Claire Martens

Reflections by African Environmental Defenders at the first African Regional Meeting 

In September 2022, Natural Justice convened the first regional reflection meeting that brought together African environmental defenders, including women and youth, from 19 African states, alongside other key environmental, land and human rights defenders’ stakeholders.  As noted in the remarks by the United Nations Special Rapporteur on the situation of human rights defenders during the opening remarks, the meeting occurred at a defining time, nearly a quarter of a century since the UN Human Rights Declaration was issued, and as the region faces key environmental justice challenges.  

The meeting created a safe space for the African defenders to share and reflect on their struggles and celebrate their milestones. Additionally, they sought peer-to-peer inspiration, strength, encouragement, motivation, and healing. Beyond that, it was an opportunity to build capacity, strengthen solidarity networks and connections, as well as strategize around collective commitments and demands. 

The majority of the defenders highlighted their contribution towards addressing the triple planetary crisis of climate change, pollution, and biodiversity loss. These crises are exacerbated by large-scale and unsustainable extractive, infrastructural and conservation projects in their territories of life, negatively impacting their livelihoods and culture.  

Challenges faced by Defenders

African defenders grapple with the dynamics of shrinking civic spaces and cases of threats, stigmatization, harassment, increased surveillance, arbitrary arrest, detention, criminal charges, unfair trials, criminal conviction, and murder, which are on the rise with the proliferation of investments and developments.

Their civic rights have been frustrated through the elite police deployment, and in some cases using stigmatization and deliberately painting of defenders an opportunists or criminals. Observably, the perpetrators of these gross violations across countries in the region are: governments, private (international) companies, paramilitary militias, criminal gangs and bandits, vigilantes, and extremist organizations. Defenders shared accounts of personal experiences of threats and systemic issues, as well as instances where the defender’s crucial voices were ignored, suppressed and forcefully silenced. 

Clearly, the defenders’ systemic frustrations emanate from historical negligence when it comes to explaining their role and mandate. Additionally, governments across the region have continued to create laws and frameworks, as well as impose strategies, that frustrate and limit civic participation and litigation.  

Women defenders, specifically, emphasized that it was twice as hard being frontline defenders compared to their male counterparts. African women defenders face gross violations of their rights, insecurities, and adverse violence due to their gender. This is tied to dominant patriarchal cultures and violence against women. Additionally, women defenders reflected that the legal system is structured in a non-inclusive manner which prevents them from easily maneuvering through it. Consequently, the justice system and what it means to women and feminist defenders, is an issue that has not been clearly understood.  

Young defenders, on the other hand, stated that while they are at the forefront of the struggles and are the most susceptible to long-term harm from violations of environmental rights, they are often locked out of meaningful involvement in strategy development and decision-making, with total disregard for the fresh impetus they bring. As a result of these dynamics, young women defenders face double marginalisation by virtue of age and gender. In this case, the issue of intersectionality is crucial, and actors should start looking at defenders’ issues holistically and in an integrated manner. 

Reporting on Africa’s defenders is marred by critical limitations, including but not limited to; under-reporting, un-documentation, and under-documentation, as well as suppressions by powerful actors. In other cases, rural-based defenders are targeted in invisible spaces where information is not traditionally collected. Lack of information on these occurrences diminishes the voice of defenders. Missing facts and evidence frustrate attempts to lobby for their protection.  

Hearing their voices

In their interactions with various United Nations and African Union processes, defenders protested the significant exclusion of their voices, demanding inclusion in key decision-making and accessibility of the processes. They committed to proactively link the local relations to the global level and consider their long-term engagement in multi-lateral processes. 

Reflecting on the mental, psychosocial, and psychological aspects of environmental rights activism, the defenders underscored that they have a powerful passion and purpose. The heavy duty of defending rights must be critically considered, in ensuring resilience-building and protection of mental wellbeing.  The defenders were trained on key wellbeing strategies; for instance, the debriefing and the do-no-harm methodologies, to ensure that their ongoing efforts are not a form of trauma extraction and multiplication. 

Despite the various issues facing the African environmental defenders, there was a resounding voice of “aluta continua”.  

