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Reclaiming the Land
A Report from the
National Constitution Conference
in Kenya By Kiplangat Cheruiyot June 27, 2003
The National Constitution
Conference, which commenced at the Bomas of Kenya on April 28,
2003, closed on June 6 after a month and a week of intense
discussions.
Among the many thorny issues the
600 delegates debated was the question of land ownership,
especially as it pertains to indigenous pastoralist and
hunter-gatherer communities such as the Ogiek. The participation
of many representatives from these groups in the drafting of a new
constitution is being taken as a positive sign that Kenya’s
indigenous peoples will have an increasingly significant role to
play in future policy-making.
President Kibaki officially kicked
off the conference by noting, “My government promised not to
interfere with the review process,” and that, in addition, “we
will ensure the protection of minorities.” During the
proceedings, some National Rainbow Coalition (NARC) Ministers
sought to abolish “political Districts” largely inhabited by
minority groups, but met with objections from the Minister for
Constitutional Affairs, Mr. Kiraitu Murungi, on the behalf of the
government. “This could have led to inadequate services provided
to the minorities by the government of the day,” he said.
As the land debate came to the
floor, Mr. Ezekiel Kesendany, representing Nakuru district as a
Ogiek delegate, insisted that the Ogiek be allowed to live
peacefully in the forest or resettled on their original lands.
Peoples affected by land injustices include the Ogiek, Sengwer,
Sebei, Maasai, Pokots, Rendilles, and Watha, among a number of
others, most of whom come from Rift Valley Province. NARC member
of parliament Mr. William Ole Ntimama said that communities that
lost their land to colonists should either be compensated or have
their land returned to them. Mr. Odenda Lumumba of the Kenya Land
Alliance also supported plans to provide compensation for the
lands taken from these peoples. Protection of the rights of girls
and women to have equal chances of inheriting property also
featured prominently in the discussion. Mrs. Grace Ogot and Mrs.
Jane Kihara offered that men should be prohibited from selling
land without family consent.
A key and potentially promising
passage of the Draft Constitution for indigenous communities is
Section 234(3), which describes community land as “all land
currently held under the trust lands act and all land registered
in the name of group representatives in terms of the provision of
the land (Group representative) act. Land held and used by
specific communities (like Ogiek) as well as community forests,
water sources, grazing areas or shrines and identified by them as
such is part of the community land or any land coded to a specific
community by alienation, transmission or conversion.” If upheld,
this stipulation could provide much stronger protections of
communally owned lands in Kenya.
The delegates also supported the
formation of a national land commission under this new
constitution. They claim it will coherently and consistently
address and implement the broad statements of the proposed land
policy. Other important proposals made at the conference include
recognizing the rights of the people to go to court to seek
redress for actions that damage their natural environment.
The hunter and gatherer
representatives to the forum, including Mr. Joseph Sang (Ogiek
Welfare Council), Mr. Moses Leleu (Sengwer) and Mrs. Bibi Diwani (Watha)
said the discussion on land will have to recognize their
communities. “It is good that the constitution process will have
the national land commission so it is in the position of
addressing our problems,” said Leleu. Mr. Kimaiyo Towett, a keen
observer of the conference proceedings, was quoted as saying,
“Ogiek will soon be in Canaan after the long struggle. Mr.
Kesendany has advocated for our rights much.”
Kiplangat Cheruiyot is the
Coordinator of the Centre for Endangered Languages in Nakuru,
Kenya.
OGIEK MEMORANDUM TO THE TRUTH
AND RECONCILIATION TASKFORCE
On June 16 Ogiek representatives
addressed the Truth and Reconciliation taskforce on behalf of the
Ogiek communities. He presented the memorandum included
below.
JUNE 16, 2003
On the behalf of the Ogiek
community we present this memorandum in support of the formation
of the truth and reconciliation commission. This we do so with the
following reasons. It will lead to the truth:
About the origin and causes of the
tribal clashes and who were the beneficiaries;
About the population transfer of
the Kalenjin persons from their respective districts to the Ogiek
ancestral lands in Nakuru District;
The successive mistreatment of the
Ogiek and their property by the Kenyatta and Moi regimes;
The mass arrests, false charges and
forced disappearances of the Ogiek leaders by the state machinery;
The looting of the forest products/trees
by officer of the former regimes and how these facts affected our
environment alongside the national economy;
For in doing so, it will not only
be to the Ogiek’s benefit, but also to all Kenyans who were
evicted in these forests in the late 1980’s only, for the same
areas to be declared an adjudication area a few years later.
This document was signed by J.K.
Towett, Kones Solomon, and Kiplangat Cheruiyot on behalf of the
Ogiek people.
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