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Human Rights our
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Human arid Peoples R1i:1hts
Decision of the African Commission on Human and
Peoples' Rights on Admissibility
Communication 763/21
William Sipai and 13 o,t her representatives of the
Keekonyokie clan of the Maasai people of Kitet
(represented initially by Dr. Duncan Ojwang, later
replaced by Jonhson & Partners Advocates LLP)
V
The Republic of Kenya
Adopted by the
Afriam Commusion on HIIIIUln and Peoples' Rights
During the 82"" Ordinary Se.ulon held in Banjul,from 25 February to 11 Marcie 2025,
Banjul, The Gambia
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31 Bijilo Annex Layout. Kombo North District, West Coast Region
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Decision of the African Commission on Human and
Peoples' Rights on Admissibility
Communication 763/21 - William Sipai and 13 other
representatives of the Keekonyokie clan of the
Maasai people of Kitet (represented initially by Dr.
Duncan Ojwang, later replaced by Jonhson &
Partners Advocates LLP) v. Republic of Kenya
Summary of the Complaint
1. The Secretariat of the African Commission on Human and Peoples' Rights (the
Secretariat) received a complaint on 12 July 2021 lodged by William Sipai, Tobiko Ole
Muntet, Kilelu Ole Kaleke, Mark Tinkoi, Malayen Ole Sereya, Enini Ole Kerenke,
Yiatum Ole Maisiudo, Kasana Ole Kisaika, Tima Ole Kuronoi, Salaton Ole Koilel,
Nyamalo Ole Karei, Rishan Ole Maisiodo, Ntirankoi Ole Kapian, Nalengoyo Turume,
representatives of the Keekonyokie Clan of the Maasai People of Kitet (represented
by Dr. Duncan Ojwang) (the Complainants) against the Republic of Kenya
(Respondent State).1
2. The Complainants are members of the Maasai Community of Kitet (Kedong), who live
on a 75,769-acre plot of land in Kitet (Kedong), with land reference No. 8396 (L.R.
11977) situated in Kedong south of Naivasha, in Nakuru County, Kenya. They claim
that the land referenced has been the historical territory and heritage of the Maasai
Community, whose livelihoods depend on the cultivation of their land, including the
propagation and sustenance of their vast livestock.
3. The Complainants allege that at the time of Kenya's independence, 75,000 acres of
land belonging to the Maasai Community were assigned by the colonial authorities to
Kedong Ranch Co. Limited under a 999-year perpetual lease. The Complainants
argue that former Prime Minister Joma Kenyatta had given assuran
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"placed under the control of the tribal authority" and that no one could "appropriate
land belonging to another tribe". They maintain that the alienated land was never
transferred to the Maasai Community as promised by the Respondent State
government.
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4. The Complainants allege that the Maasai Community of Kitet (Kedong) faces the
imminent risk of being evicted, thus suffering irreparable damage, as the authorities
of the Respondent State are currently proceeding with the demarcation and sale of
parts of their historical lands to third parties.
5. The Complainants allege that in 2020, with a view to establishing an industrial park
within a Special Economic Zone, the Respondent State decreed the allocation, by
announcement in the Official Gazette, of up to 1,000 hectares of Kedong Ranch, the
disputed land, for the development of a special economic zone that will be known as
the Naivasha Industrial Park Special Economic Zone (Naivasha Industrial Park
Special Economic Zone). They argue that this land allocation was carried out without
any prior involvement of the Maasai Community, and foreign direct investors were
invited to sign contracts between the government and private investors and
companies.
6. The Complainants also allege that the Respondent State, in a frenzy of major
development, seems determined to secure the full acquisition of the Kedong lands for
investments in energy, logistics, real estate and tourism - as its lands are attractive
because it sits atop a highly attractive wildlife corridor and potential geothermal energy
basin where the Respondent State has initiated geothermal projects - with little or no
regard for the rights of the Maasai community living on these lands.
7. The Complainants allege that the Special Economic Zone Plan (the Naivasha Special
Economic Zone Master Plan) does not recognize the Maasai Community as the owner
of the land, nor does it recognize its community leadership, and as such, it is excluded
from benefiting from these investments. They claim that the Respondent State carries
out these projects in partnership with other governments and public-private
partnerships, but without the consent or participation of local communities, or with
manipulation of their consent, offering monetary incentives to certain leaders.
8. The Complainants argue that the Maasai community should be forced to relocate any
time a new phase of the project begins. Thus, the authorities of the Respondent State
burned and destroyed their shelters by constructing fences and digging dit~!S=M~....
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foundations around the disputed area. The Complainants also point out " \ c.l\W'.t~, " '°<=-o
time being, the only obstacle to the implementation of major projects is <? co •
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presence of the Maasai in Kedong, an occupation that the state and its collaborators
are determined to end.
9. In addition, the Complainants allege that there is an increase in the number of arbitrary
arrests, harassment, imprisonment of community representatives, demolition of
houses and destruction of property of the people of Kedong. Many human rights
defenders have been arrested for trying to prevent workers from digging ditches
around their ancestral lands, which has led to serious human rights violations. They
claim that, with no other option available, the Maasai of Kitet (Kedong) have been
forced to live in a populated area with much less fertile land aro1,Jnd the periphery of
their ancestral land.
10. The Complainants further state that, despite its best efforts, the Maasai Community
has been unable, either through administrative or judicial proceedings brought in the
Respondent State, to counter the concerted and coordinated effort by government
and private actors such as Kedong Ranch Co. Limited and KENGEN to forcibly evict
the community from their ancestral lands. They allege that Kedong Ranch Co. Limited,
with the support of the Respondent State, is associated with various violations of the
Maasai people's right to land and resources and is complicit in the arbitrary detentions
and acts of harassment and torture of the Maasai in Kedong.
11. The Complainants allege that the current President of the Respondent State, in a
concerted effort to further deprive the people of Kedong of their ancestral lands,
granted 1000 acres of land to each of the leaders of Rwanda, Uganda and South
Sudan for the construction of dry ports for their countries.
12. The Complainants further allege that representatives of Kedong Ranch Co. Limited
have stated that the company will begin a new phase of evictions which, if carried out,
will inevitably result in the displacement of the Maasai people from their ancestral
lands without any consultation, notice or protection of the law.
13. Consequently, the Complainants allege that these actions by the Respondent State in
association with other private companies, constitute a violation of their right to
property, life, development and protection from arbitrary detention, harassment and
torture, as enshrined in the African Charter.
14. The Complainants maintain that if the actions of Kedong Ranch Co. Limited and the
Respondent State's plan to allocate land and establish heavy industri
Naivasha/Kedong economic zone after the fencing and digging of ditche
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disputed lands are to continue, it will lead to an illegal eviction and displacement of
more than 30,000 families from Kedong.
Alleged violations
15. The Complainant alleges that the Respondent States have violated Articles 1, 3, 4, 5,
6, 14, 17(2) and 22.
Prayers
16. The Complainants request the African Commission on Human and Peoples' Rights
(the Commission) to:
a. Issue a declaratory order that the Respondent State violates Articles 1, 4,
5, 14, and 17 of the African Charter on Human and Peoples' Rights;
b. Grant the following interim measures:
i.
Request that the Respondent State or its agents refrain from
expelling or harassing the Complainants, their families and all other
members of the Maasai Community residing on the land subject to
the case in question, pending the determination of the
Communication;
ii.
Require the Respondent State or its agents to stop the
implementation of the special economic zone plan or any related
project initiated without the consultation and participation of the
Complainants, their families and the Community they represent.
17. In their submissions on Admissibility and Merits, the Complainants request the
Commission to:
i.
Declare that Articles 1, 3, 5, 14, and 17(2), 19 of the African Charter, as well as
the following articles of the Constitution of the Respondent State, have been
violated: 27(1 ), (2), (4), (5) and (6); 28; 29 (c) {d) (e) and (f); 40 (3) and (4); 42;
43 {a) (b) (c) and (f); 44; 47 (1) and (2); 57 (c) and 63;
ii.
Order:
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the cessation of all activities or acts affecting the property
the Kedong ancestral lands by the Respondent State;
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the payment of reparations for damages caused and the expenses of this
Communication,
iii)
A public apology;
iii.
Order any other remedies that the Commission deems appropriate.
Procedure
18. The Secretariat received the Complaint on 12 July 2021 and acknowledged receipt on
16 September 2021 .
19. The Complaint was seized during the meeting of the Working Group on
Communications (WGC) on 12 October 2021.
20. The Respondent State was notified of the seizure decision through a Note Verbale
addressed to the Ministry of Foreign Affairs of the Republic of Kenya, on October 28,
2021. On the same date, the Complainants were also notified of the acceptance of the
Complaint.
21. On 21 February 2022, the Complainants submitted their observations on admissibility
and merits, which were transmitted to the Respondent State on 7 March 2022 to
respond within sixty (60) days.
22. On 16 March 2022, the Secretariat informed the parties that the examination of the
Communication had been granted, pending the observations of the Respondent State
that had been Respondent by Note Verbale Ref: ACHPR/COMM/763/KEN/180/22 of
4 March 2022.
23. On 3 June 2022, the Secretariat informed the Respondent State that the deadline for
submission of its observations on admissibility and merits expired on 4 May 2022.
24. On 19 August 2022, following the 72nd Ordinary Session, which took place from 19
July to 2 August 2022, the Secretariat informed the parties that the examination of the
Communication had been postponed to the next session.
25. The Communication was declared admissible during the 73rd Ord·
Commission, which took place from 20 October to 9 November
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26. The Complainants allege that the Communication satisfies all the requirements of
Admissibility set out in Article 56 of the African Charter and present arguments in
support of this statement.
27. Regarding Article 56 ( 1) of the African Charter, the Complainants clearly indicated who
the complainants were.
28. With regard to Article 56 (2) of the African Charter, the Complainants contend that the
Complaint is in accordance with the Charter insofar as the Communication is against
an AU Member and a State Party to the ACHPR. In addition, the imminent eviction
operation by the Respondent State violates the rights contained in the African Charter.
29. With regard to Article 56(3) of the African Charter, the Complainants allege that the
Communication does not contain any outrageous or insulting terms.
30. In relation to Article 56(4) of the African Charter, the Complainants allege that the
Complaint is not based solely on information from the media.
31. With regard to Article 56(5) of the African Charter, complainants argue that the
principle of exhaustion of domestic remedies is based on the logic that the State party
should have priority in dealing with a case by granting it the opportunity to rule on a
matter before it is transferred to international courts.
32. The complainants further argue that in this way an international court is not considered
a court of first instance. The Commission, however, "has never considered that the
requirement of local remedies applies literally in cases where it is not practical or
desirable for the complainant to go to national courts in the event of any breach."
33. The complainants further allege that the Commission has always considered that
remedies at national level must be "available, effective and sufficient", so that "if the
right is not well guaranteed, there can be no effective remedy or remedy". In this
regard, remedies are considered to be "available if the applicant has access to them
without hindrance", "effective if it offers a prospect of success" and "sufficient if it is
able to remedy the damage".
34. The complainants allege that several cases related to the issue have b
to Kenyan courts by individuals, groups, etc. The previous case file
des Maasai community was in the form of an appeal to the High Cou
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previous case filed by the Kedong community of Maasai in the Nakuru High Court,
challenging the ownership of Kedong's land, has been decided. Judge L.N. Waithaka
ruled that the expansive ranch was owned by a legal entity known as Kedong Ranch
Ltd.
35. The complainants also allege that a subsequent appeal, filed by the community living
on the ranch, was rejected, and the Court of Appeal upheld the High Court's decision.
At the height of state-sanctioned harassment and evictions in 2005, Parkire Stephen
Munkasio and 14 others (who sued on behalf of herself, their families, and all members
of the Maasai community) filed a complaint in the High Court.
36. The complainants further allege that the legal action was intended to enforce the
property rights of the complainants (whose families are the subject of the imminent
eviction that triggered this communication to the Honorable Commission) and to
prevent them from being subjected to harassment or eviction by the government.
