When Kenya promulgated the new constitution in 2010, there was optimism of breaking with the disorder and impunity of the past and joining the community of law abiding nations. But based on recent developments it is cause for worry when those charged with the responsibility of defending the constitution and the people of Kenya tend to flout this oath that binds them with the citizenry and the supreme law.
The case of the Sengwer is one such incident. This is a minority community with a population of a paltry 33,187 according to the 2009 national census. The Sengwer have inhabited the Cherangany hills for centuries and the nature of their livelihood systems is such that their daily existence is fundamentally linked to land and natural resource use which are managed through intricate traditional decision making mechanisms.
Natural resources provide them with livelihoods, primary and supplementary sources of food, animal feed, medicine and shelter. And it is also upon land and natural resources that this community’s cultural and religious ceremonies and other practices thrive.
According to information available online, when plans were mooted to move the Sengwer from the Cherangany Hills, the community moved to court and in March 2013 the High Court in Eldoret issued interim orders forbidding the Kenya Forest Service and the police from carrying out the evictions. This injunction was renewed in November 2013. On 18 January 2014, the Eldoret High Court issued further orders requiring that the police arrest anyone breaching the high court orders.
According to the community, the police providing support to the Kenya Forest Service officers proceeded to ostensibly evict the community and burn their residences to the ground in clear breach of not only the court injunction but also Article 56 (a) of the Constitution read together with Article 10(2) (b) that underscore the principles of human dignity, social justice, human rights, non-discrimination and protection of the marginalized in all aspects.
According to the United Kingdom based Forest Peoples Programme, these evictions are motivated by a World Bank funding to the Government of Kenya’s Reducing Emissions from Deforestation and Forest Degradation (REDD) Program through the banks’ $68.5 million dollar Natural Resources Management Program, in the Cherangany Hills. REDD is a carbon offset mechanism that uses forests and land as sponges for developed country’s pollution.
According to the World Bank website, its policy on indigenous peoples aims to promote their development in a manner which ensures that the development process fosters full respect for the dignity, human rights, and uniqueness of indigenous peoples.
Globally, Indigenous Peoples are increasingly getting concerned about REDD since their experiences in the past have shown tendencies by governments and private companies to refuse to recognize their rights and interests in forest projects and programs. Indigenous peoples global discourse is rife with concerns that due to the huge amounts of money from the developed countries to the developing countries such as Kenya, there is expected increase in government sanctioned encroachment on indigenous peoples’ forests to cash in on the REDD largesse.
The Sengwer are basing their legal quest on Article 63 (d) of the Kenyan Constitution that recognizes the rights of communities to own ancestral lands traditionally occupied by hunter-gatherers. Additionally, National Land Commission whose mandate among others include conducting research related to land and the use of natural resources, and making recommendations to appropriate authorities appear glaringly lacking in the Embobut forest issue.
On 13 January 2014, the United Nations Special Rapporteur on the rights of indigenous peoples Professor James Anaya expressed concerns about the impending eviction of the Sengwer indigenous people from their homes in the Embobut Forest in the Cherangani hills and urged the government to ensure that the human rights of the Sengwer are fully respected, in strict compliance with international standards protecting the rights of indigenous peoples.
A foundational constitutional argument in support of the principle of consultative and inclusive approaches is that the more participatory a process, the more likely decisions will balance the range of economic, environmental and social considerations involved in a project and thereby lead to more socially and politically viable development of natural resources.
Indeed Article 10 read together with article 69(d) of the Constitution underscore the same principle by highlighting the importance of the participation of people, protection of marginalized lands and sustainable development as well as co-management of the environment.
In the 2009 ruling by the African Commission on Human and Peoples’ Rights (ACHPR) regarding the Endorois Case on their rights to Lake Bogoria and access to resources therein through communication 276/2003 to the government of Kenya, the ACHPR recommended a raft of measures to safeguard the rights and fundamental entitlements of the Endorois community in the spirit of Chapter five of the constitution with specific emphasis on article 63 that vests community land on communities identified on the basis of ethnic and cultural identity as well interest. This decision is yet to be implemented 4 years down the line and numerous communiqué’s by ACHPR have been sent to the government the latest being on 5 November 2013.
In Kenya’s last mid-term report under the Universal Periodic Review (UPR) in 2011 one of the recommendations from Bolivia was that Kenya ensures that public policies for combating poverty are in accordance with the rights recognized in the International Covenant on Economic, Social and Cultural Rights and that they are not negatively affected by commitments that might be undertaken in the context of trade and investment agreements.
It is therefore imperative that the government and its operatives as well as other regional and international actors recognize and respect the provisions of the Kenyan constitution in addition to other commitments by Kenya under international law as part of integrating the country within the community of nations where the rule of law and the rights of minorities are safeguarded and respected or else Kenya shall be viewed as a pariah state that is only preoccupied with the welfare of the politically powerful and the affluent.
Santeto Ole Tiampati