Huge victory for Kenya’s Ogiek as African Court sets major precedent for indigenous peoples’ land rights
26 May 2017
Photo: Ogiek community members outside the African Court buildings in Arusha on the day of the judgment
Minority Rights Group International (MRG) wholeheartedly applauds an historic judgment from the African Court of Human and Peoples Rights in Arusha today in favour of the Ogiek community of Kenya. Following an eight-year legal battle, the Court found that the Kenyan government violated seven separate articles of the African Charter in a land rights case that dates back to colonial times.
‘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, including the Mau Forest,’ says Lucy Claridge, MRG’s Legal Director, who argued the case before the Court.
‘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. I know that the case also gives hope to other indigenous peoples: it has made the issues seem real,’ says Daniel Kobei, Executive Director of Ogiek Peoples’ Development Program (OPDP).
The Ogiek, 35, 000 of whom are the victims in this landmark case, live in the Mau Forest Complex in the Rift Valley of Kenya. They are one of the last remaining forest-dwelling communities and among the most marginalised indigenous peoples in Kenya. They alleged eight violations of their rights to life, property, natural resources, development, religion and culture by the Kenyan government under the African Charter, to which Kenya is a signatory.
This is the first time the African Court, in operation since 2006, has ruled on an indigenous peoples’ rights case and is by far the largest ever case brought before the Court. It was originally lodged with the African Commission on Human and Peoples’ Rights, but was referred for the first time in history to the Court on the basis that it evinces serious and mass human rights violations. Minority Rights Group International, Ogiek Peoples’ Development Program and CEMIRIDE were the three original Complainants before the African Commission.
‘By ruling that through a persistent denial of Ogiek land rights, their religious and associated cultural and hunter-gatherer practices were also violated, the Court has sent a crystal clear message to the Kenyan and other African governments that they must respect indigenous peoples’ land rights in order to secure their livelihoods and cultures,’ adds Lucy Claridge.
For decades, Ogiek have been routinely subjected to arbitrary forced evictions by the government from their ancestral land in the Mau Forest, without consultation or compensation. This has had a detrimental impact on the pursuit of their traditional lifestyle, religious and cultural life, access to natural resources and their very existence as an indigenous people. Ogiek have a spiritual, emotional and economic attachment to the forest. They rely on it for food, shelter and identity.
Given that Ogiek rights over ancestral land are already recognised in both the Kenyan Constitution and recently enacted Community Land Law, and in light of the upcoming elections and history of lax implementation of the African Commission Endorois judgment, MRG now urges the Kenyan government to fully respect the Court’s judgment and take immediate steps to remedy the violations experienced by Ogiek over decades.
Earlier this month a UN anti-racism body also urged the Kenyan government to ensure legal acknowledgement of the collective rights of indigenous peoples, and prevent, punish and sanction acts threatening their security and property.
Notes to editors
Minority Rights Group International, Ogiek Peoples’ Development Program and CEMIRIDE were the three original Complainants in the ‘Ogiek case’ before the African Commission.
Find out more about the Ogiek on MRG’s legal cases website
The full judgment will shortly be available on the website of the African Court
Minority Rights Group International is a non-governmental organization working to secure the rights of ethnic, religious and linguistic minorities and indigenous peoples worldwide. We work with more than 150 partners in over 50 countries.
Kanyinke Sena, MRG Kenya Advocacy Officer (English, Swahili)
M: +254 725288402 / E: kanyinke.sena@mrgmail.org
Daniel Kobei, Ogiek Peoples’ Development Program Executive Director (English, Swahili)
M: +254 722433757 / T: +254 512213803 / E: dkobei@yahoo.com / opdp@ogiekpeoples.org /
Twitter: @OgiekPeoples
Press Statement of the African Commission on Human and Peoples’ Rights following the handing down of the judgement in Application 006/2012 by the African Court
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.
Amnesty International hails African Court on Ogiek ruling
May 27th, 2017
By Catherine Ageno
Amnesty International has hailed the African Court ruling on the Ogiek case saying it gives hope to indigenous peoples everywhere.
The African Court on Human and Peoples Rights ruled yesterday that the Kenyan government violated the rights of the Indigenous Ogiek people when it evicted them from their land.
According to Muthoni Wanyeki, Amnesty International’s Regional Director for East Africa, the Horn and the Great Lakes, the ruling is a historic victory for the Ogiek community.
