James Anaya

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Cases examined by the Special Rapporteur (June 2009 – July 2010)

A/HRC/15/37/Add.1, 15 September 2010



XIX. Kenya: Alleged eviction of the Ogiek indigenous peoples from the Mau Forest Complex

240. In a letter dated 15 October 2009, the Special Rapporteur on the human rights and fundamental freedoms of indigenous people, James Anaya, brought to the attention of the Government of Kenya information received in relation to the alleged proposed eviction of the Ogiek indigenous peoples from the Mau Forest Complex. This matter had been the subject of communications from the former Special Rapporteur, Rodolfo Stavenhagen, and the Government of Kenya, dating back to 2002.[58] In the absence of a response from the Government to his communication of 15 October 2009, the Special Rapporteur transmitted additional information received since the earlier communication, along with observations on the situation, in a letter dated 1 April 2010. The Government of Kenya responded to the Special Rapporteur’s observations in a communication dated 3 June 2010.

Allegations received by the Special Rapporteur and transmitted to the Government on 15 October 2009

241. In his communication of 15 October 2009, the Special Rapporteur transmitted to the Government information received by him about the alleged eviction of the Ogiek indigenous peoples from the Mau Forest Complex, and he requested that the Government respond to the allegations contained in the communication in light of relevant international standards.

242. According to the information and allegations received:

a) On 15 September 2009, the Kenyan Parliament adopted the Mau Taskforce Report, which called for the removal of all current inhabitants from the Mau Forest Complex in Narok District, purportedly in the interest of conservation. If implemented, the provisions of the Mau Taskforce Report would result in the displacement of Ogiek tribal members from their traditional lands within the Mau Forest Complex. In addition, the Taskforce Report also failed to adequately identify boundaries of proposed conservation areas, did not contemplate provision of alternative land or compensation for the displaced communities, and failed to take into account ongoing need for Ogiek communities to have access to forest resources in order to maintain their traditional hunter-gatherer subsistence lifestyle.

b) In addition, the Mau Taskforce Report was adopted without consulting with and obtaining the consent of the affected indigenous communities. In fact, the planned relocation of Ogiek inhabitants of the Mau Forest Complex and the adoption of the Mau Taskforce Report occurred over the protests of Ogiek tribal members and leaders, 60 of whom traveled to Nakuru in May 2009 to voice their opposition. Since the adoption in Parliament of the Mau Taskforce Report on 15 September 2009, Ogiek leaders have called for meetings with the Ministry of Environment and Mineral Resources and the Ministry of Forest and Wildlife Services, the respective ministries charged with its implementation, in order to discuss the right to self-determination of the Ogiek as well as to engage with the Government on various issues surrounding the planned evictions.

c) Media reports from 23 September 2009 indicate that plans for the eviction of Ogiek living within the Mau forest are underway despite Ogiek efforts to prevent eviction. In those reports, statements from the Mau Forest Interim Coordinating Secretariat and the Secretariat Chairman Noar Hassan Noor indicated that families would be served with an eviction notice from the Kenya Forest Service within a week's time and that individuals lacking title deeds or other documentation showing ownership would be the first evicted.

d) Those same media reports also indicate that Government representatives, including Prime Minister Ralia Odinga, were making efforts to obtain substantial international support for the conservation efforts that purportedly necessitated the evictions, including from former United States President Bill Clinton and his private foundation, the World Bank, and a coalition of Catholic clergymen.

e) The Mau Forest Complex covers 40,000 hectares in the Narok District, Rift Valley Region of Kenya. It constitutes a key region for economic development in the context of power generation, tourism, and tea plantations. It also serves as an important water catchment area for the whole of Kenya and the surrounding area.

f) Recent concerns over environmental degradation and loss of vegetation within the Mau Forest Complex have led to Government intervention in the name of conservation and environmental protection.

g) The Ogiek are the traditional inhabitants of the Mau Forest Complex and have inhabited the region for centuries. To this day, the Ogiek consider the area to constitute their ancestral lands. Numbering around 20,000 in population, the Ogiek are the largest hunter-gatherer community in Kenya and depend in large part on the Mau Forest Complex for their subsistence lifestyle. For example, honey production, which is a primary traditional Ogiek occupation that has historically been the basis of a sustainable income, depends entirely on the resources available in the Mau Forest Complex. In addition to economic subsistence activities, Ogiek people speak of the Mau Forest Complex as the location of their culture, history, ancestral burial sites, and spiritual temples. The shrubs, leaves, and trees found only within the Mau Forest Complex are considered sacred to the Ogiek and are a part of traditional spiritual practices.

