President William Ruto addresses the Nation at State House Nairobi, Kenya during the naming of the first batch of the nominated Cabinet Secretaries on July 19, 2024. PHOTO | WILFRED NYANGARESI | NMG
Kenyan President William Ruto this week threatened to pull the country out of the Arusha-based African Court on People’s and Human Rights (ACPHR) over the pressure by residents of a part of the Rift Valley region to be allowed to occupy forest land despite caveats blocking such use.
A minority community, Ogiek, claim the Mau Forest as their ancestral land, a position the African Court entrenched in a decision in 2017, after which political and legal tussles ensued, impacting land registration and development in the region.
On Monday, while addressing the public in Kuresoi, Nakuru County in the Central Rift, the matter came up and the President expressed his frustration with the orders from the continental court restricting the use of the land.
“There is a court in Arusha. They have been taking me in circles, but I have told them they have two options: Either they lift the caveat, or we withdraw membership from that court,” the Kenyan leader said.
He did not name the particular court.
There had been a caveat for years barring people from the land and it was partly lifted by the Ruto administration in September 2023. The government allowed the occupation of 10,000 acres of forest land in the Nakuru/ Olenguruone/ Amalo, Nakuru/ Olengurone/ Cheptuech, Olenguruone/ Chepakundi, Olenguruone/ Kiptagich and Olenguruone/ Ambuske blocks.
But the older caveat hangs over their heads.
In November 2009, two NGOs, Centre for Minority Rights Development (Cemiride) and Minority Rights Group International (MRGI), acting on behalf of the Ogiek community, filed a complaint with the African Commission on Human Rights regarding an eviction notice issued by the Kenya Forest Service, requiring them and others living in the Mau Forest to leave.
On May 26, 2017, the African Court ruled that Kenya had violated the Ogiek’s rights by expelling them from the forest land. The judges agreed with the petitioners that the evictions rendered it impossible for the Ogieks to continue their religious practices which are all linked to religious sites in the Mau Forest.
Later, on June 23, 2022, the Court further ordered Kenya to pay compensation to the Ogiek for the material and moral prejudice they suffered, as well as to take all necessary measures, legislative and otherwise, to identify, delimit and title Ogiek ancestral land and to grant them collective title to such land.
The Kenya government was ordered to pay compensation to the community of Ksh57,850,000 ($441,603) in material damages and Ksh100 million ($763,358) in moral damages.
Where concessions or leases had already been granted over parts of this land, the Court ordered authorities to consult with the Ogiek and the other parties to agree on returning such land or continuing their operations by way of lease or royalty and benefit-sharing with the Ogiek.
Acting on the grounds that the forest was of significant ecological importance, the government had evicted the Ogiek from the forest ostensibly to protect it.
The ACPHR’s decisions have not been implemented.
President Ruto now threatens to withdraw from the Court by the end of December if the caveat is not lifted. He said it had frustrated his government’s promise to issue title deeds there.
The President said that there was no reason for the country to be a member of the regional court “that does not care for citizens”.
“It is not acceptable that citizens are living as squatters because of no act of their fault and because there is a court that does not respect the rights of other people,” he said.
He promised the residents, most of whom occupy the former forest land, that he would sign the instruments to withdraw Kenya’s membership from the court.
Reacting to the threat, African Court Registrar Dr Robert Eno said they were not sure which “Arusha court” the President was referring to.
“There is confusion as to whether he is referring to the African Court or the East Africa Court of Justice,” Dr Eno told The EastAfrican.
Both the ACPHR and the EACJ are hosted in Arusha. While the EACJ is under the East African Community, the ACPHR is an institution of the African Union, and Kenya is a member of both.
The African Court is one of the three regional human rights courts, the others being the European Court of Human Rights and the Inter-American Court of Human Rights.
It was established to protect human and peoples’ rights in Africa principally through judicial consideration of human rights complaints.
As the target audience waits for titles hoping the Kenyan leader’s threat will help end the impasse, legal experts say it will not be easy as stated.
Moronge Obonyo, an international law expert, said the President is trying to look for some scapegoat for his political troubles.