37. The complainants allege that the Constitutional Court dismissed the petition on the
grounds that it violated several constitutional provisions; the basis of the allegation is
that the property in question is the ancestral land of the complainants; land is private
property, as defined by the Constitution; no violation of the right to property; no
evidence of violation of the rights to dignity, torture, education, housing or health; no
evidence of violation of the right to a clean and healthy environment; The petition was
dismissed.
38. The complainants further allege that, in order to postpone the ongoing eviction and
the project, the petitioners filed a case in the High Court, which was dismissed. In this
sense, 30,000 occupants lost 76,000 land from the SGR, with the private company
rejecting them as foreigners.
39. The complainants further allege that a previous case filed in the Nairobi High Court
challenging land ownership was determined by Judge Sila Munyao of the Nakuru
Environment and Land Court, who dismissed a petition alleging that the community's
rights had been violated.
40. The complainants further allege that on October 19, 2019, Torome, Kerenke, and six
other petitioners filed another case in the High Court against Kedong Ranch Company
Limited, Kenya Railways Corporation, National Land Commission, and the Attorney
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General of the Republic of Kenya. The complainants applied for recognit'
collective land rights and the invalidation of the land lease of Kedong Ra
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Limited. The case was filed on behalf of the 4,000 Maasai families, a total population
of 35,000 people, who live at Kedong Ranch.
41. The complainants allege that the cases before the Kenya High Court and the Court of
Appeal were all decided against the Kite! people and justified the interests of Kedong
Ranch Company Limited and, by extension, the State. Despite Kenya's 2010
progressive constitution recognizing a wide range of human and peoples' rights,
including the right to dignity, the High Court took a casual approach to the threat of
eviction and the implications for victims' rights.
42. The complainants further state that in all these petitions, despite demonstrating the
imminent danger of violation of residents' fundamental rights and freedoms, the
inviolability of property titles and the rights of vulnerable members of the community,
including children, the elderly and women, the courts have shown no willingness to
apply the transformative human rights protections, as progressively provided for in
the 2010 Constitution, to defend themselves against human rights violations.
43. The complainants further allege that there is a very high probability that the
government will carry out evictions in violation of their rights to equal protection of the
law and freedom from discrimination. In addition, the administration of justice in these
cases was deliberately subverted, as detailed in the affidavit of the Kedong leaders
and their lawyer.
44. The complainants state that, although they have sought to exhaust domestic
remedies, the claimants in this Communication are convinced that the remedies that
may exist in the Kenyan legal system are not available to them at all. The complainants
are aware that while the Kenyan judiciary has generally been independent, following
its decision to annul the results of the presidential election in 2017, the President of
Kenya has threatened to "review judicial independence".
45. The complainants further allege that this statement was understood to mean that the
executive would seek to reduce judicial independence through a range of tactics,
including administrative harassment, budget cuts, and targeted persecution of judicial
officials, in order to ensure that the judiciary complies with the executive's dictates. It
is therefore reasonable to assume that, since the conservation of the Mau has been
presented as a high-priority national project, evictions of the applicants are j~ltil-~ .....
in the eyes of a compliant judicial system and would be allowed despite c;
and massive violations of victims' rights that they would entail.
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46. The applicants further argue that there is no need to exhaust domestic remedies, as
the violations denounced in this Communication are widespread and massive and, as
such, it is presumed that the State is aware of the existence of these violations and
should have remedied them.
47. Regarding Article 56(6) of the African Charter, and taking into account the
submissions, the Complaint was lodged within a reasonable time.
48. With respect to Article 56(7) of the African Charter, based on the Complainant's
allegations, the Complaint has not been submitted to any international arbitration
forum.
The Commission's analysis on admissibility
49. The present matter falls under Article 55 of the African Charter, and as such, must
satisfy the seven (7) cumulative conditions of Article 56 of the African Charter relating
to the Admissibility of Communications.
Indication of authors (Article 56 (1))
50. The Commission notes that the Respondent State had been duly notified by the
Secretariat, requesting its observations on the Complainant's arguments on
admissibility. However, the Respondent State did not submit its observations within
the prescribed periods.
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52. Article 56 (1) states that Communications must "indicate their authors even if they
request anonymity". As recorded in the Complainant's submissions and in the
procedure, the complainants were duly identified.
53. The Commission established a clear principle in the case of Malawi African
Association et al v. Mauritania3, in which it considered that, according to Article 56(1 ),
no other requirement is necessary than the simple indication of the names of those
who submit. The Complaint is quite straightforvvard in that it identifies the Centre for
Comparative and International Law (CCIL) and the Institute for Human Rights and
Development in Africa (IDHDA), whose contact details are clearly provided, as
complainants.
Compatibility with the African Charter and the Constitutive Act of the African
Union (Article 56 (2))
54. "Article 56 (2) requires "that Communications be "compatible with the Constitutive Act
of the Organization of African Unity or with the present Charter".
55. As regards the compatibility of the complaint with the African Charter, the observations
submitted have shown that the rights allegedly violated are enshrined in the African
Charter. Moreover, the very reason why the matter was eventually referred to the
Commission is linked to the fact that, after analysis, on the basis of the allegations,
prima facie violations were observed. In reality, the analysis was made against the
African Charter itself. In this respect, the Commission sees no objection to determining
that the Complaint is compatible with the African Charter.
56. With regard to compatibility with the Constitutive Act, the Commission considered in
the case of Law Society of Zimbabwe et al v. Zimbabwe4 that compatibility is based
on its compatibility with the objectives and principles enshrined in the Act, namely
whether the prayers requested in the Communication would violate the objectives or
principles expressed in the Law". In other words, the Commission has established that
the prayers requested by the Complainants must in no case be contrary to the
objectives of the Constitutive Act.
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57. In view of the above, the Complainants request that the Commission issue a
declaratory order that the Respondent State is in violation of Articles 1, 4, 5, 14, and
17 of the African Charter on Human and Peoples' Rights, request that the Respondent
State or its agents refrain from expelling or harassing the Complainants, their families
and all other members of the Maasai Community residing on the land subject to the
present case, pending the determination of the Communication, and demand that the
Respondent State or its agents stop the implementation of the special economic zone
plan or any related project initiated without the consultation and participation of the
Complainants, of their families and the Community they represent.
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58. The Complainants merely request that, in the light of the allegations and evidence
submitted to the Commission, the Commission determine that the Respondent State
has indeed violated the rights of the Maasai community of Kitet (Kedong), and,
furthermore, request the Respondent State to put an end to these violations. The
Commission sees no challenge in declaring the complaint compatible with the
Constitutive Act, since none of the prayers are contrary to its objectives.
Derogatory or insulting language (Article 56(3))
59. Article 56 (3) requires that Communications "shall not be drafted in derogatory or
insulting language directed against the State concerned and its institutions or against
the Organization of African Unity."
60. The issue around derogatory and insulting language in complaints lodged by
individuals against States Parties has been well discussed and addressed within the
framework of the African Human Rights System. In the Commission's view, two main
factors must be taken into consideration. On the one hand, the Commission's analysis
must take into account the freedom of expression of the individual when he or she
expresses his or her claims, as provided for in Article 9(2) of the African Charters,
while on the other hand, it must consider the threshold established by the body itself.
61. In this regard, the Commission has clearly identified derogatory and insulting language
as that which offends the integrity of the judiciary, unlawfully and intentionally violates
the dignity, reputation or integrity of an official or judicial body. In addition, the
Commission considers the language derogatory in such a way that it pollutes the
minds of the population or deliberately seeks to devalue the status of the institution.
In the case of Zimbabwe Lawyers for Human Rights and the Institute for
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and Development in Africa v. Zimbabwe6, the Commission determines that, in order
to consider language to contain abusive or insulting vocabulary, Complainants must
have a clear reason and intent to e·ffectively contempt the institutions of the State and
therefore humiliate its judiciary or even its political sovereignty.
62.As demonstrated above, the Commission, in setting the threshold, set the bar high,
even though it acknowledged that in certain cases, certain language, which may
appear derogatory or insulting, could simply be interpreted as the very expression of
the complainants' opinion. In the case of Eyob B. Asemie v. the Kingdom of Lesotho7,
the Commission stated that, despite the language used, which may have been
interpreted as tarnishing the image of the institution, the Complainants merely
expressed their opinion and perception of it.
63. In order to carry out a rigorous analysis of the language used in the complaint under
consideration, a comparative exercise may be useful, as it may demonstrate the
extent to which the threshold can be breached beyond what can be considered
freedom of expression. In the case of Uhuru Kenyatta and William Rufo (represented
by Innocence Project Africa) v. Republic of KenyaB, the Complainants referred to the
institutions and the regime as "disgusting", "shampuppet", "demonisation", "fishing
expedition". These expressions can be regarded as serious accusations against the
Kenyan institutions and may, in the Commission's view, lead to the pollution of the
minds of the population.
64. In addition to the Commission, the African Court on Human and Peoples' Rights has
an equally well-established case law on the matter. The Court based its decision on
the Commission's arguments, thus consolidating its position in both the case of
Actions pour fa Protection des Droit de /'Homme (APDH) v. Republic of Cote d'lvoire9
(application 001 /2014, Judgment, 18 November 2016, para. 82) and in the case of
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Human Rights l.-1wr ~rs of Zlmbobwe and Institute for Human Rights and O.,veloptnent in Afri.:• (on beh.llf of Andrew &relay Meldrum)
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Lohe Issa Konate v. Burkina Faso10 (application 004/2013, Judgment, 5 December
2014). paragraphs 64-73).
65. Thus, in view of the foregoing, the Commission can unequivocally state that it has not
identified any derogatory or insulting language in this complaint. It simply describes
objective facts and makes justifiable allegations, substantiated by the presentation of
more evidence.
News disseminated through the media (Article 56 (4))
66.Article 56 (4) requires that Communications "are not based exclusively on news
disseminated through the media".
67. The Commission notes that the facts presented are substantiated and corroborated
by sworn statements by witnesses and reports from international organizations,
including the United Nations . (Human Rights Council). For these reasons, the
Commission considers that the conditions of Article 56(4) have been met.
Depletion of local resources (Article 56(5))
68.Article 56(5) of the African Charter requires that Communications "be submitted after
the exhaustion of local remedies, if any, unless it is obvious that this procedure is
unduly prolonged".
69. The principle enshrined in the African Charter underlines the importance of the judicial
sovereignty of the Respondent State, as it gives priority and opportunity to the
Respondent State to deal with the matter and correct any alleged violation through
national courts. The international dispute settlement process is then the last resort for
any individual, when all administrative and judicial remedies at home have been
exhausted. That is, in the context in which the national judicial system is the main
means to request and obtain redress for human rights violations. It is also important
to give the State the opportunity to be informed of alleged rights violations and to take
appropriate corrective action on the basis of the determination of the applicable
domestic judicial procedures. This same principle has been established by the
Commission in the case of the World Organization Against Torture, the Lawyers'
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Human Rights v. Zaire11.
70. In the above-mentioned case, the Commission clearly stated that in order to refer a
case to the institution about alleged human rights violations, the Complainants must
effectively exhaust local remedies. However, without going into detail on the merits of
the case, the Commission declared the Complaint admissible due to evidence of
massive human rights violations, which constitutes an exceptional approach to the
normal application of the principle of exhaustion of domestic remedies.
71. The Commission's aim is to assert its position, in harmony with international law, as a
court of last resort, rather than to be seized as a court of first instance, unless
circumstances so require, and under exceptional and specified conditions. From this
point of view, the Commission stated in the case of Mr Dawda K. Jawara 12 that local
resources should be exhausted if they are available, effective and sufficient. The
implication of this is that, unless it is clearly established with convincing evidence
demonstrating the unavailability, inefficiency or insufficiency of local resources, the
Commission cannot relieve claimants of the obligation to demonstrate exhaustion of
domestic remedies.
72. The Commission observes that since its jurisdiction is complementary to national
mechanisms and acts when such mechanisms are unable or refuse to provide
remedies, where the Commission replaces itself with national mechanisms (the main
venue for obtaining remedies) by admitting communications without exhaustion of
domestic remedies, it needs to be based on a very robust presentation, otherwise the
Commission would be accused of acting as a court of first instance and thus of
substituting itself for national judicial proceedings.
