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This month’s blog post is from guest contributor Prof. Rachel Murray. She is a Professor of International Human Rights Law and Director of the Human Rights Implementation Centre, University of Bristol Law School, UK (Rachel.murray@bristol.ac.uk). Her contribution is linked to a larger project on the implementation of judgements of human rights courts. We are incredibly grateful that she has agreed to share her insights here on the Monitor and with our readership!   

Photo: Poster related to the case of Norbert Zongo in Burkina Faso (Credit: Ignace Ismaël NABOLE, obtained via Burkina24.com)

The African Court on Human and Peoples’ Rights (‘African Court’), in finalising cases, has made a range of orders providing reparations for victims of the violations found. These have included the payment of compensation (Zongo et al v Burkina Faso, Ruling on Reparations, para 111), release of an individual from detention (e.g. Alex Thomas v Tanzania, Interpretation of Judgement), as well as guarantees of non-repetition, such as amendment of legislation (e.g. Konaté v Burkina Faso, para 176(8)). Some have been very specific, others more general (e.g. ‘Orders the Respondent State to amend the impugned law, harmonise its laws with the international instruments, and take appropriate measures to bring an end to the violations established’ (APDF and IHRDA v Mali, para 135(x)). Yet, to what extent do the State authorities implement these orders? The African Court has so far chosen to take a light-touch approach to monitoring implementation of its own judgments. It publishes in its activity reports information on what measures the State has taken with respect to each reparation ordered in the judgment or ruling in a simple table format (Activity Report of the African Court 2018, para 18). Whilst this is useful in keeping track of what the State has done it does not use this to make any assessment on the extent to which it considers such measures to be satisfactory or not.  Rather, in only limited circumstances has it taken further action to make such an evaluation (Interim Report of the African Court on Non-Compliance). According to the Protocol establishing the Court, the African Court is to ‘submit to each regular session of the Assembly, a report on its work during the previous year. The report shall specify, in particular, the cases in which a State has not complied with the Court’s judgment’, and the Executive Council of the AU is required to ‘monitor … execution [of the judgment] on behalf of the Assembly’ (Protocol to the African Charter, Articles 31 and 29(2)). Beyond the information published by the Court in its activity reports, there is no one place where one can find what the State has done to respond to the judgment.

Following a commissioned study to examine what role it should play in monitoring its judgments,^[I] the African Court proposed a Draft Framework For Reporting & Monitoring Execution Of Judgments And Other Decisions Of The African Court On Human And Peoples’ Rights (EX.CL/1126(XXXIV)Annex I). This proposes a monitoring role for the Court, under a newly established Monitoring Unit, whereby the State submits ‘execution reports’ to the Unit. The Court then uses these reports, along with information from other sources, including those other than the parties, to assess the level of compliance by the State, adopting a report on each case to that effect. It also proposes the possibility, in the event of lack of full compliance, of compliance hearings, on site visits and adoption of judgments or endorsement of a memorandum of understanding between the parties. The Framework sets out that the Court can issue a compliance judgment. It shares the monitoring of implementation by submitting compliance reports to the AU policy organs, this being considered firstly by the Permanent Representatives Committee, then the Executive Council and finally the Assembly. Support can be provided by the AU organs including through good offices, although ultimately information on the extent of compliance can be published by the Executive Council and Assembly, and the latter also has the possibility of invoking Article 23 ‘in deserving cases’. Encouraging States to adopt action plans, in line with the practice of the European system, is also identified in the Framework.

On the one hand, sharing the monitoring of implementation with political bodies can provide additional tools (as well as pressure) on States to respond. Certainly this is the model adopted by the Council of Europe whereby it is State diplomats in the Committee of Ministers and staff of the Department of Execution of Judgments that monitor implementation of the European Court of Human Rights’ judgments (Çali and Kok; Palmer; Committee of Ministers 2017). Yet this presumes respect for the independence of the judicial body by the political organs, something which is of considerable concern at present in the African system, as reflected in the adoption of the Executive Council decision in July 2018, which was seen as an AU policy organs’ interference in the independence of the African human rights system (EX.CL/Dec.1015(XXXIII); Biegon 2018). The Permanent Representatives’ Committee (PRC), Executive Council and Assembly need to be prepared to uphold the independence of the Court and properly assess State compliance, or lack thereof, with its judgments.

