Understanding issues surrounding Embobut forest eviction

Julius Kamau, Executive Director-East African Wildlife Society (PHOTO: COURTESY)

NAIROBI, KENYA: Cherangani Hill Forest is critical water shed in Kenya that supports the livelihoods of many communities locally and within the Lake Victoria, Lake Turkana basins and the Kerio river system.

It is a source of several rivers which includes, Nzoia, Morum, Kapolet, Saiwa, Embobut, Siga and Weiwei. These forest hills are located within Elgeyo Marakwet, West Pokot and Trans-Nzoia Counties. They cover approximately 95,600 ha, of which 61,500 ha is closed canopy forest while the remainder is constituted of Bamboo, scrub, rock, grassland, moorland with about 4,000 ha under plantations.

One of the gazetted forest in the Cherangany Hill is the Embobut Forest situated in Elgeyo/Marakwet County and covers an area of approximately 21, 000 ha. The strategic importance of this forest as a critical water tower and as Marakwets source of livelihood was first recognised by the British Colonial Powers in 1893. As such the Marakwets were issued with permits to graze in the forests during the dry season but move out when pasture was available in their native land. This was followed by proclamation order 26 of 6^th November 1954 and declared a central forest via subsequent legal notice. Even then this protection decision which is a separate law does not allow permanent residence or habitation, nor agrarian activity but grants limited access to licensed grazing and therefore the forest remained intact.

Like it is the general trend in the Country, over the years, the population of the forest dependent community has grown substantially, putting immense pressure on the forest from grazing, permanent settlements and farming which led to massive degradation of the forest.

The adverse consequences of the forest degradation were pronounced in 2004 when some rivers feeding the down-stream communities started drying. In deed by 2008 16,000 ha of its 21, 000 ha had been destroyed. This triggered an outcry from the downstream communities hence creating a conflict between the upper and lower catchment communities.

To mitigate and respond to this conflict, KFS issued a vacation notice in 1^st April 2009 complemented by Marakwet Leaders who convened a meeting on 4^th April 2009 at Kapsowar and passed a unanimous decision that all people encroaching into the forest to leave immediately and be temporally settled in seven glades. A taskforce was established to investigate, profile and determine genuine landless community members removed from the forest and make recommendation of their permanent resettlement. The taskforce identified three category of forest settlers; permit holders, land slide victims and forest dwellers. There was 439 families of permit holders who were occupying various glades; 501 families of landslide victims who settled in the forest as a result of El Nino rains of 1951 and 1961 and 767 families of the forest dwellers (Sengwer).

The final financial compensation of all the affected families was completed in 2013 with each receiving Sh 400,000 to buy land and settle after the forest settlers rejected government found land in Nakuru and Moiben in Uasin Gishu stating that they wanted to be settled together. Following this compensation, KFS issued them 21 days’ vacation notice, with the President closing the temporary camps in the glades on 25^th December 2013. 

Upon the expiry of the vacation notice and complete voluntary movement of the settlers out of the forest, KFS demolished structures left behind as they were a security risk.

This demolition of the unoccupied structures caused international outcry as KFS was portrayed as evicting indigenous community from their ancestral land which we considered inaccurate, false and never reflected the true scenario.

Several ethnic communities live around the Embobut Forest and they include the Marakwets constituted by different clans that includes Almoo, Talai, Cherangany, Sengwer/Kimaala), Endoow, Markweta, Sombirir (Borokot) and Kiptaani. Other ethnic tribes includes Pokots and Turkanas. These varied ethnic groups are supported by different economic activities which explain the presence of tension between them and conflict between upper and down-stream communities. There is also security tension between the raiders/bandits and the government, for instance in 2017 Bandits attacked KFS Rangers Camps (Tangul and Kamelei), burned them down and destroyed various vehicles and motorbikes and injured the chief.

As per the Kenya’s Constitution, every person is equal before the law and has the right to equal protection and equal benefit of the law. It also provide that the State shall not discriminate directly or indirectly against any person on any ground, including race, sex, pregnancy, marital status, health status, ethnic or social origin, colour, age, disability, religion, conscience, belief, culture, dress, language or birth. This is indeed in line with article 2 of the Universal Declaration of Human Rights.

Even then, some Activists, Local NGO and human right based international organisations consider Sengwer as the only indigenous people in the area, who have special and express right to live in their ancestral land, without any consideration of the adverse impact the consequences of granting those rights would have to the other community members (other clans of Marakwet and other ethnic communities) who depend on the forest for their survival and livelihoods just like the Sengwer. This move has failed to recognise that Cherangany Forest Hills like other forests in Kenya are managed for national public goods and services to all. 

