commission be formed.
  3. The new constitution to provide for direct benefit from revenue accruing out of their natural resources, such as forests and game reserves. This will be in recognition of their values, traditional knowledge and resource management practices with a view of promoting environmentally sound and sustainable development for sustainable harvesting, contributes to the cultural, economic and physical well being of indigenous communities whose livelihoods directly depends on renewable resources and the protection of fragile ecological ecosystems.
  4. The new constitution to provided for establishment where necessary, of appropriate arrangements to strengthen the active participation of indigenous minority communities in the formulation of national policies, laws and programmes, relating to resources management and other development processes that may affect them as they initiate proposals for the implementation of such policies and programmes. This will go a long way in ensuring that land belong to indigenous communities are protected from harmful or environmentally unsound activities, which to them are considered to be socially and culturally inappropriate. Individual and collective potentials be realized
  5. Federal Governments should be created based on the current provinces with Nairobi as a central point. Each state should have proportionate constituencies based on Tribal divisions and each tribe should elect Members of Parliament to both the state and central legislatures. This will provide a counter-weight to marginalized minority tribes against excesses of majority tribes. Politics should also be in such a way that coalition parties can form governments both at the centre and in the states.
  6. A single citizenship should be availed to all Kenyans to foster freedom of movement to all parts of Kenya including the areas occupied by minority indigenous tribes. However, freedom of residence (including land transfer) should be restricted in the interest of the marginalized minority communities such that transfer of land by minority communities to other communities is restricted for at least 30 years. The government should also be constitutionally barred from transferring indigenous minority tribes’ land either to itself or members of other communities.
  7. Efforts should be made to equalize indigenous minority tribes with other communities as they have been marginalized for a long time. The Government should reserve for them employment opportunities, education (with their mean grade lowered to enable them get to top schools, colleges and universities), political seats etc, and this should be provided for in the Constitution.
  8. Education up to the fourth form should be made a fundamental right. Consequently, no person should be denied education on grounds of inability to pay fees.
  9. The Constitution should direct the Government to discharge various functions such as environmental protection, compulsory provision of health, education e.t.c, and to specifically strive to uplift communities like the Ogiek, Sengwer, Njemps, Shangila, Endorois, Yiaku, Merti Elmolo etc. This means that such communities should be given their own constituency districts and every successive Government should establish a ministry to deal exclusively with marginalised indigenous minority community’s issues. Also, fundamental duties of citizens should be prescribed e.g. people living in Nakuru, Narok and Kericho districts should collectively be responsible of keeping the Mau Forest healthy through funding its conservation efforts. They can fund it through their respective local authorities. The Kenya Power and Lightening Company and the ministries of Water and Natural Resources, Wildlife and Environment.
  10. The most disadvantaged sectors of our society should be granted every available means to protect and progressively realize the individual and collective human rights. The document should provide for the promotion of social and economic rights of indigenous people in Kenya.
  11. The official recognition of the Mau forest complex as the Ogiek ancestral home and its subsequent gazetting and giving it to the Ogiek as their home. With this, they should be allowed to reject foreigners from alienating or occupying it. Here they will be able to promote their social cultural and economic rights. The government should facilitate the bringing together to this Ogiek trust, all the Ogiek scattered across the country, alongside with their properties. This will make the Ogiek majority in their own home and further increase their protection against the assimilation polices, thus preserving their language, culture and identity.
  12. Establishment of a legal system that will benefit individuals without hurting the community at large. Mainly, individual members of the Ogiek should be allowed to own a specific portion of land under freehold tenure while the existing forests should be owned by the entire community and utilized by the community on its own behalf and on behalf of the Kenyan society at large. Land owned by individual members of the community should be protected from being sold in the market to ensure that families are not rendered destitute. The protection should last for a specific period, for instance 30 years. An Ogiek Land Act should also be enacted.
  13. A commission be formed of land experts and representatives of the minority grouping, who will in turn hold the land in trust on behalf of its beneficiaries.



Chapter 12: Indigenous Peoples And Land


The Concept of Indigenous Peoples

     Article 1 of the ILO convention on Indigenous and Tribal Peoples Convention, 1989 (No. 169) defines indigenous peoples in independent countries who are regarded as indigenous on account of their descent populations which inhabited the country, or a geographical region to which the country belongs, at the time of conquest or colonization or establishment of the present state boundaries and who, irrespective of their legal status, retain some or all of their social, economic, cultural, and political institutions. Tribal peoples may be identified as those whose cultural, social and economic conditions distinguish them from other sections of the national community, and whose statues is regulated wholly by their own customs or traditions or by special laws or regulations.

     According to Scheinin, the use of the term indigenous presupposes a co-existence with another ethnic group(s) now dominant within the territory or the area traditionally inhabited by the indigenous people. It is insufficient that a group is constituted of the descendant of the first known inhabitants of the area in question. “There must be another ethnic group and a power involved before the descendants of the original inhabitants are understood as indigenous in the legal meaning of the term.”

     Henry Steiner and Philip Alston see indigenous peoples as basically a minority group that has a pre-colonial link with the territories and have an important continuity with societies that inhabited those territories. They perceive themselves as a distinct group who has been dispossessed of ancestral lands, economically exploited or marginalized. They perceive their native culture as threatened and want cultural integrity, autonomy and survival as opposed to cultural assimilation. They should therefore pass as minority group, have historical links with the territory, have a distinct culture and be economically marginalized.

     Alston and Steiner define a minority group as follows: “Objectively, the group at issue must constitute a non-dominant minority of the population (usually a relatively small percentage of the population, even if a substantial number of people), and its members must share distinctive characteristics such as race, religion or language … Subjectively, (most) members of this group must hold or evidence a sense of belonging to the group, and evidence the desire to continue as distinct group.”

     These communities should also form at present non-dominant sectors of society and are determined to preserve, develop and transmit to future generations their ancestral territories, and their ethnic identity, as the basis of their continued existence as peoples, in accordance with their own cultural patterns, social institutions and legal systems.

     According to Malcom Shaw, several things distinguish indigenous peoples from minorities or make them a special category of minorities. “There distinctiveness lays in the requirement of relative economic and social underdevelopment, the fact their statues, is to some extent to at least, be regulated by their own customs and traditions and the unique relationship of sustained historical continuity with the land that predates the arrival of dominant population of the state in question.” For a group to be considered indigenous, they should be relatively and economically underdeveloped, that their status is to some extent at least, regulated by their own customs and traditions, and the unique relationship of sustained historical continuity with the land that pre-dated the arrival of the dominant groups.

     World over, dominant population and governments have had to be persuaded through various means to recognize the rights of indigenous peoples. This recognition had had to be fought for and legislated into law in certain countries and internationally, reinforced by international human rights instruments and; conventions or declarations on indigenous peoples. The ILO Convention on Indigenous and Tribal Peoples on the Indigenous and Tribal in Independent States 1989 are good examples. These legal provisions, domestic or international are supposed to protect indigenous peoples from “extinction.” The protection is premised on the need to protect the cultures, the economic activities and social organization of indigenous people from encroachment from dominant cultures, forced assimilation, dispossession in terms of land rights in most counties and threats to indigenous livelihoods.


Lands and Territories

     Land is a close part of a people’s culture. The obligation to protect indigenous peoples also carries with it the obligation to protect the land rights of indigenous peoples. Land is where those activities that are characteristic of a people’s culture are carried out. The UN Human Rights Committee in General Comment 23 paragraphs 3.2 and 7 finds that: “At the same time, one or other aspect of the rights of individuals protected under the article – for example, to enjoy a particular culture – may consist in a way of life which is closely associated with territory and use of its resources. This may particularly be true of members constituting of indigenous communities.

     In paragraph 7 the committee says, “with regard to the exercise of the cultural rights protected under article 27, the Committee observes that culture manifests itself in many forms, including a particular way of life associated with the use of land resources, especially in case of indigenous peoples. The right may include such traditional activities as fishing or hunting and the right live in reserves protected by law. The enjoyment of those rights may require positive legal measures of protection and measures to ensure the effective participation of members of minority community in decision which affect.”

     Article 14 of the ILO Convention on the rights of Indigenous and Tribunal Peoples requires that the rights of ownership and possession of the people concerned to the land they traditionally occupy shall be recognized. Governments are required to take steps to identify the lands that indigenous and tribal people traditionally occupy and to guarantee effective ownership and possession. The protection should be effective – the demand being that the protection should not only be in law but also in practical terms. Article 14 also provides that government should also take measures to safeguard lands that may not be exclusively occupied by indigenous and tribal peoples, but to which they have traditionally had access for their subsistence and traditional activities. This is an especially important provision for shifting cultivators and nomadic peoples. The land owned, occupied and used by indigenous peoples should be identified and delineated to the extent possible. Factors to be considered include spiritual and cultural attachment to land that is used individually or communally, land that is collectively used.

     Article 15 states that the rights of indigenous and tribal peoples to natural resources shall be specially safeguarded. They have a right to participate in use, conservation and management of such resources. Where the state does retain the ownership of mineral of subsurface rights, governments are required to consult the people concerned to determine whether their interests would be damaged by the exploration or exploitation of resources on the lands in question. Any damages resulting from exploration and exploitation must be compensated for fairly, and indigenous and tribal peoples must be able to participate in the benefits of such exploitation, wherever possible. Article 16 says that indigenous peoples should not be displaced from lands they occupy- article 16.2 provides that in such cases, relocation shall only happen with their free and informed consent.

     The thrust of the ILO convention is that states parties should help members of such communities to solve their social, economic and other development problems in a manner that tries to eliminate the gap that may exist between them and other nationals in a manner that is compatible with their aspirations and ways of life. Article 6 places a demand for consultations in good faith on projects that may affect the groups’ life. Article 6(1)(a) demands that there should be representation in decision-making organs.

     The Ogiek have waged numerous wage battles to protect the forestlands. They for instance have obtained injunctions barring the Kenya authorities from excising various Ogiek occupied territories that have been ignored and violated. The government does not consult them and neither are they represented in key decision-making organs like parliament. The government of Kenya has violated Ogiek rights more that it has protected them.

