The jurisprudence of the African Court and the East African Court in protecting Indigenous land: An assessment of the Ogiek and Serengeti Cases in the Context of Forced Evictions Driven by Carbon Credits Associated with Green Grabbing

By Nabintu wa Nciko Laetitia

DOI: https://doi.org/10.5281/zenodo.20545532

Abstract

The African Court delivered two separate judgments–on merits and reparations–in African Commission on Human and Peoples’ Rights v Republic of Kenya (the Ogiek case). It found Kenyan government liable for forced evicting the Ogiek from their ancestral land, violating their land’ rights associated rights and ordering reparations. Despite these judgments, reports in 2023 show the Ogiek facing renewed forced evictions. This follows Kenya’s agreement with a UAE-based company, Blue Carbon, to develop carbon credit projects. Carbon credits rest on the assumption that the Global South’s public assets, particularly forests, can be mobilized to help the big emitters reduce their emissions. However, scholars and activists describe such projects as green grabbing. This is a process that alienates communities from their lands and place them under the control of powerful states and corporations to generate profits in the name of climate action. This concern reflects a 2019 UNEP report warning that even full implementation of carbon credit mechanisms under the Paris Agreement, global temperature will still rise of about 4°C by 2100. In other words, carbon credit projects do not reduce gas emissions. 

Against this background, this article compares the approach taken by the African Court with the approach taken by the EACJ in the Serengeti case to determine which of the two forums may be the most appropriate forum for litigation challenging land appropriation for carbon credit projects. It concludes that the EACJ is the more appropriate jurisdiction because it reconceptualizes the relationship between substantive and procedural rules to better reflect the lived realities and socio-economic needs of the community. Unlike the African Court, which maintained a strict separation between procedure and substance resulting in “empty remedies” that failed to address the historical motives of the state or the disproportionate nature of the harm, the EACJ has shown a willingness to bypass doctrinal rigidities to protect environmental integrity. By integrating the motive and purpose of a breach with its material effects, the EACJ offers a pathway to issue permanent injunctions that can halt corporate-state contracts like the Blue Carbon deal.