In a judgment handed down in Arusha on 23rd June 2022, the African Court on Human and Peoples’ Rights (ACHPR) affirmed its 2017 ruling that the Ogiek people are indigenous to the Mau Forest and that they are its ancestral owners, granting them a collective title to be achieved through delimitation, demarcation and registration of their land. Rejecting all its objections, the 2022 judgment compels the Government of Kenya to implement the earlier findings by setting out definitive steps it must take in order to return the Ogiek to the position they would have been in if none of the violations of their human rights had taken place.
The reasoning by the Court will have a significant bearing on the struggles of other indigenous peoples seeking to secure their land and livelihoods. In this blog, I address four important issues of the judgment: the Court’s treatment of compensation for moral (as well as material) prejudice; its re-affirmation of the importance of recognising the Ogiek people; its analysis of the notion of ‘ownership’ of land; and its emphasis on consultation.
Compensation for Moral Prejudice
As well as ordering compensation for material damages suffered by the applicants, the ACHPR forged a detailed response to a claim for compensation for moral damages as a result of violations of the principle of non-discrimination (Article 2), the right to religion (Article 8), the right to culture (Article 17) and the right to development (Article 22) of the African Charter on Human and Peoples’ Rights. The Court found that the Ogiek suffered routine discrimination by the respondent state Kenya. This occurred through the non-recognition of their tribal or ethnic identity and their corresponding rights. The Court set out the contours of the moral damage that has been suffered, ruling that it includes both the actual suffering and distress caused to the direct victims and their families and ‘the impairment of values that are highly significant to them’. Recognising that changes of a non-pecuniary nature, such as the living conditions of the Ogiek, can amount to moral damage, the court held that ‘the causal link between the wrongful act and the moral damage suffered, may result from the violation of a human right, as an automatic consequence, without any need to prove otherwise.’
The Court found that the Ogiek had not been able to practice their religion, including holding prayers and ceremonies ‘intimately connected to the Mau Forest’. They were neither able to bury their dead in accordance with traditional spiritual rituals, nor to access sacred sites which are important to initiation and other ceremonies. According to the Court, the Ogiek had ‘been denied access to an integrated system of beliefs, values, norms, traditions and artefacts closely linked to the Mau Forest.’
Remarkably, by these means, the reparations judgment provides a recognition of the ontological and the psycho-affective impact of land dispossession on indigenous people. The Court sought to address not only the unjust material deprivations suffered by the Ogiek, but also to acknowledge the need to redress the deeper social and psychological effects engendered by their loss. Writing about restitution of land after apartheid, Cheryl Walker has described these as ‘the symbolic, cultural and psychological elements of restitution’.
In 2017, the Court recognised the Ogiek as indigenous people ‘having a particular status and deserving special protection deriving from their vulnerability’. Affirming this ruling, it again requested full recognition of the Ogiek including their language, cultural and religious practices and stipulated that within one year from the ruling, Kenya must take all necessary legislative, administrative and other measures to guarantee the full recognition of the Ogiek as indigenous people of Kenya.
In doing this, the Court has recognised the history of domination and marginalisation experienced by the Ogiek and has sought to formulate a ‘politics of recognition’. Nancy Fraser has described how recognition can be ‘genuinely emancipatory’. The judgment is an important landmark in the Ogiek struggle for recognition because calls by indigenous groups for recognition are a way of making demands on a state which has deprived them of their means of production (their land and other resources) and reproduction (for example, religious and cultural rites. The Court recognised that claims by indigenous communities do not separate territorial claims from ontological ones. Non-material issues relating to public recognition and identity are intricately tied up with indigenous peoples’ survival and livelihoods.
Meanings of Ownership
Deliberating on the issue of the Ogiek eviction from Mau Forest, the Court had to contend with Kenya’s argument that the Ogiek had misinterpreted the 2017 judgment as granting them ownership of the forest when in fact it simply granted them access, use, and occupation. The Court took a robust line responding to this claim. It argued that experience showed that simply granting indigenous people privileges such as access to land is inadequate to protect their rights to it.
Thus, the Court sought to elaborate on a schema that would legally and securely recognise the Ogiek’s collective title to the land, guaranteeing their access to it. Recognising the ‘unique situation and way of life of indigenous people’, the Court set itself the task of conceptualising ‘the distinctive dimensions in which their rights to property like land can be manifested.’
The Court held that in order to protect the Ogiek’s land rights it is necessary to provide more than just an ‘abstract or juridical recognition of the right to property’. By ordering the physical delineation, demarcation and titling of Ogiek ancestral land – whilst also acknowledging that an important distinctive dimensions of the Ogiek’s relationship with the land is that it is used collectively – the Court sought to resolve the tension between models of private property which valorise ownership and models that seek to uphold collective rights to land. The Court clearly took the view that a predatory state cannot be entrusted with guaranteeing the land rights of indigenous people and thus designed what amounts to a scheme for protecting land rights which is legible to the non-Ogiek majority.
To insulate the Ogiek from future threats, and with regard to Kenya’s failure to seek their consent in the past, the Court affirmed that the Ogiek have a right to be ‘effectively consulted in accordance with their traditions and customs’ on all conservation or development projects on their ancestral land.
The Court’s ruling on consultation will be important for other indigenous communities who have lost ancestral land to corporations and individuals. With regard to concessions or leases already granted to non-Ogiek private individuals or corporations, Kenya is supposed to determine in consultation with the Ogiek whether such parties can be permitted to continue their operations and the means by which they could do so, for example by lease, royalty payments, or benefit sharing. If no agreement can be reached, but land has already been allocated to non-Ogiek private parties, the respondent state is ordered to either compensate the concerned third parties and return the land to the Ogiek, or agree on appropriate compensation for the Ogiek.
Significance of the Judgment
That the Ogiek have had to turn to the courts to enforce their rights is, without doubt, part of Kenya’s strategy to deplete the capacity for struggle of indigenous communities – including others such as the Sengwer, the Endorois, and the Maasai – to protect their land and livelihoods. As Daniel Kobei, Executive Director of the Ogiek Peoples’ Development Program put it:
“We don’t wish to continue being in and out of court any longer – the Ogiek Community has a role to play in development – both economic and social – in the community, and not only to be seen in the corridors of justice.”
Now as ever, indigenous people are treated with ontological suspicion by the state, matched by many scholars who sceptically dismiss claims to indigeneity, accusing indigenous people of marketing and branding their identities, and dismissing their struggles in the courts as entrepreneurial. The reality is that indigenous people are widely criminalised and regularly brutalised. The reparations judgment once again compels the respondent state to recognise the Ogiek. It clearly sets out the connections between material harms and non-pecuniary or symbolic harms. Korir Sing’Oei has rightly pointed out that the manifest failure of African courts to respond adequately to indigenous peoples’ land claims has itself been an aspect of their marginalisation and domination. The recent reparation judgment changes that. It creates an important legal precedent. It is a highly consequential step in the struggle of indigenous people seeking to defend their land and their livelihoods.