analysisBy Gordon Bennett
A Kenyan court has ruled that the Ogiek's 'access' to the Mau Forest must be protected. But claims over the group's 'rights' to the land fell on deaf ears.
The British started it. In the early 1900s, they were the first to encourage white settlers to shunt hunter-gatherers off their land and to insist that formal titles trump the claims of the original occupiers. A century on, not much has changed.
Powerful elites still deprive vulnerable peoples of their lands, and where necessary still seek judicial sanction to do so.
In March 2014, the judgement of the Environment and Land Court in the Letuya case became just the latest in a string of decisions which have consistently favoured title holders over original inhabitants.
Two decades ago, Joseph Letuya was among the many Ogiek people expelled from their homes in the East Mau Forest of Kenya to allow for a supposedly more 'productive' use of the land by others.
It took him and his fellow claimants almost 17 years to battle their way through the Kenyan legal thicket, but when the court finally got to hear their evidence, there was no doubt that, as hunter gatherers and subsistence farmers, the Ogiek depended on the forest not just for their identity as a people, but also for their livelihoods.
In a decision with far-reaching implications for other beleaguered communities, the court held that its ability to protect the livelihoods of the Ogiek belonged to a parcel of rights which together made up the right to life guaranteed to all citizens by the constitution.
The court maintained that the claimants' continued access to the Mau Forest must itself therefore be "protected."
In an equally progressive move, the court went on to find that the eviction of the Ogiek prevented them from living in accordance with their cultural practices - a move which goes against their constitutional right not to be discriminated against.
On both grounds, the Court directed the National Land Commission (NLC) - an independent government commission established in 2012 - to investigate "land injustices" and recommend "appropriate redress."
The NLC now needs to identify land in the Mau Forest for those Ogiek who still need it, and it is entirely possible that, as a result of their recommendations, sufficient land will be allotted to the Ogiek and that they will be given the secure titles required to ensure that they can adequately provide for themselves and decide their own future. If so, the Letuya case will have proved a resounding success.
But why should a claim based on the possession of land since before Kenya even existed have to depend on an unaccountable body, and one whose recommendations may or may not find favour with the government of the day and which was not even a party to the legal proceedings?
Rights not reparations
The answer lies in the continued reluctance of the Kenyan courts to accept that claims based only on immemorial possession - rather than formal titles - are entitled to proper legal respect.
This is why the Court seems to have passed on recompense for the evictions to a non-legal body and why the Court gave little attention to Letuya's arguments on this part of the case.
For example, the Court said that a claim based on pre-colonial occupation by ancestors and clan allocation was "misplaced, as the said actions do not confer any legal rights."
Apparently this was because "the process of conferring legal and equitable property rights in land under Kenyan law is settled, and is dependent upon formal processes of allocation or transfer and consequent registration of title."
However, claims "based on pre-colonial occupation" have often been made, and have often succeeded, in countries which share a legal tradition with Kenya and attach no less importance to the registration of land titles.
In South Africa, for instance, the Constitutional Court has held that a nomadic lifestyle "is not inconsistent with the exclusive and effective occupation of land by indigenous people."
Meanwhile, in Botswana, the courts have followed the 1992 Mabo v Queensland ruling whereby the High Court of Australia held that the indigenous people had native rights to the land which pre-dated colonisation and which remain in force to the present day.
In an earlier case about the Ogiek decided in 2000, the High Court in Nairobi had declined to follow Mabo v Queensland because, it said, it had not had the benefit of the "closely reasoned arguments and a perfect analysis" which had been presented in Australia. In the recent case of Letuya, the Court did not even refer to Mabo v Queensland.
It was equally reluctant, apparently, to consider the 2010 Endorois case in Kenya, in which the African Commission on Human and Peoples' Rights concluded that "the traditional possession of land by indigenous people has the equivalent effect as that of a state-granted full property title [and] entitles indigenous people to demand official recognition and registration of property title."
Kenya's failure to recognise and act on this principle, the Commission held, had placed it in breach of its obligations under the African Charter.
Even more remarkably, the Commission has now filed proceedings against the Government of Kenya before the African Court of Human Rights, for "serious and massive violations" of the Charter-protected rights of the Ogiek of the East Mau Forest.
Just two days before the Environment and Land Court handed down its judgement on Letuya, the African Court had to order Nairobi not to act upon eviction notices it had served on the Ogiek until the Court had heard the Commission's complaint.
The Court made its order, it explained, out of concern that the Government's actions appeared to violate the Ogiek's right to enjoyment of their cultural and traditional values as well as their right to property.
The Letuya case will now go to appeal and it is hoped that the lawyers of Joseph Letuya and the other claimants will use this opportunity to persuade the Court of Appeal that it should follow the lead of other Commonwealth courts and the African Commission, and hold that the Ogiek people be entitled, as of right, to recover the lands from which they have been displaced unlawfully.
To find out more information or support the Ogiek campaign, click here.
Gordon Bennett is a barrister in Lincoln's Inn (one of London's four Inns of court), and has extensive experience of the legal problems of indigenous peoples.
He is the author of 'Aboriginal rights in international law', and has given legal advice to Survival International for over 30 years.
He has worked on a number of landmark legal cases involving indigenous people: he was lead counsel, for example, for 189 Kalahari Bushmen in their historic lawsuit against the Botswana government, which for the first time established the principle of native title in Africa.