ancestral home . 19 T he most sa lient featur e of most indigenous
populations
is
th e ir
strong
attachment
with
nature ,
particularly , land and the natural e nvironm e nt. Their s urvival
in a particular way depends on unhi nde red access to and use
of th e ir tradit ional land and the natu ra l resources thereon . In
this regard, the Ogieks, as a hunter -gat her e r community , have
for centuries depended on the Mau Forest for their residence
and as a source of their livelihood .
110 . The
Ogieks
also
exhibit
a
voluntary
perpetuation
of
cultural
distinctiveness, which includes aspects of language , social organisation ,
religious , cultural and spiritual values , modes of production, laws and
institutions 20 through self-identification and recognition by other groups and
by State authorities 2 1, as a distinct group. Despite the fact that the Ogieks
are divided into clans made up of patrilineal lineages each with its own name
and area of habitation , they have their own language, albeit currently spoken
by very few and more importantly , social norms and forms of subsistence,
which make them distinct from other neighbouring tribes. 22 They are also
identified by these neighbouring tribes , such as the Maasai , Kipsigis and
Nandi , with whom they have had regular interaction , as distinct 'neighbours'
and as a distinct group .23
111 . The records before this Court show that the Ogieks have suffered from continued
subjugation, and marginalisation.24 Their suffering as a result of evictions from their
19
See the Presidential Commission of Inquiry into the Illegal/Irregular Allocation of Public Land or the
Ndung'u Report June 2004 (hereinafter referred to as the Ndung'u Report) page 154 and the Report of the
Prime Minister's Task Force on the Conservation of the Mau Forests Complex March 2009 (hereinafter
referred to as the Mau Task Force Report) page 36.
2° Corinne A Kratz, 'Are the Okiek Really Masai? Or Kipsigis? Or Kikuyu?' 1980 Cahiers d'Etudes Africaines
Vol20, (hereinafter referred to as Kratz, Corinne A) page 357.
21 Affidavit of Samuel Kipkorir Sungura, Affidavit of Elijah Kiptanui Tuei, Affidavit of Patrick Kuresoi filed by
the Applicant; The Final Report of the Truth , Justice and Reconciliation Commission of Kenya 3 May 2013
(hereinafter referred to as the T JRC Report) Volume IIC paragraphs 204 and 240; and UNHRC, ' Cases
examined
by
the
Special
Rapporteur (June
2009
July
2010)
available
at
http://www2.ohchr.org/english/bodies/hrcouncil/docs/15session/A.HRC .15.37 .Add.1.pdf, at paragraph
268.
22 Kratz, Corinne A, pages 355 to 368.
23 Kratz, Corinne A. (1980} pages 357 to 358.
24 See Verbatim Record of Public Hearing 27 November 2014 page 137; the T JRC Report (2013),
paragraphs 32-47 (including other minority and indigenous people in Kenya); UNCESCR 'Concluding
32
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