Indigenousness and peoples’ rights in the African human rights system: situating the Ogiek judgement of the African Court on Human and Peoples’ Rights

Ricarda Rösch's article discusses the African Court on Human and Peoples’ Rights first indigenous rights case dealing with the expulsion of the Ogiek from their ancestral lands in the Kenyan Mau forest. The article highlights the judgement’s most interesting features in light of the ongoing debates surrounding indigenousness and indigenous rights in Africa. 

 

 

In May 2017, the African Court on Human and Peoples’ Rights delivered its first indigenous rights case dealing with the expulsion of the Ogiek from their ancestral lands in the Kenyan Mau forest. The article highlights the judgement’s most interesting features in light of the ongoing debates surrounding indigenousness and indigenous rights in Africa. Regarding the legal concept of indigenousness, the Court’s approach reflects this ambiguity: on the one hand, it took recourse to the characteristics of indigenousness circulating in the UN that had been rejected by the African Working Group on Indigenous Populations/ Communities and it failed to contribute to a coherent jurisprudence with regard to the right to equality and non-discrimination. On the other hand, it seems to accept indigenousness as a stand-alone prohibited ground of discrimination.Besides that, the Court applied several of the African Charter’s collective rights, which are highly relevant for indigenous and other marginalised communities. It derived the communal right to land from the right to property, contributing to a new regime of protection of the right to land. It also subsumed the right to food under the right to sovereignty over natural resources, which is a very innovative and new approach. Only with regard to consultation rights, the African Court’s position remains blurry. It is questionable, whether the Court would have applied the collective rights in a different way, if the Ogiek had not been classified as an indigenous community. Hence, the African Court’s position with regard to indigenousness and indigenous rights is thus neither fish nor fowl and reflects the conflicts between African Union member states, its organs as well as the growing influence of non-state actors like NGOs.

The full article is available via the Journal's website. VRÜ, Jahrgang 50 (2017), Heft 3, ISSN print: 0506-7286, ISSN online: 0506-7286, DOI:  10.5771/0506-7286-2017-3-242

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