Kemai & 9 Others v. Attorney General of Kenya & 3 Others

Civil Case 238 of 1999; (2005) AHRLR 118 (KeHC 2000)
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This case was brought to the Court by members of the Ogiek community who sought a declaration that their forcible eviction from the Tinet Forest by the Kenyan government was unconstitutional. The applicants claimed that the eviction was in contravention of their rights to protection of the law, their right to life, their right to reside in any part of the country, and that it was discriminatory because members of other communities were allowed to remain in the Tinet Forest.

Historically, the Ogiek people were a nomadic community of hunter-gatherers who lived in the Tinet Forest until they dispersed to the plains upon the arrival of European settlers. The Tinet Forest was declared a forest area by colonial authorities and had remained a declared forest area and nature reserve protected by the Forests Act. Between 1930 and 1991, members of the Ogiek community returned to the Tinet Forest and were evicted several times.

In 1991 the Kenyan government issued documents to individual members of the Ogiek community as part of a plan to settle landless Kenyans. The applicants claimed that the letters allotted specific areas of land to the individuals, but the respondents claimed that the letters only promised to allocate land if it became available. Government records show that the members of the Ogiek community were actually resettled elsewhere. However, between 1991 and 1998 the Ogiek community developed the land in the Tinet Forest that they claimed was allotted to them. Unlike their ancestors, the applicants built permanent structures, cultivated crops and herded livestock while living in the forest. In 1998, having discovered that the land referenced in the allotment letters was part of a water catchment area, the government decided not to allow settlement there. In May 1999, the District Commissioner issued a 14-day eviction notice to members of the Ogiek community, claiming that the settlers had settled in the Tinet Forest unlawfully. It was this eviction which the applicants claimed to be unconstitutional.

The Court held that the applicants’ eviction was not unconstitutional as they did not have a right to live in the forest, their livelihood did not depend on living in the forest, and there was no evidence that the eviction was discriminatory.

The Court held that the plaintiff’s had no legal right to live in the forest. The applicants’ claimed to believe that the legislation prohibiting certain activities in the Tinet Forest did not affect them because of their ancestry. The Court determined that this was a misleading claim because the Ogiek people had been evicted multiple times in the past and continued to return, knowing that they were in contravention of the law. The Court also found that the applicants had acknowledged that the land in the forest was the property of Kenya by stating that the government was giving the land to them by means of the land allotment letters. The Court determined that because the applicants’ ancestors were nomadic, they had no ancestral claim to land in a specific area.

The Court held that the eviction of the Ogiek people did not infringe on their right to life. Leaving the forest would not mean that the applicants would have nowhere to live, because the government had provided them with other suitable land. The evidence showed that hunting and gathering had become a small part of the applicants’ livelihood. The Court found that it would be possible for the applicants to sustain their livelihood living outside of the Tinet Forest by travelling to the forest to hunt and gather using appropriate licenses and permits.

The Court also held that individual or group rights must be balanced with environmental protection. Traditionally, the Ogiek people participated in the conservation of the forest; however, their development from a group of nomadic hunter-gatherers to a structured, permanent community had made them an environmental threat. The protection of the environment through legislation was in the interest of all citizens because natural resources were necessary to the enjoyment of fundamental rights.

Finally, the Court found that there was no evidence to support the applicants’ claim that their eviction was discriminatory. The applicants claimed that members of other indigenous groups were being allowed to remain in the forest, but there was nothing in the evidence presented to suggest that this was the case.

“[A]s the applicants in common with all other Kenyans may still have access to the forest under licenses 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.” Para. 20

“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.” Para. 33

“In 21st century Kenya, land ownership, land use, one’s right to live and one’s right to livelihood, are not simply economic and property questions, naked individual jural rights, or a matter of politics. All these, and more, are questions of the sustainable use of natural resources for the very survival of mankind before he can begin to claim the ‘fundamental rights’.” Para. 33

“[The eviction] 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, and they have alternative land given them ever since the colonial days, which is not shown to be inhabitable.” Para. 40

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