     The obligations of the Kenya government under article 27 of the ICCPR is such that the exploitation of natural resources in an area traditionally inhabited by the Ogiek could be constitute a violation of article 27 if the unregulated use of those resources threatens the cultural existence of the Ogiek. It had the obligation to protect the rights of individuals in community with others of their group to enjoy the right to their culture, to profess and practice their own religion, or to use their own language.

     Indigenous people are now acknowledged to have rights to continue living as distinct communities on their ancestral lands and as entitled to economic self-determination. This includes the rights to enter their commercial contracts independent of government or as supported by the government. Governments cannot however, appoint themselves the agents of the interests of indigenous people or appropriate those rights. These rights, which are part of the treaty law under the ILO convention No. 169, are arguably part of customary international law. The government of Kenya should therefore take appropriate steps, legislative and others, to recognize these rights.


Native Title (Indigenous Title to Land)

     Trust lands is a way of accommodating communal ownership of land in a general English type land tenure system by blending customary law notions of land ownership and use with the notion of individual title. The same could be said to be the theory behind the land (Group Representation) Act that can basically be seen as a transitional law from communal tenure by pastoralists’ communities to individual tenure. The concept of trust lands is not dissimilar to the concept of Native Title that the Ogiek proposes as the Ogiek Land Act. The concept of trust lands as protected in section 114 of the constitution was meant to protect holders of land under customary tenure from dispossession when sub-division for individual title occurred. The persons occupying such trust lands would be entitled to title land after sub-division shifting the land tenure in the particular area from customary to individual land tenure. Under section 115(2) trust land vest in the local authorities that hold the land in title for its residents. When sub-division occurs, the title passes from the trustees to the beneficiaries who are the ordinary residents of that area. This concept could be expanded further to accommodate land that is held communally and collectively used.

     Unfortunately, what for the Ogiek would be termed as trust land is not trust land but government land since it is forestland and is gazetted as such. That means the law does not recognize the Ogiek as holders of title, derivative or otherwise, to the lands they had traditionally occupied. The Ogiek have not been in a position to determine what lands were to be government lands since colonial times due to their subjugated status in society. A history of a subjugated status in society has been considered a factor that would negate the argument of laches or estoppel. This was the finding of the arbitral tribunal the Cayuga Indians case (Great Britain v United States). Their economic activity based on their culture has largely been that they did tame land in the traditional sense of clearing and building expansive settlement that traditionally marked out a territory as belong to a particular community.

     Indigenous theories of law have been the basis of recognizing native title for indigenous peoples in international law and in countries such as Canada and Australia. Section 25 of the Canadian Chartered of Rights and Freedom provides: that the rights in the charter do not abrogate or derogate rights that pertain to the aboriginal peoples of Canada and recognized aboriginal land rights.

     Indigenous title would involve the right to continue site-specific activities and therefore the issue of trespassing on government lands would not arise. These are activities that are part of the peoples traditions, customs and practices. Jurisprudence from elsewhere, Canada in particular, is to the effect that the right to site-specific activities may be made out without necessarily proving title.

     You have to prove occupancy and prove continuity between pre-colonial occupation and present occupation. The nature of occupation may change because of economic activity different from traditional use. This does not preclude indigenous claims so long as the current activities are sufficiently connected with the land. What would limit the claim however, is use that threatens the use of the same land by future generations of the indigenous children. The criteria is the continued occupation of land as part of the traditional life of indigenous peoples. This is qualified by the admission that culture is not static and economic activity transforms with time.

     The right of indigenous population to their ancestral lands should be infringed by government for good reasons. The infringement is only acceptable when there has been far-reaching consultation and the indigenous population had had an opportunity to determine and accept decisions to move and resettle them elsewhere.

     In Kenya, the rights of indigenous peoples to their land, e.g. the Ogiek, have not got formal recognition. Perhaps this can come through the constitutional review process. The concept of native title as articulated by the Ogiek should find accommodation in Kenya’s land tenure laws. The Ogiek in their memorandum to the Constitution of Kenya Review Commission ask, amongst other things, for an Ogiek Land Act. This is a kin to the Australian Native Title Act that protects Aboriginal rights and interests in land.


Conflict with the National Economy

     The question of the economic interests of the nation and conservation imperatives as opposed to the land rights of communities is a controversial one. These Ogiek are making the point that land is not taken for national good but to allocate it to the powerful in society economic reward for political correctness. They reject the conservation explanation to government appropriation of their land by stating that they have always lived with nature harmoniously until the state started interfering. Their very core economic activities are only sustainable in a conserved environment that is part of their culture. Environmental conservation is an integral part of their culture and as such their habitation of forests.

     The other question is the development of criteria for determining when national interest must override community interest and what compensation is adequate. Government are wary of having a group of citizens that has the capacity to veto economic development. Governments have correspondingly in all human rights documents been given the onus of persuading such communities that the particular project is important enough to warrant the community sacrificing its ancestral land and therefore its roots and religious home ground on account of that project. It is only on account of providing such convincing explanation and through a process of participatory consultation that governments can move indigenous peoples to other lands.

     Where the actions of the national government are likely to adversely affect the livelihoods of indigenous peoples, the government is obligated to consult them in good faith and resolve the conflict in a manner that takes care of the continued survival of the indigenous group. These may at times include compensatory action where after consultations the group accepts the implementation of a government project.

     Compensatory actions cannot be in the form of money as they must be in a form that guarantees the survival of the indigenous culture and not commercialize it or threaten it. The viability of the distinctive culture must be continued by the compensatory measures taken. Pecuniary compensation must therefore be based on how the money will be spent to preserve the culture of the group.

     Where the sustainability of the indigenous economy is threatened by activities that benefit the national economy, the interests of the indigenous economy should prevail. It interference is found under article 27 then the adequate remedy is cessation of the activities accompanied by the restitution of the status quo ante.

     The challenge might not be so much in formulating the rights of indigenous peoples to fit western individual-based rights construction but ensuring community access to land and the protection of such access and user rights to land in the move towards a modern market economy. The communities have a right to exist outside the market economy and take in the imperatives of the market at a pace their culture can accommodate. The western notion of property should not be imposed. The need is therefore to thoroughly re-examined land tenure in Kenya, recognize the portions of the population that are not ready for the concept of individual land tenure and giving such populations adequate legal protection.


Justice Ministry

     Why is the protection of the human rights of indigenous minority people relevant to the Ministry of Justice and Constitutional Affairs? It is vitally important that the general status of the selective application in law, policy and practice in Kenya be enumerated and our position in compliance with international and our own domestic requirements and standards are monitored. There is, however, a danger that while we are monitoring normative provisions, we have not monitored whether there is a political and national belief in their content.

     Sufficient faithfulness to their content has to be part of the way we behave in the daily political arena, each one of us from all walks of life, beginning with the policy makers from police officers to market vendor, from president to radio listeners, from the minister for justice to justice seekers.

     Were we to monitor such beliefs, other and major questions might surface. Take for example the spontaneous settlements that have disfigured our once good forests. What of the historic forests excisions that swept the country? What of the ceaseless evictions meted against the vulnerable minority indigenous Ogiek? Such questions abound.

     What is the position of the Narc government as far as the Ogiek plight is concerned? What assurance is there that the impending mass eviction is not a direct plan to extinguish the Ogiek rights of claim to ancestral lands?

     The existence of power imbalance and lack of equal property and access rights is based on gender, ethnicity, status of wealth and other related differences. The failure to further the rights of the most marginalized members of our societies as a priority for sustainable and just policy relations, and the central management of our natural resources, through centralised structures is the major cause of the ecological conflicts.

     Environmental degradation is no good news for any country aspiring to become industrialised in the decades to come. Ironically and tragically, all successive countries forest cover has been dwindling over time and space, thus shrinking below internationally acceptable limits. It is said and will still be a tricky issue as long as our pursuits for private need and property surpasses our national and collective interests as that takes the centre of our national planning, attaining the internally acceptance limits of ten percent forest cover, will be a dream.

     It is generally agreed that the protection of the human rights of the indigenous minority people very relevant for the newly created Justice and Constitutional Affairs Ministry. This is in the line with the ongoing constitutional and economic reforms and also in the domestication of the various human rights instrument and statutes/articles both within the African Charter on Human and Peoples Rights and the United Nations Human Rights Commission and Committee. This has a communal and individual collective dimension. The protection of the human rights of (peoples) will make both the African commission and other bodies working alongside the ministry for justice meaningful. We believe that this focus on the collective human rights of peoples provides an important avenue for the basic rights of vulnerable and marginalized groups of people within African states to have their basic rights respected.

     Considering that such important African Human Rights Forum have reiterated the importance of African states protecting and promoting the fundamental rights of indigenous populations, this research is meant to help secure the justice and promote constitutional affairs minority entities.

     Though many African governments are hesitant to recognise the existence of vulnerable and marginalized indigenous groups and peoples, there are also other African governments, which recognize the existence of indigenous peoples in Africa and which are taking concrete steps to promote and protect their rights. South Africa is a very encouraging example in this respect, and the South African government delegates – as well as the representative of the national human rights commission – have during the last sessions of the African Commission expressed their clear support for the African Commission to take this issue on board. At the 32nd session of the African Human and Peoples Rights, I learnt that the Kenya government had not submitted five reports to the commission. The Kenya Human Rights Standing Committee which has since been reconstituted and renamed Kenya National Commission Human Rights too was saddened by this fact. With these new findings, it is of great national interests for the Justice Ministry to advice the Kenyan Government to recognise the Ogiek and other indigenous minorities’ rights.

     Practically, dominant populations and governments have had to be persuaded through various means to recognise the rights of Indigenous peoples. This recognition has to be fought for and legislated into law in certain countries, and internationally, reinforced by international human rights instrument and; conventions or declarations on indigenous peoples.

     The ILO convention on indigenous and Tribal Peoples and the convention on indigenous and Tribal Peoples Independent States 1989 are good examples. These legal provisions, domestic or international are supposed to protect Indigenous peoples from “Extinction”. Protection is premised on the need to protect the cultures, the economic activities, forced assimilations, dispossession in terms of land rights in most countries and threats to indigenous livelihoods.

