Chapter 5 Kenya now: the architecture of dispossession

The Sengwer as obstacle to conservation

In 2018, the EU suspended funding for its 31 million euro Water Towers Protection and Climate Change Mitigation and Adaptation (WaTER) project in Kenya (EEAS, 2018). The project is designed to conserve and protect the water catchment system, otherwise known as the ‘water towers’, located in five areas including the Cherangani Hills and the Mau Forest complex (UNEP, 2012, p. 21), the ancestral homes of the Sengwer and Ogiek respectively. After repeated warnings from human rights and civil society organisations in Kenya and around the world (Kenrick, 2017), UN experts (OHCHR, 2018) and the affected Sengwer, the EU finally acted after the killing, on 16 January 2018, of forty-one-year-old Robert Kirotich, a member of the Sengwer community. He was killed during a raid by the EU-funded Kenya Forest Service (KFS), an agency overseen by the Ministry of Environment and Forestry, mounted in order to ‘clear’ the forests of what the Kenyan government see as illegal squatters, loggers, cattle ranchers and poachers, who it argues are criminal elements in the forest which must be flushed out’ (Voice of America, 2018). These ‘criminal elements’, which include forest dwelling peoples like the Sengwer, the Ministry of Environment and Forestry claim are environmentally degrading the Mt. Elgon and the Cherangani Hills. The latter are two critical ecosystems for Kenya, vital for water and food security for the region and a host of dependent local species and the nation as a whole. In addition, these two areas, as well as the other water catchment sites – Mount Kenya, the Mau Forest complex and the Aberdares range – are responsible for 75 per cent of renewable surface water resources in Kenya and play a vital role in sustaining a number of key industries (UNEP, 2012, p. 8). This was just another episode in a long history of repeated violations of human rights and mass evictions of the Sengwer (at least thirteen such evictions since January 2014) and other Indigenous groups from their forest dwellings and destruction of their villages by the KFS, stretching back, as we will see below, decades.

These forced evictions violate not only the rights of the Sengwer to housing, and to their ancestral lands under international law and according to African Union human rights standards, but also their rights under the 2010 Constitution of Kenya, which recognises their right to live in their ancestral lands under Article 63.2.d.ii, as does the 2016 Community Land Act. These rights the Sengwer have pursued by petitioning the Kenyan Land Commission and Kenyan Environment and Land Court, so far to no avail.¹ Moreover, the project design and terms of reference for technical assistance laid out in the original tender embodied a model of conservation that was neocolonial in its conspicuous lack of any meaningful consultation with the Sengwer and other affected communities. This is a glaring oversight since free, prior and informed consent on development projects that affect Indigenous peoples is a fundamental right enshrined in the UNDRIP (UNGA, 2017), an international instrument which the EU itself pledged to honour in the EU Commission’s Implementing EU External Policy on Indigenous Peoples document (EC, 2016), a pledge made in the same year the WaTER project was launched. The failure to consult also violates the EUs Charter of Fundamental Rights and the 2015 EU Human Rights Action Plan (EU, 2021). The terms of reference of WaTER did not even mention the Sengwer or other Forest communities, let alone make any attempt to implement a human rights impact assessment.

In fact, KFS actions arguably amount to forced or involuntary population transfers, defined by a report produced by the Council of Europe’s Committee on Legal Affairs and Human Rights (2011) as

a practice or policy having the purpose or effect of moving persons into or out of an area, either within or across an international border, or within, into or out of an occupied territory, without the free and informed consent of the transferred population and any receiving population. It involves collective expulsions or deportations and often ethnic cleansing. [emphasis added]

The International Criminal Court (ICC) (1998) includes ‘deportation or forcible transfer of population’ as one technique that falls under the definition of Crimes against Humanity; the phrase ‘forcible transfer’ was included to acknowledge that involuntary transfers of populations within a state’s borders fall under the definition of ‘deportations’, which have long been recognised as an international crime (Lee, 2001, p. 86). This would amount to domicide and a prima facie violation of all of the three key rights articulated in the UNDRIP, and thus an attack on the structural integrity of group life. There was no FPIC (UNDRIP, Article 19), and by extension it constitutes a violation of their rights to sovereignty and, by severing their connection to the land, amounts to an assault on the ecological, economic and cultural integrity of the genos, corresponding to Lemkin’s techniques, given the central role occupied by Sengwer land explored in detail below. This forced transfer within national borders, often targeting ethnic groups and involving collective punishment, chimes loudly with the forced evictions of Sengwer villagers at gun point and by way of burning down and destroying their villages.

The public record of the Kenyan government and the KFS of repeated evictions and human rights violations is well documented. As we saw above, not long after independence, with the Kenyan government consolidating the inherited political economy of land and by extension the discrimination of customary community forms of land control, ancestral land was now either given over to other ethnic groups or gazetted as ‘protected areas’ and legally declared state forests. This essentially outlawed Sengwer occupation of their land. By the 1970s, the evictions began to involve burning down of homes, but not all property and by the 1980s this developed into what could be described as a ‘scorched earth’ policy of burning everything down – entire villages (Sengwer elder Lukas Kiraton, quoted in Kenrick, 2020a, pp. 238–9). KFS actions intensified throughout the 1980s. In the 1990s KFS tactics began to incorporate illegal redrawing of forest boundaries and the allocation of lands to other ethnic communities (Kenrick, 2020, pp. 238–9). Here we see policies such as parcelling out of land to adjacent communities, redrawing of land boundaries and violent campaigns of ‘pacification’, all underpinned by a neocolonial legal architecture, which in their form and content bear a striking similarity to colonial-era policies explored in the previous chapter.

These mechanisms of control again raised their ugly heads with the launch of a World Bank-funded conservation and carbon offset project, known as the UN-authorised Reducing Emissions from Deforestation and Degradation (REDD+) programme, funded via the Natural Resource Management Programme (NRMP) (World Bank, 2007). Starting in 2007, the World Bank provided the KFS $64 million dollars to improve ‘the management of water and forest resources in selected districts’. After initially including provisions that recognised the rights of forest communities like the Sengwer, they were later amended to remove all such references (Ahmed, 2014). The project lasted till 2013. Coterminous with this, in 2009, the Finnish government, arguably the most important international donor to the KFS, began its project (2009 to 2015) called Miti Mingi Maisha Bora, which translated means ‘Many Trees, Good Life’. The project was predicated on the environmentally dubious notion that the most practical and efficient way of protecting the forests is to encourage fast-growing commercial plantations for profit, a model which has been imported from Finland, where it has been successful. However, the model is inappropriate for the Embobut since the forest is not fast-growing and ignores the criticality of protecting the fragile biodiversity of the Indigenous forests. Moreover, this model and its financing by the Finnish government fosters a particular structure and institutional logic in the KFS which predisposes it to pursuing perverse commercial incentives and, most saliently for this research, an incentive to evict forest-dwelling communities (Kenrick, 2020a, pp. 246–7). This perverse incentive to displace and commit domicide is arguably present in all the internationally financed projects, given the conspicuous elision of FPIC or even the lack of any reference to forest-dwelling communities at all in the planning documents, as we saw earlier, thus rendering Indigenous people invisible.

In 2009, not long after both projects had taken off, the government concluded that deforestation in the Embobut Forest was endangering water catchment functions of the forest and that all its residents would have to be resettled, failing to distinguish between Indigenous peoples who had historical attachments to the forest and newly arrived communities (AI, 2018, p. 6). This conclusion was based in part on the government-appointed Embobut Forest Task Force, which included representatives from civil society, forest communities, forest officials and politicians, and was tasked with assessing the state of the forest and consulting with forest residents to establish those eligible for resettlement. In its 2010 report, it concluded that the Sengwer were the most eligible group for resettlement, which was considered urgent (AI, 2018). Suffice to say, despite insistence from the KFS and the Ministry of Environment and Forestry that the Sengwer were fully consulted via the Embobut Forest Task Force process, three of its members interviewed by Amnesty International (AI) conceded that the decision to evict the Sengwer was taken prior to any consultation. Moreover, just as we saw with the EU-funded Water Towers Programme, there was an abject failure to provide FPIC (UNGA, 2017, Article 19) and a failure to engage with the Sengwer traditional decision-making structures, in violation of article18 (UNGA, 2017; anonymous, Sengwer, 18/03/2020). As the report (AI, 2018, p. 6) argued:

Twenty-two community members interviewed said that they were not informed about consultation meetings. In some cases, forest residents were informed of the time, place and subject matter of meetings by word of mouth only, and only the day before the meeting, not allowing sufficient time to make arrangements (for example for childcare). Forest residents interviewed by AI reported a high degree of confusion and ignorance over the purpose of the process, the details of what was being proposed and what was ultimately agreed.

Moreover, a number of task force members are on record admitting that the Sengwer remaining in the forest was never an option (AI, 2018, p. 32).

Unsurprisingly, nearly every year of the World Bank and Finnish government-funded projects saw mass evictions of the Sengwer. The World Bank’s (2015) own Inspection Panel found the NRMP guilty of failing to take ‘the proper steps to address the potential loss of customary rights’ and enabling the evictions by failing to adequately identify or address that the institution it was funding, the KFS, was before, during and after the term of the NRMP ideologically committed to mass evictions. The report, however, ultimately exculpated the World Bank of the evictions directly, despite funding the agency that was responsible. Nevertheless, in the court of public opinion, culpability was clear. The World Bank and the Finnish government, just as the EU after them, employed a neocolonial model of conservation that ignored the rights of forest-dwelling Indigenous peoples and paid no heed to the devastating impacts the forced mass evictions would have on the viability and survival of their communities.

Once the World Bank-funded project had ended, the Kenyan government unilaterally decided that the most appropriate resolution to this problem was to provide financial compensation to the Sengwer and subsequently declare that this now extinguished their right and claim to the land.² Again, the Sengwer were not consulted over the compensation process, and, after senior politicians descended on Eldoret county, including the president, deputy president and the local senator, the message delivered was clear: either they accept the compensation or the full force of the state’s paramilitaries would be levelled against them. Many were promised by local politicians that compensation would be for past historical injustices and not an implicit relinquishing of historical claims to land. Some legitimate Sengwer beneficiaries accepted the compensation under this proviso; many would subsequently receive nothing. Much of it was embezzled by non-Sengwer elites (Kenrick, 2020a, pp. 243–4; AI, 2018, p. 7). In early 2014, the convenient pretext of compensation would trigger yet another wave of evictions and mass displacement actions; this time the frequency of the evictions increased from anywhere between every few months to a year to every week (Kenrick, 2020a, pp. 243–4).

