A real resolution or a false dawn? Sengwer propose a way forward, as World Bank recognises it made mistakes

The Sengwer of Embobut Forest in the Cherangany Hills, Kenya, have - since January 2014 - been forced off their lands by armed Kenya Forest Service (KFS) guards, who have been burning all their homes to the ground. This has been despite an injunctive order in the High Court forbidding such action. Perhaps over 70% of the Sengwer have since returned to their lands, living in inadequate temporary shelters, and being harassed and arrested by KFS guards. '

Other peoples (who had either been moved into Embobut forest by the Government, or had taken advantage of the Sengwer’s rights to their land being denied, and so had taken over land for cultivation) have not returned. That the Sengwer have insisted on returning, despite the ongoing harassment, highlights how vital their ancestral home is to them. 

Last week, on September 30th, the World Bank Executive Board met under the Chairmanship of President Kim to decide its response to the Sengwer’s situation. It had to decide between:

• The Bank’s own Inspection Panel’s strong criticisms of the Natural Resource Management Project (NRMP) [Guardian article]. The investigation by the Panel had followed an official complaint by the Sengwer requiring the Bank to investigate the situation, and
• The Bank Management’s proposed Action Plan in response to the Panel’s findings. This plan was – from a Sengwer point of view - entirely inadequate, in that it tried to refute or deflect all criticism, and simply proposed a few inadequate responses.

 Although the Inspection Panel could not prove a direct link between Bank funding and the KFS forced evictions of the Sengwer, the Panel had found that:

1. The Bank failed its own Indigenous Peoples OP 4.20 safeguard policy by not safeguarding their rights to their lands, including "because the proper steps to address the potential loss of customary rights were not taken as provided by the policy"; and
2. The Bank was non-compliant with its safeguard policies because the project sustained the conditions for further evictions by failing to adequately identify, address or mitigate the fact that the institution it was funding, KFS, was and still remains committed to eviction "before, during and after the conclusion of the NRMP".

Despite some differences of view in the Board, they responded by requiring a far more robust response from the Bank, including President Kim’s commitment to contact President Kenyatta. Some argue that the problem with the World Bank offering to help solve problems it has created is that it uses the same approach that created the problems in the first place.

However, the affected communities have welcomed the Bank’s response, and have proposed a very clear plan of action to enable the Bank’s intervention to support a real resolution that can secure the forests through securing forest peoples’ rights. In their letter to President Kenyatta they ask the President to direct his government to meet four key requests:

(i) Ministry of Environment, Water and Natural Resources, Kenya Forest Service and the Kenya Wildlife Service to adopt new conservation paradigm in which Forest Indigenous Communities are made the custodians of their forests under the supervision of the said conservation agencies.

(ii)  The National Land Commission to actively, effectively and efficiently implement their constitutional mandate of resolving the issues faced by forest dwelling indigenous communities and more so addressing issues of Historical Land Injustices,

(iii)  Review of the Forest Act 2005 to be in line with Constitution of Kenya 2010 and National Land Policy with active, effective and efficient consultation and participation of Forest Indigenous Communities.

(iv)  Kenya Forest Service to respect the rule of law (Conservatory Injunctive Orders issued by Eldoret High Court in March 2013 with respect to the case filed by Sengwer of Embobut forest) and to STOP continued harassment and any other form of forceful eviction and displacement (destruction of property, burning of houses, arrests, intimidation, etc) of members of Sengwer indigenous community from their ancestral homes and lands in Embobut forests.

The Sengwer hope a real resolution can be found. They are hopeful that the Bank and the Government can recognise that, far from being a threat to the forest, such peoples are best placed to protect their forests.

Further background on the developing situation in Kenya:

Other forest-dwelling peoples in Kenya have also increasingly played an active role:

• in the fast developing legal situation,
• in demonstrating that they are the best custodians of their forest lands, and
• in ensuring that forest conservation in Kenya adopts the rights-based approach of the new conservation paradigm which can lead to a win-win for forest dwelling communities and for forest conservation.

Over the last year the Ogiek at Chepkitale, Mt Elgon’s Council of Elders and community scouts continue to implement their newly written down customary bylaws, through which they have successfully arrested charcoal burners, and managed to persuade the Kenya Forest Service (KFS) to stop promoting a system through which non-forest dwelling communities were destroying indigenous forest.

Through the Forest Indigenous Peoples Network forest-dwelling communities - including the Ogiek of Mt Elgon, Sengwer of the Cherangany Hills, Yaaku of Mokogodo Forest, and the Sanye and Aweer/Boni of Lamu County - are supporting each other to develop the byelaws and the capacity, and the rights and responsibilities, to determine their own future so that they can sustain and be sustained by their (existing and recovering) rich ecology.

The network met in September 2014 and prepared a powerful collective presentation for the National Land Commission’s Task Force. This Task Force on Historical Injustices is preparing legislation by March 2015 to address historical land injustices such as those suffered by all these peoples.