By Julia Bloechl | Staff Editor

February 20, 2024

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            In October 2022, the East African Court of Justice ruled in favor of the Tanzanian government in a case brought by Tanzanian Maasai villages.[1] The Maasai, an East African indigenous people, brought the case after several instances in which the Tanzanian government orchestrated forced evictions of Maasai people from their ancestral lands.[2] The government undertook these evictions under the stated purpose of conservation.[3] We can, however, call this purported purpose into question on two key bases. First, the Tanzanian government has since given this land to the United Arab Emirates’ Otterlo Business Corporation for the development of a private airport and game reserve for trophy hunting.[4] Second, the Maasai have proven themselves a people uniquely capable of furthering conservation efforts.[5]

            The East African Court of Justice’s finding for the Tanzanian government came after a five-year legal battle. The Court claimed that the Maasai people did not provide sufficient evidence that the forced evictions were violent or that they were carried out on legally registered land.[6] The Court, in a controversial move, discounted the key testimony of a geospatial expert—who demonstrated that instances of arson did occur on Maasai territory—on procedural grounds.[7] In the aftermath of this painful decision, the Maasai people must consider what alternative avenues they can access to obtain justice against the Tanzanian government. The most evident and perhaps most productive next step would be to pursue a case in the African Court on Human and Peoples’ Rights.

            The Organization of African Unity, now the African Union, established the African Court on Human and Peoples’ Rights by way of a 1998 protocol.[8] The Court is a body under the African Commission on Human and Peoples’ Rights which is comprised of 55 member states.[9] As a court devoted to the protection of human rights across the continent, it is an appropriate venue for the Maasai’s case. Its suitability is made even more clear by its recent ruling in the case of the Ogiek people against the Kenyan government in 2017.[10]

            In 2017, the African Court on Human and Peoples’ Rights ruled in favor of the Ogiek people finding that the Kenyan government could not hold them accountable for the destruction of the Mau Forest and, more importantly, found that the Ogiek were entitled to recognition as an indigenous people with fundamental rights.[11] Many claims of violations of the African Charter on Human and Peoples’ Rights parallel claims that the Maasai could bring against the Tanzanian government.

            Informed by the African Court on Human Rights decision on the Ogiek, the Maasai should bring their claims to the African Commission on Human Rights, which may then bring the case to its affiliated court. The Maasai must operate through the Commission because the Tanzanian government does not currently observe Article 34(6) of the Protocol to the African Charter on the Establishment of the African Court on Human and Peoples’ Rights. That Article allows individuals and NGOs to bring cases to the court.[12] Nonetheless, the Maasai have the right to bring a claim to the Commission which may then bring the case to its affiliated court.

The Maasai should assert that the Tanzanian government violated Articles 1, 2, 14, 17(3), 21, and 23 of the African Charter on Human and Peoples’ Rights.[13] These provisions guarantee several important rights, some of which are freedom from discrimination, the right to property, and the right to peace and security.[14] These are rights which the court affirmed for the Ogiek people and may therefore be inclined to protect for the Maasai.

            In January 2023, representatives of the African Commission on Human and Peoples’ Rights visited Tanzania and commented on the plight of the Maasai.[15] They recognized that the Maasai were suffering and encouraged the Tanzanian government to respond appropriately.[16] Thus, the Commission has already indicated that it is aware of and sympathetic to the suffering of the Maasai. Informed by this recognition and understanding that the government has not taken remedial measures, the Maasai should now utilize the Commission to obtain justice.

            In taking such action, the Maasai people may not only halt the evictions and firmly establish their rights to their ancestral land but may also signal to the Tanzanian government that they do have a right to participate in national decision-making and government action. As an important indigenous people, the Maasai ought to have significant representation in the Tanzanian government, perhaps by way of seats in the national assembly. In an action against the government, the Tanzanian Maasai people ought not stop at halting the ongoing evictions but should also take steps to ensure that these atrocities cannot recur and that their rights are adequately protected. 

[1] Press Release, Oakland Inst., Justice Denied: East African Court of Justice Grants Tanzanian Government Impunity to Trample Human Rights of the Maasai (Sept. 30, 2022), https://www.oaklandinstitute.org/east-african-court-justice-tanzanian-maasai-trample-human-rights.

[2] Tanzania Prevents MEPs From Investigating Maasai Abuses, Survival Int’l (Sept. 6, 2023), https://www.survivalinternational.org/news/13729.

[3] Beyond Just Conservation: A History of Maasai Dispossession, Minority Rts. Grp. Int’l (Feb. 23, 2023), https://minorityrights.org/2023/02/23/beyond-just-conservation-a-history-of-maasai-dispossession/.

[4] Id.

[5] Ben Reicher, Indigenous Peoples Must Be at the Center of Global Conservation Efforts, Oakland Inst. (July 21, 2021), https://www.oaklandinstitute.org/blog/maasai-tanzania-nca-indigenous-global-conservation.

[6] [6] Laurel Sutherland, Maasai Villages Lose Important Court Case as Wildlife Game Reserve Trudges On, Mongabay (Oct. 1, 2022), https://news.mongabay.com/2022/10/maasai-villages-lose-court-case-on-evictions-to-create-wildlife-game-reserve/.

[7] Tanzanian Maasai Lawyers to Launch Appeal in East African Land Grab Case, rfi (Apr. 10, 2022), https://www.rfi.fr/en/africa/20221004-wed-tanzanian-maasai-lawyers-to-launch-appeal-in-east-african-land-grab-court-case.

[8] See generally Protocol to the African Charter on Human and Peoples’ Rights on the Establishment of an African Court on Human and Peoples’ Rights, Member States of the Organization of African Unity, June 10, 1998 [hereinafter Protocol].

[9] About the African Union, African Union, https://au.int/en/overview (last visited Feb. 12, 2024).

[10] Adebayo Majekolagbe & Olabisi D. Akinkugbe, The African Court of Human and Peoples’ Rights Decision in the Ogiek Case: An Appraisal, in Extractive Industries and Human Rights in an Era of Global Justice: New Ways of Resolving and Preventing Conflicts 163–201, 165 (Amissi M. Manirabona & Yenny Vega Cardenas, eds., 2019).

[11] Lucy Claridge & Daniel Kobei, Protected Areas, Indigenous Rights and Land Restitution: The Ogiek Judgment of the African Court of Human and Peoples’ Rights and Community Land Protection in Kenya, 57 Oryx 313, 313 (May 2023).

[12] Protocol, supra note 8, art. 5.

[13] See Organization of African Unity, African Charter on Human and Peoples Rights, June 27, 1981.

[14] Id.

[15] Press Statement at the Conclusion of the Promotion Mission of the African Commission on Human and Peoples’ Rights to the United Republic of Tanzania, 23–28 January 2023 (Feb. 24, 2023).

[16] Id.