Respondent's Objection

48. The Respondent contends that rather than filing the Application before the Court, the Commission ought to have drawn the attention of the Assembly of Heads of State and Government of the African Union (AU) once it was convinced that the communication before it relates to a special case which reveals the existence of “a series of serious or massive violations of human and peoples' rights” as provided under Article 58 of the Charter.

49. The Respondent further submits that the Court failed to conduct a preliminary examination of its jurisdiction by virtue of Rule 39 of its Rules in accordance with Article 50 of the Charter, and that it has not complied with the above cited provision of the Charter.

Applicant's Submission

50. The Applicant submits that bringing to the attention of the Assembly of Heads of State and Government of the AU, a special case which reveals the existence of a series of serious or massive violations of human rights, is not a prerequisite for referring a matter to the Court and is only one avenue provided under Article 58 of the Charter. In this regard, the Applicant argues that with the establishment of the Court, it now has the additional option of referring matters to the Court, as the Court complements the Commission's protective mandate pursuant to Article 2 of the Protocol. On the contention by the Respondent that the Court ought to have conducted a preliminary examination of its jurisdiction in respect of the Application in line with Article 50 of the Charter, the Applicant notes that the rule relating to the preliminary examination of the jurisdiction of the Court is Rule 39, not Rule 40 of the Rules, as cited by the Respondent.

The Court's Assessment

51. The Court notes that Article 3 (1) of the Protocol and Rule 26 (1) (a) of its Rules govern its material jurisdiction regardless of whether an Application is filed by individuals, the Commission or States. Pursuant to these provisions, the material jurisdiction of the Court extends “to all cases and disputes submitted to it concerning the interpretation and application of the Charter, [its] Protocol and any other relevant human rights instrument ratified by the States concerned”. The only pertinent consideration for the Court in ascertaining its material jurisdiction in accordance with both Article 3 (1) of the Protocol and Rule 26 (1) (a) of its Rules is thus whether an Application relates to an alleged violation of the rights protected by the Charter or other human rights instruments to which the Respondent is a Party. In this vein, the Court has held that “as long as the rights allegedly violated are protected by the Charter or any other human rights instruments ratified by the State concerned, the Court will have jurisdiction over the matter''.Footnote ²

52. In the instant Application, the Applicant alleges the violation of several rights and freedoms guaranteed under the Charter and other international human rights instruments ratified by the Respondent, especially, the ICCPR and the ICESR. Accordingly, the Application satisfies the requirements of Article 3 (1) of the Protocol.

53. In circumstances where the Commission files a case before the Court pursuant to Article 5 (1) (a) of the Protocol, Article 3 (1) of the same provides no additional requirements to be fulfilled before this Court exercises its jurisdiction. Article 58 of the Charter mandates the Commission to draw the attention of the Assembly of Heads of State and Government where communications lodged before it reveal cases of series of serious or massive violations of human and peoples' rights. With the establishment of the Court, and in application of the principle of complementarity enshrined under Article 2 of the Protocol, the Commission now has the power to refer any matter to the Court, including matters which reveal a series of serious or massive violations of human rights.Footnote ³ The Respondent's preliminary objection that the Commission did not comply with Article 58 of the Charter is thus not relevant as far as the material jurisdiction of the Court is concerned.

54. Regarding the preliminary examination of its jurisdiction in accordance with Rule 40 of the Rules and Article 50 of the Charter, the Court notes that these two provisions do not deal with the jurisdiction of the Court but concern issues of admissibility, in particular, the issue of exhaustion of local remedies, which the Court will address at a later stage in this judgment. In any event and in keeping with its Rules, the final decision of the Court on the question of jurisdiction can only be taken after receiving and analysing submissions from the parties. The Respondent's objection in this regard is therefore dismissed.

55. From the foregoing, the Court finds that it has material jurisdiction to hear the Application.

Respondent's Objection

56. The Respondent contends that the original complainants before the Commission lacked standing to invoke the jurisdiction of the Commission as they did not have authority to represent the Ogieks, nor were they acting on their behalf.

Applicant's Submission

57. The Applicant, citing its own jurisprudence, submits that it has adopted the actio popularis doctrine which allows anyone to file a complaint before it on behalf of victims without necessarily getting the consent of the victims. For this reason, the Commission was seised with the Communication in November 2009 by two of the complainants: CEMIRIDE and OPDP, which are Non-Governmental Organizations (NGOs) registered in Kenya. The Applicant states that the latter works specifically to promote the rights of the Ogieks while the former has Observer Status with the Commission, and therefore both were competent to invoke the jurisdiction of the Commission.

The Court's Assessment

58. The personal jurisdiction of the Court is governed by Article 5 (1) of the Protocol which lists the entities, including the Applicant, entitled to submit cases before it. By virtue of this provision, the Court has personal jurisdiction with respect to this Application. The argument adduced by the Respondent according to which the original complainants had no standing to file the matter before the Commission and to act on behalf of the Ogieks is not relevant in the determination of the personal jurisdiction of the Court because the original complainants before the Commission are not the parties in the Application before this Court. The Court does not have to make a determination on the jurisdiction of the Commission.

59. With regard to its jurisdiction over the Respondent, the Court recalls that the Respondent is a State Party to the Charter and to the Protocol. Accordingly, the Court finds that it has personal jurisdiction over the Respondent.

60. It is also important for this Court to restate that, because the Application before it is filed by the Commission, pursuant to Articles 2 and 5 (1) (a) of the Protocol, the question as to whether or not the Respondent has made the declaration under Article 34 (6) of the Protocol does not arise. This is because, unlike for individuals and NGOs, the Protocol does not require the Respondent to have made the declaration under Article 34 (6) for the Commission to file Applications before the Court.Footnote ⁴

61. Therefore, the Court holds that it has personal jurisdiction to hear this Application.

Respondent's Objection

62. The Respondent submits that the Charter as well as any other treaty cannot be applied retrospectively to situations and circumstances that occurred before its entry into force. The Respondent cites Article 28 of the Vienna Convention on the Law of Treaties of 1969 which provides that: “Unless a different intention appears from the treaty or is otherwise established, its provisions do not bind a party to any act or fact which took place or any situation which ceased to exist before the date of entry into force of the treaty with respect to the party”. The Respondent further submits that it became a Party to the Charter on 10 February 1992, and that it is from 10 February 1992 that the Respondent's obligations under the Charter become enforceable. The Respondent adds that some of the Applicant's allegations of violations relate to activities that occurred prior to the Respondent ratifying the Charter and therefore the Court cannot adjudicate on those issues but only on issues that occurred after 1992.

Applicant's Submission

63. The Applicant submits that it recognises the principle of non-retroactivity of international treaties. The Applicant argues, however, that, it also relies on the established principle of international human rights law, that the Respondent is liable for violations which occurred prior to the ratification of the Charter, where the effects of such violations have continued after its ratification, or where the Respondent either continued the perpetration of the said violations, or did not remedy them, as is the case with the Ogieks.

