Concluding observations on the fourth periodic report of Kenya

Forced evictions

40. The Committee is concerned about continued reports of forced, and sometimes violent, evictions, including among indigenous populations in forest areas, such as the Embobut and Mau forests. The Committee is concerned that such evictions have been undertaken without full regard for due process requirements, such as adequate notice and prior and meaningful consultation with those affected, and the protections outlined in section 152G of the Land Laws (Amendment) Act (Act No. 28 of 2016), the moratorium declared during the COVID-19 pandemic and judicial decisions. It is also concerned about insufficient access to justice and remedies, including the provision of compensation and resettlement among all those affected following the failure to enact the Evictions and Resettlement Bill of 2012. The Committee also notes with concern the lack of information on investigations, prosecutions, convictions and punishments of those who violate legal standards during evictions, including in cases where such violence has led to the death of affected individuals (arts. 6, 7, 12, 17, 26 and 27).

41. The State party should ensure that all evictions are carried out in accordance with national and international standards, including by:

• (a) Putting in place a sustainable system of equitable land tenure to prevent forced evictions;
• (b) When there is no alternative to forced evictions, taking all necessary measures to implement effective protections, including the need for adequate notice and prior and meaningful consultation with and the provision of adequate compensation and/or resettlement of those affected. In that regard, it should effectively implement the Land Laws (Amendment) Act (Act No. 28 of 2016), including the safeguards contained in section 152G;
• (c) Strictly upholding the moratorium declared during the COVID-19 pandemic and all judicial decisions on evictions;
• (d) Improving compensation and resettlement among those affected by evictions, including through enacting the Evictions and Resettlement Bill of 2012 into law without delay;
• (e) Ensuring the investigation, prosecution, conviction and punishment of all individuals who breach the law during evictions.

Indigenous peoples

50. The Committee is concerned about:

1. The absence of dedicated legislation to provide specific protections for indigenous peoples in the State party;
2. The disproportionate impact on indigenous peoples of the failure of the State party to consistently implement the safeguards contained in section 152G of the Land Laws (Amendment) Act (Act No. 28 of 2016);
3. Slow and inadequate implementation of provisions in the Community Land Act (Act No. 27 of 2016) to ensure indigenous peoples can obtain official recognition and registration of their lands;
4. The failure of the Government to publish the recommendations of the task force to advise the Government on the implementation of the decision of the African Court on Human and Peoples’ Rights in respect of the rights of the Ogiek community of Mau and enhancing the participation of indigenous communities in the sustainable management of forests…

51. The State party should:

1. Develop and enact dedicated legislation to expand specific protection for indigenous peoples;
2. Step up safeguards against forced evictions of indigenous peoples and ensure the consistent and effective application of the principle of free, informed and prior consent before any developmental or other activities take place on lands traditionally used, occupied or owned by indigenous communities;
3. Intensify implementation of the Community Land Act (Act No. 27 of 2016), including by the allocation of adequate funding to facilitate the required processes, so as to ensure indigenous peoples can obtain official recognition and registration of their land;
4. Publish without delay the recommendations of the task force to advise the Government on the implementation of the decision of the African Court on Human and Peoples’ Rights in respect of the rights of the Ogiek community of Mau and enhancing the participation of indigenous communities in the sustainable management of forests, and comply with the decision of the Court;