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African Commission on Human and Peoples' Rights v. Republic of Kenya (Afr. Ct. H.P.R.)

  • Philip C. Aka (a1)
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ENDNOTES

1 See James Reinl, African Tribes Losing Ground to Conservation, AL JAZEERA (May 23, 2013), www.aljazeera.com/indepth/features/2013/05/2013515185518112735.html.

2 Id. Some of the factors responsible for increased poaching of elephant tusks and rhino horns are their use in traditional medicines in some Asian countries. Id.

3 Id. (citing a study that puts the numbers of displaced people from 0.9 million to over 14 million persons). Countries in Africa affected include Namibia, Botswana, and South Africa. Magreth Nunuhe, Hai//om Fight for the Right to Ancestral Lands, SOUTHERN TIMES (June 5, 2017), https://southernafrican.news/2017/06/05/haiom-fight-for-the-right-to-ancestral-lands/. The dispute between conservationists and pastoralists is a problem not limited to Africa but instead spans different economic systems, including industrialized societies like the United States. In the United States, an example cited is the Confederated Tribes of Siletz Indians on the Oregon coast, resolved only in October 2016 under then President Barack Obama. See id. Similarly, the Inter-American Court of Human Rights and the European Court of Human Rights have decided cases regarding the failure of some member states to recognize property and cultural rights of indigenous peoples. Compare Kaliña and Lokono Peoples v. Suriname, Merits, Reparations and Costs Inter-Am. Ct. H.R. (ser. C) No. 309 (Nov. 25, 2015) (favoring these rights), with Chagos Islanders v. The United Kingdom, App. No. 35622/04 (Eur. Ct. H.R. Dec. 20, 2012), Handölsdalen Sami Village & Others v. Sweden, App. No. 39013/04 (Eur. Ct. H.R. Mar. 30, 2010), and Hingitaq 53 & Others v. Denmark, App. 18584/04 (Eur. Ct. H.R. Jan. 12, 2006) (in all three of which the European Court dismissed a complaint raising a land claim by a minority group).

4 Nunuhe, supra note 3.

5 African Commission on Human and Peoples' Rights v. Kenya, No. 006/2012, Judgment, African Court on Human and Peoples' Rights [Afr. Ct. H.P.R.], ¶ 6 (May 26, 2017), http://www.african-court.org/en/index.php/56-pending-cases-details/864-app-no-006-2012-african-commission-on-human-and-peoples-rights-v-republic-of-kenya-details [hereinafter Afr. Ct. H.P.R. Judgment].

6 This was the date the Protocol, the document that established the Court and governs its business, came into force following its ratification by more than the fifteen countries needed to bring it into effect. See Frans Viljoen, A Human Rights Court for Africa, and Africans, 30 BROOK. J. INT'L L. 1 (2004).

7 Welcome to the African Court, AFRICAN COURT ON HUMAN AND PEOPLES' RIGHTS, http://www.african-court.org/en/index.php/12-homepage1/1-welcome-to-the-african-court.

8 As the names of the Charter, the Commission, and the Court bear out, the African human rights system is notable for its unique approach to human rights that combines collective rights alongside the conventional personal rights. See, e.g., Makau Mutua, The Construction of the African Human Rights System: Prospects and Pitfalls, in REALIZING HUMAN RIGHTS: MOVING FROM INSPIRATION TO IMPACT 143, 145–48 (Samantha Power & Graham Allison eds., 2000).

9 Center for Minority Rights Development (Kenya) and Minority Rights Group Int'l (on Behalf of Endorois Welfare Council) v. Kenya, No. 276/2003, Complaint, African Commission on Human and Peoples' Rights [Afr. Comm'n H.P.R.] (May 2010), https://www.hrw.org/sites/default/files/related_material/2010_africa_commission_ruling_0.pdf. In the Endorois case, the African Commission on Human and Peoples' Rights found violations on several counts, including property, health, culture, natural resources, and religion, against the government of Kenya—that track the violations the African Court found in the Ogiek suit, as the next section shows.

10 Afr. Ct. H.P.R. Judgment, supra note 5, ¶ 6. Located about 179 kilometers northwest of Nairobi, Kenya's capital city, Mau Forest is said to be the largest remaining indigenous forest in Kenya. The region was declared a Crown Land in the 1930s, made a National Reserve in 1945, and became a Forest Reserve under the Forest Act of 1954. Stanley Waitagei, The Story of Mau Forest Complex, STANDARD DIGITAL (Feb. 1, 2017), https://www.standardmedia.co.ke/lifestyle/article/2001227875/the-story-of-mau-forest-complex.

11 A water catchment zone, also known as a watershed, “is an area of land where all water flows [in]to a single stream, river, lake or even oceans.” Water Catchment Areas (Watersheds), HILL COUNTRY ALLIANCE, http://www.hillcountryalliance.org/WaterCatchmentAreas. Water catchment zones “are widely recognized as the most effective management unit for the protection of water resources, both water quality and supply.” Id.

12 These two organizations are the Center for Minority Rights Development (CEMIRIDE), based in Kenya, and the Minority Rights Group International (MRGI), headquartered in London.

13 Afr. Ct. H.P.R. Judgment, supra note 5, ¶ 8.

14 This is one of three instances where the Commission has referred a case to the Court and the only instance it has done so on the basis of grave and massive violation of human rights. Minority Rights Group Int'l, African Court Delivered Landmark Judgment on Ogiek Community Land Rights Case, ESCR-NET (May 22, 2017), https://www.escr-net.org/news/2017/african-court-delivered-landmark-judgment-ogiek-community-land-rights-case.

15 Afr. Ct. H.P.R. Judgment, supra note 5, ¶ 28.

16 Consistent with the instrument setting up the Court and its rule of procedure, one judge from Kenya, the respondent in this judgment, did not participate in the decision. Id. at 1.

17 Id. ¶¶ 103–211.

18 Id. ¶¶ 212–17.

19 See id. ¶ 156.

20 Id. ¶¶ 103–12.

21 Id. ¶ 105.

22 Id. ¶¶ 106–11.

23 Id. ¶ 112.

24 Id. ¶¶ 122–31.

25 Id. ¶ 130.

26 Id.

27 Id. ¶¶ 136–46.

28 Id. ¶¶ 142, 144–46.

29 See id. ¶¶ 162–69, especially ¶¶ 166, 169.

30 See id. ¶¶ 176–90, especially ¶¶ 183, 188, 189–90.

31 See id. ¶¶ 195–201.

32 See id. ¶¶ 207–11.

33 See id. ¶¶ 214–17. Intriguingly, the Kenyan government made no submission relating to the allegation of violation on this issue. Id. ¶ 213.

34 Id. ¶ 216.

35 Id.

36 Id. ¶ 153.

37 Id. ¶ 154.

38 Id. ¶¶ 218–23.

39 See LARRY BERMAN & BRUCE ALLEN MURPHY, APPROACHING DEMOCRACY 203 (Longman, 7th ed., 2011) (referring to the U.S. Supreme Court).

40 Reinl, supra note 1.

41 United Nations, United Nations Declaration on the Rights of Indigenous Peoples, 107th Plenary Meeting, U.N. General Assembly (Sept. 13, 2007), http://www.un.org/esa/socdev/unpfii/documents/DRIPS_en.pdf.

42 See George Mukundi Wachira, African Court on Human and Peoples' Rights: Ten Years On and Still No Justice 8–10 (Minority Rights Group Int'l, 2008) (highlighting the contributions of the African Commission on Human and Peoples' Rights to human rights promotion in Africa).

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International Legal Materials
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