The Ogiek won reparations, now they want results
John Sironga sifts through the pile of papers he has piled up on the seat next to him. ‘I’ve got so much evidence, collected over the years,’ he says as he pulls out something else.
From photocopies of 1960s identity documents to a transcript of a Facebook live Q&A, the chair of the Ogiek Council of Elders has been diligently documenting his community’s generations-long struggle for recognition and land rights.
The Ogiek, who number around 52,000, are descended from some of the earliest known inhabitants of Kenya, and are among Africa’s last remaining forest dwellers. About 45,000 rely on the Mau Forest as their ancestral land.
A poster catches my eye, mounted on yellow sugar paper, which summarizes over 120 years of displacement and struggle for the Ogiek of Eastern Mau to live freely on their land. It dates back to 1895 when Britain proclaimed the East Africa protectorate.
Sironga explains that he made the poster to celebrate the community’s 2022 landmark win at the African Court on Human and Peoples’ Rights in Arusha, Tanzania. On 23 June, the Court spelled out a range of reparations owed to the Ogiek of Eastern Mau by the Kenyan government, including collective land title and around $1.1 million in damages to be paid into a Community Development Fund established within 12 months.
The case followed another momentous judgment, made in May 2017 by the same court, which held that the Kenyan government had denied the community’s rights to their ancestral lands, as well as violations of their rights under the African Charter on Human and Peoples’ Rights.
Importantly, the court also asserted that the Ogiek – which means ‘caretaker of all plants and wild animals’ – have a crucial role to play in protecting their environment.1 Indigenous peoples and local communities protect more than 50 per cent of the world’s surface, according to the Forest Peoples Programme.
Momentous reparations win
‘We hope the government is going to implement the court decision because this will boost the rights of Indigenous people, not only in Africa but across the world,’ says Robert Eno, Registrar of the African Court on Human and Peoples’ Rights.
Marianne Wiben Jensen, a senior advisor with the International Work Group for Indigenous Affairs (IWGIA) agrees: ‘It’s really a huge contribution to building up solid jurisprudence that can be referred to by the UN system, for instance,’ she says. ‘It’s important that other groups on the continent can see that this can happen, that you can get justice from the judicial system at the highest level in Africa.’
The Ogiek Peoples’ Development Program (OPDP) has been a key part of steering the legal process. When I first speak with founder and executive director Daniel Kobei over a faltering Zoom connection in March 2023, it’s already nine months since the Court’s ruling and those representing the Ogiek have only had one meeting with the government. By the time we meet face to face at OPDP’s Nakuru office in May, Kobei is preparing to travel to Nairobi that evening for a second meeting the next day, where state agencies are to give progress reports on implementation.
I ask if he has high hopes about it. He smiles and says diplomatically: ‘What I am optimistic of is the fact that at least there has been a sitting with the government to discuss the Ogiek land question’.
But when I meet him the next day, he seems jubilant – and maybe a bit stunned. ‘The news I got today was beyond anything I’ve seen; there was such an enthusiastic commitment from the government.’ However, he points out that these are still baby steps. As the 12-month deadline approaches, the government is still a long way from delivering the full reparations.
The Ogiek are hunter gatherers who have largely lived off beekeeping, wild fruits, roots and some game hunting for generations.
‘The forest is part of us,’ says executive director of the Program for the Heritage of Ogiek and Mother Earth (PROHOME). ‘In fact, I always tell people that we don’t live inside the forest, we live with the forest. The forest supports our way of life and we give back by protecting it.’
Frederick Lesingo has been keeping bees in the Mau Forest since he was a young boy, learning from his father. Now he is passing on the skill to his own son, Emmanuel. ‘All of the children in this area are trying to have their own beehives despite the fact that they are going to school,’ Frederick explains as he leads the way through the trees, pointing out hives perched among the branches way up in the canopy, camouflaged by the bark that covers them for protection. Frederick says that each cover can last 20 years before it needs changing.
Father and son demonstrate how they make fire in the forest with a ‘traditional matchbox’. Frederick lays down the tools he has brought with him – a leather bag which opens out to provide a handy mat and can also carry water or honey. Inside is a roll of dried moss, and inside that, two tools made of cedar. He then presses the moss into a ball and places some powdered cedar bark into its middle.
