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SUMMARY OF ALLEGED FACTS
1. The complaint is filed by the Centre for Minority Rights Development (CEMIRIDE)
with the assistance of Minority Rights Group International (MRG) and the
Centre on Housing Rights and Evictions (CORE - which submitted an amicus
curiae brief) on behalf of the Endorois community. The Complainants allege
violations resulting from the displacement of the Endorois community, an
indigenous community, from their ancestral lands, the failure to adequately
compensate them for the loss of their property, the disruption of the
community's pastoral enterprise and violations of the right to practise
their religion and culture, as well as the overall process of development of
the Endorois people.
2. The Complainants allege that the Government of Kenya in violation of the
African Charter on Human and Peoples' Rights (hereinafter the African
Charter), the Constitution of Kenya and international law, forcibly removed
the Endorois from their ancestral lands around the Lake Bogoria area of the
Baringo and Koibatek Administrative Districts, as well as in the Nakuru and
Laikipia Administrative Districts within the Rift Valley Province in Kenya,
without proper prior consultations, adequate and effective compensation.
3. The Complainants state that the Endorois are a community of approximately
60,000 people [FN52] who, for centuries, have lived in the Lake Bogoria area.
They claim that prior to the dispossession of Endorois land through the
creation of the Lake Hannington Game Reserve in 1973, and a subsequent re-gazetting
of the Lake Bogoria Game Reserve in 1978 by the Government of Kenya, the
Endorois had established, and, for centuries, practised a sustainable way of
life which was inextricably linked to their ancestral land. The Complainants
allege that since 1978 the Endorois have been denied access to their land.
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[FN52] The Endorois have sometimes been classified as a sub-tribe of the
Tugen tribe of the Kalenjin group. Under the 1999 census, the Endorois were
counted as part of the Kalenjin group, made up of the Nandi, Kipsigis, Keiro,
Tugen and Marakwet among others.
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4. The Complainants state that apart from a confrontation with the Masai
over the Lake Bogoria region approximately three hundred years ago, the
Endorois have been accepted by all neighbouring tribes as bona fide owners
of the land and that they continued to occupy and enjoy undisturbed use of
the land under the British colonial administration, although the British
claimed title to the land in the name of the British Crown.
5. The Complainants state that at independence in 1963, the British Crown's
claim to Endorois land was passed on to the respective County Councils.
However, under Section 115 of the Kenyan Constitution, the Country Councils
held this land in trust, on behalf of the Endorois community, who remained
on the land and continued to hold, use and enjoy it. The Endorois' customary
rights over the Lake Bogoria region were not challenged until the 1973
gazetting of the land by the Government of Kenya. The Complainants state
that the act of gazetting and, therefore, dispossession of the land is
central to the present Communication.
6. The Complainants state that the area surrounding Lake Bogoria is fertile
land, providing green pasture and medicinal salt licks, which help raise
healthy cattle. The Complainants state that Lake Bogoria is central to the
Endorois religious and traditional practices. They state that the
community's historical prayer sites, places for circumcision rituals, and
other cultural ceremonies are around Lake Bogoria. These sites were used on
a weekly or monthly basis for smaller local ceremonies, and on an annual
basis for cultural festivities involving Endorois from the whole region. The
Complainants claim that the Endorois believe that the spirits of all
Endorois, no matter where they are buried, live on in the Lake, with annual
festivals taking place at the Lake. The Complainants further claim that the
Endorois believe that the Monchongoi forest is considered the birthplace of
the Endorois and the settlement of the first Endorois community.
7. The Complainants state that despite the lack of understanding of the
Endorois community regarding what had been decided by the Respondent State,
the Kenyan Wildlife Service (hereinafter KWS) informed certain Endorois
elders shortly after the creation of the Game Reserve that 400 Endorois
families would be compensated with plots of "fertile land." The undertaking
also specified, according to the Complainants, that the community would
receive 25% of the tourist revenue from the Game Reserve and 85% of the
employment generated, and that cattle dips and fresh water dams would be
constructed by the Respondent State.
8. The complainants allege that after several meetings to determine
financial compensation for the relocation of the 400 families, the KWS
stated it would provide 3,150 Kenya Shillings per family. The Complainants
allege that none of these terms have been implemented and that only 170 out
of the 400 families were eventually given some money in 1986, years after
the agreements were concluded. The Complainants state that the money given
to the 170 families was always understood to be a means of facilitating
relocation rather than compensation for the Endorois' loss.
9. The Complainants state that to reclaim their ancestral land and to
safeguard their pastoralist way of life, the Endorois petitioned to meet
with President Daniel Arap Moi, who was their local Member of Parliament. A
meeting was held on 28 December 1994 at his Lake Bogoria Hotel.
10. The Complainants state that as a result of this meeting, the President
directed the local authority to respect the 1973 agreement on compensation
and directed that 25% of annual income towards community projects be given
to the Endorois. In November of the following year, upon being notified by
the Endorois community that nothing had been implemented, the Complainants
state that President Moi again ordered that his directives be followed.
11. The Complainants state that following the non-implementation of the
directives of President Moi, the Endorois began legal action against Baringo
and Koibatek County Councils. Judgment was given on 19 April 2002 dismissing
the application.[FN53] Although the High Court recognised that Lake Bogoria
had been Trust Land for the Endorois, it stated that the Endorois had
effectively lost any legal claim as a result of the designation of the land
as a Game Reserve in 1973 and in 1974. It concluded that the money given in
1986 to 170 families for the cost of relocating represented the fulfilment
of any duty owed by the authorities towards the Endorois for the loss of
their ancestral land.
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[FN53] William Yatich Sitetalia, William Arap Ngasia et al. v. Baringo
Country Council, High Court Judgment of 19 April 2002, Civil Case No. 183 of
2000, p. 6.
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12. The Complainants state that the High Court also stated clearly that it
could not address the issue of a community's collective right to property,
referring throughout to "individuals" affected and stating that "there is no
proper identity of the people who were affected by the setting aside of the
land ... that has been shown to the Court". The Complainants also claim that
the High Court stated that it did not believe Kenyan law should address any
special protection to a people's land based on historical occupation and
cultural rights.
13. The Complainants allege that since the Kenyan High Court case in 2000,
the Endorois community has become aware that parts of their ancestral land
have been demarcated and sold by the Respondent State[FN54] to third
parties.
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[FN54] Depending on the context, Kenyan Authorities and Respondent State are
used in this text interchangeably to mean the Government of Kenya.
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14. The Complainants further allege that concessions for ruby mining on
Endorois traditional land were granted in 2002 to a private company. This
included the construction of a road in order to facilitate access for heavy
mining machinery. The Complainants claim that these activities incur a high
risk of polluting the waterways used by the Endorois community, both for
their own personal consumption and for use by their livestock. Both mining
operations and the demarcation and sale of land have continued despite the
request by the African Commission to the President of Kenya to suspend these
activities pending the outcome of the present Communication.
15. The Complainants state that following the commencement of legal action
on behalf of the community, some improvements were made to the community
members' access to the Lake. For example, they are no longer required to pay
Game Reserve entrance fees. The Complainants, nevertheless, allege that this
access is subject to the Game Reserve authority's discretion. They claim
that the Endorois still have limited access to Lake Bogoria for grazing
their cattle, for religious purposes, and for collecting traditional herbs.
They also state that the lack of legal certainty surrounding access rights
and rights of usage renders the Endorois completely dependent on the Game
Reserve authority's discretion to grant these rights on an ad hoc basis.
16. The Complainants claim that land for the Endorois is held in very high
esteem, since tribal land, in addition to securing subsistence and
livelihood, is seen as sacred, being inextricably linked to the cultural
integrity of the community and its traditional way of life. Land, they
claim, belongs to the community and not the individual and is essential to
the preservation and survival as a traditional people. The Complainants
claim that the Endorois health, livelihood, religion and culture are all
intimately connected with their traditional land, as grazing lands, sacred
religious sites and plants used for traditional medicine are all situated
around the shores of Lake Bogoria.
17. The Complainants claim that at present the Endorois live in a number of
locations on the periphery of the Reserve – that the Endorois are not only
being forced from fertile lands to semi-arid areas, but have also been
divided as a community and displaced from their traditional and ancestral
lands. The Complainants claim that for the Endorois, access to the Lake
Bogoria region, is a right for the community and the Government of Kenya
continues to deny the community effective participation in decisions
affecting their own land, in violation of their right to development.
18. The Complainants further allege that the right to legal representation
for the Endorois is limited, in that Juma Kiplenge, the lawyer and human
rights defender who was representing the 20,000 Endorois nomadic
pastoralists, was arrested in August 1996 and accused of "belonging to an
unlawful society". They claim that he has also received death threats.
19. The Complainants allege that the Government's decision to gazette
Endorois traditional land as a Game Reserve, which in turn denies the
Endorois access to the area, has jeopardized the community's pastoral
enterprise and imperilled its cultural integrity. The Complainants also
claim that 30 years after the evictions began, the Endorois still do not
have full and fair compensation for the loss of their land and their rights
on to it. They further allege that the process of evicting them from their
traditional land not only violates Endorois community property rights, but
spiritual, cultural and economic ties to the land are severed.
20. The Complainants allege that the Endorois have no say in the management
of their ancestral land. The Endorois Welfare Committee, which is the
representative body of the Endorois community, has been refused
registration, thus denying the right of the Endorois to fair and legitimate
consultation. This failure to register the Endorois Welfare Committee,
according to the Complainants, has often led to illegitimate consultations
taking place, with the authorities selecting particular individuals to lend
their consent ‘on behalf' of the community. The Complainants further submit
that the denial of domestic legal title to their traditional land, the
removal of the community from their ancestral home and the severe
restrictions placed on access to the Lake Bogoria region today, together
with a lack of adequate compensation, amount to a serious violation of the
African Charter. The Complainants state that the Endorois community claims
these violations both for themselves as a people and on behalf of all the
individuals affected.
21. The Complainants allege that in the creation of the Game Reserve, the
Respondent State disregarded national law, Kenyan Constitutional provisions
and, most importantly, numerous articles of the African Charter, including
the right to property, the right to free disposition of natural resources,
the right to religion, the right to cultural life and the right to
development.
ARTICLES ALLEGED TO HAVE BEEN VIOLATED
22. The Complainants seek a declaration that the Republic of Kenya is in
violation of Articles 8, 14, 17, 21 and 22 of the African Charter. The
Complainants are also seeking:
Restitution of their land, with legal title and clear demarcation.
Compensation to the community for all the loss they have suffered through
the loss of their property, development and natural resources, but also
freedom to practice their religion and culture.
PROCEDURE
23. On 22 May 2003, the Centre for Minority Rights and Development
(CEMIRIDE) forwarded to the Secretariat of the African Commission on Human
and Peoples' Rights (the Secretariat) a formal letter of intent regarding
the forthcoming submission of a Communication on behalf of the Endorois
community.
24. On 9 June 2003, the Secretariat wrote a letter to the Centre for
Minority Rights and Development, acknowledging receipt of the same.
25. On 23 June 2003, the Secretariat wrote a letter to Cynthia Morel of
Minority Rights Group International, who is assisting the Centre for
Minority Rights Development, acknowledging her Communication and informed
her that the complaint would be presented to the upcoming 34th Ordinary
Session of the African Commission.
26. A copy of the Complaint, dated 28 August 2003, was sent to the
Secretariat on 29 August 2003.
27. At its 34th Ordinary Session held in Banjul, The Gambia, from 6 to 20
November 2003, the African Commission examined the Complaint and decided to
be seized thereof.
28. On 10 December 2003, the Secretariat wrote to the parties informing them
of this decision and further requesting them to forward their written
submissions on Admissibility before the 35th Ordinary Session.
29. As the Complainants had already sent their submissions, when the
Communication was being sent to the Secretariat, the Secretariat wrote a
reminder to the Respondent State to forward its written submissions on
Admissibility.
30. By a letter of 14 April 2004, the Complainants requested the African
Commission on Human and Peoples' Rights (the African Commission) to be
allowed to present their oral submissions on the matter at the Session.
31. On 29 April 2004, the Secretariat sent a reminder to the Respondent
State to forward its written submissions on Admissibility of the
Communication.
32. At its 35th Ordinary Session held in Banjul, The Gambia, from 21 May to
4 June 2004, the African Commission examined the Complaint and decided to
defer its decision on Admissibility to the next Session. The African
Commission also decided to issue an Urgent Appeal to the Government of the
Republic of Kenya, requesting it to stay any action or measure by the State
in respect of the subject matter of this Communication, pending the decision
of the African Commission, which was forwarded on 9 August 2004.
33. At the same Session, a copy of the Complaint was handed over to the
delegation of the Respondent State.
34. On 17 June 2004, the Secretariat wrote to both parties informing them of
this decision and requesting the Respondent State to forward its submissions
on Admissibility before the 36th Ordinary Session.
35. A copy of the same Communication was forwarded to the Respondent State's
High Commission in Addis Ababa, Ethiopia on 22 June 2004.
36. On 24 June 2004, the Kenyan High Commission in Addis Ababa, Ethiopia,
informed the Secretariat that it had conveyed the African Commission's
Communication to the Ministry of Foreign Affairs of Kenya.
37. The Secretariat sent a similar reminder to the Respondent State on 7
September 2004, requesting it to forward its written submissions on the
Admissibility of the Communication before the 36th Ordinary Session.
38. During the 36th Ordinary Session held in Dakar, Senegal, from 23
November to 7 December 2004, the Secretariat received a hand-written request
from the Respondent State for a postponement of the matter to the next
Session. At the same Session, the African Commission deferred the case to
the next session to allow the Respondent State more time to forward its
submissions on Admissibility.
39. On 23 December 2004, the Secretariat wrote to the Respondent State
informing it of this decision and requesting it to forward its submissions
on Admissibility as soon as possible.
40. Similar reminders were sent out to the Respondent State on 2 February
and 4 April 2005.
41. At its 37th Ordinary Session held in Banjul, The Gambia, from 27 April
to 11 May 2005, the African Commission considered this Communication and
declared it Admissible after the Respondent State had failed to cooperate
with the African Commission on the Admissibility procedure despite numerous
letters and reminders of its obligations under the Charter.
42. On 7 May 2005, the Secretariat wrote to the parties to inform them of
this decision and requested them to forward their arguments on the Merits.
43. On 21 May 2005, the Chairperson of the African Commission addressed an
urgent appeal to the President of the Republic of Kenya on reports received
alleging the harassment of the Chairperson of the Endorois Assistance
Council who is involved in this Communication.
44. On 11 and 19 July 2005, the Secretariat received the Complainants'
submissions on the Merits, which were forwarded to the Respondent State.
45. On 12 September 2005, the Secretariat wrote a reminder to the Respondent
State.
46. On 10 November 2005, the Secretariat received an amicus-curiae brief on
the case from COHRE.
47. At its 38th Ordinary Session held from 21 November to 5 December 2005 in
Banjul, The Gambia, the African Commission considered the Communication and
deferred its decision on the Merits to the 39th Ordinary Session.
48. On 30 January 2006, the Secretariat informed the Complainants of this
decision.
49. By a Note Verbale of 5 February 2006, which was delivered by hand to the
Ministry of Foreign Affairs of the Republic of Kenya through a member of
staff of the Secretariat who travelled to the country in March 2006, the
Secretariat informed the Respondent State of this decision by the African
Commission. Copies of all the submissions by the Complainants since the
opening of this file were enclosed thereto.
50. By an email of 4 May 2006, the Senior Principal State Counsel in the
Office of the Attorney General of the Respondent State requested the African
Commission to defer the consideration of this Communication on the basis
that the Respondent State was still preparing a response to the matter which
it claimed to be quite protracted and involved many departments.
51. By a Note Verbale of 4 May 2006, which was received by the Secretariat
on the same day, the Solicitor General of the Respondent State formally
requested the African Commission to defer the matter to the next Session
noting mainly that due to the wide range of issues contained in the
Communication, its response would not be ready for submission before the
39th Ordinary Session.
52. At its 39th Ordinary Session held from 11 to 25 May 2006 in Banjul, The
Gambia, the African Commission considered the Communication and deferred its
consideration of the same to its 40th Ordinary Session to await the outcome
of amicable settlement negotiations underway between the Complainants and
the Respondent State.
53. The Secretariat of the African Commission notified the parties of this
decision accordingly.
54. On 31 October 2006, the Secretariat of the African Commission received a
letter from the Complainants reporting that the parties had had constructive
exchanges on the matter and that the matter should be heard on the Merits in
November 2006 by the African Commission. The Complainants also applied for
leave to have an expert witness heard during the 40th Ordinary Session.
55. At the 40th Ordinary Session, the African Commission deferred its
decision on the Merits of the Communication after having heard the expert
witness called in by the Complainant. The Respondent State also made
presentations. Further documents were submitted at the session and, later
on, during the intersession; more documentation was received from both
parties before the 41st Ordinary Session.
56. During the 41st Ordinary Session, the Complainants submitted their final
comments on the last submission by the Respondent State.