Marakwet lead a simple rural life characterised by rain fed mixed small scale farming by the highlands/upstream communities. The downstream communities (along the escarpment and the Kerio Valley) keep mostly goats, beef zebu cows and grow millet, sorghum, cassava, vegetables and fruits (mostly mangoes and oranges) and heavily depend on water which flows from the Cherangany hill forest through irrigation. Therefore any negative impact by the upstream communities on the forest such as the current degradation would have grave consequences to the survival of the downstream community.

To ensure sustainable conservation of the Forest and deter any natural resources related conflicts, any decision by the National Government, County Government, CSO’s or Development Partners should take into consideration the needs and rights of the upstream communities and the likely impacts they would have to the right, needs, lives and livelihoods of the downstream communities.

The continued exclusive advancement of the rights of the upstream ‘forests dweller’ community by some Activists and Human Right-based international organisations with pure disregard of the consequences of such advancement to the rights of other downstream communities is a recipe of disaster, continued degradation of Cherangany forest and worst still conflicts between communities. This in the long run will be a tragedy of the common.

There has been false narrative that there is contravention to the human rights of Sengwer by the government especially Kenya Forest Service (KFS) with regards to their quest to troop back to the forest for permanent residence even after having been fully compensated by the government. This false narrative has been sustained for so long by the Activists and their funding agencies to an extent that many International organisation has taken the narrative as the ‘truth’ without necessarily seeking to objectively assess the true position on the ground. For instance the EU has suspended its 31 million Euro conservation programme for Mt. Elgon and Cherangany affecting 11 counties. The implementation of the UN REDD+ programme has been hampered. 

Every right granted is accompanied by responsibility, unfortunately it is observed that the Activists and their financial partners acting as defenders of the rights of the ‘Forest Dwellers’ have not supported any conservation efforts towards the forest nor condemned the degradation caused by the same and therefore their true intent of fronting the interest of the said community is highly questionable.   This negative Activism surrounded by propaganda and misinformation and which has for long been sustained and entertained, have unfortunately been listened to and in deed informed the decisions of international development partners such as EU and UN system (UN- REDD+) leading to termination or suspension of critical conservation programmes in Cherangany and Mt. Elgon Programmes and now threatening the commencement of the New Finland-Kenya Forest Programme.

Based on the aforementioned the East African Wild Life Society and Kenya Forest Working Group position is that;

1. Every person is equal before the law and has the right to equal protection and equal benefit of the law as per the Kenyan Constitution
2. The right of every individual or group of people must be protected as enshrined in the Bill of Rights of the Kenyan Constitution and the Universal Declaration of Human Rights
3. As per the Kenyan constitution, every person has the right to a clean and healthy environment, which includes the right—to have the environment protected for the benefit of present and future generations through legislative and other measures.
4. The Constitution further provides that every individual has a responsibility to contribute to the protection of the environment, in the interests of his or her own health and the health of others
5. Principles on Human Rights and the Environment, 1994 provide for the interdependence between human rights, peace, environment and development. The principles provides that human rights, an ecologically sound environment, sustainable development and peace are interdependent and indivisible; and that all persons have the right to freedom from pollution, environmental degradation and activities that adversely affect the environment, threaten life, health, livelihood, well-being or sustainable development within, across or outside national boundaries.
6. All the forest dwellers 90% of whom are the Sengwer were financially compensated between 2009 and 2013 by the government and therefore no one has a legitimate right to reside in Embobut or in deed any other gazetted forest in Kenya as per the Forest Management and Conservation Act 2016.
7. Forest Management and Conservation Act 2016 provides for Community participation is the management of the gazetted forests through the Community Forest Associations (CFAs). Therefore the legal framework of engagement between the Embobut Forest adjacent Communities and KFS is the CFA. 
8. The view and opinion of the National Government, Ministry of Environment, Kenya Forest Service, County Government, Community (upstream and downstream) and other key stakeholder like the EAWLS and KFWG need to be taken into consideration in informing decisions of the International Development Partners such as UN, EU with regards to supporting conservation of the Cherangany Forest Ecosystem which is a lifeline to millions of people who depends on it directly or indirectly.
9. Suspension of the EU and UNDP REDD+ programme based on misinformation from some local NGO and Activist is misguided and will compromise the efforts to protect Cherangany Hill Forest for the public good of the upper and down-stream communities whose lifeline is pegged on the ecosystem
10. In the immediate term EU, UN system and any other development partners supporting or intending to support conservation programmes need to review their decision as they undertake an independent and comprehensive assessment of the Embobut case to establish a true, holistic and objective position to inform their decision going forward.
11. In the short term an elaborate conflict resolution mechanism be established to address human rights, peace, environment and development related conflicts for each of the five water catchment areas.   

The author, Julius Kamau is the Executive Director – East African Wildlife Society