CIVILCASE NO 238 OF 1999 (OS)
REPUBLIC OF
KENYA
IN THE HIGH
COURT OF KENYA AT NAIROBI
CIVILCASE NO 238 OF 1999 (OS)
FRANCIS KEMAI .................................................................................. | 1ST APPLICANT |
DAVID SITIENEI ................................................................................... | 2ND APPLICANT |
KIPSANG KITEL .................................................................................. | 3RD APPLICANT |
WITSON MARTIM ................................................................................ | 4TH APPLICANT |
WITLLIAM KIRINYET ............................................................................ | 5TH APPLICANT |
JOEL BUSIENEI .................................................................................. | 6TH APPLICANT |
JOSEPH BARNO ................................................................................. | 7TH APPLICANT |
SAMUEL SITIENEI ............................................................................... | 8TH APPLICANT |
DAVID KORIR ...................................................................................... | 9TH APPLICANT |
JOSEPH KU'LANGATROTICII ................................................................ | 10TII APPLICANT |
VERSUS | |
THE ATTORNEY GENERAL .................................................................. | 1ST RESPONDENT |
THE PROVINCIAL COMMISSIONER | |
RIFT VALLEY PROVINCE ..................................................................... | 2ND RESPONDENT |
RIFT VALLEY PROVINCIAL FOREST OFFICER ..................................... | 3RD RESPONDENT |
DISTRICT COMMISSIONER | |
FOR N/VKURU ..................................................................................... | 4TH RESPONDENT |
JUDGMENT
In this suit instituted by way of an originating summons (which plaintiffs
called an "originating Motion" which all the parties had no doubt was meant to
refer to the "originating summons"), the 5,000 members of the Ogiek ethnic
community, ten of whom are expressly impleaded as plaintiffs representing
themselves and the rest of the others who consented to be so represented in this
suit, have moved this court (after leave of the court for that purpose) to make
two declarations and two orders, that is to say:
(a) a declaration that their eviction from Tinet Forest by the Government (acting
by the provincial administration) contravenes their rights to the protection of
the law, not to be discriminated against, and to reside in any part of Kenya;
(b) a declaration that their right to life has been Kenya; contravened by the
forcible eviction from the Tinet Forest;
(c) an order that the Government herein represented by the Attorney-General,
compensates the plaintiffs; and
(d) an order that the defendants pay the costs of this suit.
The plaintiffs seek these declarations and orders on the basis of their pleaded
averments that they have been living in Tinet Forest since immemorial (counting
the time their community began living in the area) and yet after virtually daily
harassments by the defendants, the plaintiffs are now ordered to vacate the
forest which has been the home of their ancestors before the birth of this
Nation, and which is still the home of the plaintiffs as the descendants and
members of that community, even after their ancestral land was declared a forest
as far back as the early colonial rule and has since remained a declared forest
area to this day. They complain that the eviction is coming after the
Government had finally accepted to have their community settled in Tinet Forest
and a number of other places like Marioshoni, Tieret and Ndoinet, among others.
They say this Government acceptance was in 1991; and between 1991 and 1998 the
community settled in the area in question, with the full co-operation of the
Government which issued letters of allotment of specific pieces of land to the
individual members of the community each of whom was shown the precise plots on
the ground, whereupon the community has embarked on massive developmental
activities, building many primary schools and trading centres, carrying out
modern crop farming and animal husbandry and other economic management, and the
construction of permanent and semi-permanent residential houses.
So, the plaintiffs say that when in May last year (1999) The Government through
the District Commissioner, issued a fourteen days' ultimatum, followed a few
days later with a re-iteration of the threat to the community to vacate or risk
a forceful eviction from the forest and their ancestral land, they considered
the ultimatum and threat a violation of their aforesaid rights and that it was
so real and eminent that the eviction must be stopped, to avoid irremediable
harm befalling the plaintiffs and their children and the community generally.
They say that tension in Tinet Forest, following the threat is so high that
unless the Government stops making good its threat there may be a breakdown in
law and order in what the plaintiffs call "a clash". They say that their
constitutional rights guaranteed under sections 71, and 82 of the Constitution
of Kenya, are at stake. They say that is the reason they are before us, seeking
the declarations to which we have already adumbrated: that is to say, that
Tinet Forest, admittedly one of the country�s gazetted forests is their
ancestral home where they derive their livelihood where they gather food and
hunt and farm, and they are not going to go away; they do not know any other
home except this forest: they would be landless if evicted.
It was said on their behalf, that the applicants depend, for their livelihood,
on this forest, they being food gatherers, hunters, peasant framers, bee keepers,
and their culture is associated with this forest where they have their
residential houses. It was said that their culture is basically one coneerned
with the preservation of nature so as to sustain their livelihood. Because of
their attachment to the forest, it is said, the members of this community have
been a source of the preservation of the natural environment; they have never
been a threat to the natural environment, and they can never interfere with it,
except in so far as it is necessary to build schools, provincial Government
administrative centres, trading centers, and houses of worship (to wit, the
Roman Catholic Church buildings).
