Dispensing justice through reparations: benchmarking the decision of the African Court on Human and Peoples’ Rights in the Ogiek case in protecting indigenous peoples’ right to development in Tanzania

3.1 Land laws

The Imperial German Colonial Government introduced the first colonial land law, known as the Imperial Ordinance on the Creation, Acquisition and Conveyance of Crown Land and Alienation of Real Estates in German East Africa, 1895. Through the enactment of this legislation, a radical centralisation of land tenure was achieved. The Ordinance resulted in the expropriation of all land within the geographical confines of the territory now constituting Mainland Tanzania, regardless of its current state of occupation. Consequently, absolute title and ownership of this entire domain were formally vested in the German Empire. This decisive legislative act effectively nullified pre-existing indigenous communal land rights, thereby serving as the core legal basis for the subsequent colonial landholding system.

The same was the case with the British colonial land regime whereby the Tanganyika Order in Council of 1920 was issued for the authoritative administration of Tanganyika under the Foreign Jurisdiction Act of 1890. The Order in Council vested all the land in Tanganyika (now Mainland Tanzania) in the British Governor, who held it in trust on behalf of the British Crown. It declared all land in the territory as public land to the extent that communities’ land ownership ceased to exist from the perspective of the new legal regime. The same Order in Council empowered the Governor to make laws for governing the territory as though Tanganyika was a British colony.16 The British introduced English land law to Tanganyika through the enactment of the Land (Law of Property and Conveyancing) Ordinance, Cap. 114 and the Land Ordinance, Cap. 113. The laws governed land matters in the territory whereby citizens of Mainland Tanzania would only occupy land legally through the ‘right of occupancy’ established by these land laws.17 The notion of ‘owning’ land by individuals or communities was abolished. This legal position persists in Tanzania today in the sense that indigenous peoples’ claims on collective rights to own ancestral lands are illusory. The title of ‘Governor’ in the colonial land laws has been substituted with ‘President’ in the current land law regime in Tanzania regime. Any person who had title to land before the British colonial land regime in Tanzania lost such ‘privilege’ during the British colonial era. No one could occupy or use land but by the consent of the Governor. The Land Act maintains this status up to date in the sense that all land in Tanzania continues to be held under the custody of the President for and on behalf of all Tanzanians.18 Tanzanian citizens may either hold titles to occupy land under the customary right of occupancy, or be granted a right of occupancy for a renewable term of thirty three, sixty six or ninety-nine years.19

This position established by land laws in Tanzania accounts for the government’s approach towards promoting and protecting indigenous peoples’ right to ancestral lands in the country. The Tanzanian Minister of Constitution and Legal Affairs once stated clearly that ‘we do not have anyone within Tanzania who has indigenous rights’; and that ‘we do not have any minority groups in Tanzania’.20 The Minister further asserted that the principle of private land ownership is absent within the legal framework of Tanzania (Mainland). Instead, all land is designated as public property and is vested in the President in trust for the populace. Citizens acquire access to this land through a right of occupancy, which is essentially a leasehold instrument that can be formally granted for fixed, renewable durations, specifically 33, 66, or 99 years. To this effect, he stated, ‘there is no Maasai land in Tanzania’.21 This is clearly an amplification of the colonial legacy in the Tanzanian land administration. The situation is the same with conservation laws.

3.2 Conservation laws

The origin of unrelenting struggles for land tenure security by the Maasai, Barbagis and Ilparakuiyo pastoralists in Tanzania traces its roots back to the German colonial administration. The German Colonial Government enacted the Game Ordinance in 1908. The Ordinance gave the Governor the competence to declare any area as a game reserve for purposes of ‘wildlife conservation’ and hunting for sport. For the same purpose, the British colonial administration enacted the Fauna Conservation Ordinance in 1951.22 This law created various degrees of fauna conservation including game reserves, game-controlled areas and partial game reserves.23 It was in the same year that the first game reserve was established in the then Tanganyika. Section 58 of the Fauna Conservation Ordinance explicitly vested in the relevant Minister the requisite statutory competence to promulgate regulatory instruments. This delegation of power was precisely defined by the twin objectives of achieving the enhanced preservation of fauna (biodiversity conservation) and simultaneously ensuring the safeguarding of both human life and material property within the delineated boundaries of designated game reserves. This included imposing restrictions on certain activities such as grazing and cultivation in the reserves as well as controlling the number of residents and animals entering the reserves.

