Kenya

An Interview with Daniel Kobei of the Ogiek Peoples' Development Program

"If evictions continue, our communities will be gone. They will simply be relegated to history."

"If evictions continue, our communities will be gone. They will simply be relegated to history."

On June 27, 2020 a heavy contingent of security officers from the Kenya Forestry Service (KFS) started an operation to flash out grazers at the Logoman Forest station, one of the blocks in the Eastern section of the Mau Forest Complex in Kenya.

One of the major water catchment areas of the country, the Mau Forest Complex is primarily the ancestral home of the marginalized, Indigenous hunter-gatherer Ogiek community. Over the past decade, other communities have invaded the ancestral lands of the Ogiek—allegedly settling there through fraudulent methods. This has intermittently led to resource conflicts on ethnic lines. Using the cover of settling these conflicts, the Kenya Forest Service has been carrying out brutal evictions, deeming the Ogiek as encroachers on their own land.

After over a decade of seeking justice in Kenyan courts, the Ogiek Peoples’ Development Program (OPDP) elevated the issue to the African Commission on Human and Peoples’ Rights in 2009. This was done soon after the government issued eviction notices to around 35,000 Ogiek, plus other settlers. The case was then referred to the African Court of Human and Peoples Rights in Arusha, Tanzania on the basis that it evinces serious and mass human rights violations. The Kenyan government was found to be in severe violation of the African Charter on Human and People’s Rights and a historic judgment was issued in the community’s favor in 2017. The judgment was also significant as it recognized the indispensable role Indigenous communities play as the guardians of local ecosystems. The African Court of Human and Peoples Rights stressed the importance of recognizing the community’s land rights as well as cultural rights, both deeply imbricated in the matrix of the forest’s ecosystem.

It is also significant that the verdict, unlike the Kenyan government, recognized the Ogiek's Indigenous status. The 2017 ruling also called for the Ogiek’s right to reparations from the Kenyan government for the suffering they have endured through forcible evictions. While the government of Kenya had promised to abide by the ruling, three years since the landmark judgment, the implementation process is barely existent.

In November 2017, the Kenyan government gazetted a Task Force to facilitate the implementation. Subsequently, more such task forces have been allotted to implement the Arusha judgment and to supposedly ensure participatory models of community—led forest conservation. However, the task forces are feeble and lack any representation from the Ogiek community. They have a reputation for neglecting to include the local communities, including in the mandated free and fair consultation processes. The Task Force’s neglected duties also include helping determine the status of the land, making recommendations for reparations for the Ogiek and raising public awareness about Indigenous rights.

The recent evictions in the Mau Forest Complex are in clear violation of this ruling, and against the moratorium placed on evictions during the COVID-19 pandemic. Furthermore, the harsh cold and wet weather conditions of July made things extremely bleak for the 600 Ogiek people rendered homeless.

On July 16, 2020, Anuradha Mittal of the Oakland Institute spoke with Daniel Kobei of the Ogiek Peoples’ Development Program, who represented the Ogiek throughout the Arusha case. He explains the ground reality of the recent spate of evictions during a global pandemic, the impact of the fortress conservation model of environmentalism on Indigenous communities in Kenya, and the need for solidarity actions that can be taken by international civil society.

Aftermath of evictions in the Mau Forest Complex. Photo OPDP

How many families have been affected by the recent round of evictions taking place in the Mau Forest Complex?

Daniel: Almost 300 families have been affected till last week. In total, well over 600 people are suffering due to these evictions. Over 300 housing structures have been destroyed. Hundreds of livestock are suffering for grazing. The community, particularly our children, have been traumatized. Many are suffering from shock and some of these are even physically injured as a result of these evictions. Properties are at risk, and some crops have been plundered. 

The Indigenous communities were supposed to be included in conservation efforts, and we understand a Task Force had been set up to facilitate this work. What has been the response of the Task Force and other state bodies – meant to facilitate community conservation – to this recent spate of illegal evictions?

Daniel: The Task Force that was set up in 2018 never succeeded. Another one was started in 2019 and went up till 2020 this year. Their report and its recommendation were due on March 20, 2020. It was given to the Cabinet Secretary for the Environment, but he has not released it till now. We have asked for the report. We have even written to the ombudsman, and filed a freedom of information request. When we met yesterday with the Regional Commissioner of Rift Valley to complain about the evictions, he said, “we have no issue with the court case, we have no contempt of court. Ironically, he said, “we are only trying to pave the way for implementation of the Ogiek case.”

