Defending our Future: Overcoming the Challenges of Returning the Ogiek Home
On 26 May 2017, cheering broke out in a courtroom in Arusha as the African Court of Human & Peoples Rights read its judgment in the matter concerning the violation of the human rights of the Ogiek people that have stemmed from their eviction from the Mau Forest.
The moment was a global validation for how courts of law could respond to the real challenge of undoing the damage of mass exploitation of natural resources that have pushed indigenous peoples to live as marginalised communities on their own lands.
The Court’s order was clear: the Ogiek are the owners of the Mau Forest, and their immediate return with full recognition of their ancient title is the only way in which the community and the environment can be safeguarded.
The onus was placed on the Government of Kenya to take steps for ensuring a safe return of the community accompanied by the necessary changes to ensure that their title in law would be respected in perpetuity.
Three years later the judgment lies unimplemented. The Ogiek continue to face harassment and threats of more evictions. Each day that passes signals further degradation of the Mau.
This report brings together some of the most influential experts, commentators and activists to emphasise four key messages:
- The Government of Kenya has a duty to ensure that the pathbreaking judgment of the African Court is fully implemented by ensuring title in perpetuity to the community;
- The return of the Ogiek to the Mau Forest is the only effective way to safeguard the water towers and environmental biodiversity of the Forest;
- Kenya’s slowness in decolonising its laws puts it behind the rest of the world where land tenure systems are changing based on clear evidence of the benefit of indigenous custodianship of key territories;
- Kenya has an imperative enshrined in its pathbreaking Constitution to ensure the protection of marginalised communities.
About the authors
Jill Ghai is a co-founder of the Katiba Institute, and Chair of its Board. She has taught law for over 40 years, at Ife and Ahmadu Bello Universities in Nigeria, Warwick University, United Kingdom, and the University of Hong Kong. She also has experience in advising on constitutions, including for Nepal, Iraq and Somalia. She has authored various publications on constitutional and human rights issues.
Christine Nkonge is Executive Director at Katiba Institute. She holds a Masters degree in law from Central European University, Budapest, Hungary and a Bachelor of Laws degree from the University of Nairobi. She is an advocate of the High Court of Kenya with diverse experience in human rights laws including in criminal justice, gender-based violence, and children rights.
Liz Alden Wily is a leading world expert on land rights, a political economist affiliated to the Van Vollenhoven Institute in Netherlands. Liz works globally, providing land policy guidance (e.g. Tanzania, Kenya, Namibia, Ghana, Cameroon, Gabon), conducts natural resource tenure research and designs and technically advises innovative programmes, including in post-conflict states (e.g. Liberia, Sudan, Afghanistan and Nepal). Her research and development work focuses on delivery of practical processes enabling states to end colonial-bred failure to acknowledge customary tenure as a property system as practised by up to three billion rural dwellers on all continents, and proving especially useful for recovering threatened forests, rangelands and swamplands hand in hand with guiding state regulation for communities.
Lara Domínguez is Strategic Litigation Officer at Minority Rights Group International, currently charged with leading the reparations phase of the Ogiek case before the African Court on Human and Peoples’ Rights. She engages in advocacy on behalf of minorities and indigenous communities through strategic litigation in Europe, Latin America and Africa. Prior to joining MRG, Lara worked at Three Crowns LLP and specialised in international arbitration. She received her Juris Doctor from Yale Law School, where she was student director of the Immigration Legal Services Clinic, a member of the Allard K. Lowenstein International Human Rights Clinic, and a Herbert J. Hansell student fellow at the Center for Global and Legal Challenges. She has represented clients in their asylum proceedings before U.S. immigration authorities and published white papers and articles on various topics of international law.