What you need to know:
- Their third case was the Judicial Review of 2002 which sought to block degazettement of 67,000 hectares of forest land in 2001.
- In 2018 they filed another suit asking the court supervise the implementation of the court order to resettle the community as ordered in 2014.
- Senior Counsel Gibson Kamau Kuria representing the Ogiek community, on July 14 wrote to Mr Natembeya to stop further evictions.
For the last 30 years, members of the Ogiek community has been pursuing a costly dream of resettlement after they were evicted from Mau Forest Complex.
Their dream is yet to come true. For more than three decades, being hunters and gatherers, their source of livelihood in the Mau Forest has gradually been destroyed.
Theirs is a situation of a community whose plight has not been addressed by past and present regimes. But the community has promised to fight for their land rights.
The community has filed cases in local and regional courts. They filed their case at the African Court on Human and Peoples’ Rights in Arusha, Tanzania and won.
The children who were not yet born when their parents began fighting for their land rights are now adults and have joined in the pursuit for elusive justice.
Even as the government moves with speed to restore the critical water tower, the question is why past and the current governments have failed to respect court orders and resettle the Ogiek.
“We have the courage to pursue justice and we shall fight till the last man because what we see in our dream is full resettlement of the Ogiek even if it takes a 100 years,” said the community’s council of elders chairman Joseph Kimaiyo Towett.
Mr Towett has been behind the court cases. He has been delivering court orders to government offices. Despite filing several court petitions and affidavits, the government systematically evicted the community from the Mau Forest.
“We have been discriminated against by the system which has over the years limited our rights to access to land but we shall not accept to move on,” said Mr Towett.
The community first moved to court in 1997 and obtained an order restricting the government against settling people in the Eastern Mau Complex through a judgment issued by the late Justice Abdul Majid Cockar.
Then District Commissioner Kinuthia Mbugua and now State House operative swore an affidavit that the Ogiek, who have been occupying Mariashoni and Nessuit Forest were illegal squatters contrary to Forest Act Cap 385 of the Laws of Kenya.
The matter dragged in court for 17 years and was finally determined on March 14, 2014 when the community won the case.
Environment and Lands Court Justice Pauline Nyamweya directed the National Land Commission to within one year of her judgment, open a register of members of the Ogiek in consultation with their council of elders and identify land for their resettlement.
The court also nullified all illegally obtained title deeds from the complex and imposed a caveat. The second case they won was at African Court on Human and Peoples’ Rights in Arusha, Tanzania in 2017.
FILED ANOTHER CASE
In April 1999, the Ogiek filed another case in a Nakuru court. The case was, however, transferred to Nairobi where it was heard by a two-judge bench of Justice Samuel Oguk and Richard Kuloba who dismissed the case in March 2000 on environmental grounds.
Their third case was the Judicial Review of 2002 which sought to block degazettement of 67,000 hectares of forest land in 2001.
The matter was heard until 2011 when the final submissions were made. But the Ogiek withdrew to concentrate on the 1997 judgment which had ordered their resettlement. And when the Land and environment Courts were created, the matter stagnated in court.
The community filed another case to block degazettement of forest land in 2002 but withdrew the matter as it was addressing the land matters.
In 2018 they filed another suit asking the court supervise the implementation of the court order to resettle the community as ordered in 2014. The matter is still pending.
There is also a pending reparation order by the African Court on Human and Peoples’ Rights in Arusha which will be heard in September.
The Ogiek next course of action is to push the court to supervise the implementation of all the orders it has issued.
“We want the court to supervise the government implement mapping out boundaries and resettlement and issuance of title deeds to Ogiek and we close this chapter once and for all,” said Mr Towet.
He added: “Instead of obeying the court orders issued six years ago, the government has evicted the Ogiek in Eastern Mau Complex in Mariashoni in Molo, Nakuru County in an exercise that is purely in contempt of court,” said Mr Towett.
In the latest evictions that started on June 27 targeting 5,300 members of the Ogiek, the government claims the move was meant to identify the forest boundaries and restore the water tower.
“Kenya Forest Service is undertaking a multi-agency operation to reclaim Logoman, Sururu, Likia, Kiptunga, Mariashoni, Nessuit, Baraget and Oleposmoru forests within Mau Forest Complex,” said a brief statement from KFS.
The statement further stated that at least more than 4,500 hectares of forest land has been reclaimed and more than 900 illegal structures destroyed.
At least more than 300 houses have been torched by the KFS officers after the owners removed their belongings and almost 1,000 families rendered homeless.
“Why should the houses remain when the illegal settlers have moved out? Once they are evicted, they should never come back to use the shelters,” said the Regional Commissioner George Natembeya.
However, some leaders have called for fairness during the eviction exercise which they claimed is targeting the poor land owners at the expense of ‘influential’ people who own large tracks of land in the water tower.
A former State House operative during the Daniel Moi era, top civil servants in Jubilee government, county bosses and retired police officers are among those who own the expansive Ngongongeri farm in Njoro which is part of Eastern Mau Complex.
“Let the evictions be fair and across the board instead of the current scenario where only grass thatched houses are burnt and those powerful individuals who were allocated land are not touched,” said Njoro MP Charity Kathambi Chepkwony.
So far, only less than 1,000 members of the community have been resettled by the government.
Last week, Molo Deputy County Commissioner David Wanyonyi, accompanied by KFS officials and heavily armed police officers toured the water tower to map out the boundaries.
“Ordinarily such an exercise is supposed to be conducted by the Lands Commission who will put the beacons and map those who are in the forest land for resettlement,” said Mr Towett.
Senior Counsel Gibson Kamau Kuria representing the Ogiek community, on July 14 wrote to Mr Natembeya to stop further evictions.
“If the evictions continue, we shall go to court to have those assisting in the illegal process committed to jail for contempt of court,” said Mr Kuria.
The Ogiek want Environment Cabinet Secretary Keriako Tobiko to appoint two working committees led by National Lands Environment Management Authority (Nema), KFS and National Land Commission, provincial administration and National Museums of Kenya to end 30 years of violation of Ogiek’s human rights.
Mr Tobiko’s much publicised tour of Eastern Mau Forest last Saturday was cancelled in the last minute.
“We were hoping to welcome CS Tobiko in Mariashoni and hear what plans he has to resettle more than 700 families of the Ogiek who have so far been evicted from the forest,” said Mr Towett.