     This protection is also based on the belief that indigenous peoples want to retain their culture, economic activity and would, largely want to exist as a distinct group. To this end, the indigenous people are empowered to be able to make decisions in conjunction with national governments in a way that protects their existence. Article 25 of the Draft United Nations Declaration on the Rights of Indigenous Peoples states: “Indigenous peoples have the right to maintain and strengthen their distinctive spiritual and material relationship with the lands, territories, waters and coastal seas and other resources which they have traditionally owned or otherwise occupied or used and to uphold their responsibilities to future generations in this regard”.

     Article 6 requires that governments make possible for indigenous peoples to participate in all levels of decision-making, whether administrative or elective to the same extent as other sectors of society. It requires that they be consulted when action (legislative or administrative is being planned) that is likely to affect them. These consultations should be done in good faith. Consultation would deem effective where those concerned have an opportunity to influence the decision taken.

     Article 7 of the UN Draft Declaration proposes: “Indigenous peoples have the collective and individual right not to be subjected to ethnocide and cultural genocide, including the prevention of and redress for:

     The provisions of this draft declaration though devoid of legal force, are indicative of the consensus that has emerged globally on issues that concern indigenous peoples. They show that a conflict exists between dominant populations and indigenous peoples that needs to be resolved taking into account the disadvantage positions of indigenous peoples. See Dr. Smoking Wanjala and Wanza Kioko, - recognising the indigenous people rights in the new constitutional order.

     This, if done, will go a long way in ensuring the environmental justice of the already meagre cover of our dwindling forests which stands at 1.7 per cent and which is far below the expected international standards of 10% if our country is to be considered to be environmentally stable. We hope it will put in place policies to help the coalition government realise the 8 percent target it has already pledged. This focus will teach other communities about environmental protection. They will see the need for enhancing tree planting in their wheat, coffee, tea and flower plantations. Indeed they will see the importance of making the forest our friendly homes, but not commercial havens.

     Given the new developments in the global arena, the historical opportunity to take the lead on human rights work and discourse pertaining to the promotion and protection of the human rights of vulnerable and marginalized population in Africa is now present. The African Commission has had a historical opportunity to take an informed, clear and progressive standpoint and to operationalize this in practise within the framework of the African Commission. This has made the African commission an extremely important platform for the desperately needed development of a constructive and innovative dialogue with African states. The Justice Ministry should borrow a leaf from the African |Commission and encourage dialogue among the aggrieved indigenous minorities who are and have been victims of much mistrust and suspicion amongst powerful forces jockeying for power and control over natural resources.

     By taking on a firm commitment to protect and promote the human rights of Kenya’s indigenous people as seen from an African perspective and based on African conditions, the Justice Ministry would furthermore have the chance of obtaining considerable influence on the developments within other renowned and established bodies such as the African Commission on Human and Peoples Rights and the United Nations Systems relating to the field of indigenous peoples’ rights. Indeed, the justice Ministry could for instance work closely with the UN Human Rights Commission, the UN Special Rapporteur for Indigenous Peoples and with the African government nominated representative to the UN Permanent Forum on Indigenous Issues and the African Commission on Peoples and Human Rights and where possible with Kenya Human Rights Commission who too must work closely with the Ogiek community to identify their needs on how best to address the same. Such co-operation between a regional human rights body like the African Commission and the UN indigenous rights system could substantially strengthen the African perspectives and input within the international processes.


Ogiek Cases

     When our courts became arenas for settling political scores, then even the poorest of the poor falls to make it in our justice systems. The Justice Ministry will benefit a great deal if it deals with the above cases exhaustively. The backgrounds of the applicants, their motives, the hidden interests and the sponsoring motive. A Truth Commission of the excision of forests will be the ultimate solution.

     Indigenous minority communities in other countries have received justice which we would like to cite here as they have so far motivated and proved to the Ogiek that what they are demanding is possible


Interventions

     Since the Ogiek situation is extremely critical, it calls for intervention by the Kenya government, the external community and human rights institutions.

     Following increased politically motivated land pressure, there is a need to ensure that security of tenures is guaranteed for ancestral lands of the likes of hunter-gatherers and pastoralists. The guarantee could be undertaken as part of affirmative action on account of the special circumstances and vulnerable situations of the minority indigenous groups and tribes such as the Sengwer and Ogiek and particularly considering the crucial role land plays in maintaining a peoples identity, language, culture, heritage, indeed whole lives.

     Considering the number of conflict related to land, the land tenure question should be addressed while taking into consideration the special needs of these indigenous minority communities.

     Given the current marginalized situation of the last forest dwellers cum honey- hunters and the change of guard in the political leadership, there is need to initiate long-term programmes of action with long term commitments towards reversing the present situation for the realisation of positive change. It is common sense that all communities need better infrastructures, schools and other basic services to compete equally with others.

     Capacity building is essential in order to enable indigenous peoples to promote their rights rather that depend on others to do it for them. International and national lobby advocacy groups and institutions could assist in this:


Forest Policy

     The Narc government is on the process of formulating a new bill that will help it repossess illegally and irregularly allocated forest land. This was announced at the conclusion of a three day workshop for members of parliament on the importance of protecting our natural resources including our forests. Towards this new initiative our proposal are that:


Draft Constitution 2003

     For the last four years, our country has been reviewing her constitution. The review commission is said to have received memoranda from all interested groups. The Ogiek community utilised this golden opportunity and made their proposals in a colourful ceremony on the 30th day of July, 2002 at the commission’s secretariat, where their views were taken seriously. Their brothers, the Sengwer were the first on 10th July, 2002 at the same venue.

     The fruits of this historic encounter is currently contained in the newly released draft 2002. the community did received contents of the draft happily. To them, the journey to the community Canaan has begun. This is despite the fact that they have not been chosen to the six hundred and fifty strong delegates list. This to them is not a big issue, for they have always been marginalized by the mainstream society. The only consolation is that any decision reached and geared towards historical injustice solution and environmental protection and mostly the question of self-determination has so far been met. The only remaining part is ensuring it remains the way they are in the draft, without being watered down.

     The present constitution, if properly interpreted is capable of solving the Ogiek land question and this is only possible with political will. For instance, the concept of trust land is not dissimilar to the concept of native title that the Ogiek proposes in the Ogiek land act. The concept of trust lands as it appears in section 114 of the present constitution was meant to protect holders under customary tenure from dispossessions when sub divisions for individual title occurred.

     The very concept of native title is said to have its origins in and is given its contents by the traditional laws or acknowledged by the traditional customs observed by the indigenous inhabitants of a territory. The nature and incidents of native title must be ascertained as matters of facts by the reference to those laws and customs.

     In the new draft, 2002, chapter eleven on land and property and chapter twelve on environment and natural resources have useful clauses which will, if properly interpreted, will protect Ogiek and their lands. Chapter ten on devolution of powers goes a long way in removing the inadequate treatments in policy and laws. Chapter five on the bill of rights is also good.

     The following are useful draft highlights. On the bill of rights and on language and culture, 63A (1) states that “everyone has the right to use the language, and to participate in the cultural life, of their choice, but no one exercising these rights may do so in a manner inconsistent with any provisions of this bill of rights.”

     Persons belonging to a cultural, religious, or linguistic community may not be denied the right with other members of that community.

     No person may compel another person observe or undergo any cultural or religion practice or rite.

     No person may be compelled to indicate or define his or her ethnic or racial affiliation.

     Membership and composition of parliament members of the National Assembly is to be elected by constituencies, but still some proposals for special representation has been included. This is contained in part 11, section 107(5)(C) which says that each list shall take into account the need for representation of the disabled, youth and minorities; and reflect the national character.

     In chapter ten on the devolution of powers, Section 215. On the levels of government powers states as follows on levels of power: Villages, Locations, District and Provincial


Village Point


Locational Government

     The proposal of an Ogiek Act or a Native Title Act seem vindicated by the provisions of articles 234(3)(c) and 235(a) and (b) of the 2003 Draft Constitution of the Republic of Kenya. If the new constitution is enacted, these provisions on community land could be the basis for an Ogiek Land or Native Title Act. Article 234(3)(c) is of particular importance to the Ogiek when it identifies “all land held, managed or used by specific communities as community forests, water resources, grazing areas or shrines and identified by them as such whether or not such land is, but for this provision, classified as public; and … “as community identified on the basis of ethnicity, culture or community interest”. Articles 235(2)(b) envisages such a law when it provides: “Community land shall not be disposed of or otherwise used except in terms of legislation specifying the nature and extent of the rights of members of each community individually and collectively”. In light of the above provisions in the draft constitution, indeed if we have a new constitution, the implementing statute recognises specifically Ogiek title to the forestlands in question.

     While under section 115(2) of the present constitution, trust lands vest in the local authorities that hold the land in title for its residents. When the division occurs, title passes from the trustees to the beneficiaries who are the ordinary residents for that area. The concept could be expanded to accommodate land that is held communally and used collectively. Article 232(I), land being Kenya’s primary resource and the basis of livelihood for the people shall be held, used and managed in a manner which is equitable, efficient, productive and sustainable.

Article 233(i), all land in Kenya belongs to the people of Kenya collectively as communities or right in land in Kenya.

Article 235(b)

  1. The review of all grants or dispositions of government or other public land to establish their property and legality and to determine whether or not such grants or dispositions should be revoked.
  2. The review and assessment of all claims to unjust expropriation of land in the Coast, North Eastern and Rift Valley provinces or elsewhere whether arising from historical or other causes in order to established their validity and how best they can be justly, peacefully and equitably resolved.
  3. Parliament shall determine the cut-off date with reference to which the review is required in paragraph (ii) is to be conducted.

Article 234(30)(e) – the additional clause provides that “community land include land currently held as government forest and occupied by hunter gatherer minority communities as their ancestral land.”


Conclusions

     The government should negotiate with indigenous peoples – the Ogiek – in a structured framework where the Ogiek have representation, they have confidence in and all other stakeholders like logging companies are represented. The government should to stop intimidating the community and address the issues on the table genuinely.

     The harvesting of resources in contested lands should be one issue around which genuine negotiations take place. Perhaps, as is now the model world wide, the commercial activity whether in logging or harvesting minerals, should involve the indigenous peoples. The indigenous peoples would be providing labour thereby creating employment, contribute to community development and in environmental conservation. A model that has worked else where in the world is to have governments, the communities and other interests parties like timber companies get into tripartite agreements. It is presumed here that any commercial activity in indigenous lands and forest would have to firstly be subjected to Environmental Impact Assessment. It would also have to meet with the community’s approval.

