The African Court on Human and Peoples’ Rights, located in Arusha, Tanzania, recently adjourned the hearing on the implementation of the Ogiek case judgments for three months, following a request by the Kenyan government. The case, which centers around the violation of the Ogiek community’s rights by the Kenyan government, has been ongoing since the court’s landmark ruling in 2017, with the latest hearing taking place on November 12, 2024.
State counsel Charles Mutinda, representing the Kenyan government, requested additional time to demonstrate the government’s progress in implementing the court’s judgments. Mutinda explained that the frequent changes in government, particularly within the Ministry of Environment, had caused delays in the implementation process. He argued that the reports on the judgment’s implementation require approval and ownership at the Cabinet level, which had not yet been achieved due to the changes.
“The Kenyan government is law-abiding, and the ruling has been disseminated to the concerned agencies. We have also established task forces that have made reports on the implementation of the ruling. Some provisions of the rulings go against the Constitution of Kenya and are not implementable,” Mutinda stated, further emphasizing that the Kenyan government is committed to compliance.
Despite the adjournment, the Ogiek community and their advocates have expressed disappointment with the government’s request. They believe the Kenyan government has been delaying the process intentionally, further prolonging the suffering of the Ogiek people. The community’s legal representative, Tom Nyadunga, noted that the state counsels had not filed their request for an adjournment earlier, which could have saved costs and time for all parties involved. Nyadunga raised concerns about whether three months would be enough time, given the seven years it took for the 2017 judgment to be addressed and the two years it took for the 2022 reparations ruling to receive any meaningful report on implementation.
The Ogiek case has its roots in a 2017 ruling where the African Court found that the Kenyan government had violated the community’s rights to life, property, culture, natural resources, development, and religion. The court concluded that the government’s actions, particularly the forced eviction of the Ogiek from their ancestral land in the Mau Forest, had breached the community’s fundamental rights. In 2022, a reparations judgment was issued, with the court awarding the Ogiek Sh57.85 million for material prejudice and Sh100 million for moral prejudice. The Kenyan government was also ordered to grant the community collective title to their land and take measures to prevent further violations of their rights.
Despite these rulings, the government has faced challenges in executing the orders. The Ogiek community’s struggle intensified in November 2023 when they were evicted from the Mau Complex during the tenure of Cabinet Secretary Soipan Tuya, despite the African Court’s prior injunction prohibiting such actions. This contradiction between the court’s ruling and government actions has added fuel to the fire, leaving the Ogiek community feeling abandoned and betrayed.
Daniel Kobei, Executive Director of the Ogiek Peoples’ Development Program, expressed his frustration with the latest delay. He criticized the government for its lack of action in halting evictions, particularly in areas like Sasumwani, where the community continues to face displacement. He further argued that the change in government ministers should not be used as an excuse for the lack of continuity in implementing the ruling.
Liz Alden Wily, a land tenure and governance specialist who served as an expert witness in the case, also criticized the government’s actions. She pointed out that the Ogiek community should have been consulted in the development of any implementation plan and emphasized that the delay has become a growing concern, not just for the Ogiek but also for African Union officials.
The African Court’s decision to grant a three-month extension is a temporary reprieve for Kenya to submit its action plan for compliance. However, as the Ogiek community waits for justice, it is clear that the government’s commitment to fulfilling the court’s orders remains in question. The case has highlighted the broader issue of Kenya’s failure to adhere to rulings by the African Court, as other African nations have made strides in restitution for indigenous communities, raising further concerns about Kenya’s position on human rights and land reform.