In order to strengthen the moral case for evictions, the government and the KFS often claimed that the Sengwer no longer resided in the Embobut Forest or were nothing more than criminal ‘squatter’ elements. Recall that dispossessed Kenyan peasants desperately searching for land and material security in light of their mass dispossession by British colonists and settlers, who eventually settled on white settler farms, were also labelled squatters. The label inherently implies a lack of legitimacy or permanency of residence and thus undercuts the historical claims made by Sengwer and other Indigenous people to their land so vital to Indigenous status under African regional law in the wake of the ACHPR ruling in 2010 that the Endorois community in Kenya are an Indigenous group (ACHPR, 2010). In a typical article published shortly after the wave of mass evictions began in 2014, as we saw earlier in the wake of the EU-funded Water Towers Programme, all the inhabitants of the Embobut Forest, with no distinction, were labelled squatters by the government, and all were accused of illegal farming, logging and charcoal burning and overgrazing (Suter, 2013). The overriding subtext of the article was that the amorphous mass of squatters were environmentally destructive. None of these suppositions were challenged or questioned by any of the quoted academics, local politicians, nor indeed by the journalist. It was not an editorial or opinion piece but the failure to provide any dissenting voices had the effect of reproducing and reinforcing this highly misleading and inflammatory dominant narrative.

Unlike the World Bank-funded project, the subsequent EU-funded WaTER project was not officially in aid of forest carbon offsets, but the direction of travel was clear. In a strategic ten-year ‘Plan Period’, published long after the ending of the controversial World Bank offset project in the Embobut Forest and Cherangani Hills, the Kenya Water Towers Agency (KWTA, 2019, P. 93) argued that in order to raise necessary finance to conserve the forest it would ‘promote Payment of Ecosystem Service (PES) Schemes’. In a rather chilling Orwellian turn of phrase, it states that to secure the support or at least the acquiescence of effected communities it must ‘sensitize the beneficiaries of the ecosystem service’ and ‘sensitize and build capacity [sic] the local community of carbon marketing’ (KWTA, 2019). On its official government website it still uncritically presents the recommendations of a 2008 task force investigation into the Mau Forest complex, which concluded the forest and water catchment area could only be protected by moving from what it called a ‘single-asset’ system which only values it as a resource base to a ‘multiple-asset’ approach, ‘which recognizes the wide variety of values of this ecosystem and diversifies revenue streams by capitalizing on ecosystem values, thereby maximizing both conservation and economic returns on the investment’ (KWTA, 2020).

In May 2017, the self-defined ‘non-profit scientific research organization’, the Center for International Forestry Research (CIFOR), launched, alongside their partners, including Germany’s Federal Ministry of Economic Cooperation and Development, a three-year project on the conservation of Kenyan water towers (CIFOR, 2017). Their main research focus is on the management of tropical forests. One component of their research is what they call ‘Environmental services and landscape management’, which essentially promotes mechanisms like PES and monetary valuation of nature more generally. Among their partners for the Kenyan water towers project include the now infamous KFS and the KWTA. Buried at the very end of the document detailing the proceedings of a workshop, under a section titled ‘Suggestions on Areas of Collaboration’, the CIFOR list ‘Payment for Ecosystem (PES) Model: KEFRI is working on PES as a business model, which investors can adopt’ (CIFOR, 2017, p. 17).

Sadly, the subterfuge has not ended there. According to Sengwer activist and community leader Elias Kimaiyo (author interview, 07/08/2020) the ministry of Environment and Forestry wrote letters to the relevant EU ambassador to lift the suspension of the funds for the WaTER project, fraudulently adding the co-signatures of community members. This letter, seen by the author, which calls on the EU to recognise a new group as the legitimate representatives of Sengwer community at a meeting in Maron primary school on the 27 May 2020, included the names of people Elias (07/08/2020) told me cannot even read or write. This person would be one of the new ‘legitimate representatives’. One person who, according to the letter, attended the meeting, which alleges community leaders agreed to the lifting of the EU suspension, was compelled to sign his name to a handwritten letter, also seen by myself, refuting his alleged consent to lift the suspension. In a subsequent letter written on 10 June 2020 (Kimaiyo, 2020), written by Sengwer community leaders to the European Union in light of this manoeuvre, the letter clarifies that the Sengwer were never against the WaTER project in principle, only the lack of FPIC.

The United Nations Development Programme (UNDP) have also been important players in these unfolding events. Globally, they have been instrumental in REDD+ ‘readiness’ preparation schemes in sixty-five countries (UN REDD, n.d.), schemes that arrange the necessary institutional and legal regimes which make forest carbon offsets possible and provide funding, just as we saw under the EU and World Bank projects. What the Sengwer interviewee (author interview, 18/03/2020) was at pains to stress is that UNDP as a delivery partner, if successful, will ensure that Kenya will become a recipient of REDD+ funding, which in turn will provide finance to the Kenyan government and its agencies to continue their acts of domicide. More recently, they have been positioning themselves as replacements for the EU as major funders for forest conservation in Kenya (author interview, 18/03/2020; Kenrick, 2020b). As early as 2017, UNDP were invited by the Kenyan government to initiate a REDD+ programme. The UNDP are responsible for the initial stages of the project including identifying drivers of deforestation, land rights and developing safeguards and an information system (AI, 2018, p. 70). Ostensibly, these safeguards include not just compliance with national policies but respect for Indigenous people’s rights, including right to land and protection against environmental destruction (AI, 2018).

However, despite assurances from the UNDP that Sengwer representatives have been included on the projects REDD+ steering committee and have been consulted regularly on the development of the project document known as the ‘Draft PRODOC’, which will define the projects, activities as well as its methodology, the Sengwer interlocutors interviewed by the author expressed concern this has not happened. Sengwer community representatives have consistently lobbied the UNDP since the beginning of the project, alerting the UN agency to the continued state violence and KFS eviction actions and urging the UNDP to address this fact, as well as open the consultation process more widely to the community as a whole. Unfortunately, it seems, KFS eviction actions and violence increase whenever meetings or consultations are organised between the Sengwer and international donors or partners, presumably to chasten such involvement. Indeed, a wave of KFS violence was unleashed on the eve of a World Bank-convened colloquium at Eldoret in March 2015, in light of the failure of the NRMP project (Kenrick, 2020a, p. 249).

In a letter, seen by the author, addressed to the head of UNDP in Kenya on 6 January 2020 (Kitum, 2020), the Sengwer community argued that until such assurances are given and the evictions and paramilitary violence ends, meaningful and constructive dialogue is impossible. In response, in a letter on 13 February 2020 (Badawi, 2020), the UNDP resident representative claimed that they were making every effort to consult relevant stakeholders, including Indigenous and community groups, but qualified this by reminding the Sengwer that the REDD+ project cannot contravene national law or court judgments which state no Indigenous groups can occupy gazetted forests, a clear signal that the UNDP takes the official government position. As we will see shortly, the Embobut Forest, according to Kenyan law, remains gazetted as a state forest and within the jurisdiction of the KFS, unless and until Sengwer tenure rights are finally recognised by the Kenyan Courts or government. Presumably, the UNDP are aware of this. In an interview with a Sengwer community member, I asked about the UNDP’s position and response. They averred that this was ‘a colonial mindset. They are only seeing the laws and wanted to push things their way. We told them [UNDP] the laws they are using, there are many challenges’ (anonymous, Sengwer, 18/03/2020). Indeed, as we will see below, among the many challenges is the need to decolonise the law.

In meetings arranged by the UNDP between the local Marakwet County, the Ministry of Environment and Forestry and the Sengwer for the drafting of local forest laws and regulations, negotiations broke down due to intimidation at the hands of the UNDP representative and local government officials (Kenrick, 2020b). Moreover, Sengwer attendees spoke of being ordered to switch off phones to prevent recordings of the meetings, and last-minute changes of its location to areas where they didn’t feel safe (Kenrick, 2020b). Reflecting on these ‘dialogue processes’, one interviewee (anonymous, Sengwer, 18/03/2020) described a Kafkaesque situation, ‘they push us from one person to another. We approach UNDP, then UNDP says no, just go and plan with your County government, when we [sic] get County government they say “no you see we don’t have jurisdiction over gazetted forest”’. As the interviewee explained, their forests, designated as public forest, are not devolved to county government jurisdiction under the new constitution, but they are still custodians of community and community lands, therefore they are effectively side-lined in county government plans despite being residents (anonymous, Sengwer, 18/03/2020). When they do finally meet, the interviewee added, ‘when we meet today, what we decided today, what is being brought next time into the meeting is something totally different’ (anonymous, Sengwer, 18/03/2020). They added (anonymous, Sengwer, 18/03/2020) that the consultations are just a ‘trick … to ask government institutions to come and talk to us so that they can record …. what they wanted is our presence but not what we are saying’. It is these kinds of Machiavellian tactics where the (neo)colonial authorities attempt to sow discord within Indigenous communities and frustrate attempts at genuine participation via administrative and bureaucratic processes, which by design create uneven fields of negotiation, that are precisely those documented in Australia in Chapter 3 in the period of recognition politics. It is perhaps no surprise then that despite the EU suspension, attempts at population transfer continue.

The forms of divide and rule and subterfuge evident in all the internationally financed projects and the construction of uneven fields of negotiation that they play out on, are underpinned by forms of colonial lawfare discussed in the previous chapter. In fact, in more recent years the Kenyan government has doubled down on the use of lawfare with the passing of the Forests Act of 2005 (GoK, 2005), which prohibits Indigenous groups living on their ancestral land, and the Wildlife Act of 2013 (GoK, 2013), which prohibits hunting and gathering practices deemed unsustainable and allows for the establishment of ‘protected areas’ without the necessity of FPIC. Without the latter, sovereignty, autonomy and meaningful land rights are impossible. Ergo, this cluster of laws will have genocidal consequences if enforced.

