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Ogiek in the Mau Forest, Kenya

Two years on, Kenya has yet to implement judgment in Ogiek case – MRG Statement

5 June 2019

MRG regrets that two years on, the government of Kenya has yet to implement the African Court on Human and Peoples’ Rights’ judgment in the Ogiek case.

This month marks the second anniversary of the African Court on Human and Peoples’ Rights’ landmark judgment in the Ogiek case. On 26 May 2017, the Court ruled that by routinely subjecting the Ogiek to arbitrary forced evictions from their ancestral lands in the Mau forest, the government of Kenya had violated seven separate articles of the African Charter, including their right to property, natural resources, development, religion, culture, and non-discrimination.

Crucially, the Court recognised that the Ogiek are an indigenous people and have a critical role to play in safeguarding their local ecosystems and in conserving and protecting their ancestral lands and natural resources. The Court specifically found that conservation of the Mau forest could not be used to justify the Ogiek’s eviction.

Although the decision vindicates the Ogiek peoples’ right to their ancestral lands and traditional way of life, significant obstacles remain at the domestic level to adequately enforce the Court’s judgment. Two years on, the government of Kenya has made little tangible progress on implementation. Delays in enforcing the Court’s judgment illustrate the difficulties involved in human rights litigation. After hard won, often decades-long campaigns to hold States accountable for violating their human rights obligations, governments often fail to implement judgments in a timely manner.

In November 2017, the Kenyan government gazetted a Task Force to facilitate implementation. The government, however, failed to consult with the community or name any Ogiek representatives to the Task Force. Its mandate ultimately expired without the Task Force issuing any recommendations on implementation, in part because it lacked the budget to adequately engage with and consult the affected communities.

One year later, the government gazetted a second Task Force to facilitate enforcement. It expanded the Task Force’s mandate to include recommendations not only on implementation, but also on enhancing the participation of indigenous communities in sustainable forest management. Although the Task Force has no Ogiek representatives among its members, it has taken positive steps to engage with the community.

While MRG and the Ogiek Peoples’ Development Program (OPDP) recognise that these developments represent an improvement, the current Task Force has yet to publish a final report on implementation. It missed the 1 May 2019 deadline, which has now been extended until October 2019. Some members of the Task Force have questioned whether the Ogiek are an indigenous people and queried the appropriate balance between indigenous peoples’ rights and the Government’s interest in preserving the Mau forest, notwithstanding the African Court’s clear findings on both of these issues.

MRG and the OPDP nevertheless remain cautiously optimistic that despite delays, the Task Force’s recommendations will result in a report that fully implements the letter of the Court’s judgment and charts a path to the conservation of the Mau Forest that fully integrates the Ogiek as stakeholders.

MRG and OPDP urge the government of Kenya to take the measures necessary to enforce the African Court’s judgment without further delay. Failure to do so prolongs the injustice the Court’s judgment set out to redress and shows a reckless disregard for the legitimacy of human rights institutions established to remedy fundamental rights violations.

Photo: A group of Ogiek women sitting together in the Mau Forest, Kenya.