African Court indicts Kenyan government

Accra, June 1, GNA - The African Court on Human and Peoples Rights has indicted the Kenyan government for violation of the rights of the Indigenous Ogiek people when it evicted them from their land.

The African Court therefore ordered the Kenyan government to take all appropriate measures within reason time frame to remedy all the violations established and to inform it of the measures taken within six months of the judgement.

The judgement dated May 26, was in respect of the case: 'The African Commission on Human and Peoples' Rights verses the Republic of Kenya- Application No. 006/2012,' was made available to the Ghana News Agency by Mr Sukhdev Chhatbar, African Court Senior Information and Communication Officer.

The African Court also averred that the Government of Kenya also violated Articles 1, 2, 8, 14 17(2) and (3), 21 and 22 of the African Charter on Human and Peoples' Rights.

'Article 1: enjoins Member States to recognize the rights, duties and freedoms enshrined in this Chapter and undertake to adopt legislative or other measures to give effect to them.

'Article 2: Every individual shall be entitled to the enjoyment of the rights and freedoms recognized and guaranteed in the present Charter without distinction of any kind such as race, ethnic group, colour, sex, language, religion, political or any other opinion, national and social origin, fortune, birth or other status.

'Article 8: Freedom of conscience, the profession and free practice of religion shall be guaranteed. No one may, subject to law and order, be submitted to measures restricting the exercise of these freedoms.

'Article 14: The right to property shall be guaranteed. It may only be encroached upon in the interest of public need or in the general interest of the community and in accordance with the provisions of appropriate laws.

'Article 17 (2) and (3): Every individual may freely, take part in the cultural life of his community; and the promotion and protection of morals and traditional values recognized by the community shall be the duty of the State.

'Article 21: All peoples shall freely dispose of their wealth and natural resources. This right shall be exercised in the exclusive interest of the people. In no case shall a people be deprived of it. In case of spoliation the dispossessed people shall have the right to the lawful recovery of its property as well as to an adequate compensation.

'The free disposal of wealth and natural resources shall be exercised without prejudice to the obligation of promoting international economic cooperation based on mutual respect, equitable exchange and the principles of international law.

'States parties to the present Charter shall individually and collectively exercise the right to free disposal of their wealth and natural resources with a view to strengthening African unity and solidarity.

'State parties to the present Charter shall undertake to eliminate all forms of foreign economic exploitation particularly that practised by international monopolies so as to enable their peoples to fully benefit from the advantages derived from their national resources.

'Article 22: All peoples shall have the right to their economic, social and cultural development with due regard to their freedom and identity and in the equal enjoyment of the common heritage of mankind.

'States shall have the duty, individually or collectively, to ensure the exercise of the right to development'.

The African Court unanimously also dismissed Kenyan Government's objection to the Court's material jurisdiction to hear the Application, and dismissed the objection to the Court's personal jurisdiction to hear the Application.

The African Court also dismissed the Kenyan Government's objection to the Court's temporal jurisdiction to hear the Application; and dismissed the objection to the admissibility of Application on the ground that the matter is pending before the African Commission on Human and Peoples' Rights.

The African Court again dismissed the objection to the admissibility of the Application on the ground that the Court did not conduct a preliminary examination of the admissibility of the Application and that the author of the Application is not the aggrieved party in the complaint, failure to exhaust local remedies and thus declared the Application admissible.

The African Court therefore requested the Applicant to file submissions on reparations within 60 days from the date of this judgment and thereafter, the Respondent shall file its Response thereto within 60 days of receipt of the Applicant's submissions on Reparations and Costs'.

The facts of the case was that the Ogiek are an indigenous minority ethnic group in Kenya comprising of about 20,000 members, about 15,000 of whom inhabit the greater Mau Forest complex, a land mass of about 400,000 hectares straddling about seven administrative districts.

According to the Applicant, in October 2009, through the Kenya Forestry Service, the Kenyan Government issued a 30 days eviction notice to the Ogiek and other settlers of the Mau Forest.

The Applicant claimed the eviction notice also demanded that they moved out of the forest on the grounds that the forest constituted a reserved water catchment zone, and was in any event part and parcel of government land under Section 4 of the Government's Land Act.

According to the Applicants, the Government contended that the decision was informed by the State's attempt to conserve the forest which was a water catchment area.

The Application further contended that the decision of the Kenyan Government would have had far reaching implications on the political, social and economic survival of the Ogiek Community.

The Government of Kenya however denied the Applicant's allegations and argued that the Court lacked jurisdiction in the case.

The case was initially lodged by Ogiek Peoples' Development Programme, Minority Rights Group and the Centre for Minority Rights Development (CEMIRIDE) at the African Commission on Human and Peoples' Rights, before being referred by the Commission to the African Court in 2012.

GNA

By Francis Ameyibor, GNA