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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 Kenyas 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.
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.
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 communitys 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 Ogieks were not party to the on goings.
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. Chelanga. 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 Chelanga 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 parcels 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 partys 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 Presidents 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:
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