• by Winnie Changwony, Researcher at Natural Justice 

Today is International Women’s Day and we celebrate the lives of Women Defenders. These are their stories:

Kenyan Woman Defender

2 March 2022: Coming from an Indigenous community is a challenge and privilege at the same time, especially being a woman. I wake up every day and face the challenge of addressing issues affecting my community, such as land rights, advocating for clean environment etc. It has been the biggest struggle for women since it was perceived to be men’s roles. 

Being a young woman, with little knowledge, I decided to look for an avenue that will give me space to air out my views without being attacked in line with my gender. Chepkitale Indigenous People Development Project, who are fighting for issues of Ogiek community in Chepkitale, gave me this platform. 

One of my roles is to hold meetings with women at community level. I make them aware of land struggles and their need to take an active role in the struggle, without fear. Currently, women have stepped up and most of them have capacity to advocate for Ogiek issues at any level. 

I am part of an exchange programme sponsored by Forest People’s Program, which is currently going on in Chepkitale, where women from other Indigenous communities have visited Ogiek women to share their ideas, encourage each other and form networks on how to strengthen their advocacy for land rights issues, in both Kenya and other countries such as Uganda (with the Benet people) and Rwanda (with the Batwa people). 

It’s a humbling experience. I believe, with time, most women will understand why they need to take part in community issues since they are the most vulnerable any time there’s an attempted eviction by different forces. 

My work has built my capacity on various issues, ranging from resource mobilization, equitable distribution of resources by government and, most importantly, land rights issues. 

3 March 2022: I am leading a project on mapping. This process is the best opportunity for me to understanding ancestral land of Ogiek community. 

The mapping process involves the use of the Mapeo application that was developed by Digital Democracy, with experts on mapping from Forest People’s Program. Working under this consortium makes every day of my life a learning experience. 

I’ve been taking the lead in the process where all resources ie land, rivers, schools, forests, are captured in the application and map developed. The map gives a clear reflection of how conservation is being adhered to – hence remedies to be taken in case of any destruction. Maps produced also are used as advocacy tools in courts and shows any government agencies why Ogiek community are the owners of Chepkitale since time immemorial. This work is continuous. 

The daily process, and planning how to achieve this, builds a great passion in me to actively taking a position on community issues. 

4 March 2022: They say you can only know where you’re going if you know where you’re coming from. 

Documenting the history of the Ogiek community of Chepkitale made me realize who we are and the need to keep information for future generations. 

Waking up every day to research who we are, gives me energy to do the task. History has helped me and many others to have a basis for our struggles, especially the elders who have been representing the community in courts. Through history documentation, I’m able to understand that our ancestors viewed the environment differently ie shelter, food, friend and source of medicine. These reasons were enough to conserve it. This explains the reason why the environment was never tampered with during their time. 

My work has given me best platform to know who we are and what we want as a community. 

Ugandan Woman Defender

10 January 2022: Dear Diary, we resumed work at my organisation today. I suffered great feelings of stress and anxiety before work resumed because of all the challenges civil society organisations  suffered last year. Suffice to say that 2021 was hot! A bad hot! There were NGO closures – a whole 54 NGOs were ordered to close in August! Our partner organisations suffered office raids, arrests, detentions and other forms of harassment. 

I was greatly distressed when this happened. None of us is safe when there is such harassment.  I thought of getting trauma counselling, but I discarded the idea. I don’t want to let people know that I am scared sometimes. 

Despite my initial anxiety, I had a great time catching up with colleagues and planning for the year when work resumed. Safety is also one of our 2022 priorities, thank God. I am praying for a safe and impactful 2022!  

10 February 2022: Dear Diary, work has been great. I love my work because I get to be part of a team that makes a difference in people’s lives. Take today: I supported one of the communities whose land is being acquired for the East African Crude Oil Pipeline (EACOP) project to petition Total Energies and others to address the challenges the people are faced with because of the EACOP project. 

The community was very happy and they promised to gift me with a cow! A whole cow! Haha! I said no, I do not want a cow. I help because I love to. Our policies also don’t allow us to accept gifts from communities. Regardless, it was heartwarming to hear the happiness in the voices of the people we helped. 

We will continue to support the communities until they get justice.   

