Thursday, July 6, 2017

A New Dawn: The African Court on Human and People’s Rights Historic Judgment on the Indigenous Peoples Rights

Logo Courtesy of African Court on Human and Peoples' Rights   
“The forest is what we call land”
James Sang, Ogiek community member
On 26th May 2017, the African Court on Human and Peoples Rights delivered a historic judgment in favour of the Ogiek, a forest dwelling community.[1] This came after a eight year long legal battle and decades of routinely being subjected to forced eviction, without consultation and compensation, from their ancestral lands by the Government of Kenya (GoK). At the heart of forced eviction was the alleged need to preserve Kenya’s largest closed-canopy forest ecosystem and a water catchment area,[2] spanning about 4000 hectares in five counties,[3] and which has been under threat from illegal settlement and illegal extraction of natural resources.[4]
Following the GoK’s decision in 2009 to evict people living in the Mau forest complex in order to protect the water catchment zone, the Minority Rights Group (MRG), Ogiek Peoples Development Programme (OPDP) and Centre for Minority Rights Development (CEMIRIDE), also the original complainants, on behalf of 30,000 Ogiek members, filled a suit against the Government of Kenya (GoK) at the African Commission of Human and Peoples Rights (“the Commission”) citing the far reaching implications the order had on the political, social and economic well-being of the Ogiek community. Along with it, they requested the commission to issue measures requiring the GoK to halt any land transactions in the Mau Forest Complex and to refrain from any act that would irreparably prejudice the application pending determination.  Subsequent repeated violation of these measures by the GoK led the Commission to transfer the case to the African Court on Human and People’s Rights in 2012 (the current application). The applicant further alleged violation of Article 1,2,4,8, 14, 17(2)(3), 22 and 23 of the Charter and prayed that the court order respondent to halt the eviction, recognize Ogieks historical land, and issue orders as to compensation for the loss suffered through the loss of property, natural resources and freedom to practice religion and culture.
Before addressing the substantive issues of the application, the court at the 28th Ordinary session issued an order of provisional measure on the ground that the respondent, through the Ministry of Land, issued a directive lifting the restriction imposed on all transactions for land measuring five acres or less within the Mau forest complex.[5]
Substantively, the court heard and dismissed objections raised by the GoK on its material and temporal jurisdiction to hear the application as well as the objection on admissibility of the application in as far as the Locus Standi of the of the original complainants, exhaustion of local legal remedies and the nature of the case is concerned. Further, the court addressed the alleged violations of rights provided for in the Charter. Most importantly, the violation of the right to life (Article 4), right to culture and the protection of traditional values (Article 17(2)(3), the right to practice religion (Article 8), the right to property (Article 14) and the right to development (Article 22). It also considered the question of remedy, which in whole included an order to halt the eviction of the Ogiek from East Mau complex, recognizing Ogiek’s historic land and order of payment of compensation.
In the end, the court determined that the Ogiek, having a clear historic attachment to the Mau Forest, are a distinct indigenous people. It also found that the Ogiek had property rights over the land they traditionally occupied and used, even though the colonial and Kenyan authorities had denied them a formal title. The court determined that the practice of religion was inextricably linked to land and any interference with access to land was an interference with this right. In this case, it noted that the Mau Forest is a spiritual home of the Ogiek and that the limitation imposed were unjustifiable. The court further considered the right to culture in a dual dimension: individual nature and the collective nature. It noted that this right was essential to the Ogiek’s identify and that the eviction for the preservation of the natural environment could not constitute a legitimate aim but was rather a measure that violated this right leaving the Ogiek community vulnerable and forcing them to assimilate. Finally, the court found that the GoK had not taken adequate legislative measures to implement the rights violated in the Charter. To this effect, the court ordered the GoK to take appropriate measures within a reasonable period to remedy all violations established. Finally, the court reserved its’ ruling on reparation and instead directed the issue to be dealt with in a different application by the applicant.
This judgment is a huge victory not only for the Ogiek community but also other Indigenous communities in general. Most importantly, by ruling that through a persistent denial of Ogiek land rights, their religious and associated cultural and hunter-gatherer practices were also violated, a strong message was sent to the GoK and other governments on the the need to respect the rights of the indigenous peoples and further, put measures for the realization of these rights. In this case, the court was generous enough to lay down the duty of the GoK to put measures for the implementation of the judgment.  However, the implementation of the orders/ judgment cannot be analyzed without addressing the government’s attitude during this case and in other similar presided cases.  In any event, the GoK has, time and again demonstrated a pattern of empty promises towards implementation of measures and orders made against them.
The Ogiek ought not to lose hope. They must push for the implementation of the court’s decision by lobbying the national government, maintaining a presence in Parliament and using other spaces to remind the GoK of its duty.
[1] ACPHR v GoK
[2] The Mau water catchment feeds into Lakes Victoria, Nakuru, Baringo, Turkana and Natron, and supports the ecosystems and livelihoods of millions of people.
[3] J Sang “Kenya: Ogiek in the Mau Forest” (2001) Forest Peoples Programme
[4] Mau Task Force 17-18. The forest is divided into seven blocs comprising South-West Mau (Tinet), East Mau, Ol’donyo Purro, Transmara, Maasai Mau, Western Mau and Southern Mau.
[5] Summary of fact 2 paragraph 5

