The decision of the African Commission on Human and Peoples’ Rights (ACHPR) in the Centre for Minority Rights Development (CEMIRIDE) and Minority Rights Group International (MRG) (Endorois) vs Kenya case has been hailed as a landmark ruling by both international and national human rights organisations, the media and members of the donor community, among others. Human Rights Watch, Witness, Centre for Housing Rights and Evictions, the Kenya National Commission on Human Rights, Amnesty International and the International Commission of Jurists, among others, are all agreed that the decision represents a significant step for indigenous rights’ recognition and protection in Africa. The media, both local and international, have lauded the ACHPR for taking the bold step of entrenching indigenous rights in the continent’s human rights normative framework. While speaking to a mammoth crowd gathered to celebrate the Endorois decision at Lake Bogoria on 20 March 2010, the Dutch ambassador to Kenya Laetitia van den Assum echoed the urgent need to resolve the land rights claims of minorities as per the verdict of the ACHPR. This article reflects on three issues. First, a background on the Endorois’ struggle is provided, followed by an assessment of the jurisprudential sweep of the Endorois decision and the extent to which it constitutes a ‘boundary marker’ in the development of human rights law in Africa. Lastly, a consideration of the opportunity structures that ensured the adoption of this momentous decision by the ACHPR is made and some thoughts on implementation of the decision provided.

THE ENDOROIS STRUGGLE

Between 1974 and 1979, the Endorois, a semi-nomadic Nilotic community of about 60,000 people were forcefully evicted by the Kenyan government to pave way for the creation of the world famous Lake Bogoria Game Reserve. The consequences of this eviction devastated the Endorois’ pastoralist enterprise after they lost thousands of their livestock owing to a lack of pasture and water. Disconnected from a lake they consider sacred, and denied access to vital medicinal plants only found by the edges of the Lake Bogoria, the community’s existence was imperilled. From the arid lands of Marigat where they were hence confined, the Endorois, unlike other minority groups in Africa who have suffered similar fate, embarked on a sustained campaign to regain the territory that defines their identity, livelihood, spirituality and survival. From 1993 until February 2010, the Endorois have sought legal solutions to their predicament in Kenyan courts and more recently at the ACHPR, which finally affirmed their right to property, natural resources, development, culture and religion.

THE PRECEDENT BEHIND THE ENDOROIS DECISION AND IN THE DEVELOPMENT OF HUMAN RIGHTS LAW

Since the adoption of the Social and Economic Rights Action Center (SERAC) vs Nigeria (Ogoni) decision in 2001, no other verdict of the ACHPR has attracted more attention than the Endorois decision. While the Ogoni decision is the definitive authority for the proposition that a state party under the African Charter is culpable for failing to regulate the actions of a non-state actor (Shell Corporation), which have deleterious effects on the environment and the right to life of a community – the Ogoni – the Endorois decision goes further in at least three ways.

In Ogoni, the ACHPR was inarticulate with regard to the beneficiaries of rights. For instance, it variously referred to the Ogoni as a people but failed to accord them full collective recognition for purposes of being joint partakers with the Nigerian state of the oil resources within their territory. In contrast, the ACHPR in Endorois finds unequivocally that the Endorois as an indigenous community have a legal persona and are hence capable of being imbued with rights within the meaning of article 21 of the charter, which provides that 'All peoples shall freely dispose of their wealth and natural resources … [and] in no case shall a people be deprived of it.' The commission established that the basis of Endorois indigeneity was that their 'culture, religion, and traditional way of life are intimately intertwined with their ancestral lands – Lake Bogoria and the surrounding area'. By finding that the Kenyan state failed to include the Endorois in the profit structure of the exploitation of the Endorois’ ancestral land for tourism and mining, the ACHPR proceeded to require the Kenyan state to compensate the community for ‘all losses incurred’. In this way the ACHPR has exorcised the ghosts of its previous wobbly conception of ‘peoples’ earlier described by Fastah Ouguerguez, the Algerian scholar and now judge at the African Court on Human and Peoples Rights, as exhibiting a 'chameleon-like character'.