The Human Rights Law Implementation Project

The University of Bristol’s Human Rights Law Implementation Project tracked the implementation of decisions from a number of States in Africa, the Americas and Europe.^[ii]Included among these decisions were App. No. 013/2011 – Abdoulaye Nikiema, Ernest Zongo, Blaise Ilboudo & Burkinabe Human and Peoples’ Rights Movement v Burkina Faso and App. No. 004/2013 – Lohe Issa Konaté v. Burkina Faso before the African Court. The cases related to the assassination of a journalist, Norbert Zongo, and companions, with the Court finding violations of the right to a fair trial and free expression, (Zongo et al) and criminalisation of defamation (Konaté). Burkina Faso was ordered to pay compensation; amend legislation on defamation; expunge the criminal convictions of Konaté; reopen investigations and bring the perpetrators to justice; and publish the judgment in various places at the national level. On the face of these, the State implemented the remedies quickly and in full. It paid the compensation within the six-month time limit; amended legislation; investigations were commenced and individuals prosecuted; and the judgment was published in the official gazette, a national newspaper and online.^[iii] This positive record should be acknowledged. However, the factors determining how and why the State responded as it did are complex. These judgments were adopted in December 2014 (merits) and June 2015 and 2016 (reparations) in the wake of a transition government, as well as presidential and legislative elections. Legislation was indeed amended but there is evidence that national press associations played a key role in pushing for this, using the African Court ruling as a further tool (Interview A.1., 12 December 2017). Compensation was paid but domestic law and rules had to be followed to enable the money to reach the victim (Interview A.4., 13 December 2017). Therefore, even though this is a situation in which the government stated its intention to comply with the Court’s judgment and ruling, various other factors were crucial in facilitating and ensuring implementation.

Recommendations

What these judgments show, and our research supports, is that ensuring implementation is a multi-faceted process, requiring a ‘multi-dimensional’ approach which recognises the specificity and complexities of individual cases.^[iv] For treaty bodies such as the African Court, this has a number of implications.

Firstly, although the African Court has ordered a variety of different types of reparations, it is by no means clear the basis on which it chooses the particular reparation. There does not appear to be a correlation between the violation of a particular right and a reparation being ordered. While this provides the African Court, and indeed the parties, with flexibility in calling for reparations which fit the context, it also fails to offer any guidance to the parties on what they can ask for. Some further assistance from the African Court, even if only to outline the possible reparations that it can order, may be useful.

Secondly, the African Court has been quite visible in providing the information on what the State has done to implement its judgements and rulings. However, this information is only available in its activity report. For those not familiar with how the Court works, the detail is hidden, not immediately visible from the front pages of the website. Our research suggests that one of the challenges with implementation of these types of international decisions is that there is limited visibility of their existence, let alone the measures taken by the State, at the national level (Murray 2019; Interview A.7. December 2017; Interview with civil society representative, Burkina Faso, July 2017; Interview B.2, July 2017; Interview with government official, Burkina Faso, December 2017). Key government authorities, parliamentarians and the judiciary, as well as national human rights institutions and civil society are not always aware of the judgment thus limiting the possibility of a ‘compliance coalition’ developing which can hold the State to account and work collectively towards implementation (Hillebrecht 2014; Hillebrecht 2012). The African Court can facilitate the visibility of its judgments at the national level by being more consistent in calling on the State, as it has done in some of its judgments and rulings (e.g. Mtikila v Tanzania, Ruling on Reparations, para 46), to publish the decision at the national level on a government website and in the national gazette. Furthermore, it could also require that information on the judgment is disseminated on social media. However, it is not just the judgment itself that may not be visible, but also the measures taken by the State to implement it. Consequently, the African Court can go further by requiring that the State publish information on the action it has taken to implement the decision. The African Court could also provide the tables in its activity reports elsewhere on its website to increase their visibility.

