Reposted from ESCR-Net

On Tuesday, February 6th, 2024, at 11 am (Nairobi), members of ESCR-Net will deliver to the Attorney General of Kenya’s office in Nairobi two call-to-action letters demanding the government immediately implement the Commission and Court rulings to ensure justice and reparations for the Endorois and Ogiek Peoples, including return of their ancestral lands and respect of their rights to free, prior and informed consent over any actions taken there. 

What’s at stake?

After 14 years, the Kenyan government continues to deny the Endorois Peoples’ return to their ancestral home and reparations for their forced eviction recognized by the African Commission on Human and Peoples’ Rights. 

At the same time, in the Mau Forest, the government continues to expel and deny reparations to the Ogiek Peoples, contrary to judgments of the African Court on Human and Peoples’ Rights beginning in 2017.  Since November 2, 2023, the Kenyan government has been carrying out forced evictions in the Mau Forest complex. The ongoing forced evictions have so far affected more than 700 people from the Ogiek community, half of whom are women and children. Their homes, schools, and belongings have been burned and demolished, and the rainy season makes their situation even more vulnerable. 

It is imperative that the Kenyan government immediately act to implement the decisions in their entirety and thus meet their obligation to respect, protect, and fulfill the human and environmental rights of the Endorois and Ogiek Peoples. 

What do the call-to-action letters say?

The two letters that will be delivered by members to the Attorney General emphasize the urgency of implementing the African Commission on Human and Peoples’ Rights (ACHPR) decision favoring the Endorois and Ogiek communities, including

• Call for Implementation: The Kenyan government must immediately fulfill its legal obligation to implement the ACHPR’s decisions.
• Lack of Progress and Inadequate Government Responses: More progress is needed in implementing the recommendations, focusing on insufficient responses and inadequate government actions.
• Impacts of Non-Implementation: The failure to implement has harmful effects on the Endorois and Ogiek communities, ranging from poverty to environmental degradation and the loss of cultural practices.
• Kenya’s Obligations under International Human Rights Law: We recall Kenya’s obligations under international human rights law, which has been incorporated in the Constitution.
• Specific Call to Action: We call on the Kenyan government to promptly implement the decision, publish compliance reports, consult the communities, and report regularly to the African Commission.

In the Endorois case, it has been 14 years of non-compliance. In the Ogiek case, it has been six years of waiting.
 

Photo: Minority Rights Group

ENDOROIS CASE CONTEXT

The Endorois are an agro-pastoralist indigenous community in Kenya comprising about 60,000 members who live communally around Lake Bogoria, one of the larger lakes in Kenya’s Rift Valley region. The social and cultural value of land for humanity is immeasurable, and rights relating to land are central to realizing a range of human rights. For the Endorois, the land around Lake Bogoria is their ancestral home which provided them green pasture, ample clean drinking water, medicinal salt licks for their cattle, traditional herbal medicines, practiced bee-keeping activities and where they performed important rituals and ceremonies such as circumcisions, burials, children’s naming ceremonies and other rituals related to their ancestors.

In 1973, the Endorois were forcibly evicted from their ancestral land by the Kenyan government to pave the way for a game reserve for tourism. The eviction took place without proper consultation or compensation. As a result of the eviction, the Endorois were forced to move on arid land, where many of their cattle died and the sustenance of their way of life was not possible any longer.

LOOKING FOR JUSTICE

In 2003, the Endorois, in partnership with the Minority Rights Group (MRG) and the Center for Minority Rights Development (CEMIRIDE), filed a case before the African Commission. On 25 November 2009, the Commission rendered a landmark ruling vindicating the rights of the Endorois people. The ruling was adopted by the African Union Heads of States Summit on 2 February 2010 in Addis Ababa Ethiopia. The Commission established that the Kenyan Government had violated the Endorois peoples’ rights and directed the Kenya Government to:

1. Recognize rights of ownership to the Endorois and restitute Endorois ancestral land;
2. Ensure that the Endorois Community has unrestricted access to Lake Bogoria Game Reserve and surrounding sites for religious and cultural rites and for grazing their cattle;
3. Pay adequate compensation to the Community for all the loss suffered;
4. Pay royalties to the Endorois from existing economic activities and ensure that they benefit from employment possibilities within the Reserve;
5. Grant registration to Endorois Welfare Committee;
6. Engage in dialogue with the complainants for the effective implementation of the recommendations;
7. Report on the implementation of these recommendations within three months from the date of notification.

14 YEARS WAITING FOR IMPLEMENTATION

The Kenyan government has failed to implement most of the recommendations of the case, and to date, little has changed for the Endorois community. The only recommendation implemented is the one related to the formal registration of EWC. Other recommendations saw little or no progress. In 2014, the Kenyan government formed a task force with a one-year tenure to engage in dialogue on implementing the decision. The task force only went to the community once without proper notice; there has been no report on what it achieved, and its term has never been renewed. The recommendations to pay royalties and grant unrestricted access to Lake Bogoria and surrounding areas have seen tokenistic implementation with all the others recommendations seeing no implementation whatsoever.

