Webinar: The Ogiek Victory: A Closer Look at Strategic Litigation for Land Rights (2 Aug, 2017)

Take a closer look at how the Ogiek community took victory after suing the Kenyan government for evicting them from their ancestral lands.

We were joined by land rights experts @LucyClaridge, @dkobei, @jeremiegilbert, and @danielaikawa. This conversation was moderated by @rachaelknight.

Access the full recording here

View full notes from the recording here.

Background:

In May, the African Court on Human and People’s Rights ruled in favor of the Ogiek community who sued the Kenyan government for evicting them from their ancestral lands. This was the first time the African Court, in operation since 2006, ruled on an indigenous peoples’ rights case, and sets an important precedent for other indigenous land rights struggles in the region.

The Ogiek victory is the latest step in a growing effort by indigenous peoples around the world who are turning to the courts to demand creation and implementation of emerging legal protections. A new study from the Open Society Justice Initiative details efforts in Kenya, Malaysia, and Paraguay to use strategic litigation to safeguard indigenous land rights and thereby protect proxy rights, such as the right to life, education, health care and culture.

The topic of strategic litigation for indigenous peoples’ rights has relevance for the legal empowerment movement – both as a strategy for achieving substantive progress on protections for indigenous rights and as a way to increase the sense of legal empowerment and rights awareness within indigenous communities.

This webinar shared the story of how and why the Ogiek community mobilized to pursue a case in the African Court of Human and Peoples’ Rights, as well as shared wider lessons and strategies from other communities and countries. Presenters and participants described the legal cases and research that they have been involved with and discussed central questions about strategic litigation for indigenous rights, including:

  • Is high-level or strategic litigation a strategy that all organizations and advocates working on indigenous land rights should consider? Why/why not?
  • When is it appropriate to use strategic litigation? How do you decide that this is the best strategy, given the cost, length of time, reliance on global experts/law firms, etc.?
  • If an NGO/national organization wanted to pursue strategic litigation, how should they go about making this happen? What steps to take to prepare? How to push a case through the necessary levels of domestic courts etc.? How to choose the right advocates to take your case? How to fundraise for this, etc.
  • What are the downsides of strategic litigation?
  • How can you get a recalcitrant government that has refused to follow their own high court’s ruling to begin implementation? How can rulings be turned into action?

Get to know the presenters:

Daniel Kobei (@dkobei) is the Executive Director of the Ogiek Peoples’ Development Program (OPDP), a Kenyan non-profit organization that works to improve and enhance the attainment of inclusive and of equal opportunity in the economic, social, cultural, and political conditions of the Ogiek community and active participation in the building and sustaining a vibrant Kenyan nation.

Daniela Ikawa (@danielaikawa) is the Coordinator of the Working Group on Strategic Litigation at the International Network for Economic, Social and Cultural Rights in New York. She teaches in the Human Rights Studies M.A. Program at Columbia University and has published over twenty books and articles on human rights in the United States and Brazil. For the last five years, Daniela has worked on the implementation of decisions on indigenous peoples’ rights in Latin America and Africa.

Jérémie Gilbert (@jeremiegilbert) is Professor of Human Rights Law at the University of Roehampton (United Kingdom). He has extensively published on the rights of indigenous peoples, looking in particular at their right to land and natural resources. Jérémie has served as a consultant for several international organisations and regularly works with non-governmental organisations supporting indigenous peoples’ rights. He has worked with several indigenous communities across the globe, and he is currently involved in supporting litigations, providing expert witness statements, affidavits and supporting evidence gathering in front of national or regional courts to support indigenous peoples to have their right to land officially recognized and protected.

Lucy Claridge (@LucyClaridge) is Legal Director at Minority Rights Group International, where she manages the legal department. Her work uses strategic litigation, advocacy and capacity building to improve access to justice for minority and indigenous communities worldwide, with a particular focus on land rights, political participation and wider anti-discrimination issues. Casework includes the recent Ogiek land and conservation case against Kenya before the African Court of Human and Peoples’ Rights.

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from Chistopher Banks, United Kingdom:

There are many communities that have good claims to make against exploitative development initiatives. As an organisation with limited resources, how should we prioritise the communities to help and those to leave behind?

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1. It is victory for the Ogiek community and many other indigenous communities but the question is will Kenya government honor that victory?

2. If Kenya government honor the victory will they be willing to implement?

3. If they will implement what is the approximate that we will see it being implemented?

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Good point. Take this one. A fish pond not protected, not benefiting the communities drowns a pupil. The authorities just assists in the burial as compensation. How do you look at this ?

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MRG and OPDP will work together closely to see that the case is implemented, using a variety of strategic techniques and tactics. It may take some time, but given the Community land law allows restitution of Ogiek land, there is every reason to believe that implementation is possible.

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