Authored By: Asive Zamantlele Mathenga
University Of Fort Hare
CASE SUMMARY
1 Case Title and Citation
African Commission on Human and Peoples’ Rights v Kenya (App No 006/2012) [2022] AfCHPR 3.
2 Court Name and Bench.
2 1 Court Name: The African Court on Human and Peoples’ Rights (AfCHPR)
2 2 Bench: The bench for the merits judgment of 26 May 2017 was composed of the following seven judges:
- Justice Sylvain ORÉ (Côte d’Ivoire) – President
- Justice Ben KIOKO (Kenya) – Vice-President
- Justice Gérard NIYUNGEKO (Burundi)
- Justice El Hadji GUISSÉ (Senegal)
- Justice Rafaa BEN ACHOUR (Tunisia)
- Justice Solomon B. BOSA (Uganda)
- Justice Angelo V. MATUSSE (Mozambique)
3 Date of Judgement
Date of Judgment: 26 May 2017.
4 Parties involved
The applicant: The African Commission on Human and Peoples’ Rights (ACHPR).
Respondent: The Republic of Kenya.
Beneficiary Community: The Ogiek Indigenous People of the Mau Forest in Kenya.
5 Facts of the case
This case was filed before the African Commission on Human and Peoples’ Rights (African Commission) on 23 January 2006 by the Open Society Justice Initiative (OSJI) and the Institute for Human Rights and Development in Africa (IHRDA) on behalf of the Nubian community of Kenya as complainants. The case arose from the historical hardships faced by the Nubian community, whose recognition as Kenyan citizens remained disputed and caused difficulties in obtaining citizenship-related documents, despite them being in the country for over a century. Estimated to number around 100,000 at the time of filing, the Nubian community in Kenya are descendants of a group originally brought from Sudan to serve in the East Africa Rifles within the British colonial army.
After completing their service, the Nubians were neither granted British citizenship nor repatriated to their original homeland in the Nuba Mountains, located in the central part of the Republic of Sudan. Instead, they were permitted to settle in various parts of Kenya, with a substantial number living in what would become modern-day Kibera within Kenya’s capital, Nairobi. Kenya gained independence on 1 June 1963. However, the citizenship status of the Nubian community remained unresolved and led to a series of serious violations, primarily their nonrecognition as Kenyan citizens and denial of access to identity papers.
This then paved the way for further violations regarding political participation and the enjoyment of economic, social, and cultural rights. Based on this, the Nubian community began seeking legal redress. The litigation started in the Kenyan judiciary but was ultimately hindered on procedural and substantive grounds.
The Nubian community’s case, which was filed at the Kenyan High Court in March 2003, was hindered by a series of unreasonable administrative obstacles that lasted over a year. For example, the community was instructed to obtain 100,000 affidavits to verify the identities of those on whose behalf the case was filed.19 Furthermore, the case file was presented before five different judges but failed to advance on the merits: numerous letters to the Chief Justice seeking guidance on the matter went unanswered.20 Substantively, the Kenyan Constitution before 27 August 2010 contained a Bill of Rights that only protected civil and political rights. This meant there were inadequate remedies at the national level to address the violations raised by the Nubian community related to group rights and economic, social, and cultural rights. It was based on this that the community sought redress before the African Commission.
6 Issues Raised
- The issues were whether the Kenyan state had violated various rights under the African Charter with respect to the Nubian community that their right contained in article 2 of the charter which states that Every individual shall be entitled to the enjoyment of the rights and freedoms recognised and guaranteed in the present Charter without distinction of any kind such as race, ethnic group, colour, sex, language, religion, political or any other opinion, national and social origin, fortune, birth or any status. And article 3, which provides that every individual shall be equal before the law and every individual shall be entitled to equal protection of the law.
- Another was whether the complainant’s complaint was admissible to the committee in terms of article 55 of the African Charter on Human and Peoples Rights.
7 Argument of the parties
Key contention by the Appellant:
- Violation of Property Rights in terms of Article 14 of the African Chapter on Human and People’s Rights.