h) Unfortunately, since the colonial era, Ogiek groups have suffered dispossession of their ancestral lands without their consent and without the provision of compensation. Previously, this loss of land occurred because of agricultural expansion, introduction of exotic plants, logging, and other development activities. These activities have contributed to the environmental degradation of the Mau Forest Complex, and, over time, have led to an increasing inability of Ogiek communities to practice their traditional economic activities. More recently, the Ogiek have lost vast amounts of their traditional lands to state-sponsored conservation efforts, primarily the establishment of national parks and protected areas, which has resulted in the eviction of Ogiek communities from their ancestral lands and the denial of access to the forest resources upon which they depend for their survival. The planned evictions outlined in the Mau Taskforce Report appear to simply be the most recent instance of this long-standing government approach to conservation.

Observations of the Special Rapporteur

243. In his communication of 15 October 2009 to the Government of Kenya conveying concerns over the foregoing information and allegations, the Special Rapporteur requested a response within 60 days. In the absence of a response within the allotted time, the Special Rapporteur developed observations and a series of recommendations, which he transmitted to the Government on 1 April 2010. These observations are as follows.

244. As a preliminary matter, the Special Rapporteur notes information he has received that, since his initial communication to the Government about this situation, some new measures have been taken in connection with the proposed relocation of the Ogiek people. In particular, the Special Rapporteur understands that the Interim Coordinating Secretariat for the Mau Forest Complex of the Office of the Prime Minister is currently finalizing the process of establishing a “Council of Ogiek Elders” within the Secretariat’s Committee on Ogiek Matters, in order to provide a “long-term solution to the Ogiek.”[59] The Interim Coordinating Committee, in consultation with the Council of Ogiek Elders, will help: (1) establish an Ogiek register based on lineages (clans); and (2) develop a resettlement plan for the Ogiek.[60]

245. Nevertheless, according to information received, so far meetings arranged with the individuals constituting the Council of Elders have suffered from various shortcomings. In particular, the Secretariat calls meetings with short notice, making it difficult for elders, who must come from disparate parts of the forest, to attend. Furthermore, since the Council of Elders has no independent funds, it can only convene when meetings are arranged by the Secretariat. In addition, it is alleged that the Council of Elders has not been included in the recent steps of the Secretariat to begin surveying the Mau Forest Complex, and therefore the traditional Ogiek boundaries risk being ignored when the forest is partitioned.

246. The Special Rapporteur takes note also of information that Kenya’s Prime Minister, Raila Odinga, has publicly announced that no Ogiek will be evicted from the Mau Forest Complex under the forest management plan of the Interim Coordinating Secretariat, although this assurance has not yet been confirmed any parliamentary decree or similar instrument, and apparently the Interim Coordinating Committee is still intending to develop a resettlement plan for the Ogiek.

247. In a spirit of ongoing constructive dialogue and cooperation, the Special Rapporteur offers the following observations and recommendations in the hopes that they may assist the Government in this regard.

State duty to consult with the Ogiek

248. Clearly, the plans being developed for the Mau Forest Complex, which could result in the resettlement of the Ogiek people, have profound implications for them. In this connection, the Special Rapporteur emphasizes that, when decisions made by the State affect indigenous peoples’ particular interests, including decisions directly affecting their rights or interests in lands upon which they rely, special, differentiated consultation procedures are necessary. This is especially so when, as appears to be the case with the Ogiek, certain groups are marginalized in the political sphere such that the normal political and representative processes do not work adequately to address their particular concerns.[61] These procedures must allow indigenous peoples the opportunity to genuinely influence the decisions that affect their interests, before these decisions are taken[62] and, further, must also ensure that indigenous peoples’ own institutions of representation and decision-making are fully respected.[63]

249. Hence, article 32 of the United Nations Declaration on the Rights of Indigenous Peoples, adopted by the General Assembly on 13 September 2007 with affirmative votes by an overwhelming majority of member States of the United Nations, provides that “States shall consult and cooperate in good faith with the indigenous peoples concerned through their own representative institutions in order to obtain their free and informed consent prior to the approval of any project affecting their lands or territories and other resources, particularly in connection with the development, utilization or exploitation of mineral, water or other resources ...”.

