Kenya’s Decision to Evict the Ogiek Community from the Mau Forest
June 22, 2017
Kenya’s Decision to Evict the Ogiek Community from the Mau Forest was in Violation of its Rights as an Indigenous Community that it ought to have Protected and Effected as under the African Charter on Human and Peoples’ Rights.
African Commission on Human and Peoples’ Rights v Republic of Kenya
African Court on Human and Peoples’ Rights
Application No. 006/2012
Ore S, President, Niyungeko G, Ramadhani A.S.L., Tambala D, Thompson E.N., Guisse El H., Achour R.B., Bossa S.B., Matusse A.V.:JJ
May 26, 2017
Reported by Linda Awuor & Faith Wanjiku
International Law- law of treaty-African Charter on Human and Peoples’ Rights-human rights- indigenous community-right to communal ownership of land- whether failure of the Respondent to recognise the Ogieks as an indigenous community denied them the right to communal ownership of land under article 14 of the African (Banjul) Charter on Human and Peoples’ Rights (Charter) – African (Banjul) Charter on Human and Peoples’ Rights, 1981, article 14
International Law- law of treaty-African Charter on Human and Peoples’ Rights -human Rights- indigenous community-right to non-discrimination- whether the differential treatment of the Ogieks in relation to the lack of respect for their rights as protected under the Charter constituted unlawful discrimination contrary to article 2 of the Charter- African (Banjul) Charter on Human and Peoples’ Rights, 1981, article 2
International Law- law of treaty-African Charter on Human and Peoples’ Rights-human Rights- indigenous community-right to life- whether the Ogieks’ forced eviction and the alleged lack of decent survival imperiled their right to life under article 4 of the Charter- African (Banjul) Charter on Human and Peoples’ Rights, 1981, article 4
International Law- law of treaty-African Charter on Human and Peoples’ Rights- human Rights-indigenous community- right to free practice of religion-whether the Respondent’s failure to demarcate and protect the religious sites of the Ogieks violated the right to free practice of religion under article 8 of the Charter- African (Banjul) Charter on Human and Peoples’ Rights, article 8
International Law- law of treaty-African Charter on Human and Peoples’ Rights -human Rights-indigenous community-cultural rights- whether, through restrictions on access to the Mau forest which hosted the Ogieks’ cultural sites their cultural rights had been violated by the Respondent contrary to articles 17 (2) and (3) of the Charter-African (Banjul) Charter on Human and Peoples’ Rights, 1981, article 17 (2) & (3)
International Law- law of treaty-African Charter on Human and Peoples’ Rights-human Rights- indigenous community-right to freely dispose wealth and natural resources- whether the Respondent had violated the rights of the Ogieks to freely dispose of their wealth and natural resources under article 21 of the Charter by denying them access to the vital resources and by granting logging concessions on their ancestral land without their prior consent and a share of the benefits therein-African (Banjul) Charter on Human and Peoples’ Rights, 1981, article 21
International Law- law of treaty-African Charter on Human and Peoples’ Rights- human Rights- indigenous community- right to economic, social and cultural development-whether the Respondent violated the Ogieks’ right to development under article 22 of the Charter by evicting them from their ancestral land in the Mau Forest and by failing to consult with or seek their consent in relation to the development of their shared cultural, economic and social life-African (Banjul) Charter on Human and Peoples’ Rights, 1981, article 22
International Law- law of treaty-African Charter on Human and Peoples’ Rights- human Rights- indigenous community-recognition of rights, duties and freedoms by states-whether the respondent failed in its duty to take all legislative and other measures necessary to give effect to the rights and freedoms guaranteed in article 1 of the Charter-African (Banjul) Charter on Human and Peoples’ Rights, 1981, article 1
Jurisdiction- jurisdiction of the African Court on Human and Peoples’ Rights-material and personal jurisdiction-whether the Court had jurisdiction to hear the application under rule 26 of its Rules of Court (Rules) and articles 3 (1) and 5 (1) of the Protocol to the African Charter on Human and Peoples’ Rights on the Establishment of an African Court on Human and Peoples’ Rights, 1998 (Protocol) – Protocol to the African Charter on Human and Peoples’ Rights on the Establishment of an African Court on Human and Peoples’ Rights, 1998,articles 3 (1) and 5 (1);Rules of Court,2010, rule 26
The Application related to the Ogiek Community of the Mau Forest, brought to the Court on their behalf by the African Commission on Human and Peoples’ Rights (Commission). The Applicant alleged that the Ogieks were an indigenous minority ethnic group in Kenya comprising about 20,000 members, about 15,000 of whom inhabited the greater Mau Forest Complex, a land mass of about 400,000 hectares straddling about seven administrative districts in the Respondent’s territory. According to the Applicant, in October 2009, through the Kenya Forestry Service, the Respondent issued a 30 day eviction notice to the Ogieks and other settlers of the Mau Forest, demanding that they leave the forest.