DECISION ON ADMISSIBILITY
57. The Respondent State has been given ample opportunity to forward its
submissions on Admissibility on the matter. Its delegates at the previous
two Ordinary Sessions of the African Commission were supplied with hard
copies of the Complaint. There was no response from the Respondent State.
The African Commission has no option but to proceed with considering the
Admissibility of the Communication based on the information at its disposal.
58. The Admissibility of Communications brought pursuant to Article 55 of
the African Charter is governed by the conditions stipulated in Article 56
of the African Charter. This Article lays down seven (7) conditions, which
generally must be fulfilled by a complainant for a Communication to be
Admissible.
59. In the present Communication, the Complaint indicates its authors
(Article 56(1)), is compatible with the Organisation of African Unity
/African Union Charters and that of the African Charter on Human and
Peoples' Rights (Article 56(2)), and it is not written in disparaging
language (Article 56(3)). Due to lack of information that the Respondent
State should have supplied, if any, the African Commission is not in a
position to question whether the Complaint is exclusively based on news
disseminated through the mass media (Article 56(4)), has exhausted local
remedies (Article 56(5)), and has been settled elsewhere per Article 56(7)
of the African Charter. With respect to the requirement of exhaustion of
local remedies, in particular, the Complainants approached the High Court in
Nakuru, Kenya, in November 1998. The matter was struck out on procedural
grounds. A similar claim was made before the same Court in 2000 as a
constitutional reference case, in which order was sought as in the previous
case. The matter was, however, dismissed on the grounds that it lacked
merits and held that the Complainants had been properly consulted and
compensated for their loss. The Complainants thus claim that as
constitutional reference cases could not be appealed, all possible domestic
remedies have been exhausted.
60. The African Commission notes that there was a lack of cooperation from
the Respondent State to submit arguments on the Admissibility of the
Communication despite numerous reminders. In the absence of such a
submission, given the face value of the Complainants' submission, the
African Commission holds that the Complaint complies with Article 56 of the
African Charter and hence declares the Communication Admissible.
61. In its submission on the Merits, the Respondent State requested the
African Commission to review its decision on Admissibility. It argued that
even though the African Commission had gone ahead to Admit the
Communication, it would nevertheless, proceed to submit arguments why the
African Commission should not be precluded from re-examining the
Admissibility of the Communication, after the oral testimony of the
Respondent State, and dismissing the Communication.
62. In arguing that the African Commission should not be a tribunal of first
instance, the Respondent State argues that the remedies sought by the
Complainants in the High Court of Kenya could not be the same as those
sought from the African Commission.
63. For the benefit of the African Commission, the Respondent State outlined
the issues put before the Court in Misc, Civil Case No: 183 of 2002:
(a) A Declaration that the land around Lake Baringo is the property of the
Endorois community, held in trust for its benefit by the County Council of
Baringo and the County Council of Koibatek, under Sections 114 and 115 of
the Constitution of Kenya.
(b) A Declaration that the County Council of Baringo and the County Council
of Koibatek are in breach of fiduciary duty of trust to the Endorois
community, because of their failure to utilise benefits accruing from the
Game Reserve to the benefit of the community contrary to Sections 114 and
115 of the Constitution of Kenya.
(c) A Declaration that the Complainants and the Endorois community are
entitled to all the benefits generated through the Game Reserve exclusively
and / or in the alternative the land under the Game Reserve should revert to
the community under the management of Trustees appointed by the community to
receive and invest the benefits in the interest of the community under
Section 117 of the Constitution of Kenya.
(d) An award of exemplary damages arising from the breach of the Applicants'
Constitutional rights under Section 115 of the Constitution of Kenya.
64. The Respondent State informs the African Commission that the Court held
that procedures governing the setting apart of the Game Reserve were
followed. The Respondent State further states that it went further to advise
the Complainants that they should have exercised their right of appeal under
Sections 10, 11 and 12 of the Trust Land Act, Chapter 288, Laws of Kenya, in
the event that they felt that the award of compensation was not fairly
handled. None of the Applicants had appealed, and the High Court was of the
view that it was too late to complain.
65. The Respondent State also states that the Court opined that the
application did not fall under Section 84 (Enforcement of Constitutional
Rights) since the application did not plead any violations or likelihood of
violations of their rights under Sections 70 - 83 of the Constitution.
66. It further argues that the Communication irregularly came before the
African Commission as the Applicants did not exhaust local remedies
regarding the alleged violations. This is because:
(a) The Complainants did not plead that their rights had been contravened or
likely to be contravened by the High Court Misc. Civil Case 183 of 2002. It
states that the issue of alleged violations of any of the rights claimed
under the present Communication has, therefore, not been addressed by the
local courts. This means that the African Commission will be acting as a
court of first instance. The Respondent State argues that the Applicants
should, therefore, be asked to exhaust local remedies before approaching the
African Commission.
(b) The Complainants did not pursue other administrative remedies available
to them. The Respondent State argues that the allegations that the Kenyan
legal system has no adequate remedies to address the case of the Endorois
are untrue and unsubstantiated. It argues that in matters of human rights
the Kenya High Court has been willing to apply international human rights
instruments to protect the rights of the individual.
67. The Respondent State further says that the Kenyan legal system has a
very comprehensive description of property rights, and provides for the
protection of all forms of property in the Constitution. It argues that
while various international human rights instruments, including the African
Charter, recognise the right to property, these instruments have a
minimalist approach and do not satisfy the kind of property protected. The
Respondent State asserts that the Kenyan legal system goes further than
provided for in international human rights instruments.
68. The Respondent State further states that land as property is recognised
under the Kenyan legal system and various methods of ownership are
recognised and protected. These include private ownership (for natural and
artificial persons), communal ownership either through the Land (Group
Representatives) Act for adjudicated land, which is also called the Group
Ranches or the Trust Lands managed by the County Council, within whose area
of jurisdiction it is situated for the benefit of the persons ordinarily
resident on that land. The State avers that the Land Group Act gives effect
to such right of ownership, interests or other benefits of the land as may
be available, under African customary law.
69. The Respondent State concludes that Trust Lands are established under
the Constitution of Kenya and administered under an Act of Parliament and
that the Constitution provides that Trust Land may be alienated through:
i. Registration to another person other than the County Council;
ii. An Act of Parliament providing for the County Council to set apart an
area of Trust Land.
70. Rule 118(2) of the African Commission's Rules of Procedure states that:
If the Commission has declared a Communication inadmissible under the
Charter, it may reconsider this decision at a later date if it receives a
request for reconsideration. The African Commission notes the arguments
advanced by the Respondent State to reopen its decision on admissibility.
However, after careful consideration of the Respondent State's arguments,
the African Commission is not convinced that it should reopen arguments on
the Admissibility of the Communication. It therefore declines the Respondent
State's request.
SUBMISSIONS ON MERITS
COMPLAINANTS' SUBMISSION ON THE MERITS
71. The arguments below are the submissions of the Complainants, taking also
into consideration their oral testimony at the 40th Ordinary Session, all
their written submissions, including letters and supporting affidavits.
72. The Complainants argue that the Endorois have always been the bona fide
owners of the land around Lake Bogoria.[FN55] They argue that the Endorois'
concept of land did not conceive the loss of land without conquest. They
argue that as a pastoralist community, the Endorois' concept of "ownership"
of their land has not been one of ownership by paper. The Complainants state
that the Endorois community have always understood the land in question to
be "Endorois" land, belonging to the community as a whole and used by it for
habitation, cattle, beekeeping, and religious and cultural practices. Other
communities would, for instance, ask permission to bring their animals to
the area.[FN56]
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[FN55] Op cit, paras 3, 4 and 5 of this Communication, where the
Complainants advance arguments to prove ownership of their land.
[FN56] Op cit, paras 3, 4 and 5.
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73. They also argue that the Endorois have always considered themselves to
be a distinct community. They argue that historically the Endorois are a
pastoral community, almost solely dependent on livestock. Their practice of
pastoralism has consisted of grazing their animals (cattle, goats, sheep) in
the lowlands around Lake Bogoria in the rainy season, and turning to the
Monchongoi Forest during the dry season. They claim that the Endorois have
traditionally relied on beekeeping for honey and that the area surrounding
Lake Bogoria is fertile land, providing green pasture and medicinal salt
licks, which help raise healthy cattle. They argue that Lake Bogoria is also
the centre of the community's religious and traditional practices: around
the Lake are found the community's historical prayer sites, the places for
circumcision rituals, and other cultural ceremonies. These sites were used
on a weekly or monthly basis for smaller local ceremonies, and on an annual
basis for cultural festivities involving Endorois from the whole region.
74. The Complainants argue that the Endorois believe that spirits of all
former Endorois, no matter where they are buried, live on in the Lake.
Annual festivals at the Lake took place with the participation of Endorois
from the whole region. They say that Monchongoi forest is considered the
birthplace of the Endorois people and the settlement of the first Endorois
community. They also state that the Endorois community's leadership is
traditionally based on elders. Though under the British colonial
administration, chiefs were appointed, this did not continue after Kenyan
independence. They state that more recently, the community formed the
Endorois Welfare Committee (EWC) to represent its interests. However, the
local authorities have refused to register the EWC despite two separate
efforts to do so since its creation in 1996.
75. The Complainants argue that the Endorois are a ‘people', a status that
entitles them to benefit from provisions of the African Charter that protect
collective rights. The Complainants argue that the African Commission has
affirmed the rights of "peoples'' to bring claims under the African Charter
in the case of ‘The Social and Economic Rights Action Centre for Economic
and Social Rights v. Nigeria', (the Ogoni Case) stating: "The African
Charter in Articles 20 through 24 clearly provides for peoples' to retain
rights as peoples', that is, as collectives. The importance of community and
collective identity in African culture is recognised throughout the African
Charter."[FN57] They further argue that the African Commission noted that
when there is a large number of individual victims, it may be impractical
for each individual Complainant to go before domestic courts. In such
situations, as was with the Ogoni case, the African Commission can
adjudicate the rights of a people as a collective. They therefore argue that
the Endorois, as a people, are entitled to bring their claims collectively
under those relevant provisions of the African Charter.
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[FN57] The Social and Economic Rights Action Centre for Economic and Social
Rights v. Nigeria, African Commission on Human and Peoples' Rights, Comm.
No. 155/96, (2001), para. 40.
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ALLEGED VIOLATION OF ARTICLE 8 - THE RIGHT TO PRACTICE RELIGION
Article 8 of the African Charter states:
Freedom of conscience, the profession and free practice of religion shall be
guaranteed. No one may, subject to law and order, be submitted to measures
restricting the exercise of these freedoms.
76. The Complainants allege violation to practice their religion. They claim
that the Kenyan Authorities' continual refusal to give the community a right
of access to religious sites to worship freely amounts to a violation of
Article 8.
77. The Complainants argue that the African Commission has embraced the
broad discretion required by international law in defining and protecting
religion. In the case of Free Legal Assistance Group and Others v. Zaire,
they argue that the African Commission held that the practices of the
Jehovah's Witnesses were protected under Article 8.[FN58] In the present
Communication, the Complainants state that the Endorois' religion and
beliefs are protected by Article 8 of the African Charter and constitute a
religion under international law. The Endorois believe that the Great
Ancestor, Dorios, came from the Heavens and settled in the Mochongoi Forest.
After a period of excess and luxury, the Endorois believe that God became
angry and, as punishment, sank the ground one night, forming Lake Bogoria.
The Endorois believe themselves to be descendants of the families who
survived that event.
--------------------------------------------------------------------------------
[FN58] Free Legal Assistance Group and Others v. Zaire, African Commission
on Human and Peoples' Rights, Comm. No. 25/89, 47/90, 56/91, 100/93 (1995),
para. 45.
--------------------------------------------------------------------------------
78. They state that each season the water of the Lake turns red and the hot
springs emit a strong odour. At this time, the community performs
traditional ceremonies to appease the ancestors who drowned with the
formation of the Lake. The Endorois regard both Mochongoi Forest and Lake
Bogoria as sacred grounds, and have always used these locations for key
cultural and religious ceremonies, such as weddings, funerals,
circumcisions, and traditional initiations.[FN59]
--------------------------------------------------------------------------------
[FN59] See World Wildlife Federation Report, p. 18, para. 2.2.7.
--------------------------------------------------------------------------------
79. The Complainants argue that the Endorois, as an indigenous group whose
religion is intimately tied to the land, require special protection. Lake
Bogoria, they argue, is of fundamental religious significance to all
Endorois. The religious sites of the Endorois people are situated around the
Lake, where the Endorois pray, and religious ceremonies are regularly
connected with the Lake. Ancestors are buried near the Lake, and as stated
above, they claim that Lake Bogoria is considered the spiritual home of all
Endorois, living and dead. The Lake, the Complainants argue, is therefore
essential to the religious practices and beliefs of the Endorois.
80. The Complainants argue that by evicting the Endorois from their land,
and by refusing the Endorois community access to the Lake and other
surrounding religious sites, the Kenyan Authorities have interfered with the
Endorois' ability to practice and worship as their faith dictates. In
violation of Article 8 of the African Charter, the Complainants argue that
religious sites within the Game Reserve have not been properly demarcated
and protected. They further argue that since their eviction from the Lake
Bogoria area, the Endorois have not been able to freely practice their
religion. Access as of right for religious rituals – such as circumcisions,
marital rituals, and initiation rights – has been denied the community.
Similarly, the Endorois have not been able to hold or participate in their
most significant annual religious ritual, which occurs when the Lake
undergoes seasonal changes.
81. Citing the African Commission's jurisprudence in Amnesty International
v. Sudan, the Complainants argue that the African Commission recognised the
centrality of practice to religious freedom, noting that the State Party
violated the authors' right to practice religion because non-Muslims did not
have the right to preach or build their churches and were subjected to
harassment, arbitrary arrest, and expulsion. [FN60] In addition, they argue,
the UN Declaration on the Rights of Indigenous Peoples gives indigenous
peoples the right "to maintain, protect and have access in privacy to their
religious and cultural sites..."[FN61] They state that only through unfettered
access will the Endorois be able to protect, maintain, and use their sacred
sites in accordance with their religious beliefs.
--------------------------------------------------------------------------------
[FN60] Amnesty International and Others v. Sudan, (1999) African Commission
on Human and Peoples' Rights, Comm No. 48/90, 50/91, 52/91, 89/93
(hereinafter Amnesty International v. Sudan).
[FN61] See Draft Declaration on the Rights of Indigenous Peoples, U.N. Doc.
E/CN.4/Sub.2/1994/2/Add.1 (1994), Article 13.
--------------------------------------------------------------------------------
82. Citing the case of Loren Laroye Riebe Star,[FN62] the Complainants argue
that the Inter-American Commission on Human Rights (IAcmHR) has determined
that expulsion from lands central to the practice of religion constitutes a
violation of religious freedoms. In the above case, the Complainants argue
that the IAcmHR held that the expulsion of priests from the Chiapas area was
a violation of the right to associate freely for religious purposes. They
further state that the IAcmHR came to a similar conclusion in Dianna Ortiz
v. Guatemala. This was a case concerning a Catholic nun who fled Guatemala
after state actions prevented her from freely exercising her religion.[FN63]
Here, the IAcmHR decided that her right to freely practice her religion had
been violated, because she was denied access to the lands most significant
to her.[FN64]
--------------------------------------------------------------------------------
[FN62] Loren Laroye Riebe Star, Jorge Alberto Baron Guttlein and Rodolfo
Izal Elorz/Mexico, (1999) Inter-American Commission on Human Rights, Report
No. 49/99, Case 11.610.
[FN63] Dianna Ortiz v. Guatemala, (1997) Inter-American Commission on Human
Rights, Report 31/96, Case No. 10.526.
[FN64] Ibid.
--------------------------------------------------------------------------------
83. The Complainants argue that the current management of the Game Reserve
has failed both to fully demarcate the sacred sites within the Reserve and
to maintain sites that are known to be sacred to the Endorois.[FN65] They
argue that the Kenyan Authorities' failure to demarcate and protect
religious sites within the Game Reserve constitutes a severe and permanent
interference with the Endorois' right to practice their religion. Without
proper care, sites that are of immense religious and cultural significance
have been damaged, degraded, or destroyed. They cite "The UN Declaration on
the Rights of Indigenous Peoples" which state in part that: "States shall
take effective measures, in conjunction with the indigenous peoples
concerned, to ensure that indigenous sacred places, including burial sites,
be preserved, respected and protected."[FN66]
--------------------------------------------------------------------------------
[FN65] World Wildlife Federation, Lake Bogoria National Reserve Draft
Management Plan, July 2004
[FN66] Draft Declaration on the Rights of Indigenous Peoples, U.N. Doc.
E/CN.4/Sub.2/1994/2/Add.1 (1994), Article 13.
--------------------------------------------------------------------------------
84. The Complainants also accuse the Kenyan Authorities of interfering with
the Endorois' right to freely practice their religion by evicting them from
their land, and then refusing to grant them free access to their sacred
sites. This separation from their land, they argue, prevents the Endorois
from carrying out sacred practices central to their religion.