This legal provision laid the foundation for the eviction of the Maasai pastoralists from Mkomazi Game Reserve in the 1980s, with the aftermath of loss of habitats and property by a substantial number of such pastoralists. The Mkomazi Game Reserve was upgraded to Mkomazi National Park in 2006. Such an upgrade came with even stricter rules regarding entry (other than tourism and management activities), residence and economic activities in the Park.24 The National Parks Ordinance of 1948, which was re-enacted in 1959, terminated all land rights of the local communities living in the areas established as national parks.25 This being the case, clashes between pastoralists and Mkomazi National Park administration have become permanent. For example, on 5 July 2022, a Maasai teenager named Ngaitepa Marias Lukumay was shot dead by the park rangers in the course of seizing the livestock that he was grazing within the national park. This sparked a public outcry calling for justice for indigenous pastoralists in Tanzania. The Tanzania National Parks Authority (TANAPA) took responsibility for the life lost and issued a public apology on 12 July 2022.26

Similarly, the establishment of the Serengeti National Park and the Ngorongoro Conservation Area through the enactment of the National Parks Ordinance, 1959, and the Ngorongoro Conservation Area Act, 1959, left the Maasai pastoral community in a continued struggle for land tenure security and access to natural resources for survival in these protected areas. In recent years, the solemn pledge that was made by the British Colonial Administration to the indigenous Maasai community, as they were being relocated from the Serengeti National Park to the Ngorongoro Conservation Area, has been broken. The pledge was for the protection of pastoralists’ pre-existing rights in case of a conflict between their interests and those of nature conservation. The Government has initiated a project for voluntary relocation of the Maasai from the Ngorongoro Conservation Area to Msomera village in the Tanga region to ‘depopulate’ the property. Aside from this case, it is also important to note that part of the Ngorongoro Conservation Area was designated as a forest reserve. This includes the designation under the German Administration of the Northern Highland Forest Reserve (NHFR) in 1914 - shortly before the British takeover of Tanganyika - to protect the natural resources therein, specifically the watersheds. Previously, this conservation area had been home to the Maasai long before the establishment of German East Africa as a colony.

Further, the declaration of the NHRF was the foundation for the Maasai land tenure insecurity in that geographical area before other of the same community were relocated thereto from the Serengeti National Park and restrictions that followed such as limitations on performing economic activities in some locations of the property that came with the post colonial legal regime.27 Up to when the decision to relocate the Maasai from this conservation area was reached, they had undergone frequent restrictions to accessing some parts of the property that are lucrative for livestock grazing as well as being banned from cultivating in the property to supplement their diet which is largely dependent on livestock. The Maasai indigenous peoples’ restrictions to accessing and using natural resources in this area and other parts of the conservancies is a direct result of post-colonial implementation of the colonial legacy which sowed the seed of demarcating protected areas in Tanzania. The same situation in Kenya, captured in the jurisprudence surrounding collective rights to ancestral lands experienced by indigenous peoples, particularly the Ogiek, provide salient instructional value for communities in Tanzania that currently self-identify as indigenous peoples.

4.1 British colonial period

The African Court decision in the Ogiek case is deeply intertwined with colonialism due to the historical injustices perpetuated against the Ogiek people during and after the British colonial era. In this case, the Court notes the root cause for the denial of the Ogiek people’s collective rights to the Mau Forest is linked to their non-recognition as a tribe by the British colonial administration.28 It shows how their request to be granted such recognition was refused by the Land Commission in 1933 whereby they were referred to as ‘savage and barbaric people who deserved no tribal status’.29 The Kenyan (Colonial) Land Commission proposed that the Ogieks assimilate into a tribe in which they have most similarity in order to be accorded with the recognition they were seeking.30 The Court highlights that recognition as a tribe by the British colonial administration in Kenya was the only way for any community to be granted land as ‘special or communal reserve’; something that has continued being the position of the post-colonial Kenyan Government.31 This denial of recognition of the Ogiek as one of the tribes or indigenous population in Kenya was the foundation for the impediment of the Ogiek’s access to their ancestral lands in the Mau Forest in decades.32 These evictions had led to a systematic denial of the Ogiek’s traditional way of life, which was deeply dependent on the forest.33

4.2 Post independence period

Even after Kenya gained independence, it remained obvious that the post-colonial government upheld and, in some cases, intensified the policies of land alienation and dispossession that originated during colonial rule. The argument for ‘conservation’ of the Mau Forest has often been used to justify the Ogiek people’s continued evictions from such vicinity, mirroring the British colonial administration which mostly disregarded indigenous land tenure systems and knowledge. In October 2009, the Kenyan Government through the Kenya Forestry Service issued the Ogiek with the 30 days eviction notice demanding them to vacate the Mau Forest.34 The notice indicated that such forest was firstly part of the government land per section 4 of the Government Land Act and secondly the same constitutes a reserve of water catchment area.35