The four respondents, on behalf of the Government, answered the applicants by
stating that the applicants have not disclosed the truth of the matter
concerning this case; and, according to the respondents, the truth of the matter
is that these applicants and the 5000 persons they represent, are not the
genuine members of the Igiek community, and they have not been living in Tinet
Forest since time immemorial; for, the genuine members of the Ogiek community
were settled by the Government at Sururu, Likia and Teret. The respondents said
that in the period between 1991 and 1998 the Government, intending to degazette
a part of Tinet Forest to settle there landless Kenyans, proceeded and issued
some allocation of land documents certifying that the individuals named in each
card and identified therein, had been allocated the plot of land whose number
was stated in the respective cards, copies of which were exhibited before us in
court. According to the respondents those documents were not letters of land
allotment but a mere promise by the Government to allocate those people with
land if it became available; but, nevertheless, the applicants were not amongst
the people who were issued with those cards anyway.
The respondents say that the government later realized that the part of Tinet
Forest which was intended to be degazetted for settling �the applicants� was a
water catchment area, and the Government shelved the settlement plan; and when
the Government discovered that the applicants had entered Tinet Forest
unlawfully, it, through the chief conservator of forest, gave the applicants a
notice to vacate the forest with immediate effect. The district commissioner
for Nakuru District under which the Tinet Forest falls says that he gave notice
to the applicants to vacate the area because the applicants had entered and
settled there unlawfully. He has never harassed the applicants, but instead he
has advised them to vacate the Government gazetted forest peacefully. The legal
advice the district commissioner has received and verity believes to be correct
is that "those rights and freedoms enshrined in the Constitution are subject to
limitations designed to ensure that their enjoyment by any individual does not
prejudice the rights and freedoms of others or the public interest."
Concerning the position taken by the applicants that they are completely
landless, the respondents say that that is not the true position, and that
archival administrative records availed from our National Archives show the
contrary and that the colonial Government resettled the applicants elsewhere,
along with other WaDorobo people. But after the said resettlement elsewhere,
some people entered the Forest of Tinet, with an intention to dwell there
without any licence given by the forests authority on behalf of the Government.
The unauthorized occupation of the forest has been followed by numerous
evictions since the date of the gazettement of the forest as such. The
Government's 1991-1998 plan to settle all landless persons (including some Ogiek
people) was purely on humanitarian considerations, but the programme did not
materialise when it was later found that to go ahead with it would necessarily
result in environmental degradation which would adversely affect the role of the
forest as a natural forest reserve and a water catchment area, with dire
consequences for rivers springing from there which, presumably sustain human
life, the fauna and the flora there and downstream and their environs. So the
plan was shelved, at least for the time being.
Concerning the claim of the applicants that the eviction was selectively
discriminatory against them atone, the respondents answered by denying any
discrimination and staled that all persons who have invaded the forest are the
subject of the eviction. Regarding the applicants' averments that the eviction
would deprive them of their right to livelihood, the respondents say that this
allegation is not true, because the applicants have not been dependent on forest
produce alone, because, they also keep livestock. The applicants' statements
that there are massive developments in the area are denied by the respondents
who add that livings like building schools and churches could 1191 be done
without the express authorisation of the commissioner of lands as the custodian
of Government Land [This aspect suggests that there was no such express or any
authorisation].
The respondents say that the forest in question is still intact, and no
sub-division and allocation of any piece-of land thereto anyone has been
approved or effected.
The local Catholic Diocese of Nakuru came into this litigation on the side of
the applicants, expressing its interest in the matter for three reasons, namely,
first, that the Diocese has built churches and schools in the disputed area and
is, therefore, a stakeholder on any issue touching on that land; secondly, that
in the event of an eviction of the applicants taking place as it is threatened,
such action is likely to impenge on the operations of the Church in the area,
because the persons adversely affected by the eviction are likely to seek
assistance (both material and spiritual) from the Church, and the Church is
likely to incur tremendous amounts of monetary expenditure trying to look for
alternative accommodation for displaced persons; and thirdly, that the Diocese
is interested in the outcome of this case, and that is why it has stood by the
applicants in these proceedings. No affidavit was filed on behalf of the
Diocese, but it adopted everything filed by and for the applicants in seeking
declarations and orders which we specified at the beginning of our judgment
herein. The Diocese adopted the factual exposition laid out for the applicants.
From the historical records furnished to the court in these proceedings it is
plain that by the time of the second phase of the colonial evolution and
organisation of racial segregation by the creation of African ethnic land
reserves through legal regimes enacted in the early 1930's particularly
following the Land Commission (commonly referred as the Carter Commission), Cmd
4556, 1934, which had actually started its work as early as 1930 there were
found in an area including Tinet Forest, peoples whose changing nomenclature and
profusion of alternate names of the sources of confusion, just as the simplistic
and indiscriminate groupings and the misleading lumping together of those
diverse peoples is not helpful in distinguishing and identifying which persons
are being referred to. But in these proceedings it was agreed that the people
found the area in question in the 1930's were Ndorobo or Dorobo or Wandorobo,
being variant terms of the Maasai term Torobo, meaning poor folk, on account of
having no cattle and reduced to eating the meat of wild animals (caters of the
meat of wild animals), and were, in their primary economic pursuit, hunters and
gatherers limiting game and collecting honey. They commonly inhabited highland
forests in the past; but with the intrusion of the white settlers they were
dispersed to the plains, although they preferred their accustomed elevations,
with forests as their natural environment where they found safety, familiarity
and food. They left their refuge of foliage with the greatest reluctance,
thanks to their honey complex.
