By B.R. Ole Koissaba
After realizing that the Maasai living in Nakuru County have vowed not to move from their ancestral lands to give room for geothermal extraction, the Kenyan government has reverted to the old ways of using the legal system to ensure that the Maasai not only lose the land but will also not be given a fair hearing in land cases they have filed. This is the case when the High Court in Nakuru ruled that the Maasai have no legal right to occupy the land and therefore dismissed the case with costs. Kedong Ranch has been the home of many Indigenous Maasai communities and has from time immemorial been used as wet seasons grazing area for the Maasai people. During the colonial period, and despite having been claimed by the colonialists, many Maasai families continued to live on the land. On attainment of independence and in the quest of the Kenyatta government to grab land, the land in question was transferred to several personalities in government without consulting the local Maasai communities. The said land has over time changed hands and has been a conflict area pitting the Maasai who are the original owners of the land against those that who claim they bought the land through land buying companies.
As pastoralists, the Maasai have been misunderstood and their way of life stereotyped by the so called mainstream communities. They have been referred to as backward, uncivilized, primitive and an embarrassment to development. Such has made marginalization, exclusion discrimination and dispossession legitimate in Government policy making circles. This has a left of suffering among the pastoralists and minorities contrary to Article 5 of the African Charter which states that every individual shall have the right to respect for the dignity inherent in human being and Article 19, which states that all peoples shall be equal, enjoy the same respect. This discrimination and domination threatens the continuation of their culture that gives them identity and sense of belonging and deprives them opportunities for self- expression in matters affecting their own development.
In making the ruling, the court out rightly exhibited ignorance of both the history of occupancy of the suit land which is not only historically Maasai land but also part of the land that was reserved for explicit use and ownership by the Maasai during the 1904/1911. In justifying the ruling, the judge displayed the existing prejudices against pastoralism by stating that “since the Maasai are nomadic pastoralists, it is impossible for them to have been in one place for such a period as twelve years continuously.” This is the highest degree of ignorance an institution that is expected to not only to know, understand but it is expected to interpret the law in a manner that recognizes and appreciates the diversity of the citizens of Kenya. In the view of many observers, this is the extension of selective justice that has always been used to marginalize and dispossess many Indigenous communities. According submissions by Maa Civil Society and submitted to then Truth Justice and Reconciliation Commission by the Maasai who live in Nakuru County, most of the parcels were registered in 1997 long after the Maasai settled on the disputed land. The court also ignored all established facts that that the Maasai live communally and therefore using the size and location of the settlements does not warrant the delineation of other Indigenous practices that the Maasai practice and should that the Maasai should not be seen as the aggressor.
Coincidentally the ruling was made on the heels of a visit by the World Bank Panel and the representatives from the European Union who visited the affected communities to assess compliance to safeguards. Fearing that the dispute will affect the expansion of geothermal projects that have now stalled for over six months and loss of investors, the government resorted to use the court to dismiss the Maasai cases in order to portray compliance to no conflicts exist on the said land. To the Maasai the visit by the World Bank and other investors in the geothermal extraction, this was their remedy of the last resort because of the vested interests that the industry has and the recent grants and concessions that the government awarded to multi-nationals to invest in geothermal extraction. The Maasai are hoping that the World Bank Inspection Panel report will not only unearth the degree suffering, torture and infringement of human rights by KenGen and the investors have wrought on the Maasai but will give recommendation for further investments with a human face. Reminiscence of the famous Maasai case of 1913 commonly referred to in legal circles as Ol-Njogo (Ole Nchoko) case, the cases have already been decided through executive orders that they should all be terminated to pave way for investors and other non-Maasai to be settled or paid off through government coffers to allow for the geothermal extraction
In the past, efforts to move the Maasai have been met by resistance that sometimes resulted into violence and destruction of property. One of the greatest un-doings of these projects is the lack of consultation with the local pastoralist Maasai communities who live off the land where these prospects are located. According to local elders, ever since the beginning of the exploration processes, they have been repeatedly forced to move to adjacent lands only for them to be moved again, when a new project phase is initiated. This is done without any due consideration that the Maasai depend on the land and that every move has a direct impact on their survival because it reduces grazing land for their livestock, their mainstay.
The Maasai in Narasha, Kedong, Satellite, and Namuncha are afraid that the government has a bigger plot to move them from their ancestral land to give room for new settlers who bought the land through land buying companies from central Kenya which were formed after independence to buy land despite the full knowledge by government officials that land was historically Maasai land and the Maasai have continuously used the land for grazing. The fears are as a result of a visit by the Kenya Parliamentary Committee on land on February 14, a planned visit by the president to inaugurate one of the power plants this month which coincides with the day that another Maasai case will be heard in the same court, and a big plan to acquire more land to build an industrial park as well as suspected involvement of Maasai politicians who are said to be beneficiaries from proceeds and contracts from the project. The Maasai have since appealed the court ruling and are awaiting for the hearing. The Maasai are also asking to be treated like other Kenyan communities who live in parcels of land country wide where the government is buying land to resettle them. There is a clear pattern of selective process where certain communities are given preference as opposed to the inhuman and forceful processes that the government is using on the Maasai. To The plight of the Maasai land appropriation has lately received international attention after a campaigns by international human rights organizations raised the red flag.
While the Maasai have repeatedly expressed that they are not against the generation of power within the land that they claim, they are demanding adequate consultation and the adherence of the Free Prior and Informed Consent as well as adequate compensation commensurate to their psychological, social, economic loses. It is also their recommendation that all current and prospecting investors embrace the engagement of local Maasai experts’ in future environmental, social, health, and economic assessments in order to avoid future conflicts.
In a show of defiance, the Maasai communicated their firm stand not to give in to any demands by either the government of those who are claiming to have titles to the Parliamentary Land Committee that visited the area on 13/2/2013. Given previous experiences on Maasai land claims, there is certain fear that there might be violence perpetrated by government through forced evictions. It is therefore the plea of the Maasai to the President, of the Republic of Kenya to intervene in forestalling an eminent confrontation and possible loss of life and property arising from the proposed evictions. It is also the prayer of the Maasai people living in the areas earmarked for geothermal extraction that the companies that were granted concessions refrain from using the police to extract them from their ancestral lands.
--B.R. Ole Koissaba is a PhD candidate at the Institute on Family and Neighborhood Life at Clemson University. He is the founder and Cchair of Maa Civil Society Forum and board member of International Cultural Conservation Society.