“If you want to pull out of a treaty you give a notice and every treaty will have provisions on how one can withdraw. It’s not something that one can wake up and say we have withdrawn,” he said.
“Even if he withdraws there are the customary rules of international law. You cannot withdraw and then escape the rules of international customary law.”
The President has been facing intense pressure at home after the National Assembly passed the hugely unpopular Finance Bill, 2024 and street protests which have so far claimed at least 50 lives, mostly blamed on the police use of force, not only saw the shelving of the bill but also the sacking of the Cabinet.
Read: Kenya rocked by protests
He has since tried to craft a government that would represent the face of the country’s diversity even as the youth pile more demands.
A man who has internationally projected himself as a pan-Africanist, environmental activist and crusader for change in the global financial infrastructure, he last year hosted the African Climate Summit. Around that time, he ordered those living in gazetted forest lands out, including the Ogiek in a move to appease and align with his projection as a climate sustainability champion.
Now, his remarks in Nakuru counter that projection.
Mr Obonyo says every sovereign has a right to pull out of any international institution, but it is not a right that can be exercised unilaterally.
“He has tried to portray an image of an internationalist, in sync with international trends, climate change and human rights. It paints the country in a bad light if he tries to pull out,” the advocate said.
Yet Kenya, which ratified and deposited instruments for membership of the court in 1992, is not the first country to try to or actually leave the ACPHR. Between 2016 and 2020, four member states, Rwanda, Tanzania, Benin and Cote d’Ivoire, have withdrawn.
Rwanda withdrew in 2016.
In 2019, Tanzania became the second country in the EAC to withdraw the right of individuals and non-governmental organisations to directly access the African Court. Tanzania did not go through with the withdrawal, though.
On November 14, 2019, then Foreign Affairs Minister Palamagamba Kabudi signed a notice of withdrawal and deposited it with the African Union Commission on November 21, 2019. The withdrawal took effect on November 22, 2020. But, after the death of president John Magufuli in March 2021, President Samia Suluhu Hassan’s administration declared that Tanzania had not exited the court.
Liberata Mulamula, then Foreign minister, said: “We have not withdrawn from the court. That is why Tanzania is still the headquarters of the court. We cannot withdraw and still host the court’s headquarters.”
Donald Deya, CEO of the Pan African Lawyers Union, said that the four countries have not withdrawn from the court but “merely reduced the ability of their citizens and CSOs to sue them directly.
“But the said states are still bound by the Court,” he said.
He noted that should Kenya wish to withdraw, the process would take longer than anticipated by President Ruto.
“It is member states, at national level, that exercise their sovereign right to ratify, accede, renounce or repudiate international treaties. In principle, if not in reality, they are accountable to their citizens, and therefore citizens, using Parliament, courts, the streets, the social media streets, can hold governments to account, including reversing a reversal,” he said.
Only six member states have deposited the Declaration under Article 34(6) of the African Court Protocol. These are Burkina Faso, Ghana, Mali, Malawi, The Gambia and Tunisia.
Dr Ruto’s threat might complicate the quest for Kenya to send one of its own, opposition leader Raila Odinga, to the African Union Commission as chairperson.
It also stokes memories of the attempt by Kenya to whittle down the influence of the East African Court of Justice on the state.
Last month, Kenya’s Supreme Court declared that its decisions cannot be subjected to review by the East African Court of Justice (EACJ).
“We hold that domestic courts and regional courts, in this case, the EACJ, do not have a vertical relationship, meaning that decisions of the Supreme Court are not subject to appeal at the EACJ. The EACJ also does not have a merit review jurisdiction over decisions of the Supreme Court,” the bench presided over by Chief Justice Martha Koome ruled.
Then Attorney-General Justin Muturi sought the opinion of the court on the legal consequences and effects of decisions of the EACJ on Kenya's sovereignty.
Earlier, when Dr Ruto and Uhuru Kenyatta won the 2013 presidential election while undergoing trial at the International Criminal Court in The Hague over crimes against humanity allegations emanating from the 2007/8 post-election violence, they attempted to push the AU for support to leave the Rome Statute, which establishes the ICC. In fact, MPs voted to leave the Court. The bid was later abandoned.
