Introduction
Indigenous Peoples with diverse cultures and customs live all over the world. Their customs and rituals precede today’s structures. With this in mind, these communities occupy a very important role. It is essential to recognize this outstanding role and to respect their rights.
Nevertheless, even today, there are, unfortunately, cases in which indigenous communities and their way of life are disregarded.[1] Attempts by states, for instance, to undermine Indigenous Peoples’ rights, especially land rights, persist. It repeatedly occurs that states confront Indigenous Peoples with eviction from their ancestral land, on which these communities depend for their living. For example, in Africa, the Batwa in the DRC,[2] the Endorois,[3] as well as the Ogiek community in Kenya have faced such challenges in the past.[4] However, these are only a few of the best-known examples.
In order to protect land rights for the Indigenous Peoples, institutions such as the African Court on Human and Peoples’ Rights (ACtHPR) are of paramount significance. The decisions of these institutions, particularly legally binding court decisions, [5] shape the perception and protection of land rights for the Indigenous Peoples. Accordingly, it is important to pursue and address the developments promoted by these institutions through their decisions. Therefore, a closer look is taken at the legal developments of land rights for Indigenous Peoples in Africa. This will be done using the Ogiek case, which holds particular significance as the first case concerning Indigenous Peoples’ rights, on which the ACtHPR ruled.[6]
Decisions of the ACtHPR on the Ogiek case
In 2017, the ACtHPR concluded that seven rights under the African Charter on Human and Peoples’ Rights had been violated.[7] The Ogiek have further been assured that they had a communal right to the land of their ancestors, which they visibly take care of without just consuming its resources. In addition, it was also announced that the ACtHPR would monitor the government while it is taking all measures necessary to remedy the violations within six months.[8]
The question of reparation was decided separately in 2022.[9] In particular, the ACtHPR noted that violations of rights before Kenya became a party to the Charter in 1992 may also be considered. The decision included monetary and non-monetary compensation. In addition, it clarified that the Ogiek must be involved in the developments that affect them and their land in an appropriate manner. Under international law, the state is also obliged to consult them with respect to the concept of free, prior, and informed consent. Since the previous measures taken by the Kenyan state had not brought about much positive change, the ACtHPR’s decision directed the state to take more effective measures in the coming year. [10]
Achievements of the decisions on the protection of Indigenous Peoples’ land rights
I have identified four major achievements of the decision in 2017 as well as six impacts of the follow-up decision, which I would like to share.
First of all, the ACtHPR’s 2017 judgment confirmed the Ogiek community’s land rights to their ancestral land and thus contributed to their protection. [11]
Secondly, in particular, the role of the Ogiek, and thus of Indigenous Peoples in Africa, as protectors of their ancestral land and, therefore, of local natural areas is also reinforced. Since this recognizable concession gives Indigenous Peoples a very important role in terms of nature conservation, it sets out the importance of protecting Indigenous Peoples’ land rights for everyone.[12] The ruling shows, furthermore, that the preservation and development strategies pursued by states ought not to be to the detriment of rights, such as land rights and the existence of Indigenous Peoples.[13] Moreover, due to the recognizably large scope and equally existing public interest, it also draws the attention of many, in particular to the respect of Indigenous Peoples’ land rights. In this way, further human rights violations of Indigenous Peoples are prevented.[14] The decision on the exact extent of the reparations in 2022 is a big step in the right direction, as it obliges the state to make monetary and non-monetary compensation.[15] In contrast to what happened, for example, after the Endorois decision,[16] the reparations must also be truly implemented under supervision.[17]
A third impact is that the ACtHPR’s further consideration of the Ogiek case in the follow-up ruling led to the strengthening of the rights that were addressed in the case.
Fourthly, it also establishes Indigenous Peoples’ rights to information and participation when it comes to their ancestral land. In particular, the inclusion of the international law concept of free, prior, and informed consent sets a standard of possible inclusion.[18]
In addition, the reparations also secure the cultural rights of the Ogiek community associated with their ancestral lands for future generations. As a sixth effect, it can be finally noted that further human rights violations in relation to the land rights of Indigenous Peoples are pre-emptively counteracted through the sanctions against the unlawful acting state. This is also underlined by the fact that even the behaviour of a state before it became a party to the African Charter is considered in order to enable comprehensive redress.[19]
Even though it took several years for both decisions to be adopted,[20] this does not cast the positive consequences of the decisions in a less positive light. On the contrary, the long process highlights the well-considered decision of the ACtHPR and, through the positive consequences described, will thereby very likely contribute to a better observance of land rights for the Indigenous Peoples. Accordingly, the decisions fortify progressive jurisprudence on the protection of land rights for the Indigenous Peoples in Africa.