The Applicant stated that the eviction notice was issued on the grounds that the forest constituted a reserved water catchment zone, and was in any event part of government land under Section 4 of the Government Land Act (Repealed). The Applicant stated further that the Forestry Service’s action failed to take into account the importance of the Mau Forest for the survival of the Ogieks, it would have far reaching implications on the political, social and economic and that the latter were not involved in the decision leading to their eviction. The Applicant contended that the Ogieks had been continually subjected to several eviction measures since the colonial period, which continued after the independence of the Respondent. According to the Applicant, the October 2009 eviction notice was a perpetuation of the historical injustices suffered by the Ogieks.
The Applicant further averred that the Ogieks had consistently raised objections to those evictions with local and national administrations, taskforces and commissions and had instituted judicial proceedings, to no avail.
- Whether the Ogieks constituted an indigenous population as was defined by international instruments such as work of the Commission through its Working Group on Indigenous Populations/Communities and the United Nations General Assembly Declaration, 2007 (UN Declaration) on the Rights of Indigenous Peoples.
- Whether failure of the Respondent to recognise the Ogieks as an indigenous community denied them the right to communal ownership of land under article14 of the Charter.
- Whether the differential treatment of the Ogieks in relation to the lack of respect for their property rights, religious and cultural rights , and right to life, natural resources and development under the relevant laws, constituted unlawful discrimination contrary to article 2 of the Charter.
- Whether the Ogieks’ forced eviction and the alleged lack of decent survival imperiled their right to life under article 4 of the Charter.
- Whether the Respondent’s failure to demarcate and protect the religious sites of the Ogieks violated the right to free practice of religion under article 8 of the Charter.
- Whether, through restrictions on access to the Mau forest which hosted the Ogieks’ cultural sites their cultural rights had been violated by the Respondent contrary to articles 17 (2) and (3) of the Charter.
- Whether the Respondent had violated the rights of the Ogieks to freely dispose of their wealth and natural resources under article 21 of the Charter by denying them access to the vital resources and by granting logging concessions on their ancestral land without their prior consent and a share of the benefits therein.
- Whether the Respondent violated the Ogieks’ right to development under article 22 of the Charter by evicting them from their ancestral land in the Mau Forest and by failing to consult with or seek their consent in relation to the development of their shared cultural, economic and social life.
- Whether the respondent failed in its duty to take all legislative and other measures necessary to give effect to the rights and freedoms guaranteed in article 1 of the Charter.
- Whether the Court had jurisdiction to hear the application under rule 26 of its Rules and articles 3 (1) and 5 (1) of the Protocol.
- Whether the Application before the Court could be held as pending contrary to article 5 (1) of the Protocol and rule 118 of the Rules of Procedure of the African Commission on Human and peoples’ Rights, 2010 (Rules of Procedure)on seizure of the Court .
- Whether the Applicant was the right party to bring the Application before the Court under article 5 (1) of the Protocol.
