Case Study Report For

Case Study One Indigenous Peoples’ Rights in the Kenya Lake System in the Great Rift Valley

1 By DR. KANYINKE SENA

Indigenous Peoples’ Rights in the Kenya Lake System in the Great Rift Valley 1 CASE STUDY ONE

Indigenous Peoples’ Rights in the Kenya World Heritage (IIPFWH), as a standing global Lake System in the Great Rift Valley body aimed at representing indigenous peoples voices in the World Heritage Committee processes.5 The Committee referred to the establishment of the IIPFWH, “As an important reflection platform on the involvement of Indigenous Peoples in the identification, conservation and management of World Heritage properties, with a particular focus on the nomination process.” 6

Pursuant to the mandate of the Forum, this report aims at analyzing Indigenous Peoples’ involvement in the Kenya Lakes System in the Great Rift Valley World Heritage Site. The report is as result of extensive literature review and interviews with communities in and around the lakes that comprise the Kenya K. Sena: Lake Bogoria Lakes System.

The Kenya Lake System in the Great Rift Val- ley is a World Heritage site in Kenya which comprises three inter-linked, relatively shallow, alkaline lakes and their surrounding territories. The lakes system includes Lakes Elementeita, Nakuru and Bogoria in the Rift Valley. The lakes cover a total area of 32,034 and was inscribed as a world heritage site in 2011. The inscription was based on the lakes system outstanding universal values and criterion (vii), (ix) and (x) as provided for, under paragraph 77 of the Operational Guidelines for the Implementation of the World Heritage Convention. Despite the in- K. Sena: Endorois in Lake Bogoria digenous communities living in and around the lakes, the nomination only focused on the natural properties of the lakes system, The Kenya Lake System in the Great Rift Valley is a World Heritage site in Kenya which and did not feature any cultural values. comprises three inter-linked, relatively shallow, alkaline lakes and their surrounding territories. The lakes system includes Lakes Elementeita, Nakuru and Bogoria in the Rift Valley. For over a decade, indigenous communities 2 The lakes cover a total area of 32,034 and was inscribed as a world heritage site in 2011. have been engaging in the World Heritage The inscription was based on the lakes system outstanding universal values and criterion Committee processes. At the 41st session of 3 (vii), (ix) and (x) as provided for, under paragraph 77 of the Operational Guidelines for the the World Heritage Committee held in Kra- 4 Implementation of the World Heritage Convention. Despite the indigenous communities kow, Poland in July 2017, indigenous peo- living in and around the lakes, the nomination only focused on the natural properties of the ples at the session decided to establish the lakes system, and did not feature any cultural values. International Indigenous Peoples’ Forum on

Indigenous Peoples’ Rights in the Kenya Indigenous Peoples’ Rights in the Kenya 2 Lake System in the Great Rift Valley Lake System in the Great Rift Valley 3 CASE STUDY ONE Interactions between indigenous Indigenous peoples in the Kenya lakes system communities and the lakes system

