The Ogiek Evictions in Kenya – a failed legal solution
The Mau Forest is one of Kenya’s forest reserves, gazetted in 1954 to protect it from deforestation. In 2001, the government carried out an excision of the Eastern Mau region which constitutes 25% of the forest with a view to establishing a settlement scheme understood to be for the Ogiek community. The Marishioni location, Elburgon Division and the Nessuit location in the Njoro division, where the Ogiek community historically resided as forest dwellers, fell within this region (“the land”). The community argued that they had ancestral links to the land, with an inherent right to ownership, despite not having bought and acquired title deeds for it. This post assesses the legal remedies now available to the community to assert their right to ancestral possession. In reality, these rights continue to be disputed because the land now has new title deed holding owners alleged to have unscrupulously acquired it, and therefore, characterised as illegal settlers.
The policy during Kenya’s colonial era was to set aside ancestrally owned land as ‘Trust Land’ to protect an indigenous community’s perpetual right of ownership. The Eastern Mau region however had not been set aside, and as a consequence, the Ogiek’s claim to the land became contestable. Their occupation of the land was considered to be akin to that of squatters, leaving them vulnerable to eviction. Prior to the 2001 excision of the land, in 1997 the community was threatened with eviction and instituted a class action in the High Court of Kenya. Their struggles have since been driven by a clamour for recognition as an indigenous community, worthy of protection by the Kenyan State for their livelihood as forest dwellers that have both a socio-economic and spiritual connection to the forest. The 1997 case remained unlisted until 2012 when it was transferred to the then newly established Environment and Land Division of the High Court. On 17th October 2014, the judgment was handed down in Joseph Letuya & 21 others v Attorney General & 5 others  eKLR with the findings mostly in favour of the applicants. The Court stated that the community’s rights to life protected by section 77 of the previous 2008 constitution and reaffirmed in Article 26 of the 2010 constitution had been infringed. The court also concluded that their right to dignity under Article 28 as well as their economic and social rights under Article 43 of the 2010 constitution had been contravened. Additionally it took the view that the eviction was discriminatory, and therefore, constituted a violation of the protection afforded to them under section 82 of the previous 2008 constitution and Article 27 (4) of the 2010 Constitution. In the latter finding, the State’s culpability extended to unjustifiably preventing the community from practising their culture as farmers, hunters and gatherers of the forest. The Court therefore made directions for the National Land Commission (NLC) to open a register of members of the Ogiek Community in consultation with the Ogiek Council of Elders and identify land for the settlement of the applicants in the excised area within a year of the judgment.
A period of inertia ensued with the illegal parcelling out and sale of the excised vacant land. The case degenerated into a standoff between the Ogiek community, who had legally recognised rights over the land by virtue of their ancestry, and those who had purchased the land and thus had title deeds. Concurrent with the 1997 class action, the UK based NGO Minority Rights Group (MRG) made an application to the African Commission, in response to a notice issued by the Kenya Forestry Service in October 2009, requiring the Community to leave the area within 30 days. In 2012, the case reached the African Court. Endorsing the 2014 Kenyan High Court in the Joseph Letuya & 21 others v Attorney General, the African Court, on the 26thMay 2017 found that the Kenyan Government had flagrantly violated the African Charter on Human and Peoples’ Rights by continuing to deny the Ogiek land rights as well as their religious and cultural rights, which included their hunter-gather practices.
In the wake of African Court’s judgment, the Kenyan government has two options. Firstly, they could evict the new title deed holders. Secondly, they could resettle the Ogiek community in conditions that, as best as possible, honour their Article 63 2(d) of the 2010 Constitution rights to ancestral lands as traditionally occupied by hunter-gatherer communities. Both initiatives would require that reparations for the discrimination they have suffered in contravention of Article 27 (4) of the 2010 Constitution be made available to address the historical injustice of dispossession by the Kenyan State. In this regard, Article 56 of the 2010 Constitution necessitates the putting in place of affirmative action programs designed to ensure that minorities and marginalized groups, amongst other things, develop their cultural values, languages and practices. Pursuant to Article 56 (a) of the Constitution, the Kenyan State is required to take action that enables the Ogiek community to participate in and be represented in parliament and other spheres of life. Crucially, the implementation of an affirmative action program would place the community on an equal footing with other Kenyan tribes and allow them to claim and enjoy their Article 43 socio–economic rights.
The Ogiek community argues that their position as a community remains precarious. This precarious position is unlikely to improve as they barely have any political power in Kenya and are unlikely to be supported in vindicating their rights, even though the law is on their side. Their disenfranchisement as a community now takes the form of internal displacement from their ancestral land, as a consequence of which they mostly are living in squalor.