Monthly Archives: January 2014

The Rights Of The Indigenous And Other People Threatened With Eviction From Embobut Forest:

The Kenyan Government has been engaged in persistent attempts to evict the indigenous people from their ancestral lands in Embobut forest and other people (including Marakwet families displaced by landslides and by insecurity along Kerio valley) from Embobut Forest in the Cherangany Hills.
These attempts to evict people have included burning homes and possessions as recently as May 2013 despite an interim injunction secured in the High Court against any such action. (The interim injunction was served on those same authorities on 2nd April 2013 and it is still in force until 6th of February 2014 when the case will come for mention at Eldoret – Land and Environmental Court).
The most recent attempt to move people from Embobut Forest took place when the President, Deputy President and Senator Kipchumba Murkomen, visited Embobut on November 15th 2013 and the President promised 400,000 Kenyan shillings per family to what he called the ‘Evictees’ to move out of the forest. On 12th December 2013, the Elgeyo Marakwet County Commissioner, Mr. Arthur Osiya, said that “The Evictees were given the cash and have no reason to continue staying in the forest. By January 3rd 2014, we expect all squatters out of that forest” – Saturday Nation, December 14, 2013 (page 22). The 1.1 billion Kenyan shillings were promised by the President to 2,784 families to enable them to buy land to relocate themselves to places outside the forest. 400,000 Kenyan shillings would buy the equivalent of 4 cows or one acre of land in Trans Nzoia District. It is therefore both completely inadequate for enabling families to secure their livelihoods, but more importantly people were not consulted but simply told this was happening. There has been no attempt to secure peoples free prior and informed consent to such a process, and most crucially, financial compensation may be an appropriate way of helping landslide victims and victims of electoral violence (who would not be in Embobut Forest if it wasn’t for those events) restart their lives, but it is completely wrong to seek to evict the indigenous people from their ancestral lands in the high forests of Embobut, an eviction which would remove them from the forest on which they depend for their cultural, social and physical existence.
Representations made to communities by Government, in relation to this last attempt to move them, have been far from consistent. Statements from an authoritative government figure have advised the indigenous people and other communities that they can accept the President’s money and still stay on the land where they are living. This implies that, for the indigenous communities at least, the money being given was compensation for past sufferings (e.g. for being forcefully moved from the forest to the glades, for the repeated year on year burning of their homes by the Kenya Forest Service, etc.) and is not compensation for their resettlement out of the Cherangany Hills altogether.
Community members who are relying on this statement have a legitimate expectation that they can stay. Forced eviction in such circumstances is all the more unfair, oppressive and unlawful.

The fact that the indigenous people, who have firm rights to their ancestral lands under the 2010 Constitution, are described as ‘Evictees’ or ‘Squatters’ (and so are lumped together with people who may well be living on indigenous lands as a result of being evicted from elsewhere, and who may need very different solutions to their plight including through funding to restart their lives elsewhere) highlights the discrimination they experience. These are symptoms of Kenya’s continued failure to respect and protect the indigenous rights to own, use and control their lands, territory and natural resources.
We call on the Kenyan authorities to recognize indigenous rights to their ancestral lands in line with the 2010 Constitution, to desist from burning homes and evicting families from Embobut Forest, and to not pursue an approach which seeks to give the Sengwer no choice but to accept 400,000 Kenyan Shillings per family in order to leave their homes. Instead, we ask the Kenyan authorities to carry out widespread consultations with the Sengwer and other inhabitants of Embobut Forest. Through a process of Free, Prior and Informed Consent such as that outlined below, they can find the best way to recognize Sengwer rights to their land in line with the 2010 Constitution, and also in line with current conservation best practice which recognizes ancestral communities as those best placed to secure their forest lands from encroachment and destruction, as long as they themselves have their long term rights to their lands recognized and secured.