4.3 Litigation before the African Commission

Upon the Ogiek community receiving a thirty-day eviction notice from the Kenya Forestry Service in late 2009 to vacate the Mau Forest, the Ogiek Peoples’ Development Program (OPDP) and the Centre for Minority Rights Development formally submitted a communication to the African Commission on Human and Peoples’ Rights (ACHPR). They were later joined by the Minority Rights Group International (MRGI). This case was instituted on behalf of the Ogiek people and specifically requested the Commission’s intervention to safeguard the economic, social, cultural, and political interests of the Ogiek, which were deemed to be under imminent threat.36 As the case demonstrated serious human rights violations, the African Commission resolved to refer it to the African Court.

4.4 Litigation before the African Court

Upon receiving the case by the African Commission on behalf of the Ogiek people,37 which was later qualified by an application for provisional orders by the Court to order Kenya to halt activities in the disputed property (the Mau Forest complex) pending determination of the main application; the African Court granted such a prayer.38 This was not heeded by the Kenyan Government.

In the main application, the Ogiek people argued non-consultation by the Kenyan Government before the decision to evict them was a failure of the same government to recognise the crucial role played by the Mau Forest in the survival of the Ogiek community. They contended that a series of evictions conducted after the colonial period is a perpetuation of historical injustices they have been suffering as a community.39 The Ogiek community further indicated that, just as it was the case with the British colonial administration, the post-colonial practices of forced evictions of the community violated their fundamental rights including their rights to property, culture, religion, and access to natural resources.

Specific to the African Charter on Human and Peoples’ Rights (African Charter) to which Kenya is a party;40 the Ogiek alleged violation of rights to life and respect of their dignity, freedom of conscience and religion and right to property as per articles 1, 2, 4, 8 and 14 of the Charter. They further asserted infringement of their right to participate in their group’s cultural life, protection of their morals and traditional values, free disposal of their wealth and natural resources, and economic, social and cultural development, as per articles 17(2) and (3), 21, and 22 of the Charter.

As the root cause for limiting the Ogiek people’s rights to the Mau Forest was non-recognition of their status as indigenous peoples with ancestral ties to the Mau Forest by the British colonial administration and later the post-colonial Kenyan Government, the African Court tackled this question first while disposing the case on the merits. The issue as to whether the Ogiek constituted an indigenous people was found central to the entire disposal of the case.41 The Court asserted that there was no agreed definition of the term ‘indigenous people’ in the African Charter.42 Hence, it drew inspiration from reports of various studies conducted on the indigenous peoples’ rights subject and relevant international instruments according to articles 60 and 61 of the Charter to come up with the standard for identifying an indigenous people. It noted the following as the relevant criteria:43

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.

The Court, having articulated and delineated the requisite criteria, formally recognised the Ogiek as an indigenous people. Consequently, the Court determined that the members of the Ogiek community are entitled to special protection under the theory of vulnerability, a legal principle equally applicable to all indigenous populations globally.44

Following the affirmation of the Ogiek’s status as an indigenous community in Kenya, and having duly considered the merits of the submissions presented by both litigant parties, the Court proceeded to adjudicate the outstanding legal issues.

Regarding the Ogiek’s right to communal property, the Court determined that the established indigenous status necessitated the application of a correlative international standard. Consequently, this right was deemed to be governed by article 26 of the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP), 2007. The Court explicitly interpreted this right as encompassing not merely the entitlement to legal ownership, but extending comprehensively to the unhindered rights of possession, utilization, and occupation of the ancestral land.45 The Court further addressed Kenya’s assertion that the eviction of the Ogiek from the Mau Forest was justifiable based on the public interest objective of natural ecosystem preservation.

Crucially, the Court determined that Kenya had failed to furnish adequate evidence demonstrating a causal nexus between the continued presence of the Ogiek community within the forest and the alleged environmental degradation of the ecosystem. In absence of this requisite proof of justification, the evictions were declared unjustifiable and therefore constituted a violation of article 14 of the African Charter on Human and Peoples’ Rights (the right to property).46

Regarding the allegation of discrimination against the Ogiek, the Court adopted a stringent interpretation of article 2 of the Charter (Prohibition of Discrimination). The Court held that differential treatment constitutes discrimination per se when it lacks the following three essential legal thresholds i.e. a specified legitimate purpose, reasonable justification and demonstrable necessity and proportionality.47 The Court definitively concluded that insufficient evidentiary basis existed to attribute the destruction of the Mau Forest ecosystem exclusively to the presence of the Ogiek community. Furthermore, the Court noted the existence of other anthropogenic activities within the forest, which were carried out by non-Ogiek communities and, significantly, by corporate entities sanctioned by Kenya’s government.48 This finding effectively discredited the State’s argument of singular causation and highlighted the discriminatory application of conservation policies, underscoring that the Ogiek were being unfairly targeted for degradation caused by a broader, State-sanctioned complex of activities.

