African Commission on Human and Peoples’ Rights v. Republic of Kenya, ACtHPR, Application No. 006/2012 (2017)
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.
In October 2009, the Kenya Forestry Service issued an eviction notice requiring the Ogiek, a forest-dwelling community and one of Kenya’s most marginalized indigenous peoples, to leave the Mau Forest within 30 days. In November 2009, Ogiek Peoples’ Development Program (OPDP) joined by Centre for Minority Rights Development (CEMIRIDE) and later by Minority Rights Group International (MRGI), sent a communication to the African Commission on Human and Peoples’ Rights (Commission), arguing that the eviction violated several provisions of the African Charter on Human and Peoples’ rights (Charter), including the right to property (Article 14), freedom from discrimination (Article 2), right to life (Article 4), freedom of religion (Article 8), the right to culture (Article 17(2) and (3)), the right to freely dispose of wealth and natural resources (Article 21), the right to development (Article 22), and Article 1 (which obliges all member states of the Organization of African to uphold the rights guaranteed by the Charter).
For decades the Ogiek have consistently confronted arbitrary forced evictions by the government from their ancestral land in the Mau Forest. This pattern of violations has had a hugely negative impact on their traditional lifestyle. The Ogiek depend on the forest for food, shelter, livelihood, and identity. The October 2009 eviction notice has thus been characterized in the case as a ‘perpetuation of historical injustices suffered by the Ogieks’ which had not been resolved by the Kenyan state, despite several legal challenges in the domestic courts and advocacy with the Kenyan authorities.
For one of the first times in institutional history, the Commission referred the case to the African Court on Human and Peoples’ Rights (Court) on the basis that there was evidence of serious or massive human rights violations. On May 26, 2017, following an eight-year long process, the Court issued a judgment upholding the land-related rights of the Ogiek people and finding violations of each of the rights claimed except for the right to life.
On the right to property, the Court expressed that the Ogiek had a communal right to their ancestral land, and that the expulsion of the Ogiek from this land against their will and without prior consultation, violated their property rights guaranteed by the Charter, and read in light of the UN Declaration of the Rights of Indigenous Peoples.
The Court also found that the government’s failure to recognize the Ogiek’s status as a distinct tribe, as afforded to other similar groups, denied them the rights available to other tribes, and thus amounted to discrimination. In referencing the work of the Commission through its Working Group on Indigenous Populations/Communities in Africa, and the work of the UN Special Rapporteur on minority issues, the Court analyzed various criteria to identify indigenous populations and determined that the Ogiek community could be recognized as an indigenous population that is part of the Kenyan people, with a particular status deserving of protection deriving from their vulnerability.
The Court stated in no uncertain terms that the preservation of the forest could not justify the lack of recognition of the Ogiek's indigenous or tribal status nor the denial of the rights associated with that status, and explicitly confirmed that the Ogiek could not be held responsible for the depletion of the Mau Forest nor could it justify their eviction or the denial of access to their land to exercise their right to culture.
The Court further determined that, because of the Ogiek’s connection between their land and their ability to practice their religion freely, the evictions of the Ogiek from the Mau Forest constituted an interference with the freedom to practice their religion. Given the Ogiek’s distinct ties between the land and their cultural practice, their eviction from the Mau Forest also violated the right to culture. In assessing the right to use and dispose of wealth and resources, such as land, the Court concluded that, so far as it had already determined the Ogiek’s rights to their ancestral land and that those rights had been violated, the eviction clearly violated the right to access and occupy the land. Finally, the Court held that the Ogiek’s continuous evictions from the Mau Forest had significantly impacted their economic, social, and cultural development, and therefore their right to development had also been violated.
The Court ordered the government to take all appropriate measures within a reasonable timeframe to remedy the violations. The Court declared that it would decide the issue of reparations separately, and a decision is expected in 2018 or earlier
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.