On February 6, 2019, the Taskforce implementing decision of African Court on Human and Peoples Rights (ACtHPR here referred as the Court) regarding Ogiek and their existence in Mau held a public hearing in Nakuru town, Nakuru County during which it received submissions from the Ogiek community concerning recommendations on acceptable terms of reparations.
The hearing held at the Regional Commissioner's hall in Nakuru, was attended by more than 2,000 people including Ogiek and other interested individuals.
The new 15-member Taskforce chaired by Dr. Robert Kibugi is currently serving a six-month working period. It was gazetted in November, 2018. It took over from the previous 17-member Taskforce whose term ended in May,2018.Among the tasks it is mandated to conclude include reviewing the decision of the African Court vis a vis other judgments issued by domestic courts in relation to the Ogiek Community's occupation of the Mau Forest and thereof make recommendations. Also review existing relationships between indigenous communities and public institutions involved in the management of forests and identify any working mechanisms or models between public institutions and indigenous communities of the application of traditional and indigenous knowledge in the management of forests.
The community was awarded reparations by the Court on May 26,2017, after the judges unanimously found that by forcefully ejecting Ogiek from their ancestral lands in Mau Forest Complex, the Government of Kenya infringed on its members' rights to enjoy land ownership and own property; access and utilize natural resources as well their right to practice cultural and religious activities.
The case is rooted on the response of OPDP, Minority Rights Group International (MRG) and Centre for Minority Rights Development (CEMIRIDE), to the plight of Ogiek who had become perennial evictees of Mau. The trio organizations, in November 2009, wrote to the Commission while seeking urgent intervention to protect the rights of Ogiek after a 14-day eviction for settlers of Mau was issued. This notice basically targeted the Ogiek who had since 1930s become targets of State-driven Mau evictions.
The dislodgments were finally undertaken notwithstanding the Commission’s provisional measures asking the Kenyan government to stop the evictions. It is until March 2012, when the Commission forwarded the grievous concerns of the community that the official examination of injustices meted out on them started.
While defending their case, two Ogiek, witnessed during the November, 27th &28th ,2014 public hearings in Addis Ababa, Ethiopia. An amicable settlement process instituted between Ogiek and the Kenyan Government in April 2015 by the Court which would materialize to the two parties agreeing on terms of resolutions without going through the legal proceedings was later abandoned in January,2016 after the community cited malice and untrustworthiness on the side of government. It therefore preferred the Court to litigate and conclude their case. The Ogiek anxiously waited for the ruling and finally on May 26,2017, they welcomed the winning pronouncement with joy and jubilation.
Following the ruling, the Court directed the Kenyan government to design mechanisms of correcting the wrongs it committed against the Ogiek and so far, formation of the past and present Taskforce is as a response to the Court's remedial directive.
Aligned with its mandate, the Taskforce has started receiving views of the indigenous communities in Kenya dependant on forests and faced with land and natural resources related conflicts, Ogiek being among them.
During the public hearing with the community in Nakuru, the members voiced their recommendations for proper restoration of their wide-ranging rights presently void due to their prevailing landless circumstances. They submitted various documents including memoranda, atlas showing the Ogiek zones within Mau Forest Complex and community decrees on values and customs
Mr John Sironga ,an Ogiek elder urged the Taskforce to seriously take into account the recommendations of the community in regard to entitlement to their ancestral lands in Mau.
“We have walked this journey towards restoration of our lands for too long and it is time we finally settle in our homes,” he said.
In the same breadth, Ms Anne Naramat, an Ogiek women leader said the community members want to return to their homelands to continue conserving the environment.
She noted that the evictions affected fertility of most Ogiek that they are unable to bear as many children as they would desire to increase their population.
“Even the trees knew our names because we protected them with utmost care. We want to live in our homes. We are tired of being evicted now and then,” she said.
In the memorandum Mr Kobei, OPDP’s Executive Director submitted to the Taskforce, Ogiek listed unanimously agreed proposals on acceptable and suitable remedies and reparations.
The community in the their submissions called upon the government through the Taskforce to fast-track the implementation by ensuring they receive community titles as per desired model to avert any planned transfer of their ancestral land, In a nutshell they underscored the following recommendation :
1.Restitution of ancestral lands in Maasai Mau Trust Land Forest and 21 gazetted forest blocks within the boundaries of the Mau Forest Complex. These would include land lost to grabbers or as a result of irregular and corrupt schemes.
2.Ogiek given the forest ownership with patent recognition that Ogiek are not ready to commercialize their rights and thus would never agree to sell the given lands. They would safeguard them against encroachment and exploitation. In the same respect, the government to recognize the Ogiek as a people with unique interaction with nature by recognizing Ogiek special cultural zones and erecting a monument for the Ogiek in Mau forest.
3.Return Mau to Ogiek as communal land owing to the fact that their living communally facilitated them to keep the forest in good condition.
4.Have a benefit sharing on revenue accrued from natural resources of Mau. The natural resources would extend to water draining out of Mau to various parts of Kenya
5.Compensating Ogiek for all damages suffered as a result of the violations, including the payment of pecuniary damages to reflect the loss of their property, development and natural resources, the payment of non-pecuniary damages to include the loss of their freedom to practice their religion and culture. Also establish a community development fund for the benefit of Ogiek; pay royalties from existing economic activities in the Mau Forest and ensure that the Ogiek benefit from any employment opportunities within the Mau.
6.Seek formal entitlements in form of Community Land Titles, reflecting Ogiek's ancient territorial arrangements.
7.Urge for operationalization of Community Land Act,2016 to enable the Ogiek own land communally. This would also mean declaring Community Forests on Ogiek land.
8.Each member of a household of a community landowner have usufruct entitlements for house and farm plots in perpetuity.
9.Ogiek’s indigenous knowledge and innovations contributing to conservation of Mau forest biodiversity be recognized and valued. Ogiek are protectors of bees and birds, pollinating crops and plants, which contribute to food sovereignty.
10.There will be restrictions on habitation and grazing zones grounded on agreement with the Kenya Forest Service (KFS).
11.Each community will also define Community Forest Reserves. This would fall into two categories namely Community Protected Forests and Community Use Forests and separate rules will apply in each case while habitation or farming will not be permitted.
12.Ogiek look forward to collaborating with the Ministry of Environment as rehabilitators and conservators of the Mau Complex.
Mr Kobei noted that as a community, they acknowledge that it is not practical to return land to all aggrieved people of Kenya.
“But the case of traditional forest dwellers is straightforward and special. We have been waiting for recognition of our homeland forests for over 100 years. We know that without return of our forest lands, we cannot survive. We also know that without restoration of our land rights the Mau will slowly but surely disappear,” he observed.
Mr John Samorai, the Program Officer at OPDP, thanked the community for their participation in the hearing and the Taskforce for being patient in listening and receiving the views of the community in regard the remedies and reparations.
Dr Kibugi, the Chair to the Taskforce promised to input all the views of the community as presented while coming up with the report.
He asked the community members to continue sending their memoranda with recommendations on how the Arusha case decision should be implemented.