- Violation of Cultural Rights in terms of Articles 17(2) & (3) of the African Chapter on Human and People’s Rights.
- Violation of Religious Rights in terms of Article 8 of the African Chapter on Human and People’s Rights.
- Violation of Rights to Free Disposal of Wealth & Natural Resources in terms of Article 21 of the African Chapter on Human and People’s Rights.
- Violation of the Right to Development in accordance with Article 22 of Article 21 of the African Chapter on Human and People’s Rights.
- Violation of Non-Discrimination in accordance with Article 2 of the African Chapter on Human and People’s Rights.
- Failure to Uphold “Satisfactory Environment” in accordance with Article 24 of the African Chapter on Human and People’s Rights.
Key contention by the Respondent: Kenya’s defense largely relied on state sovereignty, the public interest in conservation, and legal formalism.
- Sovereignty and Public Interest
- Denial of Indigenous Status and Customary Ownership
- Legal Justification for Evictions
- Procedural and Jurisdiction Objections
- Development and Integrity Argument
Statement of Relevant Law
Articles 2 and 3 of the African Charter on Human and Peoples’ Rights, the right freedom and equality before the law.
6 Final decision
The Court upheld the arguments of the African Commission and dismissed the defenses of the Republic of Kenya. It found that Kenya had violated the African Charter on Human and Peoples’ Rights. The appellant won. Therefore, the appeal was allowed. Kenya is legally bound to give the land back, pay compensation, change its laws to protect indigenous rights, and to stop all evictions.
9 Legal Reasoning
On the issue of admissibility, the Admissibility of Communications brought pursuant to Article 55 of the African Charter is governed by the conditions stipulated in Article 56 of the African Charter. This Article lays down seven (7) conditions, which generally must be fulfilled by a Complainant for a Communication to be declared Admissible. There The Complainants argued that they fulfil all seven requirements stipulated in Article 56 of the African Charter, including fulfilling the conditions of Article 55 of the seven conditions, the Respondent State claims that the Complainants have failed to fulfil Article 56(5), for example, “Communication relating to Human and Peoples’ Rights shall be considered if they are sent after exhausting local remedies, if any, unless it is obvious that this procedure is unduly prolonged.” The African Commission, having looked at all the issues arising from this matter and taking into consideration the desperate situation of the Nubians, held that the Government of Kenya has not met this burden of proof because it has not shown that Complainants have any adequate and effective remedies. The African Commission is of the view that the Complainants in the circumstances are unable to utilize local remedies mainly because of many procedurals and administrative bottlenecks put in their path. Furthermore, concerning the issue of the alleged violation of articles 2 and 3 of the Charter, the Complainants submit that Kenyan Nubians are treated differently in the acquisition of identity documents because of their ethnicity and their religion, for which there is no justification, amounting to unlawful discrimination in violation of Articles 2 and 3 of the Charter. The Complainants argue that African human rights law prohibits any unjustified difference of treatment as discrimination. They argue further that Article 2 of the Charter entitles individuals to the enjoyment of the rights and freedoms guaranteed under the Charter “without distinction of any kind such as race, ethnic group, colour, sex, language, religion, political or any other opinion, national and social origin, fortune, birth or other status.
On the merits, the Kenyan state was found to have violated various rights under the African Charter with respect to the Nubian community. Kenya was held to have violated the right to freedom from discrimination (article 2) and the right to equality before the law and equal protection of the law (article 3) as it was established that the Nubian community had been subjected to the vetting process, which was deemed arbitrary, lacking foundation in Kenyan law, prone to abuse and furthered marginalisation which made it both irrational and unjustifiable.
10 Conclusion
The African Commission instructed the Kenyan state to implement various remedies. First, they were required to put in place objective, transparent and non-discriminatory criteria and procedures for the determination of Kenyan citizenship. Second, they were required to accord recognition and security of tenure for the Nubian community with respect to Kibera while also ensuring that any evictions from Kibera were compliant with international human rights standards.