73. Therefore, before determining whether a complainant has effectively exhausted
domestic remedies, it is essential to analyse the efforts made by complainants to
exhaust those remedies by referring the case to national judicial proceedings.
74.ln this case, the complainants allege that the Respondent State dealt •
extensively and sufficiently. Several members of the l<edong
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11CommunicaHon 25/89, 47/ 90,56/91, 10u/ 9l Worl,1Org,111i,.11i11n Ag,1in, 1"lo,tu re, the Lawyers'Commitlee for Human Righls
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75. The first case was filed in the Nakuru High Court, challenging the ownership of
Kedong's land. However, the judge stated that the ranch as a whole belonged to a
legal entity known as Kedong Ranch ltd. A subsequent appeal filed by the community
living within the ranch was rejected, and the Court of Appeal upheld the High Court's
decision. At the height of state-sanctioned harassment and evictions in 2005.
76. The Complainants further evoke that a petition was submitted to the Constitutional
Court, alleging violation of several constitutional provisions, the basis of which is the
allegation that the property subject to the case is the Petitioners' ancestral land, a
private land, as defined by the Constitution. The petition was rejected , based on the
absence of proof of violation of the right to property, rights to dignity, torture, education,
housing or health, and all the other rights mentioned.
77. The Complainants state that on 19 October 2019, Torome, Kerenke and six other
petitioners brought another case in the High Court against Kedong Ranch Company
Limited, the Kenya Railway Company, the National Land Commission and the
Attorney General of Kenya. The Petitioners demanded recognition of their collective
land rights and the invalidation of the land lease agreement of Kedong Ranch
Company Limited. The case was filed on behalf of the 4,000 Maasai families with a
total of 35,000 individuals living within Kedong Ranch. The cases in Kenya's High
Court and Court of Appeal have all been decided against the Kitel people.
78. The complainants state that the latter case was brought before the High Court by
Parkire Stephen Munkasio and 14 others (suing on their own behalf and on behalf of
their families and all members of the Maasai community living in this place. The
process sought to assert the property rights of the applicants (whose families are
subject to the imminent eviction that triggered this Communication before the
commission) and to prevent the government from harassing or forcibly causing the
removal of their property.
79. Based on the factual evidence described above, the community proactively turned to
all national judicial bodies, including at the highest level, without any success. As such,
the matter was dealt with extensively at national level, and it was given sufficient time
to resolve the problem, which it did by dismissing all the cases submitted. The decision
to refer the matter to the Commission is therefore within its rights, as it concerns Article
56 (5).
80. The African Court on Human and Peoples' Rights has explained the
to the sufficient time granted to the Respondent State to resolve
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v, the Republic of Kenya13 that "Where an Applicant proves that a matter has passed
through the appropriate domestic judicial procedures, the requirement of exhaustion
of local remedies is presumed to be satisfied, even if the same Applicant before this
Court has not brought the matter before the domestic courts".
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81. It is clear that this is a matter that is sufficiently dealt with by the national judicial
bodies, as opposed to measures focusing solely on whether or not the complainant
himself has had recourse to all local remedies. In this regard, the Commission
considers that the conditions of Article 56(5) have been met.
82. Apart from efforts to exhaust domestic remedies without success, the nature of
communication seems to suggest that domestic remedies are insufficient, if not
outright non-existent. This may be due to the difficulty, as illustrated by the various
cases that members of affected communities have repeatedly submitted to the courts
of the Respondent State, that complainants and communities in similar situations face
in finding appropriate legal frameworks that effectively recognize and facilitate the
legal enforcement of collective land ownership.
Submission within a reasonable time (Article 56(6))
83.Article 56(6) of the African Charter requires that Communications be "lodged within a
reasonable time from the exhaustion of domestic remedies or from the date on which
the matter was submitted to the Commission."
84. The Complainants allege and the Commission has clearly demonstrated that the effort
to exhaust local resources was quite evident. However, all cases submitted to the
Court of Appeal, the High Court and the Constitutional Court were dismissed.
85. The last cas was filed with the High Court in October 2019, and the Commission
received the complaint in July 2021 , some twenty-one months after the case was filed.
The issue at hand here would be whether or not these twenty-one months can be
regarded as a reasonable period for referring a case to the Commission.
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87. In the case of Majuru v. Zimbabwe14, the Commission was quite explicit in
determining that, after six months, the complainant should provide a plausible
explanation for the admissibility of a case, notwithstanding its alleged non-compliance
with the reasonable time. In the above-mentioned case, the Complainant lodged the
Complaint with the Commission twenty-two months after the last decision, alleging
both lack of resources and mental illness. In fact, the Complainant in the Majuru case
alleged that he had sought assistance during the twenty-two months. The Commission
maintained that the period was "beyond a reasonable man's comprehension of a
reasonable period of time".
88. The above case law is justified as it concerns an individual who, despite his or her
challenges, is considered to have had sufficient time to bring an action before the
Commission. In the present case, the matter concerns fourteen individuals
representing a community of 30,000 people. The nature of the case therefore differs
from that case-law, since its complexity lies in the coordination of actions involving an
entire community.
89.As seen from the facts, the Complainants claim that between 2014 and 2019, the
government of Kenya, acting through the state-owned power generation company,
Kenya Electricity Generation Company (KENGEN), and without any consultation with
the Maasai in Kedong, removed 1,700 acres from Kedong Ranch and established a
Resettlement Area for individuals and families evicted from Olkaria to make way for
the development of the Olkaria IV geothermal project. 1,000 people (350 families)
were relocated to new two-bedroom houses, occupying an area of 0.41 hectares each,
on land from the Resettlement Action Plan within Kedong.
90. In view of the above, the community is naturally dispersed; That is why concerted
action can indeed be quite difficult. In this regard, the internal process itself
demonstrates the disparity in the community, given the complexity of the case, based
on the number of people involved.
91. In fact, the cases submitted to the national courts were brought by different Claimants
seeking the same redress. The first case was filed with the Nakuru High Court by the
Maasai community of Kedong. The second case was brought by Parkire Stephen
Munkasio and 14 others ( suing on their own behalf and on behalf of their families and
all members of the Maasai community) in the High Court. The third r~..-w
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case was brought before the Commission by Mr. William Sipai and 13 other
representatives of the Keekonyokie Clan of the Maasai People of Kitet (represented
by Dr. Duncan Ojwang).
92. In view of the above, the nature of the case and the circumstances surrounding it
make the connection between all the actions almost impossible. To the extent that
Claimants have been subject to the same violations, the size of the community leaves
no room for coordinated action. In this regard, in this particular situation, the
submission of the case within six months, i.e. the determination of an exact reasonable
time limit for filing such a case would be contradictory, given that all the cases were
submitted by different individuals (African Commission on Human and Peoples' Rights
v. Republic of Kenya, TAfDHP) , notwithstanding the evident need to exhaust local
remedies, as previously demonstrated.
93. In addition, two main arguments may further justify the long period of time taken to
seize the Commission. In the first instance, considering that the cases at the national
level were presented by different individuals, it can be assumed that other members
of the community were patiently waiting for an outcome of these cases. In this case,
the community hoped that the case brought in October 2019 would bear fruit, after
which the absence of a response from the High Court on this particular matter led the
Complainants to seize the Commission.
94. Secondly, the particular circumstances of the case must be put into perspective and
therefore allow for a more careful analysis. Several members of the community were
resettled against their will, houses burned, and individuals arrested for speaking out
against the government's actions. The Commission would not qualify this as a safe
environment in which to prepare a complaint effectively, since the majority of the
inhabitants would have been affected.
95. The African Court took this position in the case of Association pour le Progres et la
Defense des Droits des Femmes Maliennes and Institute for Human Rights and
Development in Africa15, where it held that "and secondly, given the climate of fear,
intimidation and threats that characterized the period following the adoption of the law
on 3 August 2009, it is reasonable to expect that the Claimants have also been
affected by this situation". In this particular case, the complainants brought the case
before the Court five (05) months after the enactment of a law by the Malian
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government that violated several provisions of international human rights instruments
ratified by the Respondent State.
96. Therefore, on the basis of this line of argument, the Commission notes that the
conditions of Article 56(6) have been met.
Matters previously resolved (Article 56 (7))
97. The Commission's position on the above principle has been well elaborated and
clarified in its case-law with regard to two main conditions. On the one hand, with
respect to the nature of the organization, the Commission recognizes that Article 56(7)
is not satisfied if the same complaint is submitted to a human rights body for
consideration. On the other hand, as regards the nature of the decision, the
Commission said in the case of Haregewoin Gabre-Selassie and IDHDA (on behalf
of former Dergue officials) v. Ethiopia16 that the fact of "taking a decision that
addresses the concerns, including the remedy sought by the complainant.. . [and that]
it is not enough that the matter is simply discussed by these bodies".
98. This implies that when the complainant submits a complaint to the Commission, but it
has already been lodged with another competent human rights body, this
automatically renders the complaint inadmissible. In addition, when the Complainant
files a Complaint that has already been the subject of a decision taken by a human
rights body, the latter must have addressed the concerns, including redress.
99. It has been well demonstrated in this particular case that the complainants have only
brought cases before the national courts. In this regard, the Commission considers
that the conditions of Article 56(7) have been met.
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101. In the Complaint, the Complainants allege violation of Articles 1, 4, 5, 14, 17(2)
and 22 of the African Charter, but made no observations in relation to Articles 5 of the
African Charter. The remarks on the alleged violation of the right to education,
provided for in Article 17(2) of the African Charter, appear in the middle of a sentence
as a consequence of the eviction 17.
102. The Commission notes that in what the Complainants call the Memorandum of
Argument and Evidence, submitted after the Complaint was seized, they allege
violation of Articles 1, 3, 5, 14, and 17(2), 19 of the African Charter and Articles 27 (1 ),
(2), (4), (5) and (6); 28; 29 (c) (d) (e) and (f); 40 (3) and (4); 42; 43 (a) (b) (c) and (f);
44; 47 (1) and (2); 57(c) and 63 of the Constitution of Kenya. However, in their
submissions on the merits, the Complainants make observations only on (i) the right
to be recognized as an indigenous community, (ii) the right to property (Article 14), (iii)
the right to life (Article 4 ), (iv) the right to self-determination (Article 20); and (v) the
right to development (Article 22); and (vi) the right to reparations (Article 1).
103. The Commission notes that in the Memorandum referred to above, there are no
specific submissions on the right to non-discrimination (Article 3), the right to dignity
(Article 5), and the right to education (Article 17), all of the African Charter. The
references to Article 3 appear in the context of the claims on the right to life18, the
right to self-determination,19 and the right to reparations20. Thus, the allegations of
infringement of Articles 3, 5 and 17 of the African Charter disappear from the
observations made in the pleadings on admissibility and merit.
104. On the basis of the above, the Commission will rule on the allegations of violation
of (i) the right of the Maasai of Kedong to be recognized as an indigenous community;
(ii) the right to property (Article 14); (iii) the right to life (Article 4 ); (iv) the right to selfdetermination (Article 20); (v) the right to development (Article 22); and (vi) the right
to reparations (Article 1 ). The Commission will therefore only deal with reservations
relating to these rights.
Alleged violation of the right to be recognised as an indigenous population
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105. The Complainants base the premise for their right to recognition as an indigenous
community on Article 260 of the 2010 Constitution of Kenya, which defines
"marginalized community" as being
A community which, owing to its relatively small population or for any other
reason, has not been able to participate fully in the integrated social and economic
life of Kenya as a whole; a traditional community which, out of necessity or desire
to preserve its unique culture and identity from assimilation, has remained outside
the integrated social and economic life of Kenya as a whole; an indigenous
community that has maintained and maintained a traditional lifestyle and
livelihoods based on a hunter-gatherer economy; or pastoral people and
communities, whether nomadic; or an established community which, due to its
relative geographical isolation, has had only marginal participation in the
integrated social and economic life of Kenya as a whole.
