African Court on Human and People’s Rights (‘AFCHPR’): While deciding the instant matter concerning the eviction of a Kenyan indigenous minority ethnic group — the ‘Ogiek‘ community from the Mau Forest area, the AFCHPR directed the Republic of Kenya to take all necessary measures, [legislative, administrative or otherwise] to identify, and delimit, demarcate and title the Ogiek ancestral land and to grant collective title to such land in order to ensure, with legal certainty, the Ogiek’s use and enjoyment of the same. The respondent State was also directed to pay monetary compensation for the moral and material prejudices suffered by the Ogiek due to this dispute. It is to be noted that the present decision deals only with the reparations to the affected community.
Background of the case: The instant application was filed in respect of the Ogiek of the Mau Forest. Ogiek are an indigenous minority ethnic group in Kenya comprising of about 20,000 members, about 15,000 of whom inhabit the greater Mau Forest complex – a land mass of about 400,000 hectares straddling about seven administrative districts.
In October 2009, the Kenyan Government, through the Kenya Forestry Service, issued a 30 days’ eviction notice to the Ogiek and other settlers of the Mau Forest, demanding that they move out of the forest on the grounds that the forest constituted a reserved water catchment zone, and was in any event part and parcel of government land under Section 4 of the Government’s Land Act. As per the Government, this decision was taken by the State in order to conserve the forest which is a water catchment area.
Contentions and Prayer: It was contended by the applicant that the decision by the Kenyan Government will have far reaching implications on the political, social and economic survival of the Ogiek Community. It was also contended that Kenya violated Arts. 1, 2, 4, and 17 (2) and (3) of the African Charter on Human and People’s Rights1.
The Applicant prayed before the Court to-
- Halt the eviction of the Ogiek from the East Mau Forest and refrain from harassing, intimidating, or interfering with the community’s traditional livelihoods.
- Recognize the Ogiek’s historic land, and issue it with legal title that is preceded by consultative demarcation of the land by the Government and Ogiek Community, and for the Respondent to revise its laws to accommodate communal ownership of property.
- Pay compensation to the community for all the loss they have suffered through the loss of their property, development, natural resources and also freedom to practice their religion and culture.
Per contra, Republic of Kenya contended that –
- There is no basis for a claim for compensation for any violations before the year 1992 when it became party to the Charter. It further contends that “any claim for financial compensation can only be computed from 26-10-2009 and only in relation to the notice given to the Ogiek to vacate the South-western Mau Forest.
- The State also submitted that the instant matter is a proper case for an amicable settlement in line with Art. 9 of the Protocol to African Charter on Human and People’s Rights2.
Observations: The Court comprising of Imani D. Aboud, (President); Blaise Tchikaya, (Vice-President), Rafaâ Ben Achour, Suzanne Mengue, M-Thérèse Mukamulisa, Tujilane R. Chizumila, Chafika Bensaoula, Stella I. Anukam, Dumisa B. Ntsebeza, Modibo Sacko, JJ., and Robert Eno (Registrar); recalled that in their decision dated 26-05-2017, the Court found that the Respondent State had violated the rights of the Ogiek under Arts. 1, 2, 8, 14, 17(2) and (3), 21 and 22 of the Charter. It was also decided that the Court would rule on reparations in a separate judgment and invited the Parties to file submissions on reparations.
Regarding the reparations, the Court made the following observations-
- The Right to Reparations for the breach of human rights obligations is a fundamental principle of international law. It was also observed that it is a general principle of international law that the Applicant bears the burden of proof regarding the claim for reparations. “It is not enough for the Applicant to show that the Respondent State has violated a provision of the Charter, it is also necessary to prove the damage that the State is being required to indemnify(…) There must, therefore, be a causal link between the wrongful act that has been established and the alleged prejudice”. The Court also observed that reparations must cover both material and moral damages. The Court must also take into account not only a fair balance between the form of reparation and the nature of the violation, but also the expressed wishes of the victim.