“Breaking the land into small titles, as the report recommends, will bring the Ogiek to extinction.”

They’ve also forgotten that under the COVID-19 moratorium issued by the Kenyan government, it was guaranteed that no one could be attacked during this time. As we are talking even today, there is much work happening. We have agreed to form a team of ten elders, in addition to the government representatives to go see the initial boundaries of our land. Even the Kenya Forest Service does not know these boundaries. How can they claim it is their land if they do not even know these boundaries? These boundaries are stopgap measures while waiting for the actual implementation of the 2017 case ruling. In the meantime we face harassment.

We are demanding the Task Force report be made public. We have gotten some information about the background of our struggles mentioned in the report, but we are not happy about the report itself. We had asked for a recognition of our territory as that of the Ogiek community, where we stay on our own land, under a common title. Instead, the report has recommended things against our wishes. It is meant to not just destroy the Ogiek, but their culture. Breaking the land into small titles, as the report recommends, will bring the Ogiek to extinction.

We are supposed to be getting reparations by this stage now. Instead, the government will show these evictions as a part of their reparation when they show their responses to the African Court’s ruling. This was supposed to be done by March 6th, but because of the COVID-19 pandemic, it was postponed to June, then again to September. We are not seeing any hope any more. As an Indigenous community, we feel the government has decided to play a game of hide and seek by saying we want to see the boundaries before 1996, from the time before the Ogiek first went to court in 1997. They want to use it to say this is where the Ogiek should reside now.

There are three years between now and our victory in the African court, but the ruling has not yet been implemented. When some community leaders took a delegation to meet the regional commissioner, he asked us how the problem can be solved. We have told him the elders can show him where they lived before 1997, before the case. Still they haven’t stopped the evictions. Day before yesterday, they wanted to bring down the already displaced Ogiek. The KFS followed them to the small shops and kiosks where they sought refuge, trying to displace them again. That’s when I made a distress call.

Aftermath of evictions in the Mau Forest Complex. Photo OPDP

Who would you say are the government agencies and the non-state actors responsible for carrying out these evictions? Is there an increasing militarized presence of the KFS in the Mau Forest Complex?

Daniel: Yes. Yes, they (KFS) even sent their general service unit. Some people had given them wrong information saying that the Ogiek wanted to retaliate. They wanted to portray us as dangerous. We are a peace loving community. That is why we went to court. If we had wanted to use guns, we wouldn’t have gone to court. We are a small and economically deprived community. We thus don’t have the power. In Kenya, it is a generally accepted norm that if you do not have money, then you do not have power.

Daniel, we understand it was a long and hard fought legal battle and it is terrible to see the ruling of the African Court of Human and Peoples Rights being disregarded so callously. Are you worried this will set a dangerous precedent? Could you perhaps also share why the community was forced to go by the regional mechanism in the first place? How had the national judicial mechanism failed for them to take this step?

Daniel: We went to the African Commission first, and then it was passed on to the African Court. The main reason to approach the regional African mechanism was that we had already been fighting this battle in Kenyan courts for over 12 years. The case went up to the Kenyan High court. By that time there were not too many higher courts—for example, there was no Supreme Court at that time. There was just the Court of Appeals, but we could not appeal what had not been decided. It stayed in Kenyan courts for years and years. That’s how we were eventually able to get the case admissible for the African Commission, and then the regional African court.

“The Ogiek wondered how there was an influx of people from other communities being given deeds to their land, while they were denied any such rights.”

The other reason why we went was when the Kenyan government brought in other communities posing as the Ogiek, and settled them on our land instead. The Ogiek wondered how there was an influx of people from other communities being given deeds to their land, while they were denied any such rights. They were given the most fertile and accessible areas. The Ogiek were further pushed into the forests. Now that the environment issues are coming up, the authorities are accusing the Ogiek for destroying the environment and the water hot spots while forgetting they pushed us from our original places. They even gave high-ranking government officials our land. We have been in our own land throughout, not settled in other people’s lands.

This is why the Ogiek went to the regional court. Now that we won the case, they are trying to spread all forms of misinformation about us destroying the forests. When they say we are destructive, we tell them you gave us no alternative to survive. Our historical way of living—hunting gathering is no longer possible as a result of this displacement. There are no animals to use, the forest officials have planned artificial trees, so we don’t get pollen for bees to collect honey. So instead people have gone into activities like subsistence agriculture or livestock farming.