The Court's Assessment

64. The Court has held that the relevant dates concerning its temporal jurisdiction are the dates when the Respondent became a Party to the Charter and the Protocol, as well as, where applicable, the date of deposit of the declaration accepting the jurisdiction of the Court to receive Applications from individuals and NGOs, with respect to the Respondent.Footnote ⁵

65. The Court notes that the Respondent became a Party to the Charter on 10 February 1992 and a Party to the Protocol on 4 February 2004. The Court also notes that, though the evictions by the Respondent leading to the alleged violations began before the aforementioned dates, these evictions are continuing. In this regard, the Court notes in particular, the threats of eviction issued in 2005 and the notice to vacate the South Western Mau Forest Reserve issued on 26 October 2009 by the Director of Kenya Forestry Service. It is the Court's view that the Respondent's alleged violations of its international obligations under the Charter are continuing, and as such, the matter falls within the temporal jurisdiction of the Court.

66. In view of the foregoing, the Court finds that it has temporal jurisdiction to hear the Application.

i. Objection based on the contention that the Application is pending before the Commission

ii. Objection with respect to the failure to undertake preliminary examination of its Admissibility

i. Objection on Non-Compliance with Rule 40 (1) of the Rules (Identity of the Applicant)

ii. Objection on Non-Compliance with Rule 40(5) of the Rules (Exhaustion of local remedies)

Applicant's Submission

103. The Applicant argues that the Ogiek are an “indigenous people” and should enjoy the rights recognised by the Charter and international human rights law including the recognition of their status as an “indigenous people”. The Applicant substantiates its contention by stating that the Ogieks have been living in the Mau Forest for generations since time immemorial and that their way of life and survival as a hunter-gatherer community is inextricably linked to the forest which is their ancestral land.

Respondent's Submission

104. The Respondent's position is that the Ogieks are not a distinct ethnic group but rather a mixture of various ethnic communities. During the Public Hearing however, the Respondent admitted that the Ogieks constitute an indigenous population in Kenya but that the Ogieks of today are different from those of the 1930s and 1990s having transformed their way of life through time and adapted themselves to modern life and are currently like all other Kenyans.

The Court's Assessment

105. The Court notes that the concept of indigenous population is not defined in the Charter. For that matter, there is no universally accepted definition of “indigenous population” in other international human rights instruments. There have, however, been efforts to define indigenous populations.Footnote ¹³ In this regard, the Court draws inspiration from the work of the Commission through its Working Group on Indigenous Populations/Communities. The Working Group has adopted the following criteria to identify indigenous populations:

106. The Court also draws inspiration from the work of the United Nations Special Rapporteur on Minorities, which specifies the criteria to identify indigenous populations as follows:

107. From the foregoing, the Court deduces that for the identification and understanding of the concept of indigenous populations, the relevant factors to consider are the presence of priority in time with respect to the occupation and use of a specific territory; a voluntary perpetuation of cultural distinctiveness, which may include aspects of language, social organisation, religion and spiritual values, modes of production, laws and institutions; self-identification as well as recognition by other groups, or by State authorities that they are a distinct collectivity; and an experience of subjugation, marginalisation, dispossession, exclusion or discrimination, whether or not these conditions persist.Footnote ¹⁷

108. These criteria generally reflect the current normative standards to identify indigenous populations in international law. The Court deems it appropriate, by virtue of Articles 60 and 61 of the Charter, which allows it to draw inspiration from other human rights instruments to apply these criteria to this Application.

109. With respect to the issue of priority in time, different reports and submissions by the parties filed before the Court reveal that the Ogieks have priority in time, with respect to the occupation and use of the Mau Forest.Footnote ¹⁸ These reports affirm the Applicant's assertion that the Mau Forest is the Ogieks' ancestral home.Footnote ¹⁹ The most salient feature of most indigenous populations is their strong attachment with nature, particularly, land and the natural environment. Their survival in a particular way depends on unhindered access to and use of their traditional land and the natural resources thereon. In this regard, the Ogieks, as a hunter-gatherer community, have for centuries depended on the Mau Forest for their residence and as a source of their livelihood.

110. The Ogieks also exhibit a voluntary perpetuation of cultural distinctiveness, which includes aspects of language, social organisation, religious, cultural and spiritual values, modes of production, laws and institutionsFootnote ²⁰ through self-identification and recognition by other groups and by State authorities,Footnote ²¹ as a distinct group. Despite the fact that the Ogieks are divided into clans made up of patrilineal lineages each with its own name and area of habitation, they have their own language, albeit currently spoken by very few and more importantly, social norms and forms of subsistence, which make them distinct from other neighbouring tribes.Footnote ²² They are also identified by these neighbouring tribes, such as the Maasai, Kipsigis and Nandi, with whom they have had regular interaction, as distinct ‘neighbours' and as a distinct group.Footnote ²³

111. The records before this Court show that the Ogieks have suffered from continued subjugation, and marginalisation.Footnote ²⁴ Their suffering as a result of evictions from their ancestral lands and forced assimilation and the very lack of recognition of their status as a tribe or indigenous population attest to the persistent marginalisation that the Ogieks have experienced for decades.Footnote ²⁵

112. In view of the above, the Court recognises the Ogieks as an indigenous population that is part of the Kenyan people having a particular status and deserving special protection deriving from their vulnerability.

113. The Court will now proceed to examine the articles alleged to have been violated by the Respondent.

Applicant's Submission

114. The Applicant contends that the failure of the Respondent to recognise the Ogieks as an indigenous community denies them the right to communal ownership of land as provided in Article 14 of the Charter. The Applicant also argues that the Ogieks' eviction and dispossession of their land without their consent and without adequate compensation, and the granting of concessions of their land to third parties, mean that their land has been encroached upon and they have been denied benefits deriving therefrom.

115. The Applicant avers that the Constitution of Kenya takes away land rights from the communities concerned and vests it in government institutions like the Forestry Department, adding that for the laws relating to community land rights to be effective, the Constitution and the Land Act of 2012 must be reconciled and community land rights in particular, must be identified and given effect. According to the Applicant, the Forest Act 2005 does not provide for community owned forests and the Forest Conservation Bill unfortunately does not provide for the procedure of identifying community-owned forests and does not give effect to community land rights.

116. On the Respondent's claim that other communities such as the Kipsigis, Tugen and the Keiyo also lay claim to the Mau Forest, the Applicant submits that the report of the Mau Forest Task Force did not recognise or mention any such rights of these other communities and clearly recommended that the Ogieks who were to be settled in the excised areas of the forest had not yet been resettled.