     The government needs to impose a moratorium on logging in Ogiek forests giving time to sort out the issues. It also must cease the allocation of land for the same period. This would be important for the maintenance of the status quo since any activity that adjusts the position of the community negatively and significantly would have the effect of weakening its bargaining power. Those activities that can be reversed, like forest excisions, should be reversed and the status quo maintained.

     The government of Kenya needs to take a step towards harmonizing and reform the legal framework on land generally and forests. The conflicting mandates of different state organs under different legal regimes on land make it confusing, and therefore disempowering for indigenous peoples and poor Kenyans to pursue their land rights.

     The government of Kenya ought to let the Ogiek have access to the disputed lands and involve them in forest conservation. Maggio identifies the failure to recognise the resource access rights and security for local communities as one of the many reasons why the global conservation agenda is meeting limited success and pervasive resistance. The conservation movement and the implementer governments have failed to make a link between the success of conservation efforts and the interests of long term occupants of the forests.

     International instruments such as the Convention of Biological Diversity (CBD) recognise the role of indigenous peoples in the conservation of biodiversity. Indigenous peoples on their part have expressed their interests in protected lands and forests in various forums and documents. This lobbying has resorted in, for example, the UN Draft Declaration in the Rights of Indigenous and Tribal Peoples. This changing approach has recognised the survival needs of indigenous peoples and recognises them as key actors in conservation efforts. The Ogiek have been involved in forest conservation efforts and particularly forests they inhabit. Their culture has inbuilt conservationist practises. Borrowing from elsewhere in the world, it is possible for the government together with the Ogiek and similarly situated communities to construct an environmental conservation framework that works without depriving the communities of their livelihoods. Environmental or forest conservation is therefore not a good reason for the evicting the Ogiek from their ancestral lands.



Appendices


Appendix 1: Gazette Notice No. 890

GAZETTE NOTICE NO. 890

THE FOREST ACT
(Chapter 385)

THE SOUTH-WESTERN MAU AND WESTERN MAU FORESTS

INTENTION TO ALTER BOUNDARIES

IN ACCORDANCE with the provisions of sections 4(2) of the Forest Act. the Minister for Environment and Natural Resources gives twenty eight (28) days’ Notice, with effect from the date of the publication of this notice, of his intention to declare that the boundaries of the South-Western Mau and Western Mau Forests will be altered so as to exclude the areas described in the schedule hereto.

SCHEDULE

An area land of approximately 24,109.01 hectares, comprising 22,797.19 hectares in South-Western Forest and 712.5 hectares in Western Mau Forest, situated approximately 16 kilometres east of Kericho Municipality, Nakuru and Bomet Districts, Rift Valley Province, the boundaries which are more particularly delineated, edged red, on Boundary Plan No. 175/387, which is signed and scaled with the seal of the Survey of Kenya and deposited at the Survey Records Office, Survey of Kenya, Nairobi, and a copy of which may be inspected at the offices of the District Forest Officer, Forest Department, Nakuru and Bomet Districts.

Dated the 30th January 2001.

F.M. Nyenze
Minister for Environment and Natural Resources


Appendix 2: Alteration of Boundaries — Southwestern Mau and Western Mau Forest

KENYA SUBSIDIARY LEGISLATION, 2001
LEGAL NOTICE No. 148

THE FORESTS ACTS
(Chapter 385)

ALTERATION OF BOUNDARIES-SOUTH-WESTERN MAU AND WESTERN MAU FOREST

IN EXERCISE of the powers conferred by section 4(1) of the Forests Act, the Minister for Environment declares that the boundaries of south-eastern and Western Mau Forests, be altered so as to exclude the area described in the Schedule hereto.

SCHEDULE

An area of land measuring approximately 24,109.01 hectares, comprising 22,797.19 hectares in south-eastern and 712.5 hectares in Western Mau Forest, situated approximately 16 kilometres east of Kericho Municipality, Nakuru and Bomet Districts, Rift Valley Province, the boundaries of which are more particularly delineated, edged red, on Boundary Plan No. 175/387, which is signed and sealed with the seal of the Survey of Kenya and deposited at the Survey Records Office, Survey of Kenya, Nairobi, and a copy of which may be inspected at the office of the District Forest Officer, Forest Department, Nakuru and Bomet Districts.

Dated the 8th October 2001.

N.K Ngala
Minister for Environment and Natural Resources


Appendix 3: Gazette Notice No. 889

GAZETTE NOTICE No. 889

THE FORESTS ACT
(Chapter 385)

THE EASTERN MAU FOREST

INTENTION TO ALTER BOUNDERIES

IN ACCORDANCE with the provisions of section 4(2) of the Forest Acts, the Minister for Environment and Natural Resources give twenty eight (28) days’ Notice, with effect from the date of the publication of this Notice, of his intention to declare that the boundaries of the Eastern Mau Forest, will be altered so as to exclude the area described in the schedule hereto.

SCHEDULE

An area of land of approximately 35,301.01 hectares, adjoining the western, northern and eastern boundary of Eastern Mau Forest, Nakuru District, Rift Valley Province, the boundaries of which are more particularly delineated, edged red, on Boundary Plan No. 175/388, which is signed and sealed with the seal of the Survey of Kenya and deposited at the Survey Records Office, Survey of Kenya, Nairobi, and a copy of which may be inspected at the office of the District Forest Officer, Forest Department, Nakuru.

Dated the 30th January 2001.

F. M. Nyenze
Minister for Environment and Natural Resources


Appendix 4: Alteration of Boundaries — Eastern Mau Forest

KENYA SUBSIDIARY LEGISLATION, 2001
LEGAL NOTICE No. 142

THE FOREST ACT (Chapter 385)

ALTERATION OF BOUNDARIES-EASTERN MAU FOREST

IN EXERCISE of the powers conferred by section 4(1) of the Forest Act, the Minister for Environment declares that the boundaries of Eastern Mau Forest be altered so as to exclude the area described in the Schedule hereto.

SCHEDULE

An area of land measuring approximately 35,301.01 hectares, adjoining the western, northern and eastern boundaries of Eastern Mau Forest, situated approximately 7 kilometres south of Njoro Township in Nakuru District, Rift Valley Province, the boundaries of which are more particularly delineated, edged red, on Boundary Plan No. 175/388, which is signed and sealed with the seal of the Survey of Kenya and deposited at the Survey Records Office, Survey of Kenya, Nairobi, and a copy of which may be inspected at the office of the District Forest Officer, Forest Department, Nakuru

Dated the 8th October 2001.

N.K Ngala
Minister for Environment and Natural Resources


Appendix 5: Gazette Notice No. 901

GAZETTE NOTICE NO. 901

THE FORESE ACT
(Chapter 385)

THE MOLO FOREST

CESSATION OF FOREST

IN ACCORDANCE with the provisions of section 4(2) of the Forest Act, the Minister for Environment and Natural Resources gives twenty-eight (28) days’ Notice, with effect from the date of the publication of this notice, of his intention to declare that the area described in the schedule hereto shall cease to be a forest area.

SCHEDULE

An area of land of approximately 901/62 hectares, situated approximately to 8 kilometres west of Elburgon Township, in the Nakuru District, Rift Valley Province, the boundaries of which are more particularly delineated, edged red, on Boundary Plan No. 175/376, which is signed and sealed with the seal of the Survey of Kenya and deposited at the Survey Records Office, Survey of Kenya, Nairobi, and a copy of which may be inspected at the office of the District Forest Officer, Forest Department, Nakuru.

Dated the 30th January 2001

F.M. Nyenze
Minister for Environment and Natural Resources


Appendix 6: Legal Notice No. 145

LEGAL NOTICE NO. 145

THE FOREST ACT
(Chapter 385)

ALTERATION OF BOUNDARIES - MOLO FOREST

IN EXERCISE of powers conferred by section 4(1) of the Forest Act, the Minister for Environment declares that the boundaries of Molo Forest be altered so as to exclude the area described in the Schedule hereto.

SCHEDULE

An area of land measuring approximately 901.62 hectares, situated approximately 8 kilometres west of Elburgon Township in Nakuru District, Rift Valley Province, the boundaries of which are more particularly delineated, edged red, on Boundary Plan No. 175/376, which is signed and sealed with seal of the Survey of Kenya and deposited at the Survey Records office, Survey of Kenya, Nairobi, and a copy of which may be inspected at the office of the District Forest Officer, Forest Department Nakuru.

Dated the 8th October 2001

N.K. Ngala
Minister for Environment and Natural Resources


Appendix 7: Standing Committee on Human Rights (Kenya) and its Terms of Reference

In exercise of the powers conferred by section 23(1) of the constitution,

I, Daniel Toroitich Arap Moi, President and commander in chief of the armed forces of the Republic of Kenya do appoint a Standing Committee on Human Rights (Kenya).

  1. There shall be a secretary to the committee and such officers assisting him/her who shall be public officers. The terms of reference of the committee shall be:
    1. to investigate complaints of alleged violations of the fundamental rights and freedoms set out in the constitutions.
    2. To investigate complaints of alleged injustice, abuse of his power and unfair treatment of any person by a public officer in exercise of official duties.
    3. To educate the public as to human rights and freedoms by such means as the committee deems fit including publication, lectures and symposia.
  2. The committee shall not investigate any matter, which is pending before a court or involving relations or dealing between the government or an international body.
  3. The committee shall submit to the President at the end of ever 3 months a written reports of its findings in respect of any complaints or allegations making such recommendations as its deems necessary.
  4. The committee shall in consultation with the Attorney General establish its own procedures
  5. The proceedings of the committee shall be held at such times and places as the committee may from time to time determine.

Dated the 22nd May, 1996

Daniel T. Arap Moi
President


Appendix 8: Joint Statement by Ministers Murungaru and Kulundu

Joint Statement by Honourable. Dr. Chris Murungaru, MP Minister of State, Office of the President and Honourable. Dr. Newton Kulundu, MP Minister FOR Environment, Natural Resources and Wildlife on the state of our Forests and Forest Land

     In the recent past, matters relating to our forest and forestland have dominated the various electronic and printed media. Indeed these matters have been of great concern to the Narc government since it took over the leadership of this country following the overwhelming victory during elections held on 27th December, 2002.

