Press Statement on the Decision of the Africa Commission of Human and Peoples’ Rights on Kenya MAU Eviction
November 19th, 2019, Nairobi and Banjul
The disturbing specter of human dislocation in Mau perpetrated by the Kenya State has traumatized thousands of innocent Kenyans especially school going children, women and the aged. On 30th September 2019, those with ability to “weep at the face of injustice,” lodged a legal Complaint with the Africa Commission of Human and Peoples Rights based in Banjul, the Gambia, the premier African Union Institution charged with protecting human rights on the continent. This Complaint registered at the African Commission as No. 735/19, was lodged in partnership with the leading human rights institution, the Institute for Human Rights and Development in Africa in the Gambia on behalf of the residents of the Mau Forest Complex. In view of the urgent threat of evictions, the Complaint also invoked the African Charter and requested the Commission for temporary relief, namely provisional measures.
During the 65th Ordinary session of the African Commission on Human and Peoples’ Rights in October/November, the Commission reviewed the Complaint and determined that it had jurisdiction to receive and determine the Complaint. In view of the gravity of the impending evictions, the Commission also proceeded to grant the prayer for provisional measures against the Kenya state requiring the government to cease and desist from evicting the Mau communities and/closing learning institutions. The Africa Commission on Human and Peoples Rights as an independent and autonomous body created by state including Kenya under the Africa Regional Human Rights Treaties invoked Rule 98 Procedure to urgently intervene in the Mau where the state action of eviction will occasion massive human rights violation and irreparable harm.
The Provisional Measure (equivalent to injunctory relief in municipal law) was granted to protect about (60,000) families who are being evicted from the Maasai Mau Complex. In particular, the Commission required that the State to;
(a) Take immediate steps to halt and suspend the eviction of residents of the Mau Forest Complex; and
(b) Refrain from any actions which may interfere with or threaten the exercise of the rights of the residents over the land they currently occupy in the Mau Forest Complex.
In line with its rules and practice, the African Commission on Human and Peoples’ Rights by a letter dated 9th November 2019 addressed to H.E. Uhuru Kenyatta, the President of the republic of Kenya, requested the President to ensure compliance with the Provisional Measures. In simple terms, such compliance with orders which have been in place since the 9th of November requires the government to immediately engage with the Mau residents on how they can enjoy their rights to property until the case is determined. Equally, compliance will require the government shelve and restrain the planned and ill-conceived forced eviction, halt the deployment of security agency that was carrying out the forced eviction exercise and allow free access to Mau residents to move or to stay in their land until the full hearing of the case. Anything short of that is a flagrant violation of the orders of the Honourable Commission.
We therefore, request our President that your Excellency, fully comply with the above provisional measures, communicated to you by the Chair of the Africa Commission on behalf of the Commission in the communication, on 9TH November 2019. It is our fervent hope and desire that the state reports back to the Commission on this urgent Appeal in a few days, in accordance with Rule 98(4 ) of its Rule of Procedure, on the steps taken to implement the Provisional Measures granted.
As a result, we request the following stakeholders to assist towards monitoring the implementation of the provisional measures; the Media, National Human Rights Commission, National Gender and Equality Commission, the Ombudsman, the Police Oversight Commission (to assess police abuses of human rights), Human Rights NGO’s, Kenya Parliament, Law Society of Kenya, Academia, Youth, old and all Kenyans to make sure the State obeys its human rights obligation towards the residents of Mau Complex.
That being said, this Complaint raises serious issues as that seek ventilation before the African Commission. In particular, forced eviction is in violations of the African Charter, notably Articles 3,5,14 and 17, as well as other national, regional and international human rights standards. Agenda 2063, the Africa we want aspire among other things, to respect universal principles of human rights, justice and rule of law. Our desire to see a country of good governance, respect for human rights and rule of law.
Further, we note that Kenya’s commitment to International law is under the searching scrutiny of the international community. We are persuaded that our State bid for the UN Security Council seat, will suffer prejudice if Kenya failed to show respect to its international obligations and commitment. Now more than ever, We wish our own state all the best as it demonstrate to the world its maturity in respecting orders from international and regional institutions. The whole world is watching and monitoring Kenya’s compliance with the measures given by the African Commission.
The Africa Commission has become a key pillar in the human rights landscape in Africa. It has offered many victims of human rights in Africa a much-needed avenue for seeking redress at the regional level. Mussa Faki Mahamat, the Chairperson of the AU Commission in addressing heads of states and government during the January 2018 Summit, emphasized that “the effectiveness and independence of the regional mechanisms are the surest guarantees that this continent will fulfill our human rights aspirations.”
What does this mean:
The import of this decision is that Kenya must be circumspect in seeking to balance development, conservation and human survival. The government must do more in exploring alternative options to eviction in genuine consultation with affected communities, since evictions must be carried out only as a last resort. Kenya government also needs to review its system of registering titles to ensure integrity and protection of the public interest, for to treat one title as a worthless piece of paper is to throw the entire property system in disarray and to undermine certainty of title. Durable solutions to human displacement is critical in leaving no one behind.
Dr. Duncan Ojwang, Lecturer Human Rights Law, Nazarene Law School, and Lead Counsel for the Mau Communities, Nairobi, Kenya. Tel No: +254 728 861 806
Gaye Sowe, Executive Director, Institute for Human Rights and Development in Africa (IHRDA), and Co-Counsel for Mau Communities, Banjul, the Gambia. Tel No. +220 775 1207