117. While reiterating the Ogieks' ancestral property rights to the Mau Forest, the Applicant submits that the Respondent did not state whether the evictions were in the public interest as required by Article 14 of the Charter. The Applicant maintains that excisions and allocations made by the Respondent were illegal and done purely to pursue private interests and therefore, are in violation of the Charter.

118. On the Respondent's assertion that the Ogieks were not forcefully evicted but regularly consulted before every eviction and that they have been given alternative land, the Applicant avers that the Ndung'u Report,Footnote ²⁶ the Truth, Justice and Reconciliation Commission Report, the Mau Forest Task Force Report indicate the contrary. Hence, the Applicant requests that the Respondent is put to strict proof of this assertion.

119. According to the expert witness called by the Applicant, the Land Act 2012, inspired by the Constitution “is not perfect but is sound”. She submitted that this law has very clear provisions that ancestral land and hunter-gatherer lands are community lands; yet the Constitution stipulates that gazetted forests are public lands, which therefore makes the Land Act 2012 contradictory.

Respondent's Submission

120. The Respondent contends that the Ogieks are not the only tribe indigenous to the Mau Forest and as such, they cannot claim exclusive ownership of the Mau Forest. The Respondent states that the title for all forest in Kenya (including the Mau Forest), other than private and local authority forest is vested in the State. The Respondent avers that since the colonial administration it was communicated to the Ogieks that the Mau Forest was a protected conservation area on which they were encroaching upon and that they were required to move out of the forest. The Respondent also argues that the Ogieks were consulted and notified before every eviction was carried out and that these were carried out in accordance with the law.

121. The Respondent states that its land laws recognise community ownership of land and provide for mechanisms by which communities can participate in forest conservation and management. The Respondent contends that under its laws, community forest users are granted rights which include collection of medicinal herbs and harvesting of honey among others. The Respondent argues that in any event, the Court should look at the matter from the point of view of proportionality.

The Court's Assessment

122. Article 14 of the Charter provides as follows:

123. The Court observes that, although addressed in the part of the Charter which enshrines the rights recognised for individuals, the right to property as guaranteed by Article 14 may also apply to groups or communities; in effect, the right can be individual or collective.

124. The Court is also of the view that, in its classical conception, the right to property usually refers to three elements namely: the right to use the thing that is the subject of the right (usus), the right to enjoy the fruit thereof (fructus) and the right to dispose of the thing, that is, the right to transfer it (abusus).

125. However, to determine the extent of the rights recognised for indigenous communities in their ancestral lands as in the instant case, the Court holds that Article 14 of the Charter must be interpreted in light of the applicable principles especially by the United Nations.

126. In this regard, Article 26 of the United Nations General Assembly Declaration 61/295 on the Rights of Indigenous Peoples adopted by the General Assembly on 13 September 2007, provides as follows:

127. It follows in particular from Article 26 (2) of the Declaration that the rights that can be recognised for indigenous peoples/communities on their ancestral lands are variable and do not necessarily entail the right of ownership in its classical meaning, including the right to dispose thereof (abusus). Without excluding the right to property in the traditional sense, this provision places greater emphasis on the rights of possession, occupation, use/utilization of land.

128. In the instant case, the Respondent does not dispute that the Ogiek Community has occupied lands in the Mau Forest since time immemorial. In the circumstances, since the Court has already held that the Ogieks constitute an indigenous community (supra paragraph 112), it holds, on the basis of Article 14 of the Charter read in light of the above-mentioned United Nations Declaration, that they have the right to occupy their ancestral lands, as well as use and enjoy the said lands.

129. However, Article 14 envisages the possibility where a right to property including land may be restricted provided that such restriction is in the public interest and is also necessary and proportional.Footnote ²⁷

130. In the instant case, the Respondent's public interest justification for evicting the Ogieks from the Mau Forest has been the preservation of the natural ecosystem. Nevertheless, it has not provided any evidence to the effect that the Ogieks' continued presence in the area is the main cause for the depletion of natural environment in the area. Different reports prepared by or in collaboration with the Respondent on the situation of the Mau Forest also reveal that the main causes of the environmental degradation are encroachments upon the land by other groups and government excisions for settlements and ill-advised logging concessions.Footnote ²⁸ In its pleadings, the Respondent also concedes that “the Mau Forest degradation cannot entirely be associated or is not associable to the Ogiek people”.Footnote ²⁹ In this circumstance, the Court is of the view that the continued denial of access to and eviction from the Mau Forest of the Ogiek population cannot be necessary or proportionate to achieve the purported justification of preserving the natural ecosystem of the Mau Forest.

131. In view of the foregoing considerations, the Court holds that by expelling the Ogieks from their ancestral lands against their will, without prior consultation and without respecting the conditions of expulsion in the interest of public need, the Respondent violated their rights to land as defined above and as guaranteed by Article 14 of the Charter read in light of the United Nations Declaration on the Rights of Indigenous Peoples of 2007.

Applicant's Submission

132. The Applicant submits that Article 2 of the Charter provides a non-exhaustive list of prohibited grounds of discrimination and that the expression “or other status”, widens the list to include statuses not expressly noted. The Applicant notes that any discrimination against the Ogiek Community would fall within the definition of “race”, “ethnic group”, “religion” and “social origin” referred to in Article 2. The Applicant urges the Court to act in line with the jurisprudence of other regional human rights bodies and maintains that discrimination on grounds of ethnic origin is not capable of objective justification.

133. According to the Applicant, the differential treatment of the Ogieks and other similar indigenous and minority groups within Kenya, in relation to the lack of respect for their property rights, religious and cultural rights, and right to life, natural resources and development under the relevant laws, constitutes unlawful discrimination and is a violation of Article 2 of the Charter. The Applicant stresses that the Respondent has, since independence, been pursuing a policy of assimilation and marginalisation, presumably in an attempt to ensure national unity and, in the case of land and natural resource rights, in the name of conservation of the Mau Forest. According to the Applicant, while such aims of national unity or conservation may be legitimate and serve the common interest, the means employed, including the non-recognition of the tribal and ethnic identity of the Ogieks and their corresponding rights is entirely disproportionate to such an aim and, is ultimately counterproductive to its achievement. The Applicant is of the view that the Respondent has failed to show that the reasons for such difference in treatment are strictly proportionate to or absolutely necessary for the aims being pursued, and concludes that as a result, the laws which permit this discrimination are in violation of Article 2 of the Charter.Footnote ³⁰

Respondent's Submission

134. The Respondent submits that there has been no discrimination against the Ogieks and that the alleged discrimination in education, health, access to justice and employment is baseless, and lacks justification and documentary evidence. The Respondent submits that the complainants have not demonstrated, as is required, how the Respondent discriminated against the Ogieks. The Respondent calls on the Applicant to prove the discrimination alleged and to establish facts from which the discrimination occurred.