History of the Indigenous Peoples and Other Communities in Embobut:

From research carried out by the Forest Peoples Programme in 2013, it would appear that none of the different people inhabiting Embobut Forest in the Cherangany Hills are actively seeking the displacement of others.However, the key distinction in terms of arriving at a solution to the current crisis – is that some would prefer to move if they are offered land and security elsewhere and others such as the Sengwer insist on their right to stay being recognized, even if that involves restrictions on their economic activities to protect the forest.
Some communities in Embobut Forest have arrived more recently (including those who were landslide victims,and victims of cattle rustling and or insecurity along Kerio Valley), and others are internal migrants from neighbouring groups (such as the Marakwet) who appear to have moved into the area mostly for economic reasons such as to clear land to grow potatoes to sell. The Sengwer, who have traditionally lived in the forest,were forced out of the forest to live in glades – natural clearings in the forest – by the Kenya Forest Service.
One cultural difference between the Sengwer and those other groups is that the Sengwer are a traditionally hunter-gatherer people who occupied and practiced those livelihoods both in the highlands, forests and lower slopes of the Cherangany Hills area. Gathering of forest honey is an important Sengwer livelihood activity.Their ancestors are buried in the forest, and they have sacred sites there – their traditional connection to the Cherangany forest appears to be profound and all-encompassing. A related point is that the Sengwer would like the Government of Kenya to appreciate that their traditional hunter–gatherer culture and livelihood is perfectly compatible with forest protection, which Sengwer would also like to see protected and preserved. This is one practical reason (as well as the legal ancestral land claim) why they say they should not be evicted, when the Government’s declared reason for their eviction is forest protection.
Although these Sengwer former hunter-gatherer indigenous forest people are sometimes referred to as the Cherangany indigenous people, this should not be confused with the wider population of the Cherangany Hills which includes a range of different groups, including the locally dominant Marakwet and Pokot. The Marakwet and Pokot traditional livelihood and cultural patterns are more strongly agricultural or pastoralist, however those who reside in Embobut forest can clearly claim the right to stay if they choose to do so, and if they have already, or choose to, establish livelihood and cultural patterns that protect the forest.

History of the Sengwer People
The Sengwer indigenous people are a traditionally hunter-gatherer forest people, whose ancestral lands are located in and around the forests of the Cherangany Hills, in the Rift Valley in western Kenya. Their current predicament arises from continued discrimination and marginalization, in particular from the appropriation of their ancestral lands without regard for their customary ownership rights. The Sengwer were initially forcibly displaced from the lower reaches of their territories (considered as richer lands for agricultural purposes) by the British colonial administration, but were permitted to occupy the less agriculturally fertile highland forest and moorland areas of the Cherangany Hills. These forest highland areas – initially held by the County Council as Trust Lands – were subsequently gazetted by the Government of Kenya as a national forest reserve in 1964. Forest legislation in Kenya – consistent with the increasingly out-dated ‘fortress conservation’ approach that excludes communities from living in protected areas – effectively outlawed Sengwer occupation of their ancestral lands.

Since the 1970s and throughout the past decade, the Kenya Forest Service (KFS) has repeatedly attempted to forcibly evict the Sengwer, including by regularly burning their houses, food and other possessions (e.g. in 2007, 2008, 2009, 2010, 2011, 2013). The Forests Act 2005 prohibits from state forests (without license) the activities of occupying forest reserves, or erecting buildings or enclosures, cultivating, grazing, collecting honey or keeping bees, cutting and taking wood and other forest produce, and hunting in forest reserves.3 In recent years the Government of Kenya, variously through Inter-Ministerial Taskforces, the Ministry of State for Special Programmes (MSSP), KFS, and in cooperation with World Bank representatives overseeing implementation of a Natural Resources Management (NRM) Project in the Cherangany Hills, have been seeking the resettlement of Embobut Sengwer on alternative lands including in Rongai, Kipkapus and Moiben.
This cycle of harassment and eviction and the constant threat to leave their lands and resources or be forcibly resettled, continues at present – as does the associated harm caused to health (including psychological trauma), children’s education, livelihoods and culture.
Sengwer homes in Embobut Forest were burnt by KFS as recently, This took place despite a court injunction dated 26 March 2013 prohibiting such actions in Embobut Forest, a court injunction served on the relevant authorities on April 2nd 2013.6 This blatant disregard for decisions of its own court that have been made in defence of the rights protected under its own constitution, demonstrates the government’s disregard for the rights of victims of discrimination to remedy and equal protection from the law.7 Some Sengwer have been displaced from their forest lands altogether and make do on what land they can use or acquire nearby, but many Sengwer communities including those in the Embobut forest area of the Cherangany Hills’ forest reserves (Embobut Forest) have continued their occupation and maintain a close connection to their ancestral lands and forests. The situation of the Sengwer indigenous people, and the situation for many other current inhabitants of Embobut Forest, is urgent.

