Since 1902

Why Ogiek might have long wait to be settled in Mau

By Julius Chepkwony - March 30th 2022

Nakuru Deputy Speaker Samuel Tonui with his Lawyer Kipkoech Ng'etich in Nakuru Court on March 22, 2022 during a hearing over a case they filed in court over eviction in Eastern Mau. [Harun Wathari, 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.

The communication was about an eviction notice issued by Kenya Forest Service in October 2009.

In the notice, the Ogiek and other settlers of the Mau water tower were required to leave within 30 days.

After a hearing that lasted eight years, the court 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.

The decision gave the Ogiek hope, but little did they know it marked the beginning of another journey.

Ogiek Council of Elders secretary Martin Lele, who testified in court last week, said he believed they would be issued with a single title deed and not a subdivided parcel of land.

Mr Lele said they have no alternative land except the Mau Forest, where they wish to settle.

“We need our communal land and our title. I am saying we need our ancestral land as Ogiek. We need to live alone and not with others as our culture will be eroded.”

Intended eviction

He was testifying in a case filed by Nakuru County Assembly Speaker Samuel Tonui on behalf of Mau residents over the intended eviction. The Ogiek were enjoined in the suit as interested parties.

Mr Tonui is seeking orders barring the government from evicting residents of Marioshoni, Nessuit, Bararget, Likia, Terer and Sururu.

The Ogiek are challenging the legality of a multi-agency team established in September to conduct an audit, adjudicate and survey, and place beacons on the contested land.

But State Counsel Fronicah Shirika said that while the government has been and is willing to implement the various court judgments to have the Ogiek settled, the community has always blocked the process.

“The government is willing to implement the decision; the problem is the same people when we take a step they move to court to stop the process,” said Ms Shirika.

The government had hinted that the activities that were being carried out would lead to the issuance of title deeds to those living in eastern Mau. Each individual was to get five acres of land.

Through lawyer Emily Kinama, the Ogiek, in their application, said that they had won court cases against the government concerning their rights to their ancestral land in Mau Forest, which verdicts were rendered by the African Court on Human and People’s Rights.

The Ogiek said they must be involved in the process of implementing the judgment, adding that they have good reasons to believe they risk losing their ancestral land because the government is carrying out activities “at a high speed so that they may issue titles.”

Five acres

Lele said the Ogiek were unhappy following revelations that the government was going to allocate each Mau resident five acres. The community, Lele added, was questioning the criteria used because they had fought for the land since 1997.

African Court on Human and Peoples’ Rights is not the only court that has ruled in favour of the Ogiek.

On March 17, 2014, Environment and Lands Court Judge Pauline Nyamweya in Nairobi ruled that the right to life, right to dignity, and the economic and social rights of members of the Ogiek community in Marioshioni location, Elburgon division, and Nessuit location, Njoro division, Nakuru in the Mau Forest Complex had been contravened following their forcible eviction from the said locations without resettlement, and that community members had been deprived of their means of livelihood.

Justice Nyamweya directed the National Land Commission (NLC) to, within one year of the date of the judgment, identify and open a register of members of the Ogiek community in consultation with the Ogiek Council of Elders.

The judge ordered the NLC to identify land for the settlement of Ogiek members in Marioshioni, Elburgon and Nessuit, Njoro, Nakuru, and who had not been given land in line with recommendations in a report of the Government Task Force on the Conservation of the Mau Forest Complex that was published in March 2009.

Lele said none of the directives was implemented. He further confirmed that they had always gotten orders barring the implementation of various courts decisions by the government.

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