In this historic, public interest case, the African Court on Human and Peoples’ Rights found in favor of the Ogiek indigenous community of Kenya, and held that the Kenyan government had violated seven rights under the African Charter of Human and Peoples’ Rights. This decision significantly strengthens progressive jurisprudence on land rights and indigenous people’s rights.
The judgment orders the Kenyan government to inform the Court of all appropriate measures taken to remedy violations within six months. The Executive Director of OPDP, Mr. Daniel Kobei, has urged the government to fully implement the decision. He and other leaders of the Ogiek community are engaged with the government with regard to implementation of the judgment, with guidance and support from MRGI.
“For the Ogiek, this is history in the making. The issue of Ogiek land rights has finally been heard and the case has empowered them to feel relevant as indigenous people. I know that the case also gives hope to other indigenous peoples.” Daniel Kobei, Executive Director of OPDP
This landmark decision is the first time the Court, which has been functioning since 2006, has issued a verdict in an indigenous peoples’ rights case. It is also the largest case the Court has ever decided both in terms of number of claimants (35,000) and the number of claimed violations (8). Moreover, this case was the Court’s first public interest case and the first to have been decided following a substantive hearing on the merits and referral from the Commission.
Lucy Claridge, the Legal Director of MRGI, who argued the case before the Court, notes that ‘This case is of fundamental importance for indigenous peoples in Africa, and particularly in the context of the continent-wide conflicts we are seeing between communities, sparked by pressures over land and resources…Crucially the Court has recognised that the Ogiek – and therefore many other indigenous peoples in Africa – have a leading role to play as guardians of local ecosystems, and in conserving and protecting land and natural resources…’ These edicts will be of huge relevance to other forest communities who have been evicted from their traditional lands in the name of conservation, including for example the Sengwer in Western Kenya and the Batwa of Kahuzi-Biega National Park in DRC. In a similar assessment, in a 2017 report (A/HRC/36/46), the UN Special Rapporteur on the rights of indigenous peoples emphasized the correlation between secure indigenous land tenure and positive conservation outcomes. The Special Rapporteur has further said that, “Indigenous people’s rights need to be protected in the best way possible, not just for them but because they are also able to provide solutions to many of the world’s problems from climate change to biological diversity.”
As regards the issue of reparations, given that this case involves approximately 35,000 Ogiek and seven violations spanning a period of over 40 years, reparations have the potential to be enormously significant. Moreover, the Court is now presented with a further opportunity to provide a precedent ruling remedying violations against indigenous peoples. (Email interview with Lucy Claride, MRGI, September 7, 2017).
Finally, this case builds on the legacy of the Endorois case decided by the Commission in 2010, and strengthens progressive jurisdiction on land-related rights and indigenous people’s rights.
(Uploaded 29 October 2017)
Photo: Ogiek community members celebrate after the ruling, May 26, 2017.
Three ESCR-Net members were involved in the case: The Ogiek Peoples’ Development Program (OPDP), Minority Rights Group International, Center for Minority Rights Development (CEMIRIDE).