On Tuesday, February 6th, at 11 am (Nairobi), members of ESCR-Net delivered to the Attorney General of Kenya's office in Nairobi two call-to-action letters demanding the government immediately implement the Commission and Court rulings to ensure justice and reparations for the Endorois and Ogiek Peoples, including return of their ancestral lands and respect of their rights to free, prior and informed consent over any actions taken there.

What’s at stake?

After 14 years, the Kenyan government continues to deny the Endorois Peoples’ return to their ancestral home and reparations for their forced eviction recognized by the African Commission on Human and Peoples’ Rights.

At the same time, in the Mau Forest, the government continues to expel and deny reparations to the Ogiek Peoples, contrary to judgments of the African Court on Human and Peoples’ Rights beginning in 2017.  Since November 2, 2023, the Kenyan government has been carrying out forced evictions in the Mau Forest complex. The ongoing forced evictions have so far affected more than 700 people from the Ogiek community, half of whom are women and children. Their homes, schools, and belongings have been burned and demolished, and the rainy season makes their situation even more vulnerable.

It is imperative that the Kenyan government immediately act to implement the decisions in their entirety and thus meet their obligation to respect, protect, and fulfill the human and environmental rights of the Endorois and Ogiek Peoples.

Members of the Endorois and Ogiek communities during the protests on February 6, 2024. Photo: ESCR-ne
Members of the Endorois and Ogiek communities during the protests on February 6, 2024. Photo: ESCR-net

What do the call-to-action letters say?

The two letters that were delivered by members to the Attorney General emphasized the urgency of implementing the African Commission on Human and Peoples’ Rights (ACHPR) decision favoring the Endorois and Ogiek communities, including

In the Endorois case, it has been 14 years of non-compliance. In the Ogiek case, it has been six years of waiting.

Photo: Minority Rights Group.

ENDOROIS CASE CONTEXT

The Endorois are an agro-pastoralist indigenous community in Kenya comprising about 60,000 members who live communally around Lake Bogoria, one of the larger lakes in Kenya's Rift Valley region. The social and cultural value of land for humanity is immeasurable, and rights relating to land are central to realizing a range of human rights. For the Endorois, the land around Lake Bogoria is their ancestral home which provided them green pasture, ample clean drinking water, medicinal salt licks for their cattle, traditional herbal medicines, practiced bee-keeping activities and where they performed important rituals and ceremonies such as circumcisions, burials, children's naming ceremonies and other rituals related to their ancestors.

In 1973, the Endorois were forcibly evicted from their ancestral land by the Kenyan government to pave the way for a game reserve for tourism. The eviction took place without proper consultation or compensation. As a result of the eviction, the Endorois were forced to move on arid land, where many of their cattle died and the sustenance of their way of life was not possible any longer.

LOOKING FOR JUSTICE

In 2003, the Endorois, in partnership with the Minority Rights Group (MRG) and the Center for Minority Rights Development (CEMIRIDE), filed a case before the African Commission. On 25 November 2009, the Commission rendered a landmark ruling vindicating the rights of the Endorois people. The ruling was adopted by the African Union Heads of States Summit on 2 February 2010 in Addis Ababa Ethiopia. The Commission established that the Kenyan Government had violated the Endorois peoples’ rights and directed the Kenya Government to:

  1. Recognize rights of ownership to the Endorois and restitute Endorois ancestral land;
  2. Ensure that the Endorois Community has unrestricted access to Lake Bogoria Game Reserve and surrounding sites for religious and cultural rites and for grazing their cattle;
  3. Pay adequate compensation to the Community for all the loss suffered;
  4. Pay royalties to the Endorois from existing economic activities and ensure that they benefit from employment possibilities within the Reserve;
  5. Grant registration to Endorois Welfare Committee;
  6. Engage in dialogue with the complainants for the effective implementation of the recommendations;
  7. Report on the implementation of these recommendations within three months from the date of notification.

14 YEARS WAITING FOR IMPLEMENTATION

The Kenyan government has failed to implement most of the recommendations of the case, and to date, little has changed for the Endorois community. The only recommendation implemented is the one related to the formal registration of EWC. Other recommendations saw little or no progress. In 2014, the Kenyan government formed a task force with a one-year tenure to engage in dialogue on implementing the decision. The task force only went to the community once without proper notice; there has been no report on what it achieved, and its term has never been renewed. The recommendations to pay royalties and grant unrestricted access to Lake Bogoria and surrounding areas have seen tokenistic implementation with all the others recommendations seeing no implementation whatsoever.

Photo: Minority Rights Group.