135. The Respondent contends that, in any event, the alleged discrimination would be contrary to its Constitution which provides safeguards against such discrimination. The Respondent cites Articles 10 (National values and principles of governance) and Article 24 of its Constitution, which provide inter alia that, every person is equal before the law and has equal protection and benefit of the law. The Respondent also cites Article 27 (4) thereof which prohibits the State from discriminating “ directly or indirectly any person on any ground, including race, sex, pregnancy, marital status, health status, ethnic or social origin, colour, age, disability, religion, conscience, belief, culture, dress, language or birth”.

The Court's Assessment

136. Article 2 of the Charter provides that:

137. Article 2 of the Charter is imperative for the respect and enjoyment of all other rights and freedoms protected in the Charter. The provision strictly proscribes any distinction, exclusion or preference made on the basis of race, colour, sex, religion, political opinion, national extraction or social origin, which has the effect of nullifying or impairing equality of opportunity or treatment.

138. The right not to be discriminated against is related to the right to equality before the law and equal protection of the law as guaranteed by Article 3 of the Charter.Footnote ³¹ The scope of the right to non-discrimination extends beyond the right to equal treatment by the law and also has practical dimension in that individuals should in fact be able to enjoy the rights enshrined in the Charter without distinction of any kind relating to their race, colour, sex, religion, political opinion, national extraction or social origin, or any other status. The expression ‘any other status' under Article 2 encompasses those cases of discrimination, which could not have been foreseen during the adoption of the Charter. In determining whether a ground falls under this category, the Court shall take into account the general spirit of the Charter.

139. In terms of Article 2 of the Charter, while distinctions or differential treatment on grounds specified therein are generally proscribed, it should be pointed out that not all forms of distinction can be considered as discrimination. A distinction or differential treatment becomes discrimination, and hence, contrary to Article 2, when it does not have objective and reasonable justification and, in the circumstances where it is not necessary and proportional.Footnote ³²

140. In the instant case, the Court notes that the Respondent's national laws as they were before 2010, including the Constitution of Kenya 1969 (as Amended in 1997), the Government Lands Act Chapter 280, Registered Land Act Chapter 300, Trust Land Act Chapter 285 and the Forest Act Chapter 385, recognised only the concept of ethnic groups or tribes. While some of these laws were enacted during the colonial era, the Respondent maintained them with few amendments or their effect persisted to date even after independence in 1963.

141. In so far as the Ogieks are concerned, the Court notes from the records available before it that their request for recognition as a tribe goes back to the colonial period, where their request was rejected by the then Kenya Land Commission in 1933, asserting that “they [the Ogieks] were a savage and barbaric people who deserved no tribal status” and consequently, the Commission proposed that “they should become members of and be absorbed into the tribe in which they have the most affinity”.Footnote ³³ The denial of their request for recognition as a tribe also denied them access to their own land as, at the time, only those who had tribal status were given land as “special reserves” or “communal reserves”. This has been the case since independence and is still continuing.Footnote ³⁴ In contrast, other ethnic groups such as the Maasai, have been recognised as tribes and consequently, been able to enjoy all related rights derived from such recognition, thus proving differential treatment.Footnote ³⁵

142. The Court accordingly finds that, if other groups which are in the same category of communities, which lead a traditional way of life and with cultural distinctiveness highly dependent on the natural environment as the Ogieks, were granted recognition of their status and the resultant rights, the refusal of the Respondent to recognise and grant the same rights to the Ogieks, due to their way of life as a hunter gatherer community amounts to ‘distinction' based on ethnicity and/or ‘other status' in terms of Article 2 of the Charter.

143. With regard to the Respondent's submission that, following the adoption of a new Constitution in 2010, all Kenyans enjoy equal opportunities in terms of education, health, employment, and access to justice and there is no discrimination among different tribes in Kenya including the Ogieks, the Court notes that indeed the 2010 Constitution of Kenya recognises and accords special protection to indigenous populations as part of “marginalised community” and the Ogieks could theoretically fit into that category and benefit from the protection of such constitutional safeguards. All the same, this does not diminish the responsibility of the Respondent with respect to the violations of the rights of the Ogieks not to be discriminated against between the time the Respondent became a Party to the Charter and when the Respondent's new Constitution was enacted.

144. In addition, as stated above, the prohibition of discrimination may not be fully guaranteed with the enactment of laws which condemn discrimination; the right can be effective only when it is actually respected and, in this vein, the persisting eviction of the Ogieks, the failure of the authorities of the Respondent to stop such evictions and to comply with the decisions of the national courts demonstrate that the new Constitution and the institutions which the Respondent has set up to remedy past or on-going injustices are not fully effective.

145. On the Respondent's purported justification that the evictions of the Ogieks were prompted by the need to preserve the natural ecosystem of the Mau Forest, the Court considers that this cannot, by any standard, serve as a reasonable and objective justification for the lack of recognition of the Ogieks' indigenous or tribal status and denying them the associated rights derived from such status. Moreover, the Court recalls its earlier finding that contrary to what the Respondent is asserting, the Mau Forest has been allocated to other people in a manner which cannot be considered as compatible with the preservation of the natural environment and that the Respondent itself concedes that the depletion of the natural ecosystem cannot be entirely imputed to the Ogieks.Footnote ³⁶

146. In light of the foregoing, the Court finds that the Respondent, by failing to recognise the Ogieks' status as a distinct tribe like other similar groups and thereby denying them the rights available to other tribes, violated Article 2 of the Charter.

Applicant's Submission

147. The Applicant submits that the right to life is the first human right, the one on which the enjoyment of all other rights depend and that it imposes both a negative duty on States to refrain from interfering with its exercise and the positive obligation to fulfil the basic necessities for a decent survival.Footnote ³⁷ The Applicant contends that forced evictions may violate the right to life when they generate conditions that impede or obstruct access to a decent existence.Footnote ³⁸ According to the Applicant, given their special relationship with and dependence on land for their livelihood, when indigenous populations are forcefully evicted from their ancestral land, they become exposed to conditions affecting their decent way of life.

148. The Applicant argues that, similar to other hunter-gatherer communities, the Ogieks relied on their ancestral land in the Mau Forest to support their livelihood, their specific way of life and their very existence. The Applicant contends further that the Ogieks' ancestral land in the Mau Forest provided them with, a constant supply of food, in the form of game and honey, shelter, traditional medicines and an area for cultural rituals and religious ceremonies and social organisation. The Applicant argues that, the Respondent acknowledges this intimate relationship that the Ogieks have with their ancestral land.

149. The Applicant submits therefore that the Respondent's removal of the Ogieks from their ancestral and cultural home, and subsequent limiting access to these lands, threatens to destroy the community's way of life and that their hunter-gatherer livelihood has been severely affected by relegation to unsuitable lands. According to the Applicant, their forced eviction means that the Ogieks no longer have a decent survival and consequently, their right to life under Article 4 of the Charter is imperilled.