Amongst the Dorobo is a group called Okiek, or Ogiek, living in close proximity
to Kalenjin-speaking peoples, such as the Nandi and the Kipsigis, and they speak
a Kalenjin-related dialect, and bear many overt cultural characteristics of
their said neighbours. Traditionally they were highland hunter-gatherers
inhabiting the southerly highland areas and the fringes of the tower forests.
But as Andrew Fedders and Cynthia Salvadori in their useful study, Peoples, and
Cultures of Kenya, (1979), at p14, tell us, to-day's Ogiek "is not the sum of
an age-old pre-food-producing past�, and to uninitiated eyes they disguise their
elemental hunter-gatherer cultural characteristics and, indeed, as those learned
authors write about these people (at p 15), these people to-day attempt to herd
or cultivate so that hunting has become a secondary economic pursuit for them;
and although the social value of honey is incalculable, it "has never
constituted more than one-fifth of their diet", and is only a pre-eminent
element in ritual and social communication through exchange. It is said that
their attachment to place is proverbial, yet they have always been mobile and
normadic within the general bounds of their hunting and gathering grounds. Their
rights "specifically involve qic collection of honey and extend to hunting and
gathering" wild vegetables, roots and berries.
One matter sharply illustrates the clear change from the traditional cultural
way of life to a-very different modem lifestyle of a present-day Ogiek. Studies
show an Ogiek of yesterday as one characterised by a simplicity of material
culture. Home is a dome-shaped hut constructed from a frame of slicks, twigs
and branches and thatched with leaves or grass; a semi-permanent shelter, easily
abandoned, and no burden when people move. These traditional shelters contrast
sharply with the modem houses of corrugated iron-sheet roofs and glass windows,
whose photographs this court was shown by the applicants. The schools and
churches the applicants have built; the market centres developed, and
agricultural activities engaged in, are all evidence of a fundamentally changed
people. It boils down to one thing. It belies the notion that these people
sustain their livelihood by hunting and gathering as the main or only way out
to-day.
They cannot be said to be engaging in cultural and economic activities which
depend on ensuring the continuous presence of forests. White the Ogiek of
yester-years shaped his life on the basis of thick forests or at least
landscapes with adequate trees and other vegetation, one of to-day may have to
clear al least a part of the forest to make room for a market centre. White
yesterday's Ogiek lived in loosely organised societies lacking centralised
authority, resulting in a social fluidity which enabled him to respond to the
slightest changes in his environment with an essential sensitivity and speed on
which his very life may depend, an Ogiek of to-day, we are told by the
applicants in their sworn affidavit, lives under a chief who was until recently,
his own son. White Ogieks of perhaps the yonder past were bound by honey, those
of today, as we have seen from the applicants' affidavits, are bound by the
spirit of the Church.
So, whilst in his undiluted traditional culture the Ogiek knew their environment
best and exploited it in the most conservational manner, they have embraced
modernity which does not necessarily conserve their environment. As we have just
said, they cannot build a school or a church house or develop a market centre,
without cutting down a tree or clear a shrub and natural flowers on which bees
depend, and on which bee-hives can be lodged, from which honey can be collected
and from which fruits and berries can be gathered. The bush in which wild game
can be hunted is inconsistent with the farming (even though the applicants call
it peasant farming) they tell us they are now engaged in. Their own relatively
permanent homesteads cannot also be home of wild game which the applicants want
us to believe to be one of their mainstay. As the applicants dig pit-latrines or
construct other sewage systems for schools, market places, residences, etc, as
of necessity they must have, they obviously provide sources of actual or
potential terrestrial pollutants.
Plainly, therefore, for the applicants to tell the court as they did that they
lead a life which is environmentally conservational, is to be speaking of a
people of a by-gone era, and not of the present. Professor William Robert
Ochieng' in his study of the histories, development and transformation of
certain societies of the Rift Valley, groups the Ogiek people amongst
communities whose character as predominantly hunter-gathers who practised very
minimal agriculture subsisted only up "until the middle of the eighteenth
century", and that is when they "did not have cattle" and lived by hunting; but
from "the middle of the seventh century" their economy had begun to change:
William Robert Ochieng, An Outline History of the Rift Valley of Kenya Upto AD
1900, (1975, reprinted 1982), at p 10.
It is on record and agreed in these proceedings, that the colonial authorities
declared the disputed area to be a forest area and moved people out of it and
translocated them in certain designated areas; and the area has remained
gazetted as a forest area to this day, under the Forests Act (cap 385). One of
the effects of declaring the area to be a forest area was that it was also
declared to be a nature reserve for the purpose of preserving the natural
amenities thereof and the flora and fauna therein. In such a nature reserve, no
cutting, grazing, removal of forest produce or disturbance of the flora shall be
allowed, except with the permission of the director of forestry, and permission
shall only be given with the object of conservation of the natural flora and
amenities of the reserve. Hunting, fishing and the disturbance of the fauna
shall be prohibited except in so far as may be permitted by the director of
forestry in consultation with the chief game warden, and permission shall only
be given in cases where the director of forestry in consultation with the chief
game warden consider it necessary or desirable to lake or kill any species. The
director of forestry or any person authorized by him in that behalf may issue
licences for all or any of the enumerated purposes, upon such conditions as may
be approved by the director of forestry or upon such conditions and subject to
payment of such fees or royalties as may be prescribed; but no licence shall be
issued for any purpose in respect of which a licence is required under the
Wildlife (Conservation and Management) Act (cap 376) or under the Fisheries Act
(cap 378).
