African Commission on Human and Peoples’ Rights v. Republic of Kenya, ACtHPR, Application No. 006/2012 (2017)
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), and 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 October 2009 eviction notice has thus been characterized in the case as a 'perpetuation of historical injustices suffered by the Ogieks.'
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.
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.
"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 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).
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…’
The UN Special Rapporteur on the rights of indigenous peoples has 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.” 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.