Why the Sengwer should be permitted to remain on their ancestral lands:
While the solution proposed seeks to address the needs of all current inhabitants of Embobut Forest, and the need to protect the forest itself, this section highlights the predicament of the Sengwer indigenous people for whom the forest is their ancestral home. At no stage have the Sengwer of Embobut been meaningfully consulted in relation to resettlement, and nor has their free, prior and informed consent been sought and obtained.

There has been no reasonable benefit offered, nor has there been a remotely adequate offer of alternative land and compensation if they were to consent to resettlement. To the contrary, the Sengwer of Embobut wish to remain on their land, obtain de jure title to that land and reparation for the harm experienced to date from forced eviction and harassment. The Sengwer also want to come to an enduring and amicable settlement with the Government of Kenya on ways that this can be achieved while also conserving the forest environment and ensuring environmental services (notably for water) for the benefit of all Kenyans.

Recognizing that hunter gatherer and pastoralist livelihoods have been practiced perfectly sustainably and the increasing evidence that community with secure rights over their land and resources are the better guardians of local ecosystems; the time is ripe for Kenya to shift to a new conservation paradigm based on recognizing land and resource rights of indigenous peoples. This is increasingly being recognized via international conservation policy initiatives, and by conservation organizations themselves such as the International Union for Nature Conservation (IUCN), for example under the auspices of the IUCN’s ‘Whakatane Mechanism’. The Whakatane mechanism was successfully piloted with the Ogiek of Mt. Elgon in 2011, but the valuable lessons learned from that process have not been translated into the draft Wildlife Bill and Policy.
Key to solving the problem is to recognize two critical shifts that have happened:
(a) At the national level – the new Constitution recognizes the rights of former hunter-gatherers such as the Sengwer to their community lands,
(b) At the international level – the ‘New Conservation Paradigm’ recognizes that conservation of forests and wildlife can only succeed if those who have sustainably used those resources for centuries are supported to continue that protection.

Given the realities on the ground in places such as Embobut, it is crucial to act in accordance with these shifts in the constitution and in conservation, even before the review of the Forest Act and the new Community Land Bill hopefully ensure that legislation reflects these realities.
Current legislation that criminalizes the presence of such people as the Sengwer in their forest lands should not take precedence over the constitution, and nor should the old exclusionary ‘Fortress Conservation’ approach take precedence over the proven success of community forest conservation (NB this is not the same as the Community Forest Association system13, it is not a system based on being compensated through alternative livelihood schemes for being excluded from the forest, but is instead a system based on making sustainable and respectful use of the forest – including, where culturally appropriate, continuing to inhabit the forest – based on establishing and adhering to community bylaws).

There are three key problems in Solving any one of them without solving the others will only lead to far greater problems over the next few years:
(a) The forests need to be protected – both to protect water supply to communities downstream, and to maintain indigenous forest for biodiversity and climate reasons
(b) People such as landslide victims and victims of electoral violence who have nowhere else to go need to be given land elsewhere to reduce the pressure on the forest and to ensure their human rights to a secure home and a future for their children
(c) The indigenous people need their right to remain on their ancestral lands to be recognized in accordance with the new constitution and modern conservation, and need the authorities to stop burning their homes; they also need to act responsibly in relation to the forest.

Solving any one of these problems in isolation will simply cause a far deeper problem that will explode within a few years. For example:
(a)Simply maintaining the exclusion of the indigenous from their forest resources and burning their homes means international attention will focus on this refusal to comply with the human rights requirements of the new constitution and modern conservation
(b)Simply degazetting the forest for everyone’s use will destroy this crucial resource,likewise simply resettling everyone against their will, will trigger huge conflicts and human rights legislation
(c)Simply allowing the Sengwer to remain without enforceable restrictions on their activities could likewise see the forest and glades destroyed, and allowing only the Sengwer to remain could be interpreted as discriminatory against others.

The solution proposed here is very simple, and is based on solid research and dialogue with the communities concerned and with similarly placed communities in the same region16. The key is to: (i) recognize the right to remain of those willing to continue living in a way which protects the forests and glades17, and (ii) resettle those who do not want to live in this way.