1 March 2022: Dear Diary, three days ago, one of human rights organisations that we work with in Uganda on the EACOP project shared a message that gave me a scare. He informed us that his organisation’s office, as well as his family home, had been broken into by thieves. Office computers and a mobile phone had been taken, he said. 

The robbery put me on high alert because we suspect that it had to do with our partners’ work. I was afraid that my home could be broken into too. Perhaps a killing, and rape could happen! Invaders in Uganda do rape women sometimes, you know! My mind throws up such scary scenarios sometimes. So traumatic. 

I resolved to put into practice the various safety physical and digital tactics learned from various trainings. I will also continue to do my work, and to campaign for the safety of environmental and human rights defenders. This is important work, and it must not stop. 

In December 2019, Natural Justice and its partners launched the African Environmental Defenders Fund. Initially, this fund targeted African members of the International Land Coalition (ILC) who faced threats and harassment due to their work as environmental defenders. In 2021, Natural Justice and its partners expanded the initial fund, with the result that we can now provide emergency funding to a wider array of environmental defenders. This includes any land and environmental defenders across Africa who are facing an emergency due to their activism.

Partners to the fund include the International Land Coalition, ICCA Consortium, Pan-African Climate Justice Activists (PACJA), Oxfam Novib, FEMNET, and African Youth Commission.  

What has changed?

• The fund is now open to non-ILC members.
• The fund can, in certain circumstances, fund security infrastructure measures.

The latest eligibility criteria now reads:

Any person is eligible to apply for an emergency grant if they meet all of the following criteria:

1. Is a citizen of any African country or a person legally residing or working in any African country;
2. Is an active frontline land and environmental rights defender working on issues related to land rights, environmental and climate justice, including but not limited to rights over natural resources, land or environmental conflicts, land grabbing and land reform;
3. Is facing an imminent threat or harm due to the nature of his/her work as a land and environmental defender; AND
4. Has not secured any other kind of support from another entity, organization or person to support him/her through the emergency situation.

What the fund can cover includes:

Expenses related to the installation of security infrastructure in exceptional circumstances: The Fund can cover an application to procure security infrastructure such as CCTV cameras provided that adequate justification is given on how this will help overcome the emergency situation. This may include reference from a tech specialist on the effectiveness of such infrastructure.

On 15 September 2020, five Batwa men who had been detained in prison in Bukavu in the Democratic Republic of Congo (DRC) since August 2019 were released and are all, at long last, back home with their families. This is thanks to the tireless work of Forest Peoples Programme’s (FPP) partner, Centre d’Accompagnement des Autochtones Pygmées et Minoritaires Vulnérables (CAMV) and the legal team they have been working with in Bukavu, with the financial support provided by the African Environmental Defenders Emergency Fund.

The five men, arrested in February and October last year, and imprisoned without trial, were accused of the illegal possession of weapons and the participation in a militia (Raiya Mutomboki). This was in the context of Kahuzi-Biega National Park (KBNP) responding very aggressively to the return of Batwa communities to their ancestral lands. These Batwa had been evicted from their ancestral lands to make way for the Park. Some community members, tired of years of patient but utterly frustrating negotiations to try to return to the land, had finally returned.

Historical background of the Batwa struggle

The Batwa people living beside KBNP have spent the last 45 years demanding justice for the forcible expulsion of their community from their ancestral lands. In 1975, they were expelled from land where they had lived for centuries to make way for an extension of the Park. They were pushed into dwellings in the border areas of the park. In the subsequent years, they have become impoverished, losing significant cultural and linguistic heritage that was bound up in their traditional practices.  They have been dispossessed by an approach to conservation that assumes that communities and the preservation of biodiversity are incompatible.

In recent years, the tension between the Congolese Institute for the Conservation of Nature (ICCN) and Park authorities on the one hand, and indigenous communities on the other, has escalated. Attempts by Batwa community members to peacefully regain lands in the park, or at least access to traditional resources such as natural medicines, have resulted in dramatic incidents. There has been  an estimated ten deaths of Batwa community members over recent years.

Since 2014, several attempts at negotiation have failed. Park officials and the ICCN continue to demonstrate little commitment to dialogue or peaceful resolution of the conflict. Three different “dialogues”, including the Whakatane Dialogue, have been held between members of Batwa communities and ICCN, but none of these have resulted in significant changes to the Batwa’s circumstances.