- Regarding material prejudice, it was observed that even though the Court acknowledges that compensation is an important means for effecting reparations, it is not enough for an Applicant to show that the Respondent-State has violated a provision of the Charter; it is also necessary to prove the damage that the State is being required to indemnify. “Applicant, therefore, bears the duty of proving the causal nexus between the violations and the damage suffered. Additionally, all material loss must be specifically proved”. The Court observed that it is incontrovertible that the Respondent State’s actions resulted in violation of Ogiek community’s rights, therefore the State bears the responsibility for rectifying the consequences of its wrongful acts.
- It was also noted that in view of the length of time over which the violations occurred, the number of people affected by the violations, the Ogiek way of life and the general difficulties in attaching a monetary value to the loss of resources in the Mau Forest etc., it is difficult to make a precise and mathematically exact quantification of pecuniary loss. Therefore, the Court must exercise its discretion in equity to determine what amounts to fair compensation to be paid to the Ogiek.
- Regarding moral prejudice, the Court noted the contentions made by the Applicant where it was highlighted that how the Ogiek have not been able to practice their religion including prayers and ceremonies intimately connected to the Mau Forest. It was also noted that Ogiek people have also been denied access to an integrated system of beliefs, values, norms, traditions and artefacts closely linked to the Mau Forest and have had their right to development violated due to the Respondent State’s failure to consult with or seek their consent about their shared cultural, economic, and social life within the Mau Forest.
- The Court pointed out that that the Respondent State violated the Ogiek’s rights under Arts. 2, 8, 17(2) and (3) and Art. 22 of the Charter by failing to recognise the Ogiek as a distinct tribe like other groups; by making it impossible for the Ogiek to continue practicing their religious practices; by evicting the Ogiek from the Mau Forest area thereby restricting them from exercising their cultural activities and practice; and Art. 22 was violated due to the manner in which the Ogiek were evicted from the Mau Forest.
- It was observed that while it is not possible to allocate a precise monetary value equivalent to the moral damage suffered by the Ogiek, nevertheless, the Court can award compensation that provides adequate reparation to the Ogiek. It was also noted that since the Respondent State violated the rights that are central to the very existence of Ogiek, therefore the State is under a duty to compensate the Ogiek.
- The Court also observed that in the context of indigenous peoples’ claims to land, demarcation is the formal process of identifying the actual locations and boundaries of indigenous lands. The Court noted that in international law, granting indigenous people privileges such as mere access to land is inadequate to protect their rights to land. “The Court wishes to emphasise though that given the unique situation and way of life of indigenous people, it is important to conceptualise and understand the distinctive dimensions in which their rights to property like land can be manifested”.
- The Court fervently reiterated that the Ogiek have right to the land that they have occupied and used over the years in the Mau Forest Complex. “However, in order to make the protection of the Ogiek’s right to land meaningful, there must be more than an abstract or juridical recognition of the right to property. It is for this reason that physical delineation, demarcation and titling is important”.
Conclusion/ Decision: With the afore-stated observations, the Court held that
- The Respondent State to pay the sum of KES 57 850 000 free from any government tax, as compensation for the material prejudice suffered by the Ogiek; and a sum of KES 100 000 000, free from any government tax, as compensation for the moral prejudice suffered by the Ogiek.
- The Respondent State 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 Complex and its various resources. The demarcation process is to be undertaken in consultation with the Ogiek and/or their representatives.
- the Respondent State must take all appropriate measures, within one 1 year, to guarantee full recognition of the Ogiek as an indigenous people of Kenya in an effective manner, including but not limited to according full recognition to the Ogiek language and Ogiek cultural and religious practices
- Respondent State, to commence dialogue and consultations between the Ogiek and their representatives and the other concerned parties for purposes of reaching an agreement on whether or not they can be allowed to continue their operations by way of lease and/or royalty and benefit sharing with the Ogiek in line with all applicable laws.
[African Commission on Human and People’s Rights v. Republic of Kenya, APPLICATION No. 006/2012, decided on 23-06-2022]
*Sucheta Sarkar, Editorial Assistant has prepared this brief.