Protected areas, Indigenous rights and land restitution: the Ogiek judgment of the African Court of Human and Peoples' Rights and community land protection in Kenya

In May 2017, the relationship between conservation and human and Indigenous peoples' rights was considered for the first time by the African Court of Human and Peoples' Rights. In a case brought by the Indigenous Ogiek of Kenya, the Court stated that the preservation of the Mau Forest could not justify the lack of recognition of the Indigenous status of the Ogiek, nor the denial of the rights associated with that status. It also confirmed that the Ogiek could not be held responsible for the depletion of the Mau Forest, and that preservation of the ecosystem could not justify their eviction from or the denial of access to their land. Although Kenyan institutions have still failed to remedy Ogiek rights, the Ogiek have identified a pathway for the Kenyan Government to follow to restitute Ogiek land, following principles of conservation and symbolizing the central role that Indigenous forest dwellers can and should play in forest management. They sought a further ruling from the Court to clarify the steps the Government should take. In June 2022, the Court issued a judgment ordering the Government to grant the Ogiek collective title of their lands through a process of delimitation and demarcation. In the meantime, the Ogiek have established community forest scouts in East Mau to replant native trees and protect the forest from illegal logging. In addition, they have developed an Ogiek community Bio-Cultural Protocol. Here we examine the feasibility of restituting Ogiek land both legally and practically. We conclude with some general comments related to global conservation policy and practice on the restitution of lands and support for Indigenous conservation practices, where protected areas have caused displacement and rights abuses of Indigenous peoples.