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.