In October 2018, a group of Batwa men moved into the Park to make a stand and reclaim their rights to the land. Deprived of any means of subsistence, these Batwa had no choice but to return to the Park. Unfortunately, the Batwa’s incursion into the Park was met with violence by the Park administration. The ICCN accused the Batwa of destroying the Park’s ecosystem. Some Batwa leaders were threatened by the security services, others (including women) were arrested and given very heavy jail sentences. In the aftermath, there were several confrontations between eco-guards and indigenous communities. At least ten Batwa were killed and several eco-guards also killed or injured during those clashes. It has become a vicious circle.

It is under these circumstances that six members of the Batwa indigenous community in Kahuzi-Biega (South Kivu) in the Democratic Republic of Congo were arrested in February and October 2019, respectively. One of them, Yonas Muderhwa, died in prison on 25 July 2019.

Legal support and humanitarian assistance to the Batwa

In June 2020, an application was made by FPP on behalf of the CAMV to the African Environmental Defenders Fund for funding for legal assistance for the Batwa members. The Defenders Fund responded to the lack of effective pro bono services in the judicial system. Three Batwa men arrested in February 2019, and sentenced to 5 years on 20 March 2020 for participation in a militia, appealed against the judgment.  But, because of the lack of legal assistance, their case was never heard before the Court of Appeal.

In DRC, you need to make the necessary “diligences” so that your case can be settled before a tribunal or court. It means that the defendants needed to pay for a lawyer themselves, which was unaffordable for them. As a result, the three Batwa men remained in jail for more than a year until the funds were accessed from the Defenders Fund.

FPP’s partner in Bukavu hired a law firm to assist the five Batwa before the judicial authorities, including the Tribunal militaire de Garnison (TMG) of Bukavu and the South Kivu Military Court. Two other Batwa men have been detained without trial since October 2019. They were prosecuted for illegal possession of weapons and ammunition. CAMV contracted local barristers in Bukavu to follow up on their case. As a result of this legal support, all charges were discharged and they were thankfully released on 10 September 2020.

Prison conditions are very precarious in Bukavu Central Prison. In most of the prisons in DRC, prisoners are abandoned to their sad fate. Cases of deaths are regularly reported in this prison due to the lack of adequate care. This was the case of Twa Yonas Muderhwa, imprisoned with the others in February 2019, who died in prison after five months on 25 July 2019.  Fortunately, upon reception of the fund, CAMV was able to bring food and medicine to the five Batwa detainees in Bukavu central prison until their release.

Batwa leaders and their support organisation face further risks due to their role in defending land rights and environment

Recently, the management of Kahuzi-Biega National Park has published unfounded accusations that may incite violence and exacerbate threats against indigenous leaders and their support organisations, including FPP and CAMV. The official spokesperson of KBNP accused a prominent Batwa leader, Jean-Marie Kasula (whom FPP supports in another court case) of carrying out an armed attack on a convoy of vehicles, which included the provincial Minister of Agriculture. The article also suggests that CAMV and FPP could have provided the weapons for this attack. In the context of South Kivu, where instability and insecurity are, sadly, the norm, this kind of unsubstantiated public statement is incredibly dangerous. We fear for the safety of M. Kasula and his family and for the safety of our friends and colleagues at CAMV.

The five Batwa men released in September may face continued threats by the park management in future. These men are hunters-gatherer and farmers. They were arrested according to strict regulations restricting access to the national park. They were carrying out subsistence activities which include traditional hunting and farming, which are supposed to be “illegal” in the context of national park.

Traditional activities seen as a “threat” to conservation

The possibility for indigenous communities to exercise user rights, such as the collection of non-timber forest products, honey harvesting, and subsistence hunting have been affected by coercive law enforcement of PNKB administration. Added to that, the park administration often uses these minor infractions to spread conspiracies against certain community leaders. In the case of the five Batwa men, traditional hunting was exaggerated and categorised as a threat to state security and public order. They are still facing risks, because of their role within the community as leaders, but above all, because their family members are still settled in the Park.