Thirdly, implementation is not automatic, even if the executive authorities are keen to comply with the Court’s judgment or ruling. For instance, compensation requires the involvement of other government authorities, such as the treasury or ministry of finance and budgetary considerations need to be taken into account. Amendment of legislation will necessitate the involvement of parliament, an entity independent of the executive and over whom it may have little control; and amendment or introduction of legislation in response to a judgment of the African Court will often be subject to the same rules and procedure as any other piece of legislation prompted by national actors. Release of an individual from custody, for example, will require some form of domestic process to be triggered in order for the judicial bodies to authorise. Some States have a government-committee or body which has the responsibility to coordinate implementation and identify the various elements of the State that need to take action.^[v] Yet, these do not always operate transparently, may not have the broad composition needed to ensure dissemination of the decision or meet infrequently. Follow-up of the judgment can therefore slip between the cracks at the national level, with no one taking the lead on monitoring or ensuring its implementation. For most States, judgments from bodies such as the African Court are very few in number, and consequently a process is most likely often not in place at the national level to manage implementation. To address this, the African Court could, in each of its judgments or rulings on reparation call for the State to appoint within, say, a month, a focal point for that judgment who would take responsibility for coordinating its implementation. This would then provide the African Court with the key interlocutor with whom it could continue any discussions and obtain information on implementation and any challenges. Although the African Court has in the past asked States to identify focal points in the State ‘within the relevant Ministries, to facilitate communication between the Court and Member States (Report of the activities of the African Court 2016, paras 51 and 60(ix)), individual personnel changes can make continuity problematic. Requiring the State to nominate an individual or government department to take responsibility for that particular judgment or ruling at the time it is adopted may help to avoid such difficulties.

Lastly, the communication process is inherently adversarial, pitting the State authorities against the litigants and victims. Yet, what we found in our research is that often, post-decision or judgment, there is a need for some form of dialogue between the parties.^[vi] If the reparation is left open-ended, then the State may need to negotiate with the victims as to what is required. The State equally may not always be clear precisely what is needed to implement the decision or may experience challenges in doing so. The African Court can be requested to interpret its judgment, an opportunity used by Tanzania and Côte d’Ivoire. This gave the Court the ability to clarify further what it required the State to do (Alex Thomas v Tanzania, 2017; APDH v Côte d’Ivoire, 2017; Abubakari v Tanzania, 2017). Whilst such mechanisms should not be used by the State to delay implementation or as a way of evading their responsibilities in providing relief to the victims, they are a form of conversation with the Court post-decision. In other cases in our Project, although not those of the African Court, we also saw that there may be greater consensus between the parties than each may be willing to admit in an adversarial process. Offering some possibility of dialogue between them post-decision can help to move implementation forward. As to whether the African Court, as a judicial body, can play this role needs to be carefully considered, and indeed lessons can be drawn from the experiences of the Inter-American Court on Human Rights in this regard (Inter-American Court, 2015; Rubio-Marín and Sandoval, 2011).

Whatever approach it adopts, the African Court may still wish to consider how it reflects the need for dialogue post-judgment in its rulings. For instance, it could ask the State to identify the focal point responsible for implementation and explicitly requiring that it engage with the victims in the implementation. Further, if there is a national committee such as a National Mechanism for Implementation, Reporting and Follow-up (NMIRF) then the African Court could explicitly recognise, in the reparations, the NMIRF’s role in implementation.

The implementation of the African Court’s judgments and rulings, as with those of any treaty body, is key to its legitimacy and effectiveness. The African Court’s willingness to develop a framework to clarify its role in monitoring how States respond to its decisions is very much to be welcomed.

^[I] As requested by the Executive Council of the AU, Decisions Ex.CL/Dec.806 (XXIV) of January 2016 and Ex.CL/1012 (XXXIII) of June 2018, in which it asked the Court ‘to propose, for consideration by the PRC, a concrete reporting mechanism that will enable it to bring to the attention of relevant policy organs, situations of non-compliance and/or any other issues within its mandate, at any time, when the interest of justice so requires’.

^[ii] www.bristol.ac.uk/hrlip. This was funded by the Economic and Social Research Council (ESRC) and was in collaboration with the Universities of Bristol, Pretoria, and Middlesex and Essex as well as the Open Society Justice Initiative. Interviews were conducted with a wide range of stakeholders. These are anonymous, but referred to below by way of a letter and number, or position of the interviewee where appropriate.