The ACHPR in Ogoni found the Nigerian state culpable for its failure to 'involve the Ogoni Communities in the decisions that affected the development of Ogoniland'. In this case however, the ACHPR did not define the scope of involvement which would satisfy the right to the development provision of the charter. The Endorois decision in contrast demonstrates the extent to which the ACHPR is willing to go to ensure that the right to development in the charter is applied in favour of marginalised groups in Africa. Consequently, the ACHPR precisely defines the threshold of consultation and prior informed consent as the minimum parameters that states must attain before executing development programming in indigenous communities’ territories.

Rather than rely on the doctrine of implied rights, which was the basis for the ACHPR’s finding of a violation to the right to housing and food in the Ogoni decision, the ACHPR in Endorois liberates the rights under the charter from the shackles of restrictive textual interpretation. Rather, it moved to provide a dynamic and context-specific interpretation that accords more closely with the spirit of article 31(1) of the Vienna Convention on the Law of Treaties. Whereas in Ogoni the commission required that states must respect rights holders and the 'liberty of their action' within the context of the right to development, the ACHPR in Endorois proceeds to define and delimit the scope of the right to development for the very first time. Appropriating language from welfare economics thinking popularised by Amartya Sen, which characterised poverty as the lack of capabilities and the absence of choices, the ACHPR found that the right to development under the charter was both constitutive and instrumental, or useful as both a means and an end. 'A violation of either the procedural or substantive element' held the commission, 'constitutes a violation of the right to development.' The commission applied article 60 and 61 of the charter which permits it to be inspired by international law and borrowed from the UN Declaration on the Right to Development to hold that the right to development requires compliance with five main indicia: equitability; non-discriminatory; participatory; accountability and transparency. This was the clearest elaboration yet of the normative content of the right to development by any human rights treaty body.

In more specific terms, the Endorois decision has crafted clear contours for the protection of land rights of indigenous communities. The African Commission specifically noted that mere access to land would not meet the demands of article 14 of the charter to the extent that it would leave indigenous peoples vulnerable to further annexation of their territories by the state or third parties. While acknowledging that the establishment of a game reserve was a legitimate aim and served a public need in terms of the proviso to article 14 of the charter, the commission found that the complete eviction and denial of the community from the land was disproportionate to this purpose. In other words, the commission was persuaded that the creation of the national park did not need to preclude the Endorois and could have been accomplished by alternative means proportionate to the public need for tourism infrastructure. Utilising language from articles 26 and 27 of the UN Declaration on the Rights and Fundamental Freedoms of Indigenous Peoples (2008), the ACHPR concludes that the indicia set by international law for indigenous peoples' land entitlement includes evidence of their occupation or use of territory over a considerable length of time even absent of official title deeds. The ACHPR emphasised that indigenous peoples’ parity of engagement with the state and third parties as ‘active stakeholders rather than as passive beneficiaries’ will only be secured if they have full ownership rights with respect to their customary lands.

THE IMPACT OF THE ENDOROIS DECISION IN KENYA AND AFRICA

The significance of the Endorois decision lies in three issues relevant to Africa’s political, economic and human rights context: identity; collective land rights and development. With respect to identity, the commission in Endorois has shown that it is more willing to lift the veil over the hierarchies and diversities within a state in order to ensure equal protection of the law to all. By acknowledging that the scope of article 14 of the African Charter extends beyond individual property based on state-sanctioned titles to encompass collective property grounded on cultural norms, the commission has revisited the post-colonial discourse on the need to re-assess colonial land relations that continue to contribute to present iniquities, often leading to violent conflicts. In particular, the decision indicates the danger of game parks and reservations – albeit ripe for tourism dollars – represent far serious abrogation of human rights for marginalised communities residing on these lands. By puncturing the juridical stranglehold of states over land, the Endorois decision requires states to engage in a robust conversation with indigenous groups in framing developmental options that encroach upon land traditionally occupied by communities. At a time when Gulf states and China are buying or leasing land in Africa to satisfy insatiable appetites for food and bio-fuels – in what the Food and Agriculture Organisation (FAO) has described as the ‘new scramble for Africa’ – the Endorois decision provides a bulwark for communities to check states’ unfettered discretion in entering into such transactions.

