In its first judgment on the treatment and rights of indigenous people, the African Court on Human and Peoples’ Rights(AfCHPR) held that Kenya violated the Ogiek peoples’ rights to land, religion, culture, development, and non-discrimination. See AfCHPR, African Commission on Human and Peoples’ Rights v. Kenya, App. no. 006/2012, Judgment of 26 May 2017. Specifically, the African Court held that the State violated the African Charter on Human and Peoples’ Rights because Kenya expelled the Ogiek from their ancestral land against their will, without prior consultation or compensation. See id. The Ogiek are forest-dwelling people that live in the Mau Forest, one of Kenya’s largest water catchment areas. They argued that eviction would prevent them from using and maintaining ownership of their ancestral land on which they rely on for their social, economic, and cultural existence. [ACHPR Press Release] This is the second ruling from the African System against Kenya regarding its treatment of indigenous people. In 2010, the African Commission on Human and Peoples’ Rights (ACHPR) found that the Endorois peoples’ eviction from their land in the 1970’s was in violation of their rights to property, health, culture, natural resources, and religion. [Reuters; HRW] However, this recent judgment, though, is the first from the African Court to rule on indigenous peoples’ rights. [ACHPR Press Release] Further, this is one of only three cases that the African Commission has referred to the Court, and the only one that has been referred on the basis of grave, mass human rights violations. [ESCR]
The Ogiek Peoples’ Development Program (OPDP), Minority Rights Group International, and the Centre for Minority Rights Development (CEMIRIDE) brought the case before the African Commission on Human and Peoples’ Rights (ACHPR) in 2009 after Kenya issued eviction notices to the Ogiek people and other settlers living in the Mau Forest. The Ogiek alleged violations to the rights to life, property, natural resources, development, religion, and culture protected under the African Charter on Human and Peoples’ Rights. In July 2012, the African Commission referred the application to the African Court pursuant to Article 5(1)(a) of the Protocol to the African Charter on Human and Peoples’ Rights on the Establishment of the African Court on Human and Peoples’ Rights following the State’s inaction related to the Order for Provisional Measures issued in December 2009. See African Commission on Human and Peoples’ Rights v. Kenya, Judgment of 26 May 2017, at paras. 4-5.
African Court’s Analysis
In its opinion, the African Court first considered whether the Ogiek should be recognized as an “indigenous people” and established a set of relevant factors after drawing from various international sources of law. See id. at paras. 103, 107. The factors the Court determined were relevant are the presence of priority in time with respect to the use of a territory; cultural distinctiveness, including aspects of language, social organization, religion, and spiritual values; laws and institutions; self-identification as a distinct group or recognition by other groups or State authorities; and experience of marginalization, exclusion, or discrimination, regardless of actual existence of marginalization, exclusion, or discrimination. See id. at para. 107. The Court concluded that the Ogiek should be recognized as an indigenous population and accordingly deserve special protection. See id. at para. 112.
The African Court proceeded to analyze whether Kenya violated the Ogiek’s rights to property; to life; to be free from discrimination; to freedom of conscience; to culture and traditional values; to freely dispose of wealth and natural resources; and to economic, social, and cultural development. The African Court also reviewed whether the State violated its obligation to give effect to those rights.
The African Court held that Kenya was in violation of Article 14 of the African Charter (right to property, including communal ownership of land) because the eviction notices issued to the Ogiek were not proportionate to the State’s justification that eviction is necessary to protect the natural ecosystem in the region. See id. at paras. 130-31. The Court found that the State failed to present evidence showing that if the Ogiek were to continue to reside on the land, it would harm the natural ecosystem, and other evidence showed that environmental harm in the area has been linked to other factors and the activities of other groups and entities, including the government. See id. at para. 130.
Next, the African Court held that the State violated Article 2 (right to be free from discrimination), concluding that the State discriminated against the Ogiek based on their ethnicity or “other status” when it refused to recognize and grant them the same rights as similar groups due to their way of life as hunters and gatherers. See id. at paras. 138-42, 146.
The African Court also found a violation to the right to freedom to practice religion, which includes the right to worship and to engage in rituals and ceremonies. In the Ogiek’s case, the Court found that their religious practices were inextricably linked with the land and the environment and that an interference with their connection to the land placed severe constraints on their ability to practice religious rituals in violation of Article 8 of the African Charter. See id. at paras. 162-69.
