African Commission of Human and Peoples’ Rights vs Republic of Kenya
On July 12th, 2012, the African Commission on Human and Peoples’ Rights (the Applicant or the Commission) filed before the African Court of Human and Peoples’ Rights (the ACHPR or the the Court) an application instituting proceedings against the Republic of Kenya for alleged violations of the African Charter on Human and Peoples’ Rights (the Charter) in its articles 1, 2, 4, 14, 17, 21 and 22.
The Commission states it has received a complaint against Kenya from the Ogiek community, an ethnic group living mainly in the Mau forest complex, which covers an area of nearly 400,000 hectares. This territory is the source of their religious identity and allows them to feed themselves. The Kenyan government wanted to evict the Ogiek in order to transform the area.
The Commission accompanied its application with a request for the indication of provisional measures to halt the eviction of the Ogiek, recognise their right to their ancestral lands, issue them with a valid title deed and pay compensation for the damage suffered.
The Court first ensured that it had prima facie jurisdiction to hear the case. In addition, it concluded that there is a situation of extreme gravity and urgency and a risk of irreparable damage to the Ogiek and the Mau Forest. Therefore, and without prejudice to the merits of the case, the Court ordered Kenya to halt the process of evicting the inhabitants and to suspend any land transactions in the complex.
The Court ruled on the merits of the case in its judgment of May 26th, 2017. As a preliminary point, Kenya raised objections regarding the lack of jurisdiction of the Court and inadmissibility of the application. After examining the pleas submitted, the ACHPR concluded that the case was admissible and declaredit could lawfully hear the case. It then turned to its merits :
- The Court first considered whether the Ogiek constituted an indigenous population, which the Kenyan State disputes arguing that it was rather a mixture of several ethnic communities, living today like all the other citizens. In its analysis, the Court first sought to establish a list of criteria for characterizing an Aboriginal population. It concluded that the occupation and exploitation of a specific territory over time, the voluntary perpetuation of cultural distinctiveness, social organization, self-identification, recognition by others and an experience of subjugation, dispossession, exclusion or discrimination are the criteria to be taken into account. Therefore, the Court recognizes the Ogiek as an autonomous population, who deserve special protection given their vulnerability.
- With regard to the alleged violation of the right to ownership of a land (Article 14 of the Charter), the Commission asserts that the non-recognition of the status of indigenous community deprives the Ogiek of their rights to the land and of all the benefits they could derive from them. Kenya, for its part, says the Ogiek are not the only community claiming rights to the state-owned Mau Forest. In the light of the evidence presented, the Court considers that the Ogiek have the right to occupy, use and enjoy their ancestral lands. Moreover, the public utility reasoning advanced by the Kenyan government to expel them is neither necessary nor proportionate to the aim pursued. The respondent State therefore violated Article 14 of the Charter.
- With regard to the alleged violation of the right to non-discrimination (Article 2 of the Charter), the Commission submits, inter alia, that the Ogiek are treated differently from other indigenous communities in the country, which Kenya categorically denies. The Court found that the respondent granted tribal status to groups similar to the Ogiek, thereby violating the principle of non-discrimination enshrined in section 2 of the Charter.
- With regard to the alleged violation of the right to life (Article 4 of the Charter), the Commission claims that the expulsion of the Ogiek from their ancestral lands has drastic repercussions on their survival in so far as the Mau forest provided them with shelter, food and medicinal plants. To confine them to a foreign land is to endanger their existence. The defendant argues that the forest complex is important for the whole country and that it has to benefit all citizens. The Court considered that the right to life is a right vested in an individual regardless of the group to which he belongs. Moreover, the mere fact of exclusion and deprivation of other social rights does not necessarily give rise to a violation of the right to life within the meaning of the Charter. Having failed to demonstrate to what extent the change in living conditions was directly responsible for the possible deaths of members of the community, the Applicant has not established that there was a violation of the right to life.
- With regard to the alleged violation of the freedom of conscience and the free practice of religion (Article 8 of the Charter), the Commission argues that the belief system and religious practices of the Ogiek are closely linked to the Mau Forest. Restricting their access to certain areas of the complex would then interfere with their right to the freedom of conscience. In its defence, Kenya asserts that the Ogiek have massively converted to Christianity, on the one hand, rendering the Commission’s argument ineffective and that, on the other hand, their ancestral religious practices constitute a threat to public order. The Court notes that the Ogiek community must pay an annual fee to access the forest even though its religious sites are in the Mau complex, which is their spiritual home.This constitutes an infringement of freedom of religious practice which is not proportionate to the objective of protecting public order. Kenya has therefore violated Article 8 of the Charter.
- With regard to the alleged violation of the right to have one’s own culture (Article 17 of the Charter), the Commission asserts that the eviction from the Mau Forest restricts the Ogiek’s access to their cultural sites. Kenya, for its part, argues that the government must balance the respect for the environment against the practices of different communities. In addition, the Ogiek tribe has evolved and no longer behaves like a hunter group but like any other Kenyan citizen. The Court recognized the violation of the community’s right to its own culture and did not find that the arguments put forward by the respondent were sufficient to justify the violation of article17 of the Charter.
- With regards to the alleged violations of the right to the free use of their resources (Article 21 of the Charter) and the right to development (Article 22 of the Charter), the Court considers that it is apparent from the previous conclusions that those rights have in fact been infringed upon and deferred the issue of reparations to a later judgment.
Following this judgment, two requests were filed by Kenyan citizens before the Court for a possible intervention in the proceedings. However, those requests were denied in so far as the Court considered, on the one hand, that there was no mechanism allowing individuals (only States) to intervene in the course of the proceedings and that, on the other hand, these requets had been sent almost 2 years after the judgment was issued and almost 6 years after the inital application was filed without any explanation having been provided to justify this delay. Therefore, the African Court rejected the requests submitted.
Some applicants tried, without success, to have the order of July 4th, 2019 reviewed.
On the issue of reparations, the Court awarded 157,850,000 Tanzanian Shillings for all material damage suffered, ordered the Kenyan state to issue community land title to the Ogiek’s ancestral lands, and worked with tribal representatives to manage the land and resources.
This summary is provided for informational purposes only, does not involve the responsibility of Dome and should in no way be used as a substitute for a careful reading of the judgment and order of the case.