OGIEK’S CASE CONTEXT

The Ogiek Case, brought by the Ogiek Peoples Development Programme (OPDP) and Minority Rights Group (MRG), that reached the Court was a culmination of a struggle against historical injustices of forced evictions and dispossessions against the Ogiek, dating back to the colonial days. In 2009, the Ogiek received a 30-days eviction notice from the Kenyan Forestry Service, to leave the Mau Forest and therefore filed a case at the African Commission on Human and Peoples’ Rights (the Commission), contesting the planned evictions and requesting for the ordering of Provisional Measures to prevent irreparable harm being done to them, pending the final determination of the communication. Provisional measures were Ordered, which the Government of Kenya illegally refused to comply with.

The Commission, thereafter, referred the case to the Court, thereby, becoming the Applicant before the Court. Amicable settlement initiatives failed, and the Court decided to consider the complaint on its merits. On 26 May 2017, the Court delivered judgment on the merits of the case, ruling that the Ogiek are an Indigenous People of Kenya and that the evictions of the Ogiek from the Mau Forest violated their rights in terms of Article 2 (freedom from discrimination), Article 8 (freedom of religion), Article 14 (right to property), Article 17(2 & 3) (right to culture), Article 21 (the right to freely dispose of wealth and natural resources), Article 22 (right to development) and Article 1 (which obliges all member states of the Organization of African Unity to uphold the rights guaranteed by the African Charter on Human and Peoples’ Rights). On 23 June  2022, the Court delivered judgment on reparations, bringing to a close 13 years of litigation at the supranational level and ordered the Government of Kenya to:

  1. Pay the Ogiek KES. 157.85 million as collective compensation for material and moral damages suffered;
  2. Return the Ogiek’s ancestral lands in the Mau Forest to collective title within two years through a delimiting, demarcation and titling exercise in consultation with the Ogiek;
  3. Commence a dialogue and consultation process with the Ogiek and any concerned parties in relation to any concessions and/or leases granted over Ogiek lands to reach an agreement on whether or not these operations will continue by way of lease or benefit sharing agreement and, where no agreement is reached, to return the lands to the Ogiek and compensate concerned third parties;
  4. Adopt all necessary measures to ensure the full recognition of the Ogiek as an Indigenous People of Kenya, including full recognition of their language and cultural and religious practices;
  5. Adopt all necessary measures to ensure the Ogiek are effectively consulted, in accordance with their traditions and/or their right to give or withhold their free, prior and informed consent, in relation to any development, conservation or investment projects on Ogiek lands;
  6. Ensure full consultation with the Ogiek, in accordance with their traditions and customs, in the reparations process as a whole;
  7. Adopt all necessary measures to give full effect to the judgment as a means of guaranteeing the non-repetition of violations;
  8. Establish a community development fund within one year of the judgment for the benefit of the Ogiek people as a repository for the compensation awarded;
  9. Coordinate the establishment of a committee to oversee the community development fund, which must include representatives chosen by the Ogiek and be operationalized within one year of the judgment;
  10. Publish, within six months, the official summaries of the merits and reparations judgments in the Official Gazette and in a newspaper of wide circulation, as well as the full merits and reparations judgments, together with their summaries, on an official government website for a period of at least one year; and
  11. Submit a report on the status of implementation of the reparations judgment within one year of the judgment.

The Court also ruled that it shall conduct a hearing on the status of implementation of the judgment's orders on a date to be appointed by the Court, twelve (12) months from the judgment's date.

RECENT FORCED EVICTIONS

Since November 2, 2023, the Kenyan government has been carrying out forced evictions in the Mau Forest. The ongoing forced evictions have so far affected more than 700 people from the Ogiek community, half of whom are women and children. The government defends its decision based on the ‘conservation’ of the area. However, this defense does not consider that the evictions directly endanger the forest by undermining the Ogiek community’s role as stewards of nature and exemplify a blatant disregard of the Court’s Orders and Kenya’s obligations under international law. No alternative has been provided to the community, and irreparable damage may be caused to their lives, sources of livelihoods, family life, safet, and security if the evictions are not stopped, further defying Kenya’s obligations under international law.

Download the letters:

Push for implementation of Endorois decision

Push for implementation of Ogiek decision

The Kenya Human Rights Commission (KHRC) remains concerned by the worsening state of the nation, which is caused by the deepening culture of impunity and manifesting in flagrant disregard for the rule of law. People's dignity and rights, among other values and principles of good governance enshrined in the Constitution, have been neglected by this regime. Yet Kenya Kwanza swore to protect all these, but it has failed.