This is in spite of the new 2010 constitution (GoK, 2010), in large part written in the wake of intercommunal violence largely believed to be attributable to the divisive political economy of land (Cavanagh, 2018a), or what the 2009 National Land Policy (NLP)³ described as ‘present and historical land injustices’ (GoK, 2009). Indeed, the new constitution specifically makes provision for ‘community land’ tenure and seeks to elevate it to the same legal status as that which is state or individually owned. These principles have required statutes to elaborate those provisions, like the Land Act of 2012 (GoK, 2012) and the Community Land Act of 2016 (GoK, 2016a). The former established that customary rights have equal legal weight as freehold or leasehold and the latter that community land does exist and is held ‘in trust’ by the local county government only until the relevant community formalises its tenure (Kenrick, 2020, pp. 249–50). Further, the new Forest Conservation and Management Act 2016 (from now on Forest Act) (GoK, 2016b) makes provision for community land to be transferred to communities such as the Sengwer or Ogiek. Unfortunately, the latter act also contains articles that contradict this aspiration. Although it recognises the category of ‘forest community’ (section 2)⁴ and community forests, which includes ‘forests on ancestral lands and lands traditionally occupied by hunter-gatherer communities’ (GoK, 2016b, section 30(3)), It also states that public forests include any land that has already been gazetted as forest reserve, which, as we saw, includes Indigenous territory; the act stipulates public forests are managed by the KFS (GoK, 2016b, section 2). This is precisely the ‘legal roadblock’ evidenced in the UNDP involvement in REDD+ discussed above, and why one Sengwer activist asserted that the 2016 Forest Act was being used: ‘if you go to the forest act then they don’t allow us, we are nowhere. Now, the government uses the forest act instead of the constitution. When it comes to gazetted forest, that’s out of the question. It leaves us in a dilemma’ (author interview, 25/10/2021).

It is these sorts of ‘ambiguities’ or legal loopholes that Cavanagh (2018) likened to ‘bureaucratic sabotage’ that allows for the play of elite interests and the balance of power at any given moment to tilt the scales of justice in favour of those interests. Many in the Sengwer community are aware of the inherent colonial nature of Kenya’s socio-legal system and its susceptibility to bureaucratic sabotage. One member of the Sengwer (author interview, 25/10/2021), referring to this ‘ambiguity’, argued, ‘when you look at the constitution you look at it as something good, but when you go deep inside to get your rights you’ll never get [sic], that is why I think it was delivered by elites to continue this’.

As argued repeatedly in this book, we must always pay attention to the manner in which rights are institutionalised (Freeman, 2002, p. 85). The convoluted and contradictory legal architecture allows for the dispossession of forest-dwelling communities and gives legal authority to agencies like the KFS to execute its exclusionary acts of displacement and ‘relocation’ of the Sengwer. The repeated wielding of symbolic violence through a discourse that both denies they reside in the Embobut Forest, as the KFS have done repeatedly and even denies their Indigenous status by discursively subsuming them within the category of ecologically destructive ‘squatters’ and criminals, ensures that even if the provisions within the 2010 constitution and the accompanying legislation were to be applied in good faith, the Sengwer would be denied entitlement to those provisions.

Indeed, Kenrick (2020a, pp. 253–5) argues that the denial of the habitation of the forests by the Sengwer is precisely designed to inhibit the ability of the independent National Land Commission (NLC) to adjudicate over Sengwer’s case and the competing land claims made over the Embobut Forest. The NLC, enabled by parliament in 2012, derives its mandate to resolve historic injustices and concomitant competing land claims, and its powers from the 2010 constitution. Unfortunately, the constitution itself, and subsequent legislation, lacks clear guidance on how to achieve this, leaving room once again for ‘bureaucratic sabotage’ (Cavanagh, 2018a, pp. 137–8). Ultimately, the NLC, despite initial promises and rhetoric, issued an eviction notice and ordered Sengwer community members to leave, framing them as ‘encroachers’ (Rutto, 2016). In fact, one Sengwer community member (author interview, 25/10/2021) who attended a meeting hosted by the NLC in 2016 explained that the institution is in fact managed by state officials who hold deeply hostile attitudes that disparage the colonial legacy and its uneven impact on the Indigenous of Kenya, committing symbolic violence akin to other state agencies. He said the then chair of the NLC disputed the claim made by the Sengwer that they had been forcibly displaced by the British colonial authorities: ‘he said [the chair] “you are pretending that you are not going out of the forests, your ‘ancestral land”’. The chair, according to my interviewee, claimed the Sengwer were in part to blame for their colonial encounter, ‘you people who moved out their lands and paved way for colonial [sic] and that you people now are in a problematic situation … but those who fitted the [colonial] system are okay’. The insinuation was that those who assimilated to the colonial system and its system of land tenure are now better off and that groups like the Sengwer would be wise to follow suit. The Sengwer community member continued ‘the [Sengwer] community not [sic] even want to hear because they saw it as one way of oppressing them’.

Commenting on the Ogiek case and the Mau Task force report that had in part been set up to investigate the degradation of the forests in the Mau Complex and implement the African Court on Human and People’s Rights (ACtHPR, 2017) ruling on the unlawful eviction of Ogiek from their ancestral lands (from now on the Ogiek case) (OPDP and Katiba Institute, 2020), a report that has still not seen the light of day, one community member of the Sengwer told me that these sorts of administrative measures and initiatives simply ‘buy time, [sic] make excuse … they come up with excuse to not help the Sengwer and Ogiek’ (anonymous, 18/03/2020). Moreover, legislation has since moved the authority for the supervision of community land away from the semi-autonomous NLC back to the government ministry for lands (Wily, 2018, pp. 3–4). The history of the NLC is beset with attempts to undermine its functioning and independence by a parliament and executive unwilling to cede power (Kew and Lyman, 2016, p. 165). Nevertheless, by denying the habitation of the Sengwer in the Embobut Forest, the KFC were able to prevent the NLC from visiting the forests and meeting with the Sengwer.

This form of colonial lawfare and the accompanying discursive violence reconfigured the field of struggle and negotiation, facilitating legal and bureaucratic sabotage and empowering state paramilitaries. A petition filed to the Environment and Land Court in Eldoret on 22 March 2013, against intended evictions from Embobut Forest, argued that if carried out it would prevent the Sengwer from participating in their cultural life (in other words social death) in the interim, a series of injunctions were issued by the court demanding that all parties refrain from actions that would prejudice the case. Over time, the language of the injunctions evolved into a position that effectively gave the KFS latitude to continue its population transfer programmes. One injunction for instance in 2013 called on all parties to ‘maintain the status quo’. The KFS would interpret this liberally in line with the dominant government discourse when they argued that the status quo was no inhabitants in the forest (cited in AI, 2018, p. 44). The court backpedalled when in 2016 it issued an injunction clarifying that no forest residents should be evicted, but still declared ‘no new settlement to be allowed in the forest’ (AI, 2018).

Unfortunately, a second stronger petition in 2018, which made a more detailed case based on the rights to community land tenure defined in the 2010 constitution, was dismissed on 13 May 2020 (Rutto, 2020). Justice Stephen Kibunja noted that the land had been gazetted as a National Forest by the colonial regime in 1954 and subsequently declared a central forest in 1964 and thus public land. He (quoted in Rutto, 2020) stated:

The proclamation and subsequent gazettement of Embobut Forest as a forest reserve and thereafter as a central forest protected by the State has not been disputed. The forest having been proclaimed a forest reserve and gazetted as a central forest in 1964, then it forms part of public land as defined by the Constitution. [emphasis added]

The court went on to rule that no evidence had been presented to the court proving ownership of the forest by the Sengwer. Precisely how they would be expected to, given the nature of colonial and postcolonial dispossession, examined in this chapter and the previous chapter, and the lack of clear guidance in the 2010 constitution and subsequent relevant land laws, is left conveniently vague.

In the latest twist, a draft version of a new national forest policy by the Ministry of Environment and Forestry which sets out its new vision of forest governance, despite fine words about community participation, civil society organisations and local communities, makes clear its commitment to the development goals set out in vision 2030 and the importance of preparing the forests for inclusion within the global green economy, ‘natural capital’ and ‘green accounting’, (GoK, 2020, foreword, para. d). If there was any ambiguity about the role that forest communities like the Sengwer can play in this vision, they are put to rest in section 2.21.1 (GoK, 2020):

Three of the five main water towers of Kenya host Indigenous communities. They are the Ogiek (Mt Elgon and Mau Forests Complex) and the Sengwer (Cherangani Hills). Their traditional way of life has changed and their livelihood activities now include livestock grazing and food crop production that are not compatible with forest conservation. These livelihood activities have compromised the integrity of ecosystems and the services they provide, such as water, to the communities in the lower catchment. [emphasis added]

What the above demonstrates is the fallacy that neoliberal reform means a weakening or diminishing in the power and role of the state. On the contrary, moves to privatisation, deregulation and marketisation of ever greater spheres of society and economy and the shrinking of ‘the commons’ are enabled and enforced by the power of the state. As Castree (2008, p. 142) points out, the setting up of commodity markets require legal regimes and ‘market friendly re-regulation’ enforced by the state, and as we saw, its various mechanisms for control, be it the use of neocolonial lawfare or the unleashing of violence at the hands of its paramilitaries; in every instance, the power of the state and its various agencies was crucial.

Greenwashed relations of genocide

A 2014 study of a similar conservation project in Kenya’s neighbour Uganda, in the Bulakeba and Kachung districts, run by Norwegian company Green Resources, found local communities were disenfranchised and dispossessed and their access to food and water restricted, in order to orchestrate a land grab in aid of the conservation programme (Lyons and Westoby, 2014). The study found that the stated environmental targets were not met. Among the abuses committed by what the lead author of the report called the ‘darker side’ of the green economy, were the destruction of homes to make way for the monoculture plantations, planting trees on community land, confiscation of animals and forcing the local villagers to farm on ecologically sensitive land. The villagers had lost the primary means of income, access to medicine and firewood and water for their farm animals.

The environmentally, socially and culturally destructive pattern found in the forest plantation project in Uganda, where Indigenous and place-based peoples have been evicted from the land they have lived on for centuries, denied access to food, medicinal plants, firewood and the right to hunt or farm, the destructive pattern strikes a familiar and menacing chord with KFS actions in the Embobut Forest and Cherangani Hills in Kenya. Recall that the Sengwer have suffered forced mass evictions, which, properly understood, can only be described as a ‘scorched earth’ policy of ethnic cleansing that violently severs the community from its means of material subsistence, its medicine, its cultural identity and its mode of life. From what is a Lemkian perspective, by severing the connection the Sengwer have to their ancestral land, the site of their culture, identity and lifeway, the actions are genocidal. Speaking of the World Bank-funded NRMP project, during one field interview, Sengwer activist and community leader Paul Kibet (09/10/2016), at the forefront of the resistance to this ‘creative destruction’ said that the REDD+ project was inflicting irreparable and fatal damage to the life of the Sengwer genos:

We are deriving our sources of life from the forests; shrines actually are in the forests. Our spirits always are in the forests. Actually, we normally pray in the forests. So, as they started actually to evict us since 2007 up to date [sic], they have completely actually interfered with our system of life. Many children of school-going age actually are dropping out from school, many old men and women have been exposed actually to cold because of [sic] destroying the homesteads and etcetera. So [sic] get a lot of people now suffering with pneumonia … the whole system of life, actually people have been terrorized.

