African Court tasks Kenya to implement rulings on the Ogiek Community

ARUSHA: THE Arusha-based African Court has ordered the Kenyan government to implement the ruling on the case of the Ogiek people, including paying compensation to the marginalized community. That was stated during the public Hearing in the matter of African Commission on Human and People’s rights versus the Republic of Kenya in the Application number …

ARUSHA: THE Arusha-based African Court has ordered the Kenyan government to implement the ruling on the case of the Ogiek people, including paying compensation to the marginalized community.

That was stated during the public Hearing in the matter of African Commission on Human and People’s rights versus the Republic of Kenya in the Application number 006/2012 commonly known as the Ogiek Case held at the African Court in Arusha.

In November 2024 the African Court for Human and People’s Rights had set a three-month deadline for Kenya to file a report outlining the measures and steps taken to comply with its earlier judgement in the Ogiek case.

Charles Mutinda the state counsel said the court had directed that a single communal title deed be issued to the Ogiek community in the Mau Forest.

“But the Mau forests are a large area mapped within eight counties, each with their own by-laws; therefore, it may take time before many of the directives can be executed, mostly due to geographic, financial, legal and political constraints,” Mutinda stated.

“It is not fair to assume that Kenya is doing nothing, we have been addressing the Ogiek issue, but there are many stumbling blocks that is why the process takes time,” he added.

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As for the monetary compensation to the Ogiek, the state attorney said it was again back to financial challenges facing the country.

The country was supposed to publish the court ruling in the official government notice and take the matter before the National Assembly, which is supposed to endorse the Arusha court decision to be executed by the government.

But lodging complaints in Arusha, the Lawyers representing the Mau Hill community claimed that the government in Nairobi was treating the matter of the African Court lightly.

Daniel Kobei, the Executive Director of Ogiek People Development Program, said they still have hope that the issue of the community will be addressed.

“Kenya has once again assured that they were working on the case, but most important is the fact that the government is now recognizing the Ogiek community people and their traditional rights,” said Kobei.

Advocate Bahame Tom Nyanduga, from Dar es Salaam, who leads the team of advocates representing the Ogiek community at the African Court, said his clients have been waiting for over nine years and were ready to buy more time until February 2025 but it seems they did not anticipate even further delay to as far as Mid-June 2025.

Lawyer Nyanduga, accompanied by Doland Deya from the Pan African Lawyers Union, said the case was held in Arusha as follow up to the series of court rulings since 2017.

The legal counsel said the Ogiek are a threatened hunter-gatherer tribe on the verge of extinction, currently numbering less than 40,000, which makes their current predicament even more serious.

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“But Ogiek are also good conservators, and the people who threaten the Mau forests are the invaders, especially farmers and other human activities,” said Nyanduga.

But now what next? The lawyers say the court will have to go though the case and maybe the matter may come up for another hearing in two or three months’ time.

In November 2024, the Government of Kenya had pleaded with the African Court in Arusha to give them three more months for settling the issue with the Mau Forest Hillbillies known as the Ogiek.

The African Court of Human and People’s Rights, operating from Arusha, Tanzania in June 2022 ruled that the government of Kenya should pay compensation to the Ogiek after they were unceremoniously evicted from the Mau Hills Forest slopes.

Two years later, in November 2024, Kenya requested more time, at least 12 weeks until February 2025, for the government to settle the matter.

However, it is now years since the initial court ruling and Kenya is yet to pay the marginalized communities their compensation.

In 2024, the African Court on Human and Peoples Rights agreed to postpone the hearings on the implementation of the Ogiek rulings of 2017 and 2022 for three months, at the request of the Kenyan government.

During that time, Liz Alden Wily, an independent land tenure and governance specialist who was an expert witness in the case, had previously warned that the delay of three months was a major setback.

But Mutinda insisted that 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 had stated in 2024.

Mau forest has been customary land for the Ogiek, but the Kenyan government planned to evict the tribe, citing protection of the environment, but the tribe representatives say the communities pose no threat to the forest.

A Tanzanian expert in International Laws, Dr Elifuraha Laltaika, is among the counsels that previously advised the court on collective reparation settlement for the Ogiek after they won in the case.

“The African Human Rights Commission in Banjul, Gambia, wanted to know why, now four years after the ruling, Kenya has not yet implemented the court’s decision,” pointed out Dr Laltaika.

The African Court had previously, in the 2022 ruling, ordered the Kenyan Government to pay Members of the Ogiek minority 158 million Kenyan shillings.

It is compensation for damages suffered during their unceremonious eviction from Mau Forest.

‘Having considered the Parties’ submissions, as well as those by the amici curiae and independent experts, the Court, in the exercise of its equitable jurisdiction, ordered that the Respondent State must pay damages to the Ogiek at the sum of  Ksh57,850,000m/-.’ Read part of the ruling.

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The African Court noted that while it was not possible to allocate a precise monetary value equivalent to the moral damage suffered by the endangered Ogiek, it could award compensation that provided adequate reparation to the Ogiek.

In determining reparations for moral prejudice, the Court confirmed that it takes into consideration the reasonable exercise of judicial discretion and bases its decision on the principles of equity, taking into account the specific circumstances of each case.

In the exercise of its reasonable discretion in equity, the Court ordered the Respondent State to compensate the Ogiek with the sum of Ksh100m/- for the moral prejudice suffered.