KHRC and our human rights and governance actors have been monitoring and responding to this dire situation since September 13, 2022, when this regime assumed office. We delivered several reports to prove the looming crisis, first on November 10, 2022, September 13, 2023, and another on November 17, 2023, accessible herehere and here, respectively.

Our observations have been confirmed so many times by different opinion polls conducted throughout 2023, with the latest including those of Infotrak and Tifa released on December 29. All surveys showed the country has increasingly moved in the wrong direction, citing the high cost of living, unemployment, and poverty.

10 indicators of Kenya's worsening situation

As we close the year today, we wish to point out the following 10 indicators of Kenya's worsening situation. These points will remain on our agenda in 2024. It is a pity these critical issues didn't find the requisite policy conversation and action in the so-called National Dialogue Committee (NADCO), which focused more on the ruling elite across the political divide.

  1. Punitive taxation

The Finance Act, 2023, among other policies, caused unprecedented inflation due to increased and new taxes, including housing levies. Thus, life in 2023 was so hard and unbearable. There were many indications of massive poverty and suffering nationwide. These laws and policies violated the economic and social rights enshrined in the Constitution. Sadly, even in the face of widespread opposition to these taxes, Parliament did nothing to stop them, demonstrating a disdain for the voices of the people. Shockingly, despite a court decision finding some taxes in the Finance Act unconstitutional, it allowed the government to continue this illegality until January 10, 2024. This raised concerns about the potential state capture of the Judiciary, casting a dark shadow over the integrity of our legal system.

  1. Odious debt

In its campaign promises and initial days in office, the Kenya Kwanza regime assured the public of responsible fiscal management, vowing not to burden citizens with additional debt. But it did the opposite, borrowing at least Sh1.5 trillion in the initial nine months in office. Further, the country was subjected to taxation and other oppressive policies by the International Monetary Fund (IMF) and other lenders. These odious debts were complicated by runway theft of resources by the national and county governments. This has decimated public resources, which could have been optimized in development, among other social services and rights to the people.

  1. Appointment of criminal in state and public offices

This situation started during elections where politicians with questionable integrity were cleared to contest, and some got elected in August 2022. This regime deepened this further by having more culprits appointed into state and public offices, contrary to Chapter 6 of the Constitution on Leadership and Integrity. Having such criminals has eroded public trust in those offices and increased opportunities for more theft and misappropriation of public resources. Such appointees, who faced criminal and civil cases, had these suits dropped under suspicious circumstances.

  1. State capture and weakening of independent institutions

The unfortunate control of Parliament and county assemblies started with the reign of the Jubilee regime. Kenya Kwanza, which lied that it would end such capture, doubled down. This regime in 2023 went even further and started targeting constitutional commissions and independent offices. This is how they did it: first, it denied these commissions and offices resources to function optimally. Secondly, it appointed compliant state officers like judges and commissioners to those critical positions.

The endless dropping of high-profile criminal cases by the Office of the Director of Public Prosecution (ODPP) was part of this scheme, with the Arror and Kimwarer dams scandal being a case in point. As a result, it has become untenable to oversee the Executive. The rogue regime is now misruling the country with limited accountability.

  1. Corporate capture and related rights abuses

Despite the positive strides made in adopting the National Action Plan on Business and Human Rights in 2023, the business community in our country still wields considerable power and influence, allowing them to perpetrate injustices unchecked. These violations manifest in various forms, including labor, security, environmental, land, and natural resource issues, with recent incidents highlighting concerns in Bamburi, Kasighau, and Delmonte.

In a troubling development this December, Delmonte guards were implicated in the death of four Thika locals.

Throughout 2023, Bamburi Cement PLC faced mounting accusations of hiring G4S guards who, according to Kwale residents, were complicit in attacks resulting in deaths, injuries, and rapes against them. These allegations cast a harsh light on the company's practices and raise serious questions about its commitment to the well-being of the communities it operates in.

In another disturbing revelation, senior workers at Wildlife Works and Verra were accused of serial sexual abuse and the use of sex as a bargaining tool for job opportunities within the Kasigau Corridor REDD+ Project in Kenya. The SOMO and KHRC joint report in 2023 exposed these hidden scandals, casting shadows over the entire sector and prompting broader concerns about its dedication to safeguarding human rights. The detailed report is accessible here.

  1. Shrinking civic space. 

The culture of repression in 2023 manifested itself through the systematic denial of people's constitutional rights to information, peaceful assembly, protest, and free speech.

Between April and August 2023, we witnessed egregious violations, including arbitrary arrests, violent disruptions, illegal detentions, injuries, and even fatalities during protests against the Finance Bill, 2023, and the escalating cost of living. These events marked one of the darkest chapters in the country's history since the passage of the Constitution in 2010.

