Ngongongeri, Nakuru County, Kenya – Kenya’s Ogiek, an indigenous minority of hunters and gatherers, have won a historic case against the Kenyan government, close to a decade after they began their legal battle.
The African Court on Human and People’s Rights, a continental court established in 2006 by African countries, on May 26 delivered its verdict in Arusha, Tanzania – ruling in favour of the Ogiek and recognising their right to Kenya’s Mau Forest as their ancestral home, and their role in protecting it.
The court ruled that the Kenyan government had violated seven articles of the African Charter on Human and People’s Rights, of which Kenya is a signatory, and which is intended to protect basic freedoms and human rights.
The verdict recognises the Ogiek’s indigenous status and their right to reparations from the Kenyan government for the suffering they have endured through forcible evictions. It recognises the Ogiek’s “strong attachment to the forest”, their legal right to live on the forest land, their freedom to practise their traditions and deemed evictions to be disproportionate to conservation aims. The Kenyan government in court said it accepted the judgment.
“The room has never been so full. It was packed to the brink,” said Lucy Claridge, legal director of Minority Rights Group International (MRG), a campaign group working closely with the Ogiek. She has been working on the case since April 2010.
Speaking from Arusha, Claridge said around 75 Ogiek attended the court hearing, dressed in their traditional clothes. After the victorious judgment, the Ogiek broke out in celebratory singing and dancing.
It is an unprecedented legal victory for an indigenous people in Africa. The ruling marks the first judgment from the highest institutional human rights body in Africa to favour the cause of indigenous peoples.
“This sends a message to governments of the standards around indigenous people’s rights in Africa,” says Claridge. “It’s a very clear message for governments that they need to respect indigenous people’s rights.”
The victory could set a precedent for similar cases across the continent.
“I know that the case also gives hope to other indigenous peoples,” said Daniel Kobei, executive director of Ogiek Peoples’ Development Program (OPDP), an NGO which advocates for the community’s rights, in an MRG press release.
Forest connection and history of evictions
The Ogiek have dwelled in Mau Forest for generations. This small community of about 35,000, which lives in and around the forest complex spanning about 4,000 hectares and five counties in the country’s west, claims to have suffered injustices, harassment, and evictions at the hands of successive governments and more powerful groups with an interest in the forest’s resources.
“We saw different people take our land,” Lebidas Lesingo, a 78-year-old Ogiek elder, said in February.
The Ogiek, sometimes referred to as “Kenya’s castaways”, have always maintained they have a right to this land. “Our fight has never changed,” Lesingo said.
Mau Forest is the source of the Ogiek’s traditional livelihoods and is synonymous with their cultural and religious identity. They hunt game such as hyrax and bushbucks, collect nuts and berries and harvest honey, which they use for healing and nutritional purposes. They use the forest’s indigenous plants as medicine, such as the bark of the Kopukeriet tree.
Mau Forest is also the site of Kenya’s biggest water catchment and the source of seven rivers. It is also the largest closed-canopy forest in Kenya, thus seen by some as a lucrative source of timber.
Since the early 20th century, the tribe’s way of life has come under threat. The first forcible evictions date back to 1911 after a deal between the Maasai community, one of Kenya’s tribes, and colonialists culminated in the former losing land to the white settlers.
It was lost on the “colonial authorities that the land signed over by the Maasai was Ogiek land”, writes Joseph Sang, an Ogiek activist, in a 2001 report for the advocacy organisation Forest Peoples Programme.
“That was a problem we inherited from our elders,” Sang says.
Governments since independence in 1963 have expelled Ogiek from the forest, citing conservation reasons such as re-planting. But the Ogiek say the forest is being destroyed.
“The forest has turned into a plantation forest, where fast-growing trees are planted for commercial work,” says Kobei, adding that indigenous plants are disappearing.
“There is illegal logging, illegal settlements and encroaching,” says Sang, the activist, who is a paralegal at Namati, an international NGO working at the grassroots level to help people understand, employ and shape the laws affecting them.
The Ogiek allege that they are being forcibly evicted by land grabbers and illegal loggers while corrupt authorities stand by. Their homes have been ransacked and burned to the ground.
Sang says evictions have displaced and dispersed their people, who respect and revere the forest. The term Ogiek literally means “carer of all plants and wild animals”.
“The forest is what we call home,” Sang says when asked why it is so important to the Ogiek.
“When you talk to them, what really comes across is that they want their land back because it’s part of their livelihood. It defines them,” says Lucy Claridge, legal director at MRG.
“It might be difficult to understand, but the forest is part of them. It is where they feel home. It’s where they feel Ogiek.”
In 2008, the Kenyan government began a campaign to evict inhabitants of the forest.
The following year, in a David against Goliath scenario, the Ogiek filed a case against the Kenyan government. They claimed that in October 2009, the Kenya Forest Service (KFS), an agency of the Kenyan government, gave the Ogiek and other people living in Mau Forest a 30-day eviction notice on the grounds that they lived in a reserved water catchment zone. They reject that this decision was a conservation attempt and alleged a number of violations of the African Charter.