- Whether the Ogiek community had exhausted local remedies before filing of the Application before the Court as provided by article 56 (5) of the Charter and rule 40(5) of the Rules of Court, 2010 (Rules).
Relevant Provisions of the Law
African Charter (Banjul) on Human and Peoples’ Rights, 1981
The Member States of the Organization of African Unity parties to the present Charter shall recognize the rights, duties and freedoms enshrined in this Chapter and shall undertake to adopt legislative or other measures to give effect to them.
Every individual shall be entitled to the enjoyment of the rights and freedoms recognized and guaranteed in the present Charter without distinction of any kind such as race, ethnic group, color, sex, language, religion, political or any other opinion, national and social origin, fortune, birth or other status.
Human beings are inviolable. Every human being shall be entitled to respect for his life and the integrity of his person. No one may be arbitrarily deprived of this right.
Freedom of conscience, the profession and free practice of religion shall be guaranteed. No one may, subject to law and order, be submitted to measures restricting the exercise of these freedoms.
The right to property shall be guaranteed. It may only be encroached upon in the interest of public need or in the general interest of the community and in accordance with the provisions of appropriate laws.
Article 17 (2) & (3)
2) Every individual may freely, take part in the cultural life of his community.
3) The promotion and protection of morals and traditional values recognized by the community shall be the duty of the State.
All peoples shall freely dispose of their wealth and natural resources. This right shall be exercised in the exclusive interest of the people. In no case shall a people be deprived of it.
All peoples shall have the right to their economic, social and cultural development with due regard to their freedom and identity and in the equal enjoyment of the common heritage of mankind.
Protocol to the African Charter on Human and Peoples’ Rights on the Establishment of an African Court on Human and Peoples’ Rights, 1998
Article 3 (1)-Jurisdiction
The jurisdiction of the Court shall extend to all cases and disputes submitted to it concerning the interpretation and application of the Charter, this Protocol and any other relevant Human Rights instrument ratified by the States concerned.
Article 5 (1) – Access to the Court
1. The following are entitled to submit cases to the Court
a. The Commission;
- Article 3 (1) of the Protocol and rule 26 (1) (a) of the Court’s Rules governed its material jurisdiction regardless of whether an application was filed by individuals, the African Commission on Human and Peoples’ Rights or States. Material jurisdiction extended to all cases and disputes submitted to the Court concerning the interpretation and application of the Charter, its Protocol and any other relevant human rights instrument ratified by the States concerned. The Applicant alleged the violation of several rights and freedoms guaranteed under the Charter and other international human rights instruments ratified by the Respondent, especially, theInternational Covenant on Civil and Political Rights (ICCPR) and the International Covenant on Economic, Social and Cultural Rights (ICESR). The Application satisfied the requirements of article 3(1) of the Protocol. Where the Commission filed a case before the Court pursuant to article 5 (1) (a) of the Protocol, article 3 (1) of the same provided no additional requirements to be fulfilled before the Court could exercise its jurisdiction.
- Personal jurisdiction of the Court was governed by article 5(1) of the Protocol which listed the entities, including the Applicant, entitled to submit cases before it. By virtue of that provision, the Court had personal jurisdiction with respect to the Application. The Respondent was a State Party to the Charter and to the Protocol. The Court found that it had personal jurisdiction over the Respondent.
- The relevant dates concerning the Court’s temporal jurisdiction were the dates when the Respondent became a party to the Charter and the Protocol, as well as, where applicable, the date of deposit of the declaration accepting the jurisdiction of the Court to receive applications from individuals and NGOs, with respect to the Respondent. The Respondent became a Party to the Charter on February 10, 1992 and a party to the Protocol on February 4, 2004. Though the evictions by the Respondent leading to the alleged violations began before the aforementioned dates, those evictions were continuing and in particular, the threats of eviction issued in 2005 and the notice to vacate the South Western Mau Forest Reserve issued on October 26, 2009 by the Director of Kenya Forestry Service. The Respondent’s alleged violations of its international obligations under the Charter were continuing, and as such, the matter fell within the temporal jurisdiction of the Court.
