Ogiek Land Cases
and
Historical Injustices

Chapter 11: The Future

Legal Policy

     The Independence Constitution made no special provisions to protect the rights of indigenous minorities in Kenya such as the hunter-gatherer Ogiek community of the Mau Forest. The colonial rulers ignored their plight. The report of the Carter Land Commission of 1933 abounds in unresolved claims by the Ogiek for their ancestral territories. Whereas they wanted recognition as a distinct nation and rejected attempts to make them appendages of either the Maasai or Kalenjins, the colonial authorities sought the contrary, thus denying them identity. This position was carried over by subsequent Governments in Kenya. This position is what justified the subsequent harassment and evictions.

     Ogiek traditional territories were turned into protected areas, trust lands and government forests, and what remained is currently under distribution to outsiders in an effort by the state to destroy their culture, identity and existence. Consequently, they have been branded squatters in their own land. The continued dispossession and displacement from their land has been enhanced by selfish legislation by the state and conservation agencies. The hunting and gathering which was traditionally practised has been outlawed and wild animals have become either the property of the state or the individual farmer. Suddenly, feeding the family became difficulty as all the highly specialised economic skills developed over centuries were rendered redundant and obsolete. The continued dispossession of land and natural resources has condemned the previously self-reliant Ogiek to poverty and dependency on external resources.

     However, the Ogiek will enjoy total peace if the following options and interventions are put in place. The emphasis of them having lived in the forests surviving as hunters of wild game and gatherers of fruits and honey, a fact underlined by their name, which means, “the caretaker of all plants and wild animals”. They are self-sufficient on natural products of the forest through hunting and bee keeping and are great conservators of the forest and the creatures that inhabit them. One author has stated that the Ogiek are happiest in situations of isolation where trees and animals provided them with psychological support, which one may seek by becoming a member of a larger society.

Recommendations

     The Ogiek community have never known peace ever since they were denied their home and subjected to constant harassment by the successive selfish regimes. However, the following recommendations would shine a light into the Ogiek future if they are incorporated in the draft or the new constitution.

1. Formal recognition of indigenous minority communities in Kenya as people with collective rights distinct from the mainstream national society, with distinct linguistic and cultural identity and desire to continue living by their traditional lifestyle. The constitutional set-up should thus refer to these indigenous minority communities, notably the hunter-gatherer aboriginal to the Kenya State, hence Chapter V of the present Constitution should be amended to read individual and “peoples” rights.
2. The Constitution to make provisions for the “restitution” of indigenous people’s lands by vesting indigenous people’s lands and territories to the community. The new Constitution should stipulate that as a result of colonization, indigenous minority people’s rights to their ancestral land were not extinguished as a result of conquest. Indigenous people’s land held and protected by the current Constitution either as Government Land or Trust Land be restituted to the respective communities and where restitution is not possible compensation be made. A body should be set up to check what injustices were committed against the minority Ogiek and remedy the same. An all inclusive Truth, Justice and Reconciliation Commission be formed.
3. The new constitution to provide for direct benefit from revenue accruing out of their natural resources, such as forests and game reserves. This will be in recognition of their values, traditional knowledge and resource management practices with a view of promoting environmentally sound and sustainable development for sustainable harvesting, contributes to the cultural, economic and physical well being of indigenous communities whose livelihoods directly depends on renewable resources and the protection of fragile ecological ecosystems.
4. The new constitution to provided for establishment where necessary, of appropriate arrangements to strengthen the active participation of indigenous minority communities in the formulation of national policies, laws and programmes, relating to resources management and other development processes that may affect them as they initiate proposals for the implementation of such policies and programmes. This will go a long way in ensuring that land belong to indigenous communities are protected from harmful or environmentally unsound activities, which to them are considered to be socially and culturally inappropriate. Individual and collective potentials be realized
5. Federal Governments should be created based on the current provinces with Nairobi as a central point. Each state should have proportionate constituencies based on Tribal divisions and each tribe should elect Members of Parliament to both the state and central legislatures. This will provide a counter-weight to marginalized minority tribes against excesses of majority tribes. Politics should also be in such a way that coalition parties can form governments both at the centre and in the states.
6. A single citizenship should be availed to all Kenyans to foster freedom of movement to all parts of Kenya including the areas occupied by minority indigenous tribes. However, freedom of residence (including land transfer) should be restricted in the interest of the marginalized minority communities such that transfer of land by minority communities to other communities is restricted for at least 30 years. The government should also be constitutionally barred from transferring indigenous minority tribes’ land either to itself or members of other communities.
7. Efforts should be made to equalize indigenous minority tribes with other communities as they have been marginalized for a long time. The Government should reserve for them employment opportunities, education (with their mean grade lowered to enable them get to top schools, colleges and universities), political seats etc, and this should be provided for in the Constitution.
8. Education up to the fourth form should be made a fundamental right. Consequently, no person should be denied education on grounds of inability to pay fees.
9. The Constitution should direct the Government to discharge various functions such as environmental protection, compulsory provision of health, education e.t.c, and to specifically strive to uplift communities like the Ogiek, Sengwer, Njemps, Shangila, Endorois, Yiaku, Merti Elmolo etc. This means that such communities should be given their own constituency districts and every successive Government should establish a ministry to deal exclusively with marginalised indigenous minority community’s issues. Also, fundamental duties of citizens should be prescribed e.g. people living in Nakuru, Narok and Kericho districts should collectively be responsible of keeping the Mau Forest healthy through funding its conservation efforts. They can fund it through their respective local authorities. The Kenya Power and Lightening Company and the ministries of Water and Natural Resources, Wildlife and Environment.
10. The most disadvantaged sectors of our society should be granted every available means to protect and progressively realize the individual and collective human rights. The document should provide for the promotion of social and economic rights of indigenous people in Kenya.
11. The official recognition of the Mau forest complex as the Ogiek ancestral home and its subsequent gazetting and giving it to the Ogiek as their home. With this, they should be allowed to reject foreigners from alienating or occupying it. Here they will be able to promote their social cultural and economic rights. The government should facilitate the bringing together to this Ogiek trust, all the Ogiek scattered across the country, alongside with their properties. This will make the Ogiek majority in their own home and further increase their protection against the assimilation polices, thus preserving their language, culture and identity.
12. Establishment of a legal system that will benefit individuals without hurting the community at large. Mainly, individual members of the Ogiek should be allowed to own a specific portion of land under freehold tenure while the existing forests should be owned by the entire community and utilized by the community on its own behalf and on behalf of the Kenyan society at large. Land owned by individual members of the community should be protected from being sold in the market to ensure that families are not rendered destitute. The protection should last for a specific period, for instance 30 years. An Ogiek Land Act should also be enacted.
13. A commission be formed of land experts and representatives of the minority grouping, who will in turn hold the land in trust on behalf of its beneficiaries.