Indigenous people across the world are finding themselves sidelined from decision-making about their land and livelihoods, pushed to the margins of their territories and criminalised for carrying out livelihoods activities they have done for thousands of years in the name of “conservation”.  The creation of the Park has left the Batwa destitute and corroded their indigenous livelihoods. The criminalisation of their traditional activities, which lead to the detention of six Batwa community leaders and the death of one of the members, is unconscionable. The government of the DRC must take actions to tackle the issue of landlessness within the Batwa community and come to an agreement which will see them free to enter the Park to be able to hunt and gather.

Lassana Koné

Lawyer, Legal and Human Rights Programme

Forest Peoples Programme

In December 2019, Natural Justice, together with the International Land Coalition (ILC), launched the African Environmental Defenders Fund to support ILC-affiliated land and environmental defenders facing threats that place the defenders in a position where they require emergency support. The Fund is administered by a team within Natural Justice, as well as an external committee made up of five members. These committee members have regional experience and include a representative of an indigenous community.

The committee is tasked with considering the applications for emergency support. They assess whether the application meets the relevant criteria and will make a decision based on the evidence provided by the applicant. The committee’s target is to complete the decision-making process within 48 hours in order to be able to meet the emergency needs of the defender. The existence of the Fund is communicated via email, the website and social media channels.

Although it is only September, the Fund has been approached many times since March 2020, when we received our first application, and we can now report on the trends in the applications over the past six months and the outcomes of these. We are also now in a position where we will be seeking more funding to support African defenders.

The 2020 applications

Up until the 18 August 2020, we received a total of 15 applications from across Africa. Of the 15 applications, most were from Kenya. This is not unusual, as Natural Justice and the ILC have strong networks in the country and Kenya itself has witnessed many recent developments impacting on communities. For example, there have been evictions of Sengwer and Ogiek communities from indigenous forests over the last two months, instituted by the Kenya Forest Services, leading to significant threats, arrests and human rights violations.

Of the 15 applications, five were declined for two overarching reasons: in three cases, the defenders were not affiliated to an International Land Coalition member and neither were the defenders recommended for support by an ILC member.  In the other two cases, there was no demonstration of an imminent threat to the defender and in one case, the defender had already secured assistance from others.

A key feature of some of the applications was that while some were applications on behalf of one defender and their family, others were for a collective of community members. Hence, even though we approved 10 applications, the Fund was able to assist a larger number of people.

Of the approved applications, the committee reviewed the amount applied for and the applicant was either awarded the whole amount or the amount was reduced. In the cases where the amount was reduced, reasons were provided. Some of the reductions were due to the fact that funding was requested for an activity that wasn’t urgent.

In total, the Fund has provided just over USD30 000 for the defenders.

Nature of threats to defenders

The nature of the threats to the applicant defenders are listed below. The threats are mostly physical, related to arrests, arbitrary detention and evictions, but some of the applicants faced digital threats, stalking and harassment.

In order to ameliorate these emergency situations, the applicants requested funding for: legal representation, costs for bail, costs of relocation, costs of safe houses, and costs for day-to-day expenses while in hiding and unable to work. The most common of these, and the most funded request, was for fees for legal representation.

The way forward

Natural Justice has learnt extensively from this initiative, which has allowed us to provide immediate support to secure the life and freedom of defenders across Africa. Because environmental and land defenders play a crucial role in securing the future of the planet, the African Environmental Defenders Fund is crucial to securing activism and defense of nature. The initiative will both continue and expand in the future.

African defenders work, as well as the threats they face, are underreported worldwide. Through a number of coalitions, our community partners and through our own advocacy, we hope to be able to expose more of the atrocities against defenders and ensure that African defenders are counted within the data collection on defenders.

Natural Justice will be working to secure further funding, both for the ILC members, as well as for defenders who are not associated with the ILC. We will be looking at further ways of supporting defenders, through legal empowerment, advocacy, digital training and through the development of a network of African lawyers.

Each and every human being is born with fundamental rights. Yet, in many countries across the world, many of these rights do not exist on paper, or are eroded by governments and industries. For some people, like environmental and land defenders, failures to enact or uphold rights mean that their lives are threatened and their activism can put them in harm’s way.

