The Ogiek
An in-depth report by John Kamau, Rights Features Service

Chapter 7
The Court Battle Begins

NOTES  

Frustrated that the constant harassment had gone for so long the Ogieks decided to go to court. It all began on January 1, 1997 when Ogiek elders visited President Moi at his home in Kabarak home in the Rift valley. The president promised the Ogiek elders that he would look into their plight.

But on April 4, some four Ogiek elders were arrested and charged with incitement when they tried to stop the continued alienation of the Ogiek land.

82 "Dorobos sue AG, officers over forest land, Daily Nation, 26 June 1997.  

On June 25 the Ogiek living in Mau east decided that enough is enough and went to the court82 seeking to stop the Attorney-General and four senior government officials from surveying and allocating their land to outsiders.

The application was taken before Justice Richard Kuloba by lawyer Kathurima M'Inoti. The lawyer sought to get the court's permission to be allowed to sue on behalf of the whole Ogiek community resident in the Mau east forest. He was also seeking orders to restrain the Attorney General, Rift Valley Provincial Commissioner, the Provincial Forest Officer, and the Director of Forestry from continuing to implement the purported Mauche settlement scheme.

The group submitted in court that since 1993, they had been removed from the land, which was subsequently allocated to people from Kericho, Bomet and Transmara districts. The lawyer further submitted:

"My clients earn a living by growing maize, beans, potatoes, cabbages and rearing cattle, sheep and goats. About 10% of the people living in the forest practice the traditional way of life by hunting and gathering food".

The lawyer wanted the court to prohibit the five from allocating land to non-Ogiek and interfering with their continued possession and enjoyment of the land and the court's protection of the land in Sururu, Likia, Teret, and Sigotek forests.

83 "Court allows Dorobos to sue State over eviction", East African Standard, 26 June 1997.

84 "Dorobos issue demo threat over land", Daily Nation, 30 July 1997.

 

On the same day the court allowed the 22 applicants to sue the state.83 But even as the Ogieks were in court the allocation of the land continued to an extent that on July 29, 1997 the community threatened to stage a demonstration unless the exercise was stopped.84 Threatening letters had been written to several of them demanding that they vacate the land.

When the suit finally came up in court the Ogiek lawyer regretted that his client's land in Mau east forest was still being dished and that the "strangers" were displacing the Ogiek. On September 1 the judge set the case for September 25, 1997.

85 "Court Halts Allocation", East African Standard, 16 October 1997.  

The then chief Justice, Majid Cockar, ruled on 15 September that a two-judge bench will hear the case. On the same day the High Court halted the allocation of the forest until the suit was heard and determined.85 Lady Justice Joyce Aluoch heard the suit.

But despite the court order, the allocation continued unabated. On October 24 the Ogieks threatened to go to court after senior government officials resumed allocation of Mau East forest contrary to court orders.

The Ogiek lawyer, Dr Gibson Kamau Kuria wrote to the Attorney General saying that government officials had on October 23 resumed allocation, a clear contempt of court.

The letter further said that the Rift Valley provincial commissioner, Yusuf Haji, and his Nyanza counterpart Wilson Chepkwony, Nakuru DC Kinuthia Mbuthia, Rift Valley Forest officer, Joseph Rotich and the Director of Forestry were coercing the community leaders to drop the case.

The continued allocation was soon followed by a threat on May 1, 1998 by more than 1,000 youths teaming up as Movement for the Recognition of Ogiek People who warned that they should not be held responsible for the consequences that might occur if the demarcation of land continued. In the same month Ogiek elders led by Kimaiyo Towett claimed that the Tugen and Kipsigis used Nessuit forest to train and attack Kikuyus in Njoro during the 1997 tribal clashes that rocked Njoro area.

86 "Land row to be sorted out today", Daily Nation, 20 July 1998.

87 "Dorobos Petition Government", Daily Nation, 11 October 1998.

  Shortly after the threat and accusation, the government officials decided to meet Ogiek officials and sort out the matter.86 By that time more than 8,000 people had invaded the Ogiek ancestral land. But the row was never solved and in October the intruders had continued to demolish Ogiek houses. This continued threat saw the Ogieks petition the government87 to keep the intruders at bay. They accused the Kuresoi MP, Cheruiyot Koskei of using his position to settle people who were not genuine Ogiek.
88 "Dorobo squatters in demo threat", Daily Nation, 1 December 1998.   Three Ogiek elders Samuel Ngetich, Richard Biomto and Kiprotich Marindany said the settlement of the community was being frustrated by politicians and local administration.88

89 "DC to hold Kipsigis eviction meeting", The People, 4 January 1999.

