The African Court of Human and Peoples’ Rights (Court) recently issued a historic judgment on indigenous rights in its ruling African Commission on Human and Peoples’ Rights v Republic of Kenya (application No. 006/2012). The decision, issued on the 23rd of June 2022, awarded reparations to the Ogiek people of Kenya for the systematic marginalisation and oppression they have endured. It has been described as a “landmark ruling”, which may further serve as a significant precedent for the realisation of indigenous rights on a global scale.
BACKGROUND TO THE JUDGMENT
On the 12th of July 2012, the African Commission on Human and Peoples’ Rights (Commission) filed an application before the Court which alleged that the Ogiek people had had several of their protected rights violated by the Kenyan government. Specifically, the application concerned the forced removal of the Ogiek people from the Mau Forest. The Commission submitted that the eviction notice failed to consider the importance of the Mau Forest for the survival of the Ogiek people, thereby resulting in the violation of several provisions of the African Charter on Human and Peoples’ Rights (Charter). The Ogiek people have inhabited the Mau Forest since time immemorial and their way of living is deeply linked to their ancestral homeland.
The Court issued its judgment on the merits of the case on the 26th of May 2017, concluding that the Kenyan government had violated articles 1, 2, 8, 14, 17(2), 17(3), 21, and 22 of the Charter through its conduct towards the Ogiek people. In effect, this amounted to a violation of their right to life, property, natural resources, development, and culture. However, the Court reserved its judgment on reparations - a matter which has now been dealt with, five years later.
THE DECISION
It is a well-established principle of international law that in the event of a breach of an international obligation, the party responsible is obliged to provide reparations for the damage caused. In the context of indigenous people in particular, article 28 of the United Nations Declaration on the Rights of Indigenous Peoples further emphasises that indigenous people are entitled to redress when their land or their resources are confiscated without consent. Given its findings that the Kenyan government had breached its human rights obligations, thereby amounting to an international wrong, the question of reparations subsequently came before the Court.
The Commission made a claim for reparations, on behalf of the Ogiek people, in the form of monetary compensation for both material prejudice and moral harm suffered by them. The Permanent Court of International Justice has previously held that a state responsible for a breach must attempt to “wipe out all the consequences of the illegal act and re-establish the situation which would, in all probability, have existed if the act had not been committed.” The Commission further submitted that the reparations granted to the Ogiek people should reflect the totality of the harm that they have suffered as a result of the established violations.
Upon considering the facts, the Court ordered that the Ogiek people be compensated 850,000 KES by the Kenyan government as reparations for material prejudice due to the loss of natural resources and property. The Court noted in particular that the breadth of rights breached under the Charter indicated a “systemic violation” of the rights of the Ogiek people. In addition to reparations for the material prejudice, the Commission sought reparations for moral prejudice as a result of the violation of their rights to non-discrimination, development, culture, and religion. The Court awarded reparations of 100,000,000 KES on these grounds, noting that the violations affect rights that “remain central to the very existence of the Ogiek.”
The Court further held that the Kenyan Government provide several non-pecuniary reparations to the Ogiek people. This included an order to consult with them in order to “delimit, demarcate and title Ogiek ancestral land and to grant collective title to such land.” Kenya was additionally ordered “to guarantee full recognition of the Ogiek as an indigenous people of Kenya in an effective manner.” The decision has been met with praise both amongst advocates for the rights of the Ogiek people and on the international stage. Daniel Kobei, Executive Director of the Ogiek People’s Development Programme, has described it as “a sigh of relief after waiting four or five years after the main judgment of 26 May 2017.”
A SIGNIFICANT MILESTONE FOR INDIGENOUS RIGHTS
For an indigenous group that has been systemically and historically oppressed, it is undeniable that the decision to award reparations to the Ogiek people is a prominent milestone. It additionally makes a clear statement on the importance of indigenous rights which will resonate further across the African continent, and on a global scale. As stated by Kobei: “This ruling is not only for the indigenous Ogiek, but for all indigenous communities globally.” Although the true impact of the judgment will depend on its implementation by Kenya, its significance should not be understated. In the words of the United Nations Special Rapporteur on Indigenous Rights, the decision “sends a strong signal for the protection of the land and cultural rights of the Ogiek in Kenya, and for indigenous peoples’ rights in Africa and around the world.”
Lauryn is a final year student at the University of Canterbury, completing an LLB (with Honours) alongside a BA, majoring in Political Science. Her areas of interest include human rights, international law and issues regarding forced migration.