Respondent's Submission

150. The Respondent submits that the Mau Forest Complex is important for all Kenyans, and the government is entitled to develop it for the benefit of all citizens. While the government engages in economic activity for the benefit of all Kenyans in areas where indigenous people live, the Respondent indicates that it may affect the indigenous people and reiterates that this should be seen in the light of the principle of proportionality.

The Court's Assessment

151. Article 4 of the Charter stipulates that:

152. The right to life is the cornerstone on which the realisation of all other rights and freedoms depend. The deprivation of someone's life amounts to eliminating the very holder of these rights and freedoms. Article 4 of the Charter strictly prohibits the arbitrary privation of life. Contrary to other human rights instruments, the Charter establishes the link between the right to life and the inviolable nature and integrity of the human being. The Court finds that this formulation reflects the indispensable correlation between these two rights.

153. The Court notes that the right to life under Article 4 of the Charter is a right to be enjoyed by an individual irrespective of the group to which he or she belongs. The Court also understands that the violation of economic, social and cultural rights (including through forced evictions) may generally engender conditions unfavourable to a decent life.Footnote ³⁹ However, the Court is of the view that the sole fact of eviction and deprivation of economic, social and cultural rights may not necessarily result in the violation of the right to life under Article 4 of the Charter.

154. The Court considers that it is necessary to make a distinction between the classical meaning of the right to life and the right to decent existence of a group. Article 4 of the Charter relates to the physical rather than the existential understanding of the right to life.

155. In the instant case, it is not in dispute between the Parties that that the Mau Forest has, for generations, been the environment in which the Ogiek population has always lived and that their livelihood depends on it. As a hunter-gatherer population, the Ogieks have established their homes, collected and produced food, medicine and ensured other means of survival in the Mau Forest. There is no doubt that their eviction has adversely affected their decent existence in the forest. According to the Applicant, some members of the Ogiek population died at different times, due to lack of basic necessities such as food, water, shelter, medicine, exposure to the elements, and diseases, subsequent to their forced evictions. The Court notes however that the Applicant has not established the causal connection between the evictions of the Ogieks by the Respondent and the deaths alleged to have occurred as a result. The Applicant has not adduced evidence to this effect.

156. In view of the above, the Court finds that there is no violation of Article 4 of the Charter.

Applicant's Submission

157. The Applicant contends that the Ogieks practise a monotheistic religion closely tied to their environment and that their beliefs and spiritual practices are protected by Article 8 of the Charter and constitute a religion under international law. The Applicant refutes the claim that the Ogieks' religious practices are a threat to law and order, which has been the Respondent's basis for the unjustifiable interference with the Ogieks' right to freely practice their religion. In this regard, the Applicant submits that the Ogieks' traditional burial practices of putting the dead in the forest have evolved such that now they do bury their dead.

158. Further, the Applicant asserts that the sacred places in the Mau Forest, caves, hills, specific trees areas within the forestFootnote ⁴⁰ were either destroyed during the evictions which took place during the 1980s, or knowledge about them has not been passed on by the elders to younger members of their community, as they can no longer access them. The Applicant avers that it is only through unfettered access to the Mau Forest that the Ogieks will be able to protect, maintain, and use their sacred sites in accordance with their religious beliefs. The Applicant adds that the Respondent has failed to demarcate and protect the religious sites of the Ogieks.

159. The Applicant also maintains that though some of the Ogieks have adopted Christianity, this does not extinguish the religious rites they practise in the forest. The Applicant adds that, under the Forest Act, the Ogieks are required to apply annually and pay for forest licences in order to access their religious sites situated on their ancestral lands, contrary to the provisions of the Charter.

160. During the public hearing, Dr. Liz Alden Wily, the expert witness called by the Applicant asserted that the livelihoods of hunter-gatherer communities are dependent on a social ecology whereby their spiritual life and whole existence depends on the forest and that there is a big misunderstanding about the hunter-gatherer culture. She emphasised that for such communities, culture and religion are intertwined and therefore cannot be separated. According to her, it is usually perceived that their culture can be easily dissolved or disbanded in situations where the hunter-gatherers have been assimilated by modernism. She stated that many forest dwellers like the Ogieks do the hunting and gathering, not just for their livelihood, but rather, their whole spiritual life and their entire existence depends on the forest and its intactness. She stated that whether or not their livelihood is derived from the forest (as is the case of the Ogieks), people tend to erroneously think that because today the Ogieks have not turned up in skins or hides, then they do not need to hunt or that they have given up their culture.

Respondent's Submission

161. The Respondent contends that the Applicant has failed to adduce evidence to show the exact places where the alleged ceremonies for the religious sites of the Ogieks are located. They argue that the Ogieks have abandoned their religion as they have converted to Christianity and that the religious practices of the Ogieks are a threat to law and order, thereby necessitating the Respondent's interference, to protect and preserve law and order. The Respondent contends that the Ogieks are free to access the Mau Forest, except between 6 p.m. and 9 a.m. and that they are prohibited from carrying out certain activities, unless they have a licence permitting them to do so.

The Court's Assessment

162. Article 8 of the Charter provides:

163. The above provision requires State Parties to fully guarantee freedom of conscience, the profession and free practice of religion.Footnote ⁴¹ The right to freedom of worship offers protection to all forms of beliefs regardless of denominations: theistic, non-theistic and atheistic beliefs, as well as the right not to profess any religion or belief.Footnote ⁴² The right to manifest and practice religion includes the right to worship, engage in rituals, observe days of rest, and wear religious garb, allow individuals or groups to worship or assemble in connection with a religion or belief, and to establish and maintain places for these purposes, as well as to celebrate ceremonies in accordance with the precepts of one's religion or belief.Footnote ⁴³

164. The Court notes that, in the context of traditional societies, where formal religious institutions often do not exist, the practice and profession of religion are usually inextricably linked with land and the environment. In indigenous societies in particular, the freedom to worship and to engage in religious ceremonies depends on access to land and the natural environment. Any impediment to, or interference with accessing the natural environment, including land, severely constrains their ability to conduct or engage in religious rituals with considerable repercussion on the enjoyment of their freedom of worship.

165. In the instant case, the Court notes from the records before itFootnote ⁴⁴ that the Ogieks' religious sites are in the Mau Forest and they perform their religious practices there. The Mau Forest constitutes their spiritual home and is central to the practice of their religion. It is where they bury the dead according to their traditional rituals,Footnote ⁴⁵ where certain types of trees are found for use to worship and it is where they have kept their sacred sites for generations.

166. The records also show that the Ogiek population can no longer undertake their religious practices due to their eviction from the Mau Forest. In addition, they must annually apply and pay for a license for them to have access to the Forest. In the opinion of the Court, the eviction measures and these regulatory requirements interfere with the freedom of worship of the Ogiek population.