Indigenous peoples interact with the African Commission on Human and Peoples’ Lakes system in a variety of ways. How- Rights (ACHPR) with regard to the recognition ever, this report focuses only on con- of rights of the Endorois in relation to Lake sultation and benefit sharing. Bogoria, urged Kenya to respond to ACHPR regarding its resolutions and to ensure full a) Consultation and participation and effective participation of the Endorois in Indigenous communities are key in the the management and decision-making of the conservation of their culturally signifi- property, and in particular the Lake Bogoria cant sites. They are libraries of indig- component, through their own representa- enous knowledge related to the sites, tive institutions.”15 Subsequent interac- yet when such sites are inscribed as tions between Government and the Endorois world heritage sites, they are often not through the Endorois Welfare Council led to involved in the attendant processes.10 Though consultation with indigenous a Kabarnet Declaration that recognized that communities in the nomination, in- Baringo County Government as holding Lake scription and management of Lakes Bogoria in trust for the Endorois community, Nakuru and Elementaita needs further with the community having the rights to ap- In order to maintain and enhance the lived in and around Lake Bogoria for research, consultations with upstream prove any plans regarding the management Outstanding Universal Values of the lakes centuries. In 1973, they were evicted 11 Ogiek community is non-existent. The of the Lake. In Decision 39 COM 7B.5, the system, the World Heritage Committee, from their ancestral land for the estab- Endorois community has also raised World Heritage Committee welcomed “the while inscribing the property, empha- lishment of the Lake Hannington, now issues regarding the consultation pro- sized the need to sustain and enhance ef- Lake Bogoria game reserve. The eviction cess that went into the nomination and adoption of the Kabarnet Declaration, which fective management, while addressing a was without consultation or adequate inscription of Lake Bogoria as part of formally recognizes the Endorois as a com- range of long-term issues. This includes compensation. The eviction also inter- the Kenya Lakes System.12 Consulta- munity and the Endorois Welfare Council catchment level management of threats fered with their culture, livelihoods and tion with Endorois was critical espe- as their representative organization in the and developments with particular em- religious practices. The Maasai, a pasto- cially since the Africa Commission on management of Lake Bogoria.”16 In 41 COM phasis on management of groundwater, ralist community, live adjacent to Lake Human and Peoples Rights had ruled 7B.21, the Committee further reiterated its surface pollution, forest cover, as well as Nakuru National Park, Lake Elementeita that Lake Bogoria is the Endorois an- request to Kenya for a progress report on inter-sectoral and participatory manage- in Kenya and Lake Natron in Tanzania. cestral home.13 However, during con- the implementation of the African Commis- ment processes especially with respect Though Lake Natron is not part of the sideration for inscription, government 7 to environmental impact assessments. Kenya Lakes system, the World Heritage representatives insisted that there was sion on Human and Peoples’ Rights (ACHPR) In the spirit of this emphasis by the Com- Committee specifically noted “the need full consultation with the Endorois and Endorois ruling to ensure the full and ef- mittee, it is therefore critical to engage for transboundary cooperation as the table lists of participants for several fective participation of the Endorois in the 14 indigenous peoples on site and at the values of the Kenya Lakes system are meetings it had organized. This rais- management and decision-making of Lake catchment level, in all activities aimed at partly dependent on the protection of es questions on the mode of consulta- Bogoria.17 However, a report submitted by sustaining and enhancing the manage- other lake and wetland areas, specifical- tion and the representative indigenous Kenya to the World Heritage Centre in Janu- ment of the lakes system. ly Lake Natron in Tanzania, as part of a peoples institutions, and how to ensure ary 2019 does not indicate any significant future transnational serial World Herit- the full and effective consultations with 8 The indigenous communities that are age property.” The Ogiek are a recent indigenous communities in world herit- progress in the implementation of the World on site or at the catchment level are the hunter-gatherer community in the Mau age process. Heritage Committee resolutions on the full Endorois, Maasai and Ogiek communi- forest complex which is home to the and effective participation of the Endorois ties. The Endorois are a community of source of the rivers Njoro, Makalia and In decision 38 COM 7B.91, the World Herit- in the management and decision-making of approximately 60,000 people who have Nderit which feed into Lake Nakuru. 9 age Committee noted “The resolutions of the the property.