90 Ben Masharen, "Settlers get quit notice", The People, 13 January 1999.

 

The administration took a new step at the beginning of 1999 when the Nakuru DC, David Litunda, announced that he would meet with administration officers and members of the Ogiek to chart out ways of evicting more than 7,000 members of the Kipsigis community who had invaded Ogiek land.89 The government followed the meeting by issuing a notice giving the Kipsigis seven days to vacate the land.90

But that turned out to have been a false order tailored to have the Ogiek drop the court cases. In May an Ogiek chief, Joseph Rorogo, was fired for siding with his people. This angered the Ogieks who on May 9, held a demonstration and barricaded Molo-Olenguruone road opposing the sacking of the chief. The Ogieks said the chief was fired for being vocal against the Permanent Secretary (PS) in the office of the president, Zakayo Cheruiyot. The PS was accused of importing Kipsigis to settle in the Ogiek land.

91 Mutheu Muli, "Ogiek land case put off", The People, 13 May 1999.  

Further, the Ogiek refused to drop the court battle, which continued to be put off, every time they appeared in court.91

Frustrated the Ogieks called a press conference in Nairobi in which they vowed to continue with the case under all costs;

"We have donated our lives as a sacrifice if that is what will buy justice to all", their press statement said in part.

What happened after that was a bombshell. On May 14 a day after the press conference, the government issued a 14-day ultimatum to the over 5,000 Ogieks settling in Tinet forest land to leave.

The Nakuru DC, John Litunda, also disbanded the Ogiek settlement committee and said that the government does not recognise the Tinet settlers any more.

92 Stephen Mkawale, "Government to evict the Ogiek", East African Standard, 15 May 1999.  

"This is just the start of things as two other settlement schemes Saino and Ndoinet forests are on the spotlight", the DC said.92

The meeting was boycotted by all local civic leaders led by Tinet ward councillor Charles Cheruiyot Rono who protested that the DC was being used by a senior civil servant to drive a wedge between Kipsigis and Ogieks.

According to Catholic priest Daniel Rono, the eviction order "smacked of a personal vendetta by the PS as a result of the protest against the PS".

The priest said that it was unfortunate that the community was being evicted at a time it was settling down to serious farming and trading after being shoved to and fro without assistance since Kenya's independence in 1963.

93 Elijah Kinyanjui, "Dorobo's get quit notices", The People, 16 May 1999.  

"The last two years are the only times this community has settled down and engaged in useful economic and social activity. It is the only time the community has abandoned its traditional hunting and gathering lifestyle and built 13 registered schools for the very first time".93

The Ogiek say their removal from the forest was sinister because the DC did not say they want to re-forest it. The suspicion at that time, and which is still prevalent, is that the real motive is to pave way to the settlement of Kipsigis people.

The Ogieks did not take that lying down and they decided to move again to court.

 

94 "Government stopped from evicting Ogieks", Daily Nation, 22 May 1999.  

On May 21 the Ogiek community appeared before Nakuru Resident judge,94 David Rimita who restrained the government from evicting members of the community from Tinet forest. Those restrained in person included Rift Valley provincial Commissioner Francis Baya, Provincial Forest Officer, Musa Tallam, and Nakuru DC, John Litunda.

95 Kena Claude, "Tension mounts as quit notice expires", The People, 27 May 1999.

96 "Judge refers Ogiek file to (Chief Justice) Chesoni", Daily Nation, 5 June 1999.

 

The quit-notice brought new tension in the forest as the Ogieks wondered what to do.95 With the first case still un-resolved, the Ogieks were lucky to have Nakuru judge David Rimita refer their case to Chief Justice in Nairobi. In a ruling delivered in Nakuru Justice Rimita argued that the Ogiek case "raised constitutional issues, which could only be determined by a bench of at least two or more judges".96

Perhaps to let the Ogiek understand that he was a forthright judge, Rimita asked members of the Ogiek to move forward so that he could slowly explain why he referred their case to Nairobi.

97 "Judge refers Ogiek file to (Chief Justice) Chesoni", Daily Nation, 5 June 1999.  

"I do not want you to go and say somebody is interfering with your case but I am just following procedures in a case of this nature", said Rimita.97

By June 12, the Chief Justice had not given directions on the case. This prompted the Ogieks to protest and write a statement that asked the Chief Justice to act quickly before the interim restraining orders lapsed. Justice Rimita had extended the restraining orders to June 18 and there was fear that if the orders expired before they were renewed the administration would move in and evict them.

In an affidavit sworn by Francis Kemei the community feared the government could "take advantage of the lapse and forcibly evict us from Tinet forest".

In yet another bid to intimidate the Ogieks the government moved in and threatened to withdraw teachers from the 13 schools in Tinet.

The Ogiek lawyer Joseph Sergon was forced to write to Nakuru District Education officer, Joseph Yator, telling him to stop threatening to withdraw teachers.