In practice this would mean that: (i) those willing to abide by the Sengwer sustainability bylaws (bylaws which the Sengwer community is in the process of finalizing) would have the right to remain; (ii) Those that refuse to abide by these bylaws would be supported to be resettled elsewhere.

The bylaws recently established by the Ogiek of Mt Elgon are completely consistent with the new constitution, are being presented to the County Government for approval, impose strict Conditions on the Ogiek and any other users of the forest, and have already led to the Ogiek enabling the Kenya Forest Service to arrest illegal charcoal burners and to review whether the Shamba system at Mt Elgon is encouraging the regeneration of the forest or is accelerating its destruction. Similarly the Sengwer bylaws can ensure that commercial cultivation of the glades, the cutting of indigenous trees, encroachment into the thick forest, charcoal burning and other unsustainable practices are halted with the full backing of, and enforcement by, the Sengwer themselves and by any other peoples currently living in Embobut who agree to abide by such community sustainability bylaws.

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Posted by on January 30, 2014 in INDIGENOUS COMMUNITIES


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The Case of the Somali and Borana
The whole of the northern Kenya region has gone through a long history of ‘antagonism’ with the Kenyan government. The antagonism started during the Shifta secessionist war of the 1960s. Long after the end of the Shifta war, the government still holds the people of this area with great suspicion. In several occasions the government has sanctioned massive violence and rights abuse on the people of the region. The climax of these abuses were seen in the many massacres including the Bulla Kartasi massacre, the Wagalla massacre, Malka Meri massacre and Bagalla massacre, where the government allegedly indiscriminately killed thousands of people on suspicion of being bandits. The aftermath of these massacres remains to date and many people remain traumatized.

Conflict in the region
Conflict in the whole of the Northern Kenya is centered on competition for water and pasture. This competition is exacerbated not only by drought, but also by the state’s behavior, which alternates among neglect, a weak government presence, and intense security operations to make up for historical shortcomings. Between 1992 and 1994, two other factors contributed to a worsening of the situation: the collapse of the Somalia government in 1990, which led to a proliferation of arms through the already porous borders; and the fluidity of the Kenyan transition from authoritarian rule to competitive electoral politics between 1991 and 1992.

According to a United Nations Development Programme (UNDP) report 1996, while Borana and Liban zones in Ethiopia are prone to drought, adjacent areas in neighbouring Kenya and Somalia are even more likely to suffer from water scarcity. During times of complete failure of rainy seasons in northern Kenya and south-west Somalia, there are often apparent influxes of pastoralists from those countries into Ethiopia and vice versa searching for water and pasture. These situations lead to conditions where local people and ‘guests’, often related by trans-border kinship and sharing common languages and cultures, have to compete for the use of the few perennial water resources.

Customary Law and Conflict Resolution in Northern Kenya
The difference among societies is not whether conflict exists, it is how conflict is managed: whether conflict is managed in ways that lead to violence or in ways that open opportunities for innovation and positive change. In fact, the process of development almost invariably leads to conflict, as resources are reallocated according to new priorities and relations between social, ethnic or religious groups are altered.

In early 2005, the UN supported the government and civil society in developing and launching a programme on ‘Strengthening National Capacities for Conflict Prevention and Conflict Transformation in Kenya’. This programme focuses on building the capacities of provincial and local officials working with civil society to anticipate and respond to potentially violent conflicts.

The Kenyan government has responded positively to this support. The Office of the President has established the National Steering Committee on Peace-building and Conflict Management (NSC) comprising representatives from government, civil society, UNDP, and donors. In select districts in the more violence-prone areas, ‘peace and development committees’, consisting of local leaders, have been formed with the support of the UN and other partners. These committees assist the provincial administration in managing conflicts. Currently, the UN is supporting the members of the NSC with the drafting of a national policy on conflict management.