The activities in The forest, which require the aforesaid licence, and are
otherwise prohibited unless an actor has a licence to do so, include felling,
culling, burning, Injuring or removing any forest produce, which includes back,
beeswax, canes, charcoal, creepers, earth, fibres, firewood, fruit, galls, grass,
gum, honey, leaves, limestone, litter, moss, murrain, peat, plants, reeds';
resin, rushes, rubber, sap, seeds, spices, stone, timber, trees, wax, withies
and such other things as the minister may, by notice in The Gazette declare to
be forest produce. Another prohibition, unless done with a licence, is to be or
remain in a forest area between the hours of 9 p.m. and 6 am, unless one is
using a recognized road or footpath or is in occupation of a building authorized
by the director of forestry.
Others of The various prohibitions which are relevant to the present case, are
that as a rule, no person shall, except under The licence of (the director of
forestry, in a forest area, erect any building or cattle enclosure; or depasture
cattle, or allow any cattle to be therein; or clear, cultivate or break up land
for cultivation or for any other purpose; or capture or kill any animal, set or
be in possession of any trap, snare, gin or net, or dig any pit, for the purpose
of catching any animal, or use or be in possession of any poison or poisoned
weapon; but capturing or killing an animal in accordance with the conditions of
a valid licence or permit issued under The Wildlife (Conservation and
Management) Act is allowed. No one is allowed to collect any honey or beeswax,
or to hang on any tree or elsewhere any honey barrel or other receptacle for the
purpose of collecting any honey or beeswax, or to enter for the purpose of
collecting these things or any of them to be in the forest with any equipment
designed for the purpose of collecting honey or beeswax.
Sections 9 to 13 of The Forests A-'l set out certain statutory measures to be
taken to enforce the prohibitory provisions of the Act. Nothing in The Act
suggests that those measures are comprehensive and exhaustively exclusive.
Certain penalties of a criminal nature following a successful criminal
prosecution under the Act are also prescribed. Again nothing in the Act
suggests that those are the only penal or remedial sanctions under the law to be
exacted. In The Act there are also provisions for the forests authorities to
have recourse to extra-curial self-help actions to deal with the law
transgressors. As we had the misfortune of the learned advocates for all the
parties not addressing us satisfactorily on this important legislation and its
import, we had no advantage of benefiting from their expressed respective
positions on the Act, and we only raise it because it is in our minds as we
consider the presence of the applicants and other persons in the forest area in
question. It is one of the laws relevant to the subject; nobody has challenged
its prohibfli6i1sŤand its permit and licensing requirements; and he who has not
shown that he has complied with that law or any other law applicable, for him to
be in the forest area and to exploit and enjoy its natural endowments should
surely not be heard to seek the help of the law to protect him from positive
action taken to help him desist from acting in disregard of the law of the land.
It was conceded by Mr. Mirungi Kariuki for the interested partly, and by
extension, by Mr. Sergon for the applicants, that the applicants and/or their
forefathers were repeatedly evicted from this area but they kept on returning to
this forest area. They were removed to an area known as Chepalungu, and after
each eviction there had been a tendency for individuals to seep back into the
Tinet and adjoining forest area, where Jack of supervision caused a further
build-up of settlement until measures once again had to be taken to sort them
out. Records stale (at document 30AAA in the bundle of exhibits in court) that
since 1941 until roughly early in 1952 the Tinet Forest area had been largely
uninhabited. Later the forest department encouraged the settlement of a limited,
number of families to took after the interests of the department on a part-time
basis. This resulted in a build-up of settlement, and the matter led to
strained relations between various colonial government departments. By 1956
only a mere seven persons appear to be in Tinet, but as forest guards.
Mr. Mirugi Kariuki said that what the repealed evictions and repeated seeping
back show as is a continuing struggle of a people: a resistance of The people
all along: evicted people always coming back, and being pushed out again, and
people returning. From all these things the court finds that if the applicants'
children, or if they themselves or some of them, are living in Tinet Forest,
they are forcefully there: they are in that forest and doing what they nay they
are doing in that forest, as a part of their continuing struggle and resistance.
They are not there after compliance with the requirements of the Forests Act.
They have not bothered to seek any licence to be there. Theirs is simply to
seep back into the forest after every eviction, and after trickling back they
build-up in numbers and increase Their socio-economic activities to a point they
are noticed and evicted again.
These people do not think much of a law which will stand between them and the
Tinet Forest. In particular, of the forests Act they say through Mr. Mirugi
Kariuki, That it found them there in 1942 when it was enacted, and it never
adversely affected them. But the recorded evictions they acknowledge and their
admitted repeated coming back, followed by other evictions contradict them on
this. That in why even in their affidavit in support they complain of a
continuous harassment by the provincial administration.
