The African Court on Human and People’s Rights has ordered the government to pay the Ogiek community Sh157 million in compensation for material and moral damages.
In ruling in Arusha, the judges dismissed objections by the government and ordered it to pay the community Sh57.8 million for material damages and Sh100 million for moral damages, including restitution.
“…the court, in the exercise of its equitable jurisdiction, ordered that the respondent state must compensate the Ogiek with the sum of Sh57,850 000 for the material prejudice suffered.”
The court delivered its judgment on the merits of the application on May 26 2017. It found that the government had violated the rights of the Ogiek under Articles 1, 2, 8, 14, 17(2) and (3), 21 and 22 of the Charter.
The court also noted that the violations alleged by the Ogiek established in its judgment of May 26 2017 remained unaddressed up to the time it was considering reparations.
To ensure all registered Ogiek of Mau Forest benefit from the outcome of litigation, the court ordered the government to State to establish a community development fund for the Ogiek which should be a repository of all the funds ordered as reparations in the case.
It was further ordered that the community development fund should be used to support projects for the benefit of the Ogiek in health, education, food security, natural resource management and any other causes beneficial to the well-being of the Ogiek as determined from time to time by the committee managing the fund.
“The respondent state was thus ordered to take the necessary administrative, legislative and any other measures to establish this fund within 12 months of the notification of this judgment.”
The court held that comprehensive reparations needed to take into account harm suffered by the Ogiek in relation to the infringement of their rights. In the present application, the court noted that while it was not possible to allocate a precise monetary value equivalent to the moral damage suffered by the Ogiek, nevertheless, it could award compensation that provided adequate reparation.
In determining reparations for moral prejudice, the court confirmed that it takes into consideration the reasonable exercise of judicial discretion and bases its decision on the principles of equity.
The court confirmed that moral prejudice includes the suffering and distress caused to the direct victims and their families, and the impairment of values highly significant to them, as well as other changes of a non-pecuniary nature, in the living conditions of the victims or their family.
The government had asked the Court to allow it to consider ordering an amicable settlement but the court dismissed the plea.
“In the present application, given the failure of an amicable settlement procedure at the merits stage, and also the parties’ failure to agree on the procedure at the reparations stage, the court held that the conditions for an amicable settlement were not satisfied. The respondent state’s prayer was thus dismissed,” part of the ruling read.
The government had opposed Ogiek’s prayer for restitution of their ancestral land in Mau Forest by means of delimitation, demarcation and titling noting that the community had misinterpreted the findings of the court in relation to the ownership of the Ogiek ancestral land.