106. They allege that, pursuant to Article 2(5) of the Respondent State Constitution,
2010, any treaty or convention ratified by the Respondent State shall form part of its
legislation. It affirms that the Respondent State has ratified international instruments,
including the lntemation Covenant on Economic Social and Cultural Rights (ICESCR)
and the African Charter, which recognize indigenous peoples and their rights.
107. Citing the decision of the African Commission in Centre for Minority Rights
Development (Kenya) and Minority Rights Group International, on behalf of the
Endorois Welfare Council v. Kenya, they argue that the Commission considered
indigenous peoples to be communities that" ... have not been accommodated by the
dominant development paradigms and, in many cases, are being victimized by the
dominant development policies and ideas, and their basic human rights are being
violated .... Indigenous peoples, due to past and ongoing processes, have become
marginalized in their own country and need recognition and protection of their basic
human rights and fundamental freedoms.21
108. The Complainants state that in its fourth periodic report on the International
Covenant on Civil and Political Rights (ICCPR) submitted to the United Nations
Human Rights Committee (UNHRC) pursuant to Article 1 on self-determination, the
Respondent State officially recognizes the existence of indigenous peoples in its
territory, stressing that they are part of marginalized communities, and declares that
they must be protected through specific affirmative action to ensure that they en·o
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109. They allege that since 2010, the human rights situation in the Respondent State
has been reviewed three times by the United Nations (UN) Universal Peer Review
(UPR) mechanism. These revisions were carried out in 2010, 2015 and, more
recently, in 2020. In 2010, the Respondent State agreed to implement the
recommendations and decisions of its own judicial institutions and the African
Commission, in particular those related to the rights of indigenous peoples.
110. In 2015, among others, the Respondent State accepted the main
recommendations on the situation of indigenous peoples and agreed to effectively
strengthen the protection of indigenous peoples' rights, including the land rights of
their ancestors; and continue to implement legislation on the protection of the rights
of indigenous peoples and their lands. In the last review, it accepted a
recommendation to adopt new measures to strengthen the meaningful participation
of indigenous peoples in all issues affecting them.
111. The Complainants argue that in Ranga/ Lemeiguran & Others v Attorney General
& Others [2006] Eklr, the High Court confirmed the existence of indigenous peoples
in the Respondent State and ruled that they had the right to influence the formulation
and implementation of public policy and to be represented by persons belonging to
the same social background, cultural and economic than them. The High Court
further noted that representation is a clear constitutional recognition of a positive right
of the minority to participate in the political process of the state and to influence state
policies.
Alleged violation of the right to property
112. The Complainants allege that the Commission has observed that Article 14
includes the right to individual and collective property, thus protecting traditional
communities who hold land communally, in accordance with the "values of African
civilisation". They submit that Article 14 provides general protection for (i) the rights
of the Maasai people over the historical territory, including their collective ownership,
{ii) economic interests over the land, (iii) resources from which they derive their
livelihood, including their livestock, and sand from the earth.
113. They submit that Article 15 of the ILO Convention No. 169 (1989) o
and Tribal Peoples, establishes that the rights of the peoples concern
resources of their lands must be especially safeguarded. These ri
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right of these populations to participate in the use, management and conservation of
these resources.
114. They alleged that in cases where the State has ownership of mineral or subsoil
resources, or rights to other resources belonging to the lands, governments shall
establish or maintain procedures whereby they consult the peoples concerned, with
a view to ascertaining whether and to what extent their interests would be harmed,
before undertaking or permitting any programmes for the exploitation or exploitation
of such resources belonging to their lands. The peoples concerned should, wherever
possible, share in the benefits of such activities and receive fair compensation for
any harm they may suffer as a result of such activities.
115. They also refer to the United Nations Declaration on the Rights of Indigenous
Peoples, which outlines and defines the individual and collective rights of indigenous
peoples, in particular Article 25, which states that indigenous peoples have the right
to maintain and strengthen their distinctive spiritual relationship with the lands that
traditionally belong to them; Article 26, which states that indigenous peoples have the
right to the lands and territories that traditionally belong to them, to use and possess
these lands as they wish, and that States must recognize and protect these lands.
116. The Complainants assert that indigenous property rights have been legally
recognized as communal property rights. In the current international landmark case
on this issue, Mayagna (Sumo) Awas Tingni v Nicaragua, the Inter-American Court
of Human Rights (IACHR) recognized that the Inter-American Convention protected
property rights "in a sense that includes, among others, the rights of members of
indigenous communities in the context of communal property." They also affirm that
the IACH stated that land tenure should be sufficient for indigenous communities
without real title to obtain official recognition of this property.
117. They allege that in Endorois against the Respondent State (which dealt with the
situation of an indigenous people forcibly removed to make way for a national reserve
and tourist facilities), the African Commission stated that traditional indigenous tenure
constitutes property that States Parties to the African Charter are obligated under
Article 14 not only to respect, but also to protect affirmatively.
118. They note that the acquisition of indigenous property by the colonial authorities
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Kingdom recognized that the historical association of indigenous pe
lands should be considered a "continuing right of ownership".
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119. The Complainants contend that between 2014 and 2019, the government of the
Respondent State, acting through the Kenya Electricity Generation Company
(KENGEN), and without any consultation with the Maasai in Kedong, expropriated
1,700 acres of Kedong Ranch to establish a Resettlement Area for individuals and
families evicted from Olkaria, as part of the development of the Olkaria IV geothermal
project. One thousand (1,000) people and three hundred and fifty families (350) were
relocated to new two-bedroom houses, occupying an area of 0.41 hectares each, on
land from the Resettlement Action Plan within Kedong.
120. It is stated in the Affidavit that because the disputed lands are rich in geothermal
energies, sand and gold, which has attracted companies such as Ken Gen and sand
sellers. It is further claimed that the Respondent State has systematically deprived
the Kedong Maasai community of their rights its and has usurped the claimed land
by illegally granting 3 000 hectares to South Sudan and Uganda.
121. It is further stated in the Affidavit that the Kedong Unlimited Company, like the
Muguga Company, are products of the groups linked to the first politicians of the
Respondent State who alienated land to their relatives and attorneys as a way to
seize indigenous land. The Complainants further contend that the Respondent State
took with impunity another thousand acres (1 ,000) to build the Inland Dry Port
Container and other enterprises, which has resulted in more than 22 families of the
Maasai community of Kedong being forcibly evicted without consultation or
compensation.
Alleged violation of right to life
122. For the complainants, the maintenance of a means of subsistence is fundamental
for the realization of the right to life. The arbitrary harassment, evictions, and fencing
off of the boundaries of Kedong Ranch to restrict access to land and resources by
the Kedong Maasai community, perpetrated jointly by the Respondent State and its
collaborators, constitute an affront to the right to life of the Kedong Maasai.
123. They note that the applicants rely predominantly on pastoralism. They submit that
their cattle represent their most important livelihood. Therefore, the program carried
out by Kedong Ranch Company with the acquiescence and support of the
Respondent State is making it impossible for the community to make a living from
their land, endangering the very survival of the families and the entire grou . They
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claim that the genocidal intent of the program implemented by Kedong R
the Maasai is a continuation of the colonial project articulated by Cha
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he referred to the Maasai as the lsmailis of East Africa who "will be satisfied ... until
they met with a crushing defeat."
124. They claim that the expulsion of the Maasai from Kedong violates international
law, which recognises that forced displacement will inevitably tear families apart,
undermine social and cultural ties, disrupt educational opportunities, deprive
displaced populations of access to vital necessities such as food , shelter and
medicine, and expose innocent people, especially children, to acts of violence such
as attacks on camps, disappearances and rapes.
125. They argue that the purpose of international law governing displacement is to
prevent and avoid "situations that may lead to the displacement of persons".
International law extends to everyone the right to be "protected against arbitrary
displacement from their home or habitual place of residence" and after exploring the
lack of "viable alternatives" and still proceeding with displacement in a way that
minimizes its adverse effects. They aver that the Kampala Convention for the
Protection and Assistance of Internally Displaced Persons requires States to avoid
"as far as possible" displacement caused by development projects.
126. For the Complainants, these rules prohibit forced displacement as a fundamental
principle, but in circumstances where it may be permitted, the displacement must
take place following a fair process, including the consent of the victims, and after
sufficient safeguards have been put in place to prevent serious violations of rights
and to prevent the most vulnerable among internally displaced persons, including
children. They allege that the Respondent State has not taken any steps consistent
with its obligations under international law in the way it is dealing with the issue of the
Kedong Maasai.
127. They state that there are a number of international legal regimes that have been
created to guarantee the rights of these groups of people, including the 1948 UN
Declaration on Human Rights (UDHR) and the 1966 International Covenant on Civil
and Political Rights (ICCPR}; International Labour Organization (ILO} Conventions
107 and 169 of 1957 and 1989, respectively, and the United Nations Declaration on
the Rights of Indigenous Peoples (UNDRIP) of 2007. Other international legal
documents include the African Charter; and the African Charter/Treaty of the East
African Community.
128. According to the Complainants, the UDHR stresses the need for consultation,
participation and prior and informed consent in activities of any kind
impact on indigenous peoples, their property or territories. It als
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requirement for fair and adequate compensation for the violation of the rights
recognised in the Declaration. Article 3 of the instrument establishes that indigenous
peoples have the right to self-determination.
129. The complainants cite several provisions of international human rights
instruments, such as the articles of the ICCPR: Article 2 (1 ), which stresses that each
State Party to the Covenant must respect the rights of all individuals on its territory,
without distinction of any kind; Article 14 (1 }, which states that everyone has the right
to a fair and public hearing by a competent, independent and impartial tribunal
established by law; Article 27, which states that ethnic minorities shall not be denied
the right to enjoy their own culture.
130. They allege that agents of the Respondent State dug a trench around the disputed
lands to prevent entry and exit from them; and that the ditch dug, because it was
extremely dangerous, caused the death of schoolchildren who crossed it to go to
school.
Alleged violation of the right to self-determination
131. The Complainants allege that self-determination refers to the fact that human
beings, individually and collectively, should have the right to control their own destiny
and choose their own system of government. It is further described as a precept of
human right that states that all people have the same right to control their own
destinies."23 Irene Daes attributes its effectiveness to ''sustainable selfdetermination'', the important ability of indigenous peoples to pass on their traditions
and culture to future generations. 24 Ideally, self-determination should protect these
five principles: "non-discrimination; cultural integrity; control of land and resources;
welfare and social development; and self-government."
132. The Complainants maintain that the fundamental right to self-determination is
guaranteed in Article 1( 1) of the Covenant on Economic, Social and Cultural Rights
(ICESCR), ratified by the Respondent State on 1 May 1972, and in Article 1(1) of the
International Covenant on Civil and Political Rights (ICCPR), ratified by the
Respondent State on 1 March 1972. Under these instruments, the State must respect
23 See UNe;cQ ~~perts ol\ ..-lf-<lelermination oummary n,port p 10. Justice Michael Kirbj·, identilie. a pt>Ople as:• group of individu,l hum•n t..illas who cnfoy
some or •ll o/ the following common featurH: (~)~common hi>loriral tradition; (I>) racial or,thni( iMnlity; (<)culn,rol homogmrity (d) linguistic unity;(~) ,.ligious
ideologic•I &ffinit)•; (f) territorial ronntttion, (g) common ..-onomic Iii<".
24 &"' 6n,a-ln-ne A. D,h.>s, Some Considcra1io"s on the Right a ( Indigenous Pl'ttples lo S.lf-Oeltrmin,1lion, 3Tr,1nsn,11' 1L &: Contem
See Roborl A. Williams, Jr., Columrus' • Leg~,-y: Law •• an !IIJLrument ofRadai Di,nimin.;tion Agdn,t
Indigenous People•• Rir,hu option,. 8 Ariz. J. lnl' L .!r. Comp. L. 51 (1991).
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and defend the right to self-detem,ination and protect and safeguard the social,
cultural and economic development of all peoples.
