African Court to hear Ogiek community land rights case against the Kenyan government
26 November 2014
The African Court on Human and Peoples Rights is set to hear on Thursday November 27 and 28, 2014 in Addis Ababa, Ethiopia a case brought before it by the Ogiek peoples against the Kenyan government for consistent violations and denial of their land rights.
The Ogiek are one of the last remaining forest-dwelling communities and one of the most marginalised indigenous peoples in Kenya. The Ogiek allege violation of their rights to life, property, natural resources, development, religion and culture by the Kenyan government under the African Charter on Human and Peoples' Rights, to which Kenya is a signatory.
The Court will also be asked to consider the crucial role of indigenous peoples in the conservation of land and natural resources.
This is the first time the African Court, in operation since 2006, will hear an indigenous peoples’ rights case and indeed is one of the first ever Court cases. The case was originally lodged with the African Commission and Human and Peoples' Rights, but was referred to the Court on the basis that it evinces serious and mass human rights violations. MRG, the Ogiek People’s Development Program (OPDP) and CEMIRIDE were the three original Complainants before the African Commission, and MRG has been granted permission to deliver an oral intervention during the hearing.
“This case is another example of a seemingly powerless community that decides to pursue justice no matter how far or how long it takes,” says Minority Rights Group International’s Head of Law, Lucy Claridge. “It illustrates the need for governments globally to recognise minority and indigenous peoples’ rights over their ancestral land and natural resources,” she adds.
Since independence, and indeed prior to it, the Ogiek have been routinely subjected to arbitrary forced evictions from their ancestral land in the Mau Forest by the government, 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 indeed their very existence as an indigenous people.
Prior to their eviction, the Ogiek had a spiritual, emotional and economic attachment to the forest. They relied on it for food (hunting game, honey), shelter and identity (source of medicines, honey used in cultural practices).
In March last year, the African Court on Human and Peoples’ Rights issued a provisional measures order requiring the Kenyan Government to stop land transactions in the Mau Forest and refrain from taking any action which would harm the case, until it had reached a decision. The court, while delivering its ruling, found that, if the evictions continued, there existed a situation of extreme gravity and urgency as well as a risk of irreparable harm to the Ogiek (pdf).
Mau Forest is one of the largest indigenous forests in East Africa. The Mau Forest complex has an area of about 480000 hectares (1,200,000 acres) and is home to an estimated 30,000 Ogiek who are the indigenous owners of the land. The forest area has some of the highest rainfall rates in Kenya.
According to Daniel Kobei, the Executive Director of Ogiek People’s Development Programe, a local NGO at the forefront of defending Ogiek rights “After years of discrimination, marginalisation and threats to Ogiek identity and existence, this hearing represents a significant step towards the realisation of justice for our people, the Ogiek.”
Notes to editors
Minority Rights Group International is a non-governmental organization working to secure the rights of ethnic, religious and linguistic minorities and indigenous peoples worldwide
For more information please contact:
MRG Press Office in Africa – Frederick Womakuyu
T: +256 312266832
M: +256 782934003
Lucy Claridge, MRG Head of Law
M: +44 (0) 7866 741922
Daniel Kobei, OPDP Executive Director
T:+254 51 2213803
You can watch proceedings live on: www.livestream.com/afchpr
Au Court Hears Ogiek Charges Against Kenya
The African Court on Human and Peoples' Rights on Thursday held a public hearing into the case of the minority Ogiek community, which has brought a lawsuit against the Kenyan government.
The African Court on Human and Peoples' Rights on Thursday held a public hearing into the case of the minority Ogiek community, which has brought a lawsuit against the Kenyan government.
The Ogiek community has accused the Kenyan government of treating it unfairly and dispossessing it of territory in the Mau Forest of the Rift Valley, to which the Ogeik people claim a historical right.
At the first hearing, the Ogiek people were represented by African Union Commissioner Pacifique Manirakiza and lawyer Behame Tom Mukirya Nyanduga, while the Kenyan government was represented by a team of lawyers headed by Mothoni Kimani.
The Ogiek ethnic group, which is based in southern Kenya and northwestern Tanzania, are traditional hunter-gatherers, while most other groups in the region are farmers or pastoralists.
