Read judgment summary
The normally formal, hushed corridors of the African Court on Human and Peoples’ Rights in Arusha, Tanzania, erupted with chanting and dancing last week, after the court read its decision on the reparations that must be made by the Kenyan government to the Ogiek people of the Mau forest.
The Ogiek have been involved for decades in trying to stop government-imposed evictions from the forest. So far nothing – not petitions to Kenya’s parliament, nor legal action in the Kenyan courts, nor even a strongly-worded judgment by the African Court in 2017 – has had any impact on the government’s attempts to force the Ogiek from the forest. The issue still festers and there’s been no resolution.
This week’s ruling was the next phase: a judgment by the African Court on the reparations to be made to the Ogiek by the government, in recognition of the wrongs to which they had been subjected.
In its 2017 decision, the court found that Kenya violated a number of the rights of the Ogiek under the African Charter, and the Ogiek, via the African Commission on Human and Peoples’ Rights, asked for compensation for both material and moral ‘prejudice’ caused by these violations.
After considering all the submissions to the court, the judges ordered that Kenya must compensate the Ogiek by paying KES 57 850 000 (around USD 500 000) for the material prejudice suffered. ‘In making this finding, the court affirmed its finding that [Kenya], being responsible for the violation of the rights of the Ogiek, bore the responsibility for rectifying the consequences of its wrongful acts.’
This was to cover ‘all damage suffered as a result of the violations of their right to development and the loss of their property and natural resources.’
On the question of moral prejudice and reparations, the court said this included the suffering and distress caused to the direct victims and their families, and the infringement of values they hold significant, as well as other issues like changes to their living conditions. For this, the court ordered Kenya to compensate the Ogiek by paying KES 100 000 000 (USD 850 000).
The court considered international law on the next question – restitution of ancestral land – and held that ‘mere access to land is inadequate’ to protect land rights.
‘What is required is to legally and securely recognise their collective title to the land in order to guarantee their use and enjoyment of [it].’
The court also emphasised the role of bodies like the Kenyan state, in making sure Kenya’s legal systems accommodated the rights of indigenous people to property such as land.
‘To make the protection of the Ogiek’s right to property, in this case land, meaningful, there must be more than an abstract … recognition of the right to property,’ the court said, adding that Kenya should undertake ‘an exercise of delimitation, demarcation and titling in order to protect the Ogiek’s right to property, which in this case revolves around their occupation, use and enjoyment of the Mau Forest and its various resources.’
What should happen where the government had granted leases or other concessions over Ogiek ancestral land to outsiders? The court ordered that in such a case Kenya had to begin dialogue between the Ogiek and the other parties to reach an agreement ‘on whether they can be allowed to continue their operations by way of lease and/or royalty and benefit sharing with the Ogiek’. Where land had been allocated to non-Ogiek, but no compromise was possible, then Kenya ‘must either compensate the concerned third parties and return the land to the Ogiek or agree on appropriate compensation for the Ogiek.’
Cultural and religious practices
The court further ordered that Kenya had to take all the steps necessary to ‘guarantee the full recognition of the Ogiek as an indigenous people of Kenya’. Among others this would mean giving ‘full recognition and protection to the Ogiek language and Ogiek cultural and religious practices’ within a year of the date of the judgment on reparations.
Another crucial issue in the judgment was an order for the establishment of a development fund for the Ogiek, with the court saying that such a fund could help ensure that all the Ogiek should benefit from the outcome of the litigation at the court. All the money that the court ordered by way of compensation from Kenya is to be paid into this fund. It is to be established within 12 months and must have ‘adequate representation’ from the Ogiek, with representatives chosen by the Ogiek themselves.
Finally, Kenya has been ordered to submit a report to the court on the status of the lamentation of all the orders made by in the judgment, within 12 months.
The judgment has been welcomed by organisations involved in helping the Ogiek, but it is not yet clear whether Kenya will comply with the compensation and reparation orders of the court.
- ‘A matter of justice’, Legalbrief, 28 June 2022