The Government of Kenya has requested the African Court in Arusha to give them three more months for settling the issue with the Mau Forest Hillbillies known as the Ogiek.
State counsel Charles Mutinda asked for more time to demonstrate steps towards compliance with the judgments, arguing that recent changes the country leadership is affecting the implementation.
It is now 28 months since the African Court of Human and People’s Rights, operating from Arusha, Tanzania ruled that the government of Kenya should pay compensation to the Ogiek after they were unceremoniously evicted from the Mau Hills Forest slopes.
Now Kenya wants to be given more time, at least 12 weeks until sometimes in February 2025.
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.
However, Liz Alden Wily, an independent land tenure and governance specialist who was an expert witness in the case, said it was a setback as there will be another delay of three months.
But Mutinda insists 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 maintained.
Advocate Bahame Tom Nyanduga, from Dar-es-salaam who represents the Ogiek community at the African Court said his clients have been waiting for over nine years; therefore they can also wait three more months.
“Let us wait to see if Kenya is really serious on the matter, because the country’s government has been dilly-dallying with the issue for nearly ten years now,” said Lawyer Nyanduga.
The legal counsel said the Ogiek are a threatened hunters-and-gatherers tribe on the verge of extinction, currently numbering less than 40,000 which makes their current predicament to be even more serious.
Mau forest has been customary land for the Ogiek but the Kenyan government wants to evict them citing protection of the environment but the tribe representatives say the communities pose no threat to the forest.
An expert in International Laws, Dr Elifuraha Laltaika said he was among the counsels that 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 Kenya Government to pay Members of Ogiek Minorities 158 Million 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 Kenya Shillings 57,850,000.’ Read part of the ruling.
The Court noted that while it was not possible to allocate a precise monetary value equivalent to the moral damage suffered by the endangered Ogiek.
Nevertheless, 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 100 million Kenyan Shillings for the moral prejudice suffered.
Total compensation should thus add up to 158 million Kenyan shillings.
In making the finding, the Court affirmed its finding that the Respondent State, being responsible for the violation of the rights of the Ogiek, bore the responsibility for rectifying the consequences of its wrongful acts.
In its Application, the African Commission on Human and Peoples’ Rights alleged that, in October 2009, the Ogiek, an indigenous minority ethnic group in the Republic of Kenya received a thirty days eviction notice from the Kenya Forestry Service, to leave the Mau Forest.
The Commission filed the Application after receiving, on 14 November 2009, a Communication from the Centre for Minority Rights Development and Minority Rights Group International, both acting on behalf of the Ogiek of Mau Forest.
In the Application, the Commission argued that the eviction notice failed to consider the importance of the Mau Forest for the survival of the Ogiek leading to violations of the African Charter on Human and Peoples’ Rights.
The Court confirmed that moral prejudice includes both the suffering and distress caused to the direct victims and their families, and the impairment of values that are highly significant to them, as well as other changes of a non-pecuniary nature, in the living conditions of the victims or their family.
The Court then considered the Applicant’s claims for non-pecuniary reparations covering the claims for restitution of Ogiek ancestral lands, recognition of the Ogiek as an indigenous people.
The request for a public apology, the prayer for the erection of a public monument, the prayer for an order directing effective consultation and dialogue over matters affecting the Ogiek and the prayer for guarantees of non-repetition.