Ogiek: The African Court of Human and Peoples’ Rights first decision on indigenous rights

This past Friday, 26 May 2017, the African Court of Human and Peoples’ Rights handed down its first judgement on the rights of indigenous peoples in the matter of African Commission of Human and Peoples’ Rights v The Republic of Kenya (the Ogiek case). The case concerns the Ogiek people, an indigenous community of about 20 000 people who live in the Mau Forest in the central Rift Valley in Kenya. In 2009, officials from the Kenyan Forest Service served an eviction notice on the community and other settlers requiring them to leave the forest within 30 days. The notice was issued on the grounds that the forest constitutes a reserve water catchment zone and that the land is state property. The Ogiek people argued that the decision to evict was taken without regard to the importance of the forest to the community and to their survival, and without any consultation with the community, in violation of the State’s obligations under the African Charter of Human and Peoples’ Rights.

Like the Endorois decision handed down by the African Commission of Human and Peoples’ Rights in 2009 (also a case about the eviction of a group by the Kenyan Forestry Service), this case turns on questions about what constitutes an indigenous group and whether Kenya’s alleged environmental concerns justify overriding obligations to these groups under the African Charter.

The Court found that Kenya had violated the Ogiek community’s rights under Article 14 (the right to property), Article 2 (the right to equality), Article 8 (the right to freedom of religion), Article 17(2) and (3) (the right to culture), Article 21 (the right to free disposal of wealth and natural resources), Article 22 (the right to economic, social and cultural development) and Article 1 (the State duty to take all legislative and other measures necessary to give effect to the Charter). The Court found no violation of Article 4 (the right to life). In this post I briefly consider some of these Articles and the Court’s findings.

The Right to Property – Article 14

The Court found that Kenya had violated the rights of the Ogiek under Article 14 of the African Charter. Article 14 secures the right to property but the Court referred to the ‘right to land’ in its reasoning, interpreting the right in light of the UN Declaration on the Rights of Indigenous Peoples. The Court found the Ogiek had occupied the land since time immemorial and that, as an indigenous community, the community was entitled to occupy its ancestral land. (A report on the Ogiek for the Forest Peoples Programme, documents a series of evictions and forced removals of the Ogiek from their land starting in 1911, and continuing after independence.)

Rights to land for indigenous communities, the Court found, did not necessarily mean rights to property (an approach that has been central to the Inter-American Court and Commission’s indigenous rights jurisprudence). Rather, the Court emphasised rights to possession and unhindered use of their territories.  Continue reading

Talking about a revolution

In 2012, David Boyd released a book titled “The Environmental Rights Revolution” (UBC Press) in which he argues, “from Argentina to the Philippines, something remarkable is happening … a new human right is blossoming…” But is a new human right blossoming? Can we claim, as Boyd does, that we are in the throes of an environmental rights revolution?

Boyd finds that 147 of the 193 member countries of the United Nations now include explicit references to environmental rights or responsibilities. Section 45 of the Spanish Constitution, for example, states “Everyone has the right to enjoy an environment suitable for the development of the person.” Section 24 of the South African Constitution states, “Everyone has a right to an environment that is not harmful to their health or well-being.” The Honduras constitution provides “The State shall maintain a satisfactory environment for the protection of everyone’s health.” Of the 92 constitutions that include substantive environmental rights, only 22 refer to an ecologically balanced environment. In his analysis of the words used to describe the environment right, Boyd finds a common phrase is “fit or adequate for human development or well-being”.

At the regional level, the African Charter includes in article 24 the right of all peoples to “a generally satisfactory environment favourable to their development.”  The San Salvador Protocol to the American Convention includes a right “to live in a healthy environment and to have access to basic public services” in article 11.1.  In Europe, the Aarhus Convention stipulates that its objective is “to contribute to the protection of the right of every person … to live in an environment adequate to his or her health and well-being.”  The Arab Charter on Human Rights also refers to the right “to a healthy environment”.  None of these texts include a right to the environment per se, but all secure a right to health or public services or due process or development in so far as these are impacted by the state of the environment.

What these texts reveal is that while there has been a proliferation of environmental rights provisions in both domestic and regional law, very few of these provisions include a right to the protection of the environment except in so far as it is necessary for securing health or development. Environmental rights, then, are primarily extended or particular rights to health or development. While this is an important and laudable evolution in human rights law, possibly one that is revolutionary, this is not an environmental revolution.

You might be thinking “So what?” After all, a human rights approach to environmental matters is likely one that centers around human needs, and rights to a healthy environment or sustainable development are good for the environment (certainly better than nothing, you might argue) even if environmental goods are obtained obliquely. Where, you might be wondering, is my revolutionary spirit?  Continue reading

Unleashing a wave

Two weeks ago the Greek Defence Minister, Panos Kammenos, threatened to unleash a “wave of millions of economic migrants” and “jihadists of the Islamic State” on Europe if it failed to respond to Greece’s demands for continued bailout payments. The Telegraph reported, “EU officials have been so concerned by the Greek threats that the European Commission last week sought “assurances… that no measures to open up detention centres are being taken”.

While the Greek government has rushed to distance itself from Kammenos’ claims and to clarify that it has no policy of releasing migrants from the detention centres, one can’t help but feeling that both Greece and the concerned EU officials have missed the point. This small fracas over the Greek bailout reveals what is already beyond dispute – behind the EU’s policies on migration lies a deep-seated disdain for those being held in appalling conditions in Greece’s detention centres.

In a wave of highly publicised cases (culminating in a Grand Chamber decision in 2011), the European Court of Human Rights (ECHR) found that the conditions of detention in Greece’s immigrant centres violated the anti-torture provision in Article 3 of the European Convention of Human Rights. In the Case of M.S.S v Belgium and Greece, the Grand Chamber of the ECHR found that Greece engaged in a systematic practice of detaining asylum-seekers in holding facilities defined by “overcrowding, dirt, lack of space, lack of ventilation, little or no possibility of taking a walk, no place to relax, insufficient mattresses, dirty mattresses, no free access to toilets, inadequate sanitary facilities, no privacy, limited access to care.” The Court laboriously describes reports of human rights organisations that detail the horrors of the detention centres – the refusal of guards to allow immigrants to leave cells to use the toilet or to drink fresh water, extraordinary conditions of over-crowding that made it impossible for people to lie down to sleep at night, and the verbal and physical violence migrants suffered at the hands of immigration officials.  The Court found cases of people being refused access to medication and medical attention. In the Case of M.S.S, the Grand Chamber found that “the feeling of arbitrariness and the feeling of inferiority and anxiety often associated with it, as well as the profound effect such conditions of detention indubitably have on a person’s dignity, constitute degrading treatment contrary to Article 3 of the Convention. In addition, the applicant’s distress was accentuated by the vulnerability inherent in his situation as an asylum-seeker.” Continue reading