AfCHPR to Hear Cases on Indigenous Rights and Due Process
From November 24 to December 5, the African Court on Human and Peoples’ Rights will hold its 35th Ordinary Session. The session will feature two public hearings in the cases of African Commission on Human and Peoples’ Rights v. Kenya, concerning indigenous rights, and Thomas v. Tanzania, regarding the right to fair trial and due process. The first case will be heard on November 27 and 28, and the second will be heard on December 4 and 5. [AfCHPR Press Release]
The session will be held at the African Union’s headquarters in Addis Ababa, Ethiopia. The public is welcome to attend the hearings, which will take place at the Nelson Mandela Conference Hall. Each person wishing to attend must send his or her name to one of the following individuals before November 24: Mrs. Eliane Adote Berthe at Eliane.Egue@african-court.org, Mrs. Ingrid Kanyamuneza at Ingrid.Kanyamuenza@african-court.org, or Mrs. Netsanet Haile at email@example.com. [AfCHPR Press Release] Video of the hearings may be available on the African Court’s Livestream channel.
African Commission on Human and Peoples’ Rights v. Kenya
The case of African Commission on Human and Peoples’ Rights v. Kenya concerns an indigenous community’s ability to continue living on, and off of, their ancestral lands. In October 2009, the Kenyan government issued an eviction notice to the Ogiek people from their land in the Mau Forest. The Ogiek indigenous group is composed of approximately 20,000 members, and 15,000 members lived in the forest. The State determined that the forest constituted a “reserved water catchment zone,” and defended its actions as an attempt to protect the region’s “ecology, biodiversity, resources and economic activities.” See AfCHPR, African Commission on Human and Peoples’ Rights v. Kenya, App. No. 006/2012, Case Summary, paras. 1, 8.
In July 2012, the African Commission on Human and Peoples’ Rights submitted the case to the Court. See AfCHPR, African Commission on Human and Peoples’ Rights v. Kenya, App. No. 006/2012, Order of Provisional Measures, para. 1.
Arguments on the Merits
The applicant before the Court, the African Commission on Human and Peoples’ Rights, asserts that the eviction of the Ogiek people will “lead to the destruction of their means of survival, their livelihoods, culture, religion and identity.” See African Commission on Human and Peoples’ Rights v. Kenya, App. No. 006/2012, Case Summary, para. 4. The Commission alleges that the State failed to put measures in place to protect the rights set forth in the African Charter on Human and Peoples’ Rights, and also violated: the prohibition against discrimination, the right to life, the right to participate in cultural life, and the protection of morals and traditional values. See id. at para. 3.
The applicant is requesting the Court to order the State to: stop evicting the Ogiek from the forest; recognize the land as belonging to the Ogiek and to issue it with legal title; and compensate the Ogiek for the loss of “property, development, natural resources” and freedom to practice their religion and culture. See id. at para. 4. Furthermore, the applicant asks the Court to direct the State to “refrain from harassing, intimidating, or interfering with the community’s traditional livelihoods.” See id. at para. 4.
In response, the State has claimed it had put measures in place to protect indigenous rights related to land, including the “adoption of a national land policy which requires the establishment of a legal framework to secure the rights of minorities and indigenous peoples.” See id. The State asserts that it did not violate the right to life and to enjoyment of culture because these rights are guaranteed in the Kenyan Constitution. See id.
In November 2012, the Commission requested the Court to issue provisional measures in favor of the Ogiek when the State lifted a restriction on the sale of land within the forest. See AfCHPR, African Commission on Human and Peoples’ Rights v. Kenya, App. No. 006/2012, Order of Provisional Measures, para. 10. In March 2013, the Court ordered the State to reinstate the restriction and to refrain from acts that would “irreparably prejudice” the issues before the Court until the final determination of the case. See id.at para. 25.
Kenya raised a number of challenges to the African Court’s jurisdiction to hear the complaint. Among other arguments, the State asserted that the case is inadmissible because the author of the communication, an organization called the Center for Minority Rights Development (CEMIRIDE), lacks standing. See AfCHPR, African Commission on Human and Peoples’ Rights v. Kenya, Case Summary at para. 8. CEMIRIDE claims that it had standing to submit the complaint to the Commission in accordance with the Commission’s jurisprudence supporting the actio popularis doctrine, which “allows persons interested in the protections of human rights in African to seize the African Commission on behalf of persons who for one reason or the other, cannot do so on their own.” See id. at para. 10; ACommHPR, Spilg and Mack & DITSHWANELO (on behalf of Lehlohonolo Bernard Kobedi) v. Botswana, Communication No. 277/2003, 10th Extraordinary Session, 12 October 2013, para. 77. Moreover, the Commission argues that two of the complainant organizations are duly registered in Kenya and therefore eligible to submit communications to the Commission. See AfCHPR, African Commission on Human and Peoples’ Rights v. Kenya, Case Summary at para. 10.
The State raised the preliminary objection that the victims had not exhausted domestic remedies before bringing the case to the African Court, explaining that they could have applied for ex parte judicial review within Kenya’s legal system or pursued administrative relief before the Kenya National Commission on Human Rights. See id. at paras. 7, 8. In response, the Commission emphasized that the Ogieks had litigated their case in the domestic court for 15 years, arguing that the Court should find the proceedings to have been “unduly prolonged,” thereby exempting the applicants from the exhaustion of domestic remedies requirement. See id. at para. 9.
Kenya also objected to the case proceeding before the Court on the basis that there was a pending application before the Commission addressing the same issues. The State alleged that filing the same claim in the Court is contrary to the “principle of complementarity between the Commission and the Court.” See id. at para. 7. The applicants asserted that the application is no longer pending before the Commission because the Commission referred it to the Court pursuant to, inter alia, Rule 33(1)(a) of the Rules of Court. See id.
Thomas v. Tanzania
The case of Thomas v. Tanzania concerns alleged due process violations in the criminal prosecution of a Tanzanian man. In 1998, the Tanzanian trial court convicted Alex Thomas of armed robbery, and he is currently serving a 30-year sentence at Karanga Central Prison. In May 2009, the Tanzanian Court of Appeal upheld his conviction. In June 2009, Thomas applied to the African Court to review the appellate decision, claiming that the Tanzanian justice system was unduly delayed in considering his request for review. See ACommHPR, Thomas v. Tanzania, App. No. 005/2013, Case Summary, paras. 1–3.
Thomas is also alleging that his trial before the Tanzanian courts suffered from multiple deficiencies. He claims that the court lacked jurisdiction, because the alleged robbery was committed in Kenya. He argues that the prosecution did not prove his guilt beyond a reasonable doubt, in that the prosecution’s evidence was inconsistent regarding Thomas’ use of a gun and the ownership of the property that was allegedly stolen. Additionally, Thomas asserted that he was denied his right to be heard, and that he was not provided with defense counsel as required by the Tanzanian Constitution. See id. at para. 4.
Thomas is requesting the African Court to quash the Tanzanian trial and appellate courts’ decisions, and to make any order that it finds appropriate, including acquitting and freeing him. See id. at paras. 5–6.
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