Reflecting on the evictions fuelled by the EU funded Water Towers Programme, Milka Chepkoir, a Sengwer activist, said (Muraya, 2018):

We have repeatedly experienced forced evictions at the hands of KFS. Its wardens have regularly burned our homes, along with stores of food, blankets, school uniforms, and books. Over the years, they have made thousands of our people homeless in what at night can be a cold highland to have no home.

In a report written by Chepkoir on the impact these evictions have had on Sengwer women, she documents sexual abuse, psychological torture and extreme poverty (Kuto, 2016). The evictions and destruction of their homes, she argues, have a disproportionate impact on women since in Sengwer culture it is these spaces that are normally occupied by women and children. As a result of the evictions and wholesale destruction of villages, men have left to find new land and build new homes for their families. This has undermined family life and, according to Chepkoir, led to the breakdown of the clan and kinship system, and traditional rules that govern marriage and other cultural practices. This is genocide in all but name.

When asked about the consequences of the evictions and destruction of villages, one Sengwer interviewee observed that it was driving de facto assimilation (anonymous Sengwer, author interview, 25/10/2021):

When houses are abandoned several times, so people tend to go different ways into different communities, who are presumably outside the forest. And those communities are bigger communities like Marakwet and Pokot and the rest. So, when the children, as young as they are, they go in [sic] that schools, most of the languages that they speak are Pokot or Marakwet … Sometimes students are ‘pulled around’ if they speak Sengwer. Other children laugh at them. These are traumatising cases because there is nothing you can do and you can’t send away your children to another school … so it’s a genocide.

Here is evident not just the genocidal techniques that sever the link with land, economy and religion, Lemkin’s (1944, pp. 82–90) fourth and seventh technique, and indeed the ninth ecological technique, but the destruction of the ultimate repository of culture, the third technique, and that which can sustain intergenerational vitality and group memory and thus the ‘social vitality’ of group life (Card, 2003, p. 63), the very language of the community itself.

In a chilling de jure example of cultural destruction, they (anonymous Sengwer, author interview, 25/10/2021) added that because the Sengwer are not recognised at the county or national government level as a distinct Indigenous group, they are forced to use identity cards that label them as members of larger adjacent communities like the Marakwet or Pokot. If they do not accept this labelling, they will be denied access to government services and job opportunities. Commenting on the cultural and psychological harms of this practice of assuming alien identities, he said, ‘it is what is killing us slowly, it is what is killing our identity slowly’. The interviewee (anonymous Sengwer, author interview, 25/10/2021) reminded me that of course this was a technique the British colonial administration used; a method of colonial control familiar to the ‘invented tradition’ school (Iliffe, 1979, p. 324; see also Ranger, 2012), to control and consolidate systems of indirect colonial governance by imposing, co-opting and ‘inventing’ ethnic groups, tribes and their leaders. Ironically, despite Lynch’s (2016) assertion that what she calls ‘the politics of naming’ is used cynically and instrumentally by Indigenous groups like the Sengwer, it seems it is the Kenyan state, just like its colonial predecessor, that continues to impose, co-opt and invent in the furtherance of its goals. Commenting on the loss of identity, he (anonymous Sengwer, author interview, 25/10/2021) added, ‘people will in twenty years’ time only read about people living in forests who are called Sengwer in history books … it [sic] will be hurting for some of our kids who will learn, reading in books while you are still existing, but without that identity’.

When asked if he and the Sengwer recognised this process of forcible eviction from the forest as genocide, as Lemkin understood the term, Elias (07/08/2020) replied: ‘Yes exactly, that is really what I recognise, because culture is like a unifying factor between human beings and its interaction with nature’ [emphasis added]. He (07/08/2020) added, ‘There is nothing better than to call it genocide if you are deprived of your land and your culture.’ In fact, he (07/08/2020) stressed:

it is a kind of slow genocide which is worse than mass killing. It’s a kind of trick so you [the international community] never see it. If it is mass murder, there will be uproar but what they [the Kenyan government agencies and various other complicit bodies] are doing now is strangling you slowly … Our People say, if you want to kill a frog you don’t throw it into boiling water; it will just jump out. You put it in lukewarm water and then increase the fire slowly.

When land and ecosystems are bound up with the culture of a genos, as they invariably are where territorially bounded Indigenous and place-based peoples like the Sengwer are concerned (Abed, 2006), dispossession, or ‘domicide’, involuntary population transfers, ethnic cleansing and their corollary ecological destruction, whether ostensibly in the name of conservation or not, degrades and destroys the ‘national’ pattern of the Indigenous group and drives ‘social death’. ‘When you destroy a tree, it is the same as when you destroy a Sengwer’, one Indigenous interlocutor argued (author interview, Kimaiyo, 07/08/2020). He (author interview, Kimaiyo, 07/08/2020) added, ‘a forest is like a womb to us. If you destroy a womb of a mother, then you cut off a generation.’ The last observation speaks directly to the importance of both ecology and culture, perhaps better described as eco-culture, and the latter in maintaining intergenerational bonds and the integrity of the social group, just as Card argued (2003, p. 63). As one Sengwer community member (author interview, 25/10/2021) observed, ‘this new era of colonisation in the name of conservation, is driving the last nail into the coffin of our identity, language and culture … if they throw us out of the forest, where will we meet to speak our language?’ In place of their culture: the green-washed socio-economic and cultural ‘pattern’ of a phalanx of international conservation NGOs, international financial and political institutions and (post)colonial state machines.

The political economy of ecologically induced genocide today

The laws of motion of the capitalist system in the current juncture in Kenya, where the case study is concerned, are broadly similar to those elucidated in Chapter 2 and in the current juncture in Australia in Chapter 3. Again, the ecocide-genocide nexus is driven by capitalist ecology for two structural reasons, namely the extra-economic processes of plunder, fraud or theft, from without the circuits of production and capital accumulation that bring about domicide and Lemkin’s first stage of genocide, the destruction of the cultural pattern of the occupied. This is followed by the second structure known as a value-contradiction, ‘capitalism’s inner dialectic’ (Harvey, 2003b, pp. 63–88), which operates once Indigenous land is fully incorporated via institutional and legal systems, within the expanded reproduction of the circuits of capital, ‘capitalism’s inner dialectic’ (Harvey, 2003b, pp. 63–88). However, the precise form which both structures or stages take in the Kenyan case study demonstrate intriguing differences.

We saw the first stage of primary accumulation in the repeated attempts to domicidally sever the Sengwer and enclose Embobut Forest of the Cherangani Hills through the World Bank-sponsored NRMP project and the attempts at ethnically cleansing by the KFS. Sometimes the distance, in time or space, between the act of enclosure (the first stage) and the process of capital accumulation (the second stage) may be great, rendering the relation and connections between these two processes obscure or unclear (Kelly, 2014, p. 685); again, we saw this with the EU-funded project. Both projects involved attempts to forcibly control and ultimately eject the Sengwer from the land, consistent with the definition of eco-genocide here. Even the first stage of accumulation by dispossession is ecocidal, since it attempts to excise the Sengwer and their ecologically sustainable life modes, from the political ecology of the Embobut Forest. As argued in Chapter 2 and throughout this book, this process of primary accumulation is what drives territorial expansion and is a fundamental structural component of settler colonialism and arguably neocolonial modalities. Crucially, as we have seen in both sites of settler colonisation in previous chapters, the processes of accumulation by dispossession (Harvey, 2003b) necessarily involves the ‘ “creative destruction” of pre-capitalist [Indigenous] ecological-political orders’ (Havemann, 2016, p. 186).

Previously, I argued Coulthard’s (2014, p. 12) adaptation of Marxist theories of political economy and primary accumulation, where ‘state-formation and colonial-capitalist development required first and foremost land, and only secondarily the surplus value afforded by cheap, Indigenous labor’ [emphasis added], although often true in colonial contexts, was not strictly accurate in the Australian and Kenyan context. In fact, as I demonstrated in Chapter 2 and elsewhere (Crook, 2013), Indigenous labour would be ‘allowed to remain’ (Lemkin, 1944, p. 79). Accordingly, when examining the ‘subject position of the colonized vis-à-vis the effects of colonial dispossession’ (Coulthard, 2014, p. 11) both the capital-relation and colonial-relation were constitutive. However, in the Embobut Forest it is the colonial relation that has proven decisive.

The second key structure is the law of value under the capitalist system which, as argued in Chapter 3 in Australia, and in Canada (Crook and Short, 2014), explains the ecologically destructive forces unleashed by capitalist extractive industries.⁵ In Kenya, however, the narrow horizons of the commodity form embodied in exchange value underpin genocidal structuring dynamics as well, only this time as a primary driver of the eco-destructive tendencies of the capitalist mode of organised social (re)production. The transformation and fragmentation of nature into smaller, commensurable, alienable parts through the pricing of aspects or parts of nature applies equally to market environmentalism and the genocide of the Sengwer, where trading the right to pollute and carbon offsetting, governed by the law of value and money, appropriates natural conditions as means of production, in a manner that pays no heed to the ecological (and genocidal) consequences. Just as capitalism seeks to simplify and reduce labour to better exploit it through a division of labour, reducing it to a mere appendage of a larger system of social production, so it pursues a ‘division of nature’ (Foster, 1997a, p. 92; Burkett, 2014, p. 86) with grave ecological and socio-political consequences. To date, the Sengwer have successfully resisted this final stage in the political economy of genocide, by frustrating attempts of the Kenyan government, the KFS and the various other international financial, intergovernmental and NGO agencies, to first remove them from their land indefinitely and complete the process of accumulation by dispossession.

As before, the narrow horizon of exchange value which conditions capital accumulation, understood as an ecological process, will increase ‘throughput of materials and energy’ (Burkett, 2014, p. 112) at unsustainable rates, causing ‘metabolic rifts’ (Burkett, 2014; Foster, 2000, 2005; Stretesky et al., 2013). Thus, the capitalist metabolic order, given its anti-ecological properties, is genocidal for those social groups, like the Sengwer, living on the margins of the capitalist world. The expansion of the capitalist system into the realm of nature conservation will predictably have both ecological and genocidal consequences. When asked if the Sengwer agree with the Marxist analysis of the anti-ecological properties of the capitalist system, Elias (author interview, Kimaiyo, 07/08/2020) was quick to concur, saying, ‘absolutely. What we are undergoing now is a ‘greed capitalism’. There is a saying that there is plenty for everyone under the sun, but there is not plenty for everyone’s greed.’

