Righting colonial-era wrongs in land rights

Men from the Ogiek community walk along the road after harvesting honey in Mount Elgon game reserve, where they have reached an agreement with the government allowing them to remain in their ancestral lands in western Kenya, April 26, 2016. REUTERS/Katy Migiro

* Any views expressed in this opinion piece are those of the author and not of Thomson Reuters Foundation.

Despite a legal ruling and international attention, Kenya's Ogiek people have continued to face evictions, underlining the inherent difficulties in implementing judgments

The continued dominance of colonial-imposed laws over pre-existing customary legal systems, has been the bane of land rights disputes involving indigenous peoples across the globe for many years.

Post-colonial states have been unable to address such issues since formal law has continued to prevail over ancient customary systems even post-independence.

One such example is the Ogiek in Kenya’s Mau Forest, whose fate is to be determined by a Task Force whose report is due at the end of April. The Task Force report should be significant not only for the Ogiek, but for indigenous peoples in Kenya and Africa, with wider global repercussions.

The Ogiek have lived in the Mau Forest for centuries. Their struggle through courts to gain recognition of their ancestral domain through formal law has been a long one.

It culminated in a famous victory in the African Court of Human and Peoples Rights on the 26 May 2017 – the first meaningful regional court-determined recognition of indigenous peoples’ title to territory on the African continent.

The Court ruled that evictions of the Ogiek from their ancestral lands were illegal, and that the Kenyan government not only had an obligation to restore the communities to the forest, but they also had the obligation to determine how the issue of title could be resolved in perpetuity, and to pay reparations where appropriate. 

The ruling signalled a major breakthrough, wherein a post-colonial state was compelled to take measures in its formal law to recognize titles that could have been deemed to have been held by communities in customary law for centuries.

The disruption brought by colonial law included the grant and recognition of formal land titles over ancient lands, without due determination of who owned the original title, how it was deemed lost, and how it was considered acquired by its new owners.

For the Ogiek people, the ruling was a vindication of the existence of their right.

Their actual enjoyment of the right can only commence once the community had been restored to the forest, their title recognised, and the reparations due, paid.

The first post-judgement attempt to resolve the issue through a task force was unsuccessful, not least because of its design and method of operation.

Despite the international attention, the Ogiek have continued to face evictions, underlining the inherent difficulties in implementing even the clearest of judgments.

While conservation arguments have been used as justification for evictions of forest dwellers such as the Ogiek in Kenya and indigenous people in India, the fact is that the Forestry Services have either been complicit or unable to afford the level of protection necessary for the forests.

In Kenya, a new 16-member Task Force led by Dr. Robert Kibugi was appointed by the government in late October 2018, to re-examine the Ogiek issue and report within six months.

With the clock ticking, the Task Force is in the process of engaging in consultations to determine not only how the judgment can be implemented, but how the resolution of the Ogiek issue could breathe meaning into the progressive provisions of Article 63 of the Kenyan Constitution, which recognises the right of communities over community lands, including forests.

Dr. Kibugi and his Task Force have the unique opportunity to lay down a marker that could finally commence the process of decolonizing land and returning it to its original inhabitants, nearly a century and a half after colonial law first disrupted the existence of ancient systems.

Recognition of Ogiek rights to the Mau Forest is not only important to the Ogiek and other indigenous peoples in Africa and the globe, it could finally herald the start of processes whereby communities who best protect the forests, will once again have an opportunity to do so - repairing the damage done in the past and safeguarding the future. 

Joshua Castellino is the Executive Director of Minority Rights Group International and Professor of Law at Middlesex University

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