The African Commission looks forward to Kenya’s cooperation for the implementation of the judgement of the African Court on Reparations in Application 006/2012
The African Commission on Human and Peoples’ Rights (the Commission), through the Commissioner rapporteur for application 006/2012, Commissioner Solomon Ayele Dersso, welcomes the African Court on Human and Peoples’ Rights (the Court) Judgment on Reparations in Application 006/2012 – African Commission on Human and Peoples’ Right v. Republic of Kenya.
This judgement and significantly its implementation presents the Republic of Kenya an opportunity to realize the ideal in its Constitution for a more equal and fair society. This judgement also contributes towards bringing the Ogiek into achieving their equal citizenship.
The Ogiek are an indigenous ethnic minority in Kenya comprising of about 20,000 members of whom about 15,000 inhabit the greater Mau Forest complex, a land mass of about 400,000 hectares straddling seven administrative districts. The Government of Kenya, in October 2009, through the Kenya Forestry Service, issued a thirty (30) days eviction notice to the Ogiek and other settlers of the Mau Forest on the ground of seeking to conserve the forest as a water catchment area.
Following application filed, by the Centre for Minority Rights Development and Minority Rights Group International,on behalf of the Ogiek in 2009 and the seizure of the application, the Commission, upon the non-implementation by Kenya of its provisional measures, referred the case to the Court in July 2012, pursuant to Article 5(1)(a) of the Protocol to the African Charter on Human and Peoples' Rights on the Establishment of the Court (the Court Protocol).
It is to be recalled that the Court in its Judgment on Merits, delivered on 26 May 2017, affirmed the rights of the Ogiek to the ownership and use of their ancestral land on which they depend for their social, economic and cultural existence.
The reparations judgement seeks both to fully secure the rights of the Ogiek in relation to their ancestorial land to guarantee non-recurrence of the violations they suffered and repair to the extent possible the damage inflicted on them. The Court accordingly ordered that the Republic of Kenya to:
compensate the Ogiek with the sum of KES 57 850 000 (Fifty-seven million, eight hundred and fifty thousand Kenya Shillings) for the material prejudice suffered; and KES100 000 000 (One hundred million Kenyan Shillings) for the moral prejudice suffered;
delimitate, demarcate and title Ogiek’s right over Mau Forest, and that where concessions and/or leases have been granted over Ogiek ancestral land to non-Ogiek and other private individuals or corporations, the Respondent State must commence dialogue and consultations with all 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 the Community Land Act;
guarantee full recognition of the Ogiek as an indigenous people of Kenya, including through full recognition and protection to the Ogiek language and Ogiek cultural and religious practices;
effectively consult the Ogiek, in accordance with their tradition/customs, and/or with the right to give or withhold their free, prior and informed consent, with regards to development, conservation or investment projects on Ogiek ancestral land and to implement measures that would minimise the damaging effects of such projects on the survival of the Ogiek;
adopt legislative, administrative and/or any other measures to avoid a non-repetition of the violations established by the Court; and
Establish, within twelve (12) months, a community development fund for the Ogiek which should be used to support projects for the benefit of the Ogiek in the areas of health, education, food security, natural resource management and any other causes beneficial to the well-being of the Ogiek.
Such reparations, as the Commission observed in its Study on Transitional Justice and Human and Peoples’ Rights, are essential for bothgiving meaningful effect to rights in the African Charter and importantly the establishment of conditions for healing wounds, mending broken societal relationships and restoring the social equilibrium. Their effective implementation not only gives full effect to the rights of the Ogiek but also enhances national cohesion and the bonds of common citizenship in Kenya.
The vindication of the rights of the Ogiek through the merit decision and the granting of redress to the Ogiek for the harms they suffered through this reparation judgement are of paramount legal significance in the recognition of the rights of the Ogiek as indigenous ethnic minorities in Kenya.
It is the view of the Commission that, materially speaking, of particular significance for the Ogiek is the implementation of both the judgement on merit and this reparation judgement. In this regard, the Commission commends the Court’s decision to conduct a hearing on the implementation of the orders made in this judgment and is convinced that the hearing will include the implementation of both Judgments on Merit and Reparations.
This judgement also affords the Policy Organs of the African Union, in particular the Assembly of Heads of State and Government and the Executive Council, the opportunity to uphold their role for the implementation of the Court judgements. It is the view of the Commission that in accompanying Kenya for the implementation of the Court Judgements, the Policy Organs play their role concretely for the achievement of the Africa we want under Agenda 2063.
The Commission looks forward to the cooperation of the Government of Kenya to engage and collaborate with the Ogiek meaningfully towards the implementation of this reparation judgement.
The Commission also calls on the Kenya National Human Rights Commission to avail its human rights promotion and protection role for facilitating the implementation of the reparation judgement.
Commissioner Solomon Ayele Dersso, PhD
Commissioner Rapporteur on Application 006/12