85. They argue that even though Article 8 provides that states may interfere
with religious practices "subject to law and order", the Endorois religious
practices are not a threat to law and order, and thus there is no
justification for the interference. They argue that the limitations placed
on the state's duties to protect rights should be viewed in light of the
underlying sentiments of the African Charter. In Amnesty International v.
Zambia, the Complainants argue that the African Commission noted that it was
"of the view that the ‘claw-back' clauses must not be interpreted against
the principles of the Charter... Recourse to these should not be used as a
means of giving credence to violations of the express provisions of the
Charter."[FN67]
--------------------------------------------------------------------------------
[FN67] Amnesty International v. Zambia, African Commission on Human and
Peoples' Rights, Communication No. 212/98 (1999).
--------------------------------------------------------------------------------
ALLEGED VIOLATION OF ARTICLE 14 - THE RIGHT TO PROPERTY
Article 14 of the African Charter states:
"The right to property shall be guaranteed. It may only be encroached upon
in the interest of public need or in the general interest of the community
and in accordance with the provisions of appropriate laws."
86. The Complainants argue that the Endorois community has a right to
property with regard to their ancestral land, the possessions attached to
it, and their cattle. They argue that these property rights are derived both
from Kenyan law and the African Charter, which recognise indigenous peoples'
property rights over their ancestral land. The Complainants argue that the
Endorois' property rights have been violated by the continuing dispossession
of the Lake Bogoria land area. They argue that the impact on the community
has been disproportionate to any public need or general community interest.
87. Presenting arguments that Article 14 of the Charter has been violated,
the Complainants argue that for centuries the Endorois have constructed
homes, cultivated the land, enjoyed unchallenged rights to pasture, grazing,
and forest land, and relied on the land to sustain their livelihoods around
the Lake. They argue that in doing so, the Endorois exercised an indigenous
form of tenure, holding the land through a collective form of ownership.
Such behaviour indicated traditional African land ownership, which was
rarely written down as a codification of rights or title, but was,
nevertheless, understood through mutual recognition and respect between
landholders. ‘Land transactions' would take place only by way of conquest of
land.
88. The Complainants argue that even under colonial rule when the Brtish
Crown claimed formal possession of Endorois land, the colonial authorities
recognised the Endorois' right to occupy and use the land and its resources.
They argue that in law, the land was recognised as the "Endorois Location"
and in practice the Endorois were left largely undisturbed during colonial
rule. They aver that the Endorois community continued to hold such
traditional rights, interests and benefits in the land surrounding Lake
Bogoria even upon the creation of the independent Republic of Kenya in 1963.
They state that on 1 May 1963, the Endorois land became ‘Trust Land' under
Section 115(2) of the Kenyan Constitution, which states:
Each County Council shall hold the Trust Land vested in it for the benefit
of the persons ordinarily resident on that land and shall give effect to
such rights, interests or other benefits in respect of the land as may,
under the African customary law for the time being in force and applicable
thereto, be vested in any tribe, group, family or individual.
89. They argue that through centuries of living and working on the land, the
Endorois were "ordinarily resident on [the] land", and their traditional
form of collective ownership of the land qualifies as a "right, interest or
other benefit... under African customary law" vested in "any tribe, group [or]
family" for the purposes of Section 115(2). They, therefore, argue that as a
result, under Kenyan law, the Baringo and Koibatek County Councils were –
and indeed still are – obligated to give effect to the rights and interests
of the Endorois as concerns the land.
PROPERTY RIGHTS AND INDIGENOUS COMMUNITIES
90. The Complainants argue that both international and domestic courts have
recognised that indigenous groups have a specific form of land tenure that
creates a particular set of problems, which include the lack of "formal"
title recognition of their historic territories, the failure of domestic
legal systems to acknowledge communal property rights, and the claiming of
formal legal title to indigenous land by the colonial authorities. They
state that this situation has led to many cases of displacement from a
people's historic territory, both by the colonial authorities and
post-colonial states relying on the legal title they inherited from the
colonial authorities.
91. In pursuing that line of reasoning, the Complainants argue that the
African Commission itself has recognised the problems faced by traditional
communities in the case of dispossession of their land in a Report of the
Working Group on Indigenous Populations/Communities, where it states:
[...] their customary laws and regulations are not recognized or respected and
as national legislation in many cases does not provide for collective
titling of land. Collective tenure is fundamental to most indigenous
pastoralist and hunter-gatherer communities and one of the major requests of
indigenous communities is therefore the recognition and protection of
collective forms of land tenure.[FN68]
--------------------------------------------------------------------------------
[FN68] Report of the African Commission's Working Group of Experts,
submitted in accordance with the "Resolution on the Rights of Indigenous
Populations/Communities in Africa", adopted by the African Commission on
Human and Peoples' Rights at its 28th Ordinary Session (2003).
--------------------------------------------------------------------------------
92. They argue that the jurisprudence of the African Commission notes that
Article 14 includes the right to property both individually and
collectively.
93. Quoting the case of The Mayagna (Sumo) Awas Tingni v Nicaragua,[FN69]
they argue that indigenous property rights have been legally recognised as
being communal property rights, where the Inter-American Court of Human
Rights (IActHR) recognised that the Inter-American Convention protected
property rights "in a sense which includes, among others, the rights of
members of the indigenous communities within the framework of communal
property."[FN70]
--------------------------------------------------------------------------------
[FN69] The Awas Tingni Case (2001), paras. 140(b) and 151.
[FN70] Ibid at para. 148.
--------------------------------------------------------------------------------
94. The Complainants further argue that the courts have addressed violations
of indigenous property rights stemming from colonial seizure of land, such
as when modern states rely on domestic legal title inherited from colonial
authorities. They state that national courts have recognised that right.
Such decisions were made by the United Kingdom Privy Council as far back as
1921,[FN71] the Canadian Supreme Court[FN72] and the High Court of
Australia.[FN73] Quoting the Richtersveld case, they argue that the South
African Constitutional Court held that the rights of a particular community
survived the annexation of the land by the British Crown and could be held
against the current occupiers of their land.[FN74]
--------------------------------------------------------------------------------
[FN71] See Amodu Tijani v. Southern Nigeria, United Kingdom Privy Council, 2
AC 399, (1921).
[FN72] Calder et al v. Attorney-General of British Columbia, Supreme Court
of Canada, 34 D.L.R. (3d) 145 (1973).
[FN73] Mabo v. Queensland, High Court of Australia, 107 A.L.R. 1, (1992).
[FN74]Alexkor Ltd v Richtersveld Community, Constitutional Court of South
Africa, CCT 19/03, (2003).
--------------------------------------------------------------------------------
95. They argue that the protection accorded by Article 14 of the African
Charter includes indigenous property rights, particularly to their ancestral
lands. The Endorois' right, they argue, to the historic lands around Lake
Bogoria are therefore protected by Article 14. They aver that property
rights protected go beyond those envisaged under Kenyan law and include a
collective right to property.
96. They argue that as a result of the actions of the Kenyan Authorities,
the Endorois' property has been encroached upon, in particular by the
expropriation, and in turn, the effective denial of ownership of their land.
They also state that the Kenyan justice system has not provided any
protection of the Endorois' property rights. Referring to the High Court of
Kenya, they argue that it stated that it could not address the issue of a
community's right to property.[FN75]
--------------------------------------------------------------------------------
[FN75] Op cit, para 12.
--------------------------------------------------------------------------------
97. The Complainants argue that the judgment of the Kenyan High Court also
stated in effect that the Endorois had lost any rights under the trust,
without the need for compensation beyond the minimal amounts actually
granted as costs of resettlement for 170 families. They argue that the
judgment also denies that the Endorois have rights under the trust, despite
being "ordinarily resident" on the land. The Court, they claimed, stated:
What is in issue is a national natural resource. The law does not allow
individuals to benefit from such a resource simply because they happen to be
born close to the natural resource.
98. They argue that in doing so, the High Court dismissed those arguments
based not just on the trust, but also on the Endorois' rights to the land as
a ‘people' and as a result of their historic occupation of Lake Bogoria.
99. The Complainants cite a number of encroachments, they claim, that go to
the core of the community's identity as a ‘people', including:
(a) the failure to provide adequate recognition and protection in domestic
law of the community's rights over the land, in particular the failure of
Kenyan law to acknowledge collective ownership of land;
(b) the declaration of the Game Reserve in 1973/74, which purported to
remove the community's remaining property rights over the land, including
its rights as beneficiary of a trust under Kenyan law;
(c) the lack of and full compensation to the Endorois community for the loss
of their ability to use and benefit from their property in the years after
1974;
(d) the eviction of the Endorois from their land, both in the physical
removal of Endorois families living on the land and the denial of the land
to the rest of the Endorois community, and the resulting loss of their
non-movable possessions on the land, including dwellings, religious and
cultural sites and beehives;
(e) the significant loss by the Endorois of cattle as a result of the
eviction;
(f) the denial of benefit, use of and interests in their traditional land
since eviction, including the denial of any financial benefit from the lands
resources, such as that generated by tourism;
(g) the awarding of land to title to private individuals and the awarding of
mining concessions on the disputed land.
100. The Complainants argue that an encroachment upon property will
constitute a violation of Article 14, unless it is shown that it is in the
general or public interest of the community and in accordance with the
provisions of appropriate laws. They further argue that the test laid out in
Article 14 of the Charter is conjunctive, that is, in order for an
encroachment not to be in violation of Article 14, it must be proven that
the encroachment was in the interest of the public need/general interest of
the community and was carried out in accordance with appropriate laws and
must be proportional. Quoting the Commission's own case law, the
Complainants argue that: ‘The justification of limitations must be strictly
proportionate with and absolutely necessary for the advantages which
follow.[FN76] They argue that both the European Court of Human Rights[FN77]
and the IAcmHR have held that limitations on rights must be "proportionate
and reasonable."[FN78]
--------------------------------------------------------------------------------
[FN76] Constitutional Rights Project, Civil Liberties Organisation and Media
Rights Agenda v. Nigeria, (1999), African Commission on Human and Peoples'
Rights, Comm Nos. 140/94, 141/94, 145/95, para. 42 (The Constitutional
Rights Project Case).
[FN77] Handyside v. United Kingdom, No. 5493/72 (1976) Series A.24 (7
December), para. 49.
[FN78] X & Y v. Argentina, ( 1996) Report No. 38/96, Case 10.506 (15
October), para. 60.
--------------------------------------------------------------------------------
101. They argue that in the present Communication, in the name of creating a
Game Reserve, the Kenyan Authorities have removed the Endorois from their
land, and destroyed their possessions, including houses, religious
constructions, and beehives. They argue that the upheaval and displacement
of an entire community and denial of their property rights over their
ancestral lands are disproportionate to any public need served by the Game
Reserve. They state that even assuming that the creation of the Game Reserve
was a legitimate aim and served a public need, it could have been
accomplished by alternative means proportionate to the need.
102. They further argue that the encroachment on to Endorois property rights
must be carried out in accordance with "appropriate laws" in order to avoid
a violation of Article 14, and that this provision must, at the minimum mean
that both Kenyan law and the relevant provisions of international law were
respected. They argue that the violation of the Endorois' rights failed to
respect Kenyan law on at least three levels: (i) there was no power to expel
them from the land; (ii) the trust in their favour was never legally
extinguished, but simply ignored; and (iii) adequate compensation was never
paid.
103. The Complainants state that the traditional land of the Endorois is
classified as Trust Land under Section 115 of the Constitution, and that
this obliges the County Council to give effect to "such rights, interests or
other benefits in respect of the land as may under the African customary
law, for the time being in force." They argue that it created a beneficial
right for the Endorois over their ancestral land.
104. They further argue that the Kenyan Authorities created the Lake
Hannington Game Reserve, including the Endorois indigenous land, on 9
November 1973, but changed the name to Lake Bogoria Game Reserve in a Second
Notice in 1974.[FN79] The 1974 ‘Notice' was made by the Kenyan Minister for
Tourism and Wildlife under the Wild Animals Protection Act (WAPA).[FN80]
WAPA, the Complainants informs the African Commission, applied to Trust
Reserve to declare the creation of "Lake Hannington Game Reserve" Gazette
Notice 270/1974 was published to revoke the earlier notice and changed the
name of the Game Reserve on 12 October 1974: "the area set forth in the
schedule hereto to be a Game Reserve known as Lake Bogoria Game Reserve."
Land as it did to any other land, and did not require that the land be taken
out of the Trust before a Game Reserve could be declared over that land.
They argue that the relevant legislation did not give authority for the
removal of any individual or group occupying the land in a Game Reserve.
Instead, WAPA merely prohibited the hunting, killing or capturing of animals
within the Game Reserve.[N81] Yet, the Complainants argue, despite a lack of
legal justification, the Endorois Community were informed from 1973 onwards
that they would have to leave their ancestral lands.
--------------------------------------------------------------------------------
[FN79]They state that pursuant to Kenyan law, the authorities published
Notice 239/1973 in the Kenya
[FN80]The Complainants state that Section 3(2) of WAPA was subsequently
revoked on 13 February 1976 by S.68 of the Wildlife Conservation and
Management Act.
[FN81] The Complainants argue that Section 3(20) of WAPA did not allow the
Kenyan Minister for Tourism and Wildlife to remove the present occupiers.
[FN82] The Complainants argue that the process of such a ‘setting apart' of
Trust Land under S. 117 or S.118 of the Constitution are laid down by the
Kenyan Trust Land Act. They state that publication is required by S. 13(3)
and (4) of the Trust Land Act in respect of S.117 Constitution, and by
S.7(1) and (4) of the Trust land Act in respect of S.118 Constitution.
--------------------------------------------------------------------------------
105. Moreover, they argue, the declaration of the Lake Bogoria Game Reserve
by way of the 1974 notice did not affect the status of the Endorois' land as
Trust Land. The obligation of Baringo and Koibatek County Councils to give
effect to the rights and interests of the Endorois community continued. They
state that the only way under Kenyan law in which the Endorois benefits
under the Trust could have been dissolved is through the County Council or
the President of Kenya having to "set apart" the land. However, the Trust
Land Act required that to be legal, such setting apart of the land must be
published in the Kenyan Gazette.82
106. The Complainants argue that as far as the Community is aware, no such
notice was published. Until this is done, they argue, Trust Land
encompassing Lake Bogoria cannot have been set apart and the African
customary law rights of the Endorois people continue under Kenyan law.[FN83]
They state that the Kenyan High Court failed to protect the Endorois' rights
under the Trust to a beneficial property right, and the instruction given to
the Endorois to leave their ancestral lands was also not authorised by
Kenyan law.
--------------------------------------------------------------------------------
[FN83] They also argue that recently the area has been referred to as Lake
Bogoria National Reserve. Even if there has been a legal change in title,
this still would not mean that the Endorois' trust has been ended under
Kenyan law without the "setting aside".
--------------------------------------------------------------------------------
107. They conclude that as a result, the Kenyan Authorities have acted in
breach of trust and not in accordance with the provisions of the law' for
the purposes of Article 14 of the Charter.
108. They further argue that even if Endorois land had been set apart,
Kenyan law still requires the compensation of residents of lands that are
set apart; that the Kenyan Constitution states that where Trust Land is set
apart, the Government must ensure:
[T]he prompt payment of full compensation to any resident of the land set
apart who – (a) under the African customary law for the time being in force
and applicable to the land, has a right to occupy any part of the land.
[FN84]
--------------------------------------------------------------------------------
[FN84] Constitution of the State of Kenya, Section 117(4).
--------------------------------------------------------------------------------
109. Citing Kenyan law, the Complainants argue that the Kenyan Land
Acquisition Act outlines factors that should be considered in determining
the compensation to be paid,[FN85] starting with the basic principle that
compensation should be based on the market value of the land at the time of
the acquisition. Other considerations include: damages to the interested
person caused by the removal from the land and other damages including lost
earnings, relocation expenses and any diminution of profits of the land. The
Land Acquisition Act provides for an additional 15% of the market value to
be added to compensate for disturbances. Under Kenyan law if a court finds
the amount of compensation to be insufficient, 6% interest per year must be
paid on the difference owed to the interested parties.[FN86]
-------------------------------------------------------------------------------
[FN85] Land Acquisition Act, "Principles on which Compensation is to be
determined".
[FN86] See Kenya Land Acquisition Act, Part IV, para 29(3).
--------------------------------------------------------------------------------
110. They state that only 170 families of at least 400 families forced to
leave Endorois traditional land by the Kenyan Authorities have received some
form of monetary assistance. In 1986, 170 families evicted in late 1973 from
their homes within the Lake Bogoria Game Reserve, each received around 3,150
Kshs. At the time, this was equivalent to approximately £30.
111. They state that further amounts in compensation for the value of the
land lost, together with revenue and employment opportunities from the Game
Reserve, were promised by the Kenyan Authorities, but these have never been
received by the community.
