Course:CONS370/2019/Eviction for conservation: assessing the contested claims to Embobut Forest of the Sengwer Indigenous People versus the State of Kenya

The Sengwer is a forest indigenous people who, under customary law, claim rights to ancestral lands in and around the Cherangany Hills located in the Rift Valley province in western Kenya. Embobut forest in the Cherangany Hills, is considered to be a critical national watershed, and consequently the Sengwer has been under sustained attacks from the Kenya authorities. Since 1980s, in the name of conservation, enforced evictions have been repeatedly carried out by the Kenya Forest Service (KFS). The attacks escalated in recent years, disregarding the Sengwer People’s rights to lands and resources. Severe rights violations and adverse impacts on Sengwer people’s culture, health and life as results of the attack are concerning. The most astonishing event recently was the fatal shooting of Sengwer people during the latest wave of violence from December 2017 to April 2018. The KFS and Sengwer are not the only groups related to the conflicts. External donors including World Bank, the EU, and the Government of Finland are also involved through funding conservation projects that the Kenyan Government conducted in Embobut forest and that were criticized for rights violations. These issues shape our discussion about legal constraints on real practices of KFS, responsibilities of external donors, and land claims or land tenure as possible methods for defense of the Sengwer under protection of international law.

Description

The Sengwer hunter-gatherer people of the Embobut Forest and Kenya Forest Service (KFS)

Sengwer is a forest indigenous people whose traditional life practices are characterized by hunting, gathering, beekeeping, blacksmithing, handcraft, etc. Under customary law, Sengwer’s ancestral territories are located in and around the Cherangany Hills located in the Rift Valley province in western Kenya. In the 2009 census, Sengwer was registered to have a total population of 33,187 individuals around 13,500 of whom live in a part of the Cherangany Hills known as Embobut forest. Embobut forest is situated in the Elgeyo Marakwet County, and covers an area of approximately 22,000 hectares. It is one of the largest remaining continuous blocks of indigenous forest in east Africa. As a critical national watershed that serves large parts of Kenya, it was gazetted as a protected public forest in 1954, which ban occupation or activities in the forest without government permission . It was governed by the Forest Act 2005 and now by the newly passed Forest Conservation and Management Act 2016 (FCMA).

The Kenya Forest Service (KFS) is “a state corporation that was established under the Forest Act, 2005”, and commenced its operations in February 2007. This government security agency is mandated to “to enhance development, conservation and management of Kenya’s forest resources base in all public forests, and assist County Governments to develop and manage forest resources on community and private lands for the equitable benefit of present and future generations". Empowered by the FCMA, the KFS establishes a joint management agreement in any indigenous forests for management with any person, institution, and government agency or forest association .

Timeline of forced evictions in Embobut forest

Dispossession and encroachment onto the traditional lands of the Sengwer started under British colonial rule in 1895 . The evictions of Sengwer populations from the Embobut forest have been undertaken by Kenya authorities from 1980s to 2009 with the justification that the Sengwer and other communities living in the forest were responsible for forest degradation through over-population, tree-felling and over-grazing by livestock. From 2007 when the KFS went into its operation to 2013 when the High Court of Kenya prohibited the evictions after considering a petition from the Sengwer representatives, the KFS repeatedly attempted to displace Sengwer indigenous people living in the Embobut forest.

In 2009, the government established the Embobut Forest Task Force comprising local politicians, forestry officials, community representatives and civil society, in order to deal with the issues of deforestation and constant cycles of evictions by the KFS . It classified residents in Embobut forest into two categories. One is "genuine squatters" which were groups of people that had occupied Embobut forest for several generations, including dwellers identified as Sengwer and Kimala, permit holders, their sons (daughters were decreed as not inheriting permit-holder rights in traditional practices), people working for permit-holders (called "associates" in the Task Force), and landslide victims from Kerio Valley because of landslides in 1951 and 1961. The second category is "squatter" which includes "economic opportunistic seekers", and those who left the forest during the census process. Among all these categories, the Sengwer people were considered as "the largest and most deserving category of forest residents" and the relocation and resettlement was urgent in its report.

Between 2009 and 2013, the Task Force ran the consultation and intended to offer cash compensation to evicted people after it failed to find lands for the resettlement. However, the consultation, as argued by Amnesty International in its report that interviewed 114 Sengwer, violated the rights of Indigenous Peoples, and did not obtain their free, prior and informed consent. The process carried out by the Embobut Forest Task Force ended up with a notice to all residents in the forest to leave by 3 January 2014, and the mass forced evictions through home burning and arrests carried out by the KFS in January and February 2014. From April 2014 to April 2017, it is counted that there were 76 incidents of forced evictions when 2,531 houses were burned by the KFS. During the latest wave of forced evictions from December 2017 and April 2018, a Sengwer elder was shot at by forest guards, and a Sengwer man was shot to death and another one was seriously injured on 16 January 2018.