At the hearing, Kimani said that the government saw the African court as lacking jurisdiction in the case.
"We have a local domestic judicial system; the other Ogieks went to the court and the court directed the Kenyan government to sit with people and solve this matter," she said.
"The court should not admit the case because issues of historical and traditional rights are protected by the Kenyan constitution and addressed in the Kenyan legal framework and mechanism, which is very broad," she added.
Nyanduga, for his part, confirmed the jurisdiction of the African Court in the case and presented a legal argument for defending the applicants' rights in Mau Forest.
The court also heard testimony from a number of witnesses and experts.
The African Court on Human and Peoples' Rights was established by African countries to ensure the protection of human and peoples' rights in Africa. It aims to complement and reinforce the functions of the African Commission on Human and Peoples' Rights.
The protocol establishing the court came into force in 2004 after being ratified by more than 15 member states.
To date, only 26 states have ratified the protocol, including Kenya.
The court officially began its activities in 2006 in Addis Ababa before being moved to Arusha, Tanzania.
However, the court will hold its ordinary session from November 24 to December 5 in Addis Ababa.
The court also plans to hold two public hearings during its session at African Union headquarters in the Ethiopian capital.
The second hearing, slated for December 3, will hear the case of Alex Thomas, who is challenging a 30-year jail term for robbery that he received in his native Tanzania in 1998. The conviction was upheld by a Court of Appeal in 2009.
Yet the court said his notice of motion for the review, which was addressed to the district registrar of Tanzania's High Court in Arusha, had not been granted since, considering it a deprivation of his basic right to be heard.
Press Release on the Upcoming Public Hearing of Application 006/2012 – African Commission on Human and Peoples’ Rights v. The Republic of Kenya, from 27 to 28 November 2014, in Addis Ababa, Ethiopia
Categories: Press Releases
26 November 2014, Banjul, The Gambia – The Secretariat of the African Commission on Human and Peoples’ Rights, wishes to inform the general public that the public hearing of Application 006/12 – African Commission on Human and Peoples’ Rights V. Kenya, on Preliminary Objections/Admissibility/Merits before the African Court on Human and Peoples’ Rights (the Court) will take place from 27 to 28 November 2014, in Addis Ababa, Ethiopia.
The Application emanates from Communication 381/09 – Centre for Minority Rights Development – Kenya and Minority Rights Group International (on behalf of the Ogiek Community of the Mau Forest) V. Kenya, which was before the African Commission on Human and Peoples’ Rights (the Commission), and later referred to the Court on 12 July 2012, in accordance with Articles 45(2) and 58 of the African Charter on Human and Peoples’ Rights (the African Charter), Articles 2, 3 and 5 (1)(a) of the Protocol establishing the Court, Rule 29(3) of the Rules of Procedure of the Court 2010 and Rules 84 (2), 118(2) & (3) of the Rules of Procedure of the Commission 2010, on account of serious or massive violations of human rights and non-compliance with Provisional Measures issued by the Commission to the Respondent State.
The Commission filed the Application on behalf of the Ogiek of the Mau Forest, an indigenous community in the Republic of Kenya. The Ogiek allege that they have lived since time immemorial in the Mau Forest in Kenya’s Rift Valley, relying on it for food, shelter and identity, and therefore that their very survival depends on it. They also allege that they have been routinely subjected to arbitrary forced evictions from their ancestral land in the Mau Forest without consultation or compensation, and that this has had a detrimental impact on the Ogiek’s pursuit of their traditional lifestyle, religious and cultural life, access to natural resources on their land and, more generally, access to education, health services and justice; all of which are safeguarded under the African Charter.
The Commission wishes to underscore the novelty of this Application, in that, it demonstrates the practical implementation of the complementary protective mandates of the Commission and the Court, under the Protocol establishing the Court. It is also the first case of peoples’ rights under the African Charter which the Court will adjudicate upon, as well as the first case involving indigenous peoples in Africa.
In the Case, the Commission’s legal team will be supported by Bahame Tom Nyanduga (Lead Counsel) and PALU Lawyers Don Deya and Selemani Kinyunyu.
The Public Hearing of the Application can be followed through the Court’s live stream webpage here on the indicated hearing dates.