250. Necessarily, the strength or importance of the objective of achieving consent varies according to the circumstances and the interests involved.[64] A significant, direct impact on indigenous peoples’ lives or territories, such as their removal from their traditional lands, establishes a strong presumption that the proposed measure should not go forward without indigenous peoples’ consent.[65] In this regard, the United Nations Declaration on the Rights of Indigenous Peoples affirms in its article 10 that “Indigenous peoples shall not be forcibly removed from their lands or territories. No relocation shall take place without the free, prior and informed consent of the indigenous peoples concerned and after agreement on just and fair compensation and, where possible, with the option of return.”

251. After reviewing the information about this situation, the Special Rapporteur observes that the Ogiek people were not adequately consulted prior to the initial decision to resettle them from the Mau Forest Complex, nor has the Government obtained their consent in this regard. Further it appears that the Ogiek people were not provided with a meaningful opportunity to participate in decision-making concerning the long-term and ongoing management of the Mau Forest Complex and their potential role in this process, including both environmental conservation and development of the area for economic initiatives, such as tourism.

252. It is imperative that the Government build cooperative frameworks of dialogue with the Ogiek people concerning the immediate issue of resettlement and the ongoing issue of management of the Mau Forest Complex, in accordance with the international standards outlined above. It is in this way that the legitimate State goals associated with the environmental conservation of the Mau Forest Complex and the rights of indigenous peoples to lands and natural resources, discussed in more detail in the following section, may best be accommodated. In this regard, the Special Rapporteur notes the efforts of the Government of Kenya to involve Ogiek representatives in the decision-making processes regarding the planned resettlement through the creation of a Council of Ogiek Elders within the Interim Coordinating Secretariat.

Duty to recognize and protect indigenous rights in land and natural resources

253. According to various credible sources, the Ogiek have suffered from dispossession of their land, first by the colonial State and later by the post-independence State.[66] During the 1990s, the Government encouraged Ogiek people in the Mau Forest to subdivide their lands and register title deeds in their names. In his report on the situation of the human rights and fundamental freedoms of indigenous peoples in Kenya, the former Special Rapporteur, Professor Rodolfo Stavenhagen recommended that “[t]he rights of indigenous hunter-gatherer communities (particularly the Ogiek in Mau Forest) to occupy and use the resources in gazetted forest areas should be legally recognized and respected. Further excisions of gazetted forest areas and evictions of hunter-gatherers should be stopped.”[67]

254. In this connection, it bears emphasizing that the Declaration states the following:

Article 26
1. Indigenous peoples have the right to the lands, territories and resources which they have traditionally owned, occupied or otherwise used or acquired.
2. Indigenous peoples have the 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 well as those which they have otherwise acquired.
3. States shall give legal recognition and protection to these lands, territories and resources. Such recognition shall be conducted with due respect to the customs, traditions and land tenure systems of the indigenous peoples concerned
.

255. Similarly, the African Commission on Human and Peoples Rights has affirmed that such rights to lands and natural resources based on traditional tenure or effective possession are protected by article 14 of the African Charter on Human and Peoples Rights. In a recent decision concerning the Endorois indigenous people in Kenya (dealing with the situation of an indigenous people forcibly removed to make way for a national reserve and tourist facilities), the African Commission affirmed that traditional indigenous tenure constitutes property that State parties to the Charter are bound under article 14 not only to respect but also to affirmatively protect.[68]

256. It appears that the potential rights of the Ogiek people to their traditional lands and resources within the Mau Forest Complex have not been adequately recognized and respected; neither historically nor during the recent process of developing measures to protect and rehabilitate the Mau Forest Complex.

Environmental protection of the Mau Forest Complex

257. Like other property interests, the property rights of indigenous peoples based on their traditional land and resource tenure may be subject to limitations for legitimate, non-discriminatory public purposes in accordance with law. However, as emphasized by the African Commission in the Endorois case, a much higher threshold than ordinarily required must be met, and in the most compelling of circumstance, for justifying significant limitations on the rights to lands and resources of indigenous peoples, where those rights are “associated with the most important and fundamental human rights, including the right to life, food, the right to self-determination, to shelter, and the right to exist as a people.”[69]

