The African Commission on Human and Peoples’ Rights (the Commission) welcomes the decision of the African Court on Human and Peoples’ Rights (the Court) in Application 006/2012 – African Commission on Human and Peoples’ Right v. Republic of Kenya. In the judgement it delivered on Friday 26 May 2017, the African Court found the actions of the Respondent state to be in violation of the various rights of the Ogiek community.
This judgement vindicates the rights of the Ogiek community who have been impeded from securing ownership and use of their ancestral land on which they depend for their social, economic and cultural existence, after being demanded by the Government of Kenya to move out of the Mau Forest Complex. The Ogiek are an indigenous minority ethnic group in Kenya comprising of about 20,000 members of whom about 15,000 inhabit the greater Mau Forest complex, a land mass of about 400,000 hectares straddling seven administrative districts.
The Government of Kenya in October 2009, through the Kenya Forestry Service, issued a thirty (30) days eviction notice to the Ogiek and other settlers of the Mau Forest on the ground of seeking to conserve the forest as a water catchment area. The Commission, following seizure of the communication filed on behalf of the Ogiek and the non-implementation by Kenya of its provisional measures, referred the case to the Court in July 2012 pursuant to Article 5(1)(a) of the Protocol the African Charter on Human and Peoples' Rights on the Establishment of the Court (the Court Protocol).
This application to the Court sought to prevent the far-reaching implications and devastating impact of the eviction order of the Government of Kenya on the survival of the Ogiek as a community and on their civil and political, socio-economic and peoples’ rights guaranteed in the African Charter on Human and Peoples’ Rights.
Setting an important precedent in terms of the protection of the rights of vulnerable ethnic communities facing similar challenges and violations of their rights, the judgement entails that whatever conservation or development policies and actions states seek to pursue should not come at the expense of the rights and very existence of minority groups or indigenous populations/communities like the Ogiek.
As a judgement on the first case which has proceeded to full trial on the merits after being referred by the Commission to the Court, it is also a landmark judgement in the operationalization of the complementary relationship between the Commission and the Court as provided for under Article 2 of the Court Protocol. It has served as a test case for identifying the legal, procedural and technical factors that shape how the complementary relationship of the two institutions in practice plays itself out through referral of cases under Article 5(1)(a) of the Court Protocol.
The case also revealed the potential that a strong and well-functioning regional human rights system will have in tackling and redressing major human and peoples’ rights violations on the continent.
The Commission would like to thank and present its congratulations to all those who were involved in bringing this case to a successful conclusion, particularly representatives of the Ogiek community, the lead counsel and the lawyers from Pan African Lawyers’ Union (PALU) who represented the Commission in this application.
Reiterating its commitment to uphold all the rights guaranteed in the African Charter including those of peoples’ rights that protect indigenous populations/communities and other ethnic minorities, the Commission urges the Government of the Republic of Kenya to abide by this judgement in full and respect the right of the Ogiek community to live on their land in the Mau Forest.
The Commission calls on the Court to order reparations in this case which are equitable, fair and take full account of the extent of the suffering experienced by the Victims, as well as to take follow up measures to ensure that this order is implemented.
The Commission calls on the Political Organs of the African Union, in particular the Assembly of Heads of State and Government and the Executive Council, to uphold their role in ensuring that this decision of the Court is respected and complied with by the Respondent State.