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KNCHR’s Engagement with Indigenous People.

  • 30 June 2018
  • Author: Cyrus Maweu
  • Number of views: 253
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The African Commission’s Working Group on Indigenous People 2010 Mission to Kenya[1] relying on an earlier (2003) report of its predecessor, summarizes the characteristic features of indigenous peoples in Africa as:

“… the overall characteristics of the groups identifying themselves as indigenous peoples: their cultures and ways of life differ considerably from the dominant society and their cultures are under threat, in some cases to the extent of extinction. A key characteristic for most of them is that the survival of their particular way of life depends on access and rights to their traditional land and the natural resources thereon. They suffer from discrimination as they are being regarded as less developed and less advanced than other more dominant sectors of society. They often live in inaccessible regions, often geographically isolated and suffer from various forms of marginalization, both politically and socially. They are subject to domination and exploitation within national political and economic structures that are commonly designed to reflect the interests and activities of the national majority. This discrimination, domination and marginalization violates their human rights as peoples/communities, threatens the continuation of their cultures and ways of life and prevents them from being able to genuinely participate in deciding on their own future and forms of development” (Report of the African Commission’s Working Group of Experts on Indigenous Populations/ Communities, 2003:89).

The KNCHR has, in discharge of its mandate, continued to engage with indigenous people and different duty bearers and advocated for a human rights based approach to conservation. The KNCHR continues to receive and investigate complaints by Indigenous People on violation of their fundamental human rights and freedoms. Notable engagements include the following:

  • January, 2014: The KNCHR deployed a Fact-Finding Mission to Embobut Forest following various allegations of forced evictions of forest dwellers reportedly carried out by the Kenya Forest Service (KFS). The KNCHR established that the KFS had used excessive force and forceful evictions had been conducted. The KNCHR further established that the forced evictions had been on-going based on the strength of the findings of the report of a 2009 Taskforce for the Restoration of Embobut Forest that had recommended inter alia compensation before evictions[2].
  • April 19th 2016: A KNCHR Fact-Finding Mission, led by Ms Patricia Nyaundi, the then KNCHR Chief Executive Officer, sought to visit members of the Sengwer community living within Embobut Forest but this was not possible as the Mission was denied access to the forest by the Kenya Forest Service Rangers. Following the access-denial, the KNCHR in conjunction with the the National Lands Commission engaged the community and other stakeholders and in particular, the Sengwer Community within Embobut Forest and the Elgeyo-Marakwet County Government on the various issues affecting the forest dwellers with a view to coming up with possible solutions to the identified problems. The discussions centered on eviction of members of the Sengwer Community who assert indigenous forest dwellers’ rights to Embobut Forest.  It was reported then that the evictions conducted by the Kenya Forest Services within the Embobut Forest had led to a number of violation of human rights. The evictions were said to be illegal as the Community had obtained a conservatory court order barring the KFS from conducting any evictions until a case filed at the Eldoret Law Courts was concluded.
  • July 13th to 15th July 2016: The KNCHR participated in a National Dialogue Forum meeting held in Nanyuki and organized by the NLC and Reconcile, where the NLC undertook to look into the issue of forest dwelling communities and find a sustainable solution. The meetings were meant to consolidate the position of the different forest dwelling communities with a view to finding a sustainable and broad-based solution to address their grievances. As a result of the National Dialogue, a roadmap was developed whose ultimate goal would be, “Resolving the tenure conflict by formalising as community lands current forest areas that are recognised by the Constitution as "the ancestral lands and lands traditionally occupied by hunter-gatherer communities (in line with Article 63 2(d) ii of the Constitution of Kenya)" through "community tenure on conservation conditions". The National Dialogue Forum also came up with the following specific recommendations:
    1. That there was a need to initiate a process of relationship-building between traditional forest communities and Government bodies and agencies in order to incrementally develop and put in place pilot conservation projects in which communities' ownership of and right to live in and conserve their lands is recognized.
    2. That there was a need for "community sustainability by-laws, governance structures and scouts to be recognised as the basis for forest conservation and land use planning, with crucial support from the key government agencies".[3]
  • August 16th to August 18th 2016: The KNCHR undertook investigations on reported forceful eviction of the Sengwer Forest dwellers from Kapkok Glade in Embobut Forest, Elgeyo Marakwet County. The investigations documented several human rights violations among them destruction of property, arbitrary arrests and forceful eviction of the Sengwer community members.
  • December 15th 2016: The KNCHR joined the National Land Commission (NLC) in an aerial view of Embobut Forest on a Ground-Truthing Mission to Resolve the Ancestral Land Right Claims of Forest Dwellers. After the aerial view tour, the NLC held a public forum at Kapyego, Elgeyo Marakwet County, during which the affected communities presented a memorandum to the NLC Chairman Dr. Muhammad Swazuri. The memorandum highlighted several concerns ranging from negligence, failure and reluctance by the Kenya Government and the Kenya Forest Service as well as other authorities to abide by national, regional and international human rights principles and treaties and standard procedures with respect to forceful evictions of populations. Responding to community concerns, Dr. Muhammad Swazuri observed that whereas the community had raised pertinent issues concerning their eviction from the forest, it was important for the community to come to terms with the fact that the Government was not going to allow them settle back into the forest but that they would be granted user rights only.[4] Dr. Swazuri’s statement was not taken kindly by the affected community members present and many of them saw it [the statement] as going contrary to the recommendations of the Nanyuki National Dialogue Forum.
  • February 2nd to February 5th 2018: The KNCHR deployed a Rapid Response Mission following reported cases of a fresh wave of evictions of the forest dwellers leading to the death of Robert Kirotich and the injury of David Kosgei. After this mission the KNCHR recommended an initiation of independent and thorough investigations into the various allegations against KFS and its involvement in various acts of human rights violations as well as the need for wider consultations on the then ongoing evictions.