“The ruling is a historic victory for the Ogiek community, and gives hope to all Indigenous peoples everywhere. In this one ruling, the court has both affirmed the Ogiek’s right to live freely on their ancestral land, and proved to the continent that regional justice mechanisms work.
Ms Wanyeki however quickly adds that the ruling is not enough, it must be respected by the Kenyan government.
The Ogiek, who live mostly in Kenya’s Mau and Mt Elgon forests have fought for a long time in the national courts, and now at the African Court, to live on their ancestors’ land.
In their Applicant, the Ogiek community claimed that the Respondent State had violated their rights and freedoms through, among others, forced evictions of the Ogiek from the Mau Forest, their ancestral home, where they have lived from time immemorial and which was crucial for their very survival.
However, the Republic of Kenya denied the Applicant’s allegations and argued that the Court lacked jurisdiction in the case.
To this, the court unanimously dismisses the objection to the Court’s material jurisdiction to hear the Application, dismissed the objection to the Court’s personal jurisdiction to hear the Application.
The Court also dismissed the objection to the Court’s temporal jurisdiction to hear the Application and declared that it had jurisdiction to hear the Application.
On Admissibility; the Court dismissed the objection to the admissibility of Application on the ground that the matter is pending before the African Commission on Human and Peoples’ Rights.
The Court dismissed the objection to the admissibility of the Application on the ground that the Court did not conduct a preliminary examination of the admissibility of the Application and that the author of the Application is not the aggrieved party in the complaint, failure to exhaust local remedies and thus declared the Application admissible.
On the merits; the Court declared that the Respondent has violated Articles 1, 2, 8, 14 17(2) and (3), 21 and 22 of the Charter and ordered the Respondent to take all appropriate measures within a reasonable time frame to remedy all the violations established and to inform the Court of the measures taken within six (6) months from the date of this Judgment;
The applicant also requested the Applicant to file submissions on eparations within 60 days from the date of this judgment and thereafter, the Respondent shall file its Response thereto within 60 days of receipt of the Applicant’s submissions on Reparations and Costs.
The case was initially lodged by Ogiek Peoples’ Development Programme, Minority Rights Group and the Centre for Minority Rights Development (CEMIRIDE) at the African Commission on Human and Peoples’ Rights, before being referred by the Commission to the Court in 2012.
Hunter-gatherers in Kenya have won an eight-year
court battle against the government's plan to evict them from their ancestral
land in the Mau Forest.
The Ogiek were entitled to live on their
ancestral land and the government should not have tried to evict them, a
pan-African court ruled.
Campaigners hailed the ruling as a huge victory
for indigenous communities.
The government had argued that the
hunter-gatherers needed to be evicted to protect the indigenous forest.
But the African Court of Human and People's
Rights ruled that the government had violated a series of rights of the Ogiek
people, including the right to property and the right to practise their
culture in the forest in western Kenya.
Environmental degradation in the Mau Forest had
been caused mainly by "ill-advised" logging concessions and
settlement by non-Ogiek people, Justice Augustino Ramadhani said, according to
Reuters news agency.
The ruling affects some 35, 000 traditional
hunters who live in the forest, some 200km (125 miles) from the capital,
Nairobi.
"They are one of the last remaining
forest-dwelling communities and among the most marginalised indigenous peoples
in Kenya," said Minority Rights Group International.
"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," it added in a statement.
One community member, 96-year-old Rashamba
Debola, told the BBC she had lived in the forest all her life.
"I grew up here, married traditionally,
had my family here, buried my husband in this forest. I don't know anywhere
else. For now, I live here with my great-grandchildren. I would love to see
them carry on our traditions."
Amnesty International said the hunter-gatherers
had fought for a long time in the Kenyan courts, before turning to the
pan-African court to achieve justice.
"Today's ruling is a historic victory for
the Ogiek community, and gives hope to all indigenous peoples everywhere,"
it said in a statement.
"But a ruling is not enough, it must be
respected. The Kenyan government must now implement the ruling and let the
Ogiek live freely on their ancestral land."
The Tanzania-based court's ruling is legally
binding, but it cannot sanction countries for non-compliance.
The Mau Forest, covering 273,300 hectares
(675,000 acres), is the largest forest of indigenous trees in East Africa.