133. They argue that denying indigenous peoples the same internationally recognized
right to self-determination that other people enjoy constitutes another manifestation
of racism and cultural chauvinism that has characterized the historical disregard for
international law by indigenous peoples. Moreover, limiting the application of selfdetermination to the post-World War II decolonization movement and excluding its
application to the current Indigenous rights movement requires the illogical claim that
the indigenous peoples of the colonizing states were not victims of European
colonization.
Consequently, indigenous peoples and the State must have
interrelations, which have nothing to do with State territories.
134. They claim that Ortiga has established criteria that should be used to examine
how the proposed solutions will contribute to solving the problems of the Kekenyokia
Maasai. Ortiga's six criteria are as follows:
1) Land tenure regime: the nature of the land right that has been recognised ,
which can range from direct ownership (fee simple), through various types of
restricted ownership, to rights of simple use (usufruct);
2) Territorial recognition: recognition of land in a form that corresponds to the
concept of indigenous territory, as defined by ILO 169;
3) Rights over natural resources: the types of rights over the ownership,
management and use of natural resources granted as a consequence of the
right to land;
4) Security of tenure: the degree of security of the type of land title;
5) Autonomy: the degree of autonomy in the management of its own affairs that
is granted to an indigenous group as a consequence of its land rights, including
legal recognition as an indigenous group and its ability to use its own traditional
legal and judicial systems;
6) Legal recourse : the legal actions they take to defend their land.
The alleged violation of the right to development
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economic zone with mega development projects covering various sectors was carried
out without the involvement, participation or consent of the Kedong Maasai
community.
136. They state that in Endorois, the African Commission stressed that "the right to
development is a two-pronged test: that it is constitutive and instrumental, or useful
as a means and as an end." The Commission focused on two main issues: the extent
to which the community was consulted prior to development; and whether this
development brings benefits to the community concerned. They allege, therefore,
that the aggressively imposed developments by the government and its collaborators
on the lands belonging to the Maasai of Kedong, in particular, the plan contained in
the Master Plan to transform Kedong into a special economic zone, flagrantly violate
the right of the Maasai of Kedong to development.
137. According to the Complainants, the World Bank considers that "indigenous
peoples are generally among the poorest and most vulnerable segments of society."
As a result, indigenous peoples have been the target of a wide range of initiatives.
efforts and programmes to help them achieve economic development. However, they
argue most of the time, the strategies adopted to achieve this noble goal have been
developed externally and based on modernization. These efforts, they state, have
failed miserably to improve the economic situation of indigenous peoples and, at the
same time, have undermined their traditional way of life, leaving them less selfsufficient and therefore worse off than before.
138. They affirm that indigenous groups, by virtue of their existence, have the right to
live freely in their own territory. They submit that the close ties of indigenous peoples
with the land must be recognized and understood as the fundamental basis of their
cultures, their spiritual life, their integrity and their economic survival.
139. The Complainants emphasise that, given that the land is communal property, it is
therefore highly suspicious that the High Court of the Respondent State dismissed
the case based on an out-of-court agreement signed by representatives of a minority
with Kedong Company Limited.
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culture, which gives them identity and a sense of belonging, and deprives them of
opportunities to have a say in matters that affect their own development.25.
141. They allege that the Committee on the Elimination of Racial Discrimination, in
General Recommendation 23 on the Rights of Indigenous Peoples, calls on State
Parties to recognize and respect the distinct culture, history, language and way of life
of indigenous peoples as an enrichment of the State, cultural identity and the
promotion of their preservation. States must also ensure that members of indigenous
peoples are free and equal in dignity and rights and free from any discrimination, in
particular that based on indigenous origin or identity. They must also provide
indigenous peoples with conditions that allow them to develop economically and
socially sustainably and commensurate with their cultural characteristics.
Alleged right to reparations
142. The Complainants allege the right of victims of violations to redress and the
obligation of the Respondent State to provide such remedies in accordance with the
principle of responsibility. In support to this, they invoke the instruments of the United
Nations.26 In support of this, they invoke the UN Guiding Principles on Business and
Human Rights (A/HRC/17/31 ), which were unanimously adopted by the Human
Rights Counci.l in June 2011 , which they consider relevant to the human rights impact
of business activities.
143. They maintain that the obligation to protect, respect and fulfil human rights implies
a duty on the part of the State not only to refrain from violating human rights, but to
exercise due diligence to prevent and protect individuals from abuses committed by
non-State actors.27
144. They maintain that the Committee on the Elimination of Racial Discrimination, in
General Recommendation 23 on the Rights of Indigenous Peoples, calls in particular
on States Parties to recognise and protect the rights of indigenous peoples to own,
25 In tlwCN>tte for Minority Righb Oevelorment (K.oni•a) ~nJ Minority R,ghtsGroup lntemallonol on boh•lfof Endoroio \¥elfore C0untD v K,,ny•, Co11ununk alion
276/2003 (Pora 2'Tl. See oloo, S.,., M Salomon and A SenguplA, The riKht to development: oblig•tlons o! state• and lt.. rlghi. of minorilie• •nd indlgenou• people•
(Minoritr Rights Group lntcm.,tional, 2003).
26 B••k rrindpl6 •nd Guid,,lines cm llw Right to• 11,>0k'Jy •nd llep,lr•tion lor Victim• of\.'iot.toOM of 1n1,mw,,,,.,.1 Hum-an Rlghls •nrl Humanil•ri•n Law, G./1..
11ft. 60/1(7, O.N. GAOII. 60lh 5"5. U.N. Do<•, A/RES/60/ 147,15 (M•r. 21, 2006).
'X1 See lor example Human Rights Comm ill"", General Commenl no. 31 para. 8). See ,1bo I.
The Umvr111•I Decl.r,,tion ol Human Righi,, for eumple,
,t.,te, th.it ' (e)vcryo1w has " right to ,m effc•ctiw remedy by th, compdent n•tion.il trillUn•b tor MIS viol•t1n,: the fun.dJ.m;mt•I right< gr,n1<>d to him by th.•
<oru,titutlon or by I•--·.' Unl"e""I Ded,,r•t1on ol Hum•n Rip.ht<, .uL 25, GA Rts. 217, U.N., GAOR 3d S...s., U.N. Doc. A/ 810 ( ~- 12, I
Cown•nt on Civil •nd Pohtlu l Righb, G.A. R~s. 221JO(XAI) ,\, •rt. 2. U.N. 0oc. A/ RfS/ '12.00 (>.XI) A (Dec. 16, 19b6); Com•eolion on
Dor. A/RFS/39/~b (De<:. 10, 1984); ,rnd lntomational Conwntion on the Elimination of • II Fonn, of R,1cial Discrimination. G.A
Dor.A/ RES/2106 (XX) (D«. 21, 1965).
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develop, control and use their communal lands, territories and resources and, where
they have been deprived of their lands and territories traditionally owned or inhabited
or used without their consent free and informed, so that they take action to return
these lands and territories. Only when this is not possible for factual reasons, the
Complainants submit, should the right to restitution be replaced by the right to fair,
equitable and prompt compensation. Such compensation should, as far as possible,
take the form of land and territory.
145. They argue that the Kampala Convention for the Protection and Assistance of
Internally Displaced Persons requires States to avoid "as far as possible"
displacement caused by development projects. In sum, these rules prohibit forced
displacement as a fundamental principle, but in circumstances where it may be
permissible, displacement should take place following due process, including the
consent of the victims and after sufficient safeguards have been put in place to
prevent serious rights violations and prevent the most vulnerable among the IDPs,
including children. The Kenyan Government has not taken any steps consistent with
its obligations under international law in the way it is dealing with the Kedong Maasai
issue.
The Commission Analysis
146. The alleged violation of the rights of the Kedong Maasai is based on the status of
the Maasai as an indigenous population, hence the need for them to be classified as
a people first, and an indigenous people second, before proceeding to the analysis
of the allegations of violations of the rights in question.
Allegation that Maasai community of kedong are indigenous people
147. The Commission notes that before pronouncing on the question of whether the
Maasai of Kedong are an indigenous people or community, and for the purposes of
the provisions of the African Charter for groups or collectives, it must rather define
what a people is.
a) Kedorig Maasai as a people
148. In Endorois, the Commission acknowledged that there is no consensus on what
a people is for the purposes of the African Charter. It also recognis
nature of the African Charter and its openness to innovative int
concluded that people refer to the collective rights provided fo
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Charter28. The Commission had previously made a similar pronouncement in the
case of Front for the Liberation of the State of Cabinda vs Angola, when it recognized
the right to equality between different communities in the same State29.
149. The Commission notes that the Court, for its part, has recognised the lack of
definition of the term people in the African Charter. Following the same line of
reasoning as the Commission, it considered that the reference to peoples in the
Afric~n Charter should not be restricted to the concept of people for the purposes of
external self-determination (independence) but also from the perspective of internal
self-determination which does not entail secession, which would be contrary to the
principle of the inviolability of borders laid down in Article 4(b) of the Constitutive Act
of the Union. The Court concluded that intra-State communities are peoples for the
purposes of the collective rights provided for in the African Charter30.
150. The Commission observes that the collective rights provided for in the African
Charter cannot be restricted to peoples as a constituent element of the State as a
sovereign entity. This is because one of the distinctive features of the African Charter
is that it takes into consideration the virtues "of historical traditions and the values of
African civilization that should inspire and characterize its reflections on the
conception of human and peoples' rights" .31
151. The Commission recalls the words of Keba Mbaye that in traditional African
society '',.. law is rather considered as a set of rules protecting the community of
which the individual is a part." However, according to the same author, "[t)his
conception of law and human rights should not be interpreted as reducing the rights
of the individual to nothing. On the contrary, in traditional African society, if the
privileged subject of the law is the community, the individual keeps his freedom and
the specificities of his rights." Indeed, the Commission notes that the African Charter
could not ignore the foundation on which African States are based, all of which are
organised around ethnic, tribal and other types of affinities.
152. Based on the above, the Commission is therefore of the opinion that the concept
of the people for the purposes of the collective rights provided for in the African
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Charter also refers to historically organised ancestral communities such as the
Maasai of Kedong.
b) Kedong Maasai as an indigenous people
153. The Commission notes that since the Maasai of Kedong are a people., it is now
necessary to determine whether they are an indigenous people. The Commission
notes that the African Charter, although it refers to group rights, in particular in Articles
19 to 24, it does not provide a definition of whether it is an indigenous people or
population. However, the Commission recalls that its Working Group on Indigenous
Populations/Communities presented a report on the issue32. Based on this Report.
the Commission issued an Opinion to the United Nations Declaration on the Rights
of Indigenous Peoples, in which it presents the following criteria for identifying
indigenous populations:
i.
Self-identification;
ii.
special connection to their traditional land through which their land and their
ancestral territories assume fundamental importance for their collective
physical and cultural survival as a population;
A situation of subjugation, marginalization, usurpation, exclusion or
iii.
discrimination because these populations have cultures, ways of life or
modes of production that are different from the hegemonic and dominant
national model. 33
154. In the Report entitled Indigenous Peoples in Africa: Forgotten Peoples?, the
Commission indicated that it does not intend to give "a definition of indigenous
peoples, since there is no global consensus on a single universal definition, nor would
such a definition be desirable or necessary." The Commission also considered that
the issue of "aboriginality or 'who came first' is not a significant feature to identify
indigenous peoples".34
155. In the same document, however, the Commission considered that the general
characteristics of groups identifying themselves as indigenous peoples are that their
cultures and ways of life differ considerably from those of the dominant society; that
their cultures are threatened with extinction in some; that the survival of most of them
depends on access to and rights to their traditional lands and the natural resources
32 Report of the Mri<on Commission W<>rl<ing Group on lndigenou, Poput.uions/Communities adopt.-d by thP ' ltnolulion on
Popul4tiDns/Communitift in Afrn:•• durinR llw 28th Ordilul) Sn,ion. 2J Or1ot-.r to 6 N,n·emhtr 2000. in Cotonou. Bonin.