"Unless Yator stops his threats I am likely to move to court and institute contempt proceedings against him", said Sergon.

98 "Stephen Mkawale, "Court extends injunction barring Ogiek's eviction", East African Standard, 19 June 1999.   On 18 June the High Court in Nairobi extended the injunction barring Ogiek's eviction.98 The order was issued by Justices Samuel Oguk and Richard Kuloba who were to hear the Ogiek case.
99 Lilian Nduta, "Government is against Ogieks, advocate tells court", Daily Nation, 30 July 1999.  

When the case started documents were tabled showing that the Ogiek had been living in the forests and had been under constant threat by the administration. The Ogiek lawyer submitted in court that the Kenya government was not truthful in saying that the Ogieks were "trespassers".99 The lawyer further to the two judges that even a 1937 census report showed that the Ogieks lived in Tinet. Although this area was gazetted as a forest area, records tabled in court showed that the community lived inside the forest.

He further told the court that the eviction notice only talked about Ogieks and left the Kipsigis and Tugen communities who had settled there. The lawyer submitted that this amounted to discrimination.

"Why were the Kipsigis and Tugens not affected order", the lawyer asked.

But the government through Principal state Counsel Judy Mahadana said the Ogiek were trespassers in the Tinet forest and had been allocated land outside the forest that they refused to take.

100 Benson Wambugu, "Tinet is our land, say evicted Ogiek", The People, 30 July 1999.  

"But how can a community trespass in their ancestral land?", asked Ogiek lawyer in court. The forest have remained their livelihood. The Ogiek have no option but to stay in the forest so that they get their food and practice their culture. If they are moved out, they have nowhere to settle".100

As that happened the State kept on delaying the case and filing "fresh affidavits and evidence". On November, the state through its counsel, Judy Mahadana, submitted in court:

"The Ogieks rights to livelihood in the forest, if any, were extinguished by section 70 of the Native Trust Land ordinance".

101 Elijah Kinyanjui, "The day the Ogieks angered president", The People, 26 November 1999.   Behind the scenes, some politicians were trying to woo the Ogiek to drop the case. A Kenyan daily101 later reported how President Moi met a group of Ogiek elders at State House, Nakuru.

Among those who went to State House were Kipsang Kilel, a respected Ogiek elder, Joseph Towett the Ogiek Welfare Council leader, and Tinet ward councillor Charles Cheruiyot Rono who was also the chairman of the disbanded Ogiek settlement committee.

Rono is reported to have told Moi on the face that the list of Ogieks compiled by a District Officer named Arap Samoei was fake and that out of the 3,500 names in that list only 200 were genuine Ogieks. Moi got angry about those allegations and became all the more furious when Towett stood to up and supported Rono.

The paper reported that Moi stood up and asked:

"Who went to accuse me in Court? You know this (case) is causing me great pain".

The president then asked the group to wait for a few minutes and he came back holding a bundle of papers. He then led the list of 10 Ogieks who had filed the case against the state. When he came across the name of Kipsang Kilel, the Ogiek senior elder, he turned to him and asked:

"Even you took me to court".

To which Kiplel replied:

"Mzee, we were just taking precautions against losing our land. We were also buying time through the injunction to reach you to assist us. You know Mzee, if someone approaches you while armed with a panga, the automatic reflex is to lift your hand to protect your head, although one is well aware that the panga can cut the hand".

Moi is reported to have laughed and said:

"Let the matter go on. I have no worry because I am also that court".

102 "Ogieks rejected land, Court told", Daily Nation, 10 December 1999.  

As the saga continued in court, the State further submitted the Ogieks were given land at the Kipsigis Native Reserve but abandoned it.102 The State told the court that the Ogiek moved back to the forest and this resulted to the 1956 eviction. The state counsel said that any rights the Ogiek had in the Kipsigis Native Reserve were voided by adjudication.

"Other Kenyans took advantage of the Ogieks failure to participate in the land redistribution after independence and registered themselves as Ogieks for purposes of acquiring the Kipsigis Trust Land", the state submitted.

It now appears that the Ogiek were set to lose yet another land as new groups attempted to register as Ogieks for the second time. The elders took some human rights activists into the forest to see the continued destruction of the Ogiek habitats. On December 15 an Ogiek leader, Ezekiel Kesendany, was arrested and questioned for over six hours by the local security committee on allegations that he took foreigners to tresspass on Tinet Forest.

103 Elijah Kinyanjui, "Moi men grab Ogiek forest", The People, 18 December 1999.

 

As the case dragged on in court Ogiek elders revealed that the State was intimidating them to drop the court case. They also claimed that well-connected Kalenjin tribesmen were continuing to grab the forest.103 It was during this press conference that they named Kipkoech Birir, a manager at the Moi-owned Kiptagich Tea Estate, as the man leading the onslaught on Ogiek land.

