LAND AND HUMAN RIGhTS ADVOCACY OrGANIZATIONS OPEN LETTEr TO ThE GOVErNMENT OF KENYA AND OThEr STATE ACTOrS

ON LAND, ENVIrONMENT AND NATUrAl RESOUrCES

His Excellency Honorable Uhuru Kenyatta, The President of Kenya; Honorable Prof Judy Wakhungu, Cabinet Secretary, Ministry of Environment, Water and Natural Resources Honorable Githu Muigai, The Attorney General; Honorable Amina Abdalla, Chair, Environment and Natural Resources Committee Honorable Alex Mwiru, Chair, Departmental Lands Committee. people from the forest on which they have relied for their daily existence The rights of the children: the right to education, and the right to shelter, and to freedom from violence have all been violated The right to practice culture: especially for the Sengwer, the forest is their life as well as their livelihood, it contains their shrines, and it is integral to their community life, and they have been deprived of this Rights to ancestral land: Article 63 (d) of the Kenyan Constitution recognizes the rights of communities to own ancestral lands traditionally occupied by hunter-gatherers. Right to property: destruction of houses and their contents obviously violate this right (Article 40) Right to personal security: everyone has the right to be free from violence from any source (Article 29), clearly violated by the manner of the evictions Right to dignity: Dignity is at the root of rights, and it has not been respected (Article 28) Right not to be evicted in violation of international standards: the Kenyan courts have recognised this right, and even if there is good reason to evict anyone, certain standards must be respected and they have been violated. Equality (Article 27): this does not mean treating everyone just the same (and certainly not exposing everyone to the same misery); those who have different needs should be treated differently. Compensation The much hyped compensation of Kshs 400,000 to each family in return for them to vacate the forest is misleading. Many people did not get this, many did not understand or agree to the supposed arrangement. In the spirit of transparency, the Government should publish the list of all the beneciaries so. For the Sengwer, compensation and resettlement is not the issue at all; they should be left live in and protect their ancestral home. They are willing to be bound to use those home areas as conservators of the resources that are so precious to their livelihoods and to abide by conditions laid down by KFS. 3. Defiance of the rule of law The forceful evictions carried out by the police in the Embobut Forest are not only a violation of constitutionally guaranteed rights but are also a direct violation of stay orders issues by Eldoret High Court. Disregard for constitutional values violates the rule of law. And turning a blind eye to a court order is equally a violation. If Kenya Forestry Services, police and ofcials can decide that they can disregard the law, including an order of the court, the law and the Constitution, then the hopes of Kenyans that rest on this foundation become meaningless. Dispossession of the Sengwer people and indeed of the many other indigenous forest communities in Kenya - including the Ogiek, Yaaku, Aweer and Sanye is a historical land injustice that started with the colonial administration, and has been perpetuated by subsequent independent governments. It is ironic that while the constitutionally mandated National Land Commission prepares its programme to deal with existing historical land injustices, the Government is perpetrating fresh injustices in dispossessing people of their ancestral community land. the forest resources. They cannot dispose of those lands, and if they fail to sustain their forests they lose those rights. Conservation science now tells us that when forest dwelling communities have secure rights to their lands, they are six times more effective than state agencies at protecting their forests. Even in Kenya the Ogiek of Chepkitale, Mount Elgon are showing the Kenya Forest Service and Kenya Wildlife Services that, given the chance, they can manage those threatened resources themselves with support from these services. They have their own community by-laws to ensure protection and sustainable use of these areas, which they regard as their (ancient) community lands; and the Sengwer had begun the same process before the evictions took place. 5. Mapping the Future The way ahead is not mysterious. It involves respect for rights, and effective forest conservation. The laws, the mechanisms and the knowledge are all there. The National Land Commission is the body, created by the Constitution that should take charge of this situation, and work, with others towards a sustainable solution for Embobut and other forests. Technical assistance should be offered to the 8 indigenous forest dwelling communities whose lands have been reclassied into 17 state-owned Protected Areas who are working to nd a way out of the conventional conservation-rights impasse. Enactment of the Community Land Bill would cure some of the problems. There is real concern that powerful players may be seeking to evict these forest dwelling communities from their ancestral lands before this Bill becomes law. And it is the obligation of the National Land Commission to ensure that any evictions that are necessary (and the major point made here is that eviction of the Sengwer is not only unnecessary but will work against forest protection), must be done in accordance with the Constitution, and indeed s. 155 of the Land Act. Finally: We believe that the government can win. And the people can win. Even if the new government means well, it they will do well in changing times to listen closely to their people, in this case to those who are being affected and those who have solutions well worth listening to. It is clear that recognising ancestral communities rights to their ancestral forest lands can give such communities the security to be able to protect their forests from encroachment by those who do not want to protect the forest.