Apart from the various deployments to the Embobut Forest above, the KNCHR has also urged that Alternative Dispute Resolution (ADR) methods be sought to resolve the outstanding complaints from the project-affected communities. The KNCHR has made the proposal for ADR through several avenues that have included meetings with the Cabinet Secretary Ministyr of Environment and Forestry, Principal Secretary, Ministry of Lands and Urban Development, the Chief Conservator of Forests, Kenya Forest Services and meetings with the Principal Secretary Ministry of Environment and Natural Resources.

The KNCHR is enjoined as Amicus Curiae in Petition 1 of 2017 at the High Court in Bungoma (Peter Kitelo & Others v AG & Others) filed by members of the Ogiek of Chepkitale. The Petition seeks a determination of the indigenous land claim to the land in Chepkitale area of Mt. Elgon Forest by the Ogiek Community.

The KNCHR sat in the Taskforce appointed to advise on implementation of the African Commission on Human and People’s Rights in the Endorois case[5] and the African Court on Human and People’s Rights decision in the Ogiek of Mau case.[6] Regrettably the terms of the Taskforces expired before completion of their respective tasks.

 


[1] Research and Information Visit to Kenya: Report of the African Commission’s Working Group of Experts on Indigenous Populations/ Communities, 1-19 March 2010).

[2] The Taskforce had profiled 2,874 persons who were to be compensated at Kshs 410,000 @ household. The profiled beneficiaries included 1,216 Sengwer families, 770 permit holders, and 889 landslide victims (Cherangani). However, it is important to note that during the High-Level Fact Finding visit, the Mission was informed by various actors, and in particular some of the project affected communities and persons, that the compensation exercise did not sufficiently address their needs as it was fraught with numerous challenges. For instance,  the High-Level Fact Finding Mission received complaints that the profiling of beneficiaries was shrouded in secrecy and that it lacked proper beneficiary-identification due to lack of a sound and competent public participation framework. 

[3] Nanyuki National Forum Report - Roadmap to securing forest dweller land & Resource Rights in Forest Conservation 13-15 July 2016. NLC & Reconcile

[4] Limited to grazing of animals, collecting of firewood, cultural and other traditional rites and any other legal acts within the forest permitted by Kenya forest Act and Community land Act. However, it should be noted that the Community Land Act can create the conditions for securing Sengwer community land rights as the basis for supporting them to conserve their forests.

[5] 276/03 Centre for Minority Rights Development (Kenya) and Minority Rights Group (on behalf of Endorois Welfare Council) v. Kenya case

[6] Application No. 006/2012 African Commission on Human and Peoples’ Rights V Republic of Kenya

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