The conservationist mode of production: green accumulation by dispossession

Arguably, both conservation projects, and the mass evictions they fuelled and funded, are a form of accumulation by dispossession, since the mass evictions have the effect of dispossessing the traditional owner conservators, the Sengwer, undermining their customary rights and denying them access to sacred cultural sites, all in the name of preparing the land for conservation. As argued, accumulation by dispossession is the first of two key structures identified as part of the political economy of genocide, which affect the ‘creative destruction’ of non-capitalist [Indigenous] ecological-political orders; as a form of ‘conservation’ it is a uniquely twenty-first century modality of colonisation. According to Elias Kimaiyo (author interview, 09/10/2016) the conservation projects like the one funded by the World Bank or the EU were ‘the new system of colonization, the new style’. The neocolonial model of conservation or conservationist mode of production is still a capitalist mode, only this time, rather than using nature as a bottomless resource (Brockington and Duffy, 2010), it seeks to valorise two things. Firstly, it valorises the eco-regulatory labour that nurtures the reproductive and rejuvenating role of nature, for example bee pollination of flowers or carbon sequestration by forests, as opposed to more conventional production of goods for the market. The category of eco-regulation refers to valorised labour, which is ‘a labour of sustaining, regulating and reproducing, rather than transforming’, which optimises the conditions of organic processes that are otherwise impervious to intentional modification (Benton, 1989, pp. 67–8). Where the conservation of the forests is concerned, it would presumably involve the kind of labour the Sengwer have done for centuries, including, inter alia, preventing forest fires, planting trees to replace log trees, controlling grazing and restricting habitation to the glades, restricting the degree of cultivation and protecting water springs (author interview, Kimaiyo, 11/08/2020). In other words, the exchange value is a function of the eco-regulatory labour, which stewards, conserves and monitors the ‘self-organising’ dynamics of ecosystems in order to harvest (pun intended) its infrastructural value.

Secondly, through the creation of artificial scarcity of legal carbon emission limits under international climate change and environmental treaties, as we will see later, the conservation projects which produce carbon credits effectively collect a form of rent, capturing a portion of surplus value, in much the same way that Marx (Marx and Engels, 2010, p. 464) argued landowners claimed a redistribution of surplus value ‘arising from a monopolisation of a natural force’.⁶ This process corresponds to the first and second stage of the political economy of genocide, which includes not only forcible enclosures and accumulation by dispossession, which secures de facto control, but also the elaborately erected edifice of property regimes which creates the artificial scarcity (made possible by the international climate change and environmental treaties discussed below) and secures de jure control. These are the laws of motion of a genocide machine manifested in a new guise: a ‘conservation machine’.

This form of latter-day conservation, which, as we saw above, is predicated on the material and discursive excision of the Sengwer, clearly falls within the definition of ‘fortress conservation’ explored above, and by extension predicated on the colonial production of environmental knowledge explored previously. In other words, the ‘conservationist mode of production’, with its roots in the colonial period, has inherited the cultural practices and discourses of racial spatialisation discussed in the previous chapter, but adapted to the new regime of neoliberal environmentalism. Under the logic of neoliberal conservation, once again the geographical space, or the ancestral forests of Indigenous people are rebranded with the hot iron of exchange value, essential to facilitate the expansion of capitalism, only this time to valorise eco-regulatory labour and the collection of rent through the ‘monopolisation of a natural force’ (Marx and Engels, 2010, p. 464). This new form of the capitalist mode hinges on the ‘spatial problematic’ (Soja, 1985, p. 108) for its expansion and reproduction just as much as previous manifestations of the capitalist system. This is why ‘territoriality is settler colonialism’s specific, irreducible element’ (Wolfe, 2006, p. 388). More specifically, what Harvey (2003b, p. 64) would go on to later define as a ‘spatio-temporal fix’ is more than simply ‘temporal deferment and geographical expansion’ (Harvey, 2003b, p. 65). In this case, it entails a particular racialised arrangement or production of space that allows for that expansion.

A report co-written by UN Special Rapporteur on Indigenous peoples, Victoria Tauli-Corpuz (Tauli-Corpuz et al., 2018), has predictably shown that this exclusionary practice has fuelled a plethora of human rights violations against Indigenous and place-based peoples all around the world. It also shows that this is vast practice spanning the globe driven by a coterie of states, multilateral organisations, NGOs and private donors, which has grown at an alarming rate in the last few decades (Tauli-Corpuz et al., 2018). One estimate has put the total global spending on ‘protected areas’ alone at US$13 billion (Balmford et al., 2003). In 1987, a report of the World Commission on Environment and Development recommended this exclusionary practice be substantially increased, in aid of protecting forests, mitigating climate change and biodiversity (WCED, 1987). These efforts were given further impetus by global commitments to protect biodiversity, enshrined at the 1992 Rio Summit where the United Nations Convention on Biological Diversity (UN, 1992) was ratified; CBD specifically calls for ‘area based’ conservation. Since then, the proportion of the earth’s land surface covered by this exclusionary practice has tripled between 1980 and 2005 and now covers 15 percent of land surface, with the vast majority in the developing world (CBD, 1992, p. 6). Parties to the CBD reaffirmed and strengthened this commitment in 2010 with a pledge to increase this to ‘17 percent of terrestrial and inland water, and 10 percent of coastal and marine areas’ (CBD, 2011). Furthermore, these efforts are considered a key part of meeting the commitments agreed at the Paris Earth Summit (UNFCCC, 2015) and the 2030 Agenda for Sustainable Development (UNGA, 2015).

The political economy of climate change mitigation and the associated conservationist mode of production has engendered a rich lexicon to describe this neocolonial relation of power: ‘carbon colonialism’, ‘carbon grab’ and even ‘green grabbing’ (Fairhead et al., 2012). In essence, ‘while colonialists took land to extract resources, conservationists take land to preserve it’ (Kenrick, 2016). Fairhead et al. (2012, p. 238) defined green grabbing as ‘the appropriation of land and resources for environmental ends’. The authors argue that this form of land alienation in the name of carbon sequestration or biodiversity is as we have seen, part of a history of colonial and neocolonial expropriation in the name of the environment, linking it to a broader cluster of conservation efforts such as the gazetting of national and wildlife parks, forest reserves and the prevention of assumed destructive local practices. As we saw in the previous chapter, the Sengwer and other forest-dwelling groups were indeed forcefully transferred by British colonial authorities in the interests of conservation. Recall that, just as now, it was ostensibly in the interests of forest conservation and water security. However, the forms of neocolonial expropriation in the name of conservation emerging in the era of the neoliberalisation of nature have in important respects departed from the logics that shaped older practices and discourses.

The questions that remain unanswered are what is driving this new modality of capitalism? How is the surplus value captured and created by this new industry realised? In other words, where does the market that purchases the various environmental commodities come from? And how does the value form embedded in the environmental commodity itself contribute to the eco-genocidal process?

Neoliberal globalisation and the commodification of nature as a vector of genocide

[T]he ecology of societies in which the capitalist mode of production appears as an immense collection of services. (Robertson, 2012)

Over twenty years on after the original Earth Summit the path to sustainable development and climate change mitigation has, it seems, taken on a rather different hue. Although the original Rio Summit and then the Kyoto Protocols ratified in 1997 attempted to deliver GHG emission reductions via the mechanism of the market, it did at least contain legally binding reduction targets. It seems the latter was discarded and we are now left only with the ‘invisible hand’ to guide us down the royal road to climate change mitigation. State-led and legally enforced solutions are off the agenda – the ‘green economy’ and market-driven solutions such as carbon trading and REDD+ ‘offsets’ have become the panacea (Crook and Patel, 2012). Instead, we are left with what the eminent climatologist Kevin Anderson (2016b) called ‘techno utopias’ such as ‘biomass energy carbon capture and storage’ (BECCS) or ‘negative emission technology’ and ‘the political and economic dogma’ of today’s economic paradigm: market environmentalism. But what exactly are these paradigmatic solutions?

The World Bank NRMP and Green Resources genocidal conservation machines are part of a complex and convoluted intergovernmental architecture of climate change mitigation and nature conservation, sponsored by UN agencies like the United Nations Environment Programme (UNEP) and the UNDP, which began to push hard for what it called the ‘Global Green New Deal’ (UNEP, 2009). Underpinned by the philosophy of ‘market environmentalism’, ‘green capitalism’ or ‘green neoliberalism’ (Goldman, 2006; Heartfield, 2008), ‘neoliberal nature’, catalysed by the 2008 economic crisis, sought to fundamentally restructure socioecologies to make them more amenable to structural accumulation strategies, which includes a growing and bewildering proliferation of environmental commodities such as bee pollination, water purification, soil regeneration and, of course, as we saw with the World Bank-funded NRMP conservation project, carbon.

An essential background enabling factor to the rise of the green economy and neoliberal nature and the structural integration of developing countries like Kenya into its fold is, of course, the preceding history of the reorganisation of global capitalism referred to in Chapter 2 under the ‘rubric of neoliberalism’ (Harman, 2007). This history and the nature of neoliberalism will not be rehearsed again here. Suffice to say, the shift in conservation and environmental governance, which gave rise to a conservationist mode of production that attempts to value and assess ‘non-human natures’ as ‘service providers’ rather than simply as a source of resources or ‘primary appropriation’, is part of the broader ‘neoliberal turn’ in global economic governance, or globalisation in the mid-1970s which would eventually encompass other spheres of governance, like development, the environment, climate change and conservation practices. Concomitant to this is the discursive and material (re)production of nature as ‘natural capital’ or bioeconomy, rooted in the classical liberal belief that, as Adam Smith (1776) argued, we naturally ‘truck, barter and exchange’. By extension, if we understand all of nature as a commodity then the efficient allocation of resources that proceeds from market relations will arrest the degradation of nature. The discursive (re)production under neoliberalism extended to human nature too. By extending the molecular process of the gradual commodification of new areas of social life, a key component of neoliberalism in its double movement (Davidson, 2013), human flourishing, which was predicated on liberating ‘individual entrepreneurial freedoms and skills’ (Harvey, p. 2), could be secured. As we will see later, the cross-fertilisation of this neoliberal episteme of nature with broader (neo)colonial development discourses, discursively restructures socioecologies such that Indigenous peoples will be erased as they had been under the British colonial authorities.