258. The Special Rapporteur appreciates the importance of the Mau Forest Complex for the environmental sustainability and economic development of Kenya, and takes note of the Government’s own evaluation that the Mau Forest Complex “provide[s] critical ecological services to the country, in terms of water storage; river flow regulation; flood mitigation; recharge of groundwater; reduced soil erosion and siltation; water purification; conservation of biodiversity; and micro-climate regulation. Through these ecological services, the Mau Forest Complex supports key economic sectors in Rift Valley and western Kenya, including energy, tourism, agriculture, and industries.”[70]

259. However, the information received in the present case indicates that the main cause of loss of forest-cover and degradation of the forest is not due to the presence of the Ogiek people. Indeed, information indicates that the Ogiek’s main source of livelihood - beekeeping - is in fact beneficial to forest preservation and ecological diversity, and that it is rather the recent encroachment of private and commercial interests, including the logging and clearing of forests for human settlement and agriculture, that is the key source of environmental degradation in the region. Further, the Special Rapporteur has received information that while the Ogiek face eviction, logging companies have been permitted to remain within the Mau Forest, raising doubts about the legitimacy of the environmental justifications for the resettlement of the Ogiek.

260. Thus there remain serious questions about a sufficient environmental or other justification to resettle the Ogiek people and severely limit the property rights they may be shown to have in the area. Such a justification would require, at a minimum, a showing that Ogiek land use practices could not be carried out in a manner consistent with the planned environmental protection and rehabilitation measures. In general, because the relocation of indigenous peoples who have strong cultural and material connections to the lands from which they are removed is understood to implicate threats to a range of human rights, the establishment of environmental conservation areas should not result in the relocation of indigenous peoples. Ways should be explored, in consultation with the indigenous peoples Ogiek, to develop conservation regimes without their removal.

Adequate redress and mitigation measures in the case of relocation

261. If, after careful analysis bearing in mind the aforementioned international and regional human right norms, resettlement of the Ogiek is considered justified within a participatory, consensus building process involving the Ogiek people, such resettlement should only take place with adequate mitigation measures and, where possible, the opportunity for Ogiek groups to return to their traditional lands in the Mau Forest Complex, once any overriding environmental concerns, have been adequately addressed.

262. In this regard, article 28 of the United Nations Declaration affirms the right of indigenous peoples “to redress, which can include restitution or, when this is not possible, just, fair and equitable compensation, for the lands, territories and resources which they have traditionally owned or otherwise occupied or used, and which have been confiscated, taken, occupied, used or damaged without their free, prior and informed consent” and “[u]nless otherwise freely agreed upon by the peoples concerned, compensation shall take the form of lands, territories and resources equal in quality, size and legal status or of monetary compensation or other appropriate redress.” Furthermore, in accordance with article 32(1), “States shall provide effective mechanisms for just and fair redress for any [projects affecting their lands or resources], and appropriate measures shall be taken to mitigate adverse environmental, economic, social, cultural or spiritual impact.

263. States have the duty to provide special attention to the social and economic welfare of indigenous peoples who have been disadvantaged historically or by recent circumstances. This duty extends to ensuring adequate health, education, housing and general living conditions. In this connection, the former Special Rapporteur on adequate housing, Miloon Kothari, signaled in his report on his mission to Kenya that the past destruction of the forest upon which the Ogiek people depend, primarily due to logging, has affected the rights of the Ogiek to housing, health, food and a safe environment, threatening to destroy their cultural identity and the community as a whole (see E/CN.4/2005/48/Add.2, para. 61).

264. In light of the allegations regarding the precarious living conditions currently experienced by the Ogiek, including the uncertainty concerning the Government's resettlement plan, the Special Rapporteur thus calls the attention of the Government of Kenya to article 21 of the United Nations Declaration, which states:

1. Indigenous peoples have the right, without discrimination, to the ·improvement of their economic and social conditions, including, inter alia, in the areas of education, employment, vocational training and retraining, housing sanitation, health and social security.
2. States shall take effective measures and, where appropriate, special measures to ensure continuing improvement of their economic and social conditions. Particular attention shall be paid to the rights and special needs of indigenous elders, women, youth, children and persons with disabilities.

265. Related to the above concerns, the African Commission has stated that the right to development under article 22 of the African Charter requires States to effectively involve and benefit indigenous peoples in the development process, including in the establishment of conservation areas. In its Endorois decision, the Commission stated that Kenya's failure to consult with and provide the Endorois with adequate compensation, benefits and suitable land for traditional subsistence activities, violated their right to development - emphasizing that a State bears the burden for creating conditions favourable to people's development.[71]

266. While the Government appears to be taking certain steps to find a “long-term solution to the Ogiek” the Government does not appear to be developing a plan for the Mau Forest Complex that enables the Ogiek to become active participants and direct beneficiaries of natural conservation and economic development, including the tourist potential of the Mau Forest Complex.

