Joint submission on the situation of the Ogiek to the Human Rights Council's 45th Session
45th regular session of the Human Rights Council
14 September to 2 October 2020
Submission related to the “Report of the United Nations High Commissioner for Human Rights on the rights of indigenous peoples”: https://undocs.org/en/A/HRC/45/22
( paragraphs 38 and 39)
The Ogiek Peoples Development Programme (OPDP) and the International Work Group for Indigenous Affairs (IWGIA) note with appreciation that the Office of the High Commissioner for Human Rights (OHCHR) has in 2019 provided assistance for the implementation of the African Court ruling on the rights of the indigenous Ogiek people (paragraphs 38 and 39 of the “Report of the United Nations High Commissioner for Human Rights on the rights of indigenous peoples”: https://undocs.org/en/A/HRC/45/22 )
Since then, the human rights situation of the Ogiek people has seriously deteriorated. OPDP and IWGIA would like to call on the OHCHR to take action and call on the Government of Kenya to stop these gross ongoing human rights violations.
Brutal evictions in the middle of the Covid 19 pandemic
Since 2 July 2020, the Kenya Forest service (KFS) has evicted more than 1100 Ogiek people from Mariashoni, Logoman, Kiptunga and Nessuit forests located in Eastern Mau (Nakuru County) and from Nkareta in Maasai Mau (Narok County). The evictions have been very violent, more than 300 Ogiek homes have been demolished, farms and crops have been destroyed and livestock left without grazing. This has seriously impoverished the already poor Ogiek people who are now facing food in-security. The evictions have left the affected Ogiek people shocked and traumatized – and children are especially affected.
The evictions have taken place in the midst of the rainy season, without any notice, under threats and without Free, Prior and Informed Consent. This is in clear breach of Kenya’s obligations under domestic and international law. Section 159G of the Land Act (2012) as amended in 2016 sets out the procedures that must be followed before any evictions can be carried out. Moreover, Section 152A contemplates safeguards to ensure evictions are not carried out in inhumane conditions that are contrary to human dignity, including refraining from carrying out evictions during rainy seasons, at night, during the school term, among others. These safeguards have not been met in the present case.
Moreover, the evictions were carried out in the midst of the Covid 19 pandemic, when the Ogiek people where sheltering in their homes.
The Government of Kenya had previously announced that it would establish a moratorium on evictions during the pandemic. Nevertheless, evictions have continued.
The Government has not put in place any measure to cater for the Ogiek people who have been evicted. They have had to struggle on their own and try to find shelter with relatives. This will
inevitably result in overcrowded living conditions, which will add extra risks of spreading the Covid 19 virus. People are in great distress and receive no assistance from the authorities.
Ogiek leaders and representatives have protested the evictions and human rights violations committed and have held meetings with various Government authorities – but to no avail.
Evictions are a violation of African Court ruling
The evictions are a blatant violation of the 2017 ruling of the African Court on Human and Peoples’ Rights, which unequivocally established that by failing to uphold the Ogiek’s right to their ancestral lands in the Mau Forest, the Government of Kenya had violated a series of inter-related rights under the African Charter on Human and Peoples’ Rights (including the right to culture, natural resources, religion, development, etc). In so doing, the Court expressly held that the Mau Forest is the Ogiek’s ancestral territory and that they have a right to use and occupy those lands. Importantly, the Court found that the Ogiek were not responsible for the environmental degradation that had taken place in the Mau Forest under the government’s custodianship and that conservation could not be used to justify the violation of the Ogiek peoples’ rights under the Charter.
Ethnic violence has erupted
Both Ogiek people as well as non-Ogiek people (who have illegally settled in and on the fringes of the Mau Forest) have been evicted by the Kenya Forest Service. The evictions led by the end of July 2020 to serious inter-ethnic violence between the Ogiek and non-Ogiek communities. The clashes started on 27 July in Olpusimoru (Narok County) and subsequently spread to Mariashoni and Nessuit (Nakuru county). The ethnic clashes persisted until 2 August 2020. This dangerous situation persists. 3 Ogiek persons have been killed, 20 have been injured and 10 are hospitalized. 16 Ogiek persons have been arrested and are facing serious charges. Many of the people arrested have no legal representation. Some non-Ogiek people have also been killed or detained. But the majority of the arrested are Ogiek, since they do not dare report the violations to the police and therefore complaints are not filed against non-Ogiek.
75 Ogiek houses have been burned down during the ethnic violence, including the houses of Ogiek community leaders and human rights defenders.
Threats to human rights defenders and risk of land dispossession
Ogiek leaders and human rights defenders are being threatened by local law enforcement entities who blame them for the violence without any evidence of their involvement. It has been reported that when the Ogiek Senator Victor Prengei called for a community meeting to discuss the situation, he was harrassed and threatened with arrest by the local police, and remains under investigation. Representatives from organizations like OPDP, which has for years advocated for the rights of the Ogiek people, are targets and at serious risk - and they need protection.
The evictions and violations are happening at a time when the report of the government Task Force for implementation of the African Court ruling has not yet been released and when African Court hearings on reparations are still ongoing. The next hearing is scheduled for the 7-8 September 2020.
The Kenya Forest Service is now demarcating the areas where the evictions took place with the aim of creating restricted forest areas where human presence is forbidden. This includes the Ogiek, even though these are ancestral Ogiek territories as clearly recognized by the African Court ruling. This is a serious threat to the land tenure security and future survival of the indigenous Ogiek people – and a gross violation of the African Court ruling.
In view of the above, we would like to call the attention of the Human Rights Council on the seriously concerning human rights situation of the Ogiek people in Kenya.
Therefore, we urge the OHCHR and the SR on the Rights of Indigenous Peoples to:
- Continue monit1oring the implementation of the 2017 African Court ruling on the Ogiek which recognizes their entitlement to reside in the Mau, as being their ancestral land.
- Urge the Government of Kenya to immediately stop all evictions of Ogiek people from Nessuit, Mariashoni or any other areas of the Mau forest and provide support to the affected people and communities, including continuance of health services.
- Promote, support and facilitate dialogue and consultation initiatives between the Government of Kenya and the Ogiek authorities on issues dealing with community lands, forests and security.
- Provide assistance and technical support to the Government of Kenya to develop effective measures to ensure that Ogiek people are consulted through their own elected representatives on all matters affecting them, with due respect for their Free, Prior and Informed Consent as enshrined in the UNDRIP.
- Request donors and relevant multilateral institutions to provide humanitarian relief to the affected people and communities
>> Read more on the Ogiek evictions in international and national Kenyan media here: