AFRICAN COURT’S DECISIONS: A ‘tall order’ to Kenya, most African Union member states

MONDAY June 9, 2025

By The Tranquility News Reporter, Tanzania

The government of Kenya has apparently admitted that implementing and complying with decisions the African Court on Human and Peoples’ Rights delivers is a hard nut to crack.

Besides Kenya, the continental court had severally ordered the Tanzania government to revoke death sentence, saying it unfairly denies people’s right to life.

Its execution is inhuman, constituting torture, cruelty and humiliation contrary to the African Charter.

However, the Tanzania government has never complied with the court’s orders since; with local instruments adhering to Article 197 of the country’s penal code on death penalty to letter and spirit.

On Wednesday June 4, 2025, Mr Lawrence Ngugi, the Kenya’s Deputy Solicitor General, admitted that the government had not yet fully implemented and complied with decisions delivered in favour of the Ogiek community on May 26, 2017. and June 23, 2022.

Citing the Inter-American Court of Human Rights allotting between eight and 15-year period for respondents to implement and comply with similar decisions, he appealed with the court to consider giving the state an ample time.

Addressing the African Court during a public hearing, Mr Ngugi blamed the Kenyan government’s failure to implement and comply with the decisions of the court on the country’s 2022 general elections, financial constraints, and tedious procedures, among others.

The government, he said, had taken some steps towards implementing and complying with the decisions, including ensuring the Kenya Constitution recognised the existence of the hunter-gatherer community, determining its population, and embarking on a process of establishing the Ogiek Development Fund.

The government had also formed a task force which had been visiting the community to engage its members through public hearing.

The applicants, led by Mr Bahame Nyanduga, the Advocate of the High Court of Tanzania, argued, however, saying the government never went on leave during the general elections.

“Some of the orders demand nothing,” said Advocate Nyanduga, asking the court to order the Kenyan government to come up with a roadmap of the implementation, clearly indicating milestones and timelines.

Some of the orders demand nothing,” Mr Bahame Nyanduga, the Advocate of the High Court of Tanzania defending the Kenyan Ogiek community at the African Court on Human and Peoples’ Rights based in Arusha, Tanzania.

A committee should be formed to monitor the roadmap, proposed Advocate Nyanduga, stressing that the committee should comprise representatives from the Ogiek community, lest their rights continue being compromised.

A report of the committee should be submitted to the court in three months’ time, he added.

The Chief Executive Officer of Pan-African Lawyers Union, Advocate Donald Deya, who is also defending the Ogiek community, said the respondent’s failure to submit an attendance register and minutes of the public hearing sessions purported to be held in the community was evidence that there was no meaningful implementation of the court’s decisions.

Lady Justice Stella Anukam concurred with Advocate Deya, wondering that the Kenya government could not implement even one of the court’s simplest orders to publish a summary of the 2022 judgment in the state’s official gazette within six months.

In 2012, the African Commission on Human and Peoples’ Rights filed Application Number 006/2012 at the court alleging that the Kenyan government had in in October 2009 served the indigenous minority ethnic group and others to move out of the great Mau Forest they settled in.

The government, according to the commission, claimed that the 400,000-hectare forest straddling about seven administrative districts constituted a reserved water catchment zone, and was part and parcel of government’s land under Section 4 of the Government’s Land Act.

The applicant argued that the Kenyan government’s decision would have far reaching implications on the political, social, and economic survival of the Ogiek community.

The decision, the commission alleged, violated Articles 1, 2, 4, and 17(2) and (3) of the African Charter, pleading with the court to order the Kenyan government to halt the eviction of the Ogieks and refrain from harassing, intimidating, or interfering with the community’s traditional livelihoods.

The commission also asked the court to order the Kenyan government to recognise the Ogieks’ historic land, and issue it with legal title that is preceded by consultative demarcation of the land by the government and Ogiek community.

Moreover, the Kenyan government should have revised its laws to accommodate communal ownership of property.

The commission further appealed to the court to order the Kenyan government to pay compensation to the Ogieks for the loss of their property, development, natural resources and also freedom to practice their religion and culture.

It finally asked the court to order the government to lift the Ministry of Lands’ directive restricting transactions for land measuring five acres or less within the Mau Forest.

It argued that the restriction had the potential for causing further irreparable damage to the Ogiek community in the forest.

The court ordered provisional measures during its 28^th Ordinary Session, directing the Kenyan government to report within fifteen days on measures taken to implement the order.

The court clearly stipulates in its 2017 decision that the Ogieks do not degrade the Mau Forest environment, arguing that their hunter-gatherer lifestyle is environment-friendly.

It cautions that evicting them from their ancestral land was tantamount to changing their culture and lifestyle, thus violating their basic human right.

The decision emphasizes that outsiders the government itself had allowed to encroach on the Ogieks’ land and cultivate tea were actually to blame for the destruction of the forest.

In its 2022 decision, the court ordered the government to either evict the trespassers or enter into a special agreement with the Ogiek communityΩ