Ogiek Land Cases
and
Historical Injustices

Executive Summary

     This publication seeks to explore the historical injustices visited against the minority communities particularly on their land rights. In addition, it exposes other communities’ attitude towards these minority groups, which is perpetuated by negative stereotypes, segregation and denial of rights. One such minority group is the Ogiek of the Mau Forest. They have made all efforts at redress and are at present in courts, justice. They have been before the Constitution of Kenya Review Commission and other government formed bodies.

     This report attempts to explore the genesis of the Ogiek land problems and their history. It scrutinises the current much publicised settlement scheme, which has more political bearing than economic. It gives an account of how other communities were evicted from this forest under the pretext of conservation laws, only for the same area to be allocated to the “politically correct” a few years later. However, the Ogiek have not been passive, they have struggled against this historical dispossession, though with little success due to the insensitive laws and policies governing Kenyan land. The remarkable achievement is the avenues taken, which are given sufficient attention.

     The former regimes are on record as having maintained a clear, if unstated, policy to frustrate all efforts by the Ogiek to secure legal protection for their traditional lands, culture, ethnic identity and language.

     The settlement schemes pose a serious threat to the Ogiek existence as an ethnic and cultural entity. The developments that followed, which include clearing of forest, spontaneous and planned settlement and the burning of the indigenous forest cover, has more negative than positive effects. Any challenge to the status quo is seen as a threat to security and thus met with the stiffest resistance by the concerned authorities and the beneficiaries. Proposals for expeditious settlement of Ogiek land cases is viewed suspiciously, and met with stiff resistance by the beneficiaries, whose composition reads like, who is who, in the arena of land grabbing. It includes politicians, land speculators, forestry and provincial administration officials and timber merchants, both briefcase and licensed.

     The many Ogiek land cases pending in court owe to the fact that those who were in power were more concerned with their private needs as opposed to the collective needs of all the citizens. One such case took seven years before being heard. Other cases had rulings that favoured the aggressor. There are also the successive gazette notices by the Minister for Environment and Natural Resources. The former regime was characterised by coercion and repression. With the change of guard, from Kanu to Narc government, things are about to change, although, radical elements of the old order are still very much alive and active.

     The Ogiek community is known for its advocacy and defence of the natural resources being plundered by government and corporations. Presently, nature is more endangered than ever. The gifts of nature are under siege. They strongly believe that by leaders enhancing policies that work against them, then these leaders are at war with mother earth and there can never be peace.

     The settlement scheme outcome is akin to the ethnic cleansing that rocked various parts of the country at the introduction of pluralism, and during the 1992 and 1997 general elections. The need for a close scrutiny of the relationship between the current land adjudication processes in the country, the Presidential Commission of Inquiry into the Origin and causes of Tribal Clashes in the country chaired by the respected retired appellate Judge, Justice Akilano Akiwumi, the other Presidential Commission of inquiry into the Land Law Systems and the possible recommendations, commonly known as the Njonjo Commission and Constitution of Kenya Review Commission chaired by Prof. Yash Pal Ghai. These commissions operated under a hostile environment. The former regime were known for their disrespect for law and were even prepared to overlook both the law and the constitution in order to protect and possibly achieve their political goals.

     The new government is likely to be preoccupied with pleasing the external lenders at the expense of the minority rights. To confirm our fears, a Presidential Land Commission was formed to finalise, what the Njonjo Land Commission left unsettled. Its main focus being on the far reaching recommendations on irregularly and illegally acquired or allocated government land. They might also be interested in showing their expertise at conservation and protection of the already degraded environment while shunning the Ogiek sacrificial contribution in resisting the grabbing of their ancestral lands both by powerful communities and also by the successive regimes through the enactment of laws and policies that work against them. The proposed National Land Commission in the Draft Proposal might be of little help when finally formed, as it might also be tempted to overlook the Ogiek rights and claims.

     All title deeds which were issued within the last decade of Kanu rule and the subsequent land adjudications were tools of entrenching federalism in the country, as the politically correct sought to expand their political domain. The many historical injustices to be investigated by the Truth, Justice and Reconciliation Commission, has its root causes in these institutionalised notions of territorial expansions.

     It is thus no wonder; that any mention or move aimed at authenticating the former transactions is seen from a political angle. Already, threats have been issued to that effect. Tensions have continued to mount as possible nullification of the scheme became visible. The indications that the environmental policies are finding way into our national plan, is evident in the new constitution. The environmental management and co-ordination of 1999 is a pointer of this.

      This research was motivated by the needs of the Ogiek community to draw a parallel between state perception of fighting imaginary enemies, at the pretext of conservational laws and policies and what they said was settlement of deserving cases, which turned out to be contrary.

     The author had the Ogiek customary laws and practices in mind in which land, animal and tree tenures formed its components and the government laws and statutes that deal with land, the political establishment bias to Ogiek rights and the secrets behind the whole resettlement programmes. The simplest harmonious forms of a constitution is found at the community and family level.

     A total of six cases have so far been filed by the Ogiek in separates courts in the Republic of Kenya. Some groups have had their cases secretly withdrawn, or are considering filing. A common factor is that, all Ogiek wherever they are have got no place to call a home. To add insult to injury, they have faced more than 50 criminal cases all instituted by the state and their allies in a bid to silence them from seeking justice for their ancestral lands and way of life.

     Since there is no limit to the time the laws and the constitution review will take, the case of the Ogiek warrants efforts to rectify the obvious constitutional inadequacies. We should restore their rights to their own land. The Kenya government should ensure that its laws conform to international laws if human rights are to be enjoyed by all.

     “Your resources are our relations.”