THE TRUTH ABOUT EMBOBUT FOREST EVICTIONS AND A WAY FORWARD We Land and Human Rights Advocacy Organizations would like to state that the recent evictions at the Embobut Forest are not only a grave violation of the Kenyan Constitution but also deance of international law on human rights and an ineffective approach to biodiversity conservation. Dont be misled We are told that squatters have been moved out of the Embobut Forest, and that this means one of Kenyas water towers has been salvaged. What ofcial sources, and many media accounts, fail to point out is that some of those being evicted are being chased out of their ancestral lands. Although their plight found space in the Constitution because these communities have suffered long enough, regrettably no one is telling Kenyans that the best way to protect that water tower would be to leave the indigenous inhabitants of Embobut in their forest home, the place that they have protected for centuries; and they can do so even better if given the chance. This means making it legal for them to continue living on their ancestral lands that are now within a Reserve, on condition they conserve the forest, for all of us Kenyans. 1. Who lives in the Embobut Forest? The Sengwer The Sengwer is an indigenous and marginalised ethnic group of hunter-gatherers. They have lived in the Cherangany Hills for centuries, and Embobut forest is their ancestral and communal land. Resettled Landslide victims These people are there because of the landslides in 1961 and 2010 in the Cherangany Hills, which resulted in loss of life and displacement of people. They have been living in the forest while awaiting resettlement in a proposed second phase. Other in-comers Other people have moved in, viewing the forest as free land, clearing the forest to create land for farming and also cut down the trees for commercial purposes. 2. What are the Real Issues Conservation Concerns The Government claims it is evicting people from the Embobut Forest in order to protect the forests biodiversity. But the best way to protect the forest is to allow those who have been its guardians for centuries to continue to do so. And this approach is recognised internationally as the most effective. Human Rights Issues Gross violations of human rights have been committed against the forest evictees by the Government of Kenya. We have seen the lms and photographs of the homes Kenya Forest Service has burnt, forcing thousands of Sengwer families to ee. We can all imagine how traumatising it can be to have homes and belongings, school uniforms and beddings burnt, schooling disrupted, food sources destroyed, and communities broken. Specically the rights violated include: The rights to food and to housing, and almost certainly to health: these are protected by Article 43 of the Constitution, and are violated by removing

Signed: Atsango Chesoni

Davinder Lamba

Yash Pal Ghai

Al- Amin Kimathi

4. Why the underlying policy is mis-guided There are best practices all over the world that the Government could replicate. Over 50 countries have been faced with the same issue: from the Amazonian to the Congo Basins, from the Indian sub-continent to South East Asia. More and more states are nding the way forward not by abandoning forest conservation needs in favour of forest dwelling communities land rights, or vice versa, but by integrating the two in a practical approach that allows forest communities to stay in their forest, on condition that they take on full responsibility for protecting and conserving

Odenda Lumumba

Patricia Nyaundi

Peter Kitelo Yator Kitum

Chepkitale Indigenous Peoples Project (Mt. Elgon Ogiek) Sengwer Indigenous Peoples Programme