The centre piece of The arguments in support of the applicants' case was that to
evict The applicant from this particular forest would be unconstitutional
because (a) it would defeat a people's tights to their indigenous home, and
deprive them of their right to life or livelihood (as they preferred to put it);
and (b) it is discriminatory, insofar as other ethnic groups who are not Ogiek
are not being evicted from this very place.
We were referred to the Indian case of Tellis and others v. Bombay Municipal
Corporation and others [1987] LRC (Const) 351, on the first point concerning the
right to life as one of the constitutional fundamental rights. It was a case of
the forcible eviction of pavement and slum dwellers in the city of Bombay, India.
When we read that case, we found its main thrust on this point to be that
although the right to life was a wide and far-reaching light, and the evidence
suggested (hat cviciion of The petitioners had deprived them of their livelihood,
The Constitution did not impose an absolute embargo on deprivation of life or
personal liberty. What was protected was protection against deprivation not
according to procedure established by law, which must be fair, just and
reasonable; e.g. affording an intended evictee an opportunity to show why he
should not he moved. In fact in that case the Supreme Court of India consisting
of the very eminent Chief Justice Chandrachud, and the Hon Justices All,
Tulzapurkar, Reddy and Varandarajan, found and decided and concluded that The
Bombay Municipal corporation were justified in removing die petitioners, even
though these pavement and slum dwellers were probably the poorest of the poor on
the Planet Earth.
Tellis case is not, therefore, helpful to the present applicants. The
applicants are not the poorest of poor earthlings; and even if they were,
records show that they by themselves or by their ancestors were given
alternative land during the colonial days, and such alternative land for Tinet
Forest was compensation. All along they have had a fair opportunity to come to
the court to challenge the many evictions that have gone on before, but they
have never done so till this late. If they showed to the Government reasons why
they should not be evicted on any previous occasions and the Government did not
reverse evictions, it was incumbent upon the applicants or their forefathers to
seek redress of the law. Instead, however, they have opted far either
surreptitious or forceful occupation of the forest.
These applicants cannot say dial Tinnet forest is their land and, therefore,
their means of livelihood. By attempting to show that the Government has
allowed them to remain in the area and by trying to found their right to remain
on the land by virtue of letters of land allotment and allocation, parcels of
the land as they tried to show in the attached copies of those certificates of
land allocation, the applicants thereby recognized the Government as the owner
of the land in question, and the right, authority and the legal power of the
Government to allocate a part of its land to the applicants. If the applicants
maintain that the land was theirs by right, then how could they accept
allocation to them of what was theirs by one who had no right and capacity to
give and allocate what it did not have or own? Once they sought to peg however
lightly, their claim of light on these Government certificates of allocation of
land to themselves, the plaintiffs forfeited a right to deny that the land
belonged to the allocating authority, and they cannot be heard to assert that
the land is theirs from lime immemorial when they are at the same time accepting
it from he whose title they deny. So, we find that these particular plaintiffs
are not being deprived of their means to livelihood; they are merely being told
to go to where they had previously been removed: they have alternate land to go
to, namely, al Sururu, Likia, Teret, ect, but they are resisting efforts to have
them go there. They have not said That The alternative land given them is a
dead moon incapable of sustaining human life.
To say that to be evicted from the forest is to be deprived of the means to
livelihood because then there will be no place from which to collect honey or
where to cultivate and get wild game, etc, is to miss the point. You do not
have to own a forest to hunt in it. You do not have to own a forest to harvest
honey from it. You do not have to own a forest to gather fruits from it. This
is like to say, that to climb Mount Kenya you must own it; to fish in our
territorial waters of the Indian Ocean you must dwell on, and own the Indian
Ocean; to drink water from the weeping stone of Kakamega you must own that stone;
to have access to the scenic caves of Mount Elgon you must own that mountain.
But as we all know, those who fish in Lake Victoria do not own and reside on the
Lake; they come from afar and near: just as those who may wish to exploit the
natural resources of the Tinet Forest do not have to reside in the Forest, and
they may come from Tar away districts or from nearby. We know that those who
exploit the proverbial Meru Oak from Mount Kenya Forests do not necessarily
dwell on that mountain in those forests. Those who enjoy the honey of Tharaka
do not necessarily own the shrubs and wild flowers and wild bees which
manufacture it; nor do we who enjoy that honey own the lands where it is sourced.
There is no reason why the Ogiek, should be the only favoured community to own
and exploit at source (he sources/of our natural resources, a privilege not
enjoyed or extended to other Kenyans.
No; thy are not being deprived of their means of livelihood and a right to
life. Like every other Kenyan, they are being old not to dwell on a means of
livelihood preserved and protected for all others in the Republic; but they can,
like other Kenyans, still eke out a livelihood out of the same forest area by
observing permit and licensing laws like everyone else does or may do. The
applicants can obtain permits and licences to enter (the forest and engage in
some permissible and permitted life-supporting economic activity there. The
quit-the-forest notice to the applicants does not bar them from continuing o
enjoy the same privileges permitted by law, on obtaining the statutory
prescribed authorization from the relevant authorities. They can get those
permits when they are outside the forest area; just the same way other Kenyans
who do not live anywhere near this same forest are gaining access to the forest
and exploiting its resources, as we have been told by the applicants. They do
not dwell there, and yet they come there under permit. Plainly, the means of
livelihood is not denied to the applicants. The forest and its resources are
open to the applicants as much as they are to other Kenyans, but under
controlled and regulated access and exploitation necessary for the good of all
Kenya.