The same neoliberal globalisation process also stymied the development of and in some cases actually de-developed countries in the Global South (Hickel, 2017), leaving ‘beneficiary’ countries such as Kenya further under-resourced and dependant on privatised ‘green’ development to fund green development initiatives and address their respective environmental crises. In fact, the structural position of dependency of Kenya discussed earlier was compounded by what is often referred to as the ‘lost decade’ of the 1980s. It is this period which is generally understood as the dawn of neoliberalism on a global scale or ‘globalization’ and the beginning of the end of the ‘developmental’ state (Shivji, 2009, p. 9–10). Recall that the roots of what in the Australian context was described as a neoliberal transnational governance, via institutions like the WTO, IMF and the World Bank (Sassen, 2010), are found in the external oil shocks of the 1970s and the global recessions of the same decade (Rono, 2002, p. 82). Moreover, it is these same ‘mediating institutions’ (Harvey, 2003a, pp. 127–30) through manipulation of credit and debt management that impose neoliberal reforms like SAPs and as we saw, the various conservation and REDD+ programmes. This is the form which latter-day capitalist imperialism takes. The territorial logic and Harvey’s (2003b, p. 64) spatio-temporal fix still plays itself out only via these ‘mediating institutions’. Recall also that ‘formal sovereignty can easily coexist with coloniality’ (Sassen, 2013, p. 27). Put bluntly, these institutions mediate capitalist imperialism. The external shocks inflicted a number of blows to the Kenyan economy, further compounding its position of dependency. These included erratic fluctuating prices for their major exports, a fall in GDP, decline in living standards and an increase in debt which coincided with widespread drought, famine, high population growth and rapid urbanisation, as well as the collapse of the East African Community’s customs union and common market, of which Kenya was a part (Rono, 2002, p. 82). What followed was the implementation of the now infamous SAPs, conditionalities on World Bank and IMF assistance, which, in accord with the neoliberal ideology policy prescriptions described in Chapter 2 in the Australian context, required the Kenyan economy to, inter alia, reduce the budget deficit, including decreasing spending on essential social and welfare services, limiting wage increases, foreign trade ‘liberalization’, removal of price controls on key essential goods, deregulation of domestic marketing of agricultural commodities and deregulation of interest rates and foreign exchange rates. Not only did these SAPs have the opposite to their intended effect and lead to an increase in the debt burden of Kenya and an increase in the expenditure on repaying and servicing debts, leaving even less room for investment in development, but they predictably led to an increase in poverty, inequality, decrease in participation of women in the economy, rise in levels of crime and an acceleration in economic decline (Rono, 2002). This echoed the impacts of SAPs on Africa more generally (Chabal and Daloz, 1999, p. 120; Thomson, 2010, p. 194; Fatton, 1992, p. 130). Aside from these devastating consequences, SAPs would serve to more tightly weave Kenya into the structures of neoliberal globalisation and governance and compound their structural dependency.

Moreover, these new forms of environmental commodities, which ostensibly arose as a global governance solution to a growing environmental problem, ironically serve to further entrench ecological and environmental inequities on a global scale. That is to say, the architecture of neoliberal environmental governance allows Global North countries to escape their obligations under climate change treaties and exploit Global South countries as sources of carbon credits and so allow them to continue to pollute in the North. The theory within environmental sociology known as ecologically unequal exchange can help us understand this dynamic (Jorgenson and Clark, 2009; Clark and Foster, 2009). It draws attention to not only the relationship between capitalism, economic growth and environmental degradation, as does Marxist ecology more generally, but focuses on a global distributive aspect to ecological relations between the global North and South. Specifically, it argues that largely through international trade, more powerful Global North countries gain unequal access to natural resources and what is known as sink capacity, otherwise understood as the ability of the environment to absorb waste products (Givens et al., 2019, p. 2). Further, this unequal access to resources and sink capacity is linked to all stages of global commodity chains, namely extraction, production, consumption and disposal (Givens et al., 2019). Critically, the resulting material flows disproportionately impact Global South countries in terms of environmental harms (Jorgenson and Clark, 2009). The system of neoliberal environmental governance and its associated carbon markets exacerbate these iniquitous material flows by providing Global North countries with more access to sink capacity through the acquisition of carbon credits and offsets. The valorisation of the Embobut Forest is predicated on its sink capacity, in terms of its ability to absorb and fix excess carbon. It is precisely through this ecologically unequal exchange that we can comprehend ‘carbon colonialism’ (Fairhead et al., 2012).

Key to the valorisation of the abovementioned environmental commodities and the neoliberalisation of nature is an institutional matrix that make the commodities alienable and commensurable; in other words, public and governmental bodies need to artificially create a market for these environmental goods. This is achieved through neoliberal environmental governance technologies, such as Payments for Ecosystem Services (PES),⁷ where those who maintain and manage the aforementioned restorative and rejuvenating properties of nature are financially compensated, the United Nations programme for REDD+ and carbon and biodiversity offsetting (BDO) (Dunlap and Sullivan, 2019) and of course emissions trading, first set up on the international plane by the 1997 Kyoto Protocol to the UN Framework Convention on Climate Change (UNFCCC) (UN General Assembly, 1994). The NRMP and the Green Resources project fall under the UN’s REDD+ programme,⁸ first set up at the thirteenth session of the Conference of the Parties (COP) to the UNFCCC, in Bali, in 2007. The REDD+ programme in the Embobut Forest, like other REDD+ projects, set out to expand forest cover and protect ecosystems, in aid of producing what has become known as REDD+ ‘Offsets’- the carbon credits that can be sold to compensate for carbon emissions elsewhere.⁹

It is the restructuring of socioecologies under the guise of conservation and climate change mitigation which constitutes genocide, since the Sengwer are continually excised from this new neoliberal socioecology. The manner in which this excision is secured is simultaneously material and discursive; the latter will be discussed in more length in the following section. It is material because what was earlier described as the first stage of political economy of genocide, the primary accumulation that entails forcible population transfer, is prima facie material. It self-evidently reorders the physical environment. But it is material in a further sense. The second stage of the political economy of genocide, when the land or the ecosystems have been incorporated into the circuits of capitalist production, entails a continual carving up of nature in the commodification process. Commodification of the restorative and metabolic function of any particular part of an ecosystem, just as we saw earlier with the commodity form more generally, is invariably done so in a manner that pays no heed to its relationship, to either the rest of the local ecosystem or the biosphere more generally. Reflecting on this aspect and effect of the extension of the value form exhibited by carbon markets and carbon offset projects, our Sengwer interviewee Kimaiyo (author interview, 11/08/2020) sardonically remarked ‘how do you end up selling air when you are polluting the other side?’

Take for example, the growth of fast growing, large-scale tree plantations in low industrialised countries, which are used as carbon offsets made possible under provisions of the 1997 Kyoto Protocol, to compensate for carbon emissions produced elsewhere, often in the industrialised North (Nuñez and GenderCC, 2010, pp. 102–3). These monoculture tree plantations, made possible by first cutting down old growth bio-diverse forests, often have deleterious impacts on local ecosystems and enable the continuation of carbon emissions at source in the industrialised North, negatively impacting both the local ecosystems and the planetary carbon cycle. The case of the Sengwer exemplifies how the material restructuring of the socioecology also impacts the health of the local ecosystems given the loss of their role as traditional owner-conservators in maintaining those ecosystems and the pernicious impact on the planetary carbon cycle.

The discursive moment in the carving up of nature operates at multiple levels. There are the grand narratives discussed in the next section, about development and ‘progress’ and the racialised categories that help ruling economic and governing elites pursue these development projects, and then we have the more fundamental discursive operations involved in the carve up of nature into discrete packets which obscure the nature of the ecosystemic totality. This latter discursive move is what is commonly referred to as commodity fetishism. Where commodity fetishism takes hold, the real underlying relationships between human beings in social production are seen instead as ‘the fantastic form of a relation between things’, which not only obscures the type of labour that is necessary for the production of these commodities but obscures or makes invisible the workers themselves (Marx, 1976, p. 165). Accordingly, the social construction of abstract value inherent in the environmental commodity obscures both the ecosystemic totality (the true holistic ecological web in which the environmental commodities are embedded), and the relationship of human beings, such as the Sengwer, to nature in the social production of their existence. Instead, the valorisation process narrowly focuses on component parts of nature in abstraction from the ecosystemic whole, in its pursuit of a commodified system of abstract, uniform and tradable units of, ultimately, CO₂ reduction: in a word ‘equivalence’. This equivalence, just like commodity fetishism more generally, acts like a sleight of hand obscuring real socioecological relations, which includes human cultures and their corresponding metabolic order, like the Sengwer, and the role they play in reproducing that metabolic order. It also obscures neocolonial relations that underpin the exchange of these carbon commodities, driving eco-genocide in the Embobut Forest and Cherangani Hills. On occasion, Indigenous peoples are allowed to take part in the eco-regulatory labour which forms a part of the valorisation of nature’s rejuvenating properties. But all too often, as in this case, Indigenous peoples are not ‘allowed to remain’. Ultimately, as Coulthard observed in the Canadian context, the colonial relation is decisive.

In essence, it is the logic of the value form under capitalism that is ultimately driving and organising the restructuring of socioecologies. Even the initial material phase of the predatory annexation of Indigenous land, the first stage of the political economy of genocide, one step removed from the normal production and exchange of commodities within the circuits of production and capital accumulation, is ultimately driven by this value logic. For the compulsion to expand in the first instance into non-capitalist territory is a function of the necessity to maximise the production of surplus value through the force of competition under the capitalist system. But this discursive operation at the level of the commodity form is merely the first most fundamental discursive operation.

Development ideology, green governmentality and racialised ecologies

In the aftermath of the Second World War, deep-rooted colonial discourses would become intertwined with a broad and malleable set of developmentalist and evolutionist discourses and institutional practices, no less Eurocentric and racist, only now more coded and insidious, that came to prominence in the wake of the decolonisation movement after the Second World War. This section seeks to draw on the post-development literature that understood development as a biopolitical discursive and institutional practice that (re)made the Global South into an object of intervention and reconstruction through its reinvention as ‘underdeveloped’ or less developed, and apply this framework to all non-capitalist territory, including Indigenous, but more specifically to the facilitation of the restructuring of socioecologies.¹⁰ Development here is understood as a political economic structure with a ‘discursive field or regime that sought but failed to impose Western modernity on the rest of the world’ (Hodge, 2016a, p. 438). On varying scales, both local and international, a plurality of governance and development agencies, development programmes, strategies, and technologies are deployed to ‘optimize’ the development of populations, geographies and resources, and as argued above, even nature itself. In previous chapters we saw that the production of colonial knowledge about nature and its human denizens is a crucial element in colonial domination (Drayton, 2000). The Sengwer are well aware of the role of this discourse and its role in (re)framing responsibility for stewardship of the forest. Commenting on its significance Elias (11/08/2020) remarked, ‘who says we are not developed! So long as God gave us our nature it is up to us!’

