Peter Kitelo, Star Newspaper ,12th July 2016
On Monday, June 20, armed guards of the Kenya Forest Service (KFS) began burning the homes of Ogiek living on their ancestral lands around Kapsang and Etapei in the forests of Chepkitale, Mt Elgon.
Who is committing this violation of rights under the constitution, and why?
The County Commissioner?
Some media reported that the Bungoma county commissioner Joshua Chepchieng, denied knowledge of the ongoing evictions (Standard newspaper, June 21 ).
The current county commissioner’s predecessor, Maalim Mohamed, convened a meeting on March 24 because he had been told that there had been a lot of destruction of the forest. However, he quickly discovered that the situation was the opposite of what he had been made to believe: the Ogiek community are taking care of their forest, and he congratulated them for doing so.
He reprimanded KFS for allowing the areas they control to be destroyed. This was something he blamed on the uncontrolled implementation of the revived ‘Shamba System’ (now called PELIS – Plantation Establishment for Livelihood Improvement Scheme). This KFS system is theoretically supposed to help restore degraded forest. But at Mt Elgon, it is used to move farmers into indigenous forests to create fields, leading to wanton destruction of the indigenous forests.
Surprisingly, after returning to his office, the county commissioner gave a press statement saying he was going to carry out an eviction.
Community representatives went to see him, and he stated that the Ogiek community would not be evicted; only the people who have invaded the forests lower down where the “Shamba system” is practiced, would be evicted. He seemed understanding of, and sympathetic to, the Ogieks’ right to their community land. He also said he was happy with the Chepkitale Ogiek community scouts initiative, whereby community volunteers patrol their lands and confront charcoal burners and poachers and take them to KFS and KWS for formal arrest. He was clear that there were to be no evictions on the lands the Ogiek occupy.
The burning of homes
Instead, on June 20, the burnings began.
Across the whole county, this is an extremely rainy season and those families whose houses have been razed are out in the cold, including a partially deaf old man. This old man was roughed up by the KFS guards after they called him out of his house and, since he could not respond, they thought he was defying their orders.
Some families are without food after it was all burned with their houses. Their clothing is burned, and there is now no dry firewood, a basic need in Chepkitale in this season. Small kids are out in the cold. This is not what human beings should subject others to.
What has been happening is completely against Article 63( 2 )(d)(ii) of the constitution, stating that community lands include “ancestral lands and lands traditionally occupied by hunter-gatherer communities” such as the Ogiek at Chepkitale. The idea is that community land is to be preserved as much as possible.
And what is happening is despite consultations between the National Land Commission and traditional forest dwelling communities such as the Ogiek. Indeed, these consultations are to culminate in a National Forum this week, at which KFS could raise any issues they have without having to take this highly provocative action.
Furthermore, the action is happening despite an ongoing court case about the community’s rights to their lands. The hope is that they will be able to obtain the security to ensure they can continue protecting their forests, moorlands and the animals, with technical support from agencies such as Kenya Forest Service, Kenya Wildlife Service (KWS) and others.
The Chepkitale Ogiek community has a history of evictions from the 1920’s under the colonial government. The first evictions paved the way for the White Highlands in some parts of the present day Trans Nzoia county. In the 1940’s, more evictions made way for the current forest reserves of Mt Elgon. After independence, in 1968, the community was further evicted to pave way for Mt Elgon National park. More evictions ocurred in 1979, 1989, 1996 and 2008 sometimes for no apparent reason as the community was being evicted from an area it had been restricted to as a native reserve, which later became Chepkitale Trust Land. The same Ogiek ancestral lands of Chepkitale were wrongfully turned into a game reserve in 2000 at the request of Mt Elgon Council, an act that made the Ogieks’ presence on their land illegal.
Why is this happening?
Behind this burning of families’ homes lies a belief that the water towers of Kenya are under threat and must be protected for the nation – and the ugly face of corruption at the local level.
But when you see a crime, it is important to arrest the criminal and not the victim. There is a mass of evidence that the Ogiek, like other traditionally forest dwelling peoples, are not the problem, but the solution for the protection of indigenous forests, and their way of living, is the reason why their forests still exist. But, traditional forest dwelling communities’ lack of collective community land title is the reason they cannot stop encroachers from destroying their forests.
Successful community conservation
KFS, KWS, Mt Elgon Council, the International Union of the Conservation of Nature (IUCN), World Bank and other institutions visited the Ogiek lands in December 2011 to conduct a Whakatane Assessment. This is an activity, named after the Maori-named place in New Zealand where it was devised, to assess the impact on traditional communities by protected areas, like game reserves.
This assessment found that the Ogiek’s presence on their lands helps to secure the forests and biodiversity. Since then the Ogiek have written down their sustainability bylaws, and their community scouts have been enforcing them to stop outsiders from destroying the indigenous forests through charcoal burning and the elephant population through poaching.
The scouts have been very successful, and, five of them have successfully completed the KWS month-long training to improve their ability to find, arrest and hand over those destroying the forest.
Before being turned into a game reserve in 2000, Chepkitale had been held in trust for the Ogiek community by Mt Elgon Council. After participating in the Whakatane Assessment, the Council unanimously voted to request that the lands return to the Ogiek. It acknowledged that the reserve was created without the consent of the Ogiek, that the Ogiek have the right to their lands, and that they are the people best placed to protect their forests, moorlands and biodiversity.
Since then officials from the County Government, Ministry of Environment and Natural Resources, the NLC and IUCN have all made further visits and reached the same conclusion: securing Ogiek community tenure at Chepkitale will not only secure their human rights but is also the best way to secure the ecosystem, the forests and the flow of water for the nation.
Katiba Institute is working with the traditional forest dwellers across Kenya to support them to secure community title under the Community Land Bill (when it is enacted) and in line with the modern approach to forest conservation that recognises such communities as being the people best placed to conserve their forests. Without such communities being secure in their ancestral lands, any government institution made responsible for forest protection stands no chance.
Excluding traditional forest dwelling communities from their lands, even if they are given compensation or rights of access, removes the very people who are committed to protecting the forest, and instead opens the forest up for exploitation.
Only secure community tenure can give traditional forest dwelling communities the power and commitment to protect their indigenous forests for themselves and the nation over the long term.
How can we end the harassment of the Ogiek at Chepkitale? How can we ensure KFS awaits the outcome of the court process, the NLC’s National Forum, and the resolution processes that will come into effect with the passing of the Community Land Bill in the next two months?
Taken together, these can enable the Ogiek at Chepkitale and other forest protecting communities, to secure community title to their ancestral lands and so secure their forests, in accordance with the constitution.
Will Parliament, the people and politicians send a strong signal to stop, or will security officers continue burning the homes of the Ogiek community in Chepkitale?
The author is the convenor, Kenya Forest Indigenous Peoples Network and strategic director, Chepkitale Indigenous People’s Development Project.