^[iii] African Court, Report on the activities of the African Court on Human and Peoples’ Rights (AfCHPR), 22-27 January 2017, EX.CL/999 (XXX), para 21(i). Interview A1, 12 December 2017. See also http://www.panapress.com/Burkina-Faso-to-compensate-victims-of-political-violence–13-455288-17-lang1-index.html; Interview A.11, December 2017.Interview A7, 23 December 2017; http://www.sig.bf/2015/09/decision-de-la-cour-africaine-des-droits-de-lhomme-et-des-peuples-sur-affaires-norbert-zongo/; List of issues in relation to the initial report of Burkina Faso, Addendum Replies of Burkina Faso to the list of issues*, [Date received: 1 April 2016], CCPR/C/BFA/Q/1/Add.1, 21 April 2016, para 103; Interview A1, 15 December 2017; Interview A.2, 15 December 2017; CHR, HRLIP, Workshop Report, Evaluation by Burkina Faso of their implementation of decisions made by International Human Rights Bodies, Ouagadougou, 27-28 November 2017; Press Freedom and Africa’s Regional Courts: A Positive Model for Transparency and Accountability’, Nani Jansen-Reventlow, http://www.doughtystreet.co.uk/news/article/press-freedom-and-africas-regional-courts-a-positive-model-for-transparency, 22 December 2016; Journal Official Special N°13, 15 October 2016.

^[iv] See various articles in a Special Issue of the Journal of Human Rights Practice forthcoming, 2019.Open Society Justice Initiative (OSJI). 2018. Strategic Litigation Impacts. Insights from Global Experience, Open Society Foundations, New York.

^[v] E.g. Cameroon’s Inter-Ministerial Committee for monitoring the implementation ofrecommendations of the regional and international mechanisms, see R. Murray and C. de Vos, ‘Behind the State: domestic mechanisms and procedures for the implementation of human rights treaty body decisions’, Journal of Human Rights Practice, forthcoming 2019. Sometimes ‘National Mechanisms for Implementation, Reporting and Follow-up’ (NMIRF) or similar have this remit, see OHCHR, National Mechanisms for Reporting and Follow-up. A Practical Guide to Effective State Engagement with International Human Rights Mechanisms, OHCHR, New York and Geneva, 2016, HR/PUB/16/1; OHCHR, National Mechanisms for Reporting and Follow-up. A Study of State Engagement with International Human Rights Mechanisms, New York and Geneva, 2016, HR/PUB/16/1/Add.1; Universal Rights Group, Glion, Human Rights Dialogue, 2016, Human Rights Implementation, Compliance And The Prevention Of Violations: Turning International Norms Into Local Reality, Glion III, Universal Rights Group, 2016; Universal Rights Group, The Fifth Glion Human Rights Dialogue: The Place of Human Rights in a Reformed United Nations, Geneva, 2018.

^[vi] C. Sandoval, P Leach and R Murray, ‘Monitoring, cajoling and promoting dialogue – what role for supranational human rights bodies in the implementation of individual decisions?’, Journal of Human Rights Practice, forthcoming 2019.

The first cross post of the year! Here is Tetevi Davi‘s piece, originally published on Justice in Conflict, on The Gambia’s recent decision to permit individuals and NGOs direct access to the African Court on Human and Peoples’ Rights – and its implications. Tetevi is a visiting Lincoln’s Inn scholar at the European Court of Human Rights. He regularly writes on the work of the African Court and other regional courts in Africa and is a consultant for the African Foundation of International Law.

Photo: Gambia President Adama Barrow following his return to the country and his electoral victory (Photo: EPA)

On 23 October 2018, the Republic of The Gambia deposited its special declaration with the African Court on Human and Peoples’ Rights (‘the Court’). For those who may be unfamiliar with this process, in addition to ratifying the African Charter on Human and Peoples’ Rights (‘ACHPR’) and the Protocol to the Charter, states must also deposit an additional or “special” declaration with the Court in order to allow it to receive applications directly from individuals and NGOs. The African Court on Human and Peoples’ Rights is a continental court that was established by the African Union in 1998 to ensure the protection of human rights in Africa. With the deposition of its declaration, The Gambia becomes the 9th country to permit individuals and NGOs direct access to the Court, following Tunisia, which deposited its declaration in April 2017. A host of interesting implications arise from The Gambia’s deposition of its special declaration.