112. They argue that the Respondent State has itself recognised that the
payment of 3,150 Kshs per family amounted only to ‘relocation assistance',
and did not constitute full compensation for loss of land. The Complainants
argue that international law also lays down strict requirements for
compensation in the case of expropriation of property.[FN87] They argue that
the fact that such payment was made some 13 years after the first eviction,
and that it does not represent the market value of the land gazetted as Lake
Bogoria Game Reserve, means that the Respondent State would not have paid
"prompt, full compensation" as required by the Constitution on the setting
apart of the Trust Land. Therefore Kenyan law has not been complied with.
Moreover, the Complainants argue, the fact that members of the Endorois
community accepted the very limited monetary compensation does not mean that
they accepted this as full compensation, or indeed that they accepted the
loss of their land. They state that even if the Respondent State had
formally set apart the Trust Land by way of Gazette Notice, the test of "in
accordance with the provisions of law" required by Article 14 of the Charter
would not have been satisfied, due to the payment of inadequate
compensation.
--------------------------------------------------------------------------------
[FN87] The Complainants argue that in the European Court of Human Rights,
for instance, compensation must be fair compensation, and the amount and
timing of payment is material to whether a violation of the right to
property is found. They cite the case of Katikaridis and Others v. Greece,
European Court of Human Rights, Case No. 72/1995/578/664, (1996). The
Complainants also cite Article 23(2) of the American Convention on Human
Rights which provides that "no-one shall be deprived of his property except
upon payment of just compensation, for reasons of public utility or social
interest, and in the cases and according to the forms established by law."
--------------------------------------------------------------------------------
113. The Complainants argue that the requirement that any encroachment on
property rights be in accordance with the "appropriate laws" must also
include relevant international laws. They argue that the Respondent State,
including the courts, has failed to apply international law on the
protection of indigenous land rights, which includes the need to recognise
the collective nature of land rights, to recognise historic association, and
to prioritise the cultural and spiritual and other links of the people to a
particular territory. Instead, Kenyan law gives only limited acknowledgement
to African customary law. The Trust Land system in Kenya provides in reality
only minimal rights, as a trust (and therefore African customary law rights,
such as those of the Endorois) can be extinguished by a simple decision of
the executive. They argue that the crucial issue of recognition of the
collective ownership of land by the Endorois is not acknowledged at all in
Kenyan law, as is clearly shown by the High Court judgment. Encroachment on
the Endorois' property did not therefore comply with the appropriate
international laws on indigenous peoples' rights. They state that the
Endorois have also suffered significant property loss as a result of their
displacement as detailed above, including the loss of cattle, and that the
only "compensation" received was the eventual provision of two cattle dips,
which does not compensate for the loss of the salt licks around the Lake or
the substantial loss of traditional lands.
114. They conclude that the fact that international standards on indigenous
land rights and compensation were not met, as well as that provisions of
Kenyan law were ignored, means that the encroachment upon the property of
the Endorois community was not in accordance with the "appropriate laws" for
the purposes of Article 14 of the Charter.
ALLEGED VIOLATIONS OF ARTICLE 17(2) AND (3) – THE RIGHT TO CULTURE
Article 17(2) and (3) states that:
(2) "Every individual may freely take part in the cultural life of his
community.
(3) The promotion and protection of morals and traditional values recognized
by the community shall be the duty of the State."
115. The Complainants argue that the Endorois community's cultural rights
have been violated as a result of the creation of a Game Reserve. By
restricting access to Lake Bogoria, the Kenyan Authorities have denied the
community access to a central element of Endorois cultural practice. After
defining culture to mean the sum total of the material and spiritual
activities and products of a given social group that distinguishes it from
other similar groups, [FN88] they argue that the protection of Article 17
can be invoked by any group that identifies with a particular culture within
a state. But they argue that it does more than that. They argue that Article
17 extends to the protection of indigenous cultures and ways of life.
--------------------------------------------------------------------------------
[FN88] The Complainants refer to Rodolfo Stavenhagen et al. eds, (2001),
"Cultural Rights: A Social Science, Perspective," in Economic, Social and
Cultural Rights, (Asbjørn Eide) 2nd ed., pp. 85, 86-88. see also Rachel
Murray and Steven Wheatley (2003), ‘Groups and the African Charter on Human
and Peoples' Rights', Human Rights Quarterly, Vol. 25, p. 222.
--------------------------------------------------------------------------------
116. They argue that the Endorois have suffered violations of their cultural
rights on two counts. In the first instance, the community has faced
systematic restrictions on access to sites, such as the banks of Lake
Bogoria, which are of central significance for cultural rites and
celebrations. The community's attempts to access their historic land for
these purposes was described as "trespassing" and met with intimidation and
detention. Secondly, and separately, the cultural rights of the community
have been violated by the serious damage caused by the Kenyan Authorities to
their pastoralist way of life.
117. With mining concessions now underway in proximity to Lake Bogoria, the
Complainants argue that further threat is posed to the cultural and
spiritual integrity of the ancestral land of the Endorois.
118. They also argue that unlike Articles 8 and 14 of the African Charter,
Article 17 does not have an express clause allowing restrictions on the
right under certain circumstances. They state that the absence of such a
clause is a strong indication that the drafters of the Charter envisaged
few, if any, circumstances in which it would be appropriate to limit a
people's right to culture. However, if there is any restriction, the
restriction must be proportionate to a legitimate aim and in line with
principles of international law on human and peoples' rights. The
Complainants argue that the principle of proportionality requires that
limitations be the least restrictive possible to meet the legitimate aim.
119. The Complainants thus argue that even if the creation of the Game
Reserve constitutes a legitimate aim, the Respondent State's failure to
secure access by right for the celebration of the cultural festival and
rituals cannot be deemed proportionate to that aim.
ALLEGED VIOLATION OF ARTICLE 21 - RIGHTS TO FREE DISPOSITION OF NATURAL
RESOURCES
Article 21 of the Charter states that:
"All peoples shall freely dispose of their wealth and natural resources.
This right shall be exercised in the exclusive interest of the people. In no
case shall a people be deprived of it.
In case of spoliation the dispossessed people shall have the right to the
lawful recovery of its property as well as to an adequate compensation."
120. The Complainants argue that the Endorois community are unable to access
the vital resources in the Lake Bogoria region since their eviction from the
Game Reserve. The medicinal salt licks and fertile soil that kept the
community's cattle healthy are now out of the community's reach. Mining
concessions to Endorois land have been granted without giving the Endorois a
share in these resources. Consequently, the Endorois suffer a violation of
Article 21: Right to Natural Resources.
121. They argue that in the Ogoni case the right to natural resources
contained within their traditional land was vested in the indigenous people
and that a people inhabiting a specific region within a state can claim the
protection of Article 21.[FN89] They argue that the right to freely dispose
of natural resources is of crucial importance to indigenous peoples and
their way of life. They quote from the report of the African Commission's
Working Group of Experts on Indigenous Populations/Communities which states:
Dispossession of land and natural resources is a major human rights problem
for indigenous peoples ... .
The establishment of protected areas and national parks has impoverished
indigenous pastoralist and hunter-gatherer communities, made them vulnerable
and unable to cope with environmental uncertainty and, in many cases, even
displaced them ... This [the loss of fundamental natural resources] is a
serious violation of the African Charter (Article 21(1) and 21 (2)), which
states clearly that all peoples have the right to natural resources, wealth
and property.[FN90]
--------------------------------------------------------------------------------
[FN89] The Ogoni Case (2001), paras 56-58
[FN90] Report of the African Commission's Working Group of Experts, p. 20.
--------------------------------------------------------------------------------
122. Citing the African Charter, the Complainants argue that the Charter
creates two distinct rights to both property (Article 14) and the free
disposal of wealth and natural resources (Article 21). They argue that in
the context of traditional land, the two rights are very closely linked and
violated in similar ways. They state that Article 21 of the African Charter
is, however, wider in its scope than Article 14, and requires respect for a
people's right to use natural resources, even where a people does not have
title to the land.
123. The Complainants point out that the World Bank's Operational Directive
4.10 states that: "Particular attention should be given to the rights of
indigenous peoples to use and develop the lands that they occupy, to be
protected against illegal intruders, and to have access to natural resources
(such as forests, wildlife, and water) vital to their subsistence and
reproduction."[FN91]
--------------------------------------------------------------------------------
[FN91] World Bank Operational Directive 4.10
--------------------------------------------------------------------------------
124. They state that the Endorois as a people enjoy the protection of
Article 21 with respect to Lake Bogoria and the wealth and natural resources
arising from it. They argue that for the Endorois, the natural resources
include traditional medicines made from herbs found around the Lake and the
resources, such as salt licks and fertile soil, which provided support for
their cattle and therefore their pastoralist way of life. These, the
Complainants argue, were natural resources from which the community
benefited before their eviction from their traditional land. In addition,
Article 21 also protects the right of the community to the potential wealth
of their land, including tourism, rubies, and other possible resources. They
state that since their eviction from Lake Bogoria, the Endorois, in
violation of Article 21, have been denied unhindered access to the land and
its natural resources, as they can no longer benefit from the natural
resources and potential wealth, including that generated by recent
exploitation of the land, such as the revenues and employment created by the
Game Reserve and the product of mining operations.
ALLEGED VIOLATION OF ARTICLE 22 – THE RIGHT TO DEVELOPMENT
Article 22 of the African Charter states that:
All peoples shall have the right to their economic, social and cultural
development with due regard to their freedom and identity and in the equal
enjoyment of the common heritage of mankind.
125. On the issue of the right to development, the Complainants argue that
the Endorois' right to development has been violated as a result of the
Respondent State's failure to adequately involve the Endorois in the
development process and the failure to ensure the continued improvement of
the Endorois community's well-being.
126. The Complainants argue that the Endorois have seen the set of choices
and capabilities open to them shrink since their eviction from the Game
Reserve. They argue that due to the lack of access to the Lake, the salt
licks and their usual pasture, the cattle of the Endorois died in large
numbers. Consequently, they were not able to pay their taxes and, as a
result, the Kenyan Authorities took away more cattle.
127. They stress the point that the Endorois had no choice but to leave the
Lake. They argue that this lack of choice for the community directly
contradicts the guarantees of the right to development. They state that if
the Kenyan Authorities had been providing the right to development as
promised by the African Charter, the development of the Game Reserve would
have increased the capabilities of the Endorois.
128. Citing the Ogoni Case, the Complainants argue that the African
Commission has noted the importance of choice to well-being. They state that
the African Commission noted that the state must respect rights holders and
the "liberty of their action."[FN92] They argue that the liberty recognised
by the Commission is tantamount to the choice embodied in the right to
development. By recognising such liberty, they argue, the African Commission
has started to embrace the right to development as a choice. Elaborating
further on the right to development, they argue that the same ‘liberty of
action' principle can be applied to the Endorois community in the instant
Communication.
--------------------------------------------------------------------------------
[FN92] The Ogoni Case, (2001), para. 46.
--------------------------------------------------------------------------------
129. They argue that choice and self-determination also include the ability
to dispose of natural resources as a community wishes, thereby requiring a
measure of control over the land. They further argue that for the Endorois,
the ability to use the salt licks, water, and soil of the Lake Bogoria area
has been eliminated, undermining this partner (the Endorois community) of
self-determination. In that regard, the Complainants argue, it is clear that
development should be understood as an increase in peoples' well-being, as
measured by capacities and choices available. The realisation of the right
to development, they say, requires the improvement and increase in
capacities and choices. They argue that the Endorois have suffered a loss of
well-being through the limitations on their choice and capacities, including
effective and meaningful participation in projects that will affect them.
130. Citing the Human Rights Committee (HRC), they argue that the Committee
addressed the effectiveness of consultation procedures in Mazurka v. New
Zealand.[FN93] The Complainants argue that the HRC found that the broad
consultation process undertaken by New Zealand had effectively provided for
the participation of the Maori people in determining fishing rights. The New
Zealand authorities had negotiated with Maori representatives and then
allowed the resulting Memorandum of Understanding to be debated extensively
by Maoris throughout the country.[FN94] The Complainants argue that the
Committee specifically noted that the consultation procedure addressed the
cultural and religious significance of fishing to the Maori people, and that
the Maori representatives were able to affect the terms of the final
Settlement.
--------------------------------------------------------------------------------
[FN93] Apirana Mahuika et al v. New Zealand, Human Rights Committee,
Communication No. 547/1993, UN Doc. CCPR/C/70/D/547/1993 (2000), paras.
5.7-5.9.
[FN94] Apirana Mahuika et al v. New Zealand (2000) Human Rights Committee,
Comm. No. 547/1993, UN Doc. CCPR/C/70/D/547/1993, paras. 5.7-5.9.
--------------------------------------------------------------------------------
131. The inadequacy of the consultations undertaken by the Kenyan
Authorities, the Complainants argue, is underscored by Endorois actions
after the creation of the Game Reserve. The Complainants inform the African
Commission that the Endorois believed, and continue to believe even after
their eviction, that the Game Reserve and their pastoralist way of life
would not be mutually exclusive and that they would have a right of re-entry
into their land. They assert that in failing to understand the reasons for
their permanent eviction, many families did not leave the location until
1986.
132. They argue that the course of action left the Endorois feeling
disenfranchised from a process of utmost importance to their life as a
people. Resentment of the unfairness with which they had been treated
inspired some members of the community to try to reclaim Mochongoi Forest in
1974 and 1984, meet with the President to discuss the matter in 1994 and
1995, and protest the actions in peaceful demonstrations. They state that if
consultations had been conducted in a manner that effectively involved the
Endorois, there would have been no ensuing confusion as to their rights or
resentment that their consent had been wrongfully gained.
133. They further say that the requirement of prior, informed consent has
also been delineated in the case law of the IAcmHR. Referring the African
Commission to the case of Mary and Carrie Dan v. USA, they argue that the
IAcmHR noted that convening meetings with the community 14 years after title
extinguishment proceedings began constituted neither prior nor effective
participation.[FN95] They state that to have a process of consent that is
fully informed "requires at a minimum that all of the members of the
community are fully and accurately informed of the nature and consequences
of the process and provided with an effective opportunity to participate
individually or as collectives."[FN96]
--------------------------------------------------------------------------------
[FN95] Mary and Carrie Dann vs. USA (2002), para. 136.
[FN96] Ibid at para. 140. Antoanella-Iulia Motoc and the Tebtebba
Foundation, Preliminary working paper on the principle of free, prior and
informed consent of indigenous peoples in relation to development affecting
their lands and natural resources that they would serve as a framework for
the drafting of a legal commentary by the Working Group on this concept.
U.N. Doc. E/CN.4/Sub.2/AC.4/2004/4 (2004), para. 14 (a)
--------------------------------------------------------------------------------
134. The Complainants are also of the view that the Respondent State
violated the Endorois' right to development by engaging in coercive and
intimidating activity that has abrogated the community's right to meaningful
participation and freely given consent. They state that such coercion has
continued to the present day. The Complainants say that Mr Charles Kamuren,
the Chair of the Endorois Welfare Council, had informed the African
Commission of details of threats and harassment he and his family and other
members of the community have received, especially when they objected to the
issue of the granting of mining concessions.
135. The Complainants further argue that the Endorois have been excluded
from participating or sharing in the benefits of development. They argue
that the Respondent State did not embrace a rights-based approach to
economic growth, which insists on development in a manner consistent with,
and instrumental to, the realisation of human rights and the right to
development through adequate and prior consultation. They assert that the
Endorois' development as a people has suffered economically, socially and
culturally. They further conclude that the Endorois community suffered a
violation of Article 22 of the Charter.
RESPONDENT STATE SUBMISSIONS ON MERITS
136. In response to the brief submitted by the Complainants on the Merits
including the Amicus Curiae Brief by COHRE, the Respondent State, the
Republic of Kenya, submitted its reply on the Merits of the Communication to
the African Commission.
137. The arguments below are the submissions of the Respondent State, taking
into consideration their oral testimony at the 40th Ordinary Session of the
African Commission, all their written submissions, including letters,
supporting affidavits, video evidence and the Respondents Submissions and
Further Clarifications Arising Out of the Questions by the Commissioner
During the Merits Hearing of the Communication.'
138. The Respondent State argues that most of the tribes do not reside in
their ancestral lands owing to movements made due to a number of factors,
including search for pastures for their livestock; search for arable land to
carry out agriculture; relocation by Government to facilitate development;
creation of irrigation schemes, national parks, game reserves, forests and
extraction of natural resources, such as minerals.
139. The Respondent State argues that it has instituted a programme for
universal free primary education and an agricultural recovery programme,
which aims at increasing the household income of the rural poor, including
the Endorois. It states that it has not only initiated programmes for the
equitable distribution of budgetary resources, but has also formulated an
economic recovery strategy for wealth and employment creation, which seeks
to eradicate poverty and secure the economic and social rights of the poor
and the marginalised, including the Endorois.