Attempting to organize demonstrations against the government and the private sector in Kenya became virtually impossible in 2023, with severe consequences for those who dared to try. The oppressive atmosphere extended to threats by the Executive against the media for their coverage of the administration's misgovernance, severely undermining freedom of expression. In 2023, CS Moses Kuria gained notoriety for threatening the press, but media outlets held him accountable.

Moreover, the regime's intolerance towards free speech took a tragic turn with the killing of blogger Daniel Muthiani in Meru, highlighting the dangerous consequences individuals face for expressing dissenting views.

  1. Discriminatory nature and character of Kenya Kwanza regime

Through Deputy President Rigathi Gachagua, this regime has explicitly declared itself a "shareholder-holding government," emphasizing benefits solely for regions and communities that supported its electoral victory. Tangible actions substantiated Gachagua's rhetoric, which is evident in development initiatives and public appointments.

Furthermore, a concerning pattern emerged in the biased selection of individuals for key government positions, particularly in terms of gender, youth, and persons with disabilities. These appointments contradicted constitutional provisions and the principles outlined in the regime's manifesto. Notably, these irregular appointments also fell short of meeting the two-thirds gender rule, as advised by the Supreme Court.

The deviation from constitutional principles and the regime's commitments raises serious questions about the government's dedication to inclusivity, fairness, and adherence to the rule of law.

  1. Unlawful and arbitrary evictions

In blatant disregard of the protective provisions enshrined in the Constitution, as well as other relevant laws such as the Land and IDPs Act, and international instruments, there were violent, forceful, and irregular displacements in 2023 of Kenyans from their habitual places of residence. Notably, the Mau evictions targeted the Ogiek community. Another was in Machakos on a parcel contested between Mavoko locals and Portland Cement Company. All these evictions resulted in severe human rights violations, humanitarian crises, and substantial economic losses for the affected population.

Regrettably, the residents of Mombasa also experienced the brunt of such evictions, as bulldozers descended on their homes in Changamwe on December 18, rendering hundreds of them homeless. The demolition of these homes aimed to make way for apartments well beyond the financial reach of the local population, thereby infringing upon their right to accessible and adequate housing.

  1. Anti-people education policies

In 2023, the challenges surfaced prominently during the transition from the 8-4-4 education system to the Competency-Based Curriculum (CBC), significantly compromising the overall quality of education. Notably, the new funding model for university education exacerbated disparities, placing an undue burden on students from poor backgrounds. Accessing government-funded loans became particularly frustrating for such students due to convoluted preselection criteria riddled with biases.

Moreover, the recent mess in processing the 2023 Kenya Certificate of Primary Education (KCPE) exams pointed to a deeply entrenched and compromised examination process in Kenya.

  1. Heath, for who?

Kenya's health system is in crisis, with the current regime's promised "universal health care" falling far short of expectations. The transformation of the National Health Insurance Fund (NHIF) into the Social Health Insurance Fund (SHIF) was merely a cosmetic change that did not translate into tangible improvements in service delivery. As 2023 draws to a close, the NHIF still owes private hospitals significant sums of money, running into billions of shillings. These hospitals, relied upon by numerous Kenyans supposedly covered by government insurance, refuse to provide treatment until the outstanding bills are settled. Unfortunately, there is no indication that the government intends to address this substantial debt promptly, resulting in the continued denial of critical healthcare to millions of Kenyans.

On our own

It is essential not to overlook the pivotal role of elections in shaping Kenya's political landscape and governance. Comprehensive reforms addressing key concerns and political interests are imperative.

As we reflect on the challenges of 2023, it is evident that the year has been bleak for Kenyans. In the words of Fr. Gabriel Dolan, our board member and a columnist with the Saturday Standard, "We are pretty much on our own, so get up, speak up and get down off the fence".

KHRC remains steadfast in its commitment to fighting for the rights of Kenyans and holding the current regime accountable. In the first quarter of 2024, KHRC will host a significant convention to explore strategies to halt the deepening regression in governance and human rights. This initiative aims to bring stakeholders and concerned citizens together to collectively address the country's pressing challenges.

Signed

KHRC

On record, several patriotic and spirited activists and organizations have gone to court to challenge Ruto's punitive and retrogressive taxation, among other policies in Kenya. Such includes Senator Okiya Omtatah, Kenya Human Rights Commission (KHRC), Katiba Institute, The Institute for Social Accountability (TISA), Transparency International-Kenya, International Commission of Jurist—Kenya, Siasa Place and Tribeless Youth.

