Decision on Strike out the African Commission on Human and Peoples' Rights on
Seizure
Communication 735/19: Residents of the Mau Forest Complex (represented by the
Centre for Comparative and International Law and Institute for Human Rights and
Development in Africa) v The 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 30 September 2019 from the Centre for
Comparative and International Law, and Institute for Human Rights and
Development in Africa (the Complainants) on behalf of residents of the Mau Forest
Complex (the Victims). The Complaint is submitted against the Republic of Kenya
(hereinafter "Respondent State" or "Kenya"), which is a State Party to the African
Charter on Human and Peoples' Rights (the African Charter). 1
2. The Complaint centres on the alleged risk of imminent eviction against the Victims
from their land in the Mau forest, located in the Rift Valley Region of Kenya. The
Complainants aver that sixty-thousand (60,000) families currently residing in the
Mau Forest Complex are at risk of eviction, which the Complainants estimate may
result in the displacement of two-hundred and forty thousand (240,000) persons,
taking into consideration that each household on average may have at least four
(4) children. The Complainants further aver that the Respondent State has already
evicted forty-thousand (40,000) residents in the area in what was referred to as
Phase One of the evictions in July 2018. The Complainants submit that these
evictions were carried out in an indiscriminate and inhumane manner, and
without consultation or due process. They contend that the currently planned
evictions, which are the subject of this Complaint, will be carried out in the same
manner.
3. The Complainants describe the Mau Forest Complex as having twenty-two (22)
forest blocks, twenty-one (21) of which are considered to be State Forests and
managed by the Kenya Forest Service. The Maasai Mau Forest, which is the subject
of this Complaint, is the only block that is settled. The Complainants submit that
whereas the previous Constitution of Kenya considered the Mau Forest Complex
as property held in trust by the Narok County Council for the communities that
reside on the land, the current Constitution of Kenya2 makes the complex public
land vested in the county government. The Complainants contend that the new
Constitution does not therefore place the Maasi Mau Forest block within the ambit
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of "national protected area categories", and that the eviction of residents in the
interest of conversation is not justifiable.
4. The Complainants trace the general history of land disputes to the colonial period,
in which the policies of the colonial power led to the seizure of approximately 1.2
million hectors from indigenous Africans in Central Kenya and the Rift Valley.
The immediate history of this Complaint is however traceable to the reallocation
of land within the Narok County in 1999. The Complainants submit that during
this time, five group ranches3 within the Narok County were subdivided and
allocated to individual members of each group under the Land (Group
Representatives) Act, and title deeds granted to the new owners of the land. In the
years following the allocation, members of the group sold their respective plots of
land, on average measuring two (2) to five (5) acres of land, to third parties. The
Complainants submit that there have been further subdivisions, inheritances, sales
and transfer of these plots of land. The Complainants also contend that these
transactions were carried out lawfully, as evidenced by the issuance of title deeds
and the provision of public services such as education and health to the areas
occupied by the third parties, which includes the Victims. The Complainants
further submit that residents of these areas have been granted governmental
representation at the county and national level.
5. The Complainants submit that although efforts to address landlessness in the Rift
Valley have been ongoing since independence, notably through the Million-Acre
scheme implemented by former President Jomo Kenyatta and the relocation of
land to the Ogiek Community, the Complainants contend that these programs
have only gaTnered limited success. Consequently, persons occupying these lands
have continued to suffer from arbitrary interferences in the enjoyment of their
rights. The Complainants submit that the Respondent State evicted fifty thousand
(50,000) persons from the Mau forest in 2005 but retracted its decision in response
to political pressure following elections in 2007. The Complainants contend that
the evictions were undertaken in a discriminatory manner, as land belonging to
politically influential persons was unaffected by the evictions. Furthermore, the
Complainants submit that the Respondent State has failed to implement the
recommendations of the Truth Justice and Reconciliation Commission (TJRC)
published in 2013, which found land disputes to be the single most critical trigger
for conflict in the Rift Valley.
6. The Complainants aver that in July 2018, the Respondent State commenced Phase
One of its evictions, which was undertaken without due process, and affected
approximately forty thousand (40,000) persons, whom the government believed
had been illegally occupying the land. The Complainants submit that the
Respondent State issued a sixty (60) days' notice on 1 September 2019 on the
commencement of Phase Two of its evictions, putting at risk the rights of sixty
thousand (60,000) persons, including the Victims.
7. The Complainants make reference to cases brought before domestic courts in
regard to the eviction of residents of the Mau forest. The Complainants recalled a
case filed at the High Court of Kenya against evictions in 2005.4 In this case, the
Complainants submit that the High Court reprimanded the Clerk of the Narok
County Council with a six month's prison term for contempt of an order to cease
evictions. The Complainants further recall a case filed before the High Court of
Narok, seeking to halt the eviction of forty-thousand (40,000) persons in July 2018.5
In this regard, the Complainants submit that the High Court took a "casual
approach to the threatened evictions", and that consequently, the court declined
to grant any conservatory orders in favour of the applicants. The court in that case
stated that there was no "tangible or imminent" risk to be avoided as the evictions
sought to be avoided had already been carried out. The Complainants also recall
a case filed before domestic courts in regard to the specific subject matter of this
Complaint. In this case, similar to other instances, the Complainant submits that
the courts have failed to halt the planned evictions.
