The Endorois are a pastoralist community of 60,000 indigenous people, who have resided in the Lake Bogoria area of Kenya for the past centuries. Between 1974 and 1979, the Kenyan government forcefully evicted them to create the Lake Bogoria Game Reserve. This not only destructed their material livelihoods, but also disconnected their spiritual connection with their ancestral land.
The Endorois lodged a legal appeal in 1998 to the high court of Kenya, but the case was ruled in favor of the government. In 2003, with the support of other national and international actors such as theMinority Rights Group Internationaland the Center for Minority Rights Development (CEMIRDE) of Kenya, they took the case to theAfrican Commission on Human and Peoples’ Rights (ACHPR), a quasi-judicial body mandated to ensure the protection of peoples’ rights under the conditions laid down by theAfrican Charter on Human and Peoples’ Rights. In 2010, the Commission delivered its landmark decision affirming the violation of the Endorois’ rights and ordered the Kenyan government to restore the Endorois’ access to their ancestral land with compensation. The ruling read that as indigenous people under the African Charter, the Endorois have been violated in relation to the right to practice religion (article 8); the right to property (article 14); the right to culture (article 17(2) and (3)); the right to free disposition of natural resources (article 21); and the right to development (article 22).
The ruling has been viewed as a milestone decision in many regards, and the most far-reaching in two aspects: first, the notion of “indigenous peoples” of Africa and their rights were clarified for the first time; and second, the decision acknowledged the “right to development” of indigenous peoples. Moreover, it was also the first time in which the right to development of indigenous peoples was legally upheld against a State by an international tribunal. The Commission outlined that the right to development requires fulfilling five main criteria: it must be equitable; non-discriminatory; participatory; accountable; and transparent, with equity and choice as important, overarching themes. It was adjudicated that forced evictions eliminated the Endorois’ choice of their residence and the government had done very little to provide necessary assistance to compensate their rupture from clean drinking water and traditional means of subsistence. Furthermore, the Commission highlighted that government decisions were not undertaken upon adequate consultation with the Endorois. This signifies a violation of the right to development as “active, free and meaningful participation in development” clarified in the Article 2(3) of theUN Declaration on the Right to Development.
In February 2010, theAfrican Unionadopted the ruling in itsAddis Ababa summit. The Kenyan government is thus expected to implement the decisions of the Commission. The Endorois’ case was presented at the2011 Social Forum (Geneva, 3-5 October 2011)which focused on the right to development. Noting the context of the case, NGLS interviewed Wilson Kipsang Kipkazi, Programme Coordinator of the Endorois Welfare Council and Lucy Claridge, Head of Law of the Minority Rights Group International, who were directly engaged in the litigation process.
Interview with Wilson Kisang Kipkazi
NGLS: Could you tell us about the human consequences of the Endorois’ eviction from the Lake Bogoria area?
Mr. Kipkazi:The Endorois people lost dignity when evicted from their ancestral lands, as well as property. Those people depending on livestock for their living were even more shattered, because their livestock died due to a lack of pasture and water after the eviction.
NGLS: What motivated the Endorois to take the case to the African Commission on Human and People’s Rights?
Mr. Kipkazi:We were motivated by the outright lack of justice and political interference within our borders after going through a court process for over five years. There was no justice, despite having convincingly argued our case in court.
NGLS: Could you tell us about your partnerships with other national or international actors? How did they assist the Endorois during the struggle?
Mr. Kipkazi:Well, we did have limited national and international partnerships who acted in support of the Endorois during the struggle, despite the fact that, there were numerous challenges, including technical and financial support.
NGLS: What are the implications of ACHPR’s ruling?
Mr. Kipkazi:The implication of the ACHPR ruling is that it will set precedence for all indigenous communities in Kenya, Africa and the world who have lost lands to government or through any process where community land is ceized by the authorities for public utilization without consultation or compensation. This will also set a standard for respect of indigenous peoples’ property and decisions on how they would like to use their territorial lands.
NGLS: What lessons have you learned from this struggle and what are you planning in terms of future actions to further protect the Endorois’ rights?
Mr. Kipkazi:First, that community rights are upheld by the international charters and protocols that have been endorsed by our individual States, despite the fact that they rarely observe these treaties; neither do they domesticate them into their policies and laws. Second, sometimes rights are violated by the very people that are expected to uphold those rights on your behalf.
Interview with Lucy Claridge
NGLS: Could you briefly tell us about the work of the Minority Rights Group International? And also, could you tell us how you assisted the Endorois in the litigation process?
Ms. Claridge:MRG is the leading international human rights organization working to secure rights for ethnic, religious and linguistic minorities and indigenous peoples around the world. We work with minority communities, providing education and training to enable them to claim their rightful place in society. We lobby governments and the United Nations alongside and on behalf of minorities. We publish authoritative reports that are widely valued by academics and journalists, while our pioneering legal cases programme is advancing the protection of minorities under international law. MRG acted as both the lead complainant and the legal advisors (in conjunction with the Center for Minortiy Rights Development (CEMIRIDE), a Kenyan NGO) in the Endorois litigation before the ACHPR, in conjunction with CEMIRIDE, and on behalf of the Endorois. We advised the community throughout the litigation process, collected evidence, drafted the legal arguments, represented the Endorois in oral hearings before the ACHPR, and generally guided them through the litigation process.
NGLS: What do you view as the biggest implications of the Endorois’ success in terms of using the right to development as a litigation tool?
Ms. Claridge:The Endorois decision offers a new way forward – the African Charter is the only instrument to have a justiciable right to development (RTD) and this has been the first decision to adjudicate it.
The decision also re-affirms that there is a clear positive duty on the State to create conditions favourable to the realization of the RTD.
The decision confirms that communities should have an adequate share in the development process: they should receive a share in benefits and therefore increase in wellbeing. It’s a question of them being active stakeholders as opposed to passive beneficiaries: a right of outcome and also a right of process. Communities should be treated as rights holders.
NGLS: More generally, how do legal approaches contribute to realizing and operationalizing the right to development? And how can it be complemented by other approaches?
Ms. Claridge:30 years after the drawing up of the African Charter, the Endorois decision has paved the way for the RTD to be invoked against States more routinely. The way forward now is to mobilize the existing law – ie where it is already part of treaty provisions that States have signed up to directly – and invoke it more systematically. This can be incorporated within both domestic and international litigation, and also within national and international advocacy and campaigning work.
NGLS: Based on your experience, what strategic actions should the UN system and its Member States take to meaningfully operationalize the right to development?
Ms. Claridge:There needs to be more awareness-raising of the right to development at the local, grassroots level, and more explanation of how it can empower communities to improve their situation where development plans may impair access to their very basic rights.
Similarly, companies and States need to be made more aware of the RTD and the need to respect it. This includes a full understanding of the notion of free, prior and informed consent.
The UN could also consider encapsulating the RTD within a legally binding document, since the current Declaration is not legally-binding.
NGLS: What are some ways in which civil society actors can contribute to the process?
Ms. Claridge:The RTD can be incorporated within both domestic and international litigation, and also within national and international advocacy and campaigning work.
To access a summary of the case and the ruling, clickhere.