167. Article 8 of the Charter however allows restrictions on the exercise of freedom of religion in the interest of maintaining law and order. Though the Respondent can interfere with the religious practices of the Ogieks to protect public health and maintain law and order, these restrictions must be examined with regard to their necessity and reasonableness. The Court is of the view that, rather than evicting the Ogieks from the Mau Forest, thereby restricting their right to practice their religion, there were other less onerous measures that the Respondent could have put in place that would have ensured their continued enjoyment of this right while ensuring maintenance of law and order and public health. These measures include undertaking sensitisation campaigns to the Ogieks on the requirement to bury their dead in accordance with the requirements of the Public Health Act and collaborating towards maintaining the religious sites and waiving the fees to be paid for the Ogieks to access their religious sites.

168. On the contention that the Ogieks have abandoned their religion and converted to Christianity, the Court notes from the records before it, specifically from the testimony of the Applicant's witnesses that, not all the Ogieks have converted to Christianity. Indeed, the Respondent has not submitted any evidence to support its position that the adoption of Christianity means a total abandonment of the Ogiek traditional religious practices. Even though some members of the Ogieks might have been converted to Christianity, the evidence before this Court show that they still practice their traditional religious rites. Accordingly, the alleged transformation in the way of life of the Ogieks and their manner of worship cannot be said to have entirely eliminated their traditional spiritual values and rituals.

169. From the foregoing, the Court is of the view that given the link between indigenous populations and their land for purposes of practicing their religion, the evictions of the Ogieks from the Mau Forest rendered it impossible for the community to continue its religious practices and is an unjustifiable interference with the freedom of religion of the Ogieks. The Court therefore finds that the Respondent is in violation of Article 8 of the Charter.

Applicant's Submission

170. The Applicant, citing its own jurisprudence in the Endorois Case avers that “Culture could be taken to mean that complex whole which includes a spiritual and physical association with one's ancestral land, knowledge, belief, art, law, morals, customs and any other capabilities and habits acquired by humankind as a member of society-the sum total of the material and spiritual activities and products of a given social group that distinguish it from other similar groups and in that it encompasses a group's religion, language, and other defining characteristics”. On the basis of this, the Applicant submits that the cultural rights of the Ogieks have been violated by the Respondent, through restrictions on access to the Mau forest which hosts their cultural sites. According to the Applicant, their attempts to access their historic lands for cultural purposes have been met with intimidation and detention, and serious restrictions have been imposed by the Kenyan authorities on their hunter-gatherer way of life, after the Respondent forcefully evicted them from the Mau Forest.

171. The Applicant maintains that the Ogieks should be allowed to determine what culture is good for them rather than the Respondent doing so. The Applicant calls on the Court to be inspired by Article 61 of the Charter and urges the Court to find that the Respondent is in violation of Article 17 of the Charter in respect of the Ogieks and prays the Court to issue an Order for reparation.

172. While testifying about the cultural evolution of the Ogieks, the expert witness maintains and reiterates her earlier position as elaborated in the section on religion above in paragraph 161.

Respondent's Submission

173. The Respondent argues that it recognises and affirms the provisions of Article 17 of the Charter and has taken reasonable steps both at the national and international levels to ensure that the cultural rights of indigenous peoples in Kenya are promoted, protected and fulfilled. The Respondent submits that it has ratified the ICCPR and ICESCR with specific provisions on the protection of cultural rights enshrined in its Constitution.Footnote ⁴⁶ The Respondent avers that it has also effected numerous legal and policy measures to ensure that cultural rights of “indigenous people” in Kenya are upheld and protected. In this regard, the Respondent reiterates that the 2010 Constitution of Kenya protects the right of all Kenyans to promote their own culture.

174. The Respondent underscores that while protecting the cultural rights, it also has the responsibility to ensure a balance between cultural rights vis-a-vis environmental conservation in order to undertake its obligation to all Kenyans, particularly in view of the provisions of the CharterFootnote ⁴⁷ and its Constitution.Footnote ⁴⁸ The Respondent further submits that the cultural rights of indigenous people such as the Ogieks may encompass activities related to natural resources, such as fishing or hunting which could have a negative impact on the environment and these must be balanced against other public interests. The Respondent urges the Court to bear in mind the intricate balance between the right to culture and environmental conservation for future generations.

175. Furthermore, the Respondent stresses that as far as the Ogieks are concerned, their life style has metamorphosed and the cultural and traditional practices which made them distinct no longer exist, thus, the group itself no longer exists and it cannot therefore claim any cultural rights. The Respondent also states that the Ogieks no longer live as hunters and gatherers, thus, they cannot be said to conserve the environment. They have adopted new and modern ways of living, including building permanent structures, livestock keeping and farming which would have a serious negative impact on the forest if they are allowed to reside there.

The Court's Assessment

176. Article 17 of the Charter provides:

177. The right to culture as enshrined in Article 17 (2) and (3) of the Charter is to be considered in a dual dimension, in both its individual and collective nature. It ensures protection, on the one hand, of individuals' participation in the cultural life of their community and, on the other, obliges the State to promote and protect traditional values of the community.

178. Article 17 of the Charter protects all forms of culture and places strict obligations on State Parties to protect and promote traditional values. In a similar fashion, the Cultural Charter for Africa obliges States to adopt a national policy which creates conditions conducive for the promotion and development of culture.Footnote ⁴⁹ The Cultural Charter specifically stresses “the need to take account of national identities, cultural diversity being a factor making for balance within the nation and a source of mutual enrichment for various communities”.Footnote ⁵⁰

179. The protection of the right to culture goes beyond the duty, not to destroy or deliberately weaken minority groups, but requires respect for, and protection of, their cultural heritage essential to the group's identity. In this respect, culture should be construed in its widest sense encompassing the total way of life of a particular group, including the group's languages, symbols such as dressing codes and the manner the group constructs shelters; engages in certain economic activities, produces items for survival; rituals such as the group's particular way of dealing with problems and practicing spiritual ceremonies; identification and veneration of its own heroes or models and shared values of its members which reflect its distinctive character and personality.Footnote ⁵¹

180. The Court notes that in the context of indigenous populations, the preservation of their culture is of particular importance. Indigenous populations have often been affected by economic activities of other dominant groups and large scale developmental programmes. Due to their obvious vulnerability often stemming from their number or traditional way of life, indigenous populations even have, at times, been the subject and easy target of deliberate policies of exclusion, exploitation, forced assimilation, discrimination and other forms of persecution, whereas some have encountered extinction of their cultural distinctiveness and continuity as a distinct group.Footnote ⁵²

181. The UN Declaration on Indigenous Peoples, states that “indigenous peoples and individuals have the right not to be subjected to forced assimilation or destruction of their culture” and States shall provide effective mechanisms to prevent any action that deprives them of “their integrity as distinct peoples, or of their cultural values or ethnic identities”.Footnote ⁵³ The UN Committee on Economic, Social and Cultural Rights, in its General Comment on Article 15 (1) (a) also observed that “the strong communal dimension of indigenous peoples' cultural life is indispensable to their existence, well-being and full development, and includes the right to the lands, territories and resources which they have traditionally owned, occupied or otherwise used or acquired.”Footnote ⁵⁴

182. In the instant case, the Court notes from the records available before it that the Ogiek population has a distinct way of life centred and dependent on the Mau Forest Complex. As a hunter-gatherer community, they get their means of survival through hunting animals and gathering honey and fruits, they have their own traditional clothes, their own language, distinct way of entombing the dead, practicing rituals and traditional medicine, and their own spiritual and traditional values, which distinguish them from other communities living around and outside the Mau Forest Complex, thereby demonstrating that the Ogieks have their own distinct culture.

