I. Introduction

In its judgement on 23 June 2022, the African Court of Human and Peoples’ Rights (the African Court) ruled that the Kenyan government must pay reparations for evicting Indigenous Ogiek people from their ancestral lands in the Mau Forest.^[1] This landmark win for Indigenous Ogiek sets a precedent for other forcefully removed Indigenous people across Africa. Before diving into the significance of this judgement, an overview of the state of the law for the right to land contextualises the African Court’s decision.

II. The Right to Land

Many have drawn connections between the right to the land of Indigenous people and the right to life. Numerous cases from Africa support this notion. In the Democratic Republic of Congo, the population of the Batwa has halved in less than fifty years because its people cannot adapt to a lifestyle outside of their traditional forest-dwelling.^[2] In Kenya, the life expectancy of the Ogiek has likewise significantly decreased due to difficulties adapting to a new way of life outside of traditional forest-dwelling.^[3] In Tanzania, the Maasai “feel especially attached to the land”^[4] because “without it, they cannot survive, especially since they do not also have the skill necessary for survival outside the pastoral sector.”^[5]

According to human rights law instruments, the right to property encompasses land and land use. The Universal Declaration of Human Rights refers to the right to property, noting that “[e]veryone has the right to own property, alone as well as in association with others and no one shall be arbitrarily deprived of his or her property.”^[6] Article 14 of the African Charter on Human and Peoples’ Rights (the African Charter) includes the protection of the legitimate expectation to obtain and peacefully enjoy the property of an individual, a group, and a people.^[7] It also protects traditional custom and “land and other natural resources held under communal ownership” with imposed duties on the State to ensure the security of ownership to rural communities.^[8]  However, the protection of property is not absolute, and the State can give concessions in cases of public need or when it is in the general interest of the community.^[9]

While the Indigenous and Tribal Peoples Convention 169^[10] and the United Nations Declaration on the Rights of Indigenous Peoples recognize the indigenous right to land, the African Charter does not explicitly recognize it. Fortunately, though, the interpretation of other general rights in the African system helps deal with this lack of explicit indigenous rights. In recognizing the rights of Indigenous peoples, the collective rights to both wealth and resources in article 21^[11] of the African Charter and the right to development in article 22,^[12] as well as the right to property from article 14,^[13] are of utmost importance.

This overview illustrates that the protection of Indigenous peoples’ right to land goes beyond the protection of property. If the right to land of Indigenous people closely relates to the right to life, this right should be non-derogatory and unable to be suspended in a state of emergency. Unfortunately, this is not the case: some states actively challenge Indigenous rights to land and forcefully-remove peoples to gain exclusive land ownership.

III. African Commission on Human and Peoples’ Rights v. Republic of Kenya

Since British colonial domination, the Ogiek have been forcibly displaced from their native grounds. Today, the Kenyan government asserts that evictions prevent deforestation of the Mau Forest, the largest remaining indigenous forest in Kenya, and that the land is under its authority for conservation purposes. The Mau Forest has been the subject of a 13-year legal dispute between the Indigenous Ogiek people and the Kenyan government over its ownership. In 2009, the community filed a petition to the African Commission on Human and Peoples’ Rights following a 30-day eviction notice.

In 2017, the African Court determined that Kenya breached seven articles of the African Charter due to evictions, namely: Article 1, Obligations of Member States; Article 2, The Right to Non-Discrimination; Article 8, The Right to Religion; Article 14, The Right Property; Article 17(2) and (3), The Right to Education; Article 21, Natural Resources; and Article 22, The Right to Development.^[14] Finally, on 23 June 2022, the Court delivered its ruling on the issue of reparations.^[15]

The African Court unanimously rejected the arguments of the Kenyan government and, in response to its 2017 ruling, ordered the State to compensate the Ogiek community $849,256 in moral damages^[16] and $491,295 in material damages.^[17] The Court refused to accept that forest protection justified eviction of the Ogiek. Rather, the Court found that the degradation of the Mau Forest resulted from other factors, including incursions, allocation to others, and logging.

This decision instructs Kenya to give the Ogiek community title to their land in the Mau Forest and consult with them on future development projects. Kenya must also work with the Ogiek to develop land-sharing and access agreements. This ruling emphasizes that the Kenyan government must “undertake an exercise of delimitation, demarcation, and titling to protect the Ogiek’s right to property. Securing their right to property, especially land, creates a conducive context for guaranteeing their continued existence.”^[18]

Another significant milestone is the recognition of the Ogiek as an Indigenous people. The Court said that Kenya must take measures to guarantee the full recognition of the Ogiek as an Indigenous people of Kenya in an effective manner.^[19]

Although the Court requested a report from Kenya on the implementation of its orders within 12 months, executing the ruling will be challenging, given that the Court does not have direct enforcement power over the Kenyan government.

