Ogiek Land Cases
and
Historical Injustices

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.