According to the United Nations Environment Programme (UNEP), environmental defenders are people who take peaceful action, either voluntarily or professionally, to protect the environment and natural resources from over-exploitation. They are often ordinary people who have a passion to protect, conserve and speak up for nature, with hopes to reverse the damage done by a profit-driven, consumerist society.

There is a fallacy that exists that environmental defenders are against development. In contrast, they value the earth and are concerned that we are using unsustainable practices that are eroding nature to the point where the lives of our children and children’s children will be undermined. They fight to protect the natural environment for the health of all people and future generations!

Threats to environmental defenders

Because they speak truth to power, environmental and land defenders are the most targeted group of human rights defenders. The Global Witness report ‘’Defending Tomorrow: The climate crisis and threats against land and environmental defenders ‘’ released in July 2020, is chilling.

They state that, “Our annual report into the killings of land and environmental defenders in 2019 shows the highest number yet have been murdered in a single year. 212 land and environmental defenders were killed in 2019 – an average of more than four people a week.”

Attacks on defenders are widely documented in developing countries: namely the Philippines, Guatemala, Romania, Kazakhstan, the Democratic Republic of Congo, Uganda, Brazil and Ghana. At Natural Justice, we have also documented attacks in Kenya and Senegal, and know of attacks in South Africa. Unfortunately, conflicts, evictions and land grabbing in these countries, which often spur defenders into action, are expedited by corrupt government officials, organised crime, businesses and corporations, which are all very powerful entities.

Despite the good that environmental defenders do for our world, they are not being protected with the necessary assistance that they deserve. For example, the fight against the burning of the Amazon rainforest is led by local indigenous peoples, with little-to-no help from their government. They often fight alone against greedy companies and powerful people, putting their lives in grave danger.

Human rights that provide a space for defenders to work effectively

Those in power need to be questioned and held accountable for their actions. To do so, environmental defenders require a full array of rights to support their work. Knowing their rights and the frameworks within which they undertake their activism, can not only create a space for them to work effectively, but keep them out of harm’s way.

Below are human rights that would allow for environmental defenders to work effectively.

What is becoming increasingly recognised as a fundamental right is the right to a safe, clean and healthy environment. From this, we can guarantee other rights, like the right to water, food, health and life. UNEP states that 150 countries have this right in their constitutional frameworks and it is the basis for other rights, but can also be the basis from which defenders work – an empowering right that communities often cite in their struggles against polluters. Without this right, defenders may find litigation and advocacy more difficult.

The right to information allows defenders to be able to access information about activities on their land or territories and take part in public participation processes. They are also able to use that information to inform the public, their communities and their allies about the threats they face. With information, they are able to present the facts in court as evidence that their territory is threatened.

The right to freedom of thought, belief, conscience, religion, opinion and expression are important to defenders so that they may express themselves. They have the right to express their opinion, either vocally, in writing, in the form of art, or through any other media of their choice, at the local, regional, national and international levels.

The right to life is a constitutional right in some countries, which may protect defenders from the governments taking severe and lethal actions against them. In countries that are severely oppressive or authoritarian, this right is repeatedly infringed on, and defenders in these countries are at great risk of disappearing, being assassinated or facing capital punishment.

Closely associated with the right to life, is the principle of dignity, which requires governments and their entities, businesses, corporations and anyone else to respect the integrity and dignity of defenders, to not discriminate against them and to treat defenders fairly. It is the moral foundation for all other rights and freedoms.

Freedom from arbitrary arrest or detainment means that, should a defender be arrested for their activities, they must be arrested according to a specified and fair process. Closely tied to this is the right to access to justice, including the right to have access to free legal representation facilitated by the State where a defender is accused of committing a crime. The latter right also includes the right to a fair hearing.

The right to fair administrative action speaks to instances where frivolous law suits are brought against defenders – most notorious are the strategic lawsuit against public participation (SLAPP) suits. Most of the time, the decision to prosecute the defender is not necessarily because they did what they are accused of doing, but as a result of abuse of power by the government or industry bringing the law suit. In South Africa, a well-known SLAPP suit was brought to intimidate activists and lawyers, who were accused of defamation. This right also facilitates a fair process of defenders who might file complaints against government entities or corporations about human rights abuses, and for these complaints to be taken seriously by the relevant bodies.

