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| 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. 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, spanning about 4000
hectares in five counties, and which has been under
threat from illegal settlement and illegal extraction of natural resources.
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.
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.
