Ogiek: The African Court of Human and Peoples’ Rights first decision on indigenous rights
May 28, 2017
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.
While the Court found that the Ogiek are an indigenous people with a right to possession and use of the land, such rights might be restricted under Article 14 for a public purpose where such restriction is both necessary and proportional. Kenya argued that such a restriction was necessary in order to secure the natural ecosystem of the forest. The Court found, however, that Kenya had provided no evidence that the Ogiek’s continued presence in the forest was the main cause of the depletion of the natural environment. Rather, reports suggested that the main causes of environmental degradation are encroachments on the land by other groups and ill-advised logging concessions.
The Court was accordingly of the view that continued denial of the Ogiek people of access to their ancestral land can not be seen to be necessary for preserving the natural environment of the Mau Forest. The Court stated: “the continued denial of access to and eviction from the Mau Forest of the Ogiek population cannot be necessary or proportionate to achieve the purported justification of preserving the natural ecosystem of the Mau Forest. The Court holds that by excluding the Ogieks from their ancestral land, against their will, without prior consultation, and without respecting the conditions of expulsion in the interests of public need, the Respondent violated the rights to land as defined and guaranteed by Article 14 of the Charter read in the light of the United Nations Declaration of the Rights of Indigenous Peoples of 2007.”
The Right to Culture – Article 17(2) and (3)
The Court also makes an important finding in respect of the right to culture in Article 17(2) and (3) of the Charter. Kenya argued that the Ogiek no longer led traditional lifestyles and as a result of their new and more modern way of life the community had lost their distinctive cultural identity. Thus the State argued it had not violated this cultural identity by evicting the community.
The Court rejected this argument finding that Kenya had not demonstrated that the Ogiek’s lifestyle had changed to the extent that it might be said that they had “eliminated their cultural distinctiveness”. The Court found: “A static way of life is not a defining element of culture or cultural distinctiveness. … It is natural that some aspects of indigenous population’s culture, such as certain ways of dressing or group symbols, could change over time. Yet the values, mostly the invisible tradition of values embedded in the self-identification [of the group] often remain unchanged.” In addition, the Court found that some of the changes to the Ogiek’s lifestyle were a result of its treatment and denial of access to their land by the State.
The Right to Free Disposal of Wealth and Natural Resources – Article 21
Article 21, the Court suggests, was originally intended to secure the populations of countries struggling against foreign domination and colonisation. So the Court asks: does the Article also apply to sub-state ethnic groups and communities?
The Court notes that the Charter does not define ‘peoples’ allowing some flexibility in the interpretation of the concept. As a result, it finds that ethnic groups and communities can indeed claim the rights secured under Article 21, “provided such groups or communities do not call into question the sovereignty and territorial integrity of the State without the latter’s consent.” This right, the Court emphasises, does not amount to a right to self-determination and independence but must be read, rather, as connected to the right to land. In particular, the Court finds that insofar as Kenya’s denial of the Ogiek access to their land results in depriving the community of free access to and disposal of food and other resources on that land, such an action amounts to a violation of Article 21.
The Right to Life – Article 4
An important issue that emerges in the case is the Court’s limited and conservative approach to interpreting Article 4 of the Charter, the right to life. The right to life, the Court found, is the cornerstone of all the rights protected by the Charter and it is a right an individual has irrespective of their membership of a particular group. The Court recognised that this right may be impacted by violations of socio-economic rights in the Charter, however the Court emphasised that violations of socio-economic rights do not necessarily amount to a violation of the right to life. This is because the Court draws a distinction between what it calls the classic meaning of the right to life and the right to a decent existence of a group. Article 4 of the Charter, the Court found, relates to “the physical rather than the existential understanding of the right to life.” While the Court recognised that the livelihood of the Ogiek community, as a hunter-gatherer population, depends on their access to the Mau Forest, this was a matter of the decent existence of the community, and not their physical right to life. As a result, the Court found no violation of Article 4.
(Note that at the time of writing the judgement is only available in a series of video recordings of the Court delivering its judgment.)