The various conservation projects, such as the EU, Finnish government and World Bank-funded projects examined above, were rationalised by the Kenyan government as vital to its development goals and cast in a developmentalist lexicon. In a report titled The Landscape of Climate Finance in Kenya: On the Road to Implementing Kenya’s NDC, published by Kenya’s National Treasury (Odhengo et al., 2021), funded by Germany’s Federal Ministry of the Environment, Nature Conservation and Nuclear Safety, it notes (Odhengo et al., 2021, p. 1) that the Paris agreement (UNFCCC, 2015) set a goal to provide 100 USD billion per year by 2020 to support mitigation and adaptation activities in developing countries. A report by the UNEP, co-sponsored by the KFS and other Kenyan government agencies, argues that ‘[c]arbon-trading mechanisms provide an opportunity for the Government of Kenya to earn foreign revenue’ (UNEP, 2012, p. 36). In order to take advantage of this new revenue stream ‘the proper institutional and financial mechanisms must be in place so that resources are directed efficiently toward national climate and development priorities’ (Odhengo et al., 2021, p. 1). Those arrangements are precisely those examined above which entail both phases of the political economy of genocide: the destruction of the cultural pattern of the Sengwer through domicide to establish de facto control, or accumulation by dispossession; followed by the erection of a legal and institutional architecture that produces both artificial scarcity in carbon molecules and de jure control and finally the incorporation of Indigenous land into the normal circuits of capitalist production and accumulation.

The report defines the success of its development goals, outlined in the Kenyan government’s Vision 2030 document (GoK, 2007), as achieving middle-income status to secure a high-quality life for if its citizens in an environmentally sustainable manner (GoK, 2007, vii). In fact, the water towers targeted in the aforementioned conservation projects are considered vital both directly and indirectly to Kenya’s Vision 2030 development goals: directly, to target the new ringfenced climate revenue streams from multilateral and bilateral donors or ‘international support and [the] private sector’ (GoK 2013, p. 154), which alongside ecotourism and sustainable agriculture will build the rudiments of a ‘green economy’ that will ‘support the transition to low carbon climate resilient development pathway’ (GoK 2013); indirectly to the economy as a whole. Indeed, the Vision 2030 document targets 10 per cent annual growth (GoK 2013, p. 6) largely through the development of six sectors (GoK 2013, p. 30), four of which, namely agriculture, tourism, wholesale and retail trade, are dependent on Kenya’s forests, reimagined as ‘natural capital’ (UNEP, 2012, p. 11).

What must be stressed here is what Kenrick (2016, pp. 249–50) calls the ‘flawed global logic’ at play. Global, since, as argued earlier, the role of ‘mediating institutions’ (Harvey, 2003a, pp. 127–30) like the World Bank or the EU, dominated by neocolonial states are decisive. In this case the ‘mediating institutions’ are central to the imposition of the ‘green’ developmentalist vision, aided and abetted by the political and economic elites in the Kenyan state, long since structurally integrated into the neoliberal global economy. Flawed, because it is rooted in the fallacy that action on climate change and ecological collapse must be taken, not for its own sake, or because of a recognition that socioecological relations in equilibrium with earth’s systems are necessary to support human and non-human life, but because, as one document pertaining to the EU-funded Water Towers Programme argued, climate change ‘hampers long-term growth’ (Kenrick, 2016, pp. 249–50). This ontology sees growth as the only solution to poverty and marginalises alternative zero or low-carbon lifeways like the Sengwer’s and indeed ‘degrowth’ approaches based on a more equitable distribution of wealth (Kenrick, 2016; see also Hickel, 2020). As Short (2016, p. 188) has sharply observed, in a finite world, growth-driven capitalism, which is to say capitalism per se, since all forms of capitalism are characterised by the drive to accumulate and spatio-temporal fixes (Harvey, 2003b, p. 64), is inherently ecologically unsustainable, ‘ “sustainable development” [is] a dangerous oxymoron’ (Harvey, 2003b).

The fallacy of the neoliberal state taking a back seat has been here refuted. The power of the state and its monopoly of violence have played a crucial role. Discursive practices, of a piece with the kind we witnessed during the colonial era, are a crucial dimension to this power and the mechanisms of control it wields. Indeed, the new neoliberal discourses on the environment are crucial in reframing Kenya and its denizens as ‘ripe for intervention’. This is what Goldman (2001, p. 499) describes as the ‘new neoliberal practise of eco-government’ where through new modalities of power/knowledge and their associated discourses of ‘ecological improvement’ the Kenyan government becomes remade as a ‘transnationalised environmental state’ complicit in the forms of what Luke (1997) called green governmentality orchestrated by a ‘green’ World Bank and other international and intergovernmental ‘mediating institutions’. In short, the construction of new global ‘truth’ regimes of neoliberal nature makes possible the aforementioned institutional matrix and regulatory regimes that facilitate the alienation of nature and its commodification. By reframing nature and its denizens, they facilitate the opening up of Indigenous land and socioecologies to appropriation for green accumulation. Through the Foucauldian knowledge-power nexus nature is remade as environmental services (ES). Those who have lived there since time immemorial are either demeaned as resource custodians (Ojeda, 2012), or marginalised and displaced as irresponsible ‘squatters’, ‘encroachers’ and exploiters of their forest dwellings, as we saw with the Sengwer and the World Bank/EU/UNDP-sponsored conservation projects, racialising ecosystems that remove black or Indigenous bodies from those colonised spaces. As Elias (07/08/2020) argued, scientists and conservationists ‘don’t see our ecosystem as a home’.

In fact, the very legibility of nature itself is a function of ‘interrelated racial projects, including the colonial productions of natural history’ (McCreary and Milligan, 2018, p. 6) [emphasis added]. One such discursive practice, evident in the case of the Sengwer, concerns the notion that nature is ‘external’, ‘primaeval’ and ‘pristine’ and must remain that way, embodied in the sign wilderness; notions that remain popular among Western environmentalist circles to this day (Braun, 2002, p. 12). These signifiers encode a nature that remains outside history, denying the inevitable intertwining of nature and society and erasing other histories of occupation of a social nature by Indigenous peoples. This discursive erasure will mean, as before under British colonial rule, the only viable form of articulation will be Hartwig’s third mode, namely the destruction of the hunter-gatherer economy ‘such that the producers are “freed” of the means of production’ (1978, p. 129), and Rey’s third stage of articulation of capitalist production with Indigenous systems: ‘the total disappearance of the pre-capitalist mode’ (cited in Foster-Carter, 1978b, p. 218). Once again, the Sengwer’s level of ‘development’ will not permit any other form of articulation with the dominant capitalist system.

This social construction of nature as external to social relations plays a crucial mystifying role in the continued domination of nature and, if the reader recalls, this is uncannily similar to the discursive practice deployed in the colonial period by the British colonial authorities and the alliance of forest keepers and white settlers discussed in the previous chapter, which sought to construct a racialised political ecology that ensured African land and forests were kept free of human habitation to ensure its ‘sustainable maintenance’. Just like then, today, forest-dwelling groups like the Sengwer and Ogiek are considered ecological threats and not compatible with the prevailing scientific forestry management practices, animated by romanticised notions of ‘African wilderness’ that presupposed all humanity an inherent ecological threat. Only this time, the bundle of racialised discourses include modern notions of development and the green economy.

As Fairhead et al., (2012) have shown, these new modes of appropriation are made possible by a green discourse interwoven with other pre-existing cognitive maps that underpin the new political economy in nature’s restorative capacities. A discourse that has co-opted much of the green movement in its vision of ‘ecological modernisation’, which therefore can no longer be relied on to be implacably opposed to insatiable industrial growth. Conservation NGOs like the Worldwide Fund for Nature (WWF), Conservation International (CI) and the Nature Conservancy have embraced market environmentalism and PES as the solution to nature conservation and the climate crisis. Central to the development and construction of the various environmental commodities and the regimes of value, ownership and control they entail are the science-policy discourses that articulated them (Fairhead et al., 2012, p. 241). The carbon markets would not exist without the accompanying science-policy discourse, nor would BDO exist without the science-policy discourse that recognised its threatened status and allowed for systems of equivalence for their exchange (Corson and MacDonald, 2012). The very notion of treating nature not as a static reserve of resources but as ‘service provider’ (Sullivan, 2012b, p. 205), elucidated in the foundational science-policy assessment document Millennium Ecosystem Assessment (MEA, 2005), was crucial in the development, construction and institutionalisation of PES and markets for nature conservation more generally (Sullivan, 2012b, p. 205; McAfee and Shapiro, 2010; Kosoy, and Corbera, 2010; Nelson, 2015, p. 1). Essentially, the environmental commodity fetishism analysed in this chapter, which restructured the local socioecologies and extirpated the Sengwer in the process, hinged on a broader set of racialised Eurocentric narratives about nature which were given scientific credibility by the aforementioned science policy discourses. These in turn depended on a cluster of developmentalist and evolutionist discourses which traced their lineage to at least the beginning of the post-war period. It is through this cluster or bundle of discourses that the imposition of the cultural pattern of the occupier is achieved.

Resistance to relations of genocide

The resistance of the Sengwer and fellow forest-dwelling or Indigenous people like the Ogiek in Kenya is many ways reminiscent to that of Indigenous people in Australia. As we saw with some Indigenous Nations, who still had an organised relationship to their ancestral land, the Sengwer likewise resisted principally by refusing to be permanently severed from their forests, returning time and time again after forcible evictions by the Kenyan state. The significance of this cannot be overstated. By doing so the Sengwer repeatedly frustrated the ability of the KFS and other state agencies to complete the second phase of the political economy of genocide and fully incorporate the Embobut Forest into the circuits of capitalist production and trade. In a different political and historical context, black feminist Patricia Hill Collins (2000, pp. 201–2) argues ‘survival is a form of resistance and … struggles for group survival are just as important as confrontations with institutional power’ [emphasis added]. When the balance of forces is arrayed so heavily against you, the mere act of surviving as a viable genos is indeed a form of resistance.

Like Indigenous people in Australia, Kenya’s Indigenous people have also resorted, especially in the last few decades, to ‘legal resistance’, forms of lobbying and awareness raising, adopting what was earlier described in the Australian context as ‘European political technologies’ (Russell, 2005, p. 130), to counter the states lawfare, organising through various Indigenous umbrella organisations such as Forest Indigenous Peoples Network (FIPN), Pastoralist, Hunters and Gatherers and Ethnic Minority Network (PHGEMN) or the Kenya Pastoralist Development and Network (KPDN) and more recently Hunter–Gatherers Forum Kenya (HUGAFO–K) with some significant success. Networks like the FIPN and HUGAFO–K are founded on the recognition of a common historical experience of dependence on forests and structural oppression and marginalisation because of that dependence and their traditional livelihoods. Arguably, this represents the development of precisely the form of pan-national Indigenous consciousness I argued would emerge dialectically out of the struggle against settler colonisation, moving from a social collective in itself to a social collective for itself. One Sengwer interviewee, when asked if their community was organising with any other communities, stressed that although their collaborative organisations included pastoralist Indigenous communities, they were mostly made up of hunter-gatherer groups because they were the most marginalised and oppressed communities in Kenya (anonymous Sengwer, author interview, 18/03/2020). This speaks to the aforementioned common historical experience of dependence on forests and structural oppression.