140. The Respondent State argues that the land around the Lake Bogoria area
is occupied by the Tugen tribe, which comprises four clans:
141. The Endorois - who have settled around Mangot, Mochongoi and
Tangulmbei; The Lebus – who have settled around Koibatek District; The Somor
– who live around Maringati, Sacho, Tenges and Kakarnet and, The Alor –
living around Kaborchayo, Paratapwa, Kipsalalar and Buluwesa.
142. The Respondent State argues that all the clans co-exist in one
geographical area. It states that it is noteworthy that they all share the
same language and names, which means that they have a lot in common. The
Respondent State disputes that the Endorois are indeed a community /
sub-tribe or clan on their own, and it argues that it is incumbent on the
Complainants to prove that the Endorois are distinct from the other Tugen
sub-tribe or indeed the larger Kalenjin tribe before they can proceed to
make a case before the African Commission.
143. The Respondent State maintains that following the Declaration of the
Lake Bogoria Game Reserve, the Government embarked on a re-settlement
exercise, culminating in the resettlement of the majority of the Endorois in
the Mochongoi settlement scheme. It argues that this was over and above the
compensation paid to the Endorois after their ancestral land around Lake was
gazetted. It further states that there is no such thing as Mochongoi Forest
in Kenya and the only forest in the area is Ol Arabel Forest.
DECISION ON MERITS
144. The present Communication alleges that the Respondent State has
violated the human rights of the Endorois community, an indigenous people,
by forcibly removing them from their ancestral land, the failure to
adequately compensate them for the loss of their property, the disruption of
the community's pastoral enterprise and violations of the right to practice
their religion and culture, as well as the overall process of development of
the Endorois people.
145. Before addressing the articles alleged to have been violated, the
Respondent State has requested the African Commission to determine whether
the Endorois can be recognised as a ‘community' / sub-tribe or clan on their
own. The Respondent State disputes that the Endorois are a distinct
community in need of special protection. The Respondent State argues that
the Complainants need to prove this distinction from the Tugen sub-tribe or
indeed the larger Kalenjin tribe. The immediate questions that the African
Commission needs to address itself to are:
146. Are the Endorois a distinct community? Are they indigenous peoples and
thereby needing special protection? If they are a distinct community, what
makes them different from the Tugen sub-tribe or indeed the larger Kalenjin
tribe?
147. Before responding to the above questions, the African Commission notes
that the concepts of "peoples" and "indigenous peoples / communities" are
contested terms.[FN97] As far as "indigenous peoples" are concerned, there
is no universal and unambiguous definition of the concept, since no single
accepted definition captures the diversity of indigenous cultures, histories
and current circumstances. The relationships between indigenous peoples and
dominant or mainstream groups in society vary from country to country. The
same is true of the concept of "peoples." The African Commission is thus
aware of the political connotation that these concepts carry. Those
controversies led the drafters of the African Charter to deliberately
refrain from proposing any definitions for the notion of "people(s)."[FN98]
In its Report of the Working Group of Experts on Indigenous
Populations/Communities,"[FN99] the African Commission describes its dilemma
of defining the concept of "peoples" in the following terms:
Despite its mandate to interpret all provisions of the African Charter as
per Article 45(3), the African Commission initially shied away from
interpreting the concept of „peoples‟. The African Charter itself does not
define the concept. Initially the African Commission did not feel at ease in
developing rights where there was little concrete international
jurisprudence. The ICCPR and the ICESR do not define „peoples.‟ It is
evident that the drafters of the African Charter intended to distinguish
between the traditional individual rights where the sections preceding
Article 17 make reference to "every individual." Article 18 serves as a
break by referring to the family. Articles 19 to 24 make specific reference
to "all peoples."
--------------------------------------------------------------------------------
[FN97] See Report of the Special Rapporteur (Rodolfo Stavenhagen) on the
Situation of Human Rights and Fundamental Freedoms of Indigenous People on
"Implementation of General Assembly Resolution 60/251 of 15 March 2006,
A/HRC/4/32/Add.3, 26 February 2007: "Mission to Kenya" from 4 to 14 December
2006, at 9.
[FN98] See the Report of the Rapporteur of the OAU ministerial meeting on
the draft African Charter on Human and Peoples' Rights held in Banjul, The
Gambia, from 9 to 15 June 1980 (CAB/LEG/67/3/Draft Rapt. Rpt (II)), p.4.
[FN99] Report of the African Commission's Working Group of Experts on
Indigenous Populations/Communities, published jointly by the ACHPR/IWGIA
2005.
--------------------------------------------------------------------------------
148. The African Commission, nevertheless, notes that while the terms
‘peoples' and ‘indigenous community' arouse emotive debates, some
marginalised and vulnerable groups in Africa are suffering from particular
problems. It is aware that many of these groups have not been accommodated
by dominating development paradigms and in many cases they are being
victimised by mainstream development policies and thinking and their basic
human rights violated. The African Commission is also aware that indigenous
peoples have, due to past and ongoing processes, become marginalised in
their own country and they need recognition and protection of their basic
human rights and fundamental freedoms.
149. The African Commission also notes that normatively, the African Charter
is an innovative and unique human rights document compared to other regional
human rights instruments, in placing special emphasis on the rights of
"peoples."[FN100] It substantially departs from the narrow formulations of
other regional and universal human rights instruments by weaving a tapestry
which includes the three "generations" of rights: civil and political
rights; economic, social, and cultural rights; and group and peoples'
rights. In that regard, the African Commission notes its own observation
that the term "indigenous" is also not intended to create a special class of
citizens, but rather to address historical and present-day injustices and
inequalities. This is the sense in which the term has been applied in the
African context by the Working Group on Indigenous Populations/Communities
of the African Commission.[FN101] In the context of the African Charter, the
Working Group notes that the notion of "peoples" is closely related to
collective rights.[FN102]
--------------------------------------------------------------------------------
[FN100] The African Charter is not an accident of history. Its creation by
the OAU came at a time of increased scrutiny of states for their human
rights practices, and the ascendancy of human rights as a legitimate subject
of international discourse. For African states, the rhetoric of human rights
had a special resonance for several reasons, including the fact that
post-colonial African states were born out of the anti-colonial human rights
struggle, a fight for political and economic self-determination and the need
to reclaim international legitimacy and salvage its image
[FN101] Report of the Special Rapporteur (Rodolfo Stavenhagen) on the
Situation of Human Rights and Fundamental Freedoms of Indigenous People,
supra n. 47.
[FN102] Ibid.
--------------------------------------------------------------------------------
150. The African Commission also notes that the African Charter, in Articles
20 through 24, provides for peoples to retain rights as peoples, that is, as
collectives.[FN103] The African Commission through its Working Group of
Experts on Indigenous Populations/Communities has set out four criteria for
identifying indigenous peoples.[FN104] These are: the occupation and use of
a specific territory; the voluntary perpetuation of cultural
distinctiveness; self-identification as a distinct collectivity, as well as
recognition by other groups; an experience of subjugation, marginalisation,
dispossession, exclusion or discrimination. The Working Group also
demarcated some of the shared characteristics of African indigenous groups:
... first and foremost (but not exclusively) different groups of
hunter-gatherers or former hunter-gatherers and certain groups of
pastoralists...
... A key characteristic for most of them is that the survival of their
particular way of life depends on access and rights to their traditional
land and the natural resources thereon.[FN105]
--------------------------------------------------------------------------------
[FN103] See The Social and Economic Rights Action Centre for Economic and
Social Rights v. Nigeria. (SERAC and CESR) or The Ogoni case 2001. African
Commission on Human and Peoples' Rights, Decision 155/96, The Social and
Economic Rights Action Centre and the Centre for Economic and Social Rights
- Nigeria (27 May 2002), Fifteenth Annual Activity Report of the African
Commission on Human and Peoples' Rights, 2001-2002.
[FN104]Report of the African Commission's Working Group of Experts on
Indigenous Populations/Communities (adopted at the Twenty-eighth Session,
2003).
[FN105] Report of the African Commission's Working Group of Experts on
Indigenous Populations/Communities (adopted at the Twenty-eighth Session,
2003).
--------------------------------------------------------------------------------
151. The African Commission is thus aware that there is an emerging
consensus on some objective features that a collective of individuals should
manifest to be considered as "peoples", viz: a common historical tradition,
racial or ethnic identity, cultural homogeneity, linguistic unity, religious
and ideological affinities, territorial connection, and a common economic
life or other bonds, identities and affinities they collectively enjoy –
especially rights enumerated under Articles 19 to 24 of the African Charter
– or suffer collectively from the deprivation of such rights. What is clear
is that all attempts to define the concept of indigenous peoples recognize
the linkages between peoples, their land, and culture and that such a group
expresses its desire to be identified as a people or have the consciousness
that they are a people.[FN106]
--------------------------------------------------------------------------------
[FN106] Ibid.
--------------------------------------------------------------------------------
152. As far as the present matter is concerned, the African Commission is
also enjoined under Article 61 of the African Charter to be inspired by
other subsidiary sources of international law or general principles in
determining rights under the African Charter.[FN107] It takes note of the
working definition proposed by the UN Working Group on Indigenous
Populations:
... that indigenous peoples are ...those which, having a historical continuity
with pre-invasion and pre-colonial societies that developed on their
territories, consider themselves distinct from other sectors of the
societies now prevailing in those territories, or parts of them. They form
at present non-dominant sectors of society and are determined to preserve,
develop and transmit to future generations their ancestral territories, and
their ethnic identity, as the basis of their continued existence as peoples,
in accordance with their own cultural patterns, social institutions and
legal systems.[FN108]
--------------------------------------------------------------------------------
[FN107] See Article 60 of the African Charter.
[FN108] Jose Martinez Cobo (1986), Special Rapporteur, Study of the Problem
of Discrimination Against Indigenous Populations, Sub-Commission on the
Prevention of Discrimination and the Protection of Minorities, UN Doc.
E/CN.4/Sub.2/1986/7/Add.4.
--------------------------------------------------------------------------------
153. But this working definition should be read in conjunction with the 2003
Report of the African Commission's Working Group of Experts on Indigenous
Populations/Communities, which is the basis of its ‘definition' of
indigenous populations.[FN109] Similarly it notes that the International
Labour Organisation has proffered a definition of indigenous peoples in
Convention No. 169 concerning Indigenous and Tribal Peoples in Independent
Countries:[FN110]
Peoples in independent countries who are regarded as indigenous on account
of their descent from the populations which inhabited the country, or a
geographical region to which the country belongs, at the time of conquest or
colonization or the establishment of present state boundaries and who,
irrespective of their legal status, retain some or all of their own social,
economic, cultural and political
institutions.[FN111]
--------------------------------------------------------------------------------
[FN109] The UN Working Group widens the analysis beyond the African
historical experience and also raises the slightly controversial issue of
"first or original occupant" of territory, which is not always relevant to
Africa.
[FN110] Convention concerning Indigenous and Tribal Peoples in Independent
Countries (ILO No. 169), 72 ILO Official Bull. 59, entered into force Sept.
5, 1991, Article 1(1)(b).
[FN111] Convention concerning Indigenous and Tribal Peoples in Independent
Countries (ILO No. 169), 72 ILO Official Bull. 59, entered into force Sept.
5, 1991, Article 1(1)(b).
--------------------------------------------------------------------------------
154. The African Commission is also aware that though some indigenous
populations might be first inhabitants, validation of rights is not
automatically afforded to such pre-invasion and pre-colonial claims. In
terms of ILO Convention 169, even though many African countries have not
signed and ratified the said Convention, and like the UN Working Groups'
conceptualisation of the term, the African Commission notes that there is a
common thread that runs through all the various criteria that attempts to
describe indigenous peoples – that indigenous peoples have an unambiguous
relationship to a distinct territory and that all attempts to define the
concept recognise the linkages between people, their land, and culture. In
that regard, the African Commission notes the observation of the UN Special
Rapporteur, where he states that in Kenya indigenous populations/communities
include pastoralist communities such as the Endorois,[FN112] Borana, Gabra,
Maasai, Pokot, Samburu, Turkana, and Somali, and hunter-gatherer communities
whose livelihoods remain connected to the forest, such as the Awer (Boni),
Ogiek, Sengwer, or Yaaku. The UN Special Rapporteur further observed that
the Endorois community have lived for centuries in their traditional
territory around Lake Bogoria, which was declared a wildlife sanctuary in
1973.[FN113]
--------------------------------------------------------------------------------
[FN112] See Report of the Special Rapporteur (Rodolfo Stavenhagen) on the
Situation of Human Rights and Fundamental Freedoms of Indigenous People, op.
cit, Supra n. 47 - Emphasis added.
[FN113] See Report of the Special Rapporteur (Rodolfo Stavenhagen) on the
Situation of Human Rights and Fundamental Freedoms of Indigenous People, op.
cit, supra note 47.
--------------------------------------------------------------------------------
155. In the present Communication the African Commission wishes to emphasise
that the Charter recognises the rights of peoples.[FN114] The Complainants
argue that the Endorois are a people, a status that entitles them to benefit
from provisions of the African Charter that protect collective rights. The
Respondent State disagrees.[FN115] The African Commission notes that the
Constitution of Kenya, though incorporating the principle of
non-discrimination and guaranteeing civil and political rights, does not
recognise economic, social and cultural rights as such, as well as group
rights. It further notes that the rights of indigenous pastoralist and
hunter-gatherer communities are not recognized as such in Kenya's
constitutional and legal framework, and no policies or governmental
institutions deal directly with indigenous issues. It also notes that while
Kenya has ratified most international human rights treaties and conventions,
it has not ratified ILO Convention No. 169 on Indigenous and Tribal Peoples
in Independent Countries, and it has withheld its approval of the United
Nations Declaration on the Rights of Indigenous Peoples of the General
Assembly.
--------------------------------------------------------------------------------
[FN114] The Commission has affirmed the right of peoples to bring claims
under the African Charter. See the case of The Social and Economic Rights
Action Center for Economic and Social Rights v. Nigeria. Here the Commission
stated: "The African Charter, in its Articles 20 through 24, clearly
provides for peoples to retain rights as peoples, that is, as collectives."
[FN115] The Commission has also noted that where there is a large number of
victims, it may be impractical for each individual complainant to go before
domestic courts. In such situations, as in the Ogoni case, the Commission
can adjudicate the rights of a people as a collective. Therefore, the
Endorois, as a people, are entitled to bring their claims collectively under
those relevant provisions of the African Charter.
--------------------------------------------------------------------------------
156. After studying all the submissions of the Complainants and the
Respondent State, the African Commission is of the view that Endorois
culture, religion, and traditional way of life are intimately intertwined
with their ancestral lands - Lake Bogoria and the surrounding area. It
agrees that Lake Bogoria and the Monchongoi Forest are central to the
Endorois' way of life and without access to their ancestral land, the
Endorois are unable to fully exercise their cultural and religious rights,
and feel disconnected from their land and ancestors.
157. In addition to a sacred relationship to their land, self-identification
is another important criterion for determining indigenous peoples.[FN116]
The UN Special Rapporteur on the Rights and Fundamental Freedoms of
Indigenous People also supports self-identification as a key criterion for
determining who is indeed indigenous.[FN117] The African Commission is aware
that today many indigenous peoples are still excluded from society and often
even deprived of their rights as equal citizens of a state. Nevertheless,
many of these communities are determined to preserve, develop and transmit
to future generations their ancestral territories and their ethnic identity.
It accepts the arguments that the continued existence of indigenous
communities as ‘peoples' is closely connected to the possibility of them
influencing their own fate and to living in accordance with their own
cultural patterns, social institutions and religious systems.[FN118] The
African Commission further notes that the Report of the African Commission's
Working Group of Experts on Indigenous Populations/Communities (WGIP)
emphasises that peoples' self-identification is an important ingredient to
the concept of peoples' rights as laid out in the Charter. It agrees that
the alleged violations of the African Charter by the Respondent State are
those that go to the heart of indigenous rights – the right to preserve
one's identity through identification with ancestral lands, cultural
patterns, social institutions and religious systems. The African Commission,
therefore, accepts that self-identification for Endorois as indigenous
individuals and acceptance as such by the group is an essential component of
their sense of identity.[FN119]
--------------------------------------------------------------------------------
[FN116] Report of the African Commission's Working Group of Experts on
Indigenous Populations/Communities (adopted at the Twenty-eighth Session,
2003).
[FN117] See Rodolfo Stavenhagen (2002), Report of the Special Rapporteur on
the Situation of Human Rights and Fundamental Freedoms of Indigenous People,
U.N. Commission on Human Rights, UN Doc. E/CN.4/2002/97, (2002) at para. 53.
[FN118] See also Committee on the Elimination of Racial Discrimination,
General Recommendation 8, Membership of Racial or Ethnic Groups Based on
Self-Identification (Thirty-eighth Session, 1990), U.N. Doc. A/45/18 at 79
(1991). "The Committee", in General Recommendation VIII stated that
membership in a group, "shall, if no justification exists to the contrary,
be based upon self-identification by the individual concerned".
[FN119] See Rodolfo Stavenhagen (2002), Report of the Special Rapporteur on
the Situation of Human Rights and Fundamental Freedoms of Indigenous People,
U.N. Commission on Human Rights, UN Doc. E/CN.4/2002/97, (2002) at para.