J~Orlmon ofthe Afrkan Commission on I luman and J'eopJ,,s' Rigltts on th, United Nalio.ns 0.:..-lar•tlon on the RiEhlS of IndiE'"°'" P~
ll
Commi.uion on Hum•n ind reopies' Rights durinj\ ilt 4\sl Ordin•ry S.••ion, held in Mar 2007, in Acer•, Ghana, pa~e 4.
3-1 ~,d igenous ropulatlo11s In Africa; lorgotli'n peopl~? ·nw work Q( 1he Mric•o Commission on indigenous .,.-oplt< in Africa (2006). p
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on them; that they suffer from discrimination because they are considered less
developed and less advanced than other more dominant sectors of society.
156. In the document mentioned above, the Commission emphasizes that these
communities often live in inaccessible and geographically isolated regions, making
them vulnerable to various forms of marginalization, both politically and socially.
Indigenous people are frequently subjected to domination and e,xploitation within
national political and economic systems. These issues-discrimination, domination,
and marginalization-pose a threat to the survival of their cultures and way of life.
Additionally, such conditions prevent indigenous people from being able to participate
meaningfully in decisions regarding their own future and development.35
157. The Commission notes that similar definitions have been given by the United
Nations Special Rapporteur on Minorities36 and by the International Labour
Organization's Convention on Autochthonous and Tribal Peoples, No 16937. The
African Court, for its part, adopted the Commission's definition referred to above38.
158. In the Ogiek case, the African Court, after considering the definition adopted by
the United Nations Commission and Special Rapporteur on Minorities and by the
International Labour Organisation's Convention on Autochthonous and Tribal
Peoples, No 169, took the view that
For the identification and understanding of the concept of native populations, the
relevant factors to be considered are the temporal precedence in relation to the
occupation and use of a specific territory; a voluntary perpetuation of cultural
distinction, which may include aspects of language, social organization, religious
and spiritual values, modes of production, laws and institutions; self-identification
as well as recognition by other groups, or by state authorities that are a distinct
'35 Pige I I.
36 Report of lhe Special Rapporteur ol lhe Sub-Commission on the Prevention of Discrimination ,nd Pro!eclion of Minorities E/CN.4/Sub.2/ l 9fl6/7/ Add.4,
pMAl!Tlph 379, which delin~s AO "indigenous communities, li<'Ople, "'"l nations with hi.,toric•J continuity with the pre•lnvulon o.nd pre-colonial socit,t1e& th•t
developed in Iheir territories, conaider themselves di,tinct from the other ••clo"' of soci,ties curnmtly pre,••iling in those territories or in r-m tMreof. 'Thry Conn
non-dominant se<:lors of society •nd an, delcnnined to pn,serve, develop and lriln.smil to future Rtn,,r•lions their •ncestral territories and ethnic identity, i l the
b,uls of their continued exist.,nc• •• a populntion. in dcco,d,111('., with their own cultural p,,tlems. so<loll institutions •nd 1eg._1 S)-Stems".
37 "Th;. Con,·ention shall apply to;
(•) mb.11 peoples in independent countries whose social, rullural dnd econom,c conditions di.,tinv,ui,h them from olher ser,uwnts ol th<e n•tiou~n:;_
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whose situation i, gownwd in whole or in part b)· th<-ir owncusloms or traditions or by Sf"-Cilll legislation or regulations;
h) f"'Opl•s in indepenll,•nt countries ronsldNed indigenous 1,y the (,,ct Ihat they descend lrorn population, that lived in the counl
lhe cuunlry w,,s inscrte1.l ,11 the lim~ o( its co1h1ucsl orcoloniz..,tlon or the eStdhlishment of i.ts run.mt borders t1.nd that, regdrd.Jeu of
of the
their own soci•L e<onomic, rullu r•I. ~nd polilic•l institutions or .ill of lhen1.'
38 c,.., No. 006/2012. Judgment ol 26 Ma)' 2017, Mriran Commission on I I um.in and Peoples' Rights v. Rcpuhlic of Kenra), p.tr••
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collective; and an experience of subjugation, marginalization, usurpation,
exclusion or discrimination, whether such conditions persist or not.39
159. In the Endorois case against the Respondent State, the Commission, while noting
that the terms "peoples" and "indigenous community" give rise to emotive debates,
considered that some marginalized and vulnerable groups in Africa suffer from specific
problems since
... Many of these groups have not been embraced by the dominant development
paradigms and in many cases are falling victim to the dominant development
policies and thinking, and their fundamental human rights are being violated. The
African Commission is a/so aware that indigenous peoples, due to past and
ongoing processes, have been marginalized in their own country and need
recognition and protection of their basic human rights and fundamental
freedoms40.
160. In the Communication referred to above, the Commission described the Endorois
community as an indigenous people. The Commission based this classification on
several factors: cultural, religious, and traditional ties to their ancestral lands; their selfidentification as an indigenous group; their exclusion from society and the deprivation
of their rights as equal citizens; and their determination to preserve, develop, and pass
on their ancestral territories and ethnic identity to future generations. This decision
reflects the importance of these factors in recognizing a group as indigenous,
particularly their strong connection to their lands and the challenges they face in
maintaining their identity and rights in the face of societal exclusion.41
161 . The Commission also notes that the very constitution of the Respondent State, in
its Article 260, provides for what it calls a "marginalized community," which covers:
(a) relatively small population or for any other reason, has not been able to
participate fully in the integrated social and economic life of Kenya as a whole;
(b) a traditional community which, out of necessity or desire to preserve its unique
culture and identity from assimilation, has remained outside the integrated
social and economic life of Kenya as a whole;
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39 C..i- No. 006/2012. Judgment of 26 !.by 2017, Afric•n Commission on Hum•n .ind Peoples' Rights,, Rt>public of Kenr•
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40 Con1munic-•lion No 276/03 , C<'Tllre for ~linority Rlghls Developmenl (Krnya) ,ind Minorily Rights Group (on behaU
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(c) an indigenous community that has maintained and maintained a traditional
lifestyle and livelihoods based on a hunter-gatherer economy; or pastoral
people and communities, whether nomadic; or an established community
which, due to its relative geographical isolation, has had only marginal
participation in the integrated social and economic life of Kenya as a whole.
162. In the present case, the Commission observes that, in the absence of any contrary
information provided by the Respondent State, it has no grounds to contest the facts
used by the complainants to justify their request to recognise the Maasai community
of Kedong as an indigenous people.
163. The Commission recalls that the Maasai of Kedong, like other indigenous peoples,
exhibit a cultural identity, which includes their own language, social organisation,
religious, cultural and spiritual values, ways of life that differentiate them from
dominant groups and other indigenous populations, and are recognised as such by
other groups and by the authorities of the Respondent State42.
164. The Commission here does not refer to the number of people in the Maasai
community, but rather in terms of ways of life, since most of the population of the
Respondent State has converted to the way of life inherited from the colonial period.
Therefore, the Maasai who still live according to their ancestors, present themselves
as a group that resists the dominant way of life in the country.
165. The Commission notes that the Complainants' observations indicate that the
Maasai of Kedong maintain a special attachment to the land they claim, which are of
fundamental importance for the physical and cultural survival of the community.
According to the same observations, the lands in question serve "the economic
interests and resources derived from them, such as grass, salt pans, watercourses
and sand, from which they derive their livelihood, including the propagation and
sustenance of their vast herds of livestock."
166. The Commission recalls that for the indigenous populations, the lands also serve
as a burial ground for their dead, a place of various rituals, worship,43 and connection
with the ancestry of which the community is hereditary and protecti
guarantee the perpetuation of the tradition in time and space, that is,
lands they inhabit.
42 CASe No. 006/2012. )udgme111or 26 May 2017. African Commission on llum,m .,mt Peoples' Rl1:h1s v. Republic of Keny,1), P-"•·
...
43 Commu1tici!tion No 27b/03: Cenln> for Minority Rip.his Development (Keny•) and Minority Rights Group (on beh•lr or Endo
ACI IPR (2009), p,tra. 156: &-e ~lso ~ No. 0()(,/ 2012. Judgment of 26 Moy 2017, Afri<:'•n Commission on Human and Peoples' Rig
182-186.
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167. The Commission recalls that, according to the Complainants' submissions, the
struggle for the conservation of the lands claimed comes from the colonial time, which
resulted in the signing of a treaty with the colonial power. The continuity of this struggle
for the conservation of the lands in question is expressive of the determination of the
Maasai of Kedong to conserve their lands, essential for the maintenance of their
tradition, culture and way of life, unlike the rest of the population.
168. The Commission considers that the Complainants' observations indicate that the
Maasai of Kedong have been consistently dispossessed of their land for more than
five decades, and this has accelerated in the last decade. They claim that in a frenzy
of development, the government seems determined to secure the full appropriation of
their lands for investments in the energy, logistics, real estate and tourism sectors,
with little or no regard for the Maasai community's rights to this land.
169. The Commission notes that, although this is not an, absolutely, necessary criterion,
it should be noted that the Complainants' observations indicate that the Maasai
community of Kedong has temporal precedence over the occupation and use of the
claimed lands, occupying them from the pre-colonial period, through the entire colonial
period, and persisting to this day. In fact, as the Complainants point out, Charles Elliot
referred to the Maasai as the Ismail is of East Africa who "will be satisfied ... until they
suffered a crushing defeat." This passage is expressive about the precedence of the
Maasai in the lands claimed, thus fulfilling the first criterion.
170. The Commission recalls that, following a mission to Kenya, the Working Group on
Indigenous Populations and Minorities (WGIPM) produced a report in which they
described the Maasai as one of the indigenous communities in Kenya, alongside other
communities, including the Ogiek, Endorois, etc.44
171. For all the foregoing , the Commission is of the opinion that the Maasai community
of Kedong fulfils the criteria to be considered as indigenous populations for the
purposes of the protection they have under the African Charter and other applicable
human rights instruments.
Alleged violation of the right to property
172. The Commission notes that Article 14 of the African Charter provides that "[t]he
right to property shall be guaranteed and may be affected only by public neces • or
44 Visil to K<>nr .,_ I lo 19 ~foHt h 2010, the report ol which was adopted b)• tho Mrira.n Commi5sion on lluman dlld Peopk-•' Righb on i
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in the general interest of the community, in accordance with the provisions of
appropriate legal provisions."
173. This provision of the African Charter has been interpreted broadly, including not
only individual but also collective ownership45, but also that land is susceptible to
private appropriation46. The inclusion of collective property vested in a community, is
not strange to the African context. As mentioned above, traditional African society is
structured around communities or nations, in which land ownership is usually vested
in the community, which conserves and transmits it from generation to generation until
today.
174. The Commission notes that the right to property includes use, enjoyment and
disposal, a regime which also applies to collective property47. In the case of
indigenous populations, the right to dispose of the land belongs to the group, not to its
members individually, including in their relationship with the government or other
entities48.
175. The Commission emphasizes that in indigenous communities, the disposition of
lands-meaning the ability to sell, transfer, or otherwise dispose of land-is not
aligned with the land's primary purpose. For indigenous communities, land is crucial
for their survival, as it sustains their way of life and culture. This explains why
indigenous peoples often have a strong attachment to their ancestral lands, which are
seen as inseparable from their identity and traditions. Unlike other communities that
may freely sell or transfer their lands, indigenous groups typically view their land as
essential for the preservation of their culture and future generations.
176. The Commission has expressed its opinion on several occasions on the property
rights of indigenous peoples, in which it has considered that land is susceptible to
private appropriation49; whereas it includes not only the right of use, enjoyment and
45 C - No. 006/2012. Judgmn,I. of 26 t.ldy 21117, Afric•n Comnunion on H11m.n ""d Peoples' R,ghls v. Republic of Kenya), P4ra. 123.
Application No. 001/2013. o.ctsion of 15/3/2013, Emtsl Fnmci• MlmlJ"}i ,, R,,,.,bhcoJMnlaw, (hen,!n,lter referred IO .u '£notsl Fnmci, Mli118"'i ,,. Malari,i Decision"/,
,,.... 14.