Recommendations

267. In light of the foregoing, the Special Rapporteur makes the following recommendations to the Government of Kenya regarding the situation faced by the Ogriek people in the Mau Forest Complex area:

267.1. The Government of Kenya should ensure an effective consultation process with the Ogiek in accordance with applicable international standards, to determine whether and under what conditions the resettlement of the Ogiek should take place, and to develop plans and priorities for the Ogiek’s involvement in the long-term management of their traditional lands within the Mau Forest Complex. This consultation process should be carried out in accordance with the traditional representative structures of the Ogiek people, and should be framed upon the premise that they should not be removed without their free, prior and informed consent.

267.2. In consultation with the Ogiek, the Government should carry out an investigation into the land and resources used by the Ogiek peoples within the Mau Forest Complex. The Government should recognize and protect any corresponding rights that the Ogiek people might have over their traditional lands and resources within the Mau Forest Complex. Further, as part of this study, the Government should explore, in consultation with the Ogiek concerned, all possible options for advancing the Government's legitimate interestsin environmental conservation of the Mau Forest Complex without removing the Ogiek people from the area.

267.3. If, upon careful examination of the situation, the Government determines that resettlement of the Ogiek people is necessary and justified, and has done so through a consensus building process involving the Ogiek people themselves, the Government should establish a comprehensive mechanism to provide reparations for Ogiek individuals and families that have been or will be removed from their traditional lands within the Mau Forest Complex. These reparations should consider comparable alternate lands and monetary compensation, in accordance with the aforementioned international legal standards, and also provide the option of the return of Ogiek individuals and families to their original lands within the Mau Forest Complex at a future date, if they so desire.

267.4. In connection with this reparation process, the State should implement a comprehensive system to provide for the health, housing, education, and overall socio- economic welfare of Ogiek individuals and families living within or outside of the Mau Forest Complex, in consultation with the Ogiek people and through their representative institutions.

267.5. The Government should consider a long-term vision for development of the Ogiek people that enables them to become active participants and direct beneficiaries of natural conservation and economic development, including through tourist potential, of the Mau Forest Complex.

Response of the Government to the observations of the Special Rapporteur

268. In a letter dated 3 June 2010 the Government responded to the observations of the Special Rapporteur. In its response, the Government of Kenya stated, in summary:

a) The observations and recommendations contained in the letter of the Special Rapporteur and the work done by the Special Rapporteur on the matter is appreciated. For many years, most of the recommendations contained in the Special Rapporteur’s letter have been implemented.

Background

b) The Mau forest complex is the single largest closed canopy forest ecosystem in Kenya covering over 400,000 hectares. It is a vital water catchments area of critical importance for the sustainability of current and future ecological, social and economical development in Kenya. It is a natural asset of national as well as international importance with its forest forming the upper catchment of twelve main rivers that draining into five major lakes: Baringo, Nakuru, Natron in Tanzania and Lake Victoria which is the source of the River Nile basin.

c) Its forests provide critical ecological services to the country, in terms of water storage; river flow regulation; flood mitigation; recharge of groundwater; reduced soil erosion and siltation; water purification; conservation of biodiversity; and, micro-climate regulation. Through these ecological services, the Mau Forest Complex supports key economic sectors in Rift Valley and Western Kenya, including energy, tourism, agriculture, and industries.

d) In addition, the Mau Forest Complex helps secure the provision of water supply to urban areas for domestic and industrial use and supports to the livelihoods of millions of people living in the rural areas, not only in Kenya, but also in neighbouring countries. Over the years many communities such as the Kipsigis, Nandi, Agikuyu, Maasai and the Ogiek have depended extensively on the forest resources.[72]

Government past interventions to ascertain the traditional land use rights of the Ogiek

e) The Ogiek have lived since time immemorial in the forest. They were traditionally hunter-gatherers whose lifestyle was relatively harmonious with the sustainability of the forest. Over the years, the Government endeavored to respond to the aspirations of the Ogiek. Between 1973 and 2001, the Government ascertained and registered the traditional land use rights of the people (mainly Maasai and Ogiek) residing on the southern slopes of the Maasai Mau (southern part of the Mau Forest Complex) through the creation of six adjudication sections: Olokurto; Il Motiok; Olulunga; Nkoben; Nkareta; and Naisoya. Four of these have been finalized, and regarding the remaining two, in Olokurto, there is the finalization of field studies, and Naisoya is awaiting the finalization of a court case.

f) In 1976, Government initiated the process of ascertaining and registering the traditional land use rights of the people (mainly Maasai and Ogiek) residing in Ol Pusimoru (south-eastern part of the Mau Forest Complex) through the creation of four adjudication sections: Ol Pusimoru A; Ol Pusimoru B; Kamrark; and Kilaba. The process is nearly completed, with only the Kibala section not finalized.