- The Applicant in the present matter was the Commission, which seised the Court in conformity with article 5(1) of the Protocol and 118 of the Rules of Procedure. Having seised the Court, the Commission had decided not to examine the matter itself. That signified in effect that the matter was no longer pending before the Commission, having been brought first before the Commission and then by the Commission as the Applicant before the Court. There was therefore no parallel procedure before the Commission on the one hand and the Court on the other. The Respondent’s objection to the admissibility on the grounds that the matter was pending before the Commission was thus dismissed.
- Pursuant to article 5(1) (a) of the Protocol, the Commission was the legal entity recognised before the Court as an applicant and was entitled to bring the Application. Since the Commission, rather than the original complainants before the Commission, was the Applicant before the Court, as required by rule 40 of the Rules, the Respondent needed not concern itself with the identity of the original complainants before the Commission in determining the admissibility of the Application. The Respondent’s objection on that point lacked merit and was dismissed.
- Any application filed before the Court had to comply with the requirement of exhaustion of local remedies. The rule of exhaustion of domestic remedies reinforced and maintained the primacy of the domestic system in the protection of human rights vis-avis the Court. Article 56 (5) of the Charter and rule 40(5) of the Rules required that for local remedies to be exhausted, they had to be available and not be unduly prolonged. The Applicant had provided evidence that members of the Ogiek community had litigated several cases before the national courts of the Respondent, some had been concluded against the Ogiek and some were still pending. The Respondent could thus reasonably be considered to have had the opportunity to have addressed the matter before it was brought before the Court.The remedy the Respondent was requesting the Applicant to exhaust that was, procedures before the National Human Rights Commission, was not judicial.
- The rules of admissibility applied by the Commission and the Court were substantially similar, and the admissibility procedures with respect to an application filed before the Commission and the Court were distinct and could not be conflated. Admissibility and other procedures relating to a complaint before the Commission were not necessarily relevant in determining the admissibility of an application before the Court. The Court could decide on the admissibility of an application before it, only after having heard from the parties.
- Different reports and submissions by the parties filed before the Court revealed that the Ogieks had priority in time, with respect to the occupation and use of the Mau Forest. Those reports affirmed the Applicant’s assertion that the Mau Forest was the Ogieks’ ancestral home. The most salient feature of most indigenous populations was their strong attachment with nature, particularly, land and the natural environment. Their survival in a particular way depended on unhindered access to and use of their traditional land and the natural resources thereon. The Ogieks, as a hunter-gatherer community, had for centuries depended on the Mau Forest for their residence and as a source of their livelihood.
- The Ogieks also exhibited a voluntary perpetuation of cultural distinctiveness, which included aspects of language, social organisation, religious, cultural and spiritual values, modes of production, laws and institutions through self-identification and recognition by other groups and by State authorities, as a distinct group. Despite the fact that the Ogieks were divided into clans made up of patrilineal lineages each with its own name and area of habitation, they had their own language, albeit currently spoken by very few and more importantly, social norms and forms of subsistence, which made them distinct from other neighbouring tribes. They were also identified by those neighbouring tribes, such as the Maasai, Kipsigis and Nandi, with whom they had had regular interaction, as distinct neighbours and as a distinct group.
- Indigenous populations had been defined by the African Commission on Human and Peoples’ Rights through its Working Group on Indigenous Populations/Communities in the following criteria to identify them:
- A special attachment to and use of their traditional land whereby their ancestral land and territory have a fundamental importance for their collective physical and cultural survival as peoples; and
- A state of subjugation, marginalisation, dispossession ,exclusion, or discrimination because these peoples have different cultures, ways of life or mode of production than the national hegemonic and dominant model.