~6 Communic,ttlons No~. s.1/91, 61/ 91, 98/93, 164/97 to 196/9? and 210/ 98 (2000) • M•Llwi African Associ;ilion..nd Other<,•. Mauri1an·
47 CommunhUon No 155/96: Social and Economic Rigl\15 Action Centre (SERAQ and C..ntre for Economic and Social Rights (CESR)
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~/
to 196/'17 and 210/98 (2000), para. 128. S... also Communications 54/91 et Al ,, Maurit.ulia, 13th Activity Report, P•"'- 128.
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disposal, but also the prohibition of invasion by third parties50, including the State
itself51 ; that the ownership of land includes its resources52.
177. The Commission has considered that States Parties have the obligation to
recognise the right of indigenous peoples to communal property and to provide for
internal mechanisms to protect this right in accordance with international law, and
such protection cannot be perceived as discriminatory53; that the system of trust land
was inadequate for indigenous populations; that forced eviction is presumed to
massively violate the right to property54; that the right of access to land alone is
insufficient, because it makes indigenous populations vulnerable, and that property is
the safest way to protect indigenous populations from the encroachments of
indigenous peoples. third parties55.
178. The Commission considers that the ownership of land by indigenous peoples
cannot depend on the existence of a title deed. Moreover, the owners of land in
traditional African societies have never recognized each other based on title deed but
based on actual occupation or temporal precedence over a given territory. However,
the obligation of formal recognition of ownership of ancestral lands and the
consequent demarcation and attribution of title deed, would constitute the obligation
of the States Parties to protect indigenous populations from the attacks of third parties
who normally form dominant classes.
179. The Commission notes that in the present case, it is called upon to rule on the
Maasai's right of ownership of the claimed lands; and (b) the possibility of affecting
the property.
(a) The acquisition of land by means of original occupation or by time
immemorial
50 Ogoni cue Communication No. 22S/98 v Nigcri•. 141h AMual Report, para. 52.
51 Communirations 54/91, 61/91, 98/93, lM/97, 196/97 MUI 210/'.lB.
52 Ogonl cue Communk•lion No. 225/98 v Nigeri•, 14th AMuaJ Report, p•ro. 186, citing the European Court ol Human Right>, in the c•se of Dogan •nd Others
v. Turke,,, European Court of Human Rights, •ppliutions 8803-8811/ UZ. 8813/02 •lid 881>!819/02 (2004), paras. 1~139.
!>3 Communoc, tion No 276/03 C.,.ntn, lor Minon!\ Rip.Ills l'l<'>'elorment (Ken\ a) •nd Minorilv Rights Group (on behalf of the Endo
r•ro. 196.
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54 Communoc,1tion No 276/ 03: Cenln' lor Minority Riy,hls Development (Keny•J ,ind Mlnor1ty Rights Group (on IJ.>half of Ll,c '
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55 Communi(Jtion No 27&/ 03: Centn• for Mmoril)' Rir,ht, O,,velopnwnl (Ken1 ,,) and MinoriL) Rights Group (on behalf of the
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180. The Commission notes that there are several ways of acquiring land ownership,
namely by original occupation or for an immemorial period, acquisition through
occupation for a certain period (adverse possession), purchase, inheritance, gift, or
assignment by the competent authorities.
181. In the present case, the relevant form of acquisition is the original occupation or by
time immemorial, In the sense that the owners precede anyone else in the occupation
of the land in question, or that they occupy it for times that no one can locate in time.
182. The Commission notes that in the present case, the Complainants' submissions
indicate that the Maasai of Kedong have occupied the land claimed since the precolonial period and have resisted its occupation and appropriation by the colonial
State, which resulted, according to the Complainants' submissions, in the signing of a
treaty of recognition of ownership of the land claimed here between the British Empire
and the Maasai.
183. The Commission note that by the terms of the Affidavit signed by William Sipai, in
his own name and in the name of 30,000 Maasai, the Maasai of Kedong have lived
on the lands claimed since. time immemorial, and even after the arrival of the British
in the 19th century, they are not aware of any other people who have occupied the
lands in question. Mr. Sipai further states that under Anglo-Maasai terms, the British
never used the land claimed here for agriculture and ownership of the land was
recognized by the Maasai of Kedong.
184. The Commission considers that it has no reason to dispute the veracity of the facts
reported by Affidavit, in the Complainants' submissions and in the Anglo-Maasai
Agreement of 1904, under which a portion of the territory was reserved for the Maasai
of Kedong. The Commission considers, however, that the ownership of the Maasai of
Kedong does not depend on the validity of the agreement in question. The reference
to the agreement here is only in the sense of the precedence or duration of the
occupation of the lands in question.
185. Basis of the above, the Commission acknowledges the property right of the
Kedong Maasai over the disputed lands, and the inherent right to a communal title
deed that recognizes all the inherent rights, including the use, enjoyment and disposal,
as well as the obligation of protection of the owners by the Respondent
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186. The Commission notes that the right to property, including that of indigenous
peoples, is not absolute. Moreover, Article 14 of the African Charter admits that the
right to property " may only be encroached upon in the interest of public need or in the
general interest of the community and in accordance with the provisions of appropriate
laws." However, the referral clause for domestic law is not without limits. It is not a
carte blanche for States Parties to do whatever they want. It aims to enable States
Parties, considering their specific characteristics and within the limits of existing
standards in international law, including applicable jurisprudence, to organize the
process of encroaching communal property.
187. The Commission recalls that it has already expressed its views on the matter on
several occasions and has made it clear that rights provided for in the African Charter
can be encroached in line with the general rule laid down in Article 27(2) of the African
Charter, which provides that "[t]he rights and freedoms of each individual shall be
exercised with due respect for the rights of others, collective security, of morality and
the common interest."
188. The Commission notes that this provision has been interpreted by itself and the
Court as meaning that the restriction or effect on rights must be made on the basis of
pre-existing law 56, respect the principle of proportionality57, necessity in a democratic
society and the rule of law58, which includes the involvement of the parties concerned
in the process affecting their rights, and that the restriction authorised by Article 27(2)
of the African Charter "must never have the consequence of rendering one's own
illusory"59 or discriminatory60. In the case of the property of indigenous communities,
as mentioned above, the Commission is of the view that the involvement of their
representatives is necessary, so that consent is prior and free.
189.
The Commission notes that the question that arises in this Communication is
whether, in accordance with Article 14 of the African Charter, property has been
encroached on the basis of (i) a law; (ii) if the encroachment is intended to satisfy a
56 Communication 313/05, K<!nneth Good/Botsw•N, M•v 26, 2010. Afric,m Court un Hum~n Righ!J •nd Human •nd Peoples' Right,, ln the c•se of lolw rs..
Kono!.! v Burkin• faso, App. No. 004/2013. Judgmenl on th<, merilS, S DecembeT 2014, p,:ira. 125.
57 African Court on Human anJ Peoples' Rights, In !he <ase of L<>~ lssa Kon•t~ v Burkina Faso. App. No. 004/2013, Judgment on the merits, O.Cemb,,r 5, 2014.
pu ,1Rraph 153.
S8 Raolution on the •doption of lbc D•d•t•lion of l'rinripleo of f ,wdom of Expn,.•ion in Afriu, 2002, pora. 11.:Z.
•
and IV.
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59 Communic•t!ons No• 105/ 93, 128/ 9~, 130/9~ and 152/ 9", Media RIRhts A11e nda, ConsHlutkmal Rights Project, ~led In Rights
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Pro/eel a1wins1 Nlgrrfo (ACHl'R) Octol>\tr 1998: Coinmuniealion, No~. 140/ 9.1, 141/ 9~. l~S/ 95, Co11sll1u1ional Rights Projcc~ CLO
·- - - . .
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Nigeria. 5 November 1999. p•r•. 42.
60 Communication No. 25S/02, Gam-lh Anver Prine•,•. S.,u!h Alric•. 7 0'1ctmb,r21m, ~r•s. ~).44.
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public interest or the general interest of the community; (iii) whether concerned parties
were consulted; and whether (iv) the general conditions of Article 27(2) of the African
Charter have been respected .
190. The Commission notes that the Complainants do not dispute the existence of a
national law allowing for the encroachment of property, therefore this question does
not arise.
191. Regarding the public interest test, the Commission notes that the Complainants'
submissions indicate that the land has been allocated to the resettlement of displaced
populations from other areas, the development of geothermal projects, the
development of an industrial park in the special economic zone and the construction
of a dry port, as well as the allocation of 3,000 hectares to each of leaders of Rwanda,
Uganda and South Sudan for the construction of dry ports for their countries. The
Commission notes that the public or community interest in the use of the land of the
Maasai community of Kedong by the Respondent State seems evident.
192. The Commission notes that the question arises as to whether the allocation of
property was made prior to consultation with the interested parties, in this case the
concerned community. To this end, the Commission notes that the information
available in the file does not detract from the out-of-court settlement that was allegedly
signed with two (2) of the complainants before the Kenyan courts. However, the
Commission notes that the Complainants representing their communities in this case
claim that they were not consulted prior to the signing of the out-of-court settlement
agreement. In fact, they say they have tried, unsuccessfully, to annul such agreement.
193. On the other hand, the Commission has no reason to doubt that the Complainants
in this Communication were not consulted. It is in this context that the Commission
considers that the right of the Complainants to be consulted in advance and to give
their consent has not been respected. If the land affected by the agreement reached
with two (2) of the fourteen (14) Complainants before the national authorities includes
the land claimed by the Complainants in this Communication, the Commission
considers that the land has been affected in violation of Article 14 of the African
Charter, as the legitimate representatives of the Kedong Maasai in this
Communication have not been consulted.
194. Regarding compliance with the conditions of Article 27(2} of the African Charter,
namely proportionality, necessity and appropriateness in a democratic society, nondiscrimination or restriction having rendered the right illusory, the Commission notes
that the issue does not arise in this case, as the Complainants have not made
41
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submissions on the matter. The Commission therefore will not consider those
conditions for the encroachment of property.
195. Based on the above, the Commission concludes that Article 14 of the African
Charter has been violated due to the fact that the disputed lands have been affected
without prior consultation and consent of the Maasai of Kedong.
The alleged violation of right to life
196. Article 4 of the African Charter provides that "[t]he human life is inviolable. Every
human being has the right to respect for his life and to the integrity of his person. No
one can be arbitrarily deprived of this right.
197. The Commission, in its General Comment on Article 4 of the African Charter,
considers that the prohibition of arbitrary deprivation of life is of cogent nature, and
ought not be interpreted restrictively, since in order to guarantee a dignified life for all,
the right to life requires the realisation of all the human rights recognised in the African
Charter, including civil, political, economic, social and cultural rights and the rights of
peoples, including the right to peace.
198. From the above, the Commission is of the view that States have the responsibility
under the African Charter to respect, protect, promote and realise the right to life, as
well as to adopt measures to prevent arbitrary deprivations of life and to carry out
prompt, impartial, thorough and transparent investigations into violations of the right
to life committed, holding the perpetrators accountable.61
199. In line with a holistic view of the right to life, the Commission considered the right
to food, in the sense of a source of food for the victims62, the right to water63,
considering its essentiality for human existence, flow from the right to life.
200. In the present case, a reading of Article 4 of the African Charter includes the
specific living conditions of the Maasai of Kedong, a pastoral community whose way
of life is closely linked to their lands which they use for various purposes, including
economic, cultural and religious purposes, the burial of their dead and the practice of
acts of initiation such as circumcision.
61 Gcner,11 Comm•nt No 3. r,ira. A (5) - (7) General Comnwnt No 3 on 1he Afnun Ch.>rt~r Alncan Charter on Human •nd Peo
(Article 4), adnplt'd during lhe 571h Ord,n•ry Session or the Afncan Commission on Human and Peop1..• Rights held from 4 to 1
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201 . The Commission notes that the right to life, in the context of indigenous
communities such as the Maasai of Kedong, should be read holistically, in line with
the General Comments mentioned above. In this regard, the practice of encroaching
lands through expropriation, the blocking of access to and exit from lands through the
construction of trenches around the disputed lands, which has caused the death of
schoolchildren, constitutes an obstacle that negatively interferes with the living
conditions of community members.
