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Agnes Ngusilo stands outside the burnt remnants of her home after violent KFS raids that began on November 4th, 2023. (Kang-Chun Cheng for The Xylom)

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Another Day at the Courts with Kenya's Ogiek Tribe

The forest-dwelling Indigenous tribe’s decade-long international legal fight to halt violent evictions from the Mau Forest for carbon credits takes a local turn


One warm Monday in late December last year, the Environment and Lands Court in Nakuru — Kenya’s third largest city nestled in the Great Rift Valley region — is packed with rows of men and women donning capes of an elegant, rich brown. 

This is the attire of the Ogiek, an Indigenous hunting and gathering community dispersed across five of Kenya’s counties and one of the country’s most vulnerable communities. The Kenya National Commission on Human Rights (KNCHR), a watchdog body that oversees government institutions, is joining the Ogiek to sue the Kenya Forest Service (KFS) and the Ministry of Environment, Climate Change, and Forestry, among others. The legal fight aims to stop the recent spate of violence and inhumane abuses that have led to the illegal eviction of hundreds of Ogieks from their homes in the Mau Forest complex. 

At the home of Joseph Rotich in Kiptunga village, who had been harassed by KFS in November 2023. (Kang-Chun Cheng for The Xylom)

Kenya doesn’t have that many forests left. According to Global Forest Watch, in just the last two decades the Mau Forest lost over 19% of its tree cover — roughly three times the size of Washington D.C. The Mau, which straddles six counties, is the largest montane Indigenous forest in East Africa gracing the slopes of southwestern Kenya; around three-quarters of Ogieks, 20,000 strong, call this forest home.



This upcoming hearing will determine the Ogiek’s fates: whether their culture and language have any shot at continuity. Despite the enormity of what this day portends, the attendants are calm and collected, shuffling slightly as they wait on hard wooden benches for the hearing to proceed. It’s taken a lot of the community’s energy to come to court, says Daniel Kobei, Executive Director of the Ogiek’s Peoples’ Development Program, a grassroots organization. Some have traveled for more than one and a half hours on rough roads, plus hiking, from deep within the Mau to attend this court hearing.

“As a community, we have taken more than 20 years to fight for the same rights, even after Arusha Court,” he said.

Daniel Kobei (left) and Ogiek community members present at the December 18th court hearing in Nakuru, Kenya. (Kang-Chun Cheng for The Xylom)

Kobei is referring to a landmark case ruled by the African Court on Human and People’s Rights in Arusha, Tanzania in June 2022. The court determined that the Kenyan government had breached at least seven charter rights of the Ogiek, including the rights to religion, culture, and development, through the forceful removal of the Ogiek from the Mau Forest.

Considering the distress that Ogiek members have gone through, the African Court ordered the Kenyan government to begin consultations with the Ogiek to agree on how to share benefits from the natural resources and also to guarantee full recognition of the Ogiek. As Indigenous people, they should be privy to consultations for all development, investment, or conservation projects on their land.

“As a community, we have taken more than 20 years to fight for the same rights, even after Arusha Court.”

The Kenyan government has a proven track record of not only failing to respect the Ogiek’s rights to their ancestral lands but also its own rule of law. 

Even before the 157.85 million Kenya shillings (around $1 million at the time of the ruling) in reparations could be paid in the 17 months since Arusha Court, the Kenyan government turned on peaceful Ogiek communities in the Mau. Starting November 2nd, various communities living in the forest villages of Kiptunga and Sasimwani — in Nakuru and Narok County, respectively — found themselves subject to unexpected violence. Harassment ranged from slaps on the wrist — the destruction of bomas (fenced areas for livestock) or temporary confiscation of cattle and sheep — to having entire homes set on fire, with everything those families own going up in flames.

Victor Kamau (right), representing KNHCR, exits the Nakuru court on December 18th. (Kang-Chun Cheng for The Xylom)

KNCHR, represented by Victor Kamau, filed the needed paperwork for the December 18th court case but failed to serve Kenya Wildlife Service (KWS) with the suit papers. The case will be heard again on January 23rd, 2024; there’s an injunction on further evictions until then. Kamau cited KFS in particular for its contempt of court orders.

“As late as last week, KFS has been violating orders,” he noted. “Kenya is governed by the rule of law. We can’t have the government picking which laws to follow.”


 


Ogiek community members debrief with Kobei after the December 18th court hearing in Nakuru, Kenya. (Kang-Chun Cheng for The Xylom)

Outside the courthouse, Kobei debriefed with his fellow Ogiek attendees.

“We’re praying that the law must be obeyed,” he states. “Especially since Sasimwani and Kiptunga have been suffering the effects of heavy rains, evicting people in this weather has been particularly cruel.” 

“We’re praying that the law must be obeyed.”

Among the displaced, the elderly and young have been especially susceptible to illnesses. Hundreds of evicted children can no longer go to school. In the case of Sasimwani, St. Immaculate Primary School was also burned down by the KFS. Villagers rescued a mere handful of benches from the fire.