The Ogiek case as a precedent
The described implications of the ACtHPR’s two decisions on the Ogiek case not only set a precedent for other cases involving these rights, in particular the land rights of Indigenous Peoples in Africa, but it is also conceivable that the case may serve as precedent in the international context.
[1] Matthew Taylor, ‘Protect indigenous people to help fight climate change, says UN rapporteur: World leaders must do more to defend custodians of natural world whose lives are at risk from big business, says UN rapporteur Victoria Tauli-Corpuz’ (TheGuardian.Com, 6 October 2017) <https://www.theguardian.com/world/2017/oct/06/protect-lives-indigenous-people-can-limit-climate-change-says-un> accessed 23 June 2023.
[2] Minority Rights Group International, ‘DRC: The admissibility decision of the African Commission on Human and Peoples’ Rights on a case involving the eviction of indigenous people from their ancestral lands represents a beacon of hope’ (Minorityrights.Org, 2 July 2019) <https://minorityrights.org/2019/07/02/drc-admissibility-decision-african-commission-on-human-and-peoples-rights-on-eviction-of-indigenous-people-from-ancestral-lands-represents-beacon-of-h/> accessed 17 June 2023.
[3] International Network for Economic, Social and Cultural Rights, ‘The Endorois case’ (ESCR-Net.Org, 5 June 2018) <https://www.escr-net.org/news/2018/endorois-case> accessed 18 June 2023.
[4] International Network for Economic, Social and Cultural Rights, ‘African Commission on Human and Peoples’ Rights v. Republic of Kenya, ACtHPR, Application No. 006/2012 (2017)’ (ESCR-Net.Org, 29 October 2017) <https://www.escr-net.org/caselaw/2017/african-commission-human-and-peoples-rights-v-republic-kenya-acthpr-application-no> accessed 18 June 2023.
[5] Manisuli Ssenyonjo, ‘Responding to Human Rights Violations in Africa: Assessing the Role of the African Commission and Court on Human and Peoples’ Rights (1987-2018)’ (Brill.Com, 19 June 2018) <https://brill.com/view/journals/hrlr/7/1/article-p1_1.xml?language=en> accessed 17 June 2023.
[6] International Network for Economic, Social and Cultural Rights (n 4).
[7] Ibid.
[8] Ibid.
[9] Sofia Olofsson, ‘After Decades of Illegal Evictions – Indigenous Ogiek Win Reparations Ruling Against the Republic of Kenya’ (Havardilj. Org, January 2023) <https://harvardilj.org/2023/01/after-decades-of-illegal-evictions-indigenous-ogiek-win-reparations-ruling-against-the-republic-of-kenya/> accessed 24 June 2023.
[10] International Network for Economic, Social and Cultural Rights, ‘African Commission on Human and Peoples Rights v. Republic of Kenya, Judgment, Application No. 006/212’ (ESCR-Net.Org, 23 June 2022) <https://www.escr-net.org/caselaw/2023/african-commission-human-and-peoples-rights-v-republic-kenya-judgment-application-no> accessed 18 June 2023; United Nations Human Rights Office, ‘Kenya: UN expert hails historic ruling awarding reparations to Ogiek indigenous peoples’ (Ohchr.Org, 18 July 2022) <https://www.ohchr.org/en/press-releases/2022/07/kenya-un-expert-hails-historic-ruling-awarding-reparations-ogiek-indigenous> accessed 24 June 2023.
[11] International Network for Economic, Social and Cultural Rights, ‘ACHPR, Press Statement of the African Commission on Human and Peoples’ Rights following the handing down of the judgment in Application 006/2012 by the African Court, May 29, 2017’ (ESCR-Net.Org, 29 May 2017) <https://www.escr-net.org/node/394410> accessed 24 June 2023.
[12] International Network for Economic, Social and Cultural Rights (n 4); Lucy Claridge/Daniel Kobei, ‘Protected areas, Indigenous rights and land restitution: the Ogiek judgment of the African Court of Human and Peoples’ Rights and community land protection in Kenya’ (Cambridge.Org, 10 February 2023) <https://www.cambridge.org/core/journals/oryx/article/protected-areas-indigenous-rights-and-land-restitution-the-ogiek-judgment-of-the-african-court-of-human-and-peoples-rights-and-community-land-protection-in-kenya/9C0EAD81FA60D3C469C2F63C7D7390AE> accessed 25 June 2023.
[13] International Network for Economic, Social and Cultural Rights (n 11).
[14] International Network for Economic, Social and Cultural Rights (n 4).
[15] United Nations Human Rights Office (n 10).
[16] International Network for Economic, Social and Cultural Rights (n 3).
[17] International Network for Economic, Social and Cultural Rights (n 10).
[18] Ibid.
[19] Ibid.
[20] International Network for Economic, Social and Cultural Rights (n 4); International Network for Economic, Social and Cultural Rights (n 10).