Tenure arrangements

Classification of land

Chapter 5 of the Kenyan Constitution of 2010 Article 61 states that "all lands belong to the people of Kenya collectively as a nation, as communities and as individuals". Thus, land in Kenya is classifies as public, community or private. Forest land can be any of these three types of land tenure categories in Kenya. In the Article 63, land that is "ancestral lands and lands traditionally occupied by hunter-gatherer communities" or "lawfully held, managed or used by specific communities as community forests, grazing areas or shrines" are identified as community lands. Since then, community ownership of ancestral lands and lands traditionally occupied by hunter-gatherer communities are established, and the rights of Indigenous Peoples such as the Sengwer at Embobut to their ancestral lands are recognized at the national level by the new 2010 Constitution.

Tenure arrangements in Kenya

Table 1: Tenure Arrangements

Land Category	Options for tenure arrangements	Applicable laws/governing arrangements
Private land	Freehold	1. Section 5(a) of the Land Act 2. Section 24(a) of the Land Registration Act
	Leasehold (by Kenyan citizen)	1. Section 5(b) of the Land Act 2. Section 24(b) of the Land Registration Act
	Leasehold (by foreigner) A term can't exceed 99 years	Article 65(1) of the Constitution
Public land	Freehold	The National Land Commission will decide the mode of land holding whether it shall be freehold or leasehold because the National Land Commission is mandated to administer public land
	leasehold
Community land	National Land Commission shall manage and administer all unregistered trust land and unregistered community land on behalf of the county government
Forest land	Forest conservancy	Section 13 of the Forests Act/ Section 20 of the FCMA 2016 provides that the Board of the Kenya Forest Service shall establish forest conservancy areas
	Leasehold	Conversion of land from one form of land tenure to another is determined by of the National Land Commission pursuant to section 9(5)(c) of the Land Act
	Freehold

By 1908, most of the major forest blocks had been reserved as forest area through gazettement. However, it was not until 1957 that the first comprehensive forest policy which outlined the protection of the forest estate and the sustainable exploitation of forest was established.

The Forest Conservation and Management Act 2016 (FCMA) allows management of the forest through a concession agreement. It allocates rights of use to individuals or organizations to conduct commercial forest management and utilization activities in a national or county forest by means of a long-term contract . KFS has entered into two concession agreements in Kibwezi and Ngare Ndare forests in Kenya, both of which are for ecotourism activities.

Land tenure in Embobut forest

Before independence, the Carter Land Commission of 1933 recommended to create Native Reserves for all the ‘native tribes’ who would govern the reserves under their customary tenure rules initially. but the report also recommended that the policy should be toward direction of private tenure. Natives held the title to the Native reserves, held in trust by the colonial government. After independence, county councils took over the trust and the land became known as trust land. Once trust land is set aside by the government for public purposes, local people cannot access to the land.

The residents living in the Embobut forest were classified by the Task Force into three categories: a) permit holders and their associates, b) landslide victims, and c) forest dwellers including Sengwer and Kimala. The permit holders were those who obtained permits from the colonial administration to live in the forest, and since then they had been living there until they were evicted.

In 1954, Embobut forest was gazetted as a reserved public forest. and the occupation and life practices of the Sengwer, other Indigenous Peoples and other communities in the forest were rendered as unlawful and forced evictions were conducted for conservation purposes.

Administrative arrangements

In 2009, after the Minister for Forestry and Wildlife toured the forest assessing the situation, the Embobut Forest Task Force was established in order to address the issues of deforestation and the constant cycles of evictions by the KFS. The Task Force consisted of local politicians, forestry officials, two Sengwer men and civil society; and 21 members out of 23 were men. The work of the Task Force played an important role in the eviction, because it was used to justify the government's decision to forcefully evict residents from the Embobut forest, and it categorized forest residents affected by the eviction and verified those eligible for compensation. The Task Force reported their findings in the work document which was supposed to be circulated to and studied by the Ministry of Forestry and Wildlife, special Programme [what is this? clarify] and all stakeholders. After that, the Ministry of Special Program offered the recommendation for the validation of the documents which then was implemented by the Task Force. By gathering community members to discuss matters of concern (i.e., public barazas)[provide a meaning for barazas] in all glades in 2012, the Task Force finished "genuine squatters" listing and forwarded the result to the Ministry of Special programme. The work of finding alternative lands for resettlement of these forest evictees fell on the relevant ministries under the direction of the government. In practice, the official consultations were irresponsible, and resulted in rough and unchanged identity authentication, not suitable with the reality of the compensation system, and the gender bias. the real victims not only lost their home, but also cannot get the corresponding compensation.

