Beyond Anthropocentrism: A Post-humanist Critique of African Commission on Human and Peoples’ Rights v Kenya [2017] 2 AfCLR 9

Factual Background

The dispute was between the Ogiek indigenous group and the government of Kenya. The government had evicted the Ogiek from the Mau Forest on the grounds that it needed to conserve the forest despite the fact that they allowed activities such as logging and agriculture to continue within the forest. Following which, the Ogiek brought a claim against the government in the Kenyan High Courts in 1997 and 1998 to challenge their eviction from the Mau Forest. They argued that their removal from the forest violated a number of their rights as laid out in the African Charter on Human and Peoples’ Rights including their rights to property, culture, and religion, among others. However, the courts ruled against the Ogiek and in favor of the government’s conservation of the forest. In 2009, when the Ogiek were once again threatened with eviction, they, through CEMIRIDE and MRG, filed a complaint with the ACHPR that their rights to land and culture were being violated. In November 2009, the ACHPR issued Provisional Measures and ordered Kenya to stop the eviction of the Ogiek people. In 2012, the case was referred to the ACtHPR pursuant to Article 5(1) (a) of the Protocol to the African Charter on Human and Peoples’ Rights on the Establishment of an African Court on Human and Peoples’ Rights.

Legal Issues

The Court had to determine if Kenya had violated the ACHPR in its treatment of the Ogiek community and the Mau Forest. Key issues included the rights of the Ogiek to ancestral land, freedom from discrimination, cultural preservation, and their spiritual connection to the forest.

While the case was framed as a human rights dispute, the underlying philosophical issue was, was the forest something, which belonged to different human groups or was it something, which had its own rights. However, the issue of the rights of the forest was not raised by the parties, and both the ACHPR and the Court treated the forest as an object of human ownership.

Key Arguments

The Ogiek, claimed that the eviction was a violation of the community’s fundamental rights. By removing the Ogiek without consultation or compensation, the Kenyan government had denied them their right to property, cultural identity, and religious freedom. They also noted that, while the Kenyan government claimed conservation as its primary reason for eviction, it had allocated parts of the Mau Forest to private companies for logging and agriculture, highlighting the hypocrisy of its argument.

The Republic of Kenya, defending its actions, claimed the eviction was necessary for environmental conservation. The government argued that human activities including settlement, farming and deforestation, posed a significant threat to the delicate ecosystem of the Mau Forest. Furthermore, the government argued that the Ogiek had assimilated into modern society and no longer depended on the forest for their survival, and therefore, their removal would not significantly impact their way of life.

Decision of the Court

The African Court on Human and Peoples’ Rights ruled that, the Ogiek had a special connection to the Mau Forest, and their forced eviction was a violation of their right to property under Article 14. Additionally, the Court ruled that the eviction infringed upon their cultural and religious rights under Articles 8 and 17 as their traditions were closely linked to the land. The Court also dismissed Kenya’s claim that the eviction was necessary for conservation and noted that the government had failed to prove that the Ogiek’s presence in the forest was the primary cause of environmental degradation as large scale deforestation was primarily driven by state-sanctioned logging and agricultural expansion.

Reasoning

The court at all times treated this case as a conflict between human interests and the Court remained human centric treating the forest as an object of human ownership rather than recognizing its intrinsic rights. The key factors, which the court considered during the matter were,

• Recognition of the Ogiek as Indigenous: The Court established the Ogiek’s indigenous status (Para 105) and held that they had a historical connection to the Mau Forest and had been systematically marginalized. (Para 112)
• Violation of the Right to Property: The Court held that the Ogiek had a collective right to occupy and use their ancestral land (Para 128). It ruled that Article 14 of the Charter allowed for land expropriation, when necessary, proportional and in the public interest. Kenya’s argument for conservation was dismissed as commercial logging and land allocations were the primary causes of deforestation. (Para 130)
• Environmental Conservation vs. Human Rights: The Court dismissed Kenya’s claim that the eviction was necessary for conservation (Para 190). It noted that no evidence was provided to show that the Ogiek’s presence harmed the forest, while government sanctioned deforestation was well documented. (Para 191)

Commentary and Opinion

The decision of the Court, while progressive in protecting indigenous land rights, remained anthropocentric, focusing on who had the right to control the land rather than questioning if ecosystems should have legal protections. A posthuman legal perspective would challenge this by questioning if ecosystems such as forests and rivers should be recognized as legal entities with rights, a position, which has already been adopted in countries such as Ecuador, New Zealand, and Colombia. Instead of redefining conservation laws to protect ecosystems, the Court treated the environment as a competing interest, which was weighed against human claims to land. This reinforced the underlying legal assumption, that land must always be owned and governed by humans, missing the opportunity to treat the Mau Forest as a legal entity and extending justice beyond human-centered views.