Emmanuel holds a piece of cedar, with notches carved out of it, onto the ground while, between his hands, Frederick twists a stick inside one of the notches – creating enough heat for smoke to start appearing. Some of the smoking, powdered wood is added to the inside of the moss ball and as Frederick blows inside, smoke starts billowing out. This can be blown into the hive to subdue the bees and make them less likely to sting people collecting honey – but not entirely. ‘I’ve been stung lots of times,’ says Frederick. ‘But I’m used to it.’
Losing the forest
Over the years Frederick – who is also a community scout who looks out for people harming the forest – has noticed many changes due to the introduction of commercial logging and deforestation. ‘Initially the forest was thick with vegetation,’ he says. ‘Now everyone knows you can get money from selling a tree so that has made the forest to be not as thick as before.’
It’s estimated that a quarter of the forest – around 100,000 hectares – have been lost since 2000.
‘The forest belongs to the community,’ says Frederick. ‘It was always there for our grandfathers. Now we want to protect it for the next generation,’ he says. ‘We are not ready to leave. If we are told to leave, we will resist because we feel that this is our home.’
While Frederick’s family still lives inside the forest, many Ogiek have moved to live in villages just outside and turned to farming to make ends meet.
‘Our way of life was supported by the forest and the massive destruction has greatly affected Ogiek economically because we can no longer have quality production of honey,’ says Mindore. ‘If I see somebody farming and [they get] maize, potatoes, beans and I don’t have anything to eat because my way of life has been tampered with, then I’ll have to do what he or she is doing.
‘I worry about skills being lost, but what is even more worrying – not just for Ogiek, but for every human being – is the loss of the bees,’ he says blaming the use of pesticides and ‘toxic chemicals’ in farming.
Kenya’s spending on pesticides is reported to have increased in the past two decades, from $36 million in 2000 to $114 million in 2017. These chemicals endanger bee populations, yet more than 75 per cent of the world’s food crops depend on animal pollination.
The Mau Forest also serves as Kenya’s most important water catchment area and is home to the source of the Mara River, which goes on to flow through Kenya and Tanzania, taking in the Masai Mara National Reserve and the Serengeti National Park. An estimated six million people in Kenya depend on it for their water.
Many Ogiek take an active role in conservation efforts. ‘As a community we came up with Ogiek community scouts,’ Kobei explains. A 22-strong team of volunteers replant native trees and report any harmful activity in the forest, including illegal logging, to the forest rangers.
‘They are working with the Kenya Forest Service (KFS) because there has been a lot of corruption going on,’ says Kobei. ‘We have also rehabilitated 800 hectares by planting indigenous trees. The community are becoming role models in protecting and conserving the forest.’
At Logoman Forest, where OPDP have been working in partnership with KFS to restore land, including a stream, I meet chief scout Simon Sururu and his colleague Nicholas Kariangei. When I ask whether they enjoy the role, they seem amused. ‘We enjoy it because it’s home,’ says Sururu, explaining that they can also hold KFS to account. ‘But there are a number of challenges, including that this work is voluntary and sometimes you have to provide for your family at the same time. And also, it’s quite risky because what we are doing is denying people [the opportunity] to destroy the forest, and people look at the forest as a source of income.’
Another person who is taking action to protect the forest is Alexander Kisioi who for the last four years has been running a blog documenting what he sees. I meet him at his shop where he sells agricultural goods. He says he set up the blog because he was fed up with reporting destructive behaviour to KFS and no action being taken: ‘So we decided as a community to document and show that we are not the ones to destroy the forest.’
He says he has been rebuked by guards in the past but he’s not deterred. ‘There was a time a forest ranger threatened me, but I will not fear because I know my rights. As long as you are speaking the right thing you shouldn’t fear. I will not stop advocating for issues that affect my community.’
Ever since the British colonized the region, areas of the Mau Forest have been cleared for plantations of non-indigenous trees and Ogiek have been displaced.
