Let human beings and trees coexist in Mau Forest Complex

Environmental conservation in Kenya has been synonymous with brutality against human beings, heartless demolition of structures, razing down of houses, and sometimes killing people.

Yet the law on sustainable development that encompasses human progress today without compromising growth for the next generation emphasises cooperation, consultation, and participatory progress.

In many cases, government officers are the ones who issue title deeds that are later declared illegal and irregular, and brutal and lethal evictions ensue. The government officers responsible are never sanctioned in equal measure.

But now the big disconnect between human dignity and rights, on the one hand, and environmental conservation, on the other hand is water under the bridge following a very progressive decision in the East Mau case delivered by Justice John Mutungi of the Environment and Land Court.

In 2001, the then Minister for Environment Francis Nyenze signalled an intention to alter boundaries through a gazette notice. The notice affected 13 other blocks of forests.

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In October 2001, Noah Katana Ngala, the then minister for Environment and Forestry, by a gazette notice altered the boundaries of East Mau forests in what is now known as Likia, Nessuit, Mauche, Sururu, Teret, Sigotik, and Marashoni settlement schemes.

Title deeds were subsequently issued to many people, mainly squatters from several parts of the country. Issuance of titles began in 1997 for some people before excision was completed. The bulk of the title deeds were issued after the excision of the 35,301 hectares from the forest.

In 2013, some title deeds were issued. Others had been issued in 2005. However, the government has never really accepted that the land had been excised and has on several occasions evicted people.

So perverse was the ejection that in 2020 at the height of the Covid-19, the Ministry of Interior through the Regional Commissioner assembled a multi-agency team that comprised the Kenya Forest Service and National Police Service officers. Locals then filed a case against the government.

Kenya Forest Service, through Evans Kegode, emphasised the importance of Mau Forest Complex. As far as he was concerned, the boundaries of East Mau had never been altered and dismissed gazette notices while conceding that they were never revoked.

The court observed that the government had created settlement schemes in Eastern Mau.

The court appreciated the fact that whatever the reasons for the creation of the settlement scheme, the court found that Mau Forest Complex was a critical water tower locally and regionally, adding that there is a need to conserve and safeguard the forest land for the benefit of all.

The court noted that the government knew of the settlement in Eastern Mau from 1997 as some settlers were victims of the 1992 land clashes and those removed from the forest after the abandonment of the Forest Shamba system.

The court ultimately found that the government had made promises to those that it settled and they could not approbate and reprobate their position. They had even communicated their intention to degazette the forest and excised the same.

In a bold finding, the court observed that it could not protect the environment while unwittingly ushering in a humanitarian crisis where inhabitants are flushed out and left by the roadsides.

The court, however, directed that those who have crossed the line be evicted forcefully to protect the forest after the boundaries have been established and beacons erected.

While appreciating the right to property, dignity, and legitimate expectation of the settlers as human beings under articles 40, 28 and 47 of the Constitution, the court went ahead to read the provisions of articles 66 and 67 and  ordered all settlers to plant trees in at least 30 per cent of their parcels.

Kenya Forest Service was ordered to avail seedlings whereas the Ministry of Interior and County Environment Department were mandated to ensure compliance.

Justice John Mutungi in an idiosyncratic judgment appreciated that human beings are important whereas the environment is sacrosanct and the two can be protected without hurting the other within the ambit of our laws and international instruments.

Courts and government agencies now have a progressive judgment that can be utilised to ensure that human beings prosper whereas the environment thrives so that we have sustainable development. After all man and environment need each other. They are bedfellows.

The national and county governments should now invoke Articles 66 and 69 of the Constitution throughout all the wards in Kenya through autochthonous structures, consultation, and public participation to ensure we have diverse environmentally friendly trees in every village, hamlet, and household in Kenya without flogging of human beings or igniting an inferno to raze down private structures.