MRG welcomes the pathbreaking judgment of the African Court of Human and Peoples Rights (ACHPR) in the matter concerning the Ogiek quest to return to the Mau Forest, their ancestral home. After a 13-year legal struggle, the judgment is a beacon of hope for the community, indigenous peoples across Africa and all those who are serious about mitigating climate change.
The Court had already delivered its positive judgment favouring the community in May 2017, finding seven human rights violations perpetrated against them. That heralded judgment, a first of its kind for the continent, should have yielded significant change. But rather than implementing it, the Kenyan government took a series of actions that put the community into further jeopardy. Acting on the grounds that the Forest was of significant ecological importance, the government evicted the Ogiek from Mau Forest to ostensibly protect it better. The delay in the delivery of the reparations phase created legal uncertainties.
Today's judgment puts such processes back into perspective and strikes significant new ground. Key highlights include:
- The Bench unanimously dismissed all the arguments offered by the Kenyan government suggesting it was implementing the earlier judgment.
- The Kenya government must pay compensation to the community of KES 57,850,000 in material damages and KES 100,000,000 in moral damages.
- The Kenyan government must take all necessary measures, in consultation with the Ogiek community and its representatives, to identify, delimit and grant collective land title to the community and, by law, assure them of unhindered use and enjoyment of their land.
- The Bench ordered the Kenyan government to recognize, respect, protect and consult the Ogiek in accordance with their traditions and customs, on all matters concerning development, conservation or investment on their lands.
- The establishment of a Community Development Fund within 12 months, in which all funds ordered as compensation in this case will be deposited.
This judgment should be heralded worldwide for what it signifies to a community that has been historically marginalized, then offered hope through winning their case in 2017, then undermined through failure of that victory to yield meaningful change. Marshalled effectively by the Ogiek Peoples Development Program, keeping faith in the process was difficult when the threat of bulldozers arriving at short notice to evict the community was a real prospect.
'This is a sigh of relief for the Ogiek community who have been waiting for five years since the main judgment of 26 May 2017. For us, now, we feel like we have gotten what we want. It may not be 100 per cent, but the community are inspired thanks to the patience they have had all this time,' says Daniel Kobei, Executive Director of the Ogeik Peoples' Development Program. 'The main thing now is to talk to the Kenyan government to ensure that whatever the reparations judgment has ordered is complied with and implemented because we don't wish to continue being in and out of court. The Ogiek community has a role to do in development -- both economic and social -- not only to be seen in the corridors of justice.'
Major challenges lie ahead in realising this judgment, not least in how a transition can be made from private ownership, some illegal, and other forms of land holdings, that would need to transition to collective Ogiek ownership. The idea of leasing territory by the community to others is mooted in the judgment and may be a meaningful step forward. It is clear, however, that the Court on this occasion must stay seized of this matter as it has promised to do, to ensure that the full effect of its judgment is delivered to the community. In this matter it is the value of the law and the reputation of the African Court itself that is at stake.
'This is a moment to celebrate with the Ogiek community who have won hard miles through resilience, integrity and vision,' says Agnes Kabajuni, Africa Regional Manager at Minority Rights Group. 'But as the celebrations die down, it is crucial that international support is galvanised to assist and ensure that the Kenyan government implements this judgment to the letter. This would equip the best custodians of nature to protect our most valuable asset.'
Note to editors
- Read a summary of today's judgment here
- Find out more about the Ogiek community and their case here..
- Ogiek Peoples Development Program (OPDP) is a Kenya based organization founded in 1999 and registered by the Kenyan Government as a Non-Governmental Organization (NGO) in 2001 under. It was formed by Ogiek elders, opinion leaders, farmers and professionals after long land historical injustices that deprived Ogiek community of their rights as Kenyan citizens.
- Minority Rights Group International (MRG) is the leading international human rights organization working to secure the rights of ethnic, religious and linguistic minorities and indigenous peoples. We work with more than 150 partners in over 50 countries.