IV. Practical Significance of the Case

The reparation judgement solidifies the historic verdict of 2017, which upheld the rights of the Ogiek over their ancestral land in Mau Complex. Considering the government-lead conservation practices that harm Indigenous peoples, this ruling also serves as a precedent for other pending cases.

The Batwa in the Democratic Republic of the Congo, the Maasai in Tanzania, and the Endorois in Kenya are only a few examples of Indigenous communities that have brought cases to the African Commission. All these cases concern violent evictions of Indigenous peoples from their lands to create protected areas, a global practice known as fortress conservation.

Despite victory in this case, there are many challenges ahead. The Maasai, for instance, can no longer directly access the African Court since Tanzania withdrew from it. Also, the experience of the Endorois illustrates enforcement challenges: 12 years after the African Commission ruling, the Endorois assert that Kenya has failed to follow through on the core recommendations of the Commission, including the right to land, access for ceremony and animal grazing and financial damages. ^[20]

The Court ruling indicates how governments should act to make amends to Indigenous populations. The Court made it clear that the survival of Indigenous people depends on safeguarding their rights to land and natural resources. Therefore, the Kenyan government must follow this decision and consult with the Ogiek in good faith and through their designated representatives to restitute the land, implement the remaining verdict, and restore the Ogiek’s rights.^[21] Hopefully, this decision will provide a solid framework for analysing claims over Indigenous lands.

[1] The Matter of Afr. Comm’n on Hum. and Peoples’ Rts. v. Republic of Kenya, Application No. 006/2012, ¶ 64 (June 23, 2022), https://www.african-court.org/cpmt/storage/app/uploads/public/62b/aba/fd8/62babafd8d467689318212.pdf.

[2] Albert Kwokwo Barume, Land Rights of Indigenous Peoples in Africa, IWGIA (2010), https://www.iwgia.org/images/publications/0002_Land_Rights_of_Indigenous_Peoples_In_Africa.pdf.

[3] Id.

[4] Id. at 56.

[5] Id.

[6] Universal Declaration of Hum. Rights, GA Res 217A (III), UNGAOR, 3rd Sess, Supp No 13, UN Doc A/810 (1948) 17.

[7] Afr. Comm’n H.P.R., Principles and Guidelines on the Implementation of Economic, Social and Cultural Rights in the African Charter on Human and Peoples Rights, ¶ 53

(1986).

[8] Id. ¶ 54.

[9] Id. ¶ 55.

[10] International Lab. Org., Indigenous and Tribal Peoples Convention, 27 June 1989, C169.

[11] Organization of Afr. Unity, Afr. Charter on Hum. and Peoples’ Rts., 27 June 1981, CAB/LEG/67/3 rev. 5, 21 I.L.M. 58 (1982), art. 21.

[12] Id. art. 22.

[13] Id. art. 14.

[14] Organization of Afr. Unity, Afr. Charter on Hum. and Peoples’ Rts., 27 June 1981, CAB/LEG/67/3 rev. 5, 21 I.L.M. 58 (1982), art. 8, 14, 17, 21, 22.

[15] Afr. Comm’n on Hum. and Peoples’ Rts. v. Republic of Kenya, No. 006/2012, Decision, Afr. Comm’n H.P.R., ¶ 144-45 (May 26, 2017), https://www.escr-net.org/sites/default/files/caselaw/ogiek_case_full_judgment.pdf.

[16] Afr. Comm’n on Hum. and Peoples’ Rts. v. Republic of Kenya, No. 006/2012, Afr. Comm’n H.P.R., ¶ 93 (June 23, 2022), https://www.african-court.org/cpmt/storage/app/uploads/public/62b/aba/fd8/62babafd8d467689318212.pdf.

[17] Id. ¶ 77.

[18] Id.¶ 115.

[19] Id. ¶ 126.

[20] Joseph Lee, Indigenous Endorois Fight for Their Land and Rights at UN, Grist (May 4, 2022), https://grist.org/global-indigenous-affairs-desk/indigenous-endorois-of-kenya-fight-for-their-land-and-rights-at-un/>.

[21] Afr. Comm’n on Hum. and Peoples’ Rts. v. Republic of Kenya, No. 006/2012, Judgment on Reparations, Afr. Comm’n H.P.R.,  ¶ 144-45 (June 23, 2022), https://www.african-court.org/cpmt/storage/app/uploads/public/62b/aba/fd8/62babafd8d467689318212.pdf.

Cover photo: Doron, CC BY-SA 3.0 license.