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