The Ogiek community has taken the Kenyan government to the African Court on Human and People’s Rights, seeking compensation for their continuing evictions from the Mau Forest Complex in the Rift Valley, thereby depriving them of their livelihood.

The Ogiek community argues that for many years, the Kenyan government has committed a series of acts including harassment and arbitrary evictions, without consultation or compensation. The community consider the Mau Complex its ancestral home and one that is crucial for their survival as an indigenous people.

In addition to restitution and compensation, the Ogiek are also seeking a number of remedies including the adoption of legislation guaranteeing their right to be consulted on decisions that touch on them, the issuance of a public apology for their forcible evictions, the erection of a public monument acknowledging the violation of Ogiek rights, and full recognition of the Ogiek as an indigenous people of Kenya.

The application was filed by the African Union Commission on Human and People’s Rights on behalf of the Ogiek community. The hearing started on November 27 in Addis Ababa, where the judges are currently having an annual session away from the Court’s seat in Arusha, Tanzania.

According to Pacifique Manirakiza — the lawyer representing the commission and a professor of law at the University of Ottawa, Canada — it is a test-case that symbolises the beginning of a new form of engagement by the Commission with relevant regional bodies aimed at ensuring better protection of human and peoples’ rights on the continent.

“For the Ogiek people, the Mau Forest is their supermarket where they get food, firewood and other life essentials. Mau Forest is their pharmacy or drugstore where they turn for their medication, health care and wellness. Mau Forest is their temple or church or mosque, where they go to worship their god,” said Prof Manirakiza.

The Ogiek say that the Mau Forest is a place where they gather for their cultural rituals and ceremonies, thus evicting them for development projects without their prior, free and informed consent entails a destruction of this lifestyle. It also amounts to serious and massive violations of human and peoples’ rights guaranteed under international African law.

The applicants expect the Court to set the criteria for the delicate balance that ought to be struck between developmental projects and community or individual rights.

In its response, the Kenyan government — which is being represented by Peter Ngumi, argues that the Ogiek community has not exhausted local remedies or adduced evidence to show that the remedies were unduly prolonged; that the Court lacks jurisdiction to hear the matter; and that there is pending litigation before the African Commission on the matter that violates the complementarity regime between the Court and the Commission.

However, another lawyer for the Ogiek, Selemani Kinyunyu, argues that the community has taken numerous steps to exhaust local remedies including at least eight civil actions in the municipal courts of Kenya, where no effective remedy has been provided.

“The Kenyan government merely sets out vague and general arguments on the remedies that in theory are available to the Ogiek but that have in practice not been effective,” he said. 

The complainants before the African Commission on behalf of the Ogiek, include the Centre for Minority Rights Development, Minority Rights Group International (MRG) and Ogiek Peoples’ Development Program. MRG is the leading international human rights organisation working to secure the rights of ethnic, religious and linguistic minorities, and indigenous people around the world.

The Ogiek case is drawing additional strength from the fact that the Kenyan government is yet to compensate the Endorois community for the loss suffered as a result of the expropriation of their ancestral lands around Lake Bogoria Game Reserve, which also lies in the Rift Valley.

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The African Commission on Human and People’s Rights had in May 2010 ordered the Kenyan government to compensate the community for the evictions — which took place between 1973 and 1986 — from the land for tourism development.

The land has great tourism potential due to its hot springs and abundant wildlife, including one of Africa’s largest populations of flamingos.

However, Kenya’s Attorney-General Prof Githu Muigai, told The EastAfrican that the government had formed a taskforce to look into the modalities of compensation in line with the 2010 Constitution, because the judgment was made before the country got a new Constitution.

While the Centre for Minority Rights Development (Cemiride) challenged the evictions in Kenyan courts in 1998, it lost the case. Thus various human rights organisations see the African Commission’s ruling as a major victory for indigenous peoples across the continent.

Another victory for such groups was experienced in 2006 when the court, in a landmark ruling, ordered the Botswana government to return to the Bushmen of Central Kalahari Game Reserve their ancestral land after they had been forcibly evicted. In the early 1980s, diamonds were discovered in the reserve, and soon after, the government ordered that the indigenous hunter-gatherer Bushmen be evicted from the land.

The evictions took place in 1997, 2002 and 2005, with government security agencies dismantling the Bushmen’s homes, schools and health centres.

In the Ogiek case, Lucy Claridge — representing MRG — argues that the community is concerned that as a direct result of the repeated and arbitrary forcible evictions, as well as the routine discrimination they have suffered, their livelihoods are threatened while their cultural life and hunter-gatherer activities are being destroyed.

Ms Claridge argues that due to logging, the respondent government recently entered into an extensive reforestation and restoration project via its agencies — the Kenya Forestry Service and the Ministry of Finance — within the Mau Forest, without consulting the Ogiek.

The project has been developed under the Clean Development Mechanism established by the Kyoto Protocol to cut emissions, for which the government is likely to be receiving international investments in return for carbon credits. The project will include commercial plantation, which will involve other people being given rights over the Ogiek land.

Ms Claridge argues that the project, which will involve the planting of mainly non-indigenous trees such as cypress and eucalyptus, will not maintain Mau’s ecosystem nor will it support the Ogiek’s traditional way of life, since the trees do not produce flowers for nectar necessary for honey production.

“The Kenyan government was made aware of the Ogiek’s presence and rights over the land in the Mau Forest, yet the Ogiek were not consulted about this project. International law requires the effective participation of the Ogiek, in conformity with their customs and traditions, regarding any development, investment, exploration or extraction plan within their ancestral territory. It also requires a guarantee from the state that the Ogiek will receive reasonable benefits from any such plan within their territory,” she said.