100, where he argues that self-identification is a key criterion for
determining who is indeed indigenous.
--------------------------------------------------------------------------------
158. Furthermore, in drawing inspiration from international law on human and
peoples' rights, the African Commission notes that the IACtHR has dealt with
cases of self-identification where Afro-descendent communities were living
in a collective manner, and had, for over 2-3 centuries, developed an
ancestral link to their land. Moreover, the way of life of these communities
depended heavily on the traditional use of their land, as did their cultural
and spiritual survival due to the existence of ancestral graves on these
lands.[FN120]
--------------------------------------------------------------------------------
[FN120] Op. cit, infra n. 71.
--------------------------------------------------------------------------------
159. The African Commission notes that while it has already accepted the
existence of indigenous peoples in Africa through its WGIP reports, and
through the adoption of its Advisory Opinion on the UN Declaration on the
Rights of Indigenous Peoples, it notes the fact that the Inter-American
Court has not hesitated in granting the collective rights protection to
groups beyond the "narrow/aboriginal/pre-Colombian" understanding of
indigenous peoples traditionally adopted in the Americas. In that regard,
the African Commission notes two relevant decisions from the IACtHR: Moiwana
v Suriname[FN121] and Saramaka v Suriname. The Saramaka case is of
particular relevance to the Endorois case, given the views expressed by the
Respondent State during the oral hearings on the Merits.[FN122]
--------------------------------------------------------------------------------
[FN121] See Moiwana Village v Suriname, Judgment of June 15, 2005. Series C
No. 124, paras 85 and 134-135. On 29 November 1986, the Suriname army
attacked the N'djuka Maroon village of Moiwana and massacred over 40 men,
women and children, and razed the village to the ground. Those who escaped
the attack fled into the surrounding forest, and then into exile or internal
displacement. On 12 November 1987, almost a year later, Suriname
simultaneously ratified the American Convention on Human Rights and
recognized the jurisdiction of the Inter-American Court of Human Rights
(IACtHR). Almost ten years later, on 27 June 1997, a petition was filed with
the Inter-American Commission on Human Rights (IACmHR) and later on lodged
with the IACtHR. The Commission stated that, while the attack itself
predated Suriname's ratification of the American Convention and its
recognition of the Court's jurisdiction, the alleged denial of justice and
displacement of the Moiwana community occurring subsequent to the attack
comprise the subject matter of the application. In this case the IACtHR
recognised collective land rights, despite being an Afro-descendent
community (i.e. not a traditional pre-Colombian / ‘autochtonous'
understanding of indigenousness in the Americas).
[FN122] The Respondent State during the oral hearings at the 40th Ordinary
Session in Banjul, The Gambia, stated that: (a) the Endorois do not deserve
special treatment since they are no different from the other Tungen
sub-group, and that (b) inclusion of some of the members of the Endorois in
"modern society" has affected their cultural distinctiveness, such that it
would be difficult to define them as a distinct legal personality (c)
representation of the Endorois by the Endorois Welfare Council is allegedly
not legitimate. See Inter-American Commission on Human Rights (IACHmR),
Report No.9/06 The Twelve Saramaka Clans (Los) v Suriname (March 2, 2006) ;
Inter-American Court of Human Rights (IACtHR), Case of the Saramaka People v
Suriname (Judgment of 28 November 2007) at paras 80-84.
--------------------------------------------------------------------------------
160. In the Saramaka case, according to the evidence submitted by the
Complainants, the Saramaka people are one of six distinct Maroon groups in
Suriname whose ancestors were African slaves forcibly taken to Suriname
during the European colonisation in the 17th century. The IACtHR considered
that the Saramaka people make up a tribal community whose social, cultural
and economic characteristics are different from other sections of the
national community, particularly because of their special relationship with
their ancestral territories, and because they regulate themselves, at least
partially, by their own norms, customs, and/or traditions.
161. Like the State of Suriname, the Respondent State (Kenya) in the instant
Communication is arguing that the inclusion of the Endorois in ‘modern
society' has affected their cultural distinctiveness, such that it would be
difficult to define them as a distinct group that is very different from the
Tugen sub-tribe or indeed the larger Kalenjin tribe That is, the Respondent
State is questioning whether the Endorois can be defined in a way that takes
into account the different degrees to which various members of the Endorois
community adhere to traditional laws, customs, and economy, particularly
those living within the Lake Bogoria area. In the Saramaka case, the IACtHR
disagreed with the State of Suriname that the Saramaka could not be
considered a distinct group of people just because a few members do not
identify with the larger group. In the instant case, the African Commission,
from all the evidence submitted to it, is satisfied that the Endorois can be
defined as a distinct tribal group whose members enjoy and exercise certain
rights, such as the right to property, in a distinctly collective manner
from the Tugen sub-tribe or indeed the larger Kalenjin tribe.
162. The IACtHR also noted that the fact that some individual members of the
Saramaka community may live outside of the traditional Saramaka territory
and in a way that may differ from other Saramakas who live within the
traditional territory and in accordance with Saramaka customs does not
affect the distinctiveness of this tribal group, nor its communal use and
enjoyment of their property. In the case of the Endorois, the African
Commission is of the view that the question of whether certain members of
the community may assert certain communal rights on behalf of the group is a
question that must be resolved by the Endorois themselves in accordance with
their own traditional customs and norms and not by the State. The Endorois
cannot be denied a right to juridical personality just because there is a
lack of individual identification with the traditions and laws of the
Endorois by some members of the community.
From all the evidence (both oral and written and video testimony) submitted
to the African Commission, the African Commission agrees that the Endorois
are an indigenous community and that they fulfil the criterion of
„distinctiveness.‟ The African Commission agrees that the Endorois consider
themselves to be a distinct people, sharing a common history, culture and
religion. The African Commission is satisfied that the Endorois are a
"people", a status that entitles them to benefit from provisions of the
African Charter that protect collective rights. The African Commission is of
the view that the alleged violations of the African Charter are those that
go to the heart of indigenous rights – the right to preserve one‟s identity
through identification with ancestral lands.
ALLEGED VIOLATION OF ARTICLE 8
163. The Complainants allege that Endorois' right to freely practice their
religion has been violated by the Respondent State's action of evicting the
Endorois from their land, and refusing them access to Lake Bogoria and other
surrounding religious sites. They further allege that the Respondent State's
has interfered with the Endorois' ability to practice and worship as their
faith dictates; that religious sites within the Game Reserve have not been
properly demarcated and protected and since their eviction from the Lake
Bogoria area, the Endorois have not been able to freely practice their
religion. They claim that access as of right for religious rituals - such as
circumcisions, marital rituals, and initiation rights -has been denied the
community. Similarly, they state that the Endorois have not been able to
hold or participate in their most significant annual religious ritual, which
occurs when the Lake undergoes seasonal changes.
164. The Complainants further argue that the Endorois have neither been able
to practice the prayers and ceremonies that are intimately connected to the
Lake, nor have they been able to freely visit the spiritual home of all
Endorois, living and dead. They argue that the Endorois' spiritual beliefs
and ceremonial practices constitute a religion under international law. They
point out that the term "religion" in international human rights instruments
covers various religious and spiritual beliefs and should be broadly
interpreted. They argue that the HRC states that the right to freedom of
religion in the International Covenant on Civil and Political Rights
(ICCPR):
protects theistic, non-theistic and atheistic beliefs, as well as the right
not to profess any religion or belief The terms ‘belief and ‘religion' are
to be broadly construed. Article 18 is not limited in its application to
traditional religions or to religions and beliefs with institutional
characteristics or practices analogous to those of traditional
religions.[FN123]
To rebut the allegation of a violation of Article 8 of the African Charter,
the Respondent State argues that the Complainants have failed to show that
the action of the Government to gazette the Game Reserve for purposes of
conserving the environment and wildlife and to a great extent the
Complainants' cultural grounds fails the test of the constitution of
reasonableness and justifiability. It argues that through the gazetting of
various areas as protected areas, National Parks or Game Reserves or falling
under the National Museums, it has been possible to conserve some of the
areas which are threatened by encroachment due to modernisation. The
Respondent State argues that some of these areas include ‘Kayas' (forests
used as religious ritual grounds by communities from the coast province of
Kenya) which has been highly effective while the communities have continued
to access these grounds without fear of encroachment.
--------------------------------------------------------------------------------
[FN123] Human Rights Committee, General Comment 22, Article 18 (Forty-eighth
session, 1993), Compilation of General Comments and General Recommendations
Adopted by Human Rights Treaty Bodies, U.N. Doc. HRI\ GEN\1\ Rev.1 (1994),
35.
--------------------------------------------------------------------------------
165. Before deciding whether the Respondent State has indeed violated
Article 8 of the Charter, the Commission wishes to establish whether the
Endorois' spiritual beliefs and ceremonial practices constitute a religion
under the African Charter and international law. In that regard, the African
Commission notes the observation of the HRC in paragraph 164 (above). It is
of the view that freedom of conscience and religion should, among other
things, mean the right to worship, engage in rituals, observe days of rest,
and wear religious garb.[FN124] The African Commission notes its own
observation in Free Legal Assistance Group v. Zaire, that it has held that
the right to freedom of conscience allows for individuals or groups to
worship or assemble in connection with a religion or belief, and to
establish and maintain places for these purposes, as well as to celebrate
ceremonies in accordance with the precepts of one's religion or belief.
[FN125]
--------------------------------------------------------------------------------
[FN124] Declaration on the Elimination of All Forms of Intolerance and of
Discrimination Based on Religion or Belief (Thirty-sixth session, 1981),
U.N. GA Res. 36/55.
[FN125] See Free Legal Assistance Group v. Zaire, African Commission on
Human and Peoples Rights, Comm. No. 25/89, 47/90, 56/91, 100/93 (1995),
para. 45. See also the Declaration on the Elimination of All Forms of
Intolerance and of Discrimination Based on Religion or Belief, (Thirty-sixth
session, 1981), U.N. GA Res. 36/55.
--------------------------------------------------------------------------------
166. This Commission is aware that religion is often linked to land,
cultural beliefs and practices, and that freedom to worship and engage in
such ceremonial acts is at the centre of the freedom of religion. The
Endorois' cultural and religious practices are centred around lake Bogoria
and are of prime significance to all Endorois. During oral testimony, and
indeed in the Complainants' written submission, this Commission's attention
was drawan to the fact that religious sites are situated around Lake
Bogoria, where the Endorois pray and where religious ceremonies regularly
take place. It takes into cognisance that Endorois' ancestors are buried
near the Lake, and has already above, Lake Bogoria is considered the
spiritual home of all Endorois, living and dead.
167. It further notes that one of the beliefs of the Endorois is that their
Great Ancestor, Dorios, came from the Heavens and settled in the Mochongoi
Forest.[FN126] It notes the Complainants' arguments, which have not been
contested by the Respondent State, that the Endorois believe that each
season the water of the Lake turns red and the hot springs emit a strong
odour, signalling a time that the community performs traditional ceremonies
to appease the ancestors who drowned with the formation of the Lake.
--------------------------------------------------------------------------------
[FN126] See paras 73 and 74.
--------------------------------------------------------------------------------
168. From the above analysis, the African Commission is of the view that the
Endorois spiritual beliefs and ceremonial practices constitute a religion
under the African Charter.
169. The African Commission will now determine whether the Respondent State
by its actions or inactions have interfered with the Endorois' right to
religious freedom.
170. The Respondent State has not denied that the Endorois' have been
removed from their ancestral land they call home. The Respondent State has
merely advanced reasons why the Endorois can no longer stay within the Lake
Bogoria area. The Complainants argue that the Endorois' inability to
practice their religion is a direct result of their expulsion from their
land and that since their eviction the Endorois have not been able to freely
practice their religion, as access for religious rituals has been denied the
community.
171. It is worth noting that in Amnesty International v. Sudan, the African
Commission recognised the centrality of practice to religious
freedom.[FN127] The African Commission noted that the State Party violated
the authors' right to practice their religion, because non-Muslims did not
have the right to preach or build their churches and were subjected to
harassment, arbitrary arrest, and expulsion. The African Commission also
notes the case of Loren Laroye Riebe Star from the IACmHR, which determined
that expulsion from lands central to the practice of religion constitutes a
violation of religious freedoms. It notes that the Court held that the
expulsion of priests from the Chiapas area was a violation of the right to
associate freely for religious purposes.[FN128]
--------------------------------------------------------------------------------
[FN127] Amnesty International and Others v. Sudan, African Commission on
Human and Peoples' Rights, Communication No. 48/90, 50/91, 52/91, 89/93
(1999) (hereinafter Amnesty International v. Sudan).
[FN128] Loren Laroye Riebe Star, Jorge Alberto Baron Guttlein and Rodolfo
Izal Elorz/Mexico, Inter-American Commission on Human Rights, Report No.
49/99, Case 11.610, (1999). Dianna Ortiz v. Guatemala, Inter-American
Commission on Human Rights, Report 31/96, Case 10.526, (1997).
--------------------------------------------------------------------------------
172. The African Commission agrees that in some situations it may be
necessary to place some form of limited restrictions on a right protected by
the African Charter. But such a restriction must be established by law and
must not be applied in a manner that would completely vitiate the right. It
notes the recommendation of the HRC that limitations may be applied only for
those purposes for which they were prescribed and must be directly related
and proportionate to the specific need on which they are predicated.[FN129]
The raison d'être for a particularly harsh limitation on the right to
practice religion, such as that experienced by the Endorois, must be based
on exceptionally good reasons, and it is for the Respondent State to prove
that such interference is not only proportionate to the specific need on
which they are predicated, but is also reasonable. In the case of Amnesty
International v. Sudan, the African Commission stated that a wide-ranging
ban on Christian associations was "disproportionate to the measures required
by the Government to maintain public order, security, and safety." The
African Commission further went on to state that any restrictions placed on
the rights to practice one's religion should be negligible. In the above
mentioned case, the African Commission decided that complete and total
expulsion from the land for religious ceremonies is not minimal.[FN130]
--------------------------------------------------------------------------------
[FN129] Human Rights Committee, General Comment 22, Article 18 (Forty-eighth
session, 1993), Compilation of General Comments and General Recommendations
Adopted by Human Rights Treaty Bodies, U.N. Doc. HRI\GEN\1\Rev.1 (1994), 35,
para. 8.
[FN130] The African Commission is of the view that the limitations placed on
the state's duties to protect rights should be viewed in light of the
underlying sentiments of the African Charter. This was the view of the
Commission, in Amnesty International v. Zambia, where it noted that the
‘claw-back' clauses must not be interpreted against the principles of the
Charter ... and that recourse to these should not be used as a means of giving
credence to violations of the express provisions of the Charter. See Amnesty
International v. Sudan (1999), paras. 82 and 80.
--------------------------------------------------------------------------------
173. The African Commission is of the view that denying the Endorois access
to the Lake is a restriction on their freedom to practice their religion, a
restriction not necessitated by any significant public security interest or
other justification. The African Commission is also not convinced that
removing the Endorois from their ancestral land was a lawful action in
pursuit of economic development or ecological protection. The African
Commission is of the view that allowing the Endorois to use the land to
practice their religion would not detract from the goal of conservation or
developing the area for economic reasons.
The African Commission therefore finds against the Respondent State a
violation of Article 8 of the African Charter. The African Commission is of
the view that the Endorois' forced eviction from their ancestral lands by
the Respondent State interfered with the Endorois' right to religious
freedom and removed them from the sacred grounds essential to the practice
of their religion, and rendered it virtually impossible for the Community to
maintain religious practices central to their culture and religion.
The African Commission is of the view that the limitations placed on the
state's duties to protect rights should be viewed in light of the underlying
sentiments of the African Charter. This was the view of the Commission, in
Amnesty International v. Zambia, where it noted that the „claw-back‟ clauses
must not be interpreted against the principles of the Charter ... and that
recourse to these should not be used as a means of giving credence to
violations of the express provisions of the Charter."[FN131]
--------------------------------------------------------------------------------
[FN131] Amnesty International v. Zambia, African Commission on Human and
Peoples' Rights, Communication No. 212/98 (1999).
--------------------------------------------------------------------------------
ALLEGED VIOLATION OF ARTICLE 14
174. The Complainants argue that the Endorois community have a right to
property with regard to their ancestral land, the possessions attached to
it, and their cattle. The Respondent State denies the allegation.
175. The Respondent State further argues that the land in question fell
under the definition of Trust Land and was administered by the Baringo
County Council for the benefit of all the people who were ordinarily
resident in their jurisdiction which comprised mainly the four Tungen
tribes. It argues that Trust Land is not only established under the
Constitution of Kenya and administered under an Act of Parliament, but that
the Constitution of Kenya provides that Trust Land may be alienated through
registration to another person other than the County Council; an Act of
Parliament providing for the County Council to set apart an area of Trust
Land vested in it for use and occupation of public body or authority for
public purposes; person or persons or purposes which, in the opinion of the
Council, is likely to benefit the persons ordinarily resident in that area;
by the President in consultation with the Council. It argues that Trust Land
may be set apart as government land for government purposes or private land.
