Ogiek Land Cases
and
Historical Injustices

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."