The right to protest or freedom of assembly plays a significant role in the civil, political, economic, social and cultural life of all societies. Protests have repeatedly encouraged positive social change and the progression of human rights, and they help to guard our shared spaces in all parts of the world.

The right to movement advocates for the state to take appropriate measures to facilitate the freedom of movement of people working in rural areas. Without the right to movement, defenders are unable to mobilise their communities, spread information or, if needed flee a source of danger.

There are less traditional rights that are becoming more widely recognised in legal spaces, such as the right to internet. The right to internet is becoming more recognised as it allows for defenders working in rural or far flung places to be connected to international advocacy spaces. It helps to promote rights like that of freedom of expression and the right to protest and right to information. Increasingly, having access to technology and internet access is seen as an important aspect of defenders’ ability to do their activism.

Closely linked to this and other rights, is the right to privacy, which provides for defenders’ work, identity, family and associates to be able to act without arbitrary or unlawful surveillance or oversight from government or corporations. It provides for defenders to work with freedom both physically and within the online space. It provides that their correspondence is not unlawfully intercepted and it ensures that the are not threatened or harassed.

Land rights are vital to protecting indigenous people and local communities. Having secure land rights, whether individual or collective, means securing their lives and livelihoods now and for future generations. It is also central in protecting our climate, as it provides for maintaining forests and other lands which are important for our planet’s health. If there is no legal recognition, our unprotected lands, like the forests, are more likely to be degraded.

Indigenous rights (and rights to cultural or religious freedom) are important as they recognise the right to protect someone’s cultural practices which are usually linked to the land and various cultural resources. Everyone has their own culture, and deserves to practice it. Defenders are often indigenous people who are not only protecting nature, but their way of life and identity. Another aspect of indigenous rights is that the UN, through the UN Declaration on the Rights of Peasants and Other People Working in Rural Areas, encourages states to provide this legal recognition and protection of indigenous people and their resources.

It is important to recognise that women defenders have unique needs related to threats associated with gender-based violence. The right to equality is especially important to women environmental defenders, as well as rights that protect them from rape, harassment and sexual assault.

All of these rights, as well as others, exist to make it conducive for defenders to do their work. Human rights are the basic rights and freedoms that belong to every person in the world, from birth until death. We must respect and uphold the rights of indigenous peoples and local communities, or else they exist merely on paper. Gratefully, over the past few decades, and increasingly so now, people worldwide have begun to stand with them and support their work and their rights. We need to listen to the voices of environmental defenders and help to strengthen them.

For a more comprehensive list of rights, please see the Living Convention here.

Between 7 and 10 July 2020, the Kenya Forest Services launched coordinated evictions to remove the Sengwer and Ogiek communities from their ancestral lands in the Embobut and Mau forests respectively. This occurred despite the existence of a moratorium by the Cabinet Secretary, Ministry of Interior and Coordination of National Government halting all forced evictions during the coronavirus pandemic period.

The evictions also ignored an earlier statement by the United Nations Special Rapporteurs on adequate housing and the situation of human rights defenders, calling upon the government to stop all evictions during the pandemic period and protect human rights defenders working with evictees.

The evictions in Mau and Embobut were preceded by earlier evictions in the Kariobangi and Ruai regions in Nairobi. Evictees were granted only 24 hours’ notice of the planned evictions and human rights defenders were threatened with ‘forced disappearances’.

In 2018, environmental defenders who are members of Save Lamu, a community organisation opposed to the construction of the Lamu Coal Plant, where arrested on false charges of belonging to a terrorist group and harassed by government forces.

This situation is similar to that faced by environment and land defenders advocating against unsafe salt mining in Magarini sub-county in Kilifi County. The situations in Mau, Embobut, Kairobangi, Ruai and along the Coast have become a norm in Kenya. Human rights and environmental defenders are harassed by the police and communities’ right to housing and a clean environment rest on the mercies of the government.

Kenya’s legal framework supporting defenders

From the scenarios, one may assume that Kenya lacks laws stipulating the rights and protection of environmental defenders. In actual fact, chapter four of the Constitution provides protection for fundamental rights and freedoms, including the right to a clean and healthy environment, right to freedom and security of person, freedom of expression, right to privacy, right to assembly and rights of arrested and detained persons.