176. The Respondent State argues that when Trust Land is set apart for
whatever purpose, the interest or other benefits in respect of that land
that was previously vested in any tribe, group, family or individual under
African customary law are extinguished. It, however, states that the
Constitution and the Trust Land Act provide for adequate and prompt
compensation for all residents. The Respondent State, in both its oral and
written submissions, is arguing that the Trust Land Act provides a
comprehensive procedure for assessment of compensation where the Endorois
should have applied to the District Commissioner and lodged an appeal if
they were dissatisfied. The Respondent State further argues that the
Endorois have a right of access to the High Court of Kenya by the
Constitution to determine whether their rights have been violated.
177. According to the Respondent State, with the creation of more local
authorities, the land in question now comprises parts of Baringo and
Koibatek County Councils, and through Gazette Notice No 239 of 1973, the
land was first set apart as Lake Hannington Game Reserve, which was later
revoked by Gazette Notice No 270 of 1974, where the Game Reserve was renamed
Lake Baringo Game Reserve, and the boundaries and purpose of setting apart
this area specified in the Gazette Notices as required by the Trust Land
Act. It argues that the Government offered adequate and prompt compensation
to the affected people, "a fact which the Applicants agree with."[FN132]
--------------------------------------------------------------------------------
[FN132] See para 3.3.3 of the Respondent's Merits brief.
--------------------------------------------------------------------------------
178. In its oral and written testimonies, the Respondent State argues that
the gazettement of a Game Reserve under the Wildlife laws of Kenya is with
the objective of ensuring that wildlife is managed and conserved to yield to
the nation in general and to individual areas in particular optimum returns
in terms of cultural, aesthetic and scientific gains as well as economic
gains as are incidental to proper wildlife management and conservation. The
Respondent State also argues that National Reserves unlike National Parks,
where the Act expressly excludes human interference save for instances where
one has got authorisation, are subject to agreements as to restrictions or
conditions relating to the provisions of the area covered by the reserve. It
also states that communities living around the National Reserves have in
some instances been allowed to drive their cattle to the Reserve for the
purposes of grazing, so long as they do not cause harm to the environment
and the natural habitats of the wild animals. It states that with the
establishment of a National Reserve particularly from Trust Land, it is
apparent that the community's right of access is not extinguished, but
rather its propriety right as recognised under the law (that is, the right
to deal with property as it pleases) is the one which is minimised and hence
the requirement to compensate the affected people.
179. Rebutting the claim of the Complainants that the Kenyan Authorities
prevented them from occupying their other ancestral land, Muchongoi Forest,
the Respondent State argued that the land in question was gazetted as a
forest in 1941, by the name of Ol Arabel Forest, which means that the land
ceased being communal land by virtue of the gazettement. It states that some
excisions have been made from the Ol Arablel Forest to create the Muchongoi
Settlement Scheme to settle members of the four Tungen tribes of the Baringo
district, one of which is the Endorois.
180. The Respondent State also argues that it has also gone a step further
to formulate "Rules", namely the "The Forests (Tugen-Kamasia) Rules" to
enable the inhabitants of the Baringo Duistrict, including the Endorois to
enjoy some privileges through access to the Ol Arabel Forest for some
purposes. The Rules, it states, allow the community to collect dead wood for
firewood, pick wild berries and fruits, take or collect the bark of dead
trees for thatching beehives, cut and remove creepers and lianes for
building purposes, take stock, including goats, to such watering places
within the Central Forests as may be approved by the District Commissioner
in consultation with the Forest Officer, enter the Forest for the purpose of
holding customary ceremonies and rites, but no damage shall be done to any
tree, graze sheep within the Forest, graze cattle for specified periods
during the dry season with the written permission of the District
Commissioner or the Forest Officer and to retain or construct huts within
the Forest by approved forest cultivators among others.
181. The Respondent State argues further that the above Rules ensure that
the livelihoods of the community are not compromised by the gazettement, in
the sense that the people could obtain food and building materials, as well
as run some economic activities such as beekeeping and grazing livestock in
the Forest. They also say they were at liberty to practice their religion
and culture. Further, it states that the due process of law regarding
compensation was followed at the time of the said gazettement.
182. Regarding the issue of dispossession of ancestral land in the alleged
Mochongoi Forest, the Respondent State did not address it, as it argues that
it was not part of the matters addressed by the High Court case, and
therefore the African Commission would be acting as a tribunal of first
instance if it did so.
183. The Respondent State does not dispute that the Lake Bogoria area of the
Baringo and Koibatek Administrative Districts is the Endorois' ancestral
land. One of the issues the Respondent State is disputing is whether the
Endorois are indeed a distinct Community. That question has already been
answered supra. In para 1.1.6 of the Respondent State Merits brief, the
State said: "Following the Declaration of the Lake Bogoria Game Reserve, the
Government embarked on a resettlement exercise, culminating in the
resettlement of the majority of the Endorois in the Mochongoi settlement
scheme. This was over and above the compensation paid to the Endorois after
their ancestral land around Lake was gazetted.[FN133]
--------------------------------------------------------------------------------
[FN133] Italics for emphasis.
--------------------------------------------------------------------------------
184. It is thus clear that the land surrounding Lake Bogoria is the
traditional land of the Endorois people. In para 1 of the Merits brief,
submitted by the Complainants, they write: "The Endorois are a community of
approximately 60, 000 people who, from time immemorial, have lived in the
Lake Bogoria area of the Baringo and Koibatek Administrative
Districts."[FN134] In para 47, the Complainants also state that: "For
centuries the Endorois have constructed homes on the land, cultivated the
land, enjoyed unchallenged rights to pasture, grazing, and forest land, and
relied on the land to sustain their livelihoods." The Complainants argue
that apart from a confrontation with the Masai over the Lake Bogoria region
three hundred years ago, the Endorois have been accepted by all neighbouring
tribes, including the British Crown, as bona fide owners of their land. The
Respondent State does not challenge those statements of the Complainants.
The only conclusion that could be reached is that the Endorois community has
a right to property with regard to its ancestral land, the possessions
attached to it, and their animals.
--------------------------------------------------------------------------------
[FN134] Italics for emphasis.
--------------------------------------------------------------------------------
185. Two issues that should be disposed of before going into the more
substantive questions of whether the Respondent State has violated Article
14 are a determination of what is a ‘property right' (within the context of
indigenous populations) that accords with African and international law, and
whether special measures are needed to protect such rights, if they exist
and whether Endorois' land has been encroached upon by the Respondent State.
The Complainants argue that "property rights" have an autonomous meaning
under international human rights law, which supersedes national legal
definitions. They state that both the European Court of Human Rights (ECHR)
and IActHR have examined the specific facts of individual situations to
determine what should be classified as ‘property rights', particularly for
displaced persons, instead of limiting themselves to formal requirements in
national law.[FN135]
--------------------------------------------------------------------------------
[FN135] See The Mayagna Awas Tingni v. Nicaragua, Inter-American Court of
Human Rights, (2001), para. 146 (hereinafter the Awas Tingni Case 2001). The
terms of an international human rights treaty have an autonomous meaning,
for which reason they cannot be made equivalent to the meaning given to them
in domestic law.
--------------------------------------------------------------------------------
186. To determine that question, the African Commission will look, first, at
its own jurisprudence and then at international case law. In Malawi African
Association and Others v. Mauritania, land was considered ‘property' for the
purposes of Article 14 of the Charter.[FN136] The African Commission in the
Ogoni case also found that the ‘right to property' includes not only the
right to have access to one's property and not to have one's property
invaded or encroached upon,[FN137] but also the right to undisturbed
possession, use and control of such property however the owner(s) deem
fit.[FN138] The African Commission also notes that the ECHR have recognised
that ‘property rights' could also include the economic resources and rights
over the common land of the applicants.[FN139]
--------------------------------------------------------------------------------
[FN136] Malawi African Association and Others v. Mauritania, African
Commission on Human and Peoples' Rights, Comm. Nos. 54/91, 61/91, 98/93,
164/97 à 196/97 and 210/98 (2000), para. 128. See also Communications 54/91
et al v Mauritania, 13th Activity Report, para. 128.
[FN137] Ogoni Case (2001), para. 54.
[FN138] Communication No. 225/98 v Nigeria, 14th Annual Report, para. 52.
[FN139] See Doğan and Others v. Turkey, European Court of Human Rights,
Applications 8803-8811/02, 8813/02 and 8815-8819/02 (2004), paras. 138-139.
--------------------------------------------------------------------------------
187. The Complainants argue that both international and domestic courts have
recognised that indigenous groups have a specific form of land tenure that
creates a particular set of problems. Common problems faced by indigenous
groups include the lack of "formal" title recognition of their historic
territories, the failure of domestic legal systems to acknowledge communal
property rights, and the claiming of formal legal title to indigenous land
by the colonial authorities. This, they argue, has led to many cases of
displacement from a people's historic territory, both by colonial
authorities and post-colonial states relying on the legal title they
inherited from the colonial authorities. The African Commission notes that
its Working Group on Indigenous Populations/Communities has recognised that
some African minorities do face dispossession of their lands and that
special measures are necessary in order to ensure their survival in
accordance with their traditions and customs.[FN140] The African Commission
is of the view that the first step in the protection of traditional African
communities is the acknowledgement that the rights, interests and benefits
of such communities in their traditional lands constitute ‘property' under
the Charter and that special measures may have to be taken to secure such
‘property rights'.
--------------------------------------------------------------------------------
[FN140] See Report of the African Commission's Working Group of Experts,
Submitted in accordance with the "Resolution on the Rights of Indigenous
Populations/Communities in Africa", Adopted by the African Commission on
Human and Peoples' Rights at its 28th Ordinary Session (2005).
--------------------------------------------------------------------------------
188. The case of Doğan and others v Turkey [FN141] is instructive in the
instant Communication. Although the Applicants were unable to demonstrate
registered title of lands from which they had been forcibly evicted by the
Turkish authorities, the European Court of Human Rights observed that:
[T]he notion ‘possessions' in Article 1 has an autonomous meaning which is
certainly not limited to ownership of physical goods: certain other rights
and interests constituting assets can also be regarded as ‘property rights',
and thus as ‘possessions' for the purposes of this provision[FN142]
--------------------------------------------------------------------------------
[FN141] Doğan and Others v. Turkey, European Court of Human Rights,
Applications 8803-8811/02, 8813/02 and 8815-8819/02 (2004), paras. 138-139.
[FN142] Doğan and Others v. Turkey, European Court of Human Rights,
Applications 8803-8811/02, 8813/02 and 8815-8819/02 (2004), para. 138-139.
--------------------------------------------------------------------------------
189. Although they did not have registered property, they either had their
own houses constructed on the land of their ascendants or lived in the
houses owned by their fathers and cultivate the land belonging to the
latter. The Court further noted that the Applicants had unchallenged rights
over the common land in the village, such as the pasture, grazing and the
forest land, and that they earned their living from stockbreeding and
tree-felling.
190. The African Commission also notes the observation of the IActHR in the
seminal case of The Mayagna (Sumo) Awas Tingni v Nicaragua [FN143] that the
Inter-American Convention protected property rights in a sense which include
the rights of members of the indigenous communities within the framework of
communal property and argued that possession of the land should suffice for
indigenous communities lacking real title to obtain official recognition of
that property.
--------------------------------------------------------------------------------
[FN143] The Awas Tingni Case (2001), paras. 140(b) and 151.
--------------------------------------------------------------------------------
191. In the opinion of the African Commission, the Respondent State has an
obligation under Article 14 of the African Charter not only to respect the
‘right to property', but also to protect that right. In ‘the Mauritania
Cases',[FN144] the African Commission concluded that the confiscation and
pillaging of the property of black Mauritanians and the expropriation or
destruction of their land and houses before forcing them to go abroad
constituted a violation of the right to property as guaranteed in Article
14. Similarly, in The Ogoni case 2001 [FN145] the African Commission
addressed factual situations involving removal of people from their homes.
The African Commission held that the removal of people from their homes
violated Article 14 of the African Charter, as well as the right to adequate
housing which, although not explicitly expressed in the African Charter, is
also guaranteed by Article 14.[FN146]
--------------------------------------------------------------------------------
[FN144] African Commission on Human and Peoples' Rights, Communications
54/91, 61/91, 98/93, 164/97, 196/97 and 210/98.
[FN145] African Commission on Human and Peoples' Rights, Decision 155/96,
The Social and Economic Rights Action Centre and the Centre for Economic and
Social Rights - Nigeria (27 May 2002), Fifteenth Annual Activity Report of
the African Commission on Human and Peoples' Rights, 2001-2002, done at the
31st Ordinary Session of the African Commission held from 2 to 16 May 2002
in Pretoria, South Africa.
[FN146] African Commission on Human and Peoples' Rights, Decision 155/96,
The Social and Economic Rights Action Centre and the Centre for Economic and
Social Rights – Nigeria (27 May 2002) (citing Committee on Economic, Social
and Cultural Rights, General Comment No. 7, The right to adequate housing
(Art. 11 (1) of the Covenant): forced evictions, para. 4, U.N. Doc.
E/C.12/1997/4 (1997)).
--------------------------------------------------------------------------------
192. The Saramaka case also sets out how the failure to recognise an
indigenous/tribal group becomes a violation of the ‘right to
property.'[FN147] In its analysis of whether the State of Suriname had
adopted an appropriate framework to give domestic legal effect to the ‘right
to property', the IACtHR addressed the following issues:
This controversy over who actually represents the Saramaka people is
precisely a natural consequence of the lack of recognition of their
juridical personality.[FN148]
--------------------------------------------------------------------------------
[FN147] Inter- American Court of Human Rights, Case of the Saramaka People v
Suriname (Judgment of 28 November 2007).
[FN148] Inter- American Court of Human Rights, Case of the Saramaka People v
Suriname (Judgment of 28 November 2007).
--------------------------------------------------------------------------------
193. In the Saramaka case, the State of Suriname did not recognise that the
Saramaka people can enjoy and exercise property rights as a community. The
Court observed that other communities in Suriname have been denied the right
to seek judicial protection against alleged violations of their collective
property rights precisely because a judge considered they did not have the
legal capacity necessary to request such protection. This, the Court opined,
placed the Saramaka people in a vulnerable situation where individual
‘property rights' may trump their rights over communal property, and where
the Saramaka people may not seek, as a juridical personality, judicial
protection against violations of their ‘property rights' recognised under
Article 21 of the Convention.
194. As is in the instant case before the African Commission, the State of
Suriname acknowledged that its domestic legal framework did not recognise
the right of the members of the Saramaka people to the use and enjoyment of
property in accordance with their system of communal property, but rather a
privilege to use land. It also went on to provide reasons, as to why it
should not be held accountable for giving effect to the Saramaka claims to a
right to property, for example because the land tenure system of the
Saramaka people, particularly regarding who owns the land, presents a
practical problem for state recognition of their right to communal property.
The IACtHR rejected all of the State's arguments. In the present
Communication, the High Court of Kenya similarly dismissed any claims based
on historic occupation and cultural rights.[FN149]
--------------------------------------------------------------------------------
[FN149] Op. cit, paras 11 and 12.
--------------------------------------------------------------------------------
195. The IACtHR went further to say that, in any case, the alleged lack of
clarity as to the land tenure system of the Saramakas should not present an
insurmountable obstacle for the State, which has the duty to consult with
the members of the Saramaka people and seek clarification of this issue, in
order to comply with its obligations under Article 21 of the Convention.
196. In the present Communication, the Respondent State (the Kenyan
Government) during the oral hearings argued that legislation or special
treatment in favour of the Endorois might be perceived as being
discriminatory. The African Commission rejects that view. The African
Commission is of the view that the Respondent State cannot abstain from
complying with its international obligations under the African Charter
merely because it might be perceived to be discriminatory to do so. It is of
the view that in certain cases, positive discrimination or affirmative
action helps to redress imbalance. The African Commission shares the
Respondent State's concern over the difficulty involved; nevertheless, the
State still has a duty to recognise the right to property of members of the
Endorois community, within the framework of a communal property system, and
establish the mechanisms necessary to give domestic legal effect to such
right recognised in the Charter and international law. Besides, it is a well
established principle of international law that unequal treatment towards
persons in unequal situations does not necessarily amount to impermissible
discrimination.[FN150] Legislation that recognises said differences is
therefore not necessarily discriminatory.
--------------------------------------------------------------------------------
[FN150] See ECHR, Connors v. The United Kingdom, (declaring that States have
an obligation to take positive steps to provide for and protect the
different lifestyles of minorities as a way of providing equality under the
law). See also IACmHR Report on the Situation of Human Rights in Ecuador,
(stating that "within international law generally, and Inter-American law
specifically, special protections for indigenous peoples may be required for
them to exercise their rights fully and equally with the rest of the
population. Additionally, special protections for indigenous peoples may be
required to ensure their physical and cultural survival - a right protected
in a range of international instruments and conventions"). See also U.N.
