Fourth, the judgment reinforced an evolving recognition that for rural peoples generally a principal human right is the right to land.
Related, and fifth, this adds a nail in the coffin of the once continent-wide insistence that customary ownership of Africa does not count, and that colonial notions of what constitutes lawful possession or ownership must always prevail. Not only those who define themselves as indigenous peoples — around 25 million people in Africa — but all customary landowning communities can in future look to this judgment to help secure their rights through fair means. Despite rapid urbanisation, the numbers of rural Africans will approach one billion by 2050. The majority own and use lands under customary law.
Sixth, the cavalier misuse of the ‘public interest’ also received a long overdue knock. The right to be consulted about changes profoundly affecting rights and freedoms gained a stronger foothold in the judgment, in ways that will impact upon millions who face evictions from their customary lands for dubiously justified public interest.
Seventh, it will be less easy for the government to persist in ignoring comparable rulings. These include the African Commission’s quasi-judicial judgment in 2010, challenging the eviction of Enderois to make way for tourist developments; the 2014 order of the Environment and Land Court in Nairobi to government to cease depriving Ogiek of their rights through evictions; and the court injunction granted to the Sengwer forest people against their eviction from the Embobut Forest in 2013.
Eighth, donors, many of whom appear to have kowtowed to the government’s position that eviction is inevitable to serve conservation, will need to rethink this position to keep within the law, and brush up their knowledge of modern conservation strategies around the world.
Ninth, the African Court has strengthened evolving recognition of its judicial independence, by seeing through a case with known implications for millions around the continent.
KENYA’S CONSTITUTION WINS
Tenth, and of most importance to this column, is the added grist this judgment gives to the mill of the people’s Constitution. In important ways, the African Court could not have ruled otherwise than it did. The Constitution already requires de facto consent to projects affecting people through its clever provisions for fair administrative action.
Commitments against arbitrary deprivation of property of any description, to redress disadvantages suffered by groups because of past discrimination, and the inclusion of hunter-gatherer and pastoral communities as among the nation’s most marginalised, are already enshrined in the Constitution and being tested in the courts.
Provision for community lands (and through the new forest law, community owned forests) already exists. Most directly, the Constitution establishes that the ‘ancestral lands and lands traditionally occupied by hunter-gatherer communities’ is a category of community property.
The challenge now is to make all this real on the ground. This includes fashioning forest rehabilitation and conservation around these democratic realities. Kenyans need to ensure that the government respects and follows this judgment of an important African court.
By LIZ ALDEN WILY
The author is a fellow at Katiba Institute