We fear the government may instead create a unique way of trying to implement the ruling of the African court in a way that isn’t acceptable to the Ogiek. In Kenya if you prepare a report, it cannot be kept under lock and key. The version of the Task Force report we have seen indicates the government wants to recreate the same agreement the Ogiek community refused earlier. They want Ogieks to be given 10 acres of titles per household, but not permit the joint territorial set up we want in order to carry on with our own way of living. The government seems to be fearful of giving the Ogiek full ownership of Mau. In order to do this, they are trying to project that we will destroy it. We have proved this wrong, again and again. In reality we already have our own Indigenous methods of protection. For this purpose, we have set up community forest scouts in the Mau Forest Complex. In a recent meeting, even the KFS officials praised our efforts and wanted us to continue with these conservation methods whilst the evictions are underway. I have told them, we have been doing this on our own anyway, without any state support.

What do you think the government officials are afraid of that prevents them from giving territory to the Ogiek? Do you think that when they say Ogiek settlements are bad for the environment, do they actually believe this dubious narrative?

Daniel: No, they do not believe it. In Kenya, there is no other community that has a track record of protecting the environment the way the Ogiek have done for centuries. We have told the Cabinet secretary of the Environment and Forests that if we Ogiek had already destroyed the Mau forest complex, what are you claiming to protect? We are very conscious of the fact that we are responsible not just to other Ogieks, but responsible for all Kenyans. Take the example of water. The water will not remain with us. It will flow and help the Masai in Masai Mara, it will help other people in Baringo. It will even go up to Egypt through Lake Victoria. We will give a lot to protect forests and these waters, and even help the government in doing so, but we will need a benefit sharing mechanism where we are also compensated for these efforts. This happens in other countries. Why cannot it be done here in Kenya? We have even proposed a model on how we want to govern and stay in Mau. A model that allows for a place for our homes and our schools and dispensaries, but the rest of the area will be for forests.

Do you think the authorities don’t believe in the feasibility of the model, or are they afraid? As these authorities are constituted by the economic and political elite, are they afraid of giving an Indigenous group this power? Is it a desire to control these communities?

Daniel: It is fear. They fear what they do not know. There is a political fear as well. Some of the communities in the Mau Forest Complex are not Ogiek. The ruling class fears that if the case ruling is implemented, these communities will suffer. Last Friday, a team of senators, Members of Parliament and others from the political class heard that part of the displaced were from their communities. They went in big numbers to try to get an injunction against these evictions. When the same thing happened to Ogiek people, it was only I and a few other community members worried about displacement in this cold and wet winter. Now there is also the specter of the Coronavirus. The community is scared. They’ve been watching the news and are scared of the pandemic. We are getting them masks. Meanwhile, the government asks the Ogiek to not crowd during the pandemic. They are not doing it because they are oblivious. They have no choice about this because the government has made no other alternative arrangements or provided any assistance for their rehabilitation.

Aftermath of evictions in the Mau Forest Complex. Photo OPDP

You have spoken about faulty implementation. In your opinion, is there a need for legislative change in the current forestry and conservation laws in Kenya that would enable hunter gatherer communities like the Ogiek to claim their land rights?

Daniel: There was a proposal, which was sent last week seeking a change in forest policies. We made a lot of recommendations for the role of hunter-gatherer communities and stressed that forest dwelling communities be given an upper hand in conservation and community ownership of forests. I know that the government will disregard this, but we have made it known we need proper legislation. Another thing of note is that the Task Force did not want to see this as legislation, but portray the Ogiek as asking to be given government forests. But they forget that the Kenyan Constitution has a provision for community forests and community lands. I shall tell people that it is the forest that is in Ogiek land, not the other way around. It just so happened that our land had the forests.

Incredible to hear you say that, Daniel. The government has propped up community forest associations as a solution, as a way of fair community driven conservation efforts. What has been the impact of such measures on the traditional rights of the Ogiek?

Daniel: The kind of models the government is pushing for are not accommodating of our cultural rights. We had to request the government to leave some parts inside the forests for cultural ceremonies that do not harm the ecosystem at all. While they agreed, they have asked us to make sure that no other people start entering the forest for grazing. We do not have the power to control other communities. They are telling us to fight other communities. Even though it is the Ogiek’s ancestral land, other communities think they are more superior to us. Why would they listen to us?