The Ogiek demanded the halting of evictions, and that their ancestral land in the Mau Forest be legally recognised as theirs. They also asked for compensation for loss of property and natural resources, and freedom to practise their culture and religion, among other things.
The OPDP and MRG, with Claridge as the lead lawyer, brought this case to court. It was the first time the African Court on Human and People’s Rights had heard a case from an indigenous group.
In 2013, the court ruled that the Kenyan government ban all land transactions in Mau Forest, and suspend evictions until it reaches a final verdict.
Despite the ruling four years ago, the Ogiek claim they continued to suffer abuses. In June last year, police and KFS rangers forcibly evicted Ogiek families in Mount Elgon and burned down their homes.
In March last year, Stephen Munyereri, an Ogiek elder in his 60s, was salvaging belongings from the burnt-out remains of his son’s property when he was shot and killed.
Just days earlier, land grabbers had burned down his son’s house.
Munyereri’s death came at a time when the Ogiek had been involved in land disputes with members of a neighbouring tribe in the Ngongongeri area of western Kenya. More than 100 Ogiek families had been evicted from their homes, and 15 houses were destroyed.
While Munyereri was at the property, a man claiming to be the landowner confronted him. According to neighbours, an argument over land ownership escalated and the man shot the Ogiek elder, who was unarmed. The culprit was arrested but released on bond that same day.
Kobei, of OPDP, says Munyereri’s family is still waiting for a trial, which has already been postponed several times.
“How would you feel seeing somebody who has killed your father moving around?” Kobei says.
MRG have demanded a proper investigation.
“Before we used to experience eviction, but nobody had been killed,” Kobei says.
The Ogiek have in the past turned to the courts to address their grievances such as land grabs, without much success.
“Some cases dated back to 1997 and were determined in 2014,” Kobei says. “This [length of time] is indeed an insult to human rights, especially in a community where mass violation has been experienced.”
In a fast-changing world, the Ogiek have had to adapt to modern life, and consequently have already lost many of their traditions, such as those related to medicines or coming-of-age ceremonies connected to the forest.
“If they are not allowed to have their land back then, as a people, they are threatened with extinction,” Claridge said in an interview before today’s verdict.
Sang, who is in his 40s, has worked towards securing the Ogiek’s indigenous and land rights for decades.
He told Al Jazeera that his activism has taken him around the world with different organisations to conferences on indigenous rights and he has been inspired by groups such as New Zealand’s Maoris.
Once, while at a conference in the Philippines as coordinator of the Ogiek Welfare Council, an NGO working towards Ogiek rights until it closed in 2005, he saw farmers mapping their land.
“I thought, how can we reclaim our land using this method?” he said.
Using aerial photographs and elder knowledge, he says the Ogiek mapped their land in eastern Mau by 2010.
“Now we had evidence of the land we were claiming,” said Francis Lesingo, an Ogiek elder from eastern Mau.
Although mapping one area wasn’t enough to support a comprehensive land claim, Lesingo believes the exercise was important for his community.
“When the elders came together and mapped their land across all the clans, they finally realised they were one,” he said.
Namati is currently supporting OPDP in finding ways to expand the mapping exercise to cover all Ogiek land.
|The Mau Forest covers around 400,000 hectares and is the source of seven rivers. It is also the largest closed-canopy forest in Kenya, and a large source of timber [Virginia Vigliar/Al Jazeera]|
The Ogiek have tried to safeguard their culture by passing traditional knowledge on to younger generations. The OPDP also organises a cultural festival every year in Nakuru, but the months change, depending on how successful they are at fundraising.
Nevertheless, experts say these efforts are not enough for the Ogiek’s cultural survival.
“It’s dying out. It has already died out,” said Claridge of Ogiek language and traditions.
The Ogiek were initially expecting a verdict from the African Court in March, but the hearing was delayed, according to Claridge, because the judges needed more time to deliberate on a case with such wide-reaching ramifications.
“This case is of fundamental importance for indigenous peoples in Africa, and particularly in the context of the continent-wide conflicts we are seeing between communities, sparked by pressures over land and resources,” said Claridge in a press release on May 22.
Speaking ahead of the May 26 ruling, John Samorai, programme officer at the OPDP, said: “Many of us will be able to see our fate determined.” Then he had added, with pride: “Whatever the verdict, we will have fought our battle.”
With general elections taking place in August, Claridge said today: “[The Kenyan government] needs to honour the [court] decision immediately. It cannot continue to give out land to carry political favour, it needs to respect Ogiek land rights, it needs to respect the distinct culture and identity and it needs to do so now.”
Kobei said this evening that he is optimistic that the current or incoming government will honour the court verdict.
“This is a historic moment for the Ogiek. We have seen success for the first time,” he said. “We expect the government of Kenya to respect the decision and give Ogiek recognition.”