These forms of organising and lobbying played a critical role in the 2010 constitutional reforms discussed above and in the various land commissions such as the Njonjo Land Commission (2002) and Ndung’u Commission (2004) that would feed into the constitutional review process on the question of land reform and the erection of new institutional frameworks (Simel, 2009, p. 16). The Ogiek also brought a case to the Land and Environment Court (2014), which once again involved the displacement of the community from their Mau homelands. This time, citing the 2010 constitution and the 2009 NLP, as well as a number of international instruments, the court found that the Indigenous community had special protections under national and international law and that the evictions from the Mau Forest constituted a violation of their rights to life, given it prevented the Ogiek from fulfilling their livelihoods in accordance with their culture. The court also found that settling non-Ogiek in the Mau Forrest was not legal and that the Ogiek community should be given priority when allotting land in the Mau Forest. Crucially however, the courts did not find that the Ogiek’s customary occupation of the forests amounted to formal legal property rights. The conclusion of the Court was that the NLC was the constitutionally proper place to resolve this latter issue (Kew and Lyman, 2016, p. 167).

This form of ‘legal resistance’ would also take place in international fora, such as through engagement with the ACHPR. One landmark decision bears mention in this context. It was the Centre for Minority Rights Development (Kenya) and Minority Rights Group International on behalf of the Endorois Welfare Council v The Republic of Kenya (ACHPR, 2010). The Endorois won a landmark decision that they are indeed Indigenous and their eviction from their land violated a number of articles of the African Charter on Human and Peoples’ rights (Charter), including their right to collective property (ACHPR, 2010, para. 162), culture, religion, health and natural resources and indeed their way of life (ACHPR, 2010, paras.173, 251), and that the government must compensate them (ACHPR, 2010, Recommendation 1(c); Cerone, 2010; Kamga, 2011), and that indeed, it failed, just as with the Sengwer, to provide them with FPIC (ACHPR, 2010, para. 290). This was the first international human rights body to recognise African Indigenous people’s rights over traditional lands and globally the first legal recognition of the violation of the rights to development (ACHPR, 2010, para. 298). The commission ordered that the government not only consult the community on future development on the land, including Lake Bogoria Reserve, but that they provide the community with royalties derived from economic activities on their land (ACHPR, 2010, recommendations 1(c) and 1(d)), such as the tourist industry, and grant them ‘legal title’ (ACHPR, 2010, para. 206). The Ogiek arguably achieved even greater success when via the Ogiek Peoples’ Development Program (OPDP), together with Centre for Minority Rights Development (CEMIRIDE) and Minority Rights Group International (MRGI), they issued a communication to the ACHPR claiming that a number of provisions of the charter had been violated, including, inter alia, right to life, freedom of religion, the right to culture, property and the right to development. The commission later referred this to the African Court on Human and People’s Rights, which ultimately issued a judgment upholding the land rights of the Ogiek and violations of all the rights alleged by the Ogiek (ACtHPR, 2017). Of particular importance to the analysis here, the Court concluded that the forcible separation of the Ogiek from their forests would have profound cultural implications for the group life of the Ogiek. In accord with the arguments of the UN Special Rapporteur on Indigenous peoples, Victoria Tauli-Corpuz (Tauli-Corpuz et al., 2018), the court also found that secure land tenure leads to better conservation outcomes. The implications for the Sengwer, who, as we have seen, face the same culturally destructive practices, and possible strategic litigation avenues, are clear. Moreover, these forms of resistance were greatly bolstered by working together with networks of international NGOs, activists and lawyers, such as Forest Peoples Programme (FPP), MRGI or the International Work Group for Indigenous Affairs (IWGIA). These networks would both raise the profile of their struggle, as well as provide them with the logistical and legal experience and expertise to engage in international and regional governance institutions and fora and build the relevant legal challenges.

However, both cases as well as the above discussed strategies of the Sengwer demonstrate the inherent limits of legal resistance or strategic human rights litigation and lobbying of government agencies. In the Endorois case, they still have not been provided with firm guarantees to collective tenure. The proximate cause is, as examined earlier, due to the failure to fully decolonise the legal system and ‘bureaucratic sabotage’ which endlessly postpone or stymie such attempts. Although they now do have access to Lake Bogoria for religious and cultural purposes in line with recommendation b (Tauli-Corpuz et al., 2018) and have been paid royalties for some economic activities, as Wilson Kipkazi, executive director of the Endorois Welfare Council (EWC)¹¹ asserted (ESCR-Net, 2019, p. 11), this was only due to sustained ‘community pressure’ and, indeed, ratcheting up of international pressure via the aforementioned international networks, and not strictly due to compliance with the ACHPR judgment. The failure to fully implement ACHPR’s judgment comes despite the ACHPR (2013) issuing a resolution demanding that they implement all their recommendations and the UN Committee on Economic, Social and Cultural Rights (2016, para. 16) recommendation that they implement the court’s decision ‘without further delay’.

As for the Ogiek and the implementation of their case, on the domestic level, the ruling of Kenya’s Land and Environment Court referred their case to the NLC, but, as we saw, ‘bureaucratic sabotage’ (Cavanagh, 2018a, pp. 137–8) and legal amendments have denuded the NLC and frustrated its attempts to fulfil its constitutional role. As for the ACtHPR ruling in 2017, the Kenyan state has still many years later failed to implement its recommendations, most importantly the formal recognition of collective land tenure (Forest Peoples Programme, 2020). As of writing, it still has not released the findings of the Mau Taskforce set up to facilitate the implementation of the African Court judgment (MRGI, 2020). Further, despite the landmark ruling by the ACtHPR (2017), the KFS in 2020, in the midst of the Covid pandemic evicted 300 Ogiek from their ancestral homes (Onyatta, 2020).

Likewise, the Sengwer have repeatedly petitioned their local environment court to no avail and, given the failure to fully decolonise its legal system, it may well have to exhaust all other legal domestic remedies, just as the Endorois did, before pursuing justice in an international legal forum like ACHPR. Whether this will deliver any meaningful prospect of resolution to the Sengwer’s just claims for secure lands tenure and respect for their rights as a people, given the failure of just such a course evident in the other cases, is open to question. One Sengwer interviewee expressed doubts over just such a course. Commenting on the ACtHPR’s decision on the Ogiek case in 2017, they observed, ‘we learned from the Ogiek ruling … they don’t have powers to impose what they are ruling’ (18/03/2020).

Decoloniality, unlike decolonisation, means not just moving beyond mere juridical and administrative forms but uprooting the ‘colonial episteme’ upon which it is grounded. That is to say, whilst decolonisation means formal independence, this will not deconstruct or fully purge a society of the forms of colonial governance, modes of thinking, intersubjective relations, cultural patterns, knowledge production and the episteme upon which they are founded that were forged and institutionalised under colonial occupation, because ‘coloniality survives colonialism’ (Maldonado-Torres, 2007, p. 243). This is undoubtedly true, but the forms of (colonial) political economy, its mode of production, circulation and exchange that structure a society’s material reproduction and sustain its dialogue with nature, are also not tied to formal politico-juridical forms and can endure or linger under a variety of superstructures or ‘political shells’, including forms of political independence. In other words, decoloniality does not just mean moving beyond the ‘colonial episteme’, or what some have described as ‘intellectual imperialism’ (Alatas, 2000), where colonial domination is secured though colonisation of knowledge production and the creation of an ‘epistemic hierarchy’ leading to forms of ‘global epistemicide’ (Santos, 2014). This is a necessary but not sufficient condition; dismantling a political economy of knowledge through ‘epistemic disobedience’ (Mignolo, 2011b) must be accompanied by a wider ‘disobedience’ that dismantles the political economy of production, circulation and exchange more generally. It is to this ‘moving beyond’ that we will turn in the final chapter.

Notes

1. 1. On 13 May 2020, the Kenyan Environment and Land Court in Eldoret dismissed a suit to degazette their Forest land in the Embobut Forest (The Standard, 2020).

2. 2. The figure was 400,000 Kenyan Shillings per household, or 4,585 USD in 2013. This was only enough to purchase four cows and one acre of land (Tickell, 2014).

3. 3. The 2009 National Land Policy was the culmination of decades of investigation into the country’s historic land injustices. This was the first major land policy since the colonial era, and it set out to establish a number of principles in order to institute broad land reforms that would support Indigenous rights to land and collective land tenure.

4. 4. According to the act, ‘ “community” means a clearly defined group of users of forest land identified on the basis of ethnicity, culture or similar community of interests as provided under Article 63 of the Constitution’.

5. 5. There is a long and drawn-out argument about labour theory of value (LTV) with many arguing it has been discredited or empirically invalidated. Why not just argue instead that the drive for profit and ceaseless growth explains the anti-ecological properties of the capitalist system? Of course, there are many Marxists who have refuted this claim. For a recent defence of LTV see Fine and Saad-Filho (2016), Grossman (2016) and Burkett (2018).

6. 6. I’m indebted to the professor of economics and renowned Marxist ecologist Paul Burkett, whose generous patience in answering my questions in our correspondence helped me apply value analysis to the carbon markets in this novel way.

7. 7. Payments for Ecosystem Services (PES) involves the valorisation of the aforementioned restorative and rejuvenating properties of nature discussed in reference to the conservationist mode of production.

8. 8. The REDD+ project is an example of the Clean Development Mechanism (CDM) under the Kyoto Protocol, which allows countries from the developed world (Annex B Party) to implement an emission-reduction project in developing countries. For Eastern European economies ‘in transition’ it is called Joint Implementation (JI).

9. 9. BDO is grounded in the same commodity logic, wherein methods for calculating systems of equivalence and commensurability between units of species and habitats under regimes of private property rights enable the trade in these units to ‘offset’ for ‘unavoidable’ harm due to development projects. The Business and Biodiversity Offsets Programme (BBOP), an international consortium, has developed international standards for biodiversity commodities (Dunlap and Sullivan, 2019, p. 10).

10. 10. For work on development as a Foucauldian practice see Escobar (1984, 1995), Alvares (1992), Rist (1997), Nandy (1988) and Ferguson (1990).

11. 11. The (EWC) is a registered civil society organisation founded in 1995 by elders from the Endorois community to organise against gross human rights violations.