Revisiting the Endorois and Ogiek cases: is the African human rights mechanism a toothless bulldog?

The African Charter on Human and Peoples’ Rights (African Charter) has been lauded and criticised in equal measure. One of the distinct features of the Charter, which is absent in other universal and regional human instruments, is the conception of collective rights. The African Court on Human and Peoples’ Rights (African Court) and the African Commission on Human and Peoples’ Rights (African Commission) have handed down decisions in landmark cases such as the Ogiek and Endorois cases. These decisions are celebrated by affected groups as well as non-governmental organisations (NGOs). However, the Court and Commission’s interpretation of the African Charter still leaves some questions unanswered. The Kenyan government has also been reluctant to implement these decisions despite pressure from stakeholders including the United Nations treaty bodies such as the Human Rights Committee and the Committee on Economic, Social and Cultural Rights, as well as NGOs. This case discussion undertakes a desk review of the two cases and relevant literature to provide an analysis of the African human rights framework and to determine whether it is effective in securing the rights of minority and indigenous groups. This analysis focuses on the Commission and the Court’s interpretation of the relevant provisions of the African Charter, their implications and the challenges faced in promoting and protecting human rights as envisioned by the Charter. Drawing from the two case studies, the analysis concludes that the existing African human rights mechanism is indeed adequate but more needs to be done to ensure that the rights of minority and indigenous groups are protected. The case discussion also offers recommendations on how the current framework can be improved in this regard.