Indigenous Peoples’ Rights in the Kenya Indigenous Peoples’ Rights in the Kenya 4 Lake System in the Great Rift Valley Lake System in the Great Rift Valley 5 CASE STUDY ONE Addressing Indigenous Peoples’ Rights in the Property a) Benefit sharing Indigenous communities, both in and around the property as well as in the up- Benefit sharing connotes the action of giv- per catchment areas should benefit from ing a portion of advantages/profits, both the utilization of the property. While Lake monetary and non-monetary, to others.18 Nakuru is under the Kenya Wildlife Service a) Recognition of Land Rights It is a technical term used in the context of (KWS) which sends all collected revenue di- access to and use of natural resources. In rectly to the national treasury, Lake Bogoria Indigenous peoples land rights are crucial for the context of world heritage sites, it de- is under the County Government of Barin- conservation.21 The United Nations has not- notes sharing of monetary and non-mon- go, which collects and distributes revenues ed that indigenous peoples’ collective rights etary benefits arising from the commercial from the Lake. There is therefore no clear to lands, territories and resources not only or non-commercial utilization of resources indication on how indigenous communities contributes to their well-being but also to the of resources found in a heritage site. The in and around Lake Nakuru directly ben- greater good, by tackling problems such as monetary benefits from the Kenya Lakes efit from the revenues collected from the climate change and the loss of biodiversity.22 system include revenue from tourism ac- lake. However, the situation is different in The Food and Agriculture Organization also tivities and proceeds from the extraction the case of Lake Elementeita and Bogoria. specifically notes that Indigenous Commu- of any minerals or genetic resources in the Communities in and around Elementeita nities are key to sustainable forest manage- property. Non-monetary benefits can in- enjoy free, unlimited access to the lake. ment.23 clude grazing rights, cultural activities, in KWS has not implemented any formal rev- addition to the provision of water and aes- enue collection structures and the Lake El- Unfortunately, indigenous communities in the thetic values among others. Benefits flow ementeita Ecotourism Association formed Kenya Lakes system are still struggling for the with responsibility for each beneficiary to by the community around the lake, only recognition of their lands rights in and around contribute to the integrity of the property. charges for guided tours. lake Bogoria and in the Mau upper catchment areas. In the case of Lake Bogoria, the Endorois has for the last few years received 10% Lake Bogoria, for example is the ancestral of the annual revenue collected from the home of the Endorois community. They lake.19 They further occupy 40 % of the have lived there; their houses were there by jobs related to the park management.20 the shores. The lake is of great significance In 2015, the Endorois community received to them. It is their cultural site. It is a prayer royalties amounting US$ Dollars 22,000 site, a site that brought together the com- (2,000,000 Kenya Shillings) from the use of munity in whichever occasion. This is a site enzymes collected from the lake by Novo- they have lived and performed rituals, where zymes, a Bio-prospecting Company. Other they buried their ancestors.24 In 1974, they benefits that the Endorois enjoy, include were evicted from the territory for the estab- grazing rights managed by a grazing com- lishment of the Lake Bogoria Game reserve. mittee, unrestricted access to the lake and Since the mid 1980’s they have been pursuing even some live inside the property. A cul- their land rights through different processes tural center that was established outside including the African Commission on Human the gate to enhance the Endorois commu- and Peoples Rights. In 2010, the Commission nity benefits remains neglected for unclear recommended that the government of Kenya reasons. Other indirect benefits include recognize and restitute Endorois land rights Endorois women running small businesses to Lake Bogoria. But to date, the Commis- outside the game reserve’s entrance. How- sion’s decision is yet to be fully implemented ever, both the management of the lake despite annual reminders by the World Herit- and the Endorois community is enhancing age Committee since 2015. income opportunities from the property Similarly, the Ogiek, a recent hunter-gatherer to boost monetary benefits. This will also significantly decrease livelihoods pressures directly facing the property.

Indigenous Peoples’ Rights in the Kenya Indigenous Peoples’ Rights in the Kenya 6 Lake System in the Great Rift Valley Lake System in the Great Rift Valley 7 CASE STUDY ONE

