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 rep

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 w ithout 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 1 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 garnered 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 - 4Kalyasoi Farmers' Co-operative Society & 6 Others v County Council of Narok 5 Joseph Kimeto Ole Mapelu & 12 Others v Cabinet Secretary, Ministry of L~ d_Jiq~sing and Urban Development & 11 Others , ~_-,:_.,;, --,:i.•,.,i,~;':· .. 6 Communication 299/05 -Anzwk Justice Council v Ethiopia (ACHPR), "~60~ .-~ t~ ~<:\:-:~ · 4 ( ;'.,--...,_ v~ \ .(.; ~- ,_(l~l►e ·,:~·1 · 3 :J \ \ ~- \j. \ -~~~-~~- /·,/ )- 1, f!, ~ ~-~ ~ -: ~~-/ 20 September and 28 October 2019. Furthermore, the Complainants contend II 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 legaJ_ __ representation, citing the serious difficulty" it has experienced in ac,·°!Pt'~~g;;~:·i;.~- II ft-e ~ ✓-;. t \\ ,'// ( J"fi,-\;\~'1 \\I- -'I , , _I~ ,; -}\/; ~11;, · 1'''1 .:1 ' ~ \ •,:;;i.'..(•'\,-~ _ ·-:-ii_~"-- . u·/.·- 1, .. l,!.J "4-4 ("\ 'j t I information from the co-counsel and the Centre for Comparative and International Law (CCIL). 18. At its 66 th 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) montl1s. 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) months 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 tl1e 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 5 Faramawy and 4 Ors) v. Arab Republic of Egypt8; and Communication 387/10: Kofi Yamagnane v. Togo9 which were similarly struck out for want of diligent prosecution, following failure of the Complainants to transmit submissions on the Admissibility. Decision of the Commission on Strike Out 25. In the light of the analysis made above, the Commission decides 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) ~ff,e~;·.111,_.1,ii:. •.. 9Communication 387/10: Kofi Yamagnane v. Togo (201~ ~-;jlfpR ,EG•,<'J ~~.:'t::·.\.' ~"! I /c __ ..,_, ' L~ \ ~ ( i,ft,,'r;.. \ , .,.. ' ..; ,. ' " ' \ ' I , : 6 "' :1· 1 I; :- ~ l t· ~ \ 'f~ ~;, ' t'· ·. ,,, -,'j l \ .~~:~ /·~ .11· .:,.·... // -.~·-~- - . ·----~ _/