Hybrid local dispute resolution
some parts of the country where state presence is minimal, traditional systems are permitted by default to exist side by side with a state run justice system in order to reduce transaction costs. Kenya permitted the intermediation of customary law in redressing matters of a personal nature notably marriage and succession while criminal matters remained the negotiable jurisdiction of formal legal systems. The considered reason for this side by side ( dual) system of laws was that colonial laws were at great variance from the norms of communities that their blind adoption and replication would lead to a deeper confusion and collusion between the communities and the law enforcing agencies in the Customary law’s intervention is seen as addressing an area where ordinary criminal and civil sanctions have failed. They become particularly relevant in the North where belonging to groups is still a salient reality. The problem of this system has however been the inability of the statutes being unable to create space for redressing matters of a collective nature.

The Wajir Peace Model
In June 1993, some women drawn from the small well-educated and business elites in Wajir town were attending a wedding and began discussing how to arrest the violence that immobilized the district. The impetus was the realization that there were no winners in the two-year, low-intensity, but costly, clash between clans.
These women, drawn from different clans, agreed to work toward peace and formed a committee called Women for Peace to coordinate their efforts. Their initial activities included door-to-door canvassing for peace. They also facilitated a resolution by civil servants from various clans who, in continuing to work closely at their places of employment, contradicted the pervasive climate of inter-clan rivalry. These youthful (mostly male) civil servants came together to commit to peace and to working together as the Youth for Peace. The two initial groups—Women for Peace and Youth for Peace—formed the Wajir Peace Group (WPG). They later attracted the men and elders to what culminated to the Al-Fatah elders for peace this community realized they needed to wheel in government so as to rid away with the brutality of the government actions, grew to include the Government under the stewardship of the area D.C.

While the Women for Peace, Youth for Peace, and the Al Fatah elders work independently as separate entities, they are integral parts of the Wajir Peace and Development Committee. The WPDC, in turn, sits as part of the District Development Committee and the District Security Committee, both chaired by the District Commissioner. This gives the WPDC, which is a mix between a community-based organization (CBO) and a consortium of several government and NGO service units, a rather unique profile.
Eventually, ‘Peace and Development Committees’ (PDC’s) were established across the arid lands. They were created through bottom-up selection processes at the location, division and district levels. In some areas these initiatives were motivated by local communities, while in others – following successful examples – they were rather driven by external donors and NGOs.

The Wajir Peace Network has assisted neighbouring clans develop similar models to handle any uprisings of violence in the neighbouring communities. A classic example is the peace negotiated under the guardianship of the WPN in neighbouring Garissa between the warring Abudwak and Awlihan clans in 2000 and also between the Garre and Ajuran clans in Wajir North.

The Oromo-Boran Gaada system of Conflict Resolution
The Gaada system is an old institution developed for guiding the social, political, economic and religious life of the Oromo people in Ethiopia and Kenya (sic) and for managing resources such as water, as well as its contribution in conflict resolution among individuals and communities.
The traditional mechanisms of resolving conflicts and managing natural resources (i.e. water, land and forests) in the Borana zone is derived from the Oromo institutions of gadaa, Oromo institutions of aadaa (custom or tradition), seera (Boran laws), and safuu (or the Oromo concept of Ethics) and heera (justice) and the associated cultural administrative structure. Gadaa is a system of social organization based on age-grade classes of the male population that succeed each other every set number of years in assuming economic, political, military and social responsibilities. Every Oromo man of specific age-grade is expected to perform a certain function according to specified rules and regulations. The grades are also periods of initiation and training as well as periods of work and performance.
The roles and rules attached to the age grade system are the most important elements that regulate the gadaa system. According to gadaa, those people who have entered the Luba grade (individuals in the expected age range of 40–48) are considered to be elders. Therefore, the lubas (elders) settle disputes among groups and individuals and apply the laws dealing with the distribution of resources, criminal fines and punishment, protection of property.

In conclusion, the use of traditional dispute resolution systems has been very alive and so in the Northern Kenya. These institutions form rules and regulations that determine the access and the rights that a group has to natural resources. These institutions are supported by networks of kin, and institutionalized in meetings and rituals. Natural resource access is governed by the combination of these different institutions, which are also conflict-resolution institutions.

