Everything depends on the forest. Everything I get is from the forest: school fees, food, water. I depend on forest for everything. That’s my ancestral homeland,’ says a villager. He is part of a 20-minute video submission to the African Court of Human and People’s Rights, requesting his ancestral homeland be returned to him and the Ogiek people, by the Kenyan government.
For more than a hundred years the Ogiek have been facing oppression and evictions from their ancestral home in the Mau Forest. In 2009, MRG’s legal team received an email from Daniel Kobei, an Ogiek activist and currently director of the Ogiek Peoples’ Development Program (OPDP). He asked for MRG’s help in trying stop a plan to evict all those Ogiek who still remained living in the forest. MRG supported OPDP with a small grant to organize a campaign against the evictions. MRG also intervened directly with UN agencies, who conducted their own review of the situation, calling for respect of Ogiek rights. The short-term outcome was that the eviction plans were put on hold, but some community members had already been forced out, while others felt that a renewed eviction attempt could take place at any time.
Buoyed up by MRG’s recent success in a similar regional case against Kenya, OPDP reached out to MRG for assistance and support with their own regional case, and litigation started before the African Commission for Human and People’s Rights (the Commission) in 2009. In 2012, the case was referred, under a new procedure, to the African Court of Human and Peoples’ Rights (the Court) on the basis that it showed serious and mass human rights violations – an indication of how seriously the Commission viewed the matter. The case was the first Commission-referred case to be heard by the Court and the first ever case concerning minority or indigenous issues that the Court has had to consider.
Kobei believes this case is massively important because: ‘It is a chance that, whether the government likes it or not, it will go into the history books that the Ogiek has won a case for their ownership of Mau Forest Complex. The fight for Mau is not only for us, it is also for generations to come.’
In March 2013, a provisional measures order was issued by the Court in favour of the Ogiek. The provisional measures order required the Kenyan government to immediately reinstate the restrictions it had imposed on land transactions in the Mau Forest Complex (e.g. the sale of land or the issuing of concessions to use or log the land), and refrain from any act that might irreparably prejudice the main application, until the Court gives its final decision in the case. Even this order has not been respected by the government of Kenya.
But while this was an important development for the Ogiek and the first order of its kind handed down by the Court, the Ogiek had to hear about it second-hand. That is because, while the case has major impacts for the lives of the Ogiek, when the case was referred to the Court by the Commission, it meant that formally the Ogiek are no longer a party to the case – and nor are OPDP or MRG. Instead, the Commission became the Applicant before the Court. This means that MRG and OPDP cannot directly communicate with the Court and had to rely on the Commission to conduct all the advocacy, which presented some problems.
In one instance, the day that the provisional order was handed down, the Ogiek found out through a press release that the ruling had been issued. Therefore, none of the Ogiek were there in person to hear the ruling. ‘So there’s this whole question over the role of the original complainants due to the need to keep them informed and consulted,’ says Lucy Claridge, legal director of MRG.
There were also some procedural aspects of the referral process which caused issues, since arguments on the merits of the case had not yet been presented to the Commission – following its procedure – but the Court didn’t take this into account and closed proceedings once they had received the files from the Commission, and the Commission had to ask special permission for the proceedings to be re-opened. This lack of alignment is emblematic of this new procedure, and MRG could see this was going to be a problem from the start. However, not being an Applicant before the Court, MRG could not communicate with the Court about it. MRG has had in mind throughout this process not only the community for whom this litigation is being carried out but also future generations of litigants who will need to use this procedure, and is keen that these problems should be ironed out. Since the Commission was inexperienced, it was a big learning process for them.
In November 2014, 26 Ogiek representatives attended a two-day Court hearing in Addis Ababa. At the Court proceedings, witness evidence, expert evidence and the 20-minute video submission were presented. This was very impactful for the Ogiek: ‘For the first time we had a chance as a community to stand before the Court and tell them our plights,’ says Kobei. After the proceedings, the Kenyan government proposed trying to negotiate an amicable settlement; this proposal was accepted by the Commission, even though the Ogiek, OPDP and MRG did not want a settlement and did not believe that the government of Kenya would negotiate in good faith towards a solution that was in line with international standards. Again this raises the question of the role of the original complainants in a case referred to the Court by the Commission.
According to Kobei, ‘They said, “Let’s give the amicable settlement a chance.” This kind of scenario made us think, “Could it be that the African Commission are favouring the government instead of favouring the people [Ogiek] who are the victims?”’
