Ogiek Land Cases
and
Historical Injustices

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.