Click here to read the official Press Release.
For further information, please contact:
Attention: Abiola Idowu-Ojo / Marie-Saine Firdaus
Secretariat, African Commission
31 Bijilo Annex Layout, Kombo North District
PO Box 673
Banjul, The Gambia
Tel: 220 4410505/6
Fax: 220 4410504
AfCHPR to Hear Cases on Indigenous Rights and Due Process
Posted on November 18, 2014
Credit: African Court on Human and Peoples’ Rights
From November 24 to December 5, the African Court on Human and Peoples’ Rights will hold its 35th Ordinary Session. The session will feature two public hearings in the cases of African Commission on Human and Peoples’ Rights v. Kenya, concerning indigenous rights, and Thomas v. Tanzania, regarding the right to fair trial and due process. The first case will be heard on November 27 and 28, and the second will be heard on December 4 and 5. [AfCHPR Press Release]
The session will be held at the African Union’s headquarters in Addis Ababa, Ethiopia. The public is welcome to attend the hearings, which will take place at the Nelson Mandela Conference Hall. Each person wishing to attend must send his or her name to one of the following individuals before November 24: Mrs. Eliane Adote Berthe at Eliane.Egue@african-court.org, Mrs. Ingrid Kanyamuneza at Ingrid.Kanyamuenza@african-court.org, or Mrs. Netsanet Haile at email@example.com. [AfCHPR Press Release] Video of the hearings may be available on the African Court’s Livestream channel.
African Commission on Human and Peoples’ Rights v. Kenya
The case of African Commission on Human and Peoples’ Rights v. Kenya concerns an indigenous community’s ability to continue living on, and off of, their ancestral lands. In October 2009, the Kenyan government issued an eviction notice to the Ogiek people from their land in the Mau Forest. The Ogiek indigenous group is composed of approximately 20,000 members, and 15,000 members lived in the forest. The State determined that the forest constituted a “reserved water catchment zone,” and defended its actions as an attempt to protect the region’s “ecology, biodiversity, resources and economic activities.” See AfCHPR, African Commission on Human and Peoples’ Rights v. Kenya, App. No. 006/2012, Case Summary, paras. 1, 8.
In July 2012, the African Commission on Human and Peoples’ Rights submitted the case to the Court. See AfCHPR, African Commission on Human and Peoples’ Rights v. Kenya, App. No. 006/2012, Order of Provisional Measures, para. 1.
Arguments on the Merits
The applicant before the Court, the African Commission on Human and Peoples’ Rights, asserts that the eviction of the Ogiek people will “lead to the destruction of their means of survival, their livelihoods, culture, religion and identity.” See African Commission on Human and Peoples’ Rights v. Kenya, App. No. 006/2012, Case Summary, para. 4. The Commission alleges that the State failed to put measures in place to protect the rights set forth in the African Charter on Human and Peoples’ Rights, and also violated: the prohibition against discrimination, the right to life, the right to participate in cultural life, and the protection of morals and traditional values. See id. at para. 3.
The applicant is requesting the Court to order the State to: stop evicting the Ogiek from the forest; recognize the land as belonging to the Ogiek and to issue it with legal title; and compensate the Ogiek for the loss of “property, development, natural resources” and freedom to practice their religion and culture. See id. at para. 4. Furthermore, the applicant asks the Court to direct the State to “refrain from harassing, intimidating, or interfering with the community’s traditional livelihoods.” See id. at para. 4.
In response, the State has claimed it had put measures in place to protect indigenous rights related to land, including the “adoption of a national land policy which requires the establishment of a legal framework to secure the rights of minorities and indigenous peoples.” See id. The State asserts that it did not violate the right to life and to enjoyment of culture because these rights are guaranteed in the Kenyan Constitution. See id.
In November 2012, the Commission requested the Court to issue provisional measures in favor of the Ogiek when the State lifted a restriction on the sale of land within the forest. See AfCHPR, African Commission on Human and Peoples’ Rights v. Kenya, App. No. 006/2012, Order of Provisional Measures, para. 10. In March 2013, the Court ordered the State to reinstate the restriction and to refrain from acts that would “irreparably prejudice” the issues before the Court until the final determination of the case. See id.at para. 25.
