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African Commission on Human and Peoples Rights v Republic of Kenya (Application No. 006-2012)

African Court on Human and Peoples' Rights · [2022] AfCHPR 18 · 2022 Application Granted AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Reparations phase following merits judgment establishing violations of the African Charter on Human and Peoples' Rights
Decision
Comprehensive reparations ordered including monetary compensation, land restitution through delimitation and titling, recognition of indigenous status, establishment of development fund, and guarantees of non-repetition

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No later-treatment classification is recorded for this judgment.

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Holding

The Court ordered comprehensive reparations for violations of the Ogiek people's rights under the African Charter. The Respondent State must pay KES 57,850,000 for material prejudice and KES 100,000,000 for moral prejudice. The State must delimit, demarcate and title Ogiek ancestral lands within two years, recognise the Ogiek as an indigenous people within twelve months, establish a community development fund, and ensure effective consultation with the Ogiek on all matters affecting them. The Court dismissed prayers for a public apology and monument, finding its judgment constitutes sufficient satisfaction.

Outcome

Comprehensive reparations ordered including monetary compensation, land restitution through delimitation and titling, recognition of indigenous status, establishment of development fund, and guarantees of non-repetition

Facts

In October 2009, the Ogiek, an indigenous minority ethnic group in Kenya, received a 30-day eviction notice from the Kenya Forestry Service to leave the Mau Forest. The African Commission on Human and Peoples' Rights received an application on 14 November 2009 from the Centre for Minority Rights Development and Minority Rights Group International acting on behalf of the Ogiek of Mau Forest. The Commission filed this Application with the Court on 12 July 2012. On 26 May 2017, the Court delivered its judgment on merits, finding that Kenya had violated Articles 1, 2, 8, 14, 17(2) and (3), 21 and 22 of the African Charter. The Court reserved its ruling on reparations. The Parties subsequently filed submissions on reparations. The Ogiek are a hunter-gatherer community who have occupied the Mau Forest since time immemorial. The violations included evictions from ancestral lands, denial of recognition as a distinct tribe, restrictions on religious and cultural practices, and failure to consult the Ogiek on matters affecting their development.

Issues

  1. What reparations are due to the Ogiek people for violations of their rights under the African Charter on Human and Peoples' Rights?
  2. Whether the Respondent State should be ordered to delimit, demarcate and title Ogiek ancestral lands?
  3. What amount of pecuniary compensation should be awarded for material and moral prejudice suffered by the Ogiek?
  4. Whether the Respondent State should be ordered to recognise the Ogiek as an indigenous people?
  5. What non-pecuniary reparations, including guarantees of non-repetition, should be ordered?

Orders

  • Respondent State to pay KES 57,850,000 as compensation for material prejudice suffered by the Ogiek.
  • Respondent State to pay KES 100,000,000 as compensation for moral prejudice suffered by the Ogiek.
  • Respondent State to identify, delimit, demarcate and title Ogiek ancestral land and grant collective title within two years.
  • Where concessions or leases have been granted over Ogiek ancestral land, Respondent State to commence dialogue between Ogiek and other parties to reach agreement on continuation or compensation.
  • Respondent State to take measures within one year to guarantee full recognition of the Ogiek as an indigenous people, including recognition of Ogiek language and cultural and religious practices.
  • Applicant's prayer for public apology dismissed.
  • Applicant's prayer for erection of monument dismissed.
  • Respondent State to take measures to recognise and protect the right of the Ogiek to be effectively consulted on all development, conservation or investment projects on Ogiek ancestral land.
  • Respondent State to ensure full consultation and participation of the Ogiek in the reparation process.
  • Respondent State to adopt measures to guarantee non-repetition of violations.
  • Respondent State to establish a community development fund for the Ogiek within twelve months.
  • Respondent State to establish and operationalise a Committee for management of the development fund within twelve months.
  • Respondent State to publish official English summaries of this judgment and the merits judgment within six months.
  • Respondent State to submit a report on implementation status within twelve months.
  • Court to conduct a hearing on implementation status twelve months from date of judgment.
  • Each party to bear its own costs.