The Kenyan government has previously sought to justify evictions from the forest from a conservation point of view, but members of the Ogiek community I spoke to do not accept this.
Sarah Osas, a member of the Council of Elders, agrees, saying: ‘The government has the mandate to take care of the forest – they’ve employed forest managers, forest rangers and it’s their duty to make sure that the forest is not destroyed. If it is destroyed they are the ones that should answer, not the Ogiek community.’
The 2022 reparations ruling from the African Court included that the Kenyan government should return the Ogiek’s ancestral lands in the Mau Forest to collective title within two years. Although collective titling – which would allow the Ogiek to be recognized as a legal entity and registered as the land owner – could also allow individuals or families to have the right to use a specific part of the land, there are likely to be limits on the right to sell land to avoid it being lost for future generations, and to aid conservation efforts.
As the Kenya Land Alliance has acknowledged, ‘the history of Kenya, like that of any colonized territory, is fundamentally one of land dispossession and subsequent staking out of individual claims of title to property that legitimately belongs to others’.
The history of Mau shows how important this issue is. As academics Stefania Albertazzi and Francesca di Matteo write for The Conversation: ‘[…] the legacy of colonial forest management practices, post-colonial politics of clientelistic land redistribution and the politicization of forest conservation have made the Mau Forest one of the most controversial areas of Kenya’.
In the early 1990s, 61,000 hectares of protected forest area was turned into settlement schemes, supposedly for accommodating the Ogiek, but instead land was allocated to ‘a small circle of the country’s economic, military, administrative and political elite’ as well as to thousands of non-Ogiek settlers.
Many of the Ogiek people I spoke to point to this resettlement as part of the reason for the apparent lack of political will to address their plight. As Ogiek become more of a minority they are less able to elect political representatives who have their interests at heart, in a political system where votes are often along tribal lines. ‘There’s no powerful employed member of Ogiek in the government,’ says Sironga.
Given that the Ogiek’s land issues started with British colonialism, have people considered trying to claim reparations from the British government? Neither Kobei nor Mindore think this would be a fruitful avenue for their people. Although the British displaced Ogiek people, moving them to areas where they could not practise their way of life, and leaving them without rights to their land, these were not evictions of the type experienced since independence in 1963.
‘If I were to pursue this kind of thing, I would sue the British for destroying the forest,’ says Mindore.
‘It all comes out from the vestiges of colonialism – as with many of the land disputes around the world,’ says Lucy Claridge, executive director of the International Lawyers Project, who previously worked for Minority Rights Group International (MRG) and represented the Ogiek as lead counsel. ‘All [suing the British government] would lead to is perhaps some payment of compensation, but the main thing the Ogiek want is their land back – they want restitution.’
Samson Kipkurui Mureno is a veteran of the Ogiek struggle who has represented the community in Kenya’s High Court. He says he has been arrested several times: ‘I was born in 1952 and I still have not found a place to settle permanently.’
I meet him at his home in Kapcholola where he has been hosting his daughter Emily and her family since they were evicted from their home several kilometres away in August 2020.
Emily – who seems to have inherited her kind smile from her father – explains that three days before she was forced to leave her home, word went around that the KFS were going to evict people in Mariashoni who were grazing their animals in the forest. But when the day came, she says, everyone in the area was targeted. ‘They went up to the villages and people were told to either demolish their houses or they would be burnt down,’ she explains. ‘They said “you are the people who are destroying the forest”. They were forcing us to go outside the house, I was scared.’
It was the height of the pandemic so school was closed and Emily was at home looking after four children – two of her own, and two belonging to her seriously ill sister. They all fled to her father’s place and are still living there three years later. Emily’s sister died later in 2020.
Samson’s property is perched on a hill with stunning views, but Emily longs for her home. ‘I am not feeling comfortable because it is a long distance for the children to get to school,’ she explains, adding that she is also worried that the family will be evicted again from her father’s place.
A few of Emily’s former neighbours, including her brother, have gone back to their homes, or started to rebuild structures, but she isn’t ready to take that risk. While her home is still there, sheets from the roof have been stolen and she can’t afford to replace them.