To date, the Ogiek have endured a long, painful history of abuse and land grabbing, beginning with discriminatory policies imposed by the colonial British government in the 1930s. 30-year-old Margaret Nasieku, born and bred in Sasimwani, says that they’ve always been a peaceful people. But the situation over the years hasn’t been without tension. The Maasai even have a derogatory term for those without cattle, ‘torrobo.’

She senses that neighboring Kalenjin and Maasai have been eying their land, and feels that if they were to leave the Mau for good, it won’t be long before others settle here.

Margaret Nasieku stands among the thick shrubs prevalent throughout Sasimwani, Kenya, by one of the portions of her grandfather's home that was destroyed by KFS. (Kang-Chun Cheng for The Xylom)

Leonard Mindore, the executive director of the community-based organization Program for the Heritage of Ogiek and Mother Earth (PROHOME), says that KFS’s actions have long revealed their true motivations. For decades, the government agency tasked with ecological conservation has been uprooting primary-growth forests, often replacing them with non-native tree ‘plantations’ for timber logging; as recently as June 2020, the KFS sparked local outrage over plans to clean out 1,500 acres of native trees in nearby Menengai Forest for eucalyptus trees, despite a law passed the same year banning the planting of eucalyptus trees near bodies of water.

The Mau Forest, spanning 400,000 hectares, is Kenya’s biggest water catchment area and receives some of the most rainfall in the nation. The conversion of the Mau into monoculture woods is not only detrimental to flora and fauna biodiversity, but has lowered the natural water tables in the region, says Mindore.

Leonard Mindore, the founder of PROHOME, outside his office in Nakuru. (Kang-Chun Cheng for The Xylom)

On the one hand, the KFS defended displacing the Ogiek by claiming that they are no longer adhering to traditional hunting and gathering livelihoods, but also keeping animals and farming within the Mau. On the other hand, for decades, the Kenyan government has made practically every aspect of the Ogiek’s traditional hunting and gathering livelihood illegal anyway (The Mau was declared a national forest reserve in 1954; beekeeping without a license and any form of hunting, even for subsistence, are illegal within Kenya’s protected forests.)

“Our children need balanced diets,” says Mindore. “Alex Lemarkoko’s (KFS’s chief conservator of forests) children drink milk. Why can’t ours?”

“No one cares about the health of the Mau Forest more than the Ogiek,” he continues. The Ogiek, despite political marginalization, fought hard over the decades to keep the Mau intact despite a bevy of developmental interests from neighboring ethnic groups, the KFS, and other political actors.

“No one cares about the health of the Mau Forest more than the Ogiek.”

Mindore explained that their struggle dates back to 1996, when Ogieks living in Kiptunga vehemently resisted the government, plotting to subdivide their forest into small fragments to dish out to non-Ogieks to curry political favor. Although they were successful in their resistance, it came at the cost of peace and even blood. “The government didn’t respect injunctions then, and they don’t respect them now,” says Mindore.

Donkeys carry loads of potatoes through Sasimwani in the Narok portion of the Mau Forest. (Kang-Chun Cheng for The Xylom)

And even if the Ogiek one day achieve formal recognition and are allowed to legally continue their traditional way of life, assuming the Kenyan government follows the Arusha court order, the Kenyan government has already lifted a six-year logging ban in 2023. This was done without resolving its existing corruption and enforcement issues in the KFS, which issues logging licenses, without the consultation of the Ogiek, and certainly without paying the Ogiek a fair share that lifts them out of poverty. 

“Our presence in that forest has always made KFS uncomfortable,” he continues. “Getting in the way of illegal tree cutting and charcoal burning — misgivings reported to higher officials — [KFS] feels that there’s always a bird's eye watching.”

An Ogiek lady in the forests of Kiptunga, the cattle she's guiding home not far behind her. (Kang-Chun Cheng for The Xylom)
 

On the tail of COP28, global pollution and resource allocation issues are more topical than ever. President William Ruto is hellbent on developing an international reputation as a pan-African climate leader. In November 2023, he was listed among TIME100’s climate leaders. “The key legislation to pass in the next year is progress towards a global carbon price reflecting the true cost of climate change,” Ruto told TIME. “Fair and equitable market access will allow us to build on each other’s strengths globally.”

Yet Ruto faces accusations of selling millions of hectares of Kenya’s forests to carbon-trading companies, such as the Emirati company Blue Carbon, without the consultation or blessing of the Indigenous people who live on those lands. This would be in direct violation of Article 11 of Kenya’s Constitution, which states that Parliament “shall enact legislation to ensure that communities receive compensation or royalties for the use of their cultures and cultural heritage.” 

In a written statement to the BBC in November, Blue Carbon denied any ongoing projects in Kenya but asserted that Article 6 of the Paris climate agreement prevents any project displacing Indigenous communities or vulnerable groups from being eligible for carbon credits.

Mindore says the Ogiek community suspects their recent evictions are part and parcel of the government’s strategy to pave the way for carbon credits. “They want us out [of the Mau] to show foreign investors that they’re serious.”