8. The Complainants submit that courts are unlikely to halt the actions of the
Respondent State, as the conservation of the Mau forest is considered to be a "high
priority national project". Alternatively, the Complainants contend that they are
not required to exhaust local remedies where there are widespread and massive
violations of human rights. 6
Articles alleged to have been violated:
9. The Complainant alleges violations of Articles 1, 3, 5, 14 and 17 of the African
Charter.
Prayers:
10. The Complainants request the below Provisional Measures : (a) The Commission to issue Provisional Measures to halt the imminent eviction
of the residents of the Mau Forest Complex. In this regard, the Complainants
submit that primary school pupils in the area are at risk of not being able to
write their National Primary Education exams, which is to take place on 16 4 Kalyasoi Farmers' Co-operative Society & 6 Others v County Council of Narok
5 Joseph Kimeto Ole Mapelu & 12 Others v Cabinet Secretary, Ministry of ~~d!'::lo~sing and Urban
Development & 11 Others
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6 Communication 299 /05 - Anuak Justice Council v Ethiopia (ACHPR),
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20 September and 28 October 2019. Furthermore, the Complainants contend
that the eviction of the 60,000 families will result in "grave and irreversible"
damage to the evictees.
11. The Complainants request the following Prayers of Relief: (a) That the Commission finds a violation of Articles 1, 3, 5, 14 and 17 of the
African Charter; and
(b) That the Commission is seized of this Complaint.
Procedure:
12. The Secretariat received the Complaint on 30 September 2019.
13. At its 65th Ordinary Session, done in Banjul, the Gambia, from 21 October to 10
November 2019, the Commission considered the Complaint and decided to be
seized thereof and also issued Provisional Measures.
14. By letter and Note Verbal dated 9 November 2019, the Secretariat informed the
parties of the decision on Seizure and the Provisional Measures issued, and
requested the Complainants to submit on Admissibility within two (2) months of
the notification thereof, in accordance with rule 105(1) of the Rules of Procedure
of the Commission.
15. By letter dated 4 May 2020, the Secretariat informed the Complainants that the
subject matter of the present Communication may be the same as a case referred
to the African Court on Human and Peoples' Rights, Application 006/12- African
Commission on Human and Peoples' Rights v the Republic of Kenya. The
Secretariat invited the Complainants to make their observations, so as to enable
the Commission to determine an appropriate way forward taking into account all
available information.
16. By letter dated 29 May 2020, the Complainants responded to the above invitation,
stating that the present Communication was compatible with the judgment of the
Court.
17. By letter dated 9 July 2020, the Institute for Human Rights and Democracy in
Africa (IHRDA) informed the Secretariat of its decision of withdraw of legat .-- ._
representation, citing the "serious difficulty" it has experienced in acq
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information from the co-counsel and the Centre for Comparative and International
Law (CCIL).
18. At its 66th Ordinary Session, held from held from 13 July to 7 August 2020, in
Banjul, The Gambia, the Commission amended the title of the Communication to
Communication 735 / 19: Residents of the Mau Forest Complex (represented by the
Centre for Comparative and International Law) v The Republic of Kenya.
Analysis of the Commission on Strike Out:
19. Rule 105(1) of the Commission's Rule of Procedure (2010) provides that when the
Commission is seized of a Complaint, it shall request the Complainant to present
evidence and arguments on the admissibility of the Communication within two
(2) months.
20. Additionally, Rule 113 of the Commission's Rules of Procedure (2010) provides
that when a deadline is fixed for a particular submission, either Party may apply
to the Commission for an extension of the stipulated period and the Commission
may grant the said application.
21. In the present Communication, the Complainants were requested to present
evidence and arguments on Admissibility of the Communication within two (2)
montl1s from the date of notification, which expired on 9 January 2020. However,
the Complainants did not present any evidence and arguments within the
stipulated time and neither did they apply for an extension.
22. Almost three (3) years have lapsed since the expiry of the deadline, and no
evidence or arguments have been submitted by the Complainant on the
Admissibility of the Communication.
23. In light of the above, the Commission finds that the Complainant has not shown
interest in prosecuting this Communication and therefore the Commission does
not have sufficient information upon which to determine the Admissibility of the
said Communication.
24. The Commission takes note of Communication 612/16: Ahmed Mohammed Ali
Subaie v. The Arab Republic of Egypt7; Communication 637/16 and 639/16 Mr.
Mohammed Abdel Hay Faramawy and 2 Ors (Represented by Dr. Abdel Hay
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Faramawy and 4 Ors) v. Arab Republic of Egyp t8; and Communication 387/10:
Kofi Yamagnane v. Togo9 which were similarly struck ou t for want of diligent
prosecution, following failure of the Complainants to transmit submissions on the
Adrnissibility.
Decision of the Commission on Strike Out
25. In the light of the analysis made above, the Commission decid es to strike out this
Communication against the Republic of Kenya, for want of diligent prosecution.
Done in Banjul, The Gambia this 73rd Ordinary Session held from 20 October to 9
November 2022
8
Communication 637/16 and 639/16 Mr. Mohammed Abdel Hay Faramawy and 2 Ors (Represented by Dr. Abdel
Hay Faramawy and 4 Ors) v Arab Republic of Egypt (2019) 1-P ff j'{:\a•,~1,i;:i,:•.
9
Communication 387 /10: Kofi Yamagnane v. Togo (201~ ,el!'f'PR
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