Why it is not so easy for Kenya to leave the African Court

On Monday, while addressing the public in Kuresoi, Nakuru County in the Central Rift, the issue came up and the President expressed frustration over the mainland court orders restricting land use.

“There is a court in Arusha. They have been giving me the runaround, but I have told them they have two options: either they lift the warning or we withdraw membership of that court,” the Kenyan leader said.

He did not mention the specific court.

For years, there was a caveat preventing people from accessing the land and the Ruto administration partially lifted it in September 2023. The government allowed the occupation of 10,000 acres of forest land in Nakuru/Olenguruone/Amalo, Nakuru/Olengurone/Cheptuech, Olenguruone/Chepakundi, Olenguruone/Kiptagich and Olenguruone/Ambuske blocks.

But the old warning still hangs over their heads.

In November 2009, two NGOs, the 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 concerning an eviction notice issued by the Kenya Forest Service, requiring them and others living in the Mau Forest to leave.

On 26 May 2017, the African Court ruled that Kenya had violated the rights of the Ogieks by evicting them from forest lands. The judges agreed with the plaintiffs that the evictions made it impossible for the Ogieks to continue their religious practices, all of which are linked to religious sites in the Mau Forest.

Subsequently, on 23 June 2022, the Court further ordered Kenya to pay compensation to the Ogiek for the material and moral harm they suffered, as well as to take all necessary measures, legislative and otherwise, to identify, delimit and title Ogiek ancestral lands and grant them collective title to such lands.

The Kenyan government was ordered to pay compensation to the community amounting to 57,850,000 shillings ($441,603) in material damages and 100 million shillings ($763,358) in moral damages.

Where concessions or leases had already been granted over parts of these lands, the Court ordered the authorities to consult with the Ogiek and the other parties to agree on the return of such lands or the continuation of their operations through leases or royalties and profit-sharing with the Ogiek.

Claiming that the forest was of significant ecological importance, the government evicted the Ogiek from the forest ostensibly to protect it.

The decisions of the IACHR have not been implemented.

President Ruto is now threatening to walk out of court at the end of December if the warning is not lifted, having thwarted his government’s promise to issue land titles there.

The president said there was no reason for the country to be a member of a regional court “that does not care about its citizens.”

“It is unacceptable that citizens live as squatters through no fault of their own and because there is a court that does not respect the rights of other people,” he said.

He promised residents, most of whom occupy the former forest lands, that he would sign the instruments to withdraw Kenya’s membership of the tribunal.

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 this refers to the African Court or the East African Court of Justice,” Dr Eno told The EastAfrican.

Both the ACHR and the EAC are based in Arusha. While the EAC is part of the East African Community, the ACHR is an institution of the African Union, and Kenya is a member of both.

The African Court is one of three regional human rights courts; the others are the European Court of Human Rights and the Inter-American Court of Human Rights.

It was created to protect human and people’s rights in Africa, primarily through the judicial consideration of human rights complaints.

While the target audience awaits the titles in the hope that the Kenyan leader’s threat will help end the impasse, legal experts say it will not be as easy as promised.

Moronge Obonyo, an international law expert, said the President is trying to find some scapegoat for his political woes.

“If you want to withdraw from a treaty, you have to give notice and all treaties have provisions on how to do that. It’s not something you can just do all of a sudden and say you’ve withdrawn,” he said.

“Even if it withdraws, there are customary rules of international law. It is not possible to withdraw and then escape the rules of customary international law.”

The President has been facing intense pressure at home after the National Assembly passed the hugely unpopular Finance Bill, 2024 and street protests that have so far claimed at least 50 lives, mostly attributed to police use of force, not only saw the shelving of the bill but also the sacking of the Cabinet.

Since then, he has tried to create a government that represents the face of the country’s diversity, even as young people mount more demands.

A man who has projected himself internationally as a pan-Africanist, environmental activist and advocate for change in global financial infrastructure, last year he hosted the African Climate Summit. At the time, he ordered those living on officially registered forest land to leave, including the Ogiek, in an attempt to appease and align himself with his projection as an advocate of climate sustainability.

Now, his comments in Nakuru contradict that projection.

Mr Obonyo says every sovereign has the right to withdraw from any international institution, but it is not a right that can be exercised unilaterally.

“He has tried to project an image of an internationalist, in tune with international trends, climate change and human rights. If he tries to withdraw, that paints the country in a negative light,” said the lawyer.

However, Kenya, which ratified and deposited the instruments of membership in the Court in 1992, is not the first country to attempt or actually leave the ACHR. Between 2016 and 2020, four member states have withdrawn: Rwanda, Tanzania, Benin and Côte d’Ivoire.

In 2019, Tanzania became the second EAC country to withdraw the right of individuals and non-governmental organisations to directly access the African Court. However, Tanzania did not carry out the withdrawal.

On 14 November 2019, the then Foreign Minister Palamagamba Kabudi signed a notice of withdrawal and deposited it with the African Union Commission on 21 November 2019. The withdrawal came into effect on 22 November 2020. But, following the death of President John Magufuli in March 2021, the administration of President Samia Suluhu Hassan declared that Tanzania had not left the court.

Liberata Mulamula, then foreign minister, said: “We have not withdrawn from the tribunal. That is why Tanzania remains the seat of the tribunal. We cannot withdraw and continue to host the seat of the tribunal.”

Donald Deya, executive director of the Pan-African Lawyers Union, said the four countries had not withdrawn from the court but had “simply reduced the ability of their citizens and CSOs to sue them directly.”

“But these states are still subject to the Court,” he said.

He noted that if Kenya wishes to withdraw, the process would take longer than President Ruto had anticipated.

“It is the Member States, at national level, that exercise their sovereign right to ratify, accede to, renounce or repudiate international treaties. In principle, if not in reality, they are accountable to their citizens and therefore citizens, using Parliament, the courts, the streets, social media, can hold governments to account, including by revoking a revocation,” he said.

Only six Member States have deposited the Declaration under Article 34(6) of the African Court Protocol: Burkina Faso, Ghana, Mali, Malawi, Gambia and Tunisia.

Dr Ruto’s threat could complicate Kenya’s quest to send one of its own, opposition leader Raila Odinga, to the African Union Commission as chairman.

It also evokes memories of Kenya’s attempt to reduce the influence of the East African Court of Justice over the state.

Last month, Kenya’s Supreme Court ruled that its decisions cannot be reviewed by the East African Court of Justice (EACJ).

“We hold that national and regional courts, in this case the Court of Appeal of the Republic of Cyprus, do not have a vertical relationship, meaning that decisions of the Supreme Court are not subject to appeal to the Court of Appeal of the Republic of Cyprus. The Court of Appeal of the Republic of Cyprus also has no jurisdiction to review the merits of decisions of the Supreme Court,” ruled the court chaired by Chief Justice Martha Koome.

Attorney General Justin Muturi then sought the court’s views on the legal consequences and effects of the EACJ’s decisions on Kenya’s sovereignty.

Previously, when Dr Ruto and Uhuru Kenyatta won the 2013 presidential election while on trial at the International Criminal Court in The Hague on charges of crimes against humanity arising from the 2007/2008 post-election violence, they attempted to pressure the AU into supporting their exit from the Rome Statute, which establishes the ICC. Indeed, MPs voted in favour of leaving the Court. The proposal was later dropped.