     Whereas on 30th April 2002, a total ban had been imposed on timber harvesting in all gazetted forests, including trust lands, following concerns about the sustainability of forest exploitation levels, licensing and allocation of materials for harvesting, particularly to briefcase “saw millers”, increased breaches to this ban have continued to be witnessed.

     Claims have since been made by several Saw Millers that prior to enforcing the ban m they had not been granted adequate time to remove their cut logs from the forests, for which payment had already been made to the government.

     These claims have been closely and critically scrutinised by the government following which, a decision to allow access and collection of these materials has been reached. This decision, which affects Pan African Paper Mills, Rai Plywood Group and other saw millers, has taken into consideration the current dry season which is prone to fires. Such fires, if they broke out, would destroy these materials. Also taken into account is the fact that these materials had been paid for and their collection would generate income and employment for the welfare of our people.

     In this connection therefore, it has been decided that the removal of these cut materials be done for a limited period of two weeks commencing on 24th March 2003 and be carried out under the strict supervision of the forests and law enforcement authorities.

(signed)
Hon. Dr. Chris Murungaru, MP
Minister of State in the office of the President
20th March 2003

(signed)
Hon. Dr. Newton Kulundu, MP
Minister for Environment Natural Resources and Wildlife
20th March, 2003

     This approval shall not cover felling of new trees. On completion of these materials, there shall be no logging activity within these forests until further notice. Matter regarding the harvesting of mature trees within the plantations are being addressed and a decision will be communicated at a later date.

     The Law enforcement agents, who will supervise this exercise, are under strict instructions to ensure that only the specified cut materials are removed from the forests. Any departure from this will meet with severe disciplinary action.

     Meanwhile, on the onset of the long rains, the government shall embark on the re-afforestation and afforestation activities in these forests in order to recover and enhance forest cover from the current 1.7% to about 8%. The areas to be targeted will include the current plantations and indigenous forest areas, arid and semi arid lands and the development of farm level forests. This is a mammoth and urgent task that calls for commitment and co-operation of all Kenyans.

     The government will soon announce the date for the National Tree Planting Day to be observed in the country.

     We would like to take this opportunity to call on all Kenyans in schools, colleges, universities as well as all stakeholders, especially saw millers and the general public, to plan and participate in this exercise in the spirit of patriotism, bearing in mind the immense benefits of these forests to our environment, livelihood and general welfare. In this regard, serious consideration is being given to the licensing of only those millers who prove involvement in afforestation activities.

     We would also like to take this opportunity to express our sincerer gratitude to His Excellency, Hon. Mwai Kibaki, CGH, MP, who has confirmed that he will kick off the tree planting celebrations by planting a tree at one of our forests. We look forward to all of you joining us during this worthwhile national event.

     Finally, we would like to state that matters surrounding allocation of forest land are being looked into with a view to cancelling and repossessing land that was illegally allocated. In this regard, therefore, further allocation or resettlement of persons on forest land has been stopped.


Appendix 9: Re: Dorobo Representative in Keekonyokie Section

Office of the District Commissioner
P.O Box 4
NAROK

8TH June 1967

Telegrams: “DISTRICT”, Narok
Telephone: 4 Narok

When replying please quote
REF: adm.15/28/3/Vol.11/18

Mr. Ketai Ole Kereto
C/O Nosupukia, P.O. Box 55,
NAROK

Dear Sir,

RE: DOROBO REPRESENTATIVE IN KEEKONYOKIE SECTION

Thank you for your letter dated 6th June, 1967 on the above mentioned subject.

The affairs of Dorobos living in Keekonyokie Section are looked after like of any other people living in that area. I can assure you in case of any difficulties of problems you are free to see Chief Keko Ole Kodonyo or come here and you will always receive some assistance.

However, in case of a vacancy of sub-chief crops up your case will be considered.

Yours faithfully,

J.Z. Rongomas
For District Commissioner
NAROK.
JZR/M


Appendix 10: Letter from Guy Yeoman to Joseph Kipkoech

CROWDEN LEA, UPPER BOOTH, EDALE, DERBYSHIRE, VIE SHEFFIELD S30 2ZJ
Telephone: Hope Valley (0433) 70284

19.9.90

Bw. Joseph Leshebi Kipkoech
Ogiek Primary School
Box 19
Elburgon

Dear Joseph,

My wife promised to try to send you a black pullover. Well she has at last found one, and has asked me to post it to you when I pass through Nairobi on my way to Uganda. I hope it reaches you safely and that it is the correct size to fit you.

We both send you our very best wishes and pray that God will help you in your work. If I have time on my way back from Uganda in March, I will try to find out news of the Mariashonek from Mrs. Mary Weme.

With all good wishes from my wife and me.

Yours sincerely,
Guy Yeoman


Appendix 11: Letter re Koita Squatters

CONFIDENTIAL
G.43/vol1/88
12 April 2000

The Provincial Commissioner,
Rift Valley Province,
P.O BOX 28,0
NAKURU.

RE: KOITA SQUATTERS

Refer to your letter, SR.lab.27/5/vol.iii/113 OF 23RD March, 2000 on the above squatters. This office is not aware of the Presidential Directive to the Provincial Administration to settle the squatters. Nonetheless, facts about the alternative settlement areas proposed by the squatters are as follows:

Soina settlement scheme in Sorget – Londiani SORGET

Sometimes back in early 1990’s His Excellency the President directed that the above land be demarcated to settle squatters. The demarcation was done before the squatters could be settled, politics set in and the exercise was shelved indefinitely.

Chepsir Forest

This is a water catchment area and any settlement of humans will drastically affect the watershed. All rivers originating from this area will dry up and the people living down-stream will have no water. Chepsir Forest area is part of the Mau Forest that needs to be strictly protected.

A.B.Shauri
District Commissioner
Kericho Provincial Commissioner’s Office
P.O.Box 28, Nakuru


Appendix 12: Letter re Allocation of Land-Mau-Che Settlement Scheme

REF: NO. SR.LND. 16/3.1/VOL.VII/101 19TH DECEMBER 1994

ROSE CHEBET KOECH (ACTUAL NAME OF ALOTTEE) ID NO. 13461397/76

Dear Sir/Madam

ALLOCATION OF LAND-MAU-CHE SETTLEMTN SCHEME

I am pleased to inform you that your request for allocation of land at Mau area has bee approved and you are accordingly been allocated plot No. 2064 of five acres or there about. You should make arrangement to see the provincial Surveyor, Nakuru who will show you the plot.

Kindly not that the above consideration was made on grounds that you are landless and it is thus expected that you will take this advantage to quickly move, occupy an develop you plot. I do also hope that you will make use of the Agricultural Extension Staff to properly plan the farm for you and hence be able to employ the latest farming methods in maximising profits production from your farm.

Yours faithfully

(Signed)

I.K. CHELANGA
PROVONCIAL COMMISSIONER, RIFT VALLEY,

CC:
The Provincial Surveyor
Rift Valley Province
Nakuru

The District Commissioner
Nakuru District
Nakuru”


Appendix 13: Letter re Acknowledgement for 60 Acres Land Allocation for Full Gospel Churches of Kenya Development Projects

FULL GOSPEL CHURCHES OF KENYA DEV. PROJECTS
The Office Park, Riverside Drive, Off Chiromo Road
P.O. Box 49736; NAIROBI Tel: 447092 tel/fax 444354

29th September, 1997          Your ref:ADM/5/4

The Chief,
Mariashoni Location
P.O. Box 19
ELBURGON

Dear sir,

RE: ACKNOWLEDGEMENT FOR 60 ACRES LAND ALLOCATION FOR FULL GOSPEL CHURCHES OF KENYA DEVELOPMENT PROJECTS

This is to appreciate your letter dated 10.9.97 regarding the above subject.

We are very grateful for this gift that the FGCK shall use for the benefit of the local community of MURTSONIK OGIEK.

Our office here will implement your preferences as per you recommendation by order of priority i.e. pre-school head teacher and church. The others will be primary school, bible school, youth polytechnic, home craft and lastly, the secondary school.

Your co-operation is appreciated.

May Almighty God bless you.

Yours faithfully,

(SIGNED)

John Owour Ogolla
FGCK NATIONAL PROJECT CO-ORDINATOR


Appendix 14: Letter re Plight of Ndorobo People at Eburu Forest Reserve

OFFICE OF THE PRESEIDENT
PROVINCIAL ADMINISTRATION

31ST OCTOBER 1986

The District Commissioner
P.O. Box 81
NAKURU

RE: A PLIGHT OF NDOROBO PEOPLE AT EBURU FOREST RESERVE

Enclosed herein pleas find a letter addressed by your office by James Sururu Ole Lembao on behalf of Ndorobo through my office.

The Ndorobo are already living within Eburu forest reserve where they have been living for a long time. Their wish is to have a section of the forest reserve given and demarcated to them so that they can settle permanently. Recently, I toured the area and found that the area they required though a forest has been cleared but is full of grass.

My recommendation is that since the area has no forest apart from grass they can be allowed to settle there permanently or that they can be given plots elsewhere so that they can settle permanently instead of moving here and there within the forest.

Enclosed pleas find a sketch map of the area under question.

(S.I MATHAN’GA)
DISTRICT OFFICER
GILGIL

CC: JAMES SURURU OLE MEMBAN,
P.O. BOX 54
GILGIL


Appendix 15: Open Letter to the NARC Government

9th Jan. 2004

OPEN LETTER TO THE NARC GOVERNMENT

Ogiek Elders and Leaders Seek Clarification on Government Quit Directive on Forests that Expired On 31st December 2003 and which the Minister extended to 31st March, 2004.

The makers of our independence constitution, which, we believe would care for our plight, had the following words. Our objective is a united Kenyan nation capable of social and economic progress in the modern world and a Kenya in which men and women have sanctity of individual rights and liberties and in the proper safeguarding of the interests of minorities. See report of the Kenya Constitution Conference, 1962, appendix ii, paragraph 1.

