Following on from the Court’s sensitization visit in Addis Ababa, Ethiopia last week, this week the Court begins its 35th Ordinary Session also in Addis Ababa.
During this session the Court will hear two applications. From tomorrow to 28 November, the Court will hear arguments in African Commission on Human and Peoples’ Rights v. the Republic of Kenya and from 3 to 4 December it will hear Alex Thomas v. Tanzania.
I wanted to highlight the former case, the Commission v. Kenya, for summary and a little analysis.
The very fact that the Court is the African Court on Human and Peoples’ Rights has raised hope that the Court has the potential of the Court to hear these kind of cases. This case is the first ‘peoples’ case to be considered by the Court.
In summary, the case involves a claim by the Ogiek people of the Mau Forest in the Rift Valley, Kenya. They claim that the Kenyan Government is evicting them from their ancestral land under the auspices of a Kenyan Forestry Service notice to conserve the forest as a ‘reserved water catchment zone’. The Ogiek argue that this eviction will have far reaching consequences on the political, social and economic survival of their community.
Specifically, they argue that the eviction notice violates Articles 1 (recognition of rights in the Charter), 2 (right to enjoyment of rights without distinction), 4 (right to life), and 17 (2) (freedom to take part in the cultural life community and 17 (3) (promotion and protection of morals and traditional values) of the Charter.
They request the Court to order the halting of their eviction from the East Mau Forest, the Kenyan authorities to refrain from harassing, intimidating or interfering with their traditional livelihoods and that Kenya recognize their historic land and pay compensation for loss suffered.
Kenya makes preliminary objections to the admissibility and jurisdiction of the application, arguing that the applicants have failed to exhaust judicial remedies, and that since the same application is before the Commission, the Court has no jurisdiction to act. On admissibility, Kenya argues that no members of the Ogiek community are mentioned in the application, only the NGO CEMIRIDE whom it argues does not have observer status before the Commission and as a local NGO lacks locus to bring international claims. It argues that a similar case was opened in the domestic courts which should be pursued before making a claim before the Commission.
On the merits, Kenya states that it acknowledges the indigenous rights of the Ogiek to their land. It argues that in recognition of the Ogiek’s transition from hunter-gathering to livestock rearing it has instigated a ‘resettlement’, designating large areas of the Mau Forest for farming which in itself lead to deforestation after encroachment into these areas by other ethnic groups. It argues that as a result of this, a task force was set up to deal with the issue and that the task force has been working with representatives of the Ogiek to implement changes. It argues that since the task force has been created and national initiatives for the representation of minorities have been created, Kenya has fulfilled it Charter obligations.
The first point of interest is that while this case was pending, the Kenyan Ministry of Lands issued a directive lifting restrictions on the transfer of small parcels of land in the Mau Forest. On 15th March 2013 the Court used its provisional measures powers under Article 27(2) of the Protocol to order Kenya to immediately reinstate restrictions on the transfer of land in the Mau Forest. I have found nothing on this from the Kenyan government and will be interested to see in the hearing if Kenya have followed the Court’s order and reinstated the ban on transfer of land.
Secondly, it is worth noting that this case is being brought by the Commission against Kenya. This does result in the confusing situation that the ‘applicants’ arguments and responses referred to are actually the Ogiek’s’ claims, rather than the Commission itself who are technically the applicant as per the case papers.
While this transfer is welcome and demonstrates how cases can move between Commission and the Court it is also rare- the only other Commission case was in relation to Libya. The question therefore is why the Commission chose to refer the case on the Court? The answer to this may well lie in the Commissions prior dealing with Kenya on the issue of peoples rights.
In November 2009 the Commission considered the case of CEMIRIDE and Minority Group (on behalf of Endoris Welfare Council) v. Kenya. In this case the Endoris people alleged violations resulting from their displacement from their ancestral lands around Lake Bogoria and surrounding areas and Kenya’s failure to adequately compensate them. The Commission found in their favor, finding Kenya in violation of Articles 1, 8, 14, 17,21 and 22 of the Charter and recommending that Kenya recognize and restitute the ownership rights of the Endoris, allow access to other important sites in the surrounding areas, pay compensation for the loss suffered, pay royalties for existing economic activities, grant registration of the Endoris Welfare Committee, engage with the Endoris in the effective implementation of the recommendations and report back the Commission within three months.
Sadly it appears that Kenya have done nothing to implement the Commission’s recommendations. In November 2013 the Commission issued a resolution calling on Kenya to implement its recommendations. The resolution is worth reading, and includes revealing information on Kenya’s approach to the Commission’s findings including Kenya’s failure to send any representative to a workshop organized specifically to discuss the Commission’s decision by the Commission’s Working Group on Indigenous Populations/Communities, and the lack of feedback from Kenya on the measures it has taken to implement the decision.
So, having got nowhere with its decision regarding the Endoris and faced with a similar claim by the Ogiek , this appears to be a case of once bitten, twice shy for the Commission. The case goes to the Court who, should the case be decided on its merits and in the Ogiek favour, have stronger powers to seek the implementation of any decision it finds. Whether the Court’s powers of implementation are any stronger in reality than the Commission’s is an issue yet to be decided. For example, we wait to see how Tanzania will implement the Mtikila Decision. But this case does appear to show the Commission making a tactical decision to move the case on to the Court, possibly in an effort to pass the potential problem of non-compliance on to the Court at the earliest opportunity.
Whatever the reason behind the Commission’s decision (and it must have required the Commission to make a decision, rather than letting the case move of its own accord) it will be fascinating to see how the Court deals with the case should it be decided on the merits. Certainly the Commission’s deciding on the Endoris application provides a strong precedent and we may well find Kenya once again under the spotlight in its approach to tribal peoples’ rights.
The Court’s summary of African Commission on Human and Peoples’ Rights v. the Republic of Kenya can be found here.
A summary of the Thomas v. Tanzania case can be found here.