Author: Rose Birgen


Unknown said...

Testimony on how i got my LOAN from ...

I'm Isabella Tyson from 1910 N Halsted St Unit 3, Chicago IL60614 USA,, i have been searching for a genuine loan company for the past few months and all i got was bunch of scams who made me to trust them and at the end of the day took my money without giving anything in return, all hope was lost i got confused and frustrated, i find it very difficult to feed my family and vowed never to have anything to do with loan companies on net and went to seek of assistance from a very good friend which i explained all my experience regarding online companies with and said he can help me that he knows of a Godsent and well known company called FUNDING CIRCLE PLC, he stated he just got a loan from them although i was still very unsure about this company due to my past experience but i decided to give it a try and did as i was directed by my friend and applied, i never believed but i tried and to my greatest surprise i received my loan in my bank account within 24 hours, i could not believe that i would stand on my feet financially again. I’m glad I took the risk and applied for the loan and today i'm thanking God that such loan companies still exist and promise to share the good news to people who are in need of financial assistance because the rate of scams on net is getting very serious and i don't want people to fall victim when we still have genuine and Godsent lenders.. You can contact this Godsent company using the information as stated and be a partaker of this great testimony.. Email: OR Call/Text +14067326622 thanks

Anonymous said...

Well Whattadya know, yet another great site to add to my reader!

Juvenile Court Hazlet

Subarna Akter said...

wonderful post, Thank you....

deportation lawyer in detroit

Subarna Akter said...

It is an excellent article which helps me a lot. Thanks for sharing the marvelous info.

best immigration lawyer

Unknown said...

Great !! Thank you for sharing this Article ..

SEO Agency Austin
Marketing Agency Austin

lymacsau said...

Thanks for sharing, nice post! Post really provice useful information!

Hương Lâm chuyên cung cấp máy photocopy và dịch vụ cho thuê máy photocopy giá rẻ, uy tín TP.HCM với dòng máy photocopy toshiba và dòng máy photocopy ricoh uy tín, giá rẻ.

Gilad Berman said...

Good Job, i am waiting for your next post keep on updating these kinds of knowledgeable things..

lwayer in atlanta
bankruptcy lawyer

Jason williams said...

Are you interested in any kinds of hacking services?
Feel free to contact TECHNECHHACKS.

For years now we’ve helped so many organizations and companies in hacking services.
TECHNECHHACKS is a team of certified hackers that has their own specialty and they are five star rated hackers.

We give out jobs to hackers (gurus only) to those willing to work, with or without a degree, to speed up the availability of time given to jobs!!

Thus an online binary decoding exam will be set for those who needs employment under the teams establishment.

we deal with the total functioning of sites like,

• SOCIAL MEDIA (Facebook, Twitter, Instagram, Snapchat, google hangout etc.)






Our special agents are five star rated agents that specializes in the following, and will specially be assigned to you for a special job well DONE.








Thus bewere of scammers because most persons are been scammed and they ended up getting all solutions to their cyber bullies and attacks by US.

I am Jason williams one of the leading hack agent.


And our WORK SUCCESS IS 100%!!!

We’re always available for you when you need help.

Contact or write us on:


Jason. W

2021©️All Right Reserved