Other laws which offer protection to defenders include the Prevention of Torture Act No. 12 of 2017, the Access to Information Act No. 31 of 2016, the Independent Policing Oversight Authority Act No. 35 of 2011, the Defamation Act, Cap 36, the Witness Protection Act, No. 16 of 2006 and the Fair Administrative Action Act No. 4 of 2015.

In addition, institutions such as the Independent Policing Oversight Authority and the Kenya National Human Rights Commission, as well as other human rights organisations, have been at the forefront of investigating and calling for the prosecution of perpetrators of human rights abuses.

Nevertheless, more needs to be done to recognise the vital role played by environmental defenders in fighting against illegal acquisition of land, calling out state and non-state projects which cause harm to the environment, acting as watchdogs over state agencies, ensuring the implementation of environmentally-sound policies and zealously protecting the right to a clean and healthy environment.

This role is not only threatened by the police force, Kenya Forest Service and non-compliant project proponents, but also by unconstitutional laws and decisions. The Public Order (Amendment) Bill, 2019 is one such potentially unconstitutional law. The Bill proposes penalising organisers of public meetings or processions by requiring them to provide compensation for loss of life or damage to property occasioned by participants.

If passed, the Bill will infringe on the right to peaceful assembly. It will provide an unjustifiable limitation beyond the scope of Article 24 of the Constitution. In addition, the Bill does not take into consideration the realities of public meetings or processions which include the invasion of a lawful assembly by persons who are against it.

The High Court has also rendered conflicting judgments on the right of human rights defenders to assemble. The case of Ngunjiri Wambugu v Inspector General of Police & 2 others [2019] eKLR, sets damning precedence by proposing demarcation of demonstration zones, maximum numbers of demonstrators, consent of persons/entities adjacent to demonstration zones and penalties against protestors. The decision limits enjoyment of the right to assembly and is contrary to the Public Order Act Cap 56 and an earlier case of Ferdinand Ndung’u Waititu & 4 others v Attorney General & 12 others [2016] eKLR. In this case, the Court affirmed the right of organisers of public meetings to choose an appropriate public venue and use public streets and public areas for such meetings.

International condemnation

Kenya is yet to honour its obligations under the Constitution, as well as those found in regional and international conventions* it has ratified. This laxity has led to condemnation by the UN on Kenya’s human rights obligations. In a press release from 22 May 2020, UN special rapporteurs strongly condemned harassment of a human rights defender and noted that the ‘government has the obligation to guarantee Ms. Mumbi’s protection from such a threat [of forced disappearance], whether it comes from public officials or third parties acting with the acquiescence or knowledge of the State’.

On 23 July 2020, Community Land Action Now (CLAN) issued a press statement condemning recent evictions of the Ogiek and Sengwer. The press release, supported by 153 organisations across the globe, called for a halt to forced evictions and harassment of these communities and called for respect for the rule of law.

For the Government, there is need for targeted implementation of rights and freedoms in the Constitution. This includes ensuring constitutionality of laws adopted to regulate exercise of rights, compliance of actions of government agencies and corporations with environmental regulations, efficient investigation and prosecution of perpetrators of human rights abuses, promotion of civic education meetings on proposed projects and allowing communities to participate actively and efficiently in meetings, ensuring compliance with court orders and the evaluation of government policies which limit fundamental rights.

The judiciary also has a role to play in adopting constitutionally sound decisions on the rights of environmental defenders and by making rulings against vexatious cases instituted by the police.

* Kenya has ratified the Universal Declaration on Human Rights 10 December 1948, 217 A (III), the International Convention on Civil and Political Rights 16 December 1966, United Nations, Treaty Series, vol. 999, p. 171, the African Charter on Human and Peoples’ Rights 27 June 1981, CAB/LEG/67/3 rev. 5, 21 I.L.M. 58 (1982), the International Covenant on Economic, Social and Cultural Rights 16 December 1966, United Nations, Treaty Series, vol. 993, p. 3 and the Convention against torture and other cruel, inhuman or degrading treatment or punishment 10 December 1984, United Nations, Treaty Series, vol. 1465, p. 85.