By Lucy Claridge, 28th April 2023
In May 2017, the relationship between conservation and Indigenous peoples’ rights in Africa was determined for the first time by the highest human rights body on the continent, the African Court of Human and Peoples’ Rights. The case was brought by the Indigenous Ogiek of Kenya, who successfully challenged their eviction from their ancestral land in the Mau Forest, which the Government had sought to justify on the basis of conservation. In its landmark judgment, the Court made clear rulings regarding the role of Indigenous Peoples in conservation, stating that the preservation of the Mau Forest could not justify the lack of recognition of the Indigenous status of the Ogiek, nor the denial of the rights associated with that status. The Court deferred its ruling on remedies until a later stage.
Five years after this judgment, the Court finally issued its reparations ruling, in June 2022; in the meantime, the violation of the Ogiek’s rights had still not been remedied. The Court specified that the Government of Kenya must grant the Ogiek collective ownership of the land, following clear principles of conservation and symbolizing the central role that Indigenous Peoples can and should play in the management of forests. The ruling sets a precedent for the restitution of ancestrally owned land on a conservation basis to Indigenous and forest communities in Africa and beyond.
In their legal submissions, the Ogiek explained their intimate relationship with the Mau Forest, and how their dependence on it for food, shelter, identity and survival has ensured this relationship has been rooted in respect for the forest and the need to conserve it. Like other Indigenous Peoples, over generations the Ogiek have developed a set of conservation measures that are passed down from one generation to the next.
A good example of this is the system of voluntary forest scouts that the Ogiek have set up in both Kiptunga and Logoman forests (in Nakuru County, Njoro sub-county) in partnership with the Kenya Forest Service. The scouts used both traditional Ogiek knowledge to protect the forest as well as skills learnt during joint training with the Forest Service. In addition to conducting forest patrols and deterring illegal loggers, the scouts have worked closely to rehabilitate over 200 acres of land by planting native trees to replace degraded forest.
The Court was persuaded by the arguments of the Ogiek that they can and should play a role in preserving the Mau Forest, which is their ancestral home. The Court recognised the link between Indigenous communities, land, and the natural environment, and that for centuries they had depended on the Mau Forest as a source of their livelihood.
In the 2022 judgment, the Court has both cemented the rights of the Ogiek over their ancestral land and established the first precedent for the restitution of land on conservation principles to Indigenous communities in Africa. The Ogiek were recognised by the Court as an Indigenous people who can and should play a role in the conservation of their ancestrally owned forest. The Ogiek have also established a set of rules, a Bio-Cultural Protocol, by which they agree to conserve the forest and share in its benefits. Now, the Ogiek must confirm which land they wish to seek restitution of, prepare for collective title to be transferred to them on an inalienable basis, and work with the Kenya Forest Service to protect their forest lands.
In the context of an increasing recognition of the role of Indigenous Peoples in the conservation of land and natural resources internationally, the Ogiek case has the potential to become a precedent for global conservation policy and practice. As the Court and other international and regional human rights bodies have found, where the rights of Indigenous Peoples over their lands are not respected and are threatened or violated in the name of conservation, the situation must be remedied, and restitution of land is one of the primary means of providing that.
As the Ogiek case illustrates, lack of recognition of customary tenure is a primary issue underlying many conflicts between the management of protected areas and the rights of Indigenous Peoples and local communities. In contrast, new protected area paradigms that recognize community rights to own and manage protected areas provide a foundation for positive synergies. Equitable conservation, which empowers and supports the environmental stewardship of Indigenous Peoples, represents the primary pathway to effective long-term conservation of biodiversity, particularly when upheld in law and policy.
The article ‘Protected areas, Indigenous rights and land restitution: the Ogiek judgment of the African Court of Human and Peoples’ Rights and community land protection in Kenya’ is available in Oryx—The International Journal of Conservation.