- Article 26 of the UN Declaration on the Rights of Indigenous Peoples provided that indigenous peoples had the right to own, use, develop and control the lands, territories and resources that they possessed by reason of traditional ownership or other traditional occupation or use, as well as those which they had otherwise acquired. Without excluding the right to property in the traditional sense, the provision placed greater emphasis on the rights of possession, occupation, use/utilization of land. Those criteria generally reflected the current normative standards to have identified indigenous populations in international law. The Court deemed it appropriate, by virtue of articles 60 and 61 of the Charter, which allowed it to draw inspiration from other human rights instruments to have applied those criteria to the Application.
- The Ogieks had suffered from continued subjugation, and marginalisation. Their suffering as a result of evictions from their ancestral lands and forced assimilation and the very lack of recognition of their status as a tribe or indigenous population attested to the persistent marginalisation that the Ogieks had experienced for decades. The Court recognised the Ogieks as an indigenous population that was part of the Kenyan people having a particular status and deserving special protection deriving from their vulnerability. The Respondent had therefore violated their rights to land.
- The Ogiek’s request for recognition as a tribe went back to the colonial period, where their request was rejected by the then Kenya Land Commission in 1933, asserting that they were a savage and barbaric people who deserved no tribal status and consequently, the Commission proposed that they become members of and be absorbed into the tribe in which they had the most affinity. The denial of their request for recognition as a tribe also denied them access to their own land as, at the time, only those who had tribal status were given land as special reserves or communal reserves. That had been the case since independence and was still continuing.In contrast, other ethnic groups such as the Maasai, had been recognised as tribes and consequently, had been able to enjoy all related rights derived from such recognition, thus proving differential treatment amounted to distinction based on ethnicity and/ or other status.
- The Constitution of Kenya, 2010 in article 56 recognised and accorded special protection to indigenous populations as part of marginalised community and the Ogieks could theoretically fit into that category and benefit from the protection of such constitutional safeguards. That did not diminish the responsibility of the Respondent with respect to the violations of the rights of the Ogieks not to be discriminated against between the time the Respondent became a Party to the Charter and when the Respondent’s Constitutionof Kenya, 2010 was enacted. The prohibition of discrimination could not have been fully guaranteed with the enactment of laws which condemned discrimination; the right could only have been effective when it was actually respected. The persisting eviction of the Ogieks, the failure of the authorities of the Respondent to stop such evictions and to comply with the decisions of the national courts demonstrated that the Constitution of Kenya, 2010 and the institutions which the Respondent had set up to remedy past or on-going injustices were not fully effective.
- The right to life under article 4 of the Charter was a right to be enjoyed by an individual irrespective of the group to which he or she belonged. The Court also understood that the violation of economic, social and cultural rights (including through forced evictions) could generally have engendered conditions unfavorable to a decent life. The sole fact of eviction and deprivation of economic, social and cultural rights could not have necessarily resulted in the violation of the right to life under article 4 of the Charter. There was no doubt that the Ogieks eviction had adversely affected their decent existence in the forest. According to the Applicant, some members of the Ogiek population died at different times, due to lack of basic necessities such as food, water, shelter, medicine, exposure to the elements, and diseases, subsequent to their forced evictions. The Applicant however had not established the causal connection between the evictions of the Ogieks by the Respondent and the deaths alleged to have occurred as a result. The Applicant had not adduced evidence to that effect.
- Article 8 of the Charter on the exercise of freedom of religion however allowed restrictions on the exercise of freedom of religion in the interest of maintaining law and order. Though the Respondent could have interfered with the religious practices of the Ogieks to protect public health and maintain law and order, those restrictions had to be examined with regard to their necessity and reasonableness. Rather than evicting the Ogieks from the Mau Forest, thereby restricting their right to practice their religion, there were other less onerous measures that the Respondent could have put in place that would have ensured their continued enjoyment of that right while ensuring maintenance of law and order and public health. Those measures included undertaking sensitisation campaigns to the Ogieks on the requirement to bury their dead in accordance with the requirements of the Public Health Act, Chapter 242 Laws of Kenya and collaborating towards maintaining the religious sites and waiving the fees to be paid for the Ogieks to access their religious sites.
