AGAIN EVICTION THREAT

 

9th January 2004

OPEN LETTER TO THE NARC GOVERNMENT

Ogiek Elders and Leaders Seek Clarification on Government Quit Directive on Forests that Expired On 31st December 2003 and which the Minister extended to 31st March, 2004.

The makers of our independence constitution, which, we believe would care for our plight, had the following words. Our objective is a united Kenyan nation capable of social and economic progress in the modern world and a Kenya in which men and women have sanctity of individual rights and liberties and in the proper safeguarding of the interests of minorities. See report of the Kenya Constitution Conference, 1962, appendix ii, paragraph 1.

Forty two years later, the Ogiek have no official recognized domicile and the close we have come to own any parcel of land is the proposed excision of between 25,000 - 32,000 hectares, as in the world over dominant populations and governments have had to be persuaded through various means to recognize the rights of indigenous peoples. This recognition has to be fought for and legislated into law in certain countries and internationally, reinforced by international human rights instruments and conventions or declarations on indigenous minority peoples. The ILO Convention on Indigenous and Tribal Peoples and the Convention on Indigenous and Tribal Peoples in Independent States 1989 are good examples. These legal provisions, domestic or international are intended to protect indigenous people from "extinction". The protection is premised on the need to protect the cultures, the economic activities and social organization of indigenous peoples from encroachment from dominant cultures, forced assimilation, dispossession in terms of land rights in most countries and threats to indigenous livelihoods.

This protection is also based on the belief that indigenous peoples want to retain their culture, economic activity and would, largely want to exist as a distinct group. To this end, the indigenous people are empowered to be able to make decisions in conjunction with national governments in a way that protects their existence. Article 25 of the Draft United Nations Declaration on the Rights of Indigenous Peoples states: "Indigenous peoples have the right to maintain and strengthen their distinctive spiritual and material relationship with the lands, territories, waters and coastal seas and other resources which they have traditionally owned or otherwise occupied or used and to uphold their responsibilities to future generations in this regard".

Article 6 requires that governments make possible for indigenous peoples to participate in all levels of decision-making, whether administrative or elective to the same extent as other sectors of society. It requires that they be consulted when action (legislative or administrative is being planned) that is likely to affect them. These consultations should be done in good faith. Consultation would deem effective where those concerned have an opportunity to influence the decision taken.

Article 7 of the UN Draft Declaration proposes: "Indigenous peoples have the collective and individual right not to be subjected to ethnocide and cultural genocide, including the prevention of and redress for:

a)

Any action which had the aim or effect of depriving them of their integrity as distinct     peoples, or of their cultural values or ethnic identities.

b)

Any action which has the aim or effect of dispossessing them of their lands, territories or resources.

c)

Any form of population transfer that has the aim or the effect of violating or undermining any of their rights.

d)

Any form of assimilation or integration by other cultures or ways of life imposed on them by legislative, administrative or other measures;

e)

Any form of propaganda directed against them.



The provisions of this draft declaration though devoid of legal force, are indicative of the consensus that has emerged globally on issues that concern indigenous peoples. They show that a conflict exists between dominant populations and indigenous peoples that needs to be resolved taking into account the disadvantage positions of indigenous peoples.

Given this background and the wisdom in our higher areas of rulership, then the following and other questions resurfaces: 

  • Are the Ogiek entitled to protection under Kenyan and international Human Rights law?
  • How much of ancient culture must be retained by a community for it to claim protection against possible extinction if their lands are appropriated by other communities or by government for development purposes or in this case, environmental conservation? How much modernization is allowed?
  • How long ago should a group's history be tied to a defined territory for them to successfully claim it to be ancestral land and therefore their identity is tied to land?
  • Should indigenous people occupy one continuous territory? What if they occupy disjointed territories? (Article 13(2) of ILO Convention No.169 is clear that indigenous peoples do not have to occupy a continuous territory. It provides: "The use of the term "lands" in article 15 and 16 shall include the concept of territories, which covers the total environment of the areas which the peoples concerned occupy or otherwise use.")
  • What economic activities entitle one to claim attachment to land? Only sedentary farming and pastoral activities?
  • Do the Ogiek have native title to the lands? What would constitute acquiescence into legitimate claims of the government of Kenya as the legitimate owner of the land in Mau Forest?
  • What under Kenyan law are the incidence of native title and interests in land?
  • Does an ordinary act of parliament like the Forest Act extinguish the right of the Ogiek (if they had any) to the use of the forest?
  • How do you balance larger public interest with the claims of an indigenous group?
  • What does the denial of the livelihood of an indigenous people mean?
  • Are the Ogiek entitled to legally recognized domicile, just like other Kenyan societies?
  • Are the Ogiek entitled to representation at all circles on issues affecting their livelihood?
  • What is the position of the Narc government as far as the Ogiek plight is concerned? What assurance is there that the impending mass eviction is not a direct plan to extinguish the Ogiek rights of claim to ancestral lands?

Before the Minister for Environment and his counterpart in the Office of the President makes good their mass eviction threat, we pray that they answers our questions and alley our fears and also to tell us the fate of our impending cases in court which are:

  • HCCA 635/97: Joseph Letuya and 21 others Vs Attorney General and 5 others
  • HCCA 228/2001: Joseph Letuya and 21 others Vs the Minister for Environment and Natural Resources.
  • HCCA 238/99 & APEAL NO. 98/2000: Francis Kemei and 9 others Vs Attorney General and 3 others
  • Judicial Review No. 421/2002: Republic Vs Minister for Environment and lands officials.

In as much as we support the government in its war on zero tolerance towards corruption, our rights too can not be compromised, for "OGIEK RIGHTS ARE HUMAN RIGHTS". A whisper has it that the government machinery have conspired to do their work irrespective of historical claims, pending cases in courts or any other opinion that give the indigenous groupings such as the Ogiek. We call upon the President of the Republic of Kenya H.E. Mwai Kibaki to defend our rights as stipulated in the current or present constitution, and further urge his government to give us a fair hearing.

Yours for and on behalf of the Ogiek community,
(Undersigned)

 1.  Joseph Mungaru
 2.  Boniface Mureno
 3.  Stephen Lengeiywa
 4.  Simon Konana
 5.  John Mburuo
 6.  Lesinye Magari
 7.  Zablon Tulu
 8.  Wilson C. Monoso
 9.  Tiwodo Chemonos
10. James M. Kimbai
11. Wilson N. Naisuru
12. Paul K. Kemoi
13. Justus Kuresoi
14. Matinoi Ngiria
15. Stephen Siandoi
16. Kiprono Sigilai


Towett J. Kimaiyo - Ogiek Welfare Council -    __________________________

Cllr. J. Miangare - Nessuit Ward -                     __________________________

Cllr. D.K. Chesot - Mariashoni -                         __________________________

Cllr. C.K Cheruiyot - Tinet -                               __________________________

Ex- Cllr. E. Tuei - Kiptororo -                             __________________________

E. Kesendany                                                    __________________________

Solomon Kones                                                 __________________________

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