This settlement negotiation process delayed and was dragged out through all 2015 and into early 2016. Eventually the Commission rejected the government’s terms for a settlement. In March 2016, the Court accepted the Commission’s request and decided to proceed with judicial consideration of the case. In October 2016, OPDP and MRG attended the Court’s 59th session and met with Court representatives, including Court President Oré, who stated that judgment is very likely to be delivered at the March 2017 session.
There have been some unintended positive side effects resulting from the delay. Says Kobei, ‘The delay has made the Ogiek stronger than ever before, more united than ever before, and now we are working on one road together with all the Ogiek leaders.’
‘I think one of the reasons the court hasn’t wanted to touch this case is it’s huge,’ says Claridge. ‘This is a group of 35,000 people but how many indigenous people are being forced off their land in Africa? Millions, so this will set a huge precedent.’
Along the way, MRG has funded forums to alert the Ogiek about the progress of the case which the communities are grateful for. ‘Whenever there is any letter from the African Commission, Lucy has been excellent in communication. She always writes to us,’ says Kobei. ‘They feel that they more connected to the case as a result of this. We are indebted to Lucy for the effort and the energy she has put in to the case.’
While these cases were taking place at the African Court, there have been some continuing violations of the provisional measures order, with violent evictions of approximately 1,000 Ogiek in Nakuru county (resulting in one death), collusion between the perpetrators and the police, and police intimidation of the Ogiek.
To ensure that these violations do not go undocumented, MRG has funded paralegal training for women and men in the community. Now people can defend their own rights in the community and they’re not depending on organizations. According to Eunice Chepkemoi, gender officer of OPDP, ‘Most of the members of the community have been experiencing land violations but, because of the knowledge which was given to them, they can now claim their land rights by themselves in court. They don’t have to depend on coming to the organization.’ This paralegal knowledge has allowed people to be more proactive in the community. Some paralegals have even engaged local politicians and participated in media events.
There have been other individual examples of paralegals doing work on issues such as child rights; gender-based violence; succession rights and will planning. Another example highlights its importance for women’s rights. Says Chepkemoi, ‘We had a case in Narok, whereby one of the girls in primary school was married off by her father and now, because of the work of the paralegal training, one of the paralegals went to intervene in the case. The father was taken to the court and forced to explain why he wanted the girl to be married off at that early age. He explained that he wanted to get cows as a dowry, from the man who wanted to marry his daughter.’
Early marriage is a big problem for women in the Ogiek communities. Most of the girls face a lot of violence and don’t get the same educational opportunities as men do because they are being married off at a young age. Chepkemoi believes this is why most women live in poverty. She adds, ‘For the paralegal training, we gave an opportunity to the Ogiek women. We connected some of the women in the community and find they are more influential in fighting for the rights of their community. Right now the women have come out to express themselves, but before they could not even stand in front and represent themselves. Now, they have more of a voice.’
The Ogiek have vocalized their concerns worldwide. The Ogiek presented their issues at the UN Permanent Forum on Indigenous Issues and made statements at the World Conference on Indigenous Peoples. Says Chepkemoi, ‘We know we are going to gain a lot of support from international communities and they know that when we have support from international communities it is possible for their rights to be recognized. It’s not easy for you to fight for your own rights, especially when you are fighting the government, but when you try to engage with other international bodies, it is easier.’
MRG has also funded national advocacy on behalf of the Ogiek. There was advocacy campaign to raise awareness among the public and the media in relation to how specific policies impact the Ogiek. Approximately 50–100 people participated in meetings in Nakuru, Uasin Gishu and Narok counties. The focus of discussions in Uasin Gishu was on women and youth, in Nakuru land ownership, and in Narok livelihoods and the role of minorities in government. An outcome of these discussions was 26 education bursaries provided to some Ogiek children, equipment being obtained by the county government for dispensaries, and some roads being graded. Says Kobei, ‘Most recently, through Lucy, we were able to have connection with the Kenyan National Human Rights Commission, which is a human rights organization in Kenya and all this started because we were in Banjul, Gambia, where we had a discussion and we agreed upon many things. So the advocacy has really made a big big impact.’
Chepkemoi is also very appreciative of MRG’s efforts. ‘MRG has led to the visibility of OPDP both nationally and internationally. Also, because of the case we have at the African Commission, we really appreciate MRG. If it wasn’t for them, always supporting us, it could have been much more difficult to attain where we are now.