- Some members of the Ogieks might have been converted to Christianity, but the evidence before the Court showed that they still practiced their traditional religious rites. The alleged transformation in the way of life of the Ogieks and their manner of worship could not have been said to have entirely eliminated their traditional spiritual values and rituals. Given the link between indigenous populations and their land for purposes of practicing their religion, the eviction of the Ogieks from the Mau Forest rendered it impossible for the community to continue its religious practices and was an unjustifiable interference with the freedom of religion of the Ogieks.
- The UN Declaration on Indigenous Peoples stated that indigenous peoples and individuals had the right to not be subjected to forced assimilation or destruction of their culture and States would provide effective mechanisms to prevent any action that deprived them of their integrity as distinct peoples, or of their cultural values or ethnic identities. The UN Committee on Economic, SociaI and Cultural Rights, in its General Comment on article 15 (1)(a) also observed that the strong communal dimension of indigenous peoples’ cultural life was indispensable to their existence, well-being and full development, and included the right to the lands, territories and resources which they had traditionally owned, occupied, used or acquired.
- The mere assertion by a State Party of the existence of a common interest warranting interference with the right to culture was not sufficient to allow the restriction of the right or sweep away the essence of the right in its entirety. Instead, in the circumstances of each case, the State Party had to substantiate that its interference was indeed genuinely prompted by the need to protect such common interest. In addition, the Court had held that any interference with the rights and freedoms guaranteed in the Charter should have been necessary and proportional to the legitimate interest sought to be attained by such interference. The purported reason of preserving the natural environment could not have constituted a legitimate justification for the Respondent’s interference with the Ogieks’ exercise of their cultural rights.
- The enjoyment of the rights unquestionably recognised for the constituent peoples of the population of a given State could be extended to have included sub-state ethnic groups and communities that were part of that population; provided such groups or communities did not call into question the sovereignty and territorial integrity of the State without the latter’s consent. The Court had already recognised for the Ogieks a number of rights to their ancestral land, namely, the right to use (usus) and the right to enjoy the produce of the land (fructus), which presupposed the right of access to and occupation of the land. In so far as those rights had been violated by the Respondent, the Ogieks had been deprived of the right to enjoy and freely dispose of the abundance of food produced by their ancestral lands.
- The Ogieks had been continuously evicted from the Mau Forest by the Respondent, without being effectively consulted. The evictions had adversely impacted on their economic, social and cultural development. They had also not been actively involved in developing and determining health, housing and other economic and social programmes affecting them. The Respondent had therefore interfered with and violated the right to economic, cultural and social development of the Ogiek community.
- By enacting the Constitution of Kenya, 2010, the Forest Conservation and Management Act No. 34 of 2016 and the Community Land Act, No. 27 of 2016, the Respondent had taken some legislative measures to ensure the enjoyment of rights and freedoms protected under the Charter. However, those laws were enacted relatively recently. The Respondent had failed to recognise the Ogieks, like other similar groups, as a distinct tribe, leading to denial of access to their land in the Mau Forest and the consequential violation of their rights under articles 2, 8, 14, 17(2) and (3), 21 and 22. In addition to those legislative lacunae, the Respondent had not demonstrated that it had taken other measures to give effect to those rights and was therefore in violation of article 1 of the Charter.
a) The Respondent was declared to have violated articles 1, 2, 8, 14, 17 (2) and (3), 21 and 22 of the Charter.
b) The Respondent had not violated article 4 of the Charter.
c) The Respondent was ordered to take all appropriate measures within a reasonable time frame to remedy all the violations established and to inform the Court of the measures taken within six (6) months from the date of the Judgment.
d) The Court reserved its ruling on reparations.
e) The Applicant was requested to file submissions on Reparations within 60 days from the date of the judgment and thereafter, the Respondent would file its Response thereto within 60 days of receipt of the Applicant’s submissions on reparations and costs.