Based on a newly published research paper, the Embobut forest is jointly managed by the KFS and local communities. Two forest stations which are Chesoi and Kapyego serve as administrative centers under the supervision of an Ecosystem Conservator who in turn reports to the head of conservancy, North Rift Conservancy based in Eldoret. In addition, there is a Zonal Forest Manager based at Kapsowar in charge of the administration of Marakwet Sub-county forests on behalf of the Ecosystem Conservator.

Affected Stakeholders

Sengwer community is an indigenous community of Kenya who lives in the Embobut forest in western Kenya, mainly as hunter-gatherers. The indigenous identity of the Sengwer community, also referred to as the “minorities and marginalised groups” in the Kenyan Constitution, is recognized by international human rights organizations, including the United Nations, Amnesty International and the Kenya Human Rights Commission. They have a history of hundreds of years of residence and their value of this forest indicates they are potentially productive partners in managing their lands. In addition, it is clearly stated in Article 56(a) in the Constitution of Kenya “The State shall put in place affirmative action programmes designed to ensure that minorities and marginalised groups participate and are represented in governance and other spheres of life”, and community land is clearly indicated in Article 63(d) as “lawfully held, managed or used by specific communities as community forests, grazing areas or shrines; ancestral lands and lands traditionally occupied by hunter-gatherer communities lawfully held as trust land by the county governments.”. This fully demonstrates that the Sengwer community's survival and law-abiding management in the Embobut forest is protected by their Constitution.

Conversely, the Kenyan government does not recognize the existence of residents in the Embobut forest, and think that Sengwer people are illegal 'evictees' or 'squatters' and then in order to authorize environmental protection projects financed by outsiders, they forcibly expelled Sengwer people. Although the rights of the Sengwer community are protected by the Constitution of Kenya, they are still not recognized by the local government, so their ability to influence decisions over any aspects in forest and even in their own life is very small, that is, they have small power in several environment conservation programs funded by outside organizations including Water Towers Protection and Climate Change Mitigation and Adaptation (WaTER) project funding by European Union(EU), Miti Mingi Maisha Bora programme funding by government of Finland, World Bank-funded Natural Resource Management Project (NRMP), Reducing Emissions from Deforestation and Forest Degradation(REDD+ programme) funded by United Nations Development Programme (UNDP) and the Japan International Co-operation Agency (JICA). And in the years of evictions, they can only seek help from outside international organizations. Their violent expulsions have received widespread international attention. However, as they tried their best to protect their rights and kept going to the relevant department to post a complaint, they indeed have had some sort of power of making their plight visible to the outside world.

Interested Outside Stakeholders

Since the entire violent phase lasted for a long time and involved many different international groups, there are many related interested stakeholders. They are mainly divided into three categories: one is the Kenyan government that implements the expulsion, and its agents and state-owned enterprises. The second category are the external governments and organizations that have invested in environmental protection projects in the Embobut Forest. The third category are NGOs and Amnesty International that investigate and publicize events after the violent events happened.

The first is the first type of interested stakeholders, including the Kenyan government, the Elgeyo Marakwet county government in the county where Embobut Forest is located, and the Kenyan government's agency, Kenya Forest Service (KFS), the main executor of violence, and the state-owned company, Kenya Wildlife Service. The above stakeholders were involved in the discussion and establishment of several conservation projects and were involved in Sengwer's eviction. Compared to the Sengwer community, they all have more influential power.

Governments and international organizations investing in Kenya projects include the EU, government of Finland, World Bank, UNDP and the Japan International Co-operation Agency. They are all committed to protecting water and forest ecosystems, reducing carbon emissions, and enhancing resource utilization. Even though they all have a lot of voice and decision-making power, they all neglected to consider the rights of local indigenous people at the beginning of the plan, so that majorly all of them received complaints from the Sengwer community after the eviction. In the end, most of the projects were abandoned.

Finally, the involvement of Amnesty International and the Kenya National Commission on Human Rights (KNCHR) led to the subsequent impact of the Miti Mingi Maisha Bora programme and the REDD+ programme.

Discussion

Years of violent expulsion have involved four major projects, including NRMP, WaTER, Miti Mingi Maisha Bora programme and REDD+ programme. We will analyze whether they are successful or fail on the basis of land issues.

Initially, between 2007 and 2013, the Kenyan government and World Bank implemented the Natural Resource Management Project (NRMP). The objectives of the project are “to enhance the institutional capacity to manage water and forest resources, reduce the incidence and severity of water shocks in river catchments, and improve the livelihoods of communities' participation in the co-management of water and forests. Achievements under the project will be measured by indicators tracking changes in organizations and their performance, in the health of the natural resource base, and in welfare of participating communities.”. And there is a clear commitment to the project to maintain the decision-making power of the rights-based communities such as hunter-gatherers, forest dwellers and pastoralists, and vulnerable groups. However, the government’s persecution behavior increased after the project began. After the Sengwer community submitted a complaint to the World Bank’s Inspection Panel, after investigations and negotiations, a consensus was finally reached.