If hunting and gathering in a territory were in themselves alone to give
automatic legal proprietary rights to the grounds and soils we hunt and gather
upon then those who graze cattle nomadically in migratory shifts everywhere
according to climatic changes, would have claimed ownership of every inch of
every soil on which they have grazed their cattle. If every fisherman who
fished in the Sagana River or River Tana or in Lake Victoria were to say his is
the Sagana River, his is the mighty Tana, his is Lake Victoria, then these and
other rivers would not belong to Kenya but to private persons; and Lake Victoria
would not be ours, but would have been grabbed tong time ago by every fisherman.
But these gifts by Mother Nature to us have not suffered that fate, because they
are common property for the good of everyone; just ns public forests are common
properly for the common weal of mankind. They cannot be a free subject of
uncontrolled and unregulated privatisation either for the benefit of individuals
or a group of individuals howsoever classified and called.
It is our considered opinion, that as the applicants in common with all other
Kenyans may still have access to the forest under licences and permits the
eviction order complained of has not encroached on the fundamental rights of the
applicants as protected by the Constitution of Kenya, and their right to life is
intact; their livelihood can still be earned from the forest as by law
prescribed.
We were referred to the Australian case of Eddie Mabo and others v. The State of
Queensland [1992] 66 QLR 408. We carefully read that case. Its decision seeing
to have overthrown the landlaw of that country of about 200 years. The High
Court of Australia greatly benefited from the very careful and closely reasoned
arguments and a perfect analysis by the advocates who argued the case. The
entire corpus of the common law and land statutes and customary law rights of
the indigenous peoples of Australia, were dissected to their core by arguments
most discerning; and the well-prepared and well-presented lawyers' discourses on
the whole law were placed before the court. Here we have missed the opportunity
to closely analyse the whole of our land law, because the various land statutes
and customary law were not argued, and the case was presented within the narrow
limits of the forests legislation and the extra-curial struggles and resistance
of the people who had been removed from the place and relocated elsewhere.
Although we were denied the opportunity by a lack of full or any serious
argument on, and analysis of, the various relevant land statutes, customary law
rights, and the common law, we read the Mabo case, but found that the material
facts in it and which led to the propositions of principle there cannot be
fairly likened to those obtaining in the instant case. There the facts
justified the analysis by the court of the theory of universal and absolute
crown ownership, the acquisition of sovereignty, reception of the common law,
crown title to colonies and crown ownership of colonial land, the patrimony of
the nation, the royal prerogative, the need for recognition by the crown of
native title, the nature and incidents of native title, the extinguishments of
native title, the effect of post-acquisition transactions, and deed of grant in
trust. The applicants there had a culture and rights sharply different from
those of the applicants in the instant case. Theirs was a life of settled
people in houses in villages in one fixed place, with land cultivation and crep
agriculture as their way of life. They lived in houses organised in named
villages, and one would be moving from one village to another. Land was
culturally parcelled out to individuals, and "boundaries are hi terms, of known
land marks". Gardening was of the most profound importance to the inhabitants
at and prior to early European contact, Gardening was important not only Drum,
the point of view of subsistence but to provide produce for consumption or
exchange. Prestige depended on gardening prowess.
In that kind of setting, those people's rights were to the land itself. Our
people of Tinet Forest were concerned more with hunting and gathering, with no
territorial fixity. They traditionally shifted fluid place to place in search
of hunting and gathering facilities. For such people climatic changes
controlled their temporary residence. Whether a people without a fixity of
residence could have proprietary rights to any given piece of land, or whether
they only had fights of access to hunting and gathering grounds - whether a
right of access to havens of birds, game, fruits and honey gives title to the
lands where wild game, berries and bees are found - were not the focus of the
arguments in this case; and the material legal issues arising from the various
land law regimes were not canvassed before us as they were in the Mabo case. In
the Mabo case the residents at no time ever conceded that Government had a right
over the land in question. In the instant case the applicants conceded the
right of the Government over the land which they were asking the Government to
allocate to them. Government could not allocate to them what was theirs already
if it did not have ownership power.
These considerations make it superfluous for us to deal specifically with the
other cases cited on this point, although we have anxiously studied them, and we
have found them not advancing the applicants' case on the present facts before
us.
With regard to the complaint that there is discriminatory action by the
Government against the plaintiffs, the applicants said that while the
respondents say that they are taking the action complained of because it is a
gazetted forest area which they seek to protect by evicting the plaintiffs from
it, there are other persons who are allowed to live in the same forest. It is
said that it is the plaintiffs alone who are being addressed. This assertion if
true, and it has been denied, would obviously give thee plaintiff a cause for
feeling discriminated against unless other lawful and proper considerations
entered the picture. The trouble here is that this was a matter of evidence,
and evidence was required to prove at least seven things:
who were these people;
when they entered to live in the forest;
under what colour of right (if any) they claimed to enter,
whether they are in violation of the provisions of the statute concerned;
the precise wording of the order of eviction; and
the exact scope of the older of eviction, particularly with regard to the persons to be adversely affected by this implementation.
the actual cited ground for removing the applicants, i.e. whether they are being removed soley or predominantly on grounds of their ethnicity.