community found in the Mau forest complex, the Lake management and over 40% of the staff were flushed out of the forest in what the Ken- employed by the County government to manage yan government said was a move to pave way the lake are from the Endorois community. for conservation of the Key water tower. Follow- ing an eight-year legal battle, the African Court A formalized management of Lake Elementeita that on Human and Peoples Rights, in May 26, 2017 will include the local Maasai population will be neces- asserted Ogiek claims over the Mau forest com- sary. Similarly, KWS should clearly provide information plex. The Ogiek are currently pushing for the rec- on how the community around the park is involved in ognition and restitution of their land rights. the daily management of the park. In Lake Bogoria, the formulation of the management plan is progress, The various government agencies involved in rec- but support is needed to fast track the process and its ognition of land rights should speedily therefore implementation. act to recognize the land rights of the Endorois and Ogiek for the benefit of the Lakes system. c) Addressing threats to the outstanding universal values of the property b) Involvement in management Reports to the World Heritage Committee tend to There is increasing recognition of the value that focus only on threats within the property. For ex- local, indigenous and mobile communities can ample, the report submitted by to the 43 session bring to the process of conserving biodiversity.25 of the Committee only lists governance, hous- Participatory conservation enables multiple ap- ing, major visitor accommodation and associated proaches in mitigating impacts faced by World infrastructure, management systems/ manage- Heritage Sites. The Executive Director of Flaming ment plan and renewable energy facilities, as Conservation Network insists that involvement factors identified in previous reports as threats of indigenous knowledge in conservation of the to the property.27 However, indigenous peoples i. Geothermal activities in the rift valley in the Olkaria and Menengai geothermal Kenya Lakes system is critical in dealing with in and around the property note the existence of area. Extraction of geothermal resourc- challenges that have accumulated over years.26 additional challenges as highlighted below. Though reports on the property have es is also at advanced stages of devel- Communities in and around the Lake system are identified renewable energy activities opment in Silali in Baringo County, ap- involved in the design of the respective manage- as one of the threats to the outstanding proximately 20 km from Lake Bogoria.28 ment plans for Lakes Elementeita, Nakuru and universal values of the property, indig- Therefore while the report to the 43-ses- Bogoria. In Lake Elementeita, members of the enous peoples note that the focus has sion committee indicates the threats of lake’s ecotourism association are involved in the been on the actual property but not on renewable energy as resolved, indig- informal day to day activities of the lake. Howev- areas outside the property within the rift enous peoples request an independent er, there still remains challenges, especially in re- valley and in close proximity to the prop- environmental impact assessment of the lation to encroachment by the hotels around the erty. Indigenous communities have ob- geothermal extraction activities in Olka- lake. A boundary review of the lake’s bounda- served that for the last few years, “water ria, Menegai and Silali, on the property ries might address this encroachment challenge. levels have increased tremendously,” in in accordance with Paragraph 172 of the With Lake Nakuru being a national park under Lake Nakuru and Lake Bogoria, affecting Operational Guidelines. the exclusive management of the Kenya Wildlife the feeding patterns of the flamingoes Service, it’s not clear how the community around in both lakes and geysers, which are key ii. Climate change it is involved in the daily management of the tourist attractions in Lake Bogoria. Un- lake. In Lake Bogoria, a grazing committee has confirmed reports link the rising water Indigenous peoples in and around the been established to manage community grazing levels to geothermal extraction activities three lakes that comprise the property at the lake. Endorois tour guides are also part of

Indigenous Peoples’ Rights in the Kenya Indigenous Peoples’ Rights in the Kenya 8 Lake System in the Great Rift Valley Lake System in the Great Rift Valley 9 CASE STUDY ONE

have noted prolonged droughts, irregular cled. During the rainy seasons, flooding A sizable income from the lakes systems rainfall and increased desertification. This drains large amounts of raw sewage and will act as an incentive for both indigenous are attributed to climate change. Deforest- industrial waste into the lake. The num- peoples and concerned government agen- ation for agricultural purposes in the upper ber of flamingoes has been alarmingly cies to sustain the Outstanding Universal catchment areas is contributing to drying reduced,33 and experts have linked re- Values of the property. The current low of rivers that feed the lakes and siltation cent suspected outbreaks of anthrax at revenue streams from Lakes Elementeita during the dry season. Climate change is the Lake to the pollution.34 The Nation- and Bogoria discourage both from putting therefore a threat to the outstanding uni- al Environment Complaints Committee serious efforts in sustaining the universal versal values of the property and requires (NECC), has also noted massive amounts values of the property. For example, a sen- urgent measures to address the issue. For of pollution as the main challenge facing ior government official in Lake Bogoria as- example, several boreholes maybe needed the lake.35 Similarly, numerous deaths serts that they haven’t really felt any seri- around the three lakes to provide fresh wa- of flamingoes in Lake Bogoria have been ous benefits from inscription of the site as ter for wildlife and the indigenous commu- linked to industrial pollution from agri- a World Heritage Site. For the Kenya lakes nities during the dry seasons.29 cultural activities upstream, especially system, so far only three requests totaling at the catchment areas of the lake’s in- USD $45,000 have been approved for any iii. Pollution flow.36 For the outstanding universal support activities. The last funding was in values to continue, it is important then 200637 and this was even before inscription Despite government denials,30 stakehold- that pollution should be addressed. Meas- in 2011. Since inscription, only USD $17,283 ers have raised serious concerns regard- ures could include construction of a new has been granted by the UNESCO Regional ing the heavy pollution affecting the Kenya sewage treatment site for Nakuru town and Office for Eastern Africa (2015-2016).38 Lakes System property.31 Lake Nakuru is Egerton University’s sewage, addressing en- reeling under pressure as a result of the croachment and addressing industrial pol- Noting the report of the World Heritage Centre rise of population in Nakuru town and its lution in the upper catchment areas of both and advisory bodies on sustainable develop- environs, resulting in increasing levels of lakes. Reforestation of degraded upstream ment on World Heritage Sites in Africa, indig- pollution especially from untreated sewage, lands would be critical. enous peoples in and around the Kenya Lakes chemicals and industrial waste.32 Sewage system would like serious efforts to enhance from Nakuru town is not effectively recy- d) Enhancing Benefits through Increased revenue streams from the property, to support Revenue Streams indigenous people’s sustainable development.

