African court rules in favor of Indigenous land titles, reparations from the Kenyan government

For 13 years, the Indigenous Ogiek people have been embroiled in a legal battle with the Kenyan government for legal recognition of their rights to the Mau Forest, the largest remaining indigenous forest in the country. Now that the African Court of Human and Peoples’ Rights delivered its reparation judgment last week in favor of the group, the Ogiek are hopeful that this means the battle is finally over.

Since British colonial rule, the Ogiek have been subject to violent evictions from their ancestral lands in the Mau Forest Complex in western Kenya. Today, the Kenyan government contends that evictions are necessary to protect the Mau Forest, an important water catchment, from further deforestation and says the land is subject to government control for conservation ends.

In 2009, the community decided to take legal action after receiving a 30-day eviction notice. The community, along with the Centre for Minority Rights Development (CEMIRIDE) and Minority Rights Group International (MRG), petitioned the African Commission on Human and Peoples’ Rights (Commission).

That marked the beginning of a legal battle that would last for 13 years, while communities remaining in the forests faced more threats of evictions and human rights abuses. Hundreds of families were left homeless after their homes were demolished and many more were beaten to ensure they left.

In 2017, the African Court of Human and Peoples’ Rights found that the Kenyan government had violated seven articles of the African Charter on Humans and Peoples’ Rights by repeatedly evicting the Ogiek from their ancestral lands. But the court said it would rule on the issue of reparation on a separate date.

“That heralded judgment, a first of its kind for the continent, should have yielded significant change,” says MRG in a statement. “But rather than implementing it, the Kenyan government took a series of actions that put the community into further jeopardy.”

Last Thursday, the court finally delivered the reparations judgment.

In court documents seen by Mongabay, the court unanimously dismissed all the arguments put forward by the Kenyan government to its 2017 judgment and ordered that the state pay $491,295 in material damages and $849,256 in moral damages to the Ogiek community. This money should be deposited in a Development Fund for the Ogiek, to be established within 12 months.

In addition, the ruling underlines that the Kenyan government must 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 within 12 months.

The traditions and customs concerning development, conservation, or investment in Ogiek ancestral lands must also be respected and recognized by the government.

“The reparations judgment has cemented the 26 May 2017 landmark judgment by upholding the rights of the Ogiek community with absolute surety over their ancestral land in Mau Complex,” says Daniel Kobei, the executive director of the Ogiek Peoples’ Development Program (OPDP).

He told Mongabay that the judgment had provided a lot more clarity on the steps needed to be taken by the Kenyan government to right their wrongs as the ruling details specific points the state needs to address.

“We don’t wish to continue being in and out of court any longer – the Ogiek Community has a role to play in development – both economic and social – in the community, and [we should] not only to be seen in the corridors of justice,” he tells Mongabay.

The Kenya Forest Service and the Office of the Attorney General and Department of Justice did not respond to Mongabay’s request for comment.

However, since the conflict over evictions began, the government has contended that the Ogiek, and other communities, participate in deforestation and land degradation in the critical water catchment area by partaking in agriculture, logging and charcoal production. By 2018, some 900,000 hectares (222,000 acres) of the Mau Forest had been destroyed through illegal tree harvesting and charcoal production, according to Julius Kamau, director of the Kenya Forest Service (KFS), a government agency.

But Kobei says few Ogiek people participate in such destructive practice and most maintain more or less a traditional, sustainable way of life with vested interests in the forest’s conservation.

While the Ogiek community is hopeful that the government will comply with the ruling, the MRG remains apprehensive over the Kenyan government’s intention to follow through with the court’s ruling.

“Implementing judgments of this kind can be extremely challenging, but this cannot be an excuse for delayed justice for the Ogiek people,” says Agnes Kabajuni, Africa regional manager at MRG. “The time is now – we urge the Kenyan government to follow the judgment to the letter.”

Lucy Claridge, senior counsel at the Forests Peoples Programme and one of the lawyers who represented the Ogiek in their African Court case since 2009, says that the judgment is a crucial step towards securing collective land rights for Indigenous and forest peoples in Africa.

“The court was very clear that the protection of rights to land and natural resources remains fundamental for the survival of Indigenous peoples, and that this includes the right to undisturbed possession, use and control of such property,” Claridge tells Mongabay.

She also calls on the government to comply with the court ruling.

“The Kenyan Government must now act on this ruling and engage with the Ogiek, in good faith and through the Ogiek’s agreed representatives, to restitute land and implement the remainder of the judgment and restore Ogiek rights,” she says.

 

Banner image: Caroline Chepkoeh poses for a photo with her husband and extended family outside of her home near the Mau Forest Complex in western Kenya. Image by Nathan Siegel for Mongabay.

Related listening from Mongabay’s podcast: We look at the major forest and conservation trends coming out of 2021 and 2022 with Mongabay founder and CEO Rhett Butler, and IUCN senior program officer, Swati Hingorani. Listen here:

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