By Chris Lang
In May 2017, the Ogiek Indigenous People won an important land rights victory at the African Court on Human and Peoples’ Rights. The Court ruled that the Ogiek have the right to live in the Mau Forest and that the government of Kenya was wrong to evict them. At the end of June 2020, 100 officers from the Kenya Forest Service and Kenya Police Service started evicting the Ogiek and demolishing their homes.
The evictions are taking place despite a moratorium on forced evictions issued by the government only one month ago.
On 11 May 2020, Fred Matiangi’i, Kenya’s Cabinet Secretary, Ministry of Interior and Coordination of National Government, went on national television to announce a moratorium on forced evictions during the coronavirus evictions.
The Star comments,
Although the Environment and Land Court on Friday halted any pending evictions, the government’s record in obeying court orders offers no respite for the homeowners.
Defending the future
In May 2020, the Katiba Institute and the Ogiek Peoples Development Program put out a report titled, “Defending our future: Overcoming the challenges of returning the Ogiek home”.
Kenya’s Ministry for Environment and Forestry had set up a taskforce to advise the government on how to implement the Ogiek judgement.
In the Preface to the report Daniel Kobei, Executive Director of the Ogiek Peoples Development Program, writes,
This taskforce, like colonial rule in Kenya in times past, did not include representation of our community even though the deliberations directly concerned us. We understand its mandate ended on 24 January 2020 but its report has not been made public despite our attempts to seek disclosure. The Ogiek community made submissions to the taskforce seeking complete restitution of our ancestral land, with at least seven non-transferable community titles.
Lucy Claridge, Senior Counsel at the Forest Peoples Programme, summarises the key findings of the Ogiek judgement in the report. The Court recognised the Ogiek as an Indigenous community and that the Mau Forest is their ancestral home. For centuries the Ogiek have depended on the Mau Forest as a source of livelihood.
Article 14, of the African Charter on Human and Peoples’ Rights, states that “The right to property shall be guaranteed”. The Court recognised the Ogiek’s “right to own, use, develop and control the lands, territories and resources that they possess by reason of traditional ownership or other traditional occupation or use”, as stated in the UN Declaration on the Rights of Indigenous Peoples. Claridge writes that,
Importantly, the Court recognized that such rights ‘do not necessarily entail the right of ownership in its classical meaning, including the right to dispose thereof ’, recognizing that, unlike other property rights, indigenous rights over their ancestral lands are inalienable: they cannot be transferred or taken away. Since the government had not disputed that the Ogiek have occupied lands in the Mau Forest since time immemorial, the Court ruled that they have the right to occupy, use and enjoy their ancestral lands. Further, although the Court accepted that the right to property under Article 14 can be restricted in the public interest where necessary and proportionate, it found that the degradation of the Mau Forest could neither be attributable to the Ogiek nor did the preservation of the ecosystem justify their eviction. Accordingly, the expulsion of the Ogiek from their ancestral lands against their will, without prior consultation, constitutes a violation of Article 14.
Instead of respecting the ruling of the African Court on Human and Peoples’ Rights the Kenyan government is destroying the homes of the Ogiek Indigenous communities. It is also evicting Sengwer Indigenous communities. These evictions are taking place during the coronavirus pandemic. Making people homeless makes them more at risk from the coronavirus. And all of this is taking place in the name of conservation.