Lawyer Kipkoech Ng'etich (left) representing Eastern Mau residents with other lawyers during the hearing of the Eastern Mau case at Environment and Lands Court on October 9, 2023. [Kipsang Joseph, Standard]
On May 26, 2017, the African Court on Human and Peoples' Rights delivered a long-awaited decision on a case filed by the Ogiek community of the Mau Forest against the Kenyan government.
In the 70-page judgment, the Kenyan government was found to have violated seven separate articles of the African Charter.
The African Commission on Human and Peoples' Rights had sued the government after receiving communication from the Centre for Minority Rights Development and the Minority Rights Group International, both acting on behalf of the Ogiek.
After a hearing that lasted eight years, the court sitting in Arusha said the Ogiek were deprived of their rights to their ancestral land, the right to use, the right to enjoy the produce of the land and the right to enjoy and freely dispose of the abundance of food produced by the land.
On June 23, 2022, the International Court ordered the Kenyan government to pay members of the Ogiek community a total of Sh157 million as compensation for material and moral damages over their claim on their ancestral land in the Mau forest complex.
The court further ordered the government to set up a development fund for the community to benefit from projects ranging from health, education, and food security to natural resource management.
The court also noted that the violations alleged by the Ogiek, which the court established in its judgment of 26 May 2017, remained unaddressed until it considered reparations.
To ensure that all registered Ogiek of Mau Forest benefit from the outcome of litigation, the court ordered the government to establish a community development fund for the Ogiek, which should be a repository of all the funds.
It was further ordered that the community development fund should be used to support projects for the benefit of the Ogiek in the areas of health, education, food security, natural resource management, and any other causes beneficial to the well-being of the Ogiek as determined from time to time by the committee managing the fund, in consultation with the Ogiek.
The government was ordered to take the necessary administrative, legislative, and other measures to establish this Fund within 12 months of the notification of the judgment.
The government had asked the court to allow it to consider ordering an amicable settlement, but the court dismissed the plea.
According to the Kenyan government, the Ogiek had erroneously emphasised ownership rather than the rights of access, use, and occupation, which the court granted the Ogiek in its judgment on merits.
The State had further raised concerns that any process of demarcating forests and titling for indigenous communities would set a dangerous precedent in the world.
The decision gave the Ogiek hope, but little did they know it marked the beginning of another journey.
Even with the decision, the government has since evicted members of the community living in parts of the forest.
Over 500 members of the Ogiek community in the Sassimwani area in Narok North allegedly have been displaced following the ongoing evictions in the Maasai Mau Forest.
The government has been evictions targeting families suspected of encroaching upon the Maasai Mau Forest, a crucial water tower in the country.
"We have been flushed out of our homes without a notice. We woke up to hundreds of officers who descended on our village and began demolishing houses. We do not have places to seek refuge," Wilson Memusi, Chairman of the Ogiek Council of Elders, Narok Chapter, said.
Ogiek People Development Program (OPDP) director Daniel Kobei described the situation as dire, with communities having no alternative places to go.
"It is a state of helplessness for the Ogiek community because we thought we were going to get a kind of shield from the ruling of the Arusha Case of 2017 and 2022, but when the government decided to violate and ignore it," he said.
The Sengwer Council of Elders, through its chairperson, Paul Kitum, has since condemned the evictions and called on the government to stop.
"There will be no meaningful conservation in the Mau Forest without the Ogiek people, who have been the custodians since time immemorial. Ogiek are not encroachers nor aliens, neither are they internally displaced persons, but they are the indigenous people, the aborigines, the natives of Mau Forest Complex," stated Kitum.
Additional Reporting by Caroline Chebet and Kipsang Joseph
newsdesk@standardmedia.co.ke