Forty two years later, the Ogiek have no official recognized domicile and the close we have come to own any parcel of land is the proposed excision of between 25,000 – 32,000 hectares, as in the world over dominant populations and governments have had to be persuaded through various means to recognize the rights of indigenous peoples. This recognition has to be fought for and legislated into law in certain countries and internationally, reinforced by international human rights instruments and conventions or declarations on indigenous minority peoples. The ILO Convention on Indigenous and Tribal Peoples and the Convention on Indigenous and Tribal Peoples in Independent States 1989 are good examples. These legal provisions, domestic or international are intended to protect indigenous people from “extinction”. The protection is premised on the need to protect the cultures, the economic activities and social organization of indigenous peoples from encroachment from dominant cultures, forced assimilation, dispossession in terms of land rights in most countries and threats to indigenous livelihoods.

This protection is also based on the belief that indigenous peoples want to retain their culture, economic activity and would, largely want to exist as a distinct group. To this end, the indigenous people are empowered to be able to make decisions in conjunction with national governments in a way that protects their existence. Article 25 of the Draft United Nations Declaration on the Rights of Indigenous Peoples states: “Indigenous peoples have the right to maintain and strengthen their distinctive spiritual and material relationship with the lands, territories, waters and coastal seas and other resources which they have traditionally owned or otherwise occupied or used and to uphold their responsibilities to future generations in this regard”.

Article 6 requires that governments make possible for indigenous peoples to participate in all levels of decision-making, whether administrative or elective to the same extent as other sectors of society. It requires that they be consulted when action (legislative or administrative is being planned) that is likely to affect them. These consultations should be done in good faith. Consultation would deem effective where those concerned have an opportunity to influence the decision taken.

Article 7 of the UN Draft Declaration proposes: “Indigenous peoples have the collective and individual right not to be subjected to ethnocide and cultural genocide, including the prevention of and redress for:

The provisions of this draft declaration though devoid of legal force, are indicative of the consensus that has emerged globally on issues that concern indigenous peoples. They show that a conflict exists between dominant populations and indigenous peoples that needs to be resolved taking into account the disadvantage positions of indigenous peoples.

Given this background and the wisdom in our higher areas of rulership, then the following and other questions resurfaces:

Before the Minister for Environment and his counterpart in the Office of the President makes good their mass eviction threat, we pray that they answers our questions and alley our fears and also to tell us the fate of our impending cases in court which are:

In as much as we support the government in its war on zero tolerance towards corruption, our rights too can not be compromised, for “OGIEK RIGHTS ARE HUMAN RIGHTS”. A whisper has it that the government machinery have conspired to do their work irrespective of historical claims, pending cases in courts or any other opinion that give the indigenous groupings such as the Ogiek. We call upon the President of the Republic of Kenya H.E. Mwai Kibaki to defend our rights as stipulated in the current or present constitution, and further urge his government to give us a fair hearing.

Yours for and on behalf of the Ogiek community,
(Undersigned)

  1. Joseph Mungaru
  2. Boniface Mureno
  3. Stephen Lengeiywa
  4. Simon Konana
  5. John Mburuo
  6. Lesinye Magari
  7. Zablon Tulu
  8. Wilson C. Monoso
  9. Tiwodo Chemonos
  10. James M. Kimbai
  11. Wilson N. Naisuru
  12. Paul K. Kemoi
  13. Justus Kuresoi
  14. Matinoi Ngiria
  15. Stephen Siandoi
  16. Kiprono Sigilai
  17. Francis Kenduiywo
  18. Geoffrey Nengisat Kirutai
  19. William Kalegu
  20. Kiprotich James
  21. Zachary Keyah
  22. Samson S. Kiberenge
  23. David F. Rana
  24. Benson K. Kiprono
  25. Romas P. Mburuo
  26. Fredrick K. Lesingo
  27. Nelson Christopher Towett
  28. Nelson Ranoi
  29. Christopher Towett
  30. Justus Kipkoskei Milgo
  31. Chepkwony Kamoing
Towett J. Kimaiyo     Ogiek Welfare Council
Cllr. J. Miangare Nessuit Ward
Cllr. D.K. Chesot Mariashoni
Cllr. C.K Cheruiyot Tinet
Ex- Cllr. E. Tuei Kiptororo
E. Kesendany
Solomon Kones


Appendix 16: Mission Objectives of the Special Rapporteur on Adequate Housing

Office of the High Commission for Human Rights
Special Rapporteur on adequate housing, Mr. Miloon Kothari,
Of United Nations Commission on Human Rights Mission to Kenya
(8 to 22 February)

Preliminary Aide-Memoire (revision 2) as of 29 January 2004-04-14

Mission objectives

Since his appointment in 2000, the Special Rapporteur has undertaken a series of country missions with a view of fulfilling the directives of the Commission on Human Rights. The Government of Kenya has agreed for the Special Rapporteur to undertake a country mission in February 2004 t collect information and examine issues relevant to his mandate and to hold a series of dialogue with the government authorities and other relevant stakeholders in the realisation of housing rights.

General objectives of the Special Rapporteur’s mission will be:

  1. To examine and report on the status of realisation of the right to adequate housing and other related rights in the country, with particular attention to aspects of gender equality and non-discrimination;
  2. To engage in dialogue with the government, UN and international agencies and the civil society in their efforts to secure these rights;
  3. To identify practical solutions and best practices in the realisation of rights related to his mandate;

The special Rapporteur intends to take a constructive and supportive approach that will provide solutions aimed at the realisation of housing rights, and draw practical policy recommendations. The Spoecial Rapprteur will report the findings of his mission orally and in brief to the 61ST session in 2005.

Background to the mandate of the Special Rapporteur

I. General

The special Rapporteur was appointed in September 2000 by the commission resolution 2000/9, whose mandate would focus on adequate housing as a component of the right to an adequate standard of living. The Commission requested him during his mandate to, inter alia; report on the status of the realisation of the rights relevant to adequate housing; promote cooperation among the assistance to government, relevant United Nations bodies, specialised agencies, international organisations in the field of housing rights, inter alia the United National Human Settlements Programme (UN-Habitat), non-governmental organisations and international financial institutions.

The legal basis of the mandate of the Special Rapporteur is drawn from article 25, paragraph 1, of the Universal Declaration of Human Rights, article 11, paragraph 1 of the International Covenant on Economics, Social and Cultural Rights, and article 27, paragraph 3, of the Convention on the Rights of the Child, and on the right to non-discrimination as reflected in article 14, paragraph 2(h), of the Convention on the Elimination of All Forms of Discrimination against Women, and article 5(e) of the International Convention on the Elimination of All Forms of Racial Discrimination.

This Special Rapporteur submitted his first report (E/CN./4/2001/51 to the Commission at its fifty-seventh session in 2001, in which he called for a broad interpretation of the right to adequate housing. The report include a review of international legal instruments on the right to adequate housing, highlighted some of the significant impediments to realising the right to adequate housing and suggested priority issues that needed to be addressed by the international globalisation and its compatibility with human rights and particularly its impact on housing; the international cooperation dimension; forced evictions and poverty; and global social policies and their interface with human rights.

In March 2002, the Special Rapporteur submitted his second report to the Commission (E/CN. 4/2002/59), outlining his various activities carried out during the past year. In addition, the report had two thematic focuses; one on discrimination and segregation in the context of follow-up to the World Conference against Racism, Racial Discrimination, Xenophobia and Related Intolerance, and the other on the impact of globalisation on the realisation of housing rights. He also undertook missions to Romania (January 2002), Mexico (March 2002), Peru (March 2003), Afghanstan (septemebre 2003) as well as a visit to the occupied Palestinian territories (January 2002).

The third report of the Special Rapporteur to the Commission (E/CN.4/2003/5), submitted at a three-year juncture in his mandate, comprehensively reviews his main activities since his appointment in 2000 and outlines emerging issues that require the attention of the Commission and the human rights community world for the realisation of rights relevant to his mandate. The report presents relevant outcomes of recent major Untied Nations conferences and summits, particularly those of the special session of the General Assembly for an overall review and appraisal of the Habitat Agenda (Istanbul +5) in 2001 and the World Summit on Sustainable Development (WSSD) in 2002. the report highlights several emerging issues, such as water and sanitation as essential elements for the realisation of the right to adequate housing; the need to undertake further research on innovative local responses to globalisation in urban and rural development; the need for rights-based indicators and assessment tools; and the right of persons with disabilities to adequate housing. The Special Rapporteur has continuously highlighted the gender aspect of these issues.

In its resolutions 2001/28, 2002/21 and 2003/27 adopted by the Commission, the Commission further requested him, in fulfilment of his mandate: a) to give particular emphasis to practical solutions with regard to the implementation of the rights relevant to his mandate, on the basis of pertinent information, notably on best practices, including on domestic legal enforcement of these rights, from governments, relevant United Nations agencies and non-governmental organisations; b) to facilitate the provision of technical assistance; and c0 to review the interrelatedness of adequate housing as a component of the right to an adequate standard of living with other human rights. These resolutions also called upon all States “to give full effect to housing rights, including through domestic development policies at the appropriate level of government and with international assistance and cooperation, giving particular attention to the individuals, most often women and children, and communities living in extreme poverty, and to security of tenure.

II. Women and adequate housing

The commission has also been seized with the issue of women’s equal ownership of, access to and control over land and the equal rights to won properties and to adequate housing and adopted resolutions on the subject annually since 2000, which reaffirmed women’s right to adequate standard of living, including housing, and affirmed that discrimination in law against women with respect to access to housing, land and propery constitutes a violation of women’s human right. In his first report to the Commission on Human Rights (E/CN. 4/2001/51), the Special Rapporteur called for a broad interpretation of the right to adequate housing, which he defined as “the right of every woman, man youth and child to gain and sustain a secure home and community in which to live in peace and dignity”. He further develop a framework of analysis in addressing issues of housing-related discrimination which was presented in his second report (see paras 37-47 in E/CN.(4/2002/59).

Pursuant to Commission on Human Rights resolution 2002/49, the Special Rapporteur submitted a report to the Commission in 2003 on women and adequate housing (E/CN.4/2003/55), in which he attempts to outline some significant issues facing women in the enjoyment of the right to adequate housing. The study particularly highlights that, despite the recognition of gender equality and non-discrimination in various legislation at the international and national levels, in practice women are facing de facto discrimination in access to housing, land and civic services, which can be attributed to customs and traditions, lack of awareness or persistence of gender bias in the formulation and implementation of national polices. In accordance with Commission on Human Rights resolution 2003/22, the Special Rapporteur will submit a next study on the issue in 2005.