Growing State Engagement with the Court?

To begin with, it can be argued that The Gambia’s decision to deposit its declaration reflects an increasing willingness of African states to engage with the Court. Although the number of declarations that have been deposited is still low overall, it has recently grown at an increased pace, with 3 out of the 9 states who have deposited their declarations (Benin, Tunisia, The Gambia) having done so since 2016. Prior to this, only 6 declarations had been deposited over the span of almost 20 years. Whilst there was concern that Rwanda’s withdrawal of its 2013 declaration in the wake of the Ingabire affair  would lead to more states following suit, it appears that the reverse has been true, with three more nations depositing their declarations since then. In addition to this, the Court has been coordinating awareness-raising missions with a growing number of African states, which again is indicative of their increasing willingness to engage.

Whilst states’ improved engagement with the Court can be said to be a positive development, any optimism must be tempered by the persistent problem of the weak implementation of the Court’s judgments at the domestic level. The Court’s judgments are binding on states and its Protocol places an obligation on them to execute these judgments. Despite this, the Court’s most recent report on the status of implementation of its judgments shows that, in the majority of cases, states have either outright refused to comply with its rulings or have offered no update on the status of implementation. It is not sufficient for states to provide access to the Court for individuals and NGOs without redressing violations once they have been identified. Much more needs to be done, both by states and also by the African Union at an institutional level, to ensure that Court judgments are complied with.

Shift Towards a Culture of Accountability in The Gambia?

The Gambia’s deposition of its special declaration can also be seen as a manifestation of its desire to bring an end to the culture of impunity which existed during the 22 year rule of former President, Yahya Jammeh. Large-scale human rights abuses are reported to have been committed under the Jammeh regime including extra-judicial killings, torture, rape, and enforced disappearances. The nation’s media were also silenced through a campaign of violence and repressive laws. This repression led to a landmark judgment of the ECOWAS Court in 2015, in which it held that The Gambia’s sedition and libel laws, which had been principally used to stifle the media, were a violation of the right to freedom of expression enshrined in the African Charter, the International Covenant on Civil and Political Rights and in the Revised ECOWAS Treaty. In addition to these egregious human rights violations, it must be recalled that in 2016 The Gambia was on the verge of leaving the International Criminal Court, having notified its decision to withdraw from the Rome Statute to the Secretary-General of the United Nations. This move was interpreted by many as a flagrant attempt to shield the presidentfrom international prosecution for gross human rights abuses, as opposed to being based on any legitimate gripes with the ICC’s functioning.

Since the election of Adama Barrow on 1 December 2016, it has been reported that the human rights climate in The Gambia has improved immensely. Dozens of individuals imprisoned by the former regime, including several politicians and journalists, have been released, and the judiciary has been significantly reformed with a view to promoting independence. In October 2018, the country launched its Truth, Reconciliation and Reparations Commission, which is charged with documenting human rights violations committed from 1994 to 2017 and overseeing the award of reparations to victims, in addition to making recommendations for prosecutions. It is yet to be seen whether this Truth Commission will be effective, but this appeal to restorative justice could have a substantial impact and arguably demonstrates the government’s willingness to address the nation’s fraught past. Two additional initiatives of the Barrow government are of note: the creation of a national Human Rights Commission and Constitutional Review Commission.

Whilst many reports on the work of the Barrow government are positive, the new government also faces criticism. Of particular cause for concern has been its treatment of soldiers from the former regime, a number of whom have remained imprisoned without trial since 2017.  The Barrow government has also been criticised for having not yet amended a law which impinges on the freedom of assembly by requiring people to have a permit to attend public rallies.

Sharia Law v International Law: Another Showdown on the Horizon?

