Noticias: How can the EU WaTER Project help secure, not undermine, human rights in Kenya?

9 December, 2016

There is increasing concern from local, national and international civil society about the human rights implications of the EU’s €31 million Water Tower Protection and Climate Change Mitigation and Adaptation Project (WaTER) that is focused on an area of Kenya with deeply troubling human rights issues.

Both of the indigenous peoples concerned, the Ogiek of Mt. Elgon and the Sengwer of the Cherangany Hills, have suffered a running history of gross human rights violations in the form of mass forced evictions by government conservation agencies, principally the Kenya Forest Service (KFS). These evictions take the form of KFS guards, often with police support, burning down community members’ houses, incinerating their possessions (food, blankets etc.) and leaving families exposed to the cold and to hunger.

Forest protection provides the pretext for these evictions, but the forests are the ancestral home of the Ogiek and Sengwer whose capacity to care for and protect their forests is being wholly undermined by these actions. In contrast, their rights to their lands are recognised in Article 63 2 d of the Kenyan Constitution and in the 2016 Community Land Act.

In line with the constitution and international best conservation practice, forest communities in Kenya have proposed to secure their collective customary tenure on conservation conditions so that they can be supported by state agencies to conserve their ancestral lands rather than be forcibly evicted from them; their evictions leave their forests at the mercy of extractive forces.

Given this context, there is serious concern about the WaTER Project’s potential impact on the Sengwer, the Ogiek and the forest itself, given that it appears to be pursuing a model of conservation that does not recognise the rights of communities, nor even their existence. This is evident in the EU project’s:

1. lack of any meaningful consultation with those communities;
2. lack of any adequate human rights impact assessment and due diligence, with neither the
Ogiek nor the Sengwer mentioned in the EU WaTER project documentation;
3. intention to strengthen, rather than change, KFS’s culture of eviction and exclusion.

The WaTER project’s stated aim is to improve the ecosystem through increased forest cover, improved landscape and natural resource management, and waste management systems, while benefitting the rural communities. These outcomes are laudable but an examination of the methodology suggests that it is very likely to achieve the opposite. There is a clear danger that it will repeat the same mistakes that the World Bank’s Inspection Panel found its Natural Resource Management Project (NRMP) guilty of. The panel found that the Bank had not taken “the proper steps to address the potential loss of customary rights” (Executive Summary, para 19: ix). It also identified that the project failed by sustaining 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" (Executive Summary, para 27).

Just as the NRMP was non-compliant with its own safeguard policies, so the WaTER project - if pursued without reference to the community land rights of the Ogiek and Sengwer - will not be compatible with EU policy and law, including the EU Consensus for Development, the EU Human Rights Action Plan, and human rights obligations binding on the institutions of the EU by virtue of the Charter of Fundamental Rights of the European Union (CFR).

To illustrate the urgency of the matter, Ogiek homes were burned as recently as June 2016, and more recently, on 1 December, the Sengwer were given seven-days’ notice of mass eviction, and on the same day many Sengwer homes were burnt. A new court injunction against such evictions was granted in Eldoret Court on 8 December. However, at a meeting on 15 December the Chairman of the National Land Commission (NLC) of Kenya, which was set up to resolve land issues in the country, told the Sengwer that he was giving them 14 days to leave Embobut Forest, in the Cherangany Hills. According to the Sengwer present, he “even said that members of Sengwer community are suffering today because of their refusal to move out of the forests when the colonial government gazetted these forests as government forests”.

This was a bitterly disappointing and surprising turn of events for the Sengwer. The NLC does not have a mandate to evict anyone. It has a constitutional mandate to resolve issues of historical injustice. The Sengwer told him that they are still seeking their rights and are still living in Embobut, but hiding in caves and thick forest to try and avoid harassment by KFS.

The Sengwer have called upon all concerned, including the United Nations Special Rapporteur on the rights of indigenous peoples and the Office of the High Commissioner for Human Rights (OHCHR), to:

- urge the Government of Kenya to stop the evictions and pursue a genuine and transparent
dialogue process;
- urge the World Bank to support such a dialogue process as recommended in their Inspection Panel report, approved by the Bank’s Board of Directors in 2014;
- urge the European Union, World Bank, United Nations Development Programme, Finnish
Government, International Union for Conservation of Nature, and other donors to suspend
their support for conservation and climate change-related projects in Kenya until the
tenure rights of the Sengwer forest indigenous peoples is secured, respected and protected
in law;
- urge the Kenyan government to review the Forest Conservation and Management Act 2016 to
recognise the rights of forest indigenous peoples to live in and own their ancestral lands
sustainably in protected areas/ forests on conservation conditions, working closely with
technical support from state agencies.

FPP, FERN and other concerned conservation and human rights organisations have written to the EU requesting that the EU address the conservation and human rights implications of the WaTER Programme to ensure it does no harm, and instead helps foster a win-win outcome for human rights and forest protection by securing “community tenure on conservation conditions” through recognising and supporting the Ogiek and Sengwer as owner-conservators of their ancestral lands.

FPP understands that the EU is now very aware of the human rights context on the ground, including these forced evictions and that the EU has a strong policy framework for protecting the human rights of indigenous peoples. We fully expect them to investigate whether and how to adjust the project to ensure full compliance with the EU’s legal and policy commitments to ensure that it protects rather than undermines human rights.

Read the letter here