First published on 06/05/2014, and last updated on 03/05/2018
Justin Kenrick, Forest Peoples Programme (Member)
Ogiek traditional lands at Mt Elgon are overlaid today by three forest reserves and one national park. Despite decades of being evicted form their ancestral lands, including most recently the Chepkitale moorland, in the name of ‘conservation’, the Ogiek have always returned to Chepkitale and recently the 5,000 or so Ogiek households there have taken matters in their own hands. They have drawn up rules they have all agreed to concerning protection of the forests and wildlife. They are setting out to demonstrate that they are the key conservators of the forests: when they are evicted the elephants are under threat from poachers who have free reign, and when they are restricted from governing their lands then the indigenous forest is fast destroyed
As a result of an intense community process of mapping and dialogue, the Ogiek of Mount Elgon, Kenya, have finalised their bylaws in a document that opens with these words:
“The Ogiek have lived in their ancestral lands, Chepkitale, governed and bound by their traditions being the unwritten law. This is what is captured in this document in the simplest language possible. This is a product of the community, by the community. It has been written with all input coming from the community and agreed on and endorsed by the community. It brings a governance structure relevant to the community today as it has been for centuries.”
The process has involved much passionate debate. In a sense, the Ogiek are simply writing down how they have organised themselves and how they have managed their forest and moorlands since time immemorial, but as one community member pointed out: “When you write things to say this is what we should do then you get community members who disagree and you have to decide what to do“.
At a huge validation meeting in Laboot in April 2013, the following bylaws were adopted but only after major debate:
Restricting the numbers of goats so that they don’t reduce the flowers, vegetation and forests on which the bees depend (the Ogiek culture and economy is based on milk and honey);
Banning the brewing of alcohol;
Restricting cultivation to just small subsistence family gardens.
Finally the Laboot Declaration of 8 July 2013 included the following key points:
The written community’s bylaws form the customary laws of the Ogiek community of Chepkitale and are binding to each and every member of the community
Charcoal burning is totally prohibited
Illegal brews are burned
Poaching is strictly prohibited
Commercial farming is prohibited
The community’s governing council is installed
The struggles to reclaim all our territories continues
The immediate next step has been to inform the various authorities of the bylaws that are governing their lands, and to seek their support for the Ogiek implementing them. The District Commissioner applauded the community for being stronger on conservation matters than any authority. The Ogiek explained to the Kenya Forest Service (KFS) that they were determined to stop the charcoal burning that is destroying the indigenous forests despite those forests being in an area KFS is supposed to control. KFS has always objected to the Ogiek remaining on their ancestral lands since it was gazetted (without their consent), but following the Ogiek’s community scouts arresting charcoal burners and handing them over to KFS, KFS itself has started arresting charcoal burners too. The Ogiek community scouts started by arresting the most threatening charcoal burners which “meant our community members now don’t fear speaking out.”
Although the Ogiek at Chepkitale, Mt Elgon, were removed from Chepkitale without their consent in 2000, they clearly have the right to their ancestral lands under Kenya’s 2010 Constitution. The Ogiek have themselves been very involved in influencing Kenya’s draft Community Land Bill that should recognise this right in law. However, the overriding approach to conservation in Kenya is still one that forbids human occupation of areas gazetted as national parks and forest reserves. The Ogiek were forced out of the forest areas of Mt Elgon by the British, and restricted to the Chepkitale moorland that the British saw as useless and categorised as an untitled ‘Tribal reserve’ in 1938 (becoming a ‘Trust land’ in 1942). The Ogiek were then evicted from Mount Elgon National Park when it was created in 1968 on the eastern slopes of Mt Elgon. Chepkitale itself was held as Trust land by Mt Elgon County Council until it asked the Government to gazette the land in 2000, making the Ogiek living there ‘illegal trespassers’.
Woman participants at the Ogiek’s customary bylaws meeting (Courtesy: Justin Kenrick)
Despite being violently and forcefully evicted from Chepkitale many times, the latest being in 2006, the Ogiek continually returned. In early 2011 – when eviction was again being threatened – Forest Page 12
Peoples Programme began working with the Ogiek organisation Chepkitale Indigenous Peoples’ Development Project (CIPDP), and the International Union for Conservation of Nature (IUCN) to pilot the Whakatane Mechanism, an IUCN initiativeto address just such situations of injustice towards communities by conservation.
In late 2011, the world’s first Whakatane Assessment took place at Mt Elgon – bringing conservation bodies and local government to see for themselves that the Ogiek’s presence helps protect rather than threaten the wildlife and forests. The Assessment also kick-started a dialogue between the community and Mt Elgon County Council, which finally led to a unanimous resolution being passed by the Council acknowledging that they had been wrong to ask for the gazettement of Chepkitale, and asking for the Government to revoke the gazettement.
Due to the relentless work of CIPDP, there has subsequently been a change of attitude by many players. No longer are cars blocked from transporting ill people to hospital, no longer are schools and clinics burnt to the ground. Instead the government is half funding the new Ogiek primary schools that have sprung up, and voting booths arrived for the 2013 elections, after which the new County Governor came and visited the community and applauded their work.
However, forest peoples in Kenya are confronting a critical moment. Since the start of 2014, thousands of Sengwer have been illegally and forcefully evicted from their forests at Embobut in the nearby Cherangany Hills, their homes torched. This despite an interim injunction secured in the High Court in Eldoret on March 26th 2013, which is still in force. (For more background on this situation please see this lead article in the February 2014 FPP e-news). According to the national press, the Kenya Forestry Service has indicated that the eviction of the Sengwer is the first stage of evicting all persons from Forest Reserves, irrespective of their reasons for being there. Although evictions have happened for decades, there is a ratcheting up of the intensity of such processes as the community rights embodied in the new Constitution comes up against the old approach that pits environmental needs against those of communities and in the process removes the real guardians from the forest, leaving them open to corrupt and intrusive forces.
So, ultimately, unless the Government degazettes their land, the Ogiek live in real fear of eviction. However, they have hope (based on hard work) that the Government will recognise the sense in avoiding forceful and illegal evictions, and the sense in avoiding a long battle in the courts which – according to the new constitution – the Government can only lose, and instead choose to work hand in hand with the community to demonstrate that human rights-based conservation is the new way of explaining an age old system which recognises that if you look after the land then it will look after you. As one community member put it:
“We have never conserved. It is the way we live that conserves. These customary bylaws we have had forever, but we have not written them down until now.”