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Posted by on January 24, 2014 in News briefs



600 Forest Squatters Yet To Receive Cash For Land

At least 600 Embobut forest squatters listed as beneficiaries of Sh1.1 billion that was disbursed by the government have not received their cash to buy alternative land.
They face eviction from the water tower. Some 2,874 people were to benefit from the funds whose disbursement was presided over by President Uhuru Kenyatta and his deputy William Ruto in the forest three months ago. A number of them have not opened bank accounts. Kenya Commercial Bank said the beneficiaries were asked to open accounts to access Sh400, 000 each, but so far 200 people have not yet approached the institution.
It is either the individuals are not aware that they appear on the final list, which was dogged by controversy, or they lack transport from the forest to Kapsowar town, where the bank’s nearest branch is located.
Elgeyo-Marakwet county commissioner Arthur Osiya, who is in charge of the reclamation of the Embobut water tower, yesterday said the 200 individuals had not visited the bank. “The final and approved list of 2,874 beneficiaries was given out to the public and it was publicized extensively across the area but to our surprise 200 of these people has not visited the bank so that they can use the money to buy alternative land to settle. Mind you they are now facing eviction,” he said.
The county commissioner told the Nation that 400 other beneficiaries had not been paid due to some technical problems. He said they failed to access their money at the bank because of errors regarding their names and national identity card numbers.
At the same time, an Eldoret court has ordered the suspension of the evictions of squatters from Embobut forest. Mr Justice Sila Munyao issued the order after three petitioners moved to court on Saturday saying the evictions contravened the rights of the Embobut forest dwellers.
Earlier, the Sengwer community had moved to court saying the matter should be referred to the National Land Commission, which is tasked with addressing historical land injustices in the country.
Last year, Mr Justice Fred Ochieng ordered the Kenya Forest Service to stop interfering with the petitioners’ occupation of the water tower as there was a pending case in court.

Source daily nation 21/01/2014

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Posted by on January 21, 2014 in News briefs



How Turkana pastoralist leaders paid for protests:

Turkana leaders actively participated in organizing recent protests against Tullow oil, The Standard has learnt. Investigations reveal that a day prior to the demonstrations that rocked the oil fields of Turkana and led to the suspension of exploration activities, some leaders from the county paid residents of Lokichar and Lokori to protest against the British oil company. Residents from the two areas said they were paid to participate in the demonstrations. “We were given Sh100 each and promised a similar balance. However, we did not receive the remaining amount. I took part in the protests because I was paid,” said Josephine Loperot. Ewosit Ekai, a resident of Lokichar, said he took part in the demonstrations because of money. “At first we were promised some good money. This later changed to Sh100. The leaders used us to hit Tullow,” said Ekai.

There have been allegations of leaders having vested interests, key among them pushing for business deals. Residents of villages around Ngamia I, the main oil field, said they were not involved in the protests. The demonstrations held in October last year were led by MPs James Lomenen (Turkana South) and Nicholas Ng’ikor (Turkana East). The leaders marched to the oil fields to protest alleged discrimination in employment, tenders and transport contracts by Tullow Oil Company. The protests prompted immediate suspension of oil drilling in blocks 10BB and 13T for fear of employees’ safety. Tullow had struck oil in Ngamia 1, Etuko, Twiga 1, Ekale 1, Wildcat and South Well wells.

Ekwam Philip, a resident, noted that the demonstrations did not achieve much, but helped to create a security scare and disrupt residents’ livelihoods. “The protesters were self-seekers. They did not represent us at all; our concerns were not even captured in their protests,” observed Ekwam. However, in defense of the demonstration that led to unease in the region, MP Lomenen said constitutionally the demonstrations were legal and pressure from his constituents forced him to act. “I invite any investigations into whether I have vested interests. My interests are those of the community. Even so, Tullow is a private company and anyone in the community could have an interest in its affairs without it being perceived to be a conflict of interest,” said the MP, who did not comment on claims of leaders paying residents to take part in the protests. Graze cows though they were not part of the demonstrations, some residents said they are not happy with Tullow Oil and its operations.

“We do not understand how they came here. They hoodwinked us with a few water tanks, which have run dry,” said a resident. Others said grazing land has diminished as oil explorations take centre stage. “We cannot graze our cows freely anymore. There are cars all over. You have to be cautious lest your animals get hit by vehicles,” said Ekai. Turkana Governor Josephat Nanok noted oil exploration activities in the region should not be interrupted since they are of economic benefit to the county and country. “We are blessed with oil and other resources, which should be tapped to uplift the community,” he told a leaders’ forum

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Posted by on January 21, 2014 in News briefs