Whilst the new Barrow government officially reversed the decision taken by Jammeh in 2015 to declare The Gambia an Islamic Republic, Islam is still the dominant religion within the country and The Gambia’s Constitution provides that Shariah law governs matters of marriage, divorce and inheritance amongst members of the communities to which it applies. It must be recalled that in the recent case of APDH v Mali (which I discussed here) the Court held that domestic religious law regarding the rights of women must be disapplied to the extent that it conflicts with the rights provided for in international human rights treaties ratified by states. Like Mali, The Gambia has signed and ratified the Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa (‘Maputo Protocol’), the Convention on the Elimination of all forms of Discrimination Against Women (‘CEDAW’) and, in 2010, the Women’s Act 2010 came into force, which incorporates these treaties directly into Gambian Law. Whilst the Act seems to provide a comprehensive set of rights to women in line with those set out in these treaties, it is of note that several of its provisions, for example Article 45 dealing with the right of inheritance for sons and daughters, make such rights expressly subject to personal law, which for the vast majority of Gambians is Shariah law.  It will be interesting to see whether, now that individuals and NGOs can access the Court directly, a similar action to that in the APDH v Mali case will be brought before the Court challenging the application of this law in family matters in The Gambia.

For those who desire to see a greater level of human rights protection on the African Continent, the deposition of The Gambia’s special declaration is a welcome development. Now, not only individuals but also NGOs, with greater resources and expertise, will be able to bring claims before the Court alleging a violation of any human rights treaty that The Gambia has ratified. This is a large step towards accountability for the nation and, should The Gambia faithfully implement any potential rulings against it, it will be yet another sign that the country is ready to turn the page from an oppressive and tumultuous chapter in its history. This news is also encouraging from a broader perspective, in that it demonstrates that more nations are engaging with the Court. As always, however, greater efforts need to be made towards ensuring implementation so that any perceived progress is not merely illusory.

On 26 May 2017 the African Court rendered judgement in the case of African Commission on Human and Peoples’ Rights v. Kenya (Judgement). As background, this case involves a claim by the Ogiek people, an indigenous group who have called the Mau Forest in Kenya home for time immemorial. In October 2009, the Kenyan government served an eviction notice on the Ogiek people, requiring them to leave the Mau Forest within 30 days. Represented by the Ogiek Peoples’ Development Program (OPDP) and Minority Rights Group, the Ogiek people brought a case before the African Commission on Human and Peoples’ Rights, arguing that this eviction, and their decades-long treatment at the hands of the Kenyan Government was in violation of various African Charter rights. I have written about the case before here and conducted an in-depth roundtable in December 2016 with Lucy Claridge, then Head of Legal at Minority Rights Group and Daniel Kobei Executive Director of the Ogiek Peoples’ Development Program, a Kenyan-based NGO, Vice-Chairman of the Hunter-Gatherers Forum (HUGAFO) and Secretary of the Ogiek Council of Elders which you can find here.

There can be little doubt that this judgement will go down as one of the African Court’s landmark cases. In a resounding success, the African Court found in the Ogiek peoples’ favour, finding that Kenya’s actions violated Articles 1, 2, 8, 14, 17 (2), 17 (3), 21 and 22 of the African Charter. On 26 May 2018, the Ogiek people will celebrate this landmark judgement.

I am delighted that we can now catch up with Daniel Kobei one the eve of the Judgement’s one year anniversary celebrations to see what has occured in the past 12 months.

OW: Firstly, congratulations again on your success at the African Court. Going back to 26 May 2017 how did the Ogiek community think the judgement may change their circumstances?

DK: Thank you!

The community had waited for too long for justice to be served. Eight years is a long time. For a child who was born in 2009, she or he would be in Class Two in the Kenyan education system. That is a huge development and for the Ogiek,the ruling  marked the beginning of a new era. They wanted their rights to be recognised  to start enjoying life just like any other ethnic community in Kenya. The African Court did recognize the Ogiek as an indigenous population that is part of the Kenyan people, having a particular status and deserving special protection deriving from their vulnerability.

They had suffered for too long and the African Court’s decision would not only give them cognizance with the government of Kenya, but also trigger it to correct the wrongs they committed against the community. Ejecting them from their ancestral land being a major one, and so the community expected to be settled back to their homes to continue with their normal lives.

OW: Can you provide an update on what has happened since the judgement was rendered?

DK: The community made submissions for reparations in October last year to the African Court through the African Commission. We are awaiting for the African Court’s decision on that

In November last year, the Kenyan government constituted a 6-month term taskforce of 17 members to oversee the implementation of the case. However, it is yet to yield a interim or final report on implementation of the decision for submission to the African Court as mandated in the gazette notice of Nov.10, 2017.