A donkey herder heads deep into the Narok portion of the Mau Forest to access Sasimwani village, home to hundreds of Ogieks. (Kang-Chun Cheng for The Xylom)

The Mau is a soft target since Ogieks lack a political voice, in elected office, or even as civil servants in the KFS. “Most of the time, these issues tend to take political dimensions,” he says. Without representation in government, it’s difficult to defend themselves in court or parliament.

“Without the forest, the Ogieks cannot survive. It is like removing a fish out of a lake — it will definitely die.”

Ogieks have a special connection to their forest, looking to it for medicinal herbs, shelter, and food. They used to hunt for buffalo, dik-diks, and wild pigs, gathering forest fruits and honey with wooden beehives, taking only what they needed. Like other Indigenous nations across the world, they represent the textbook definition of coexisting with their environment — but are pushed out by dominant groups under the guises of maintaining a “pristine wilderness”. 

Margaret Nasieku shares a few plums that she has foraged with her father, who is squatting in the ruins of his destroyed home and resolutely refuses to leave despite cold weather and heavy rains. (Kang-Chun Cheng for The Xylom)

“Without the forest, the Ogieks cannot survive. It is like removing a fish out of a lake — it will definitely die,” Mindore says. Each round of evictions destroys and disrupts the connection they have with their environment, he continues. “It’s quite traumatic.”

“Our message is very simple,” he states from his barebones office in Nakuru. “Respect the court decisions and implement the judgment.”


 

Margaret Nasieku heads deep into her former home in Sasimwani in the Mau Forest, which consists of several kilometers of steep trekking and crossing streams. (Kang-Chun Cheng for The Xylom)

Margaret Nasieku, donning a fuzzy white vest and fashionable leather boots, leads us up a steep climb deep into the Mau, past gurgling springs and loping valleys. She grew up in Sasimwani, a portion of the Mau in Narok County, in a family of 14. Besides keeping a few animals, she also harvests honey and farms produce like maize, green peas, and carrots.

She recalls the trauma of being raided by KFS on November 4th, 2023. They had seen KFS rangers arrive in a pack that day, destroying their neighbors’ properties before reaching the small mud-lined hut where she lived with eight sisters adjacent to their father’s home.

“We couldn’t imagine that they would do the same to us, which is why we didn’t remove anything from our homes,” she recalls. KFS lit their homes on fire, deaf to their pleas to stop, if they could talk to work something out. 

“They didn’t fight us because we didn’t argue with them,” Nasieku recounts, exhibiting astounding self-control. “It was so embarrassing, I felt very bad. Because this is the home we were proud of. All of our homes were here, we were raised here.” 

Benson Ngusilo's neighbors and family pitch in to help clean up the wreckage of his destroyed property. (Kang-Chun Cheng for The Xylom)

Outside the remains of her father’s home, charred ash lined the foundations of where she once lived. “After I watched everything they were doing, I asked myself why they are doing this to us. We’ve lived here for many years, even our ancestors. This is all about carbon credit, climate change, for them to get money.” 

“After I watched everything they were doing, I asked myself why they are doing this to us. We’ve lived here for many years, even our ancestors. This is all about carbon credit, climate change, for them to get money.” 

Nasieku is now forced to move to the nearest town center to rent a place to live. She does not have the money to do that and buy food for her children. Yet her father, 56-year-old Benson Ngusilo, refuses to leave.

“I have to stay here, to keep the wild animals away from their shambas (fields),” he says in Ogiek.

It’s been tough with the persistent rains; at altitude, the nights grow unforgivingly cold. Ngusilo had covered the wreckage of his home with a plastic tarp, but the police came and tore it away. He is now stoking a fire amidst the ruins of his home. 

Benson Ngusilo stokes a fire to keep warm amongst the wreckage of his home in Sasimwani, Kenya. He is determined to stay despite the illegal and violent evictions by the Kenya Forest Service a month prior. (Kang-Chun Cheng for The Xylom)

Mindore and Nasieku don’t have a problem with carbon credits as long as the government respects their rights. “We need to be part of that conversation though,” according to Nasieku. Mindore agrees. “You can’t violate our rights to do business — that won’t work.”

But Through property destruction, psychological terrorizing, and subsequent physical harm, Mindore inferred that the government’s message is that the Ogiek should move out voluntarily. 

“For the weak-hearted, they just might decide to leave,” he conceded. “But we as Ogiek are strong.”


An Ogiek man whose home was destroyed by KFS in November 2023. (Kang-Chun Cheng for The Xylom)

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Kang-Chun Cheng

KC 鄭康君 (b. 1995) is a Taiwanese-American photojournalist based in Nairobi, Kenya covering how climate change exacerbates insecurity, Indigenous communities' response to development, China-Africa relations, and outdoor adventure. She uses photography as a tool for storytelling.

KC has herded reindeer in the Arctic, roasted lamb with pastoralists in the mountains of Xinjiang, hitchhiked through Tunisia, harvested honey with the Yaaku in Kenya's Laikipia North, walked the Camino de Santiago, and free-dived on the south Sinai peninsula. Her bylines include The New York Times, Bloomberg, The Christian Science Monitor, Climbing Magazine, and Al Jazeera.

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