Issues to be addressed

From the general perspectives of his mandate and in the specific context of Kenya, the Special Rapportuer would be particularly interested in examining the issues related to:

In October 2001, the Special Rapporteur transmitted questionnaires to governments and the civil society to collect pertinent information related to his mandate. Furthermore, the Special Rapportuer has developed a detailed questionnaire on women and adequate housing, pursuant to the Commission resolutions 2002/49 and 2003/22. These questionnaires, which are attached to this aide-memoire, will form a basis for the discussion with the government authorities and other stakeholders.

Finally, in cooperation with the Special Rapportuer and through wide consultations with civil society, Habitat International Coaliion Housing and Land Rights Network, has identified 14 elements of the human right to housing, arising from international treaty obligations and other commonly held norms. These elements from the basis of a methodology that can be applied to assess the realisation of the human right to adequate housing and can give further guidance for the preparation of the mission. The 14 elements are: security of tenure, public goods and services; environmental goods and services (including land and water); affordability (including access to finance); habitability; accessibility (physical); location; cultural appropriateness; freedom from dispossession; information, capacity and capacity-building; participation and self-expression; resettlement; safe environment, and; security (physical) and privacy.

Field visit

The Special Rapportuer places a particular emphasis on the need to undertake field visits, both in urban and rural areas, in order to gain first-hand understanding of different types of accommodations enjoyed by various social groups in the country.

Indicative list of meetings requested

Meetings are requested with government ministries, local authorities, attorney general, including relevant statutory corporation and national commissions; civic and community organisations; political parties; and UN/international agencies. UNDP and Kenya National Commission on Human Rights (KNCHR) will coordinate government sector meetings, including political parties. UNDP will also coordinate inter-governemntal sector (UN/international agencies) meetings. Mazingira Institute, in collaboration with Kenya Human Rights Network (KHRN) will coordinate civic and community sector meetings.

A. GOVERNMENT SECTOR

B. CIVIC AND COMMUNITY SECTOR

Civic Sector – NGOs concerned with human rights, advocacy, service delivery, education around housing, habitat and land issues, including trade unions, women’s organisations and those involved with children, persons with disabilities and the aged.

Community Sector – Urban and rural communities, both in crisis situations and those benefiting from best practices.

C. POLITICAL PARTIES

NARC, the ruling party and KANU, the official opposition party, concerning party policy and program related to adequate housing and associated land issues.

D. INTER-GOVERNMENTAL SECTROR

Tentative Programme

It is suggested that the programme may be divided up in four segments; (a) Nairobi for general overview and series of meetings with government /UN agencies etc; (b) field visits, both rural and urban (Nairobi, Mombasa and Kisumu, and; (c) Nairobi for additional meetings and wrap-ups sessions.

Contact persons

Ms. Cecilia Moller, Human Rights Officer (Focal Point on Housing Rights)
Research and Right to Development Branch
Office of the High Commissioner for Human Rights
United Nations Offices at Geneva
Palais des Nations, CH-1211 Geneva, Switzerland
Tel: +4122917 9265/fax: +412291710
Email:cmoller@ohchr.org/ website:http://www.unhchr/ch/housing


Appendix 17: Resolution on the Adoption of the “Report of the African Commission’s Working Group on Indigenous Populations/Communities”

The African Commission on Human and Peoples’ Rights, meeting at its 34th Ordinary Session, in Banjul, The Gambia from 6th to 20th November 2003;

Recalling the provisions of the African Charter on Human and Peoples’ Rights which entrusts it with a treaty monitoring function and the mandate to promote human and peoples rights and ensure their protection in Africa.

Conscious of the situation of vulnerability in which indigenous populations/communities in Africa frequently find themselves and that in various situations they are unable to enjoy their inalienable human rights;

Recognising the standards in International law for the promotion and protection of the rights of minorities and indigenous peoples, including as articulated in the United Nations Declarations on the Rights of Persons Belong to National or Ethnic, Religious and Linguistic Minorities, the International Labour Convention 169 on Indigenous and Tribal Peoples in Independent Countries, the International Covenant on Civil and Political Rights and the Convention on the Rights of the Child;

Considering the emphasis given in International law to self identification as the primary criterion for the determination of who constitutes a minority or indigenous person; and the importance of effective and meaningful participation and of non discrimination, including with regard to the right to education;

Considering that the African Commission at its 28th Ordinary Session held in Cotonou, Benin in October 2000, adopted the “Resolution on the Rights of Indigenous Populations/Communities” which provided for the establishment of a Working Group of Experts on the Rights of Indigenous Populations/Communities in Africa with the mandate to:

Noting that a Working Group of Experts comprise of three Members of the African Commissions, three Experts from indigenous communities in Africa and one Independent Expert was established by the African Commission at its 29th Session held in Tripoli, Libya in May 2001 and consequently held its first meeting prior to the 30th Ordinary Session held in Banjul, The Gambia in October 2001 where it agreed on developing a Conceptual Framework Paper as a basis for the elaboration of a final report to the African Commission, and where it agreed on a work plan.

Noting further that the Working Group Experts convened a Roundtable Meeting prior to the 31st Ordinary Session of the African Commission in April 2002 in Pretoria, South Africa where it discussed the first draft of the Conceptual Framework Paper with African human rights experts whose contributions were taken into account in the elaboration of the second draft of the Conceptual Framework Paper which was further discussed a Consultative Meeting held in January 2003, in Nairobi, Kenya;

Emphasising that the Final Report of the Working Group of Experts in the outcome of a thorough consultative process involving various stakeholders on matters relating to indigenous populations/communities in Africa;

Taking into account the absence of a mechanism within the African Commission with a specific mandate to monitor, protect and promote the respect and enjoyment of the human rights of indigenous populations/communities in Africa;

Decided to:

Adopt the “Report of the African Commissions’ Working Group on Indigenous Populations/Communities”, including its recommendations.

Publish as soon as possible and in collaboration with International Working Group of Indigenous Affairs (IWGIA) the report of the Working Group of Experts and ensure its wide distribution to Member States and policy makers in the international development arena;

Maintain on the agenda of its ordinary sessions the item on the situation of indigenous populations/communities in Africa;

Establish a Working Group of Experts for an initial term of 2 years comprising of:

  1. Commissioner Andrew Ranganayi Chivogera (Chair)
  2. Commissioner Kamel Rezag Bara,
  3. Marian Jensen (Independent Expert)
  4. Naomi Kipuri
  5. Mohamed Khattali
  6. Zephyrin Kalimber

For the promotion and protection of the rights of indigenous populations/communities in Africa and with the following Terms of Reference;

Done in Banjul, 20th November 2003


Appendix 18: Letter re SRM/NRK/Civil Case No. 19 of 1997

OFFICE OF THE PRESIDENT
PROVINCIAL ADMINISTRATION

Our Ref:EGR/11/23/57/(25          10TH February 2004-04-15

The Senior Resident Magistrate,
Narok Law Courts
NAROK

SRM/NRK/CIVIL CASE NO. 19 OF 1997

Reference is made to your letter No. SRM/NRK/CIV/Vol. II dated 17th November 2003 on the above case.

Forwarded herein, please find a written report on the established position on the ground for your further necessary action.

C.K CCHMJOR
FOR: DISTRICT COMMISSIONER
NAROK

+Attch.

SRM/NRK/CIVIL CASE NO. 19 OF 1997

SIMON KIWAPE & OTHERS – PLAINTIFFS
VS
MUNERIA NAIMODU AND OTHER – DEFENDANT

ESINONI GROUP RANCH (REPORT)

I am in reference to the above case coming up for hearing on 10th February 2004 at the Senior Resident Magistrate’s Court of Kenya Narok of which we were required to establish the position on the ground so as to put light on the issues to the court on the said date.

Esinoni Group Ranch was formerly under Reg. No. CIC-MARA/OLULUNGA 133. It received consent for dissolution of the incorporated group representatives on 5th April 1995 from the Ministry of Lands following the application for dissolution filed by members on 14th October 1993. under reply consent letter Ref. GR, 26/37/5 signed by S.KIDEMA (MS) for Director of Land Adjudication and Settlement dated 15th April 2003. Its is in NGORI NGORI Location of Ololulunga Division. (See copy attached).

The need for the dissolution of the group arose from the members themselves who wanted to have individual ownership. The members had a joint meeting on 12th February 1997 and under their Min. 4/2/97 unanimously agreed for the dissolution and the entire group ranch be equally sub-divided to registered members.

During this meeting of which Chief Sankei was then the Assistant Chief, there arose differences where members (registered) refused to admit sons of other former members who had sold their entire shares to Kipsigis (current complaints in the case now) and hence, had no shares left. These youths went to court and stopped the then on-going process and the demanded to be registered as bonafide members before the dissolution of the ranch (ESINONI)

The sub-division went ahead and new members registered from the former i.e from CIS-MARA/OLO/9761 to CIS-MARA//OLOLULUNGA 9844. This included new members who had bought shares from the former members of the group. Registered members were 62 and all members got individual parcels following the resolution of the District Land Control Board chaired by the District Commissioner, Narok, dated 15th June 1999.

This went successfully because the objection notice filed in court by the complainant took time from the court. The Civil Case No. 19 of 1997 dated 27th February 2001 in SRM Court at Narok ordered the cancellation of all the title deeds arising from former group ranch No. 133-ESINONI. The letter written by the District Land Registered on 28th January 2003 to the former Chairman of the group ranch and copied to our end held that all the title deeds issued to the members of the Esinoni group ranch are cancelled and will be of no use. The Commissioner of lands never went ahead to cancel these titles as per the court order and Land Registrar have not yet facilitated this. This were not recalled from the members; hence they still empowered the members to stay on hold.

The year 1997 was the Esinoni area and others were affected by land clashes. The former Provincial Commissioner, Mr. Francis Baya visited Esinoni area where the clash between the Maasai and Kipsigis were at the peak and ordered that group ranches, Esinoni inclusive be dissolved.

The directive of the Provincial Commissioner then was a move towards achieving positive conflict management and indeed this brought peace, which exists up to date.