Kenya raised a number of challenges to the African Court’s jurisdiction to hear the complaint. Among other arguments, the State asserted that the case is inadmissible because the author of the communication, an organization called the Center for Minority Rights Development (CEMIRIDE), lacks standing. See AfCHPR, African Commission on Human and Peoples’ Rights v. Kenya, Case Summary at para. 8. CEMIRIDE claims that it had standing to submit the complaint to the Commission in accordance with the Commission’s jurisprudence supporting the actio popularis doctrine, which “allows persons interested in the protections of human rights in African to seize the African Commission on behalf of persons who for one reason or the other, cannot do so on their own.” See id. at para. 10; ACommHPR, Spilg and Mack & DITSHWANELO (on behalf of Lehlohonolo Bernard Kobedi) v. Botswana, Communication No. 277/2003, 10th Extraordinary Session, 12 October 2013, para. 77. Moreover, the Commission argues that two of the complainant organizations are duly registered in Kenya and therefore eligible to submit communications to the Commission. See AfCHPR, African Commission on Human and Peoples’ Rights v. Kenya, Case Summary at para. 10.
The State raised the preliminary objection that the victims had not exhausted domestic remedies before bringing the case to the African Court, explaining that they could have applied for ex parte judicial review within Kenya’s legal system or pursued administrative relief before the Kenya National Commission on Human Rights. See id. at paras. 7, 8. In response, the Commission emphasized that the Ogieks had litigated their case in the domestic court for 15 years, arguing that the Court should find the proceedings to have been “unduly prolonged,” thereby exempting the applicants from the exhaustion of domestic remedies requirement. See id. at para. 9.
Kenya also objected to the case proceeding before the Court on the basis that there was a pending application before the Commission addressing the same issues. The State alleged that filing the same claim in the Court is contrary to the “principle of complementarity between the Commission and the Court.” See id. at para. 7. The applicants asserted that the application is no longer pending before the Commission because the Commission referred it to the Court pursuant to, inter alia, Rule 33(1)(a) of the Rules of Court. See id.
Thomas v. Tanzania
The case of Thomas v. Tanzania concerns alleged due process violations in the criminal prosecution of a Tanzanian man. In 1998, the Tanzanian trial court convicted Alex Thomas of armed robbery, and he is currently serving a 30-year sentence at Karanga Central Prison. In May 2009, the Tanzanian Court of Appeal upheld his conviction. In June 2009, Thomas applied to the African Court to review the appellate decision, claiming that the Tanzanian justice system was unduly delayed in considering his request for review. See ACommHPR, Thomas v. Tanzania, App. No. 005/2013, Case Summary, paras. 1–3.
Thomas is also alleging that his trial before the Tanzanian courts suffered from multiple deficiencies. He claims that the court lacked jurisdiction, because the alleged robbery was committed in Kenya. He argues that the prosecution did not prove his guilt beyond a reasonable doubt, in that the prosecution’s evidence was inconsistent regarding Thomas’ use of a gun and the ownership of the property that was allegedly stolen. Additionally, Thomas asserted that he was denied his right to be heard, and that he was not provided with defense counsel as required by the Tanzanian Constitution. See id. at para. 4.
Thomas is requesting the African Court to quash the Tanzanian trial and appellate courts’ decisions, and to make any order that it finds appropriate, including acquitting and freeing him. See id. at paras. 5–6.
African Court to hear Ogiek case against the Kenya government
Wednesday, November 26, 2014 - 00:00 -- BY LYDIA MATATA
The African Court on Human and People's Rights will on Thursday and Friday hear a case filed by the Ogiek community against the Kenyan government for consistent violations and denial of their land rights.
“This is the violation of the African Charter on Human and People’s Rights to which Kenya is a signatory,” the petition by one of Kenya's remaining forest dwellers reads.
In the petition, the Ogiek allege the government's violation of their rights to property, natural resources, development, religion and culture.
The case on indigenous peoples’ rights will be a first by the African Court in operation since 2006.
It was first lodged with the African Commission on Human and Peoples' Rights but was reportedly referred to the African court because of serious alleged human rights violations.
The case was filed by three organizations, Minority Rights Group International, the Ogiek People’s Development Programme and the Center for Minority Rights Development.