The African Court explained that the right to culture under Article 17(2) and (3) is of an individual and collective nature and that it requires protection of the cultural heritage that is essential to preserve traditions. See id. at paras. 176-86, 190. It found that Kenya interfered with the Ogiek’s cultural rights and that the State’s justification that the interference with their cultural rights was necessary to preserve the natural ecosystem was not proportionate as the evidence did not show a connection between the Ogiek’s presence in the area and environmental degradation. See id. at paras. 189-90.
Additionally, the African Court found a violation of Article 21 (right to freely dispose of wealth and natural resources) because the evictions prevented the Ogiek from disposing of the abundance of food that they produced in their ancestral lands. See id. at paras. 199-201. The African Court also found a violation to the right to economic, social, and cultural development protected under Article 22 of the African Charter given Kenya’s practice of evicting the Ogiek without engaging in effective consultation and without involving them in the development of health, housing, and social programs affecting them. See id. at paras. 208-11.
Finally, the African Court concluded that the State violated Article 1 of the African Charter by not implementing legislation or other measures to give effect to the rights enshrined in the articles that the African Court found the State was in violation of: Article 2, 8, 14, 17(2) and (3), 21, and 22. See id. at para. 216.
The African Court did not find a violation of the right to life because it did not find a causal connection between the evictions and the deaths alleged to have occurred as a result. In doing so, the Court distinguished between the physical and existential understanding of the right to life or, put differently, the “classical meaning of the right to life and the right to decent existence of a group.” See id. at paras. 154-56.
The African Court will later rule on forms of reparations and on costs in a separate ruling. See id. at paras. 222-26.
Referral of cases from the African Commission to the Court is one of three ways that individual complaints may be reviewed by the African Court on Human and Peoples’ Rights. Under Article 5 of the Protocol to the African Charter on Human and Peoples’ Rights on the Establishment of the African Court on Human and Peoples’ Rights, the Court may only hear individual complaints submitted by the African Commission, States parties, and individuals with complaints against States that have deposited the necessary declaration under Article 34(6). Thirty States have ratified the Protocol, allowing the African Commission to refer to the Court an individual complaint that is against one of those States and that is submitted originally with the Commission. See IJRC, African Human Rights System. When an application is referred by the African Commission to the Court involving one of the 30 States parties to the Protocol, it is unnecessary for the State named in the application to have made a declaration under Article 34(6) of the Protocol in order for the Court to have jurisdiction over the matter. See African Commission on Human and Peoples’ Rights v. Kenya, Judgment of 26 May 2017, at paras. 60, 73-75.
This standard was first articulated in African Commission on Human and Peoples’ Rights v. Libya, a case referred to the Court by the African Commission in January 2013 concerning the rights to liberty and fair trial of Saif al-Islam Gaddafi, son of former Libyan leader Muammar Gaddafi. See AfCHPR, African Commission on Human and Peoples’ Rights v. Libya, App. No. 002/2013, Judgment of 3 June 2016. The African Court held in that case that Libya violated Gaddafi’s rights to liberty and to have one’s cause heard. See id.
The Inter-American Court of Human Rights (IACtHR) and the European Court of Human Rights have decided cases regarding States’ failure to recognize property and cultural rights of indigenous peoples. For example, in Kaliña and Lokono Peoples v. Suriname the IACtHR held Suriname responsible for the violation of the rights to recognition of juridical personality, property, political participation, and access to information based on the State’s failure to recognize the legal agency of indigenous and tribal peoples, evaluate their claims to collective title to the territory, ensure their access to and participation in the nature reserves, and weigh the communities’ input and the social and environmental impact on mining concessions. See I/A Court H.R., Kaliña and Lokono Peoples v. Suriname. Merits, Reparations and Costs. Judgment of November 25, 2015. Series C No. 309.
The European Court, on the other hand, has established that the European Convention does not guarantee specific rights to minorities and, most recently, has dismissed three applications raising land claims by minority groups. See Giovanna Gismondi, Denial of Justice: The Latest Indigenous Land Disputes before the European Court of Human Rights and the Need for an Expansive Interpretation of Protocol 1 (2017), 21.