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Ogiek Land Cases
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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.


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