Photo: Minority Rights Group

OGIEK’S CASE CONTEXT

The Ogiek Case, brought by the Ogiek Peoples Development Programme (OPDP) and Minority Rights Group (MRG), that reached the Court was a culmination of a struggle against historical injustices of forced evictions and dispossessions against the Ogiek, dating back to the colonial days. In 2009, the Ogiek received a 30-days eviction notice from the Kenyan Forestry Service, to leave the Mau Forest and therefore filed a case at the African Commission on Human and Peoples’ Rights (the Commission), contesting the planned evictions and requesting for the ordering of Provisional Measures to prevent irreparable harm being done to them, pending the final determination of the communication. Provisional measures were Ordered, which the Government of Kenya illegally refused to comply with. 

The Commission, thereafter, referred the case to the Court, thereby, becoming the Applicant before the Court. Amicable settlement initiatives failed, and the Court decided to consider the complaint on its merits. On 26 May 2017, the Court delivered judgment on the merits of the case, ruling that the Ogiek are an Indigenous People of Kenya and that the evictions of the Ogiek from the Mau Forest violated their rights in terms of Article 2 (freedom from discrimination), Article 8 (freedom of religion), Article 14 (right to property), Article 17(2 & 3) (right to culture), Article 21 (the right to freely dispose of wealth and natural resources), Article 22 (right to development) and Article 1 (which obliges all member states of the Organization of African Unity to uphold the rights guaranteed by the African Charter on Human and Peoples’ Rights). On 23 June  2022, the Court delivered judgment on reparations, bringing to a close 13 years of litigation at the supranational level and ordered the Government of Kenya to:

1. Pay the Ogiek KES. 157.85 million as collective compensation for material and moral damages suffered;
2. Return the Ogiek’s ancestral lands in the Mau Forest to collective title within two years through a delimiting, demarcation and titling exercise in consultation with the Ogiek;
3. Commence a dialogue and consultation process with the Ogiek and any concerned parties in relation to any concessions and/or leases granted over Ogiek lands to reach an agreement on whether or not these operations will continue by way of lease or benefit sharing agreement and, where no agreement is reached, to return the lands to the Ogiek and compensate concerned third parties;
4. Adopt all necessary measures to ensure the full recognition of the Ogiek as an Indigenous People of Kenya, including full recognition of their language and cultural and religious practices;
5. Adopt all necessary measures to ensure the Ogiek are effectively consulted, in accordance with their traditions and/or their right to give or withhold their free, prior and informed consent, in relation to any development, conservation or investment projects on Ogiek lands;
6. Ensure full consultation with the Ogiek, in accordance with their traditions and customs, in the reparations process as a whole;
7. Adopt all necessary measures to give full effect to the judgment as a means of guaranteeing the non-repetition of violations;
8. Establish a community development fund within one year of the judgment for the benefit of the Ogiek people as a repository for the compensation awarded;
9. Coordinate the establishment of a committee to oversee the community development fund, which must include representatives chosen by the Ogiek and be operationalized within one year of the judgment;
10. Publish, within six months, the official summaries of the merits and reparations judgments in the Official Gazette and in a newspaper of wide circulation, as well as the full merits and reparations judgments, together with their summaries, on an official government website for a period of at least one year; and
11. Submit a report on the status of implementation of the reparations judgment within one year of the judgment.

The Court also ruled that it shall conduct a hearing on the status of implementation of the judgment’s orders on a date to be appointed by the Court, twelve (12) months from the judgment’s date.

RECENT FORCED EVICTIONS

Since November 2, 2023, the Kenyan government has been carrying out forced evictions(link is external) in the Mau Forest. The ongoing forced evictions have so far affected more than 700 people from the Ogiek community, half of whom are women and children. The government defends its decision based on the ‘conservation’ of the area. However, this defense does not consider that the evictions directly endanger the forest by undermining the Ogiek community’s role as stewards of nature and exemplify a blatant disregard of the Court’s Orders and Kenya’s obligations under international law. No alternative has been provided to the community, and irreparable damage may be caused to their lives, sources of livelihoods, family life, safet, and security if the evictions are not stopped, further defying Kenya’s obligations under international law.

For more information or to arrange interviews, please get in touch at [email protected]

Working Group(s): 

Strategic Litigation

Related Members: 

Endorois Indigenous Women Empowerment Network

Endorois Welfare Council (EWC)

Ogiek Peoples’ Development Program (OPDP)

Economic and Social Rights Centre (Hakijamii)

Minority Rights Group International

Centre for Human Rights, Faculty of Law, University of Pretoria

Witness

Kenya Human Rights Commission (KHRC)

Related Resources: 

Centre for Minority Rights Development (Kenya) and Minority Rights Group International on behalf of Endorois Welfare Council v. Kenya, 276/2003

ACHPR. Communication 276 / 2003 – Centre for Minority Rights Development (Kenya) and Minority Rights Group International on behalf of Endorois Welfare Council v Kenya

A Milestone For Indigenous Rights: African Court Of Human And Peoples’ Rights Awards Reparations To Ogiek People Of Kenya, Human Rights Pulse (Oct. 16, 2022)

ESCR-Net calls on the government of Kenya to cease further forced evictions of the Ogiek communities