Evidence on these things must be provided by the
person alleging discriminatory action against him. For instance, in the case of
Akar v. Attorney-General of Siera Leon, [1969] 3 Ali ER 384, which was cited to
us, a legislation was alleged to be discriminatory against a person not of negro
African descent born in Siera Leone acquiring citizenship at the time of
independence. The legislation in question retrospectively limited citizenship
to persons of negro African descent. It was struck down as enacting
discrimination on the ground of race. To arrive at that decision the Judicial
Committee of the Privy Council had to analyse the precise wording of the
legislation in order to, find what was discriminatory in it, taken in its proper
context.
In a case here at home, Shah Vershi Devshi & Co. Ltd. v. The Transport Licensing
Board, [1971] EA 289, decided by this High Court composed of Chanan Singh, J,
and Simpson, J (afterwards Chief Justice of Kenya), refusal of a licence (under
a transport licensing legislation) to citizens of Kenya, by reason of their
being of Asian origin, led to the court holding the treatment discriminatory.
To reach that conclusion the court was furnished with a letter and the court
paid particular attention to it, in which was written by the chairman of the
licensing board, that the licences should be refused "on the ground that the
majority shares" were "owned by non-citizens", and that Africans should be
favoured. As it turned out "non-citizens" was only a euphemism covering
citizens who were not of black African stock. Anyway, the point is that the
acts and actual words complained of were before the court.
The same was what happened in the case of Madhwa and others v. The City Council
of Nairobi, [1968] EA 406, where a resolution of the Social Services and Housing
Committee was in the enumerated terms titled "Africanization of Commerce:
Municipal Market", then followed what had been resolved, and was complained of
as being discriminatory of null-citizens being evicted from the market stalls by
the City Council of Nairobi. Again the court had before it was expressed.
In our case, the actual acts and words complained of were not placed before us.
What we have before us are copies of newspaper cuttings. They bear headlines
"Government to evict the Ogiek", and "Ogiek notice slays, says DC". The
plaintiffs have told us that there are in the forest people from other
communities. The newspapers did not mention anything about such people, and
whether the quit notice covered them. The accuracy of those headlines was not
guaranteed.
The Ogiek people might have been the dominant community to capture the newspaper
headlines, but that did not necessarily exclude from the quit order other
persons. So, there is no evidence before us providing discriminatory treatment
against the plaintiffs.
It was argued in support of the plaintiffs, that the area cannot be compulsorily
acquired by the Government in this case. It is the user of the forest which is
being controlled here.
When Mrs. Madahana and Mr. Njoroge, for the respondents said that the Government
is taking these steps to protect the forest area as a water catchment area, they
were summarily dismissed by Mr. Mirugi who wondered as to when Government came
to know that it was a water catchment area; and said that the fact that the land
is a forest area gazetted as such, does not mean that human beings should be
prevented from living in that forest.
With due respect, the court expected a more extended and in-depth presentation
on this very deep-seated problem of our environment raised by the references to
that problem as we discuss land rights and land use, natural resources and their
exploitation, human settlement and landlessness. But the casual way in which
the issue of the preservation and protection of rain water catchment areas, was
handled by counsel in these proceedings only goes to illustrate the negative
results of the purely economics-driven approaches to human and social problems,
without caring for the limitations of the biosphere with a view to undertaking
human, and socio-economic development within the limits of Earths finite natural
resources endowments. There is a failure to realize that the unsustainable
utilization of our natural resources undermines our very human existence.
In grappling with our socio-economic cultural problem and the complex
relationship between the environment and good governance, we must not ignore the
linkages between landlessness, land tenure, cultural practices and habits, land
titles, land use. And natural resources management, which must be at the heart
of policy options in environmental, constitutional law and human rights
litigation such as this one. While we discuss rights in a macro-economic
context, sight cannot be lost of the legal and constitutional effects on the
environment. A narrow legalistic interpretation of human rights and enforcement
of absolute individual rights may only take away a hospitable environment
necessary for the enjoyment of those very human rights. A sure enforcement of
legal rules for environmental governance and management of our natural resources,
is the only guarantee for our very survival and enjoyment of our individual and
human rights.
At present the ultimate responsibility and task of good management of our
natural resources lies with the Government, with the help and co-operation, of
course, of individuals and groups of civil society, including The Church. Good
environmental governance will succeed or fait, depending on, how we all share
the responsibility for managing the rules of natural resource management, the
monitoring and evaluation and re-evaluation of existing forms of coping with
environmental conservation and development, and depending on the feedback which
must be accessed all times, the appropriate reformulation and rigorous
enforcement of the relevant rules. It is an increasingly complex exercise which
must involve many actors at all limes. And if as we urge the upholding, of
human rights in their purest form we do not integrate environmental
considerations into our human and property rights, then we, as a country are
headed for a catastrophe in a foreseeable future. Integrate environmental
considerations in our arguments for our clients human and property rights. We
do not want a situation where our constitutional terrain on which human and
property rights systems are rooted, cultivated and exploited for short term
political, economic or cultural gains and satisfaction for a mere maximization
of temporary economic returns, based on development strategies and legal
arrangements for land ownership use and exploitation without taking account of
ecological principles and the centrality of long term natural resources
conservation rooted in a conservation national ethic.
