Implementation matters: legal and rights groups welcome new African Court on Human and Peoples’ Rights ruling on longstanding Ogiek-Kenya dispute

The acknowledgement of the Ogiek as an indigenous peoples by the Kenyan government and its creation of task forces to facilitate past court orders in favour of the Ogiek is insufficient and lacked a clear, time-bound plan for full implementation, ruled the African Court on Human and Peoples’ Rights last week, as it ordered Kenya to urgently undertake all necessary measures to finalise various processes.

The decision has been welcomed by legal and rights groups, as well as the Ogiek.

"We celebrate alongside the Ogiek and the Ogiek Peoples’ Development Program (OPDP) for this legal win, and we are happy to have been able to support the Ogiek people over many years in their struggle for justice,” said Marianne Wiben Jensen of the International Work Group for Indigenous Affairs (IWGIA), a global organisation.

“However, the Ogiek and other Indigenous Peoples should not have to go to such legal lengths,” continued Jensen. This continuous uphill battle is all too common for Indigenous Peoples who work tirelessly to tighten the gap between legal orders and actual implementation by authorities.”

The IWGIA commended the African Court for their decisions, holding the Government of Kenya to account for their lack of compliance over several years.

The ruling last Thursday is the latest in a longstanding dispute between the Ogiek people and the Kenyan government, dating back to 2009 when the Kenyan Forest Service issued a 30-day eviction notice to the Ogiek and other settlers of the Mau Forest, demanding they leave ancestral lands they've inhabited for centuries. 

Having already suffered historical land injustices, which hadn’t been resolved despite repeated advocacy and litigation in Kenya, the Ogiek lodged a case against the Kenyan government before the African Commission on Human and Peoples’ Rights with the assistance of Minority Rights Group, the Ogiek Peoples’ Development Program and the Centre for Minority Rights Development. Later, after the Kenyan government flouted interim measures issued by the Commission, the case was referred to the African Court on the grounds of significant human rights violations.

On 26 May 2017, after failed attempts at settlement, the African Court on Human and Peoples’ Rights ruled in favour of the Ogiek people, holding Kenya had violated their rights to communal ownership of their ancestral lands, to culture, development and use of natural resources, as well as to be free from discrimination and practise their religion or belief. On 23 June 2022, the Court rejected Kenya’s objections and ruled on reparations owed for the violations established in its 2017 judgment, totalling more than $1.2 million USD for economic loss and the community’s suffering. 

The latest case arose due to Kenya’s ongoing delays in implementing the past 2017 and 2022 judgements of the African Court. After reviewing reports from both parties, and holding an earlier compliance hearing, the Court ruled on 4 December that: 

• Kenya must immediately pay the full amounts of reparations; 

• Simply acknowledging the Ogiek as an indigenous people is not enough unless practical steps were taken to ensure they can fully exercise and enjoy their rights;

• While Kenya had created task forces to facilitate the identification, delimitation, demarcation and possible titling of Ogiek ancestral land, such steps were insufficient and Kenya must urgently undertake all necessary measures to finalise the process; 

• Kenya’s consultations with the Ogiek were inadequate and fell below the required threshold for genuine, meaningful, and continuous engagement;

• There was no evidence Kenya has complied with past orders to establish a Community Development Fund for the Ogiek, and Kenya must immediately establish such a fund and operationalise the management committee;

• Political transition was not a valid reason for delay and Kenya must immediately publish both the 2017 Judgement on the Merits and the 2022 Judgement on Reparations; 

• While the Ogiek alleged further grave violations of their rights, further provisional measures were not needed as full compliance by Kenya with the Court’s past decisions would address such harms. 

The Court ordered the Kenyan government to submit a clear and detailed implementation plan, within six months, outlining concrete steps to fulfil all aspects of its judgements, including immediate remedies for violations and payment of reparations. It reminded Kenya it cannot invoke domestic laws or policies to justify violations of the African Charter or past orders. International obligations are binding. 

“The Court’s decision underscores the importance of timely and full implementation of measures imposed on a state which has been found to be in breach of their internationally agreed obligations,” said Samuel Ade Ndasi, African Union Advocacy and Litigation Officer at Minority Rights Group, a leading UK-headquartered human rights organisation. “Kenya must now repay its debt to the indigenous Ogiek by restituting their land and making reparations, among other remedies ordered.”

Jarso Mokku, Head of the Pastoralist Parliament Group Secretariat in the Kenyan Parliament, said the Court’s ruling was a victory not only for the Ogiek but for all communities fighting for dignity and sovereignty across Africa, and that the ruling was also a test of Kenya’s credibility. “As a signatory to the African Charter and a leader in continental affairs, Kenya must demonstrate that it respects the rule of law, not only when convenient but when it demands accountability.”

Read a summary of the 4 December judgement here, or the full rulings across the history of the longstanding case, here.