Emerging Ogiek livelihood activities that are not compatible with forest conservation

g) However, over the years, changes in the Ogiek livelihood activities have occurred, due perhaps to education, intermarriage with neighbouring communities and other external influences. In the early parts of last century, the Ogiek started owning livestock.[73] Over the years the number of livestock within the Ogiek community has steadily increased. In the 1990s, it was estimated that over 77 percent of the Ogiek owned cattle. Ogiek were traditionally not cultivators. Cultivation was first recorded among the Ogiek in 1942. By the early 1990s, it was estimated that each household was cultivating on average one acre of land.[74]

h) Livestock herding and cultivation, two increasingly important livelihood activities of the Ogiek, are not compatible with the conservation of forests and the invaluable services the forests provide to sustain key economic sectors that provide livelihoods and jobs to millions of Kenyans, including to those living in areas adjacent to the forest.

Ogiek settlement programmes to accommodate their emerging livelihood activities

i) In the early 1990s, the Kenya Indigenous Forest Conservation Project Report (KIFCON) noted with concern the degradation of the Mau forest ecosystem and recorded that approx. 3,000 Ogiek families were scattered across the South Western Mau Forest Reserve. KIFCON recommended settling them to secure the long-term conservation of the biodiversity and water catchment values of the forests. Recognizant of the Ogiek’s indigenous right to the land and the fact that some of their traditional activities were still practiced, KIFCON recommended that the Ogiek be settled near the forest so that they could developed their emerging livelihood activities on the land allocated to them while continuing practicing their traditional activities and rituals in the neighbouring forest. The recommendations made by KIFCON ultimately led the Government to excise 61,586 hectares of forestland in the Mau Forests Complex in October 2001 mainly for the resettlement of the Ogiek.

Irregularities and abuse of the Ogiek settlement programme leading to forest degradation

j) The excision of the forest for the settlement for the Ogiek opened the area up for encroachment by other ethnic groups. The impact of the ensuing massive deforestation caused by factors including large-scale encroachment, charcoal production, logging of indigenous trees, and cash crops production for export has impacted tremendously on water resources.

k) The destruction of the forest has far reaching consequences both in Kenya and the region, including: inability of the ecosystem to absorb the impact of climate change; increased vulnerability of the people in the region to global warming; widespread drought brought about by the destruction of major catchment areas which has led to water and electricity rationing across the country; loss of earnings annually from losses in key economic sectors supported by the Mau ecosystem services - energy, tourism, agriculture, and water supply; and effects on energy projects including the Sondu Miriu hydropower scheme, the Naivasha geothermal plants, small hydropower plants and tea growing areas in Kericho Highlands.

Building consensus on the way forward to address the situation in the Mau and the plight of the Ogiek

l) There is deep concern that the continued degradation of the Mau is likely to jeopardize current and future development plans both in Kenya and in neighboring countries. As a result of this concern, the Government decided to engage all the stakeholders, including all relevant Government Ministries, to develop a sustainable solution. A stakeholder consultative forum, comprising some 300 persons representing Government institutions, Members of Parliament, private sectors, community based organizations, local and national non-government organizations, as well as international organizations, was held on 15 July 2008. The forum was organized by a steering committee that ensured that the Ogiek were well represented and were given the necessary opportunities to address the one-day forum. The forum was attended by the Prime Minister and ten Cabinet Ministers. The forum endorsed the establishment of a multi-stakeholder Task Force.
m) In line with the forum recommendation, the Government set up a multi-stakeholders Task Force on the Conservation of the Mau Forests Complex in August 2008, charged with the responsibility of coming up with recommendations on how to rehabilitate the Mau Forest Complex to function and provide its ecosystem services to Kenya and the East African region as a whole. In order to ensure that the concerns, views and aspirations of the affected communities are reflected in the recommendations, members of the Ogiek, Maasai and Kipsigis communities were appointed members of the Task Force.