Despite the 2017 judgment in the African Court, in July and August 2020 more than 1,100 Ogiek were evicted from Mariashoni, Logoman, Kiptunga and Nessuit forests in Eastern Mau, often having to crowd into the homes of neighbours and relatives, despite the need for social distancing. The evictions led to clashes which left several people dead.
The week before I meet her, Emily was representing the Ogiek at the East Africa women-led assembly, hosted by the Sengwer people. Discussions touched on how to keep the pressure on for implementation of the Ogiek case. Looking to the younger family members in the room she says, ‘we’re hoping that this struggle won’t be passed to another generation’.
Behind the scenes
Since it was founded in 1999, OPDP have been involved in a number of the Ogiek community’s cases in national and international courts, but both governments and the legal system have thrown up several false starts. In 2009, however, the catalyst came to push the legal case to another level: the African Commission on Human and Peoples’ Rights. People living in Eastern Mau, including the Ogiek, were given notice of eviction: some reports say they were given 30 days’ notice, but Kobei says it was only 14.
Around this time another group called the Endorois had a case against Kenya in the African Commission on Human and Peoples’ Rights, which found that the government’s actions had violated the community’s rights as an Indigenous people.
The African Charter on Human and Peoples’ Rights established the African Commission on Human and Peoples’ Rights in 1987 as a quasi-judicial body that monitors and interprets the implementation of the Charter itself. The African Court on Human and Peoples’ Rights is a continental court established in 2004 to complement and reinforce the work of the Commission.
The Endorois case – which was filed by the Centre for Minority Rights Development (CEMIRIDE), MRG and the Endorois Welfare Council – was the first to recognize the rights of an Indigenous group in Africa, under the Charter. Kobei says it was a catalyst for the Ogiek to take their case to the Commission, which eventually referred it to the Court.
‘The Endorois were alleging similar facts about the violations against their community,’ says African Court registrar, Robert Eno. He also points to other developments on the continent that have raised awareness about Indigenous rights. For example, in 2003, an expert working group from the African Commission published a report that sought to define Indigenous peoples in the context of the African continent, and made several recommendations on the rights of Indigenous people. ‘There had been a lot of publicity on the rights of Indigenous people – not only in Africa but across the world,’ says Eno. ‘So maybe all these issues gave the court some ammunition to be able to make such bold decisions in 2017 and 2022.’
Making the ruling count
Eno admits that the Court has limited avenues to ensure implementation. The Court introduced compliance hearings to try and force parties to come and explain why they have not complied with court decisions. But when I speak with him in May, Eno says the Court has yet to hold any of these hearings as claimants do not come forward to let them know there has been non-compliance. He says that even states that have complied often do not report to the Court on what they have done.
He recently read in the news that the Kenyan government has started to demarcate land, in order to apportion some to the Ogiek as part of measures to implement the Court decision, but the government is yet to submit a report to the Court. Eno says the Court wrote to the government in April saying that if they had not implemented the judgment by the 12-month deadline in June, a compliance hearing would be organized for them to come before the court to explain.
International lawyer Claridge says that the government is bound to have some challenges when it comes to the practicalities of implementing such as case. ‘It’s a lot for any government to get their head around, even with the best will in the world,’ she says. ‘But it is a shame that the government hasn’t even done the first thing’ – that is, publishing the judgment in a national newspaper within six months. ‘In the meantime the Ogiek are organizing themselves,’ she says.
OPDP have been part of setting up a committee of eight external experts which has been meeting to discuss the case’s implementation. They have also been gathering support from other bodies, including the National Human Rights Commission, and fundraising to aid the implementation.
Mindore is emphatic that taking the case to the African Court was a ‘good move’. ‘It has asserted the fact to Kenyans that Ogiek have rights to Mau,’ he says. ‘It has also given confidence to other Indigenous minorities who are facing the same situation as the Ogiek and are maybe contemplating taking the same avenue.’
But a challenge in communicating the case to the wider community may be that not enough people feel ownership over it. ‘They know that we won a court case but they don’t understand it,’ he says. He argues that more needs to be done to raise awareness where people are. ‘The best thing to do is to go to the villages,’ he says.