183. The Court notes, based on the evidence available before it and which has not been contested by the Respondent that the Ogieks have been peacefully carrying out their cultural practices until their territory was encroached upon by outsiders and they were evicted from the Mau Forest. Even in the face of this, the Ogieks still undertake their traditional activities: traditional wedding ceremonies, oral traditions, folklores, and songs. They still maintain their clan boundaries in the Mau Forest and each clan ensures the maintenance of the environment within the boundary it is allocated. However, in the course of time, the restrictions on access to and evictions from the Mau Forest have greatly affected their ability to preserve these traditions. In view of this, the Court holds that the Respondent interfered with the enjoyment of the right to culture of the Ogiek population.

184. Having found that there has been interference by the Respondent with the cultural rights of the Ogieks, the next issue for the Court to determine is whether or not such interference could be justified by the need to attain a legitimate aim under the Charter.Footnote ⁵⁵ In this regard, the Court notes the Respondent's contention that the Ogiek population has evolved on their own by adopting a different culture and identity and that, in any event, the eviction measures the Respondent effected against them were aimed to prevent adverse impacts on the Mau Forest which was caused by the Ogiek lifestyle and culture.

185. With regard to the first contention that the Ogieks have evolved and their way of life has changed through time to the extent that they have lost their distinctive cultural identity, the Court reiterates that the Respondent has not sufficiently demonstrated that this alleged shift and transformation in the lifestyle of the Ogieks has entirely eliminated their cultural distinctiveness. In this vein, the Court stresses that stagnation or the existence of a static way of life is not a defining element of culture or cultural distinctiveness. It is natural that some aspects of indigenous populations' culture such as a certain way of dressing or group symbols could change over time. Yet, the values, mostly, the invisible traditional values embedded in their self-identification and shared mentality often remain unchanged.

186. In so far as the Ogiek population is concerned, the testimony tendered by Mrs. Mary Jepkemei, a member of the Ogiek Community, attests that the Ogieks still have their traditional values and cultural ceremonies which make them distinct from other similar groups. In addition, the Court notes that, to some extent, some of the alleged changes in the way the Ogieks used to live in the past are caused by the restrictions put in place by the Respondent itself on their right to access their land and natural environment.Footnote ⁵⁶

187. With respect to the second contention that the eviction measures were in the public interest of preserving the natural environment of the Mau Forest Complex, the Court first notes that Article 17 of the Charter does not provide exceptions to the right to culture. Any restrictions to the right to culture shall accordingly be dealt with in accordance with Article 27 of the Charter, which stipulates that:

188. In the instant case, the restriction of the cultural rights of the Ogiek population to preserve the natural environment of the Mau Forest Complex may in principle be justified to safeguard the “common interest” in terms of Article 27 (2) of the Charter. However, the mere assertion by a State Party of the existence of a common interest warranting interference with the right to culture is not sufficient to allow the restriction of the right or sweep away the essence of the right in its entirety. Instead, in the circumstances of each case, the State Party should substantiate that its interference was indeed genuinely prompted by the need to protect such common interest. In addition, the Court has held that any interference with the rights and freedoms guaranteed in the Charter shall be necessary and proportional to the legitimate interest sought to be attained by such interference.Footnote ⁵⁷

189. In the instant case, the Court has already found that the Respondent has not adequately substantiated its claim that the eviction of the Ogiek population was for the preservation of the natural ecosystem of the Mau Forest.Footnote ⁵⁸ Considering that the Respondent has interfered with the cultural rights of the Ogieks through the evictions and given that the Respondent invokes the same justification of preserving the natural ecosystem for its interference, the Court reiterates its position that the interference cannot be said to have been warranted by an objective and reasonable justification. Although the Respondent alleges generally, that certain cultural activities of the Ogieks are inimical to the environment, it has not specified which particular activities and how these activities have degraded the Mau Forest. In view of this, the purported reason of preserving the natural environment cannot constitute a legitimate justification for the Respondent's interference with the Ogieks' exercise of their cultural rights. Consequently, the Court deems it unnecessary to examine further whether the interference was necessary and proportional to the legitimate aim invoked by the Respondent.

190. The Court therefore finds that the Respondent has violated the right to culture of the Ogiek population contrary to Article 17 (2) and (3) of the Charter by evicting them from the Mau Forest area, thereby, restricting them from exercising their cultural activities and practices.

Applicant's Submission

191. The Applicant contends that the Respondent has violated the rights of the Ogieks to freely dispose of their wealth and natural resources in two ways. Firstly, by evicting them from the Mau Forest and denying them access to the vital resources therein, and secondly, by granting logging concessions on Ogiek ancestral land without their prior consent and without giving them a share of the benefits in those resources.

192. Countering the Respondent's contention that it has incorporated Article 21 of the Charter into the Kenyan Constitution,Footnote ⁵⁹ the Applicant maintains that, there is still no implementing legislation in place in this regard. The Applicant adds that, under the previous Constitution and legislation, the Respondent was unable to implement the framework for protection of the Ogieks, who, could not claim any part of Kenya as their community land like other communities.

193. The Applicant states that the Ogieks neither got land under the Native Land Trust Ordinance 1938, the Constitution of Kenya, 1969, the Land (Group Representatives) Act, Chapter 287 nor under the Trust Land Act. The Applicant adds finally that, the Ogieks have still not benefited from the new constitutional provisions recognising community land and therefore the violations are continuing to date. According to the Applicant, the purpose of Article 21 of the Charter is to facilitate development, economic independence and self-determination of the post colonial States as well as the peoples that comprise those states, protecting them against multi-nationals as well as against the State itself.