THE ENDOROIS SUCCESS: STRATEGY MEETS WINDOWS OF OPPORTUNITY

The choice of the Endorois to anchor their struggle for property, natural resources and development rights on their claim to their indigenous status was quite strategic. However, their success is both a function of clear strategy and fortuitous developments in the national, regional and international human rights terrain.

At the national level, the emergence of the Kenya National Commission on Human Rights (KNCHR) in 2003 as a mobiliser of state structures toward ensuring state compliance with its basic human rights treaty obligations – regional and international – came at a good time for the Endorois. Indeed, it was the KNCHR that moved the Kenyan state to effectively participate in defending the Endorois communication, hence foreclosing any attempt on the part of the state to claim that the current decision was arrived at without its input. Further, it was the KNCHR which in 2005 ensured Kenya’s compliance with provisional measures by the ACHPR, requiring it not to interfere with the suit in the Endorois case through either the grant of new leases or otherwise.

Within the African Commission itself, the structural resistance toward indigenous peoples’ rights was crumbling thanks to the exceptional efforts of the Working Group on Indigenous Peoples’ Issues in Africa, supported by the IWGIA (International Work Group for Indigenous Affairs). Initially established by a 2001 resolution of the ACHPR to study the issue of indigenous peoples and ‘formulate recommendations on appropriate measures to prevent and remedy violations of indigenous peoples' human rights’, this working group had by 2003, the year when the Endorois' communication was seized by the commission, produced a comprehensive report on the situation of indigenous communities in the continent. It is this report, among several other outputs of the working group, that the litigation efforts of the Endorois utilised to persuade the ACHPR that the fear of indigenous rights recognition in Africa were misplaced.

Internationally, the adoption of the UN Declaration on the Rights of Indigenous Peoples in 2008 provided great traction to the Endorois legal struggle at the ACHPR. Whereas Africa had been strongly opposed to the adoption of this declaration in 2007 on the basis that ‘everyone is indigenous in Africa’, by 2008 African states provided a ringing endorsement to the declaration. It is noteworthy that the ACHPR, itself a convertee to the reality of indigenous peoples’ human rights challenges, mounted a spirited campaign at the African Union (AU) in support of the declaration, including through its authoritative Advisory Opinion the UN Declaration on the Rights of Indigenous Peoples. This article 45 opinion seems to have played a crucial part in swaying the few African countries toward support for the UN Declaration. It is unsurprising that the ACHPR, in finding for the Endorois, relies time and time again on the UN declaration as validating its findings.

CONCLUSION

Asbjorn Eide, the long serving chair of the now defunct UN Working Group on Minorities, holds the view that internationalising human rights grievances has the potential to lead to the 'idealization, positivization and realization' of human rights by the state. This constructivist notion of human rights development applies quite well to the Endorois legal struggle. While it is inarguable that the judicialisation of the Endorois claim has already amplified indigenous peoples’ rights in Africa, the substantial benefits to the community of the decision remain dependent on Kenya’s full implementation of the legal recommendations of the commission. This should not be problematic considering that the opportunity structures that ensured the realization of a positive decision still exist and can be deployed to secure Kenya’s full compliance with its obligations in article 1 of charter to give effect to the rights and duties through 'legislative or other measures'.

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* Korir Sing’Oei Abraham is the co-counsel for the Endorois community and the co-founder of the Centre for Minority Rights Development (CEMIRIDE), Kenya and Zimbabwe.
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