The Water Tower Protection and Climate Change Mitigation and Adaptation (WaTER) project is a large-scale project funded by the EU and launched at September 2016. The purpose of this project is to help Kenya's 11 counties in forest management, climate change mitigation and conservation of water sources, including Elgeyo Marakwet where Embobut forest is located. Unfortunately, the project document does not recognize the rights of the inhabitants of the Embobut forest at all. Moreover, under the premise that the people of Sengwer were not involved in the decision-making, the members of the EU provided Amnesty International with Sengwer-approved information on the implementation of the project. During the Sengwer community, the letter was sent to the EU several times. Eventually after the shooting incident, the EU made an indication that the funding was terminated under human rights considerations.

The Finnish government funded the Miti Mingi Maisha Bora programme in 2009. The main goal is "A reduction in poverty through ensuring that the forest sector contributes effective and sustainably to improve the lives of the poor, restoring the environment, and aiding the economic recovery and growth of Kenya, within the context of Vision 2030.". However, the Finnish Ministry of Foreign Affairs denied the occurrence of the eviction incident and claimed that the local government stated that all displaced families were subsidized and voluntarily moved out of the forest. The representative of Sengwer sent a letter to the Finnish government in January 2018 in hopes of ending the investment. Eventually, Embobut forest was removed from the geographic scope because of pressure from the people in Finland.

The last REDD+ programme, launched in 2017 by the UNDP and the Japan International Co-operation Agency (JICA), aims to reduce carbon emissions, deforestation and forest degradation, with better progress than the first three. Under the efforts of the Sengwer people and various outside efforts, the land use rights of the Sengwer community were recognized, but the sharing benefits of projects were still not stated.

Obviously, under the premise of indigenous land rights, these four projects are failures. Analysis of the four projects we can see that the rights of the Sengwer people are maintained through their own efforts, and the Kenyan government has no repentance at all. All restrictions on the Kenyan government come from financial restrictions. Moreover, the human rights of investors and their awareness of the problem of community land are also weak. It shows that indigenous rights often require the assistance of international organizations.

Assessment

Sengwer community: As mentioned earlier, the Sengwer community is constitutionally empowered to live and produce in their own ancestral forest.

Kenya Forest Service (KFS): A department established by the Kenyan Parliament in 2005 with authority under the Forest Act. It acts as the agency of the Kenyan government and its tasks include but are not limited to”receive and consider applications for licenses or permits in relation to forest resources or management of forests or any other relevant matter in accordance with this Act;” and “assist county governments to build capacity in forestry and forest management in the counties.”.

Elgeyo Marakwet county government: Elgeyo Marakwet county government’s mission and rights about communities are clearly stated in The Forest Conservation and Management Act, 2016”PART II—ADMINISTRATION 21. (1) Each County Government — (e) shall advice and assist communities and individuals in the management of community forests or private forests; and; (f) may enter into joint management agreements with communities or individuals for the management of community forests or private forests.”.

External donors: Donors are the providers of funds, and the main management methods are monitoring and providing technical financial support and upholding international best practices.

Recommendations

The forced evictions including house burning and arrests of Sengwer people, and other practices including harassment and threatening behaviours that violate human rights of the Sengwer indigenous peoples should be stopped. The government should accept the fact that Sengwer are indigenous people who have rights to their ancestral territory in the forest, and recognize and respect the strong connection between the land and their livelihood, culture, spirit and knowledge.

Before the arrival of other communities with increased population and introduction of different livelihoods that created greater pressure to the forest and led to degradation, the Sengwer successfully conserved the forest for many generations. Thus, instead of eviction or resettlement, the government may need to conserve the forest through co-management with the indigenous communities, so that a win-win result may be achieved. This may require the government to create proper policy and institutions to incorporate indigenous people into decision-making and discussion processes about the challenges and measures. a, their culture, spirituality, livelihood and identity depend on the forest.

The government should ensure that the consultation does not violate the rights of the Sengwer people. It should encourage the effective and sufficient participation of the Sengwer people regardless of the age and gender, and are accordance with their culture. In other words, the consultation should obtain the Sengwer's free, prior and informed consent to any practices that may affect them. When the eviction is justified in the name of the greater good, the government should offer affected communities negotiated compensations in time to avoid the sufferings due to the evictions. After the recovery of the forest, they should be allowed to come back to their ancestral lands. For the external donors funding projects in Embobut forest, they should also recognize the Sengwer as indigenous people and ensure that the projects in Embobut do no violate human rights, and require the obtaining of the Sengwer's free, prior and informed consent. Funders should also encourage governments to provide convenient and effective pathways through which the affected indigenous people can report any violations during the period of the projects.