Respondent's Submission

194. The Respondent argues that it has not violated the rights of the Ogieks to freely dispose of their wealth and natural resources as alleged by the Applicant, and that Article 21 of the Charter calls for reconciliation between the State on the one hand and individuals or groups/communities on the other on the ownership and control of natural resources. For the Respondent, while the right of ownership and control of natural resources belongs to the people, States are the entities that would ultimately exercise the enjoyment of the right in the interest of the people, and efforts are being made to maintain a delicate balance between conservation, a people-centred approach to utilisation of natural resources and the ultimate control of natural resources. The Respondent emphasises that it has adopted a harmonised balancing of the two concepts of the ownership and control of natural resources, through focussing on access to, rather than ownership over natural resources.

The Court's Assessment

195. Article 21 of the Charter states that:

196. The Court notes, in general terms, that the Charter does not define the notion of “peoples”. In this regard, the point has been made that the drafters of the Charter deliberately omitted to define the notion in order to “permit a certain flexibility in the application and subsequent interpretation by future users of the legal instrument, the task of fleshing out the Charter being left to the human rights protection bodies.”Footnote ⁶⁰

197. It is generally accepted that, in the context of the struggle against foreign domination in all its forms, the Charter primarily targets the peoples comprising the populations of the countries struggling to attain independence and national sovereignty.Footnote ⁶¹

198. In the circumstances, the question is whether the notion “people” used by the Charter covers not only the population as the constituent elements of the State, but also the ethnic groups or communities identified as forming part of the said population within a constituted State. In other words, the question that arises is whether the enjoyment of the rights unquestionably recognised for the constituent peoples of the population of a given State can be extended to include sub-state ethnic groups and communities that are part of that population.

199. In the view of the Court, the answer to this question is in the affirmative, provided such groups or communities do not call into question the sovereignty and territorial integrity of the State without the latter's consent. It would in fact be difficult to understand that the States which are the authors of the Charter intended, for example, to automatically recognise for the ethnic groups and communities that constitute their population, the right to self-determination and independence guaranteed under Article 20 (1) of the Charter, which in this case would amount to a veritable right to secession.Footnote ⁶² On the other hand, nothing prevents other peoples' rights, such as the right to development (Article 22), the right to peace and security (Article 23) or the right to a healthy environment (Article 24) from being recognised, where necessary, specifically for the ethnic groups and communities that constitute the population of a State.

200. In the instant case, one of the rights at issue is the right of peoples to freely dispose of their wealth and natural resources guaranteed under Article 21 of the Charter. In essence, as indicated above, the Applicant alleges that the Respondent violated the aforesaid right insofar as, following the expulsion of the Ogieks from the Mau Forest, they were deprived of their traditional food resources.

201. The Court recalls, in this regard, that it has already recognised for the Ogieks a number of rights to their ancestral land, namely, the right to use (usus) and the right to enjoy the produce of the land (fructus), which presuppose the right of access to and occupation of the land. In so far as those rights have been violated by the Respondent, the Court holds that the latter has also violated Article 21 of the Charter since the Ogieks have been deprived of the right to enjoy and freely dispose of the abundance of food produced by their ancestral lands.

Applicant's Submission

202. The Applicant contends that the Respondent has violated the Ogieks' right to development by evicting them from their ancestral land in the Mau Forest and by failing to consult with and/or seek the consent of the Ogiek Community in relation to the development of their shared cultural, economic and social life within the Mau Forest. The Applicant states that the Respondent failed to recognise the Ogieks' right to development and as indigenous people, with the right to determining development priorities and strategies and exercising their right to be actively involved in developing economic and social programmes affecting them and, as far as possible, to administering such programmes through their own institutions. They contend that failure on the part of the Respondent to give effect to these facets of the right to development, constitutes a violation of Article 22 of the Charter.

203. With regard to Article 10 (2) of the Respondent's Constitution, its Vision 2030 and its budget statements being proof of development for the Ogieks, the Applicant submits that, it is not a matter of whether or not these instruments provide for the right to development, but rather whether the Respondent has discharged its obligation to protect the Ogieks' right to development. According to the Applicant, this would be by establishing a framework which provides for the realisation of this right in its procedural and substantive processes, including consultation and participation.

204. Furthermore, the Applicant contends that despite the provisions of Article 1 (2) of the Respondent's Constitution which demonstrates its willingness to consult on issues of development, the Respondent has failed to state how many the representatives of the Ogieks sit in any of the three or four tier electoral structures in the Respondent, that is, the local government, County legislative bodies, Parliament and Senate, or in any government decision making capacity.

Respondent's Submission

205. The Respondent argues that it has not violated the right to development of the Ogieks as alleged by the Applicant. It argues that the Applicant has to show specific instances where development has taken place without the involvement of members of the Ogiek Community, or where development has not taken place at all, or where members of the Ogiek Community have been discriminated against in enjoying the fruits of development. The Respondent submits that the Applicant has not demonstrated how it has failed in undertaking development initiatives for the benefit of the Ogieks or how they have been discriminated against and excluded in the process of conducting development initiatives.

206. The Respondent maintains that its development agenda is guided both by the will and determination of its government and by its laws. On the consultative process leading to development initiatives in the Mau Forest, the Respondent argues that consultation can be achieved in diverse ways. It argues that in the present case, as provided under Article 1 (2) of the Constitution of Kenya, consultations were held with the Ogieks' democratically elected area representatives and that the State has established several participatory task forces to review the legal framework and reports applicable to the situation while taking into account the views of the public. Finally, the Respondent argues that its development agenda, that is, Vision 2030, its various budget statements and Article 10 (2) of its Constitution, provide that the fundamental criteria for governance include equity, participation, accountability and transparency. The Respondent avers that, it is the responsibility of the Applicant to demonstrate that all these instruments are at variance with development, more precisely that of the Ogiek community.

The Court's Assessment

207. Article 22 of the Charter provides that:

208. The Court reiterates its view above with respect to Article 21 of the Charter that the term “peoples” in the Charter comprises all populations as a constitutive element of a State. These populations are entitled to social, economic and cultural development being part of the peoples of a State. Accordingly, the Ogiek population, has the right under Article 22 of the Charter to enjoy their right to development.

209. The Court considers that, Article 22 of the Charter should be read in light of Article 23 of the UNDRIP which provides as follows:

210. In the instant case, the Court recalls that the Ogieks have been continuously evicted from the Mau Forest by the Respondent, without being effectively consulted. The evictions have adversely impacted on their economic, social and cultural development. They have also not been actively involved in developing and determining health, housing and other economic and social programmes affecting them.

211. The Court therefore holds that the Respondent violated Article 22 of the Charter.

Applicant's Submission

212. The Applicant urges the Court to apply its own approachFootnote ⁶³ and that of the CommissionFootnote ⁶⁴ in respect of Article 1 of the Charter, that if there is a violation of any or all of the other Articles pleaded, then it follows that the Respondent is also in violation of Article 1.

Respondent's Submission

213. The Respondent made no submissions on the alleged violation of Article 1 of the Charter.