The opportunity ACtHPR missed in this case would be not applying the “Posthuman Theory of Equality” – a theory that goes far beyond the conventional, humanistic paradigm and seeks to extend the very concept of justice beyond the limitations of humanity-centered discrimination. Imagine if a factory dumped its wastes into a river. As it polluted water, fish, and other wildlife, as well as several dependent communities, were adversely affected. Traditional justice might focus only on human victims, but what if the river itself had rights? What if the law recognized the environment as more than just a resource for humans? This is where the Posthuman Theory of Equality comes in, it challenges the very notion of humanity-centered legal protection and promotes a new, more inclusive, and far-reaching approach to equality. Interestingly, this theory does not seek to undermine or diminish the status of human rights but rather expand and update the existing paradigm to include other considerations. When applied to the case at hand, a posthuman approach would go beyond the discussion of the Mau Forest evictions as a single human-centered phenomenon and raise fundamental ethical questions about what justice truly means, when all living things are viewed as equal players in the game of life.

The posthuman theory owes much to several pioneering philosophers and thinkers, namely Rosie Braidotti, Bruno Latour, and Donna Haraway. Braidotti’s opposition to “human exceptionalism” promotes a “posthuman ethics” in which non-human animals, plants, and other sentient or non-sentient forms of life are regarded as equal to humans in terms of having or not having rights. Similarly, Haraway’s notion of “companion species” promotes a relationship-based approach to equality that transcends the human-nature divide.

This philosophy is based on four core principles. First of all, relationality focuses on the bonds, connections, and interactions between humans and other species. Second, multi-species justice emphasizes the need to consider not only humans but also non-human animals, plants, and other life forms in achieving global equality. Third, decentering the human is another guiding principle that challenges the age-old, humanity-centered approach and promotes a more comprehensive view of justice. Finally, fluidity and hybridity prioritize the complexity of various relationships and interactions between species, advocating for a more flexible approach to equality and justice.

In my opinion, the ACtHPR’s approach to the case was rather limited by current human-centered paradigms and failed to consider various aspects of the Ogiek’s rights in terms of their connection to the environment and other species. Even though, ACtHPR rightly acknowledged the Ogiek’s close relationship to the Mau Forest; however, posthumanism encourages us to consider not only human rights but also the rights of nature and how their violation adversely affects humans. By failing to consider the Mau Forest as a rights-holder, however, the court essentially ignored a crucial aspect of the case, namely the environmental damage caused by the government. Several international jurisdictions, namely Ecuador (Art. 71), New Zealand, and India, have recently granted legal personhood to certain elements of nature, thereby promoting a more comprehensive and effective approach to environmental protection.

A posthuman approach to the case would not undermine human rights but rather ensure their long-term sustainability by promoting a comprehensive approach to equality that encompasses not only human rights but also the non-human elements of our lives. In other words, posthumanism does not seek to diminish human rights but rather update the existing paradigm to ensure that humans, animals, plants, and the environment are treated with equal respect and consideration.

Concluding Remarks

The case of African Commission on Human and Peoples’ Rights v Kenya illustrates the limitations of humanity-centered equality and justice paradigms in addressing the complex, multi-faceted discrimination experienced by indigenous communities. While the ACHPR’s ruling is a step in the right direction in terms of recognizing the Ogiek’s rights, its approach was severely limited by the anthropocentric bias that continues to undermine much of the existing human rights legislation. A posthuman approach to the case would have been more nuanced in its approach to the Ogiek’s discrimination, emphasizing the interconnectedness of all life forms and updating the existing discrimination paradigm that has been in place for centuries.