By Katy Migiro
NAIROBI, July 21 (Thomson Reuters Foundation) - Samburu herders in Kenya are fighting for control of 17,000 acres of land that a former president sold to become a national park, in a case fraught with tensions over conservation and colonial dispossession.
The Samburu, a semi-nomadic people with the same language and culture as the Maasai, claim ownership of the disputed ranch in Kenya's troubled Laikipia County, saying they squatted on it for 25 years before being evicted for wildlife conservation.
After an 8-year court battle, judges last month rejected their claim, clearing the way for the land to be turned into Laikipia National Park, managed by government-owned Kenya Wildlife Service (KWS).
"The positive ruling is great news," Paul Gathitu, a spokesman for KWS said in emailed comments, adding that the agency can now "take full control of the property" which the Samburu say is home to thousands of their people.
The case comes at a time when protected areas around the globe are expanding in a bid to save endangered wildlife and boost tourism revenues, pitting conservationists against marginalised people facing loss of their traditional lands.
Laikipia is Kenya's second most important wildlife region after the Maasai Mara, with elephants, lions and rare rhinos roaming its vast plains.
Fearing eviction, the Samburu have filed a notice of appeal in Nyeri's environmental and land court, 100 kilometres (62 miles) north of the capital, Nairobi.
"We are dissatisfied with the judgment," their lawyer, Lempaa Suyianka, told the Thomson Reuters Foundation by phone.
"Here are people with no alternative places to live, people who are born there... They have nowhere else to go."
The case attracted international attention because the disputed land, Eland Downs, was sold for $4 million by Kenya's longest serving president, Daniel arap Moi, in 2008 to the Washington-based African Wildlife Foundation (AWF).
Half of the funding came from The Nature Conservancy (TNC), one of the largest U.S. environmental charities.
At its heart, the dispute is about whether the Samburu squatted on the land from the early 1980s, as they testified in court, or whether they invaded after AWF bought it.
"When we acquired the property it was vacant," Kathleen Fitzgerald, AWF's vice president for East African programmes said in a phone interview.
"When there were invasions on the property... we essentially said the landowner needed to sort out the matter."
Violent police evictions in 2010 and 2011 prompted an outcry from rights groups and international media, who said an old man was shot dead, women were raped and huts were burned.
"Nobody on the AWF/TNC side ever authorised the police action," said Matthew Brown, TNC's Africa conservation director.
"That was all done by the seller of the property."
A report for TNC by the International Labour Organization said the charities' decision to make a "closed-doors deal" was a "recipe for conflicts".
Under international law, indigenous people have a right to be consulted on any decision that can affect them, including on land that they use but do not own, it said.
"There does not seem to have been sufficient due diligence and consultations with the community... despite the fact that evictions in Kenya by state security agents are well known to be characterised by violence and high handedness," it said.
TNC now ensures that it seeks consent from indigenous people before starting projects that affect them, Brown said.
The Samburu legal case rests on the principle of adverse possession, whereby someone who has lived continuously on a piece of land for 12 years can gain ownership.
They also claim ancestral rights, saying the British forced their Maa-speaking ancestors off the land a century earlier to give it to white settlers.
In its June judgment, the court dismissed the adverse possession claim as Moi only owned the land for 11 years prior to the 2009 evictions, after buying it in late 1997 from Ol Pejeta, a cattle ranch.
It did not consider the period from 1981 to 1997, when the Samburu said they also lived there, because Ol Pejeta, which received the title to the land in 1962 from the colonial government, was not named as a respondent in the case.
The influence of the former president, who retired in 2002 after 24 years in power characterised by endemic corruption, has tainted the case, supporters of the Samburu said.
As AWF came under fire over the evictions, it gifted the land in 2011 to KWS, despite a court order for the status quo to be maintained until the case was concluded, in a move described by the TNC report as an "escape strategy".
"How can a court be so toothless?" said Gertrude Angote, executive director of Kituo cha Sheria, a legal aid charity which is an interested party in the case.
Juma Kiplenge, Moi's lawyer, declined to comment, saying: "The court has ruled on it".
The case was also "unfair", Suyianka said, because the judge asked the Samburu, many of whom are poor and illiterate, to pay for helicopters to take the court to see the disputed land.
"The rights of the petitioners were violated (by) imposing onerous conditions on the site visit," he said.
Human-wildlife conflicts are intensifying amid climate change and population growth, as armed herders often get into deadly shootouts with rangers trying to stop them grazing illegally in conservancies.
"You can't wish them away," said Richard Leiyagu, one of the plaintiffs, calling for the government to settle the squatters.
"Maybe after another ten years it will be unmanageable... The whole of Laikipia will not be in peace."
The TNC report warned that "making Eland Downs a National Park would be another significant mistake and one likely to trigger further conflicts".