n) The Task Force worked for eight months during which time the community representatives, as members, were fully engaged in the development of recommendations on the rehabilitation of the Mau Forests Complex. One of the most contentious issues that the Task Force addressed concerned land ownership. The Task Force, therefore, established a Committee to build consensus on land ownership matters. The Committee was chaired by the National Coordinator, Kenya Land Alliance. Two representatives of the Ogiek community were members of the Committee. The work of the Task Force was also based on many studies, reports and official records regarding the Mau Forests Complex and its inhabitants.[75]

o) The Mau Task Force completed its work in March 2009. The report of the Task Force was adopted by the Cabinet on 30 July 2009 and by the Parliament on 15 September 2009. The Mau Task Force report warned of serious threats to the country’s social, economic environmental, and security if the forest destruction is allowed to continue. The continued destruction of the Mau will lead to a water crisis that would affect all communities living in the upper and lower catchments and extend far beyond Kenya’s border.

p) The Mau Task Force recognized that “The Ogiek who predominantly inhabited the Mau Forest Complex from time immemorial have aboriginal title over the Mau as their ancestral land”andmade recommendations to address past injustices suffered by the Ogiek.

q) Specifically with regard to land ownership and resettlements, the Mau Task Force recommended that:

• Irregular title deeds issued to bona-fide settlers [including Ogiek], in line with the stated purposes of the settlement schemes, should be regularized;

• Ogiek who were to be settled in the excised areas and have not yet been given land, should be settled outside the critical catchment areas and biodiversity hotspots;

• In order to establish the Ogiek identity, an Ogiek register should be developed with support from the Council of Ogiek Elders (establishment of lineages);

• Bona-fide settlers [including Ogiek] who were issued title deeds in critical water catchment areas and biodiversity hotspots should be relocated.

r) In line with the Mau Task Force report, an Interim Coordinating Secretariat was established in the Office of the Prime Minister to coordinate the implementation of the Mau Task Force recommendations.

Working with the Ogiek towards securing their long-term future

s) In December 2009, the Secretariat launched a process to assist the Ogiek in establishing their own representative institutions, namely a Council of Ogiek Elders and a Committee on Ogiek Matters. The Secretariat organized two workshops with Ogiek leaders and elites in Nakuru on 18 December 2009 and 5 February 2010 to establish a preliminary list of Ogiek elders. The Secretariat had meetings with Ogiek communities in all the main areas where they are living in the Mau Forests Complex to provide them with an opportunity to review and vet the names of Ogiek elders identified during the two workshops.

t) The efforts by the Government to assist the Ogiek community in establishing their own representative institutions were well received by the Ogiek community, as evidenced by the letter from Mr. Joseph Kimaiyo Towett dated 25 February 2010.[76]

u) On 1 April 2010, the Ogiek Council of Elders comprising 60 members was officially launched. Mr. Joseph Kimaiyo Towett was elected by the Ogiek Council of Elders as their Chairman and Mr. Daniel M. Kobei as their Secretary at the function attended by district commissioners, regional commissioners, Rift Valley Deputy Provincial Commissioner John Ayienda as well as Interim Coordinating Secretariat officials led by the Chief Coordinator, Mr. Hassan Noar Hassan.

v) The mandate of the Ogiek Council of Elders approved by the Council is to: nominate members to represent the Council in the Committee on Ogiek Matters of the Interim Coordinating Secretariat; address issues related to the membership of the Council, including filling up vacancies; assist the Committee on Ogiek Matters in the establishment of an Ogiek Register based on lineages (family trees); coordinate the Ogiek position on issues related to the Mau Forests Complex; assist the Committee on Ogiek Matters in the development of proposals for resettling the Ogiek Communities; develop proposals for involving the Ogiek community in the restoration of the Mau Forests Complex; and develop proposals to support livelihood development in the Ogiek, as well as traditional Ogiek livelihood.

w) The Council also established a Committee on Ogiek Matters comprising seven members to work closely with the Government through the Secretariat. The Committee is currently preparing a work plan and a budget for running the Council and the Committee and for the implementation of their mandate.

