The Ogiek Case of the African Court on Human and Peoples’ Rights
Posted: Tue Feb 18, 2025 4:23 am
On Friday, May 26, the African Court on Human and Peoples’ Rights (African Court) delivered its long-awaited judgement on the expulsion of the Ogiek people, a Kenyan hunter-gatherer community, from their ancestral lands in the Mau forest. As the African Commission on Human and Peoples’ Rights (African Commission) did not manage to settle the conflict, it was transferred to the African Court in 2012. The relationship between the African Court and the African Commission is complementary. The African Court’s Protocol does not automatically allow for individual complaints (only eight states signed the Special Declaration rendering individual complaints possible) and its judgements are binding. It was the first indigenous rights case before the Court and it had raised hope with regard to the clarification and operationalization of the Charter’s “peoples’ rights”.
The Court widely followed the African Commission’s application and found that the eviction of the Ogiek without consultation amounted to several rights violations: the right to non-discrimination (Art. 2), culture (Art. 17(2) and (3)), religion (Art. 8), property (Art. 14), natural resources (Art. 21) and development (Art. 22). The respondent’s argument that the eviction was justified by the need to protect the Mau forest was dismissed by the Court. It, however, found no violation of the right to life, as the applicants failed to show that the physical existence of the community was being threatened by the eviction.
This article highlights some of the decision’s most interesting features: (1) the characteristics of indigenousness, (2) the right to land, (3) the right to food as derived from the right to natural resources, and (4) the state’s duty to obtain the free, prior and informed consent (FPIC) of communities. It will be shown how the new judgement relates to the African Commission’s jurisprudence (particularly the well-known 2001 Ogoni and 2009 Endorois decision), as well as to international law.
Indigenousness in Africa
In sub-Saharan Africa, the concept of indigenousness is more truemoney database controversial than in other regions and the distinction between minorities, indigenous peoples and “peoples” is still not clear cut. The status of a community is relevant insofar as it can allow for the interpretation of the African Charter in light of international indigenous or minority rights and jurisprudence.
In the Ogiek decision, the African Court, instead of applying the characteristics of the AU Working Group of Indigenous Populations/Communities, used the criteria elaborated by the Erica-Irene Daes, the former Chairperson of the UN of the Sub-Commission on Prevention of Discrimination and Protection of Minorities:
A timely dimension with regard to the occupation and use of the land
Voluntary perpetuation of cultural distinctiveness
Self-identification and recognition by other groups or by state authorities
An experience of subjugation, marginalisation, dispossession, exclusion or discrimination (para 107)
The “voluntary perpetuation of cultural distinctiveness”, as well as the recognition by other groups or the state are new features. With regard to the cultural distinctiveness, it is questionable, whether this element is not already covered by the principle of self-identification. Moreover, it seems to convey an essentialist understanding of culture, which does not sufficiently acknowledge that culture is constantly changing through endogenous and exogenous influences.
The Court widely followed the African Commission’s application and found that the eviction of the Ogiek without consultation amounted to several rights violations: the right to non-discrimination (Art. 2), culture (Art. 17(2) and (3)), religion (Art. 8), property (Art. 14), natural resources (Art. 21) and development (Art. 22). The respondent’s argument that the eviction was justified by the need to protect the Mau forest was dismissed by the Court. It, however, found no violation of the right to life, as the applicants failed to show that the physical existence of the community was being threatened by the eviction.
This article highlights some of the decision’s most interesting features: (1) the characteristics of indigenousness, (2) the right to land, (3) the right to food as derived from the right to natural resources, and (4) the state’s duty to obtain the free, prior and informed consent (FPIC) of communities. It will be shown how the new judgement relates to the African Commission’s jurisprudence (particularly the well-known 2001 Ogoni and 2009 Endorois decision), as well as to international law.
Indigenousness in Africa
In sub-Saharan Africa, the concept of indigenousness is more truemoney database controversial than in other regions and the distinction between minorities, indigenous peoples and “peoples” is still not clear cut. The status of a community is relevant insofar as it can allow for the interpretation of the African Charter in light of international indigenous or minority rights and jurisprudence.
In the Ogiek decision, the African Court, instead of applying the characteristics of the AU Working Group of Indigenous Populations/Communities, used the criteria elaborated by the Erica-Irene Daes, the former Chairperson of the UN of the Sub-Commission on Prevention of Discrimination and Protection of Minorities:
A timely dimension with regard to the occupation and use of the land
Voluntary perpetuation of cultural distinctiveness
Self-identification and recognition by other groups or by state authorities
An experience of subjugation, marginalisation, dispossession, exclusion or discrimination (para 107)
The “voluntary perpetuation of cultural distinctiveness”, as well as the recognition by other groups or the state are new features. With regard to the cultural distinctiveness, it is questionable, whether this element is not already covered by the principle of self-identification. Moreover, it seems to convey an essentialist understanding of culture, which does not sufficiently acknowledge that culture is constantly changing through endogenous and exogenous influences.