Indigenous Peoples’ Rights in the Kenya Indigenous Peoples’ Rights in the Kenya 10 Lake System in the Great Rift Valley Lake System in the Great Rift Valley 11 Introduction

To improve the collaboration and dialogue for the respect of the rights of indigenous people and to reinforce the endeavours for the protection of the World Heritage Site Case Study Two The indigenous Pygmy people and the Kahuzi -Biega National Park KBNP/ The Kahuzi-Biega National Park (KBNP) is ers the administrative territories of Ka- one of 5 national parks from the Demo- bare, Klehe, Shabunda and Walunga in World Heritage Site cratic Republic of the Congo (DRCongo) the South Kivu Province; Walikale in the that has inscribed as a UNESCO World Her- North Kivu Province and Punia in the itage Site. Since its inscription in 1980, it Maniema Province. The park is inhab- By JOSEPH ITONGWA has been considered a treasure of man- ited by abundant and varied wildlife kind. But since 1997, the KBNP has been including one of the last populations featured on the list of endangered sites as of the eastern lowland gorillas (Gorilla Integrated Program for the Development of a result of the armed conflict that the DR- beringei graueri). the Pygmy People of Kivu Congo has experienced for more than 20 years. The protection of the graueri Gorilla IPDP-SHIRIKA LA BAMBUT species motivated the colonial authori- The park is situated to the east of part ties in 1937 to create the Zoological of DRCongo, and it has an extensive sur- and Forestry Reserve of Kahuzi-Biega, face area of 600 000ha and an altitude of which covers a surface area of 75 000ha 600m to 3308m. The park was named after in the region of the Mount Kahuzi and the two mountain ranges dominating the the Mount Biega. The Reserve was es- park’s highlands, Mount Kahuzi (3308m) tablished as a park in 1970 and once and Mount Biega (2790m). The KBNP cov- established, the boundaries were re-

Indigenous Peoples’ Rights in the Kenya Lake System in the Great Rift Valley 13 CASE STUDY TWO

The indigenous Batwa Bambuti-Babuluko people and the KBNP:

The indigenous Batwa Bambuti-Babuluko people have developed a strong bond with the land and the natural resources of the park which is a reason why they are important partners in the sustainable conservation of the ecosystems located in this heritage of mankind site.

