By Rachel Mwendwa and Merlene Amonde
Members of the Ogiek Council of Elders and trainers Lucy Claridge (ILP), Irena Sabic KC (Garden Court Chambers and Thalia Maragh (Garden Court Chambers)
The International Lawyers Project (ILP), in collaboration with the Ogiek Peoples Development Program (OPDP), conducted legal empowerment training for the Ogiek community from 5 to 9 February 2024 in Naivasha, Kenya. The training was split into two sessions: the first focused on 75 members of the Ogiek Council of Elders, while the second trained 15 members of the Ogiek Supervisory Committee.
The training was led by seasoned, experienced legal counsel from Garden Court Chambers, Irena Sabic KC and Thalia Maragh. The purpose of the training was to improve the Ogiek Council of Elders and the Supervisory Committee’s legal literacy, as they seek implementation of two African Court of Human and Peoples’ Rights judgments issued in their favour. Additionally, it sought to enhance the participants’ negotiation and advocacy skills, as they seek to secure the Ogiek’s land, environmental and other related rights.
The 2017 and 2022 African Court on Human and Peoples’ Rights judgments
The Ogiek are indigenous hunter-gatherers, with a vibrant and rich culture, and deep-rooted customs and traditions. They have lived since time immemorial in Kenya’s Mau Forest, and are the custodians of the environment on which they depend. They have a unique way of life well-adapted to the forest.
However, since Kenya became independent (and indeed prior to it), the Ogiek have been routinely subjected to arbitrary forced evictions from their ancestral land by the Kenyan Government, without consultation or compensation. The Ogiek’s rights over their traditionally owned lands have been systematically denied and ignored. The Government has allocated land to third parties, including political allies, and permitted substantial commercial logging to take place, without sharing any of the benefits with the Ogiek. The eviction of the Ogiek from their ancestral land and the refusal to allow them access to their spiritual home has prevented the Ogiek from practising their traditional cultural and religious practices. The culmination of all these actions has resulted in the Ogiek being prevented from practising their traditional hunter-gatherer way of life, thus threatening their very existence. It is this very threat to their land rights and livelihoods that led to them seeking recourse before the African Court on Human and Peoples’ Rights.
The African Court on Human and Peoples’ Rights is a regional court established with the purpose of addressing any human rights violations reported within a state which has ratified the Protocol to the African Charter. It has issued two judgments recognising Ogiek rights. The 2017 judgment (on the merits) recognised the indigenous status of the Ogiek people. It highlighted the historical injustices and marginalisation of the community and sought to address their plight by ensuring their dignity is restored and sanctity upheld. The ruling found the Kenyan government had violated the Ogiek’s rights to property and natural resources, and recognised that the Mau Forest is their home. It declared that the government should return their ancestral land and affirmed that no one should interfere with their right to use, enjoy and live in this area. It also ruled that the preservation of the Mau Forest does not justify the Ogiek’s eviction.
The second judgment, delivered in 2022 (reparations judgment) sought to repair the harm caused to the community through issuing restitution orders and monetary compensation. It reiterated the essence of Ogiek recognition and emphasised the role of the Kenyan government in ensuring implementation of the 2017 ruling. It ordered the Kenyan government to take various steps, including restitution of Ogiek land, through a system of demarcation and titling; it also awarded monetary compensation (KES 57,850,000 pecuniary damages and KES 100,000,000 for non-pecuniary damages). The ruling also emphasised the need to build systems that ensure the recognition of the Ogiek people and to ensure the non-repetition of the violations that have already taken place.
Through its two landmark judgments, the African Court has made great strides in addressing the persistent and emotive land question amongst the Ogiek community.
Training with the Ogiek Council of Elders
Lucy Claridge, Executive Director of ILP, spearheaded discussions on the 2017 ruling, highlighting the critical points. However, it is clear that the government has taken very few steps to implement the rulings and indeed in some cases has directly contravened them, for example, by forcibly evicting some Ogiek from their homes in late 2023. The lived experiences shared by the community highlighted the turbulent relationship they have had with their land: some have faced and experienced eviction, whereas others have been able to use and access some of their lands, but the absolute title remains with the state.
Our volunteer lawyers from Garden Court Chambers, Irena Sabic KC and Thalia Maragh, then led discussions on the 2022 reparations judgment. They also provided the community with effective negotiation tools, in order to empower the community to further understand the process of land registration and acquisition of communal title to land. The need to consult the Ogiek community on issues pertaining to their land is central to implementation.
The training equipped the community representatives with the necessary skills to engage in: legal advocacy, and increased awareness of their rights. The training also delved into the complex political, social and cultural issues stemming from this decades long struggle.
Training with the Ogiek Supervisory Committee
The Ogiek Supervisory Committee was established to spearhead implementation of the African Court judgments on behalf of the community. The training was therefore technical, hands on and practical. The trainers created a joyful atmosphere and encouraged participants to vocalise their reality. During the session on negotiation skills, participants were eager to learn about the key elements of any negotiation, including the importance of forming strong alliances with different stakeholders, and the role of the media in shaping narratives.
The training also covered the intricacies of carbon credits. Although the Mau Forest is the Ogiek’s ancestral land, the government perceives it as ripe for carbon sequestration. However, this approach fails to consider the Ogiek’s rights over their land. Can a government trade what is not legitimately or legally theirs?
One highlight of the training was the singing of a traditional Ogiek song to show appreciation for the trainers and all the participants for their dedication and hard work. Everyone was smiling despite the tumultuous past and an uncertain future. At the end of the training, the participants pledged their affirmation, “I am Ogiek. We are indigenous people. The Mau Forest is our home and we will fight for it.”
The training was made possible by funding provided by A4ID - Advocates for International Development.