Ogieks accuse state of derailing enforcement of court ruling

A lack of clear coordination between the government and the leadership of the Ogiek community is to blame for the delayed implementation of a ruling by the Arusha-based African Court of Human and People’s Rights.

On Wednesday, the state, through counsel Fronica Shirika, and Martin Lele, a member of the Ogiek Council of Elders, traded blame over delayed reparations to the Ogiek community that were ordered by the court in 2017.

Testifying in court during the hearing of a petition against the Mau forest evictions in Nakuru, Mr Lele, who said he is the secretary of the elders’ council, accused the government of frustrating the community’s efforts to enjoy the fruits of the judgment by refusing to comply with the court orders.

The state, on the other hand, blamed the council for creating numerous hurdles for the government by obtaining numerous court injunctions and blocking efforts to implement the judgment.

Rights violated

Appearing before Nakuru Environment and Lands Court Judge John Mutungi, Mr Lele testified that the government continues to violate their rights by acting contrary to the court orders, prompting them to go back to court.

He explained that after the ruling the government formed two task forces that carried out their activities independently without issuing a report.

“The last task force, which was led by Dr Charles Kibyai, conducted its activities for one year but we have never seen a report of its findings. We were never involved nor informed of its mandate,” he said.

He claimed the community was left in the dark for two years after the ruling, until 2020 when the government again unveiled a multi-agency team to carry out surveys of the forest boundaries and settle the community.

Mr Lele said the elders were only summoned by the former Rift Valley regional commissioner, George Natembeya, and ferried to Naivasha, where they were informed of the new development.

“Nobody bothered to get our opinion as they only unveiled the team and told us that the government had decided to find alternative land for us where we shall be allocated five acres each. We protested as we felt that the decision was being forced on us,” he said.

One title deed

He said the community wants to be given land with one title deed that will be held in trust by the elders, allowing them to manage their affairs to protect their culture from being lost.

This, he said, was what prompted them to go back to court and obtain injunctions to stop any further action by the team including the planned issuing of title deeds.

But in cross-examination, state counsel Shirika explained to the court that the community was interfering with the government's work to implement the court ruling by filing court cases.

Ms Shirika argued that the African court did not propose a procedure for implementing its ruling but left it to the government to decide how to go about it.

“The state has made efforts to comply with the orders but anytime we embark on the process we are met with much resistance from the community, which keeps filing cases and obtaining injunctions against the government,” Ms Shirika said.

Ancestral home

In the landmark judgment delivered on May 26, 2017, the continental court recognised the Ogiek community’s right to Kenya’s Mau Forest as their ancestral home, and their role in protecting it.

It said the Kenyan government had violated seven articles of the African Charter on Human and Peoples’ Rights, of which Kenya is a signatory, and which is intended to protect basic freedoms and human rights.

The court also recognised the Ogiek’s indigenous status and their right to reparations from the Kenyan government for the suffering they have endured through forcible evictions.

The case by the Ogiek Council of Elders opposing the government’s action in 2020 was consolidated with one filed by Nakuru Deputy Speaker Samuel Tonui on behalf of settlers evicted by the government from the Eastern Mau forest complex.

Demands questioned

Lawyer Kipkoech Ngetich, who is representing the families, also questioned the Ogiek community’s demands for communal land, arguing that the land in question is also owned by other communities who were settled there by the government.

Mr Ngetich’s clients want the court to bar the government from interfering with their occupation of 35,301 parcels of land that the government claims are part of the forest land.

Mr Tonui, who testified earlier, claimed the evictees have genuine title deeds for the land that was legally excised from the forest by the government and gazetted as a settlement scheme.

The hearing proceeds on Thursday.

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