The government of Kenya has been ordered to coordinate the process for the creation of the fund by the Ogiek court ruling.
The Ogiek should take the coming few months to determine who will represent them in the committee and what structure is best for the Ogiek Community Development Fund.
There are a number of Civil Society Organizations (CSOs) ready to help the community to make sure they minimize the government control of the fund.
Lessons from the Endorois Case
In the Endorois case, the African Commission ordered the government to compensate the community. Unlike in this case where the court stipulated the clear amount for compensation, the court did not state the amount.
The local government of Baringo County has to share the benefit from the national reserve. They decide it is going for bursaries for Endorois children without consulting the community. The government has done compensation and benefit sharing. The Endorois do not have access to the financial papers behind how the money is used. It is hard to monitor whether they are having a fair share.
In the ogiek court ruling, the African court is more clear on what they want the government of Kenya to do. The Ogiek must be consulted and have a say on how the money is used.
Ksh. 157,850,000 is the total award for material and moral damages for all members of the Ogiek Community.
There is a need to communicate proactively what the community wants to be done.
The Council of Elders will have to decide with input from the entire community who will represent them in the committee or board.
Members of the committee have to be trustworthy people with integrity, who are well known to the community and who have finance management knowledge.
According to the Ogiek court ruling have freedom to choose their representatives, it is possible to pick some people from outside the community if they feel they can add value to their objectives.
Restitution of land under collective title
- Entitlement to benefit from royalties from third parties using Ogiek Land;
- Any development, conservation or investment cannot happen unless Ogiek People are consulted;
- If anything happens and the people have not been consulted, then there is need to tell the African Court about it;
- Publication of the judgment on the Government gazette – Kenya Gazette- within 6 months;
- The Ogiek have to be recognized as indigenous people within one year of the judgment;
- Engagement must be collective not individual engagement; That means that the community needs to have a spokesperson. It is important to stay together in order to reap the benefits;
- The Government of Kenya must report to the African Court on the progress of implementation of the Ogiek court ruling by June 2023;
Collective title is one title for the entire community
Personal parcels of land will still be owned by the people as they were owned before.
As a community they will decide how to share the land with the families/households.
There will be a process of delimitation, surveying and mapping on how the land will be used;
Free, Prior and Informed Consent (FPIC)
Free – means you will not be forced/harassed to accept anything, you can not be paid money in advance;
Prior -means it has to happen before anything happens;
Informed – means you should be given all the information before something happens;
The Ogiek People have the right to take advice (legal). You have the right for the information to be translated to their native language.
Consent – Means you say yes or say no.
Compensation
- Material damage – livestock, houses razed down etc – Ksh. 57,850,000
- Moral damages – Ksh. 100 million for the suffering that the Ogiek people have experience over the years;
Ogiek court ruling has to be published in the Kenya Gazette as well as national newspapers. This has to be done within a period of 6 months.
The government must take all the appropriate measures within one year to recognize the Ogiek as the indigenous people of Kenya.
It is a must for the Ogiek to be recognized and respected and end discrimination. In engaging with government bodies on the ruling. The dialogues must happen in accordance with the traditions of the Ogiek people.
There must be proper consultations. They must be inclusive and not speak with only one person or a few individuals in the community.
The African Court will be involved in the implementation. After one year, the government must send a report on progress of implementation of the ruling. This will be helpful in ensuring that the ruling is implemented to the letter.
In 2017, the African court was full of Ogiek people during Ogiek court ruling. That was one of the few times when the court was very busy. In 2022, it was the first time the court was in session in person for the first time in two years.
This is the first collective rights of indigenous people that the court was involved in. Last week’s judgment builds on the previous judgment in 2017.
The African court dismissed all the prayers made by the state in the ogiek court ruling. Further, the court accepted all the prayers made by the Ogiek Community except for the government to apologize and erect a monument.
The government had argued that the only reparations to be considered had to go back only to 1992. The court argued that all the injustices that have happened even prior to 1992 also matter.
The Ogiek have a right to demand justice for violations that happened even in the 1920s.
The government was calling for an out of court settlement. This is not possible to have an amicable settlement out of court.
The government also tried to say that Ogiek Peoples Development Programme (OPDP), Minority Rights Group International (MRGI) and other organizations can not represent the Ogiek. The court dismissed this and recognized that these organizations can represent the Ogiek. This is not the first time that governments refused to recognize the representation of indigenous peoples by organizations.
In 2017, the African Court rejected the argument that the Ogiek are the owners of Mau forest.
Restitution of land
Third party, private sector such as tea and companies with logging concessions will be stakeholders in the restitution of Ogiek land. Where leases or concessions have been granted to third parties, the government has to start a dialogue on how the Ogiek will be paid compensation/royalties.
If it is not possible, the private sector must give the land back to the Ogiek and be compensated by the state.
This will be a complicated process to identify who to engage in the process.
There has always to be good faith in all dialogues that will be held. The court was very clear that the government must take steps to protect the rights of the Ogiek people.
The Ogiek people will have the right to withhold their Free Prior Informed Consent – FPIC.
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