Its tasks include studying the African Court’s decision and other judgements issued by the local courts in relation to the Ogiek’s occupation of the Mau Forest, together with land related laws and policies to see how they address the plight of the Ogiek in the Mau as well as examine the effect of the judgement on other similar cases in other areas of the country.

It must also help establish the registration and ground status of the claimed land and recommend measures to provide redress to the Ogiek’s claim which would include restitution to the original land or compensation with the case or alternative land.

Also,the Kenyan government through the Solicitor General responded to the community’s submission of reparations, and although it was in acceptance of the African Court’s decision,they discounted some of the reparation requests made and outlined unfriendly pre-requisites for implementation of the decision such as exclusion of intermediary parties mainly referring to OPDP and MRG in the implementation process.

 The Kenyan government wants to directly engage with the community and we strongly oppose that proposition. In fact, the community wants us to represent their voice in the process. They trust in us and know that what we are doing is for their own good. There is also mushrooming of fake title deeds even before the real implementation begins.

OW: Has the relationship between the Kenyan Government and the Ogiek peoples’ changed since the African Court’s judgement and if so, how?

DK: It is a mixed kind of relationship. While on one hand we have seen good things come out of it, on the other hand, the community is still in pain from continued abuse of the same rights they went to the African Court to reclaim.

This year, we had one of our own (Victor Prengei) nominated to the Senate to represent the youth. This is the first ever high ranking legislative position to be held by an Ogiek. Again, an Ogiek woman was nominated to the County Assembly of Nakuru, a regional legislative arm in Kenya. An Ogiek too was appointed to the position of assistant chief for Ndungulu location in  Uasin Gishu County in the Rift Valley region.

Nevertheless, the Ogiek are still being pushed out of their lands by people owning fake title deeds. This is really worrying and that’s why we want the government to speed up the process of actualizing the ruling of the African Court.

 OW: The case was only the second involving a transfer from the African Commission to the African Court. How has the relationship between you and the African Commission developed over the past twelve months?

DK: Our relationship has been cordial and throughout,we have maintained constant communication. The Commission passes to us what has been communicated from the African Court and equally delivers our communication accordingly.We do not communicate directly to the African Court but through the African Commission.

Followers of The ACtHPR Monitor’s twitter feed (and if you are not, you can follow us here) may have caught the latest news that Lesotho’s Constitutional Court has just handed down judgement finding that the offence of criminal defamation violates the Lesotho Constitution’s protection of freedom of expression. The judgement is available here and is well worth a read.

This is cause for celebration, especially for those who have long championed for the eradication of defamation as a criminal offence across Africa. What is also great to see is that the Lesotho Constitutional Court relied in part on the African Court’s Konaté judgement (which found Burkina Faso’s criminal defamation laws in violation of the African Charter, as well as other international instruments) as well as the views of the UN Special Rapporteur on Freedom of Expression. On a personal level, given that I am heavily involved in litigating, advising and writing on the African Court and UN Special Rapporteur systems this is really exciting. I am forever the optimist, and a great believer in the systems available to pursue these cases, but I hope this latest result can give everyone, no matter their stance, a little optimism moving forward.

In my experience, when advising on bringing cases before the various human rights mechanisms, one of the most frequently asked questions by prospective applicants (as well as students, other lawyers, activists, journalists etc etc) is will it make a difference? This is entirely understandable. Its easy as the lawyer to set out options and give advice, it is very different for the prospective applicant. They have to live through the often difficult process of explaining what happened, then listening to lawyers, activists and organisations, before making important decisions which is then inevitably followed by a lengthy wait as their case moves through the system.

I hope this latest judgement can therefore serve as encouragement for anyone considering bringing a case, in the midst of a pending case, studying the human rights systems or advocating for change. The Lesotho Constitutional Court has clearly paid careful attention to the continental human rights system and the UN human rights system in reaching its conclusion.

As I say, I am personally optimistic about the human rights systems we have (not that they don’t need improving) but I hope this latest result can give everyone a little bit of optimism moving forward. Bringing these cases can effect real change not only country subject to an application but also far beyond. Congratulations to everyone involved! You can read more on the case on the Southern Africa Litigation Centre’s website here, and once again the judgement can be found here.