Individuals and actors who stand for the sovereignty of the people and values and principles of governance enshrined in the Constitution should be protected and respected rather than be treated or profiled as enemies of the State, as Ruto tried to posture.

His statement, coming at a time of deepening culture of impunity, creeping dictatorship, and shrinking democratic space in the country, reminds Kenyans of the very sad, dark, and bleak colonial and KANU regimes that were characterized by gross repression and injustices.

It is no wonder those who tried to fight these horrible policies in the streets between June and August 2023 were met with unprecedented and unmatched police brutality. It also explains why the regime police in Kisii resisted the efforts by Senator Omtatah to record a statement regarding the same threats.

Let it be clear: We won't sit and watch any ruler defile our hard-won democracy and Constitution, which safeguards our fundamental rights and freedoms to seek legal and political recourses amid governance adversities. No one, including Ruto, can curtail it.

It is essential for the ruling regime and the political class, in general, to understand that while they have tried to advance their interests and undermine people's rights over decades, Kenyans have a robust history of rebelling, resisting, and overcoming fiercely and fearlessly.

As per the second stanza of our national anthem, "Let one and all arise; with hearts both strong and true," we remain bold and committed to standing against any policy that undermines public interests and people's rights.

KHRC remains committed to advancing its mandate of human rights-centered governance and standing with the people of Kenya for the envisioned human rights state and society where citizens can freely exercise their rights without fear or favor.

Aluta Continua.

Signed

KHRC

From the outset, the court observed that the prosecution's approach was designed for failure, characterized by a reckless dereliction of duty. The collapse of the Arror and Kimwarer case confirms the ODPP is politically captured and part of a conspiracy to defeat justice.

However, this outcome did not come as a surprise to us.

Various stakeholders, including the civil society, the Judiciary, and the public, have consistently voiced concerns regarding the ODPP's handling of high-level criminal cases, especially those with political connections. We have observed a worrying emerging pattern where cases have fallen apart due to withdrawal by the prosecution or ended in acquittals because of poor prosecution.

In the Arror and Kimwarer case, it became evident that the prosecution was committed to deliberate failure. The trial faced continuous frustration, prompting both Magistrate Eunice Nyutu and High Court Judge Nixon Sifuna to openly call out the prosecutors in charge of the case, Geoffery Obiri and Oliver Mureithi. The management of this case exemplified what can be termed "prosecution-assisted acquittals": the prosecution mischievously outdid the defense counsel's efforts in securing the release of the suspects.

The fact that the prosecution scheduled and failed to interrogate 41 witnesses who could have submitted credible evidence to win the case indicates incompetence and manipulation. The prosecutor who led this case must not handle any prosecutorial role and must be removed from that office through any legal means.

DPP Renson Ingonga must know that prosecutorial powers are not a plaything that can be exercised at whims between his office and political power holders to absolve suspects with political connections.

The deliberate undermining of cases for political reasons is not a recent development.

The pattern began in the reign of former DPP Noordin Hajj. Despite the former DPP's public assurances that charges were only filed when fully satisfied that the cases met the evidentiary threshold to secure a conviction—which in criminal cases must be beyond a reasonable doubt—his office frustrated the same matter with the same evidence and the same witnesses that informed their decision to charge. ODPP is such a critical cog in the criminal justice system, and the right to justice and the fight against corruption must not be handled with such casualness.

Our demands

We are demanding the following from the DPP:

  1. To assert authority, the DPP must seize the Arror and Kimwarer case, redirecting it towards its foundational principles, raison d'être, and constitutionalism. Immediate and decisive action is required. This entails promptly assuming responsibility for the issue and undertaking urgent remedial measures. It is crucial to identify any personal culpability among his officers that led to the wrongful identification of the 41 witnesses as credible—if indeed they were. Subsequently, the DPP should initiate a swift process to ensure that the actual culprits are brought to court and charged accordingly. If Rotich and eight others were the real suspects, they must face the law again.
  2. If the DPP does not do this, we will take the requisite legal measures including individual action against the relevant officers in the ODPP who acted outside the principles of the Constitution and the law in handling the case, and in so doing have led to the loss of public resources including financial and human resources spent on the investigation, prosecution, and adjudication of the matter.

Further, we demand that:

  1. Former CS Rotich and the eight other suspects involved in the Arror and Kimwarer dam case should be barred from public office appointments. Their acquittal is suspect and requires a comprehensive, independent investigation to examine the circumstances surrounding the collapse of the case thoroughly.

Signed

  1. Kenya Human Rights Commission (KHRC)
  2. Transparency International-Kenya (TI-Kenya)
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