In the lowlands, the indigenous people still maintain their traditional way of life and culture which goes hand in hand with nature conservation. This has resulted in a Decree from the Communal Forestry giving four Bambuti-Babu- luko families of the Lufito, Kambushi, Kissa and Kilali villages, ownership over their ancestral land. In contrast, the indigenous communities living in the highlands have lost many of their cultural practices following the eviction from their ancestral territory. Lack of access to their traditional natural resources have had very negative impact on their culture, identity and livelihood. Traditional hunting, gathering and visited and reduced to a surface area of members in conservation that would in- collection of medicinal plants are now consid- 60 000ha. The attempt to join the Gorilla volve riverside communities. However, ered illegal and many Batwa people have been populations of the highlands with those Communities have no say in the decision severely punished by the law when caught. located in the forests of the lowlands, making structures relating to the man- resulted in the KBNP’s extension to 600 agement and governance of the park Since August 2018, the land rights claims of 000ha, that would include 540 000ha of the Batwa people, who inhabit the Kabare and lowlands which were originally not origi- Local participation structures referred Kalehe highland territories, has taken took an 39 nally part of the park. to as CMCC have also been created. In unusual turn with more than 200 families oc- addition, the KBNP provides certain so- cupying areas of the park without authorisation From the beginning, the park has had cial support grants to the Pygmy families from the government or park. This unauthor- strict protection measures, which led to still living around the park and in the vil- ised occupation has unfortunately given rise to the expulsion of the indigenous Pygmy lages of the Kabare and the Kalehe in the non-indigenous communities members engag- people. Additionally, the expansion was KBNP highlands. These grants include According to recent assessments by the CINC, the ing in illegal activities such as hunting, wood made without any prior studies or con- social development and human rights population of the indigenous Pygmy community of cutting and charring. sultations with the local and indigenous initiatives, which are being supported Batwa and Bambuti-Babuluko, (highlands and low- peoples whose survival depended on the by both local and international organisa- lands) is estimated at more or less 600.40 The num- In the lowlands, ten or more sacred sites and natural resources of this area. tions. However, all these enterprises add ber of indigenous people surrounding the KBNP cultural spaces belonging to indigenous people little value to the indigenous peoples be- would be more than the current estimation, par- are situated within the park. This has caused The KBNP has both a management plan cause they are deprived of the land and ticularly because some indigenous villages remain the indigenous communities to regularly query and a strategy to engage community natural resources that are essential for inaccessible in the lowlands. the definite periphery of the park. their survival

Indigenous Peoples’ Rights in the Kenya Indigenous Peoples’ Rights in the Kenya 14 Lake System in the Great Rift Valley Lake System in the Great Rift Valley 15 CASE STUDY TWO

focus on their culture and their policy of sustainable management as opposed to a ‘fortified conservation’ system, which excludes them from their land, territories and ancestral resources; • The indigenous Batwa Bambuti-Babulu- ko people must play a significant role in the establishment of the KBNP on their land and territories. They should also be involved as stakeholders during the whole process of inscription of the site as a World Heritage Site. • Their prior, free and informed consent should be obtained before any activity can place take on the site; • The indigenous Batwa Bambuti-Babu- luko people must be actively engaged in To promote dialogue and use the the management and the decision-making traditional knowledge and exper- process related to the KBNP. Their tradi- tise of the Batwa Bambuti regard- tional knowledge as custodians of nature should be recognised and promoted. ing matters of conservation in the Their traditional knowledge, customary KBNP. laws and indigenous sustainable practices regarding the management of ecosystems It is imperative to find a peaceful resolu- and resources must be respected, pro- tion to the conflict between the indigenous moted and integrated; Batwa Bambuti people and the manage- • The financial benefits forthcoming from ment team of the KBNP. A way that this the KBNP should be equally distributed can be encouraged is by using the Whaka- between the indigenous Batwa Bambuti- tane mechanism of the IUCN. This created Babuluko communities; a, “mechanism to address and redress the • The historic injustices committed against effects of historic and current injustices the Batwa Bambuti–Babuluko people, by against indigenous peoples in the name of the establishment of the KBNP must be conservation of nature and natural resourc- recognised and the appropriate measures es.” must be put in place to ensure their sus- In addition, indigenous Batwa Bambuti– tainable livelihoods and to respect their Babuluko people should be active partici- human rights. pants in the management of the sites in the KBNP. They should have unlimited access to natural resources and have their rights guaranteed, as set out by recommendation 133.162 of the Universal Periodic Review of the DRC, adopted by the Human Rights Council in April 2014.

Therefore, it is important to recognise that:

• Conservation areas which are situated on the land and territories of indigenous people are most effectively managed when it is done in partnership with them, with special

Indigenous Peoples’ Rights in the Kenya 16 Lake System in the Great Rift Valley