The Court observed that other minority groups in Kenya, whose livelihoods were similarly predicated upon the natural environment, were not subjected to restrictions preventing access to their primary means of subsistence, namely the natural resources at their disposal.49 It underscored that, notwithstanding the fact that the 1963 Kenyan Constitution lacked the comprehensive provisions addressing peoples’ rights found in the subsequent 2010 Constitution, the Government of Kenya, in its capacity as a State Party to the African Charter, was already bound by an affirmative responsibility to protect and uphold these fundamental rights under the international legal instruments.50

As to the alleged violation of the right to life (article 4 of the African Charter), the Court formally acknowledged that the eviction of the Ogiek from the Mau Forest constituted a demonstrable disruption of their traditional mode of life and their existential dependence upon the forest’s natural resources. Notwithstanding this acknowledgment, the Court ultimately held that a violation of this right was not substantiated against Kenya. This conclusion was predicated upon the absence of admissible evidence establishing a direct causal link between the eviction measures and the instances of mortality recorded within the Ogiek community across disparate temporal junctures.51

This ruling implies that while the consequences of the eviction were severe, the specific legal standard for demonstrating the State’s responsibility for individual deaths under article 4 was not met due to the lack of clear proof of causality.

Pertaining to the right to participate in one’s culture (article 17(2) and (3) of the Charter), the Court determined that the State’s eviction action constituted an unjustifiable curtailment of the Ogiek’s ability to engage in cultural practices, including religious rites, within the Mau Forest.52 This was predicated on the finding that Kenya failed to discharge the burden of proof by demonstrating a causal link between the Ogiek’s presence and engagement with the forest (their cultural activities) and the alleged destruction of the natural ecosystem. The Court thus concluded that the forced removal arbitrarily restricted the community’s fundamental cultural rights.

Regarding the alleged violation of the right to freely dispose of wealth and natural resources (article 21 of the Charter), the Court held that a consequential violation was evident. Since Kenya had already been found to have violated multiple antecedent rights--specifically through the forcible eviction of the Ogiek from the Mau Forest--it was determined that this action simultaneously and inevitably infringed upon the Ogiek’s right to the free disposal and exploitation of the natural resources available within that ancestral territory. The finding of a direct violation of other rights through eviction established the prima facie breach of the right to dispose natural resouces.53

Concerning the right to development (article 22 of the African Charter), the Court employed a method of contextual interpretation, deeming it necessary to consider this provision as dealing with the same subject matter as article 23 of the UNDRIP. The Court highlighted three critical elements mandated by article 23 of the UNDRIP. First, indigenous peoples have an autonomous right to determine and define their own development approach. Second, there must be full inclusion and consultation in all proposed development programmes affecting them. Third, indigenous communities have the right to administer and manage development programmes through their own established institutions.54 Given that the eviction of the Ogiek from the Mau Forest occurred without prior consultation and lacked their free, prior, and informed consent (FPIC), the Court concluded that Kenya had failed to adhere to these prescribed international standards. Consequently, the Ogiek’s right to social, economic, and cultural development was definitively ruled to have been violated.

Finally, concerning the alleged violation of article 1 of the Charter, which imposes a positive obligation on Member States to operationalise the rights, duties, and freedoms articulated within the Charter through the enactment of corresponding domestic legislation or other effective measures, the Court delivered a conclusive opinion.55

The Court determined that, irrespective of the existence of general Kenyan domestic legislation acknowledging some Charter rights, the Government of Kenya failed to substantiate the specific measures taken to give effect to articles 2, 8, 14, 17(2) and (3), 21, and 22 of the Charter in the particular context of the Ogiek community. This demonstrated failure to implement the protective provisions for the Ogiek which was thus ruled to constitute a substantive violation of article 1 of the African Charter, establishing that the State’s inaction rendered the Charter’s guarantees ineffective.

Ultimately, the Court concluded that Kenya was in violation of a comprehensive set of provisions within the African Charter, specifically articles 1, 2, 8, 14, 17(2) and (3), 21, and 22. The Court subsequently decided to issue a separate ruling on the question of reparations for the Ogiek community.56 This Court’s final determination serves as an effective mechanism for acknowledging and addressing the long-term impact of the historical injustices suffered by the Ogiek concerning the Mau Forest, thereby establishing a significant legal precedent for other related cases involving indigenous and minority rights.