202. The Commission considers that these acts of the Respondent State are
incompatible with its obligation to respect, protect, promote and realize the right to life
provided for in Article 4 of the African Charter.
The alleged violation of the right to self-determination
203.
Article 20 of the African Charter provides that
1. All peoples shall have the right to existence. They shall have the
unquestionable and inalienable right to self-determination. They shall freely
determine their political status and shall pursue their economic and social
development according to the policy they have freely chosen.
2. Colonized or oppressed peoples shall have the right to free themselves from
the bonds of domination by resorting to any means recognized by the
international
community.
All peoples shall have the right to the assistance of the State Parties to the
present Charter in their liberation struggle against foreign domination, be it
political, economic or cultural.
204. The Commission recalls that self-determination can be seen from both an internal
and external perspective. Internal self-determination operates within the borders of a
given State, and external self-determination leads to secession. In this regard, the
Commission considered that self-determination can be exercised in the form of " ...
self-government, local government, federalism, confederalism."64
205. In this communication, the Complainants claim that self-determination is the
fundamental right of individuals and communities to control their own d
choose their government. They stress that this allows indigenous peo
their traditions and culture to future generations. They argue that s
64 Communication No. 75/92, Kat""&e•e People's CQngress v. DRC (ACHPR) (1995), para. 4.
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ideally, should protect five principles: non-discrimination, cultural integrity, control over
land and resources, social welfare, and self-government. They believe that selfdetermination would be the essential remedy for indigenous peoples to overcome the
discrimination of the past.
206. The Commission considers that the Complainants' submissions indicate that they
claim internal self-determination, since they do not intend to secede from the
Respondent State, but rather to have their own autonomy to organize their community
and live according to their choices, in line with their ancestral cultural traditions, and
to preserve them for future generations.
207. The Commission notes that the self-determination claimed by the Complainants is
inherent to the existence of indigenous communities, because it is necessary not only
for their organisation as a community, but also for their ability to participate in an
organised way in their relationship with the central government, in particular in
discussions regarding conditions under which the government can intervene in their
land.
208. La Commission notes that the distinctive aspect about these communities is also
the way they are organized and live accordingly. This right of the indigenous
community to self-organization is intrinsically linked to the ancestral territory of the
community where they live. Outside this territory, self-dermination can be irremediably
called into question, because it does not exist without land of its own.
209. In the present case, the Commission notes that the violation of the property rights
of the Maasai of Kedong, by way of deprivation of their ancestral lands which they use
to practice of pastoralism and for the practice of their cultural and religious traditions,
as concluded above, constitutes a consequential violation of the right to selfdetermination provided for in Article 20 of the African Charter, since the exercise of
this right is inherent to the maintenance of land ownership and its use without undue
interference from third parties, including the Respondent State itself, of which they are
an integral part.
On the alleged violation of right to development
210.
The Commission notes that Article 22 of the African Charter provides that
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2. States shall have the duty, individually or collectively, to ensure the exercise of
the right to development.
211. The Commission notes that, at first sight, the right to development relegates the
development of peoples as elements of a State as a whole. However, this reading
would be reductive and merely political, since the rights provided for in the African
Charter belong to individuals or groups of individuals or communities, so the right to
development includes the rights of individuals and groups65.
212. The Commission notes that this provision of the African Charter conceives the right
to development from a holistic perspective, encompassing not only the economic
aspect, which includes the enjoyment of community property, but also the social,
identity, and cultural aspects. all in accordance with the free choices made by the
community itself. The preamble of the African Charter reflects this view, stating that
" ... it is henceforth essential to pay particular attention to the right to development and
that civil and political rights cannot be dissociated from economic, social and cultural
rights in their conception as well as universality and that the satisfaction of economic,
social and cultural rights is a guarantee for the enjoyment of civil and political rights."66
213. In the same vein, the Commission considered the non-recognition of the Dioula of
Cote d'Ivoire as a national community 67and the displacement of populations in
Darfur68 violates the right to development. In the context of the rights of indigenous
peoples. economic development encompasses the right to enjoy community property,
including ancestral lands, as well as the integration of social, cultural, and identity
components into the development process. This must be done in accordance with the
free choices made by the community, as outlined in Article 20 of the African Charter.
214. The Commission notes that self-determination is not an end in itself, rather, it aims
to ensure that the indigenous population can promote and participate in its own
development. As such, Article 22 of the African Charter must be read in conjunction
with Article 20 and other relevant provisions, particularly those relating to health,
family, culture, and education.
M Para. 8 of the Preamble or the Afrlcan Charter.
67 Communk•lion No 318/06, Open Society )uslk• Initiative ag• insl CAt• d'Ivoire, (ACHPR) (2016), p~ras. 185 to 181>.
6~ Communication No 279/031296/05. Sudan Human Rights Organisation and Centre for the Righi to Ho.,sn,g and
Evictions (COHRE) / Sudan. (ACHPR) (2009). para 224
Human Rights our
Collective Responsibility
On reparations
216. The Commission reiterates that it emanates from Article 1 of the African Charter
that there is a duty to provide reparation whenever a State Party violates the rights of
individuals and thereby causes them harm69. The Commission notes that in the
present case, it has found a violation of Articles 4, 14, 20 and 22 of the African Charter.
217. In E/-Sharkawi v. Egypt, the Commission found that full and effective remedies
include restitution, compensation, rehabilitation, satisfaction, and guarantees of nonrepetition , and compensation for any economically assessable harm, such as physical
or mental harm; lost opportunities, including employment, education, and social
benefits; property damage and loss of earnings, including loss of earning potential;
moral damage; and costs necessary for legal or specialized assistance, medicine and
medical services, and psychological and social services.70
218. In the present case, the Complainants, in addition to the general request to the
Commission to order any other remedies that it deems appropriate, specifically
request that the Commission to order: (a) the cessation of all activities or acts
affecting the property of the Maasai in the Kedong ancestral lands by the Respondent
State, (b) the payment of reparations for damages caused, (c) the payment of
expenses for this Communication, (d) apologizing. These types of remedies
requested by the Complainant are considered below.
a) On the request for cessation of all activities on the ancestral lands of
the Maasai of Kedong by the Respondent State
219. The Commission notes that the Complainants request that the Respondent State
be ordered to cease all activities on the ancestral lands of the Maasai of Kedong,
including refraining from any act of eviction or acts of criminalization of pastoralism on
the claimed lands. The Commission notes that the natural remedy for the violation of
the Maasai Kedong ' right to property over their ancestral lands under Article 14 of the
African Charter is the cessation of the violations and the restoration of the situation
that would have existed if there had not been the violation, i.e., restitution.
69 Cocnmunic,tion No 3111/ ()(> - Oprn Sodi,tv Just~ lniti•tive .-. C~I~ d'lvoilf! (2015) ACHPR, for 1911.
70 Communication No. 396/11 - El,Shark~wi v. ~puhlk of Egypt (ACHPR) (2000), paro, 344.
ri::_~) ACH PR
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• Atrirnn Commission on
Human and Peoples' Rights
Human Rights our
CollHctive Responsib!lity
b) On the request for compensation for damage caused
221. The Commission notes that the Complainant seeks reparations for damage
caused, which may be material and non-material. The Commission recalls that to
determine reparations, it is necessary to determine the (i) victims, (ii) the damage and
(iii) the causal link between the violations found and the damage caused.
i)
The Victims
222. The Commission recalls that it defined the victim as "persons who, individually or
collectively, suffer harm, including physical or psychological harm, due to acts or
omissions that constitute violations of the African Charter71. In this Communication,
the victims are the Maasai of Kedong, whose lands were expropriated without prior
consultation and consent. In the case of a community 1 the victims include members
who belong to the community, even if they are not living in the area covered by this
Communication.
ii)
The amount of damage
223. The Commission obvers that to compensate the victims for the damage suffered,
which may be both moral and material, it is necessary to determine the amount of the
damage. In the case of non-material damages, the Commission considers that the
extent of the suffering and the corresponding amount of compensation must be
demonstrated by the Complainants, for example, through medical certificates or other
means capable of proving the severity of the suffering, such as trauma, anguish,
stress, depression, or other mental illnesses resulting from the trauma of rape.
224. In this case, the Commission notes that the Complainants have not provided such
evidence. However, the Commission believes that such evidence is best presented at
the national level during the process of determining financial compensation.
225. Regarding the amount of reparations for material damage, the Commission notes
that the Complainants, apart from the land they claim, do not claim any specific
71 General Commenl No. 4 on the African Ch,irte.r on Human ;rnd Peoples' Rights: The Righi lo Reparation for Victims of Torture
D~grnding Treatment or Punishmcnl (A rHde 5) Section Ill, rt1rn~ 16, adopted at the 2'ht Spr.d,ll Session of l he Afrirnn Commissio
held from 23 Fe~niary to 4 M~uch 2017 in Ba.nju l, G,, mbi,,, In the Sllme vein, UN Brtsic Principles and Gm delmes c>n the Righi to
t
Violations of international Human Rights Lc-n,• and Serious Viol,thons of lnte m (1t10 11<1l l lumanit,m,m Law (2005), § 6. Vicli.m is de
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or colla:tively h:we suffe-rt.>1..1 phj Sic,tl or ment,,I harn1, emotional J1stress, t;t om.'l mK" loss, and thr victtm also includes lhe Imme
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direct victim and persons who ha,e suffe!l'd hann to lhe victim. intervene lo help victims in dislreS5 or to prevent ,·,ctimi..tion.
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amount for material damage. They merely made a general request to the Commission
to award any other damages it deemed appropriate.
iii)
The causal link and the damage caused
226. The Commission notes that there must be a causal link between the violations
found and the non-material and material damage claimed. With regard to moral
damages, the Commission shares the opinion of the African Court in Zongo , in which
it considered that whenever there is a violation, there will be moral damage, as an
automatic consequence, without the need for any proof or demonstration.72 In the
present case, where the violation of the African Charter has been found, non-material
damage is presumed and the causal link is also established automatically.
227. With respect to material damage, the Commission notes that the Complainants
claim the expropriated land and any other reparation that the Commission deems
appropriate. Regarding the land claimed, the Commission considers that the
expropriation of land from the Maasai of Kedong (damage) is the natural consequence
of the violation of Article 14 of the African Charter, and therefore the causal link is thus
established.
228. In relation to other material damages arising from the violations found, because
the Complainants do not specifically claim them, their demonstration and the
respective causal link will be made at the national level.
c) On the apology
,,
229. The Commission notes that the Complainants ask for an apology from the
authorities. The Commission notes that the apology is one of the forms of satisfaction,
normally ordered in the context of violations that jeopardize the honor and reputation
of individuals, or massive violations of a certain level of gravity. However, the
Complainants do not make a specific demonstration of the need for an apology.
,._c.HP49
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Human and Peoples' Rights
Humao Righb ou,
Collective Responsibility
published on the websites of the government and the judiciary, as well as its summary
in the newspapers with the largest circulation in the country.
Decision of the Commission on the merits
231.
In view of the above, the African Commission on Human and Peoples' Rights:
i.
Declares that the Respondent State has violated Articles 4, 14, 19 and 22
of the African Charter;
ii.
Calls on the Respondent State to cease all activities on the ancestral lands
of the Maasai of Kedong, including refraining from any act of expulsion or
acts of criminalisation of pastoralism on the claimed lands;
iii.
Calls on the Respondent State to pay monetary compensation for the moral
and material damages, including expenses incurred by the Complainants in
connection with this Communication;
iv.
Dismisses the request for a public apology;
v.
Calls on the Respondent State to publish this decision on the websites of
the government or the judiciary, as well as its summary in the country's most
widely circulated newspapers;
vi.
In accordance with Article 125(1) of the 2020 Rules of Procedure, it
requests the Respondent State to submit to it a written report, within one
hundred and eighty (180) days of notification of this Decision, on the
measures taken to implement this Decision.
Done at Banjul, The Gambia, at the 82nd Ordinary Session, held
to 11 th March 2025
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