Additional observations by the Special Rapporteur

269. The Special Rapporteur thanks the Government of Kenya for the detailed information provided in regard to the Ogiek situation and agrees that the information provides an important “opportunity for open and transparent dialogue” on this issue. The Special Rapporteur acknowledges the Government’s account of steps it has taken to find a workable solution for the Ogiek of the Mau Forest Complex. In particular, he welcomes the formation of the Council of Elders, and is pleased that its mandate includes “[d]evelop[ing] proposals for involving the Ogiek community in the restoration of the Mau Forests Complex” and “develop[ing] proposals to support livelihood development in the Ogiek, as well as traditional Ogiek livelihood.” Furthermore, the Special Rapporteur welcomes the acknowledgement of the Government that “[t]he Ogiek who predominantly inhabited the Mau Forest Complex from time immemorial have aboriginal title over the Mau as their ancestral land”.

270. The Special Rapporteur takes note of the Government’s information that it has made efforts to build consensus on the way forward concerning Ogiek in the Mau Forest. However, given the credible information he has received from other sources highlighting deep concerns regarding the removal, there remain doubts about whether the free and informed consent of the Ogiek has been obtained, or will be obtained, prior to the Ogiek’s proposed removal from the Mau Forest. Without purporting to resolve the differing accounts at this time, the Special Rapporteur reiterates his recommendations, above, which were communicated to the Government in his letter of 1 April 2010, and urges the Government of Kenya to fully implement all aspects of those recommendations in its ongoing dialogue with the Ogiek.

271. In particular, in the event that, upon careful examination of the situation and through a consensus building process involving the Ogiek people themselves, the Ogiek and the Government determine that resettlement is necessary and justified, the Government should establish a comprehensive mechanism to provide reparations for Ogiek individuals and families that have been or will be removed from their traditional lands within the Mau Forest Complex. These reparations should consider comparable alternate lands and monetary compensation, and also provide the option of the return of Ogiek individuals and families to their original lands within the Mau Forest Complex at a future date, if they so desire.

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NOTES

[58] These communications are included in the communications reports of the former Special Rapporteur [E/CN.4/2002/97/Add.1 (2002) and E/CN/2005/88/Add.l (2005); the issue was also addressed during the former Special Rapporteur’s visit to Kenya in 2006 and his report on that mission (A/HRC/4/32/Add.3).
[59] Office of the Prime Minister, Interim Coordinating Secretariat for the Mau Forest Complex, Brief Progress Report on the Rehabilitation of the Mau Forest Complex (25 March 2010), pg. 6 [hereinafter “Brief Progress Report”].
[60] Ibid.
[61] See Report of the Special Rapporteur on the situation of human rights and fundamental freedoms of indigenous people, James Anaya, to the Human Rights Council, A/HRC/12/34 (15 July 2009) [hereinafter “Anaya Report to Human Rights Council”].
[62] See Ibid., para. 42.
[63] See Ibid., para. 52.
[64] Ibid., para. 47.
[65] Ibid.
[66] See, e.g.,Report of the Special Rapporteur on the situation of human rights and fundamental freedoms of indigenous people, Mr. Rodolfo Stavenhagen, submitted pursuant to Commission resolution 2001/57, Addendum, Selected Summaries of communications examined by the Special Rapporteur in 2001/2002, E/CN.4/2002/97/Add.1, para. 15.
[67] Report of the Special Rapporteur on the situation of human rights and fundamental freedoms of indigenous peoples, Rodolfo Stavenhagen, Mission to Kenya, A/HRC/4/32/Add.3 (26 February 2007), para 102.
[68] African Commission on Human and Peoples’ Rights, Case 276, 2003 – Centre for Minority Rights and Development (Kenya) and Minority Rights Group International on behalf of Endorois Welfare Council v. Kenya (2010) [hereinafter “ACHPR Endorois Case”], para. 191.
[69] Ibid., para. 212.
[70] Brief Progress Report, supra, pg. 1.
[71] ACHPR Endorois Case, supra, para. 298.
[72] The Government provided detailed information about the importance of the Mau Forest Complex in Appendix 1 of its response, entitled Environmental and economic importance of the Mau Forests Complex
[73] Report of the Kenya Land Commission (1932). See also Lubanga, M. (1991), Utilisation of South Western Mau Forest by the Forest Dwellers. Kenya Indigenous Forest Conservation Programme (KIFCON) in cooperation with the Kenya Forestry Research Institute, December 1991.
[74] Ibid.
[75] A list of these studies is included as Appendix II of the Government response.
[76] A copy of this letter was included in the Government response as Appendix III.

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