“We have never conserved. It is the way we live that conserves. These customary bylaws we have had forever, but we have not written them down until now."
As a result of an intense community process of mapping and dialogue, the Ogiek of Mount Elgon, Kenya, have finalised their bylaws in a document which opens with these words:
“The Ogiek have lived in their ancestral lands, Chepkitale, governed and bound by their traditions being the unwritten law. This is what is captured in this document in the simplest language possible. This is a product of the community, by the community. It has been written with all input coming from the community and agreed on and endorsed by the community. It brings a governance structure relevant to the community today as it has been for centuries.”
The process has involved much passionate debate. In a sense, the Ogiek are simply writing down how they have organised themselves and how they have managed their forest and moorlands since time immemorial, but as one community member pointed out: “When you write things to say this is what we should do then you get community members who disagree and you have to decide what to do".
At a huge meeting in Laboot in April 2013 the Ogiek community adopted its bylaws but only after major debate. Then finally, on 8 July 2013, the Laboot Declaration included the following key bylaws:
- The written community’s bylaws form the customary laws of the Ogiek community of Chepkitale and are binding to each and every member of the community
- Charcoal burning is totally prohibited
- Illegal brews are burned
- Poaching is strictly prohibited
- Commercial farming is prohibited
- The community’s governing council is installed
- The struggles to reclaim all our territories continues
The immediate next step has been to inform the various authorities of the bylaws that are governing their lands, and to seek their support for the Ogiek implementing them. The District Commissioner applauded the community for being stronger on conservation matters than any authority. The Ogiek explained to the Kenya Forest Service (KFS) that they were determined to stop the charcoal burning that is destroying the indigenous forests despite those forests being in an area KFS is supposed to control. KFS has always objected to the Ogiek remaining on their ancestral lands since it was gazetted (without their consent), but following the Ogiek’s community scouts arresting charcoal burners and handing them over to KFS, KFS itself has started arresting charcoal burners too. The Ogiek community scouts started by arresting the most threatening charcoal burners which “meant our community members now don't fear speaking out.” KFS undertook an aerial review and acknowledge that charcoal burning has reduced dramatically.
Although the ancestral lands of the Ogiek community at Chepkitale, Mount Elgon, were converted into a national game reserve without their consent in 2000 (making their presence there illegal), they clearly have the right to their ancestral lands under Kenya’s 2010 Constitution, which recognises ancestral lands, and lands traditionally occupied by hunter gatherers such as the Ogiek, as community lands. The Ogiek have themselves been very involved in influencing Kenya’s draft Community Land Bill that should recognise this right in law. However, the overriding approach to conservation in Kenya is still one that forbids human occupation of areas gazetted as national parks and forest reserves.
The Ogiek were forced out of the forest areas of Mount Elgon by the British, and restricted to the Chepkitale moorland that the British saw as useless and categorised as an untitled ‘Tribal reserve’ in 1938 (becoming a ‘Trust land’ in 1942). The Ogiek were then evicted from Mount Elgon National Park when it was created in 1968 on the eastern slopes of Mount Elgon. Chepkitale itself was held as Trust land by Mount Elgon County Council until – without consulting the Ogiek - it asked the Government to gazette the land in 2000, making the Ogiek living there ‘illegal trespassers’.
Despite being violently and forcefully evicted from Chepkitale many times, the latest being in 2006, the Ogiek continually returned. In early 2011 - when eviction was again being threatened – Forest Peoples Programme began working with the Ogiek organisation Chepkitale Indigenous Peoples' Development Project (CIPDP), and the International Union for Conservation of Nature (IUCN) to pilot the Whakatane Mechanism, an IUCN initiative to address just such situations of injustice towards communities by conservation.
In late 2011, the world’s first Whakatane Assessment took place at Mount Elgon – bringing conservation bodies and local government to see for themselves that the Ogiek’s presence helps protect rather than threaten the wildlife and forests. The Assessment also kick-started a dialogue between the community and Mount Elgon County Council, which finally led to a unanimous resolution being passed by the Council acknowledging that they had been wrong to ask for the gazettement of Chepkitale, and asking for the Government to revoke the gazettement.
Due to the relentless work of CIPDP, there has subsequently been a change of attitude by many players. No longer are cars blocked from transporting ill people to hospital, no longer are schools and clinics burnt to the ground. Instead the government is half funding the new Ogiek primary schools that have sprung up, and voting booths arrived for the 2013 elections, after which the new County Governor came and visited the community and applauded their work.
Ultimately, unless the Government degazettes their land, the Ogiek still live in fear of eviction, but they have hope (based on hard work) that the Government will recognise the sense in avoiding a long battle in the courts which – according to the new constitution – the Government can only lose, and instead choose to work hand in hand with the community to demonstrate that human rights based conservation is the new way of explaining an age old system which recognises that if you look after the land then it will look after you: “We have never conserved. It is the way we live that conserves”.
Click here to view a video about the Ogiek’s customary bylaws.
FPP and CIPDP would like to acknowledge the support of the WF Southall Trust, Paul K. Feyerabend Foundation, Ford East Africa, TIDES and Synchronicity Earth.