Rules and key headnotes

Reparations — Right to Reparation for Human Rights Violations — Fundamental Principle of International Law
The right to reparations for the breach of human rights obligations is a fundamental principle of international law. A State that is responsible for an international wrong is required to make full reparation for the damage caused. The breach of an engagement involves an obligation to make reparation in an adequate form.
Reparations — Burden of Proof — Causal Link Between Violation and Damage
The Applicant bears the burden of proof regarding the claim for reparations. It is not enough to show that the Respondent State has violated a provision of the Charter; it is also necessary to prove the damage that the State is being required to indemnify. There must be a causal link between the wrongful act that has been established and the alleged prejudice.
Reparations — Pecuniary Damages — Equitable Award Where Precise Quantification Difficult
Where the length of time over which violations occurred, the number of people affected, the victims' way of life, and general difficulties in attaching monetary value to loss make precise quantification of pecuniary loss difficult, the Court may exercise its discretion in equity to determine fair compensation. The Court's award, though premised on equitable discretion, is informed by submissions before it and applicable law.
Indigenous Peoples' Rights — Property Rights — Ownership versus Access
Granting indigenous people privileges such as mere access to land is inadequate to protect their rights to land under international law. What is required is to legally and securely recognise their collective title to the land in order to guarantee their permanent use and enjoyment of the same. Ownership of land for indigenous people entails the right to control access to indigenous lands, though it is not necessarily the same as other forms of State ownership such as possession of a fee simple title.
Indigenous Peoples' Rights — Communal Property — Collective Ownership
Among indigenous peoples there is a communitarian tradition regarding a communal form of collective property of the land, in the sense that ownership of the land is not centred on an individual but rather on the group and its community. Indigenous people have, by the fact of their existence, the right to live freely in their own territory. The close ties that indigenous peoples have with the land must be recognised and understood as the fundamental basis of their cultures, spiritual life, integrity and economic survival.
Indigenous Peoples' Rights — Restitution of Ancestral Lands — Delimitation, Demarcation and Titling
In order to make the protection of indigenous peoples' right to land meaningful, there must be more than an abstract or juridical recognition of the right to property. Physical delineation, demarcation and titling is important. Demarcation is the formal process of identifying the actual locations and boundaries of indigenous lands or territories and physically marking those boundaries on the ground. This serves to remove uncertainty and ensures indigenous people can engage with the state and third parties as active stakeholders rather than passive beneficiaries.
Indigenous Peoples' Rights — Consultation — Free, Prior and Informed Consent
It is a basic requirement of international human rights law that indigenous peoples be consulted in all decisions and actions that affect their lives. The State has an obligation to consult indigenous peoples in an active and informed manner, in accordance with their customs and traditions, within the framework of continuing communication between the parties. Such consultations must be undertaken in good faith and using culturally-appropriate procedures. Consultations must begin during the early stages of development plans, and the State must ensure that indigenous peoples are aware of potential benefits and risks so they can decide whether to accept proposed development, in line with the notion of Free Prior and Informed Consent.

Legislation cited (15)

  • African Charter on Human and Peoples' Rights Article 1
  • African Charter on Human and Peoples' Rights Article 2
  • African Charter on Human and Peoples' Rights Article 4
  • African Charter on Human and Peoples' Rights Article 8
  • African Charter on Human and Peoples' Rights Article 14
  • African Charter on Human and Peoples' Rights Article 17(2)
  • African Charter on Human and Peoples' Rights Article 17(3)
  • African Charter on Human and Peoples' Rights Article 21
  • African Charter on Human and Peoples' Rights Article 22
  • Protocol to the African Charter on Human and Peoples' Rights on the Establishment of an African Court on Human and Peoples' Rights Article 27(1)
  • Community Land Act 2016 (Kenya)
  • Forest Conservation and Management Act 2016 (Kenya)
  • Constitution of Kenya 2010 Article 61
  • Constitution of Kenya 2010 Article 63(2)(d)(ii)
  • UN Declaration on the Rights of Indigenous Peoples Article 28

Cases cited (15)

  • The Factory at Chorzow (Jurisdiction) (1927) PCIJ Series A No. 9
  • The Factory at Chorzow (Merits) (1928) PCIJ Series A No. 17
  • Beneficiaries of Late Norbert Zongo and Others v Burkina Faso (Reparations) (5 June 2015) 1 AfCLR 258
  • Lohe Issa Konate v Burkina Faso (Reparations) (3 June 2016) 1 AfCLR 346
  • Reverend Christopher Mtikila v United Republic of Tanzania (14 June 2013) 1 AfCLR 72
  • African Commission on Human and Peoples' Rights v Republic of Kenya (merits) (26 May 2017) 2 AfCLR 9
  • Saramaka People v Suriname (2007) IACtHR Series C No. 172
  • Kichwa Indigenous People of Sarayaku v Ecuador (2012) IACtHR Series C No. 245
  • Anudo Ochieng Anudo v United Republic of Tanzania (Application No. 012/2015) (2 December 2021)
  • Case of the Xakmok Kasek Indigenous Community v Paraguay (2010)
  • Case of the Sawhoyamaxa Indigenous Community v Paraguay (2006)
  • Case of the Yakye Axa Indigenous Community v Paraguay (2005)
  • Kalina and Lokono Peoples v Suriname (2015) IACtHR Series C No. 309
  • Centre for Minority Rights Development v Kenya (Communication No. 276/2003)
  • Mayagna (Sumo) Awas Tingni Community v Nicaragua (2001) IACtHR Series C No. 79

Full judgment

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African Commission on Human and Peoples Rights v Republic of Kenya (Application No. 006-2012) [2022] AfCHPR 18 (23 June 2022)
Source: this page presents Wakilii’s issue analysis and metadata for a publicly reported Ugandan judgment. Any AI-generated summary is marked as such. Judgment text is sourced from the Uganda Legal Information Institute (ulii.org). Wakilii is not affiliated with ULII.