African Commission on Human and Peoples’ Rights v. Republic of Kenya, Judgment, Application No. 006/212

On May 26, 2017, the African Court on Human and Peoples’ Rights (the Court) issued the historic judgment that the Kenyan government (the State) had violated seven articles of the African Charter on Human and Peoples’ Rights (the Charter) by evicting the indigenous Ogiek people from their ancestral land in the Mau Forest. That decision ordered the government to take all appropriate measures to remedy the violations, and stipulated that the issue of reparations would be decided separately. After multiple delays owing to the COVID-19 pandemic, on June 23, 2022, the Court issued a final decision on reparations. 

The case presented by the African Commission on Human and Peoples’ Rights to the Court included several pecuniary and non-pecuniary requests for fair reparations. The Commission requested pecuniary reparations for both material and moral prejudice, as well as restitution of their ancestral lands, demarcation and titling of their ancestral lands, full recognition as an Indigenous People, a public apology by the State for all the violations identified in the judgment, the erection of a public monument acknowledging the human rights violations, the right to be effectively consulted regarding decisions that affect their land, a guarantee of non-repetition by the State, and the creation of a Community Development Fund. 

On the other hand, the State argued that reparations would be sufficiently satisfied through a guarantee of non-repetition and reverse action, by allowing the Ogiek access to the Mau Forest. Additionally, the State argued that demarcating and titling ancestral lands was “unnecessary,” and further disagreed with the erection of a monument commemorating the violation of their rights. 

The Court cited international court decisions dating back to a 1927 holding that reparations for breaches of human rights violations is a fundamental principle of international law. Compensatory damages aim to redress the consequences of violations and restore a victim, as closely as possible, to the state they were in prior to the violations. In order for such reparation to be given, “there must be a causal link between the wrongful act that has been established and the alleged prejudice.” Therefore, each reparations request by the Ogiek needed to not only correlate clearly to a Charter article the Court previously determined was violated, but also prove what damage was caused to the Ogiek by that violation. 

Notably, the Court held that, in determining reparations owed to the Ogiek, infringements of rights prior to Kenya’s becoming a party to the Charter in 1992 could be included in the Court’s calculations. The State objected to this but, as the Court previously determined that the Ogiek had suffered decades of harm at the hands of the State, it felt that all events connected to that harm were relevant when considering remedies. This is because events preceding 1992 that are relevant in establishing and connecting the harm suffered by the Ogiek at the hands of the State are important to provide a “comprehensive” award for remedies.  

The Ogiek sought to calculate pecuniary damages owed based on both actual monetary loss from being separated from their homes, farms, and sources of income, as well as the moral prejudices of being kept from practicing their religion, including burying their dead and accessing sacred ceremonial sites. The Ogiek completed a survey amongst their community to calculate pecuniary loss. However, the Court determined that this survey was not sufficient proof of damages because of the unclear methodologies of ascribing monetary value to several of the losses. The Court decided to determine pecuniary losses equitably, based on amounts awarded in similar cases under the Inter-American Court of Human Rights for similar “systematic violation[s] of their rights.” The Court awarded the Ogiek 57,850,000 Kenyan Shillings ($477,704 USD) for material prejudice and 100,000,000 Kenyan Shillings ($823,741 USD) for moral prejudice. 

The Court ordered that the Ogiek are owed restitution of their lands via delimitation, demarcation, and titling of their land in order to clarify and reinforce which areas of the Mau Forest are traditionally and effectively Ogiek land. While the State argued that the right to use and access land is not the same as ownership, the Court determined that the land must be legally owned by the community and clearly demarcated as such in order to adequately protect the community from further violations. Each Ogiek community is entitled to hold title to their land in accordance with the 2016 Community Land Act enacted by Kenya. For any land that has been leased by the State to non-Ogiek people, if an amicable agreement regarding the land’s use cannot be made, the State must either return the land to the Ogiek or compensate the Ogiek for the loss. 

The Court made additional non-pecuniary reparations decisions along the general theme that the Ogiek ought to be part of processes that concern them and their ancestral land. The Ogiek are owed the right to effective consultation and dialogue regarding decisions that affect their ancestral land, and in fact the State is obligated under international law to consult them in this way in accordance with the notion of free prior and informed consent. The Court determined that the State must involve the Ogiek, in a culturally-appropriate manner, at all stages of development plans that could affect them, in such a way that the Ogiek can make informed decisions about whether or not to accept a proposed development. 

While the Court determined in its 2017 decision that the Ogiek are indigenous population and part of the Kenyan people, and while the State subsequently created a Task Force to determine with the Ogiek how to best effectuate that recognition, the Task Force has heretofore been ineffective in making real change for the provision of services or political representation for the Ogiek. The Court therefore ordered the State to take more effective measures within the next year to guarantee the full recognition of the Ogiek as an Indigenous People, including protection of their language and religious practices. Additionally, a Community Development Fund for the Ogiek must be put in place, funded by the reparations money ordered here, and overseen by a committee that includes members of the Ogiek community. 

The State’s agreement to guarantee non-repetition of the evictions the Ogiek suffered is to come in the form of substantive measures, such as those ordered here by the Court. The Court determined that neither a public apology nor a monument were necessary forms of reparation.