In 21st century Kenya, land ownership, land use, one's right to live and one's
right to livelihood, are not simply economic and properly questions, naked
individual jural rights, or a matter of politics. All these, and more, are
questions of the sustainable use of natural resource's for the very survival of
mankind before he can begin to claim those "fundamental rights", "the old
individualistic models of development and property has no place in to-day's
socio-economic and political strategies. To-day it is startling to hear arid
legal arguments putting excessive emphasis on the recognition and protection of
group or private property rights, at the expense of the corresponding duty of
ecological stewardship to meet tong-term national expectations which humanity
must place in land to guarantee the survival of everyone. The integration of
environmental factors into growth strategies and legal argument about human
rights, must be the core to all programmes, policies and the administration of
justice. Without such integration we all loose humanity�s supportive
environment and we might not be alive to pursue the right to live let alone the
right to live in the Tinet Forest.
Indeed, a legal system which provides extensive and simplified procedures for
converting public land to private ownership, or which gives a reckless access to
public natural resources, with little or no regard for ecological and
sustainable social developmental impacts, is a national enemy of the people. We
must all be ecological ignorance free; and a justice system which does not
uphold efforts to protect the environment for sustainable development is a
danger to the enjoyment of human rights. The real threat to the right to life
and to livelihood, is not the Government eviction orders in themselves. The
real threat to these human lights is the negative environmental effort of
ecological mismanagement, neglect and the raping of the resources endowed unto
us by Mother Nature, which are the most fundamental of all human rights: the
light to breathe fresh air from the forests so that we can live to hunt and
gather; the light to drink clean water so that we can have something to sweat
after hunting and gathering. Hence, the importance of the issue of preserving
the rain water catchment area.
We have found from the evidential materials before us in this case, that Sururu,
Likia and Teret, among others, were homes for persons who seeped back into Tinet
Forest and are now crying foul when they are being evicted by Government for the
umpteenth lime. It is not being forthright to say they know no other home to go
back to.
We have found that there is no proof by the plaintiffs of lawful re-entry after
the various evictions. They have simply kept on re-entering and re-occupying,
only to be met with repeated evictions.
The pre-European history of the Ogiek and the plaintiffs was not presented to us
in court, to enable us determine whether their claim that they were in Tinet
Forest front time immemorial is well-founded. We only meet them in the said
forest in the 1930's. Such recent history does not make the stay of the Ogiek
in the Tinet Forest dateless and inveterate (as we understand the meaning of the
expression "immemorial" in this context); and nothing was placed before us by
way of early history to give them an ancestry in this particular place, to
confer them with any land rights. Remember, they are a migratory people,
depending on the climate.
The pretensions of to-day's Ogiek to conserve the forest when he has moved away
from his age-old pre-food-producing past which was environmentally friendly, are
short of candidness. They have taken to different socio-economic pursuits which
may be inimical to forest conservation.
The Government action complained of does not contravene the rights of the
plaintiffs to, the protection of the law, not to be discriminated against, and
to reside in any part of Kenya: it is themselves who seek to confine themselves
in one forest only. Their right to life has not been contravened by the
forcible eviction from the forest; it is themselves who wish to live as outlaws
with no respect for the law conserving and protecting forests: it is themselves
who do not want the public forest protected to sustain their lives and those of
others. They were compensated by an exchange of alternative lands for this
forest.
The upshot of everything we have said from the beginning of this judgment up to
this point is that the eviction is for the purposes of saving the whole Kenya
from a possible, environmental disaster, it is being carried out for the common
good within statutory powers; it is aimed at persons who have made home in the
forest and are exploiting its resources without following the statutory
requirements, they have alternative land given them ever since the colonial days,
which is not shown to be inhabitable. We find that if any schools, churches,
market places have been developed, they are incompatible with the purposes for
which national forests are preserved, and without following the law to put them
up; the applicants have acknowledged the rights of the Government in and over
the forest. There was no evidence of discriminatory treatment of the applicants
against them on ethnic or other improper grounds. No case was made out for
compensation to be given once more. The plaintiffs can live anywhere in Kenya,
subject to the law and the rights of others.
For these reasons the court dismisses all the prayers sought. Allow us to add
that any other determination would be of mischievous consequences for the
country, and must lead td all extent to prodigious vexatious litigation, and,
perhaps to interminable law suits. It would be a fallacious mode and an
unjustifiable mode of administering justice between parties and for the public
good of this country. In the context of this case, we know no safe way for this
country mid for these litigants, than dismissing this case with costs to the
respondents. We so order.
Signed and Dated by both of us at Nairobi, this 23rd day of March, 2000.
Samuel O. Oguk & Richard Kuloba JJ.