The African Court found a violation of the right to natural resources, as the Ogiek were deprived of their traditional food resources produced by their ancestral land. Unlike the American Convention on Human Rights, the African Charter recognises the right to natural resources as a stand-alone right. The African Commission takes the view that natural resources vest in indigenous peoples inhabiting the land.
Without stating so explicitly, from the right to natural resources. This is a very interesting approach as the right to food is mainly discussed as an aspect of the right to life. This was also the approach taken in the Ogoni decision.
Reading the right to food as a derivate of the right to natural resources holds a crucial advantage: the Ogiek case shows that the causality between the eviction of a group and a violation of their right to life can be difficult to establish. The threshold for finding a violation of the right to food as an aspect of the right to natural resources tends to be lower and renders it easier to claim for local communities.
Free, prior and informed consent
One of the most controversial issues in the field of indigenous and minority rights is the right to FPIC. It is not explicitly mentioned in the African Charter, but has been increasingly discussed by the African Commission and other (sub)regional organizations.
In the Ogoni case, the African Commission derived from the right to a healthy environment (Art. 24) the obligation to provide information and meaningful opportunities to be heard and to participate. According to the Endorois decision, the right to development (Art. 22) requires the FPIC of indigenous communities. The African Court interpreted the right to office 365 database development in light of UNDRIP and found that the Kenyan state had failed to “effectively consult” with the Ogiek (para 210). Besides that, “prior consultations” are required by the right to land under Art. 14 (para 131). In this regard, it missed an opportunity to clarify and extend the African Commission’s position on FPIC.
Nevertheless, the judgement strongly indicates that the African Union organs do not understand the right to self-determination as the only legal source of FPIC. As the right to self-determination is still widely seen as a governmental and an indigenous right, this approach renders it easier to argue for the applicability of FPIC to non-indigenous groups
Conclusion
The judgement of the African Court has been much celebrated amongst indigenous activists. It is a success insofar as it shows that the rights of marginalised communities are increasingly on the African human rights system’s plate and that the African Charter has a particularly great potential to accommodate such claims. A good example for this is the right to food under the right to natural resources, but also the jurisprudence on the right to land. Moreover, the Court seems to assume a broad scope of its collective rights, not limiting them to indigenous groups.