Looking at some of the reports put out by your organization, it looks like one of the struggles for the Ogiek has been to be recognized as an Indigenous community as they are only recognized as a marginal group so far. What kind of impact would it have if the Ogiek community were meaningfully recognized as a separate Indigenous community, especially when it comes to the struggle for community land and livelihood rights?

Daniel: If you look at the Arusha ruling, you will see the Ogiek were recognized as an Indigenous community in Kenya.  It is the first ever instance of the Ogiek being declared as an Indigenous community by any court. The Working Group for Indigenous People in Africa has also identified the Ogiek, Masai, and the Sengwer as Indigenous. The Kenyan government has however decided to identify the Ogiek as a marginalized, rather than an Indigenous group. The issue is that the word “Indigenous” gives the impression of them being the main owners of Kenya. The issue of divination – to divine who is Indigenous – has been our greatest challenge.  Using various United Nations declarations, International Labour Organisation declarations, Ogiek people are struggling to be recognized as Indigenous. However, when it comes to wanting World Bank money, or European Union grants, the Kenyan government remembers it has Indigenous people. We are trying to get the Kenyan State to recognize us as a tribe. In the last Census, they gave us a separate code, but we were not included in the category of a tribe. Now we are struggling to be given an ethnic code that shows we are a community of our own.

We have been monitoring the privatization of conservation efforts in Kenya. Could you share your thoughts on the effect this corporate model of conservation has on the land, livelihood and habitation rights of Indigenous communities?

Daniel: Privatization is a high level of capitalism in itself, whereby only the monetary implications are factored in. Setting up private conservancies is like creating a business for conservation. It becomes a capitalist way for individuals to own forests. This is how individuals who started conservancies in the name of communities actually colonize local communities, especially on economic terms. I do not support it personally - it makes Indigenous people think in terms of money, not in terms of their culture or not even in terms of promoting their own self esteem. For instance, the people leading these conservancies are their bosses. This is similar to rich people in Kenya being given the chance to own lions, ostriches, and other wildlife species. There are individuals who are only interested in making a profit from natural resources like wildlife and biodiversity.

“…such tourism driven models of private conservation benefit the elite of the community or those who know the true monetary value of these natural resources.”

This privatization of conservation is a wrong move. However, if it is done with proper consultation with the communities, with proper bylaws and a system that benefits entire communities, I would not have a problem. 

What happens to all this money brought in by tourists? While a majority of the community remains in abject poverty, such tourism driven models of private conservation benefit the elite of the community or those who know the true monetary value of these natural resources.

It is inspirational seeing you carrying on. What would you say to the international community, or civil society groups like the Oakland Institute? Going to court after court, winning a victory and then seeing the evictions continue. How can we support your struggle?

Daniel: This is an interesting and hard question. It is interesting because the struggle in Kenyan and regional African courts has almost completed 20 years. I was involved in both. I started in my early twenties. I will be 50 next year. A big part of my life was spent being involved in this movement. I still get motivated all the time when I see some old people saying, "Daniel we will get it, our land.” Instead of them giving up, I see them, even at age 70 having hope. This gives me the energy to continue. Who am I to give up at my age? What we really need from organizations like the Oakland Institute is to amplify Ogiek voices. We need you to tell the Kenyan government, “they (the Ogiek) are equal citizens in Kenya. They should be respected; their lands should be protected and preserved. They should be allowed to own their territories. Let them be the owners and stewards of conservation efforts, not sidelined participants. They should be allowed to be in control of their lands, without being harassed and evicted time in and time out.” 

We have been in a series of evictions over the years, so much so that I have lost count of which eviction is this one. We always ask the international organizations to tell the Kenyan government what they have been doing to the Indigenous in the name of conservation is wrong. If communities in other parts of the world have been allowed to live and protect their forests, the Ogiek should be given a chance to do the same. We have, as I mentioned earlier, a model of doing this. We are even willing to work together with the government if they are willing to ensure even humans should be protected as part of the conservation effort. Exposing communities to a pandemic, like they are doing now through these evictions, spells doom for them. These are poor communities, which have no access to medical facilities or any health insurance. If this continues, our communities will be gone. They will simply be relegated to history.


This interview was made possible with assistance of Janhavi Mittal, Research Associate at the Oakland Institute.

All images: Aftermath of evictions in the Mau Forest Complex. Credit: OPDP