All members registered have titles up to now including those complaining in this case. Nevertheless, apart from other members who seem well satisfied with the process. Dispute is between Mr. Nkoidila Naimodu & Masiyioi Ole Naimodu 0 Also Mr. Sanare Naimodu and Ereteti Kiwape.

For Example

Mr. Nkoidila Kiwape holds No. CIS-MARA/OLOLULUNGA/9765 AND HE IS LEASING IT TO THE Kipsigis while doing this, he refuses to leave a parcel that tentatively belongs to Masiyioi Naimodu of Parcel No. CIC-MARA/OLOLULUNGA/9781.

On the other, Mr. Reteti Ole Kiwape who holds CIS-MARA/OLOLULUNGA9773 has refused to vacate the area earmarked for Sanre Naimodu and also going ahead to lease the same to Kipsigis leaving the other without anywhere for subsistence. Sanare Naimodu has his parcel No. CIS-MARA/OLOLULUNGA9780.

Although they petitioned the whole process in court, they in reverse recognises the positioning as per the new registration, hence, they normally do the “Double Leasing” leaving others with totally nowhere to raise a living, hence, the dispute and disagreement persists. The fighting groups here do incite the leasees to even arm themselves with crude and lethal weapons and that is when administration comes in to arbitrate.

When arbitrating for peace, the provincial Administration takes it as a necessary obligation and used all the lawful necessary means to see to it that peace prevail.

We only pray to the court to find a lasting solution to the problem.


Appendix 19: Letter re Status of Esinoni Group Ranch

Harrison Kinyanjui & Co.
P.O. Box 100024
Nairobi

RE: STATUS OF ESINONI GROUP RANCH

Your letter Ref. JHK/EGR/366/2003
Of 15th April, 2003 refers.

Esinoni Group Ranch had applied for dissolution of the Incorporated Group Representatives on 14th October, 1993 and of which a consent was issued on the same on 5th April, 1995 vide our letter Ref. GR./26/371/5.

The consent for dissolution paves way for sub-division of the ranch to individual ownership.

(signed)

S. Kidemi (MS)
For: Director of Land Adjudication & Settlement

CC:
The Chairman
Esinoni Group Ranch
P.O. Box 95
NAROK


Tribute

To Mr. Parsaloi Saitoti Orop Monoso who passed away on 2nd Dec 2002 at the age of 80 of which 80% was dedicated to the Ogiek struggle for ancestral lands and recognition in HCCA Nos. 635/97 and 228/2001. He was applicant Number 9.


Bibliography

“The Jurisprudence of Human Rights Law: A comparative Interpretive Approach” (Turko/Abo, Finland: Institute of Human Rights; Abo Akademi University, 2000)

Daily Nation - Mau Forest on the Spotlight – Kenyans must be told the truth and East African Standard Weekly – 11 and 15-21 December 2003., and 2002 Booklet Publish by Media Education Centre, Egerton, Nakuru

Daily Nation, Wednesday, Magazine of 23rd August 1968

Dr. Smoking Wanjala and M/s Wanza Kioko – Securing the Rights of Indigenous People in the New Constitution order – The case of the Indigenous Ogiek People, unpublished, 2002, Nairobi

Francis Kemei and 9 others verses the Attorney general and 3 others HCCA No. 238/99 and appeal 98/2000- Nairobi

Government of Kenya 1991 Land Laws Systems Inquiry Commission, Pg 70, Nairobi

Government of Kenya Constitutional Review Commission, Draft, 2002. Constitution of Kenya Review Commission, Nairobi.

Government of Kenya Gazette Notices of February 16, 2001 and Legal Notices of 19th October, 2001, Minister for Environment and Natural Resources, Nairobi

Government of Kenya Memorandum of Kenya Indigenous Forest Conservation Programme (KIFCON) 1991- 93, handed over to the president of the Republic of Kenya H.E. D.T. Moi

Government of Kenya Officials documents (Colonial and Independent). Kenya, Nairobi

Government of Kenya Printer (1934) Kenya Land Commission of 1934. Report and recommendations, Nairobi

Government of Kenya Printer (2001) Government Gazette notice, February 16, 2001 and Legal Notice, 19th October, 2001

Government of Kenya-Kenya Land Commission of 1930s. Report and Recommendations – Testimony of Ogiek elders dated 17th Oct. 1932

Government Printer (1999) Presidential Land Commission of Inquiry into Land Laws and systems. Gazette notice No. 6593 of 17th November, 1999, Nairobi

Guy Yeoman “High attitude Forest. Conservation in Relation to Ogiek (Dorobo) people, 1979, East Africa, Swara Magazine,

Human Rights Committee in Lansan V Finland! (Communications No. STI/1992)

Human Rights Quarterly 345 at 348, The Case of the Awas of Tigni, Nicaragua, 1996 Ivan

John Kamau “The Ogiek- The ongoing Destruction of a Minority Tribe in Kenya, 2001, - A Rights News and Features Service Publication, Nairobi

Joseph Letuya and 21 others verses Hon. Attorney General and 21 others HCCA No. 635/97, Nairobi

Joseph Letuya and 21 others verses the Minister for Environment and Natural Resources and Attorney General HCCA No. 228/2001- Nairobi

Judicial Review HCCA No. 421 of 2002 (Republic verses the Minister for Environment and Natural Resources and Ministry of Lands officials-Nairobi

Maggio F.G. “Recognizing the Vital Role of Local Communities in International Legal Instruments for Conservation Biodiversity” (1997/1998) 16 UCLA Journal of Environmental Law and Policy 179 at 180-182.

Marinwa, Sogoo and Loloigero family’s verses Isaiah Cheluget in the Narok miscellaneous application No. 7 of 1999 – Nairobi and Tribunal No. 19/1998- Narok

Nation Media Group (2001) Daily Nation 2nd Jan, 2001, Daily Nation, 18th February, 2003

Nation Media Group(1968) Daily Nation, Wednesday Magazine 23rd August 1968

National Media Group Daily Nation of 2nd January 2001 on President Moi’s speech and 18th Feb, 2003 on President Kibaki’s speech.

Oasis Magazine, 2002, Ogiek Welfare Council Quarterly magazine – Media documentations Centre, Egerton, Nakuru

Ogiek elders and leaders, open letter to Narc 9th January 2004 Daily Nation

Ogiek Elders, Petition to the President, Mimeo December 2001.

Ogiek Welfare Council, 2002, 2003

Ogiek Welfare Council, Open Letter to the Narc Government, Daily Nation of Monday, January 19, 2004 and East African Weekly 2-7, 2004.

Presidential Land Commission of Inquiry into Land Laws and Systems. Gazette Notice No. 6593 of 17th November, 1999 - Nairobi

Riesman W.M. “Protecting Indigenous Rights in International Adjudication (1995) 89, American Law Journal of International Law, 350 at 354.

Scheim, M.: “The Right to Enjoy a Distinct Culture" Indigenous and competing uses of land, in Orlin S.T., Rosas A. and Scheinin M (Eds). The jurisprudence of Human Rights Law. A comparative Interpretive approach (Turku/Abo, Finland Institute of Human Rights: Abo Akademi University, 2002 pp 159-222 at 161

Shaw M. “The Definition of Minorities in International Law”(1991) 20 Israel Yearbook on Human.

Simon Kiwape and 19 others verses Muneria Naimodu and 2 others in Senior magistrate Court at Narok civil case No. 19/97- Narok, appeal No. 64/2001 - Nairobi

Simon Milgo verses the Land Dispute Tribunal, Elburgon division NRC Misc. Civil Application No. 1 of 2003 - Nakuru

Steiner, JH and Alston P “International Human Rights in Context. (Oxford Clarendom Press, 1996 pp 1006-1011) 1988.

Survival International UK Quarterly Bulletin (Survival International 2002)

Survival International, UK- Quarterly Bulleting, 2002

Towett JK – Mau Forest on the Spotlight- 2002,2004

Towett JK. Allotment for Assimilation, a paper submitted to the Law Society of Kenya in 2001, during World Conference against Racism preparations - Nairobi

Towett JK. Development Processes, Minority Rights and Recurring injustices- A paper submitted to the National Hunter-Gatherers Workshop – Kitale, 2003

Wamugo E. – “We the Ogiek”, (Nairobi: Kenya Human Rights Commission, 2001)


Genealogy

Content in printed book.


Back Cover

Ogiek Land Cases and Historical Injustices

     The case of whose land, in a controversy that pity the historical claimers, the Ogiek community, the conservation authorities and the provincial administration under the auspices of development programmes

     The Kenyan government or the successive regimes for that matter are on records as having maintained a clear, if unstated, policy to frustrate all efforts by the Ogiek to secure legal protection for their traditional lands, culture, ethnic identity and language.

     This all is manifested in the way these regimes have handled the community’s plight and more particularly the land claims. Whereas the Ogiek wanted to be recognised as distinct groups, the successive regimes sought the contrary, they went ahead to equate the community as landless persons, a justification to nullify their God given rights. They have gone a long way to criminalise their ways and modes of living, with a clear policy of assimilation, a sure road to historical oblivions and dustbins. Voicing the community’s rights is calculated to mean seeking special favours, or even classified as acts of bad faith aimed at security threats and development stagnation. This policy of integration has been institutionalised by all the arms of the government and this was manifested by the HCC238/1999,2000 March hostile judgment from the high courts. At the same time government sponsored factional groups have been used to wage political and economic war to the already impoverished Ogiek members, whereas degradation is called development, the community are yet to recover from the cheating, coercion and dispossession, hence the genesis of this research, aimed at sharing the intrigues behind the scene.

     The author has first hand experience in these matters, as he has been a central player in the community’s land question and plight. He has researched extensively on all the Ogiek groupings and also participated in all the community’s lodged complains in courts and government established bodies, commissions and select committees. His expertise in the indigenous affairs has help a lot in changing the country and world perception on the original understanding of land use and occupancy.

     Indeed today our country is proud of the proposed extensive and comprehensive land policy.



About this Site


Copyright © 2004, Ogiek Welfare Council and Towett J. Kimaiyo.
Reproduced with permission of Towett Kimaiyo.

FreeAfrica.Tripod.com/ogiekland/
Home / The Book / Contents / About this Site

Material below this line is advertising not related to and not endorsed by this site.