Kobei explains that a supervisory committee has been established whose role is to oversee the implementation from the community side, so that – as Kobei describes, ‘it doesn’t become like an OPDP programme’, and the wider community gain more ownership over the case.
The Ogiek Council of Elders, which has around 70 members and several chapters, is also looking at the case. ‘It needs everybody to be on the lookout and this will create a high level of transparency,’ says Kobei.
The Ogiek have also made claims to the National Land Commission which is investigating historical land injustices between 15 June 1895, when Kenya became a British protectorate, and 27 August 2010, when the new Constitution came into force. Members of the public had until September 2021 to file claims to the Commission. It was inundated, receiving 3,740 claims.
Following a calling
For the Ogiek it has been a long struggle. ‘If the reparations judgment is fully implemented it will be the greatest pride of the Ogiek community; they will feel like they are fully Kenyans, like they are real citizens,’ says Kobei. ‘A lot of time has been wasted – legal battles one after another.’ He pays tribute to the members of the community who have not lived to see the recent successes.
‘We started when we were young people and we are now getting older – I was 27 years when I started so it’s more than half of my life that I’ve been at it,’ he adds.
Did he ever feel like giving up? ‘Like with anything, it reaches a time when you have to rethink.’ For him it was when his family were threatened. Kobei explains that in 2009, after he had a meeting with someone in government, there were press reports that he had supported evictions of non-Ogiek people in Mau. ‘The news people, they can twist information,’ he says. ‘I was working in the university at that time and my mother requested me, “what exactly do you want? You have a job, you are educated – why are you shouting around? It’s creating trouble for the whole family.”’ He lets out a deep sigh. ‘I felt I had a calling and I thought, if I don’t do it who else will?
‘In 2020 there was a group who even started collecting money to pay goons to exterminate me and my colleague.’ Only the week before we meet, Kobei says that someone sent “some substance” in an envelope to the office, addressed to him. He was abroad, but the person who opened it had to receive hospital treatment.
‘There are many people who feel we have stopped them from doing whatever they want to do in Mau – land grabbers and companies who are doing business in the forest, in timber, flowers, all sorts.’
Although it’s been a long journey, Kobei can see change on the horizon and says that people outside Kenya can help by putting pressure on the government to implement the judgment, as well as acting in solidarity with Indigenous communities and forest dwellers wherever they are.
As the 12-month deadline approaches, eyes will be on the Kenyan government to see how far they will take the implementation. Emily says it can’t come soon enough: ‘When the judgment is implemented, I will feel like justice has been done.’
October 2009: Eviction order issued to Ogiek and others living in the Mau forest. Ogiek launch a case against the Kenyan government before the African Commission on Human and People’s Rights. OPDP represent the community, working alongside MRG and CEMIRIDE.
November 2009: The Commission issues an ‘Order for Provisional Measures’ requesting the government to suspend the eviction.
July 2012: The Commission refers the matter to African Court on Human and Peoples’ Rights.
March 2013: The Court makes an order mirroring that already issued by the Commission.
March 2016: Over 100 Ogiek families violently evicted from the Ngongongeri area. Hundreds of homes are destroyed and around 1,000 people reportedly left homeless.
26 May 2017: African Court on Human and Peoples’ Rights make a merit judgment in favour of the Ogiek and orders the government to remedy human-rights violations.
November 2019: The Court notifies both parties of the reparations hearing in March 2020 – it is postponed several times due to the pandemic.
July-August 2020: Over 1,000 Ogiek are evicted.
29 June 2021: The Court decides to forgo an oral hearing and make a decision based on written submissions.
23 June 2022: The African Court on Human and Peoples’ Rights makes its reparations judgment ordering the government to pay compensation, return ancestral land to collective title within two years, ensure recognition of the Ogiek’s rights and guarantee Ogiek human rights won’t be violated again, as well as a number of other measures.
Source: Lara Domínguez and Aydan Figaroa, ‘Reparations at last: Land justice for Kenya’s Ogiek’, Minority Rights Group International.
This project was funded by the European Journalism Centre through the Solutions Journalism Accelerator. This fund is supported by the Bill & Melinda Gates Foundation.