The local ruling party official David Sitienei told a local daily that it was "ironical that the State was very keen to evict the Ogiek on grounds that Tinet is a gazetted forest, conservation and water catchment area yet politically-correct people were busy alienating the land from Kiptagich side".

104 See Elijah Kinyanjui, "The day the Ogieks angered president", The People, 26 November 1999.

 

105 Kimutai Ng'eno, "Ogieks plea over Mau Forest", The People, 19 March 2000.

  After the press conference two Ogiek leaders were forced to go into hiding after the provincial administration sought them to explain why the took "foreigners" to Tinet forest. The two, Ezekiel Kesendany and Joseph Rorogu, were also being accused of "leaking sensitive information regarding the meeting between Moi and Ogiek leaders".104 In early March 2000 they made a new plea asking the government to intervene since members of the Kalenjin community were "cutting down and burning their ancestral forest".105 Nothing happened.

106 "Ogiek face eviction as their case is dismissed", Daily Nation, 24 March 2000.

 

Four days later the High Court in Nairobi ruled on their case and approved the eviction of the Ogiek from Mau forests.106

"The eviction is for the purposes of saving the whole Kenya from a possible environmental disaster and it is being carried out for the common good within statutory powers", said the two judges, Samuel Oguk and Richard Kuloba.

The judges went further and twisted the knife:

"There is no reason why the Ogiek should be the only favoured community to own and exploit our natural resources, a privilege not enjoyed or extended by other Kenyans".

Even without visiting the forest to ascertain what was going on, the judges agreed with the government that the disputed forest is a prime area reserved for the benefit of the public. Under the gazetted law, hunting is outlawed in the forest, unless under a special license. It also prohibits the collection of honey. What this means is that the Ogieks could not practice their cultural activities without breaking the law.

The judges went as far as abusing the Ogiek:

"These people do not think much about the law, especially the Forest act, ...there is no reason why the Ogieks should be the only community to own and exploit a means of livelihood preserved and protected for all Kenyans...the Ogieks can live anywhere in Kenya subject to the laws of the country. The eviction is for the common good for all Kenyans".

The outcome of the Ogiek case was retrogressive. Although Ogiek lawyers submitted that the right to life of the Ogiek was under threat following the eviction order the judges said:

"The real threat to life is not eviction of the Ogieks, but the negative imminent effects of ecological mismanagement in the forest. The Ogieks can still obtain their livelihood from the forest, without inhabiting it. Their right to life would still remain intact".

The Kenyan court thus failed to guarantee the Ogiek their right to the Tinet forest habitats. It failed to be more creative in defending and implementing the rights of the minority.

"It is unfortunate that today the judiciary has not yet come to terms with or even understood the constitutional protection of minorities", says Mugambi Kiai of Kenya Human Rights Commission.

The court also failed to dwell on the submission that the motive behind the eviction was to give out the land to individuals close to the power rather than save the forest which had been intact even with the Ogieks inside it.

"There is a political interference. But we are powerless because we have no strong politicians to defend us", says Philip Kosge, a member of the Ogiek community. MORE>>

TABLE OF CONTENTS

Acknowledgments
Introduction

Ch. 1: Ogiek: History of a Forgotten Tribe
Ch. 2:
The Struggle Begins, The Struggle Continues
Ch. 3:
The Closed Society

Ch. 4:
Wanton Destruction
Ch. 5:
Promises and More Promises
Ch. 6:
Threats and Lies
Ch. 7
: The Court Battle
Ch. 8:
The Aftermath

Appendix
Pt. 1:
The Ogiek Community Submission before the Njonjo Land Commission
Pt. 2: Epilogue
Pt. 3: Conclusions
Pt. 4: Recommendations

Annex 1: Declarations on the Rights of Persons Belonging to National or Ethnic, Religious and Linguistic Minorities
Annex 2
: The African Charter on Human and Peoples Rights
Annex 3:
Legal Instruments that Govern Land in Kenya

The Ogiek: The Ongoing Destruction of a Minority Tribe in Kenya Copyright © 2000 Rights News and Features Service. Citations on this document may be made freely but copyright is vested in Rights News and Features Service. Unless otherwise stated all the views expressed here are those of the authors and are endorsed by Rights News and Features Service, which is responsible for the content in this publication. First published in Nairobi by Rights News and Features Service, First Floor, College House, University Way, P.O. Box 63828, Nairobi, Kenya. Phone: +(254-2) 311724. E-mail: rightsfeatures@alphanet.co.ke. Copies of the report may be ordered from Rights News and Features Service.

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