Press Statement: LANDMARK JUDGEMENT: THE AFRICAN COURT ON HUMAN AND PEOPLES RIGHTS AFFIRMS THE RIGHTS OF THE OGIEK COMMUNITY

Kenya National Commission on Human Rights

Press Statement:

Nairobi, Wednesday July 6^th, 2022                                                                For Immediate Release           

The Kenya National Commission on Human Rights welcomes the landmark and precedent setting judgment of the African Court on Human and Peoples Rights (ACHPR) in the case of the Ogiek of Mau. The legal battle that was provoked by the issuance of an eviction notice against the indigenous community in 2009 culminated in a resounding restatement of the rights of the Ogiek to their ancestral land.  The Ogiek have waited painstakingly for the last 13 years. This progressive judgment of the continental human rights Court is not only the first one by the Court on the rights of indigenous people but also an inspiration and a beacon of hope to the Ogiek community and other indigenous people in Kenya and Africa at large.

In its Judgment on merits delivered on 26^th May 2017, the regional human rights Court confirmed violation of the rights to; the freedom of conscience and religion, the right to culture, ancestral land rights, the right of the Ogiek to dispose of freely their wealth and natural resources and the right to development among others; as provided for and guaranteed under the African Charter on Human and People’s Rights.^[1]

After the Judgment on merits was delivered, the Government of the Republic of Kenya appointed a Multi-Agency Taskforce to advice on implementation of the Court’s decision.  After a series of public hearings and receipt of memoranda from different communities and State as well as non-State agencies - the Taskforce compiled its final report that was submitted to the Ministry of Environment and Forestry in early 2020. The report of the Taskforce has never been made public to date.  

Five years after the Judgment on Merits, the regional Human Rights Court delivered its judgment on reparations on 23^rd June 2022. The Court observed that the violations it had identified and confirmed in its 2017 judgment remained unaddressed. The Court ordered for among others the following:-That;

• The Kenyan Government pays compensation to the Ogiek community an amount of Ksh 57,850,000 in material damages and Ksh 100,000,000 in moral damages;

• The Kenyan Government to take all necessary measures, in consultation with the Ogiek community and its representatives, to identify, delimit and grant collective land title to the community and, by law, assure them of unhindered use and enjoyment of their land;
• The Kenyan Government recognize, respect, protect and consult the Ogiek in accordance with their traditions and customs, on all matters concerning development, conservation or investment on their lands;
• There be an establishment of a Community Development Fund within 12 months, in which all funds ordered as compensation - in this case - will be deposited; and
• The Government of the Republic of Kenya to adopt legislative and administrative and/or any other measures to give full effect to the terms of the judgment as a means of guaranteeing the non-repetition of the violations identified.

The Court directed that it shall conduct a hearing on the status of implementation of the
orders made in its judgment on a date to be appointed by the Court within 12 months of the Judgment.

It is worth noting that the Kenyan Constitution, as the supreme law, recognizes the existence of indigenous communities in Kenya, secures the rights to culture and religion, ancestral land ownership and guarantees the right of everyone to equal protection of the Law. The Kenya National Commission on Human Rights expresses optimism that implementation of the judgment of the African Court will significantly and sustainably address the plight of indigenous people in the Country.

The Commission calls upon the Government of the Republic of Kenya, in line with its obligations under the African Charter on Human and Peoples Rights, to give effect to the judgment. It should be remembered that the African Commission on Human and Peoples Rights gave its decision on the Endorois case, another Indigenous Community in Kenya, in 2010. The Government of the Republic of Kenya welcomed that decision and joined the community in celebrating the decision. More than 10 years after that celebration, the decision has not been fully implemented.

In line with the national values and principles of governance under Article 10 of the Constitution, the Commission further calls for genuine and meaningful consultation and cooperation in good faith with the Ogiek community with a view to ensure effective and sustainable implementation of the judgment and restoration of their rights as an indigenous community.

Roseline Odede, HSC

Chairperson

Kenya National Commission on Human Rights

Press Statement:39 DAYS TO THE BALLOT: THE STATUS OF HUMAN RIGHTS AND ELECTION IN THE RUN-UP TO THE AUGUST POLLS Press Statement: REMARKS BY THE KNCHR'S CHIEF EXECUTIVE OFFICER DR. BERNARD MOGESA, DURING THE MEDIA SUMMIT ORGANIZED BY THE MEDIA COUNCIL OF KENYA ON FRIDAY, 22ND JULY 2022, NAIROBI.