The Fate of Aboriginal Habitation of Gazetted State Forests in Present Day Kenya: A Case Study of the Agitation by the Ogiek and Sengwer Traditional Communities

Two of Kenya’s few traditional communities, the Ogiek and the Sengwer, have for decades now been agitating, and even presently continue agitating to be allowed to enter and inhabit gazetted state forests (government forests) despite the protected status of these forests. They in their agitation claim an aboriginal “entitlement” to such habitation, which in this paper is referred to as “aboriginal habitation”. They argue that these forests are their traditional ancestral lands that were in the primordial to pre-colonial times inhabited by their long-departed ancestors. Their agitation, which has persisted for a long time without end, has been resisted by the Kenya government which argues that these forests are government forests that are under state control and protection, and habitation of which is prohibited by law. Besides, of Kenya’s land area of approximately 582,600 km², only about 7.4 percent is under forests. Of this, gazetted state forests (also called public forests) occupy a mere 4 percent land area. Yet, it is these particular forests (state forests) that the two traditional communities are agitating to be allowed to inhabit. This paper presents the findings of a 12 months study that set out to interrogate these rival arguments as well as establish whether aboriginal habitation of such forests is supportable, and has a place in the present day Kenya. It answers the question whether under Kenya’s existing laws and circumstances, traditional communities should under aboriginal “entitlement” be allowed to enter and inhabit these forests. It is a case study of the said two traditional communities; for reason that they are the ones that have been agitating for their perceived aboriginal “entitlement” to habitation of such forests. Notably, this agitation has not only been through political activism, but also through litigation in national and even regional courts of law; and without success or governmental endorsement. This paper concludes that whereas historically the Forest was at some point in history the ancestral home of humankind and place of human abode, that can no longer be the case in the circumstances and realities of the present day Kenya. The country’s state forests should continue to be protected from habitation, even if such habitation is based on perceived aboriginal “entitlement”, such as the one agitated by the Ogiek and the Sengwer communities. Whereas these communities claim to still be traditional forest dwellers (or forest peoples), they have in reality at the present time long abandoned and transformed from the