International Convention on the Elimination of All Forms of Racial
Discrimination, Art. 1.4 (stating that "[s]pecial measures taken for the
sole purpose of securing adequate advancement of certain racial or ethnic
groups or individuals requiring such protection as may be necessary in order
to ensure such groups or individuals equal enjoyment or exercise of human
rights and fundamental freedoms shall not be deemed racial discrimination"),
and UNCERD, General Recommendation No. 23, Rights of indigenous peoples,
para. 4 (calling upon States to take certain measures in order to recognise
and ensure the rights of indigenous peoples).
--------------------------------------------------------------------------------
197. Again drawing on the Saramaka v Suriname case, which confirms earlier
jurisprudence of the Moiwana v Suriname, Yakye Axa v Paraguay[FN151],
Sawhoyamaxa v Paraguay[FN152], and Mayagna Awas Tingni v Nicaragua;[FN153]
the Saramaka case has held that Special measures of protection are owed to
members of the tribal community to guarantee the full exercise of their
rights. The IACtHR stated that based on Article 1(1) of the Convention,
members of indigenous and tribal communities require special measures that
guarantee the full exercise of their rights, particularly with regard to
their enjoyment of ‘property rights' in order to safeguard their physical
and cultural survival.
--------------------------------------------------------------------------------
[FN151] Indigenous Community Yakye Axa v. Paraguay 17 June 2005, Inter
American Court of Human Rights.
[FN152] Case of the Sawhoyamaxa Indigenous Community v. Paraguay, Judgment
of 29 March 2006 Inter-American Court of Human Rights.
[FN153] See The Mayagna Awas Tingni v. Nicaragua, Inter-American Court of
Human Rights, (2001) hereinafter the Awas Tingni Case 2001.
--------------------------------------------------------------------------------
198. Other sources of international law have similarly declared that such
special measures are necessary. In the Moiwana case, the IACtHR determined
that another Maroon community living in Suriname was also not indigenous to
the region, but rather constituted a tribal community that settled in
Suriname in the 17th and 18th century, and that this tribal community had "a
profound and all-encompassing relationship to their ancestral lands" that
was centred, not "on the individual, but rather on the community as a
whole." This special relationship to land, as well as their communal concept
of ownership, prompted the Court to apply to the tribal Moiwana community
its jurisprudence regarding indigenous peoples and their right to communal
property under Article 21 of the Convention.
199. The African Commission is of the view that even though the Constitution
of Kenya provides that Trust Land may be alienated and that the Trust Land
Act provides comprehensive procedure for the assessment of compensation, the
Endorois property rights have been encroached upon, in particular by the
expropriation and the effective denial of ownership of their land. It agrees
with the Complainants that the Endorois were never given the full title to
the land they had in practice before the British colonial administration.
Their land was instead made subject to a trust, which gave them beneficial
title, but denied them actual title. The African Commission further agrees
that though for a decade they were able to exercise their traditional rights
without restriction, the trust land system has proved inadequate to protect
their rights.
200. The African Commission also notes the views expressed by the Committee
on Economic, Social and Cultural Rights which has provided a legal test for
forced removal from lands which is traditionally claimed by a group of
people as their property. In its ‘General Comment No. 4' it states that
"instances of forced eviction are prima facie incompatible with the
requirements of the Covenant and can only be justified in the most
exceptional circumstances, and in accordance with the relevant principles of
international law."[FN154] This view has also been reaffirmed by the United
Nations Commission on Human Rights which states that forced evictions are a
gross violations of human rights, and in particular the right to adequate
housing.[FN155] The African Commission also notes General Comment No. 7
requiring States Parties, prior to carrying out any evictions, to explore
all feasible alternatives in consultation with affected persons, with a view
to avoiding, or at least minimizing, the need to use force. [FN156]
--------------------------------------------------------------------------------
[FN154] Committee on Economic, Social and Cultural Rights, General Comment
4, The right to adequate housing (Sixth session, 1991), para. 18, U.N. Doc.
E/1992/23, annex III at 114 (1991), reprinted in Compilation of General
Comments and General Recommendations Adopted by Human Rights Treaty Bodies,
U.N. Doc. HRI/GEN/1/Rev.6 at 18 (2003).
[FN155] See, Commission on Human Rights resolution 1993/77, UN Doc.
E/C.4/RES/1993/77 (1993); Commission on Human Rights Resolution 2004/28, UN
Doc. E/C.4/RES/2004/28 (2004).
[FN156] See Committee on Economic, Social and Cultural Rights, General
Comment 7, Forced evictions, and the right to adequate housing (Sixteenth
session, 1997), para. 14, U.N. Doc. E/1998/22, annex IV at 113 (1998),
reprinted in Compilation of General Comments and General Recommendations
Adopted by Human Rights Treaty Bodies, U.N. Doc. HRI/GEN/1/Rev.6 at 45
(2003).
--------------------------------------------------------------------------------
201. The African Commission is also inspired by the European Commission of
Human Rights. Article 1 of Protocol 1 to the European Convention states:
"Every natural or legal person is entitled to the peaceful enjoyment of his
[or her] possessions. No one shall be deprived of his [or her] possessions
except in the public interest and subject to the conditions provided for by
law and by the general principles of international law."[FN157]
--------------------------------------------------------------------------------
[FN157] Protocol to the Convention for the Protection of Human Rights and
Fundamental Freedoms, Art. 1, 213 U.N.T.S. 262, entered into force 18 May
1954.
--------------------------------------------------------------------------------
202. The African Commission also refers to Akdivar and Others v. Turkey. The
European Court held that forced evictions constitute a violation of Article
1 of Protocol 1 to the European Convention. Akdivar and Others involved the
destruction of housing in the context of the ongoing conflict between the
Government of Turkey and Kurdish separatist forces. The petitioners were
forcibly evicted from their properties, which were subsequently set on fire
and destroyed. It was unclear which party to the conflict was responsible.
Nonetheless, the European Court held that the Government of Turkey violated
both Article 8 of the European Convention and Article 1 of Protocol 1 to the
European Convention because it has a duty to both respect and protect the
rights enshrined in the European Convention and its Protocols.
203. In the instant case, the Respondent State sets out the conditions when
Trust Land is set apart for whatever purpose.[FN158]
--------------------------------------------------------------------------------
[FN158] See 3.2.0 of the Respondent State Brief on the Merits. See also para
178 of this judgment where the Respondent State argues that the community's
rights of access is not extinguished.
--------------------------------------------------------------------------------
204. The African Commission notes that the UN Declaration on the Rights of
Indigenous Peoples, officially sanctioned by the African Commission through
its 2007 Advisory Opinion, deals extensively with land rights. The
jurisprudence under international law bestows the right of ownership rather
than mere access. The African Commission notes that if international law
were to grant access only, indigenous peoples would remain vulnerable to
further violations/dispossession by the State or third parties. Ownership
ensures that indigenous peoples can engage with the state and third parties
as active stakeholders rather than as passive beneficiaries.[FN159]
--------------------------------------------------------------------------------
[FN159] See Articles 8(2) (b), 10, 25, 26 and 27 of the UN Declaration on
the Rights of Indigenous Peoples.
--------------------------------------------------------------------------------
205. The Inter-American Court jurisprudence also makes it clear that mere
access or de facto ownership of land is not compatible with principles of
international law. Only de jure ownership can guarantee indigenous peoples'
effective protection.[FN160]
--------------------------------------------------------------------------------
[FN160] Para 110 of the Saramaka case.
--------------------------------------------------------------------------------
206. In the Saramaka case, the Court held that the State's legal framework
merely grants the members of the Saramaka people a privilege to use land,
which does not guarantee the right to effectively control their territory
without outside interference. The Court held that, rather than a privilege
to use the land, which can be taken away by the State or trumped by real
property rights of third parties, members of indigenous and tribal peoples
must obtain title to their territory in order to guarantee its permanent use
and enjoyment. This title must be recognised and respected not only in
practice but also in law in order to ensure its legal certainty. In order to
obtain such title, the territory traditionally used and occupied by the
members of the Saramaka people must first be delimited and demarcated, in
consultation with such people and other neighbouring peoples. The situation
of the Endorois is not different. The Respondent State simply wants to grant
them privileges such as restricted access to ceremonial sites. This, in the
opinion of the Commission, falls below internationally recognised norms. The
Respondent State must grant title to their territory in order to guarantee
its permanent use and enjoyment.
207. The African Commission notes that that Articles 26 and 27 of the UN
Declaration on Indigenous Peoples use the term "occupied or otherwise used."
This is to stress that indigenous peoples have a recognised claim to
ownership to ancestral land under international law, even in the absence of
official title deeds. This was made clear in the judgment of Awas Tingni v
Nicaragua. In the current leading international case on this issue, The
Mayagna (Sumo) Awas Tingni v Nicaragua,[FN161] the IActHR recognised that
the Inter-American Convention protected property rights "in a sense which
includes, among others, the rights of members of the indigenous communities
within the framework of communal property." [FN162] It stated that
possession of the land should suffice for indigenous communities lacking
real title to obtain official recognition of that property.[FN163]
--------------------------------------------------------------------------------
[FN161] The Awas Tingni Case (2001), paras. 140(b) and 151.
[FN162] Ibid, at para. 148.
[FN163] Ibid, at para. 151.
--------------------------------------------------------------------------------
208. The African Commission also notes that in the case of Sawhoyamaxa v
Paraguay, the IActHR, acting within the scope of its adjudicatory
jurisdiction, decided on indigenous land possession in three different
situations, viz: in the Case of the Mayagna (Sumo) Awas Tingni Community,
the Court pointed out that possession of the land should suffice for
indigenous communities lacking real title to property of the land to obtain
official recognition of that property, and for consequent
registration;[FN164] in the Case of the Moiwana Community, the Court
considered that the members of the N'djuka people were the "legitimate
owners of their traditional lands", although they did not have possession
thereof, because they left them as a result of the acts of violence
perpetrated against them, though in this case, the traditional lands were
not occupied by third parties.[FN165] Finally, in the Case of the Indigenous
Community Yakye Axa, the Court considered that the members of the community
were empowered, even under domestic law, to file claims for traditional
lands and ordered the State, as measure of reparation, to individualise
those lands and transfer them on a no consideration basis.[FN166]
--------------------------------------------------------------------------------
[FN164] See case of the Mayagna (Sumo) Awas Tingni Community, supra note
184, para. 151.
[FN165] See case of the Moiwana Community. Judgment of 15 June 2005. Series
C No. 124. para. 134.
[FN166] See case of the Indigenous Community Yakye Axa, supra note 1, paras.
124-131.
--------------------------------------------------------------------------------
209. In the view of the African Commission, the following conclusions could
be drawn: (1) traditional possession of land by indigenous people has the
equivalent effect as that of a state-granted full property title; (2)
traditional possession entitles indigenous people to demand official
recognition and registration of property title; (3) the members of
indigenous peoples who have unwillingly left their traditional lands, or
lost possession thereof, maintain property rights thereto, even though they
lack legal title, unless the lands have been lawfully transferred to third
parties in good faith; and (4) the members of indigenous peoples who have
unwillingly lost possession of their lands, when those lands have been
lawfully transferred to innocent third parties, are entitled to restitution
thereof or to obtain other lands of equal extension and quality.
Consequently, possession is not a requisite condition for the existence of
indigenous land restitution rights. The instant case of the Endorois is
categorised under this last conclusion. The African Commission thus agrees
that the land of the Endorois has been encroached upon.
210. That such encroachment has taken place could be seen by the Endorois'
inability, after being evicted from their ancestral land, to have free
access to religious sites and their traditional land to graze their cattle.
The African Commission is aware that access roads, gates, game lodges and a
hotel have all been built on the ancestral land of the Endorois community
around Lake Bogoria and imminent mining operations also threatens to cause
irreparable damage to the land. The African Commission has also been
notified that the Respondent State is engaged in the demarcation and sale of
parts of Endorois historic lands to third parties.
211. The African Commission is aware that encroachment in itself is not a
violation of Article 14 of the Charter, as long as it is done in accordance
with the law. Article 14 of the African Charter indicates a two-pronged
test, where that encroachment can only be conducted - ‘in the interest of
public need or in the general interest of the community' and ‘in accordance
with appropriate laws'. The African Commission will now assess whether an
encroachment ‘in the interest of public need' is indeed proportionate to the
point of overriding the rights of indigenous peoples to their ancestral
lands. The African Commission agrees with the Complainants that the test
laid out in Article 14 of the Charter is conjunctive, that is, in order for
an encroachment not to be in violation of Article 14, it must be proven that
the encroachment was in the interest of the public need/general interest of
the community and was carried out in accordance with appropriate laws.
212. The ‘public interest' test is met with a much higher threshold in the
case of encroachment of indigenous land rather than individual private
property. In this sense, the test is much more stringent when applied to
ancestral land rights of indigenous peoples. In 2005, this point was
stressed by the Special Rapporteur of the United Nations Sub-Commission for
the Promotion and Protection of Human Rights who published the following
statement:
Limitations, if any, on the right to indigenous peoples to their natural
resources must flow only from the most urgent and compelling interest of the
state. Few, if any, limitations on indigenous resource rights are
appropriate, because the indigenous ownership of the resources is associated
with the most important and fundamental human rights, including the right to
life, food, the right to self-determination, to shelter, and the right to
exist as a people.[FN167]
--------------------------------------------------------------------------------
[FN167] Nazila Ghanea and Alexandra Xanthaki (2005) (eds). ‘Indigenous
Peoples' Right to Land and Natural Resources' in Erica-Irene Daes
‘Minorities, Peoples and Self-Determination', Martinus Nijhoff Publishers.
27th Activity Report of the ACHPR 157
--------------------------------------------------------------------------------
213. Limitations on rights, such as the limitation allowed in Article 14,
must be reviewed under the principle of proportionality. The Commission
notes its own conclusions that "... the justification of limitations must be
strictly proportionate with and absolutely necessary for the advantages
which follow."[FN168] The African Commission also notes the decisive case of
Handyside v. United Kingdom, where the ECHR stated that any condition or
restriction imposed upon a right must be "proportionate to the legitimate
aim pursued."[FN169]
--------------------------------------------------------------------------------
[FN168]Constitutional Rights Project, Civil Liberties Organisation and Media
Rights Agenda v. Nigeria, African Commission on Human and Peoples' Rights,
Comm Nos. 140/94, 141/94, 145/95 (1999), para. 42 (hereinafter The
Constitutional Rights Project Case 1999).
[FN169] Handyside v. United Kingdom, No. 5493/72, Series A.24 (7 December
1976), para. 49.
--------------------------------------------------------------------------------
214. The African Commission is of the view that any limitations on rights
must be proportionate to a legitimate need, and should be the least
restrictive measures possible. In the present Communication, the African
Commission holds the view that in the pursuit of creating a Game Reserve,
the Respondent State has unlawfully evicted the Endorois from their
ancestral land and destroyed their possessions. It is of the view that the
upheaval and displacement of the Endorois from the land they call home and
the denial of their property rights over their ancestral land is
disproportionate to any public need served by the Game Reserve.
215. It is also of the view that even if the Game Reserve was a legitimate
aim and served a public need, it could have been accomplished by alternative
means proportionate to the need. From the evidence submitted both orally and
in writing, it is clear that the community was willing to work with the
Government in a way that respected their property rights, even if a Game
Reserve was being created. In that regard, the African Commission notes its
own conclusion in the Constitutional Rights Project Case, where it says that
"a limitation may not erode a right such that the right itself becomes
illusory."[FN170] At the point where such a right becomes illusory, the
limitation cannot be considered proportionate – the limitation becomes a
violation of the right. The African Commission agrees that the Respondent
State has not only denied the Endorois community all legal rights in their
ancestral land, rendering their property rights essentially illusory, but in
the name of creating a Game Reserve and the subsequent eviction of the
Endorois community from their own land, the Respondent State has violated
the very essence of the right itself, and cannot justify such an
interference with reference to "the general interest of the community" or a
"public need."
--------------------------------------------------------------------------------
[FN170] The Constitutional Rights Project Case, para. 42
--------------------------------------------------------------------------------
216. The African Commission notes that the link to the right to life, in
paragraph 219 above, is particularly notable, as it is a non-derogable right
under international law. Incorporating the right to life into the threshold
of the ‘public interest test' is further confirmed by jurisprudence of the
IActHR. In Yakye Axa v Paraguay the Court found that the fallout from
forcibly dispossessing indigenous peoples from their ancestral land could
amount to an Article 4 violation (right to life) if the living conditions of
the community are incompatible with the principles of human dignity.
217. The IActHR held that one of the obligations that the State must
inescapably undertake as guarantor to protect and ensure the right to life
is that of generating minimum living conditions that are compatible with the
dignity of the human person and of not creating conditions that hinder or
impede it. In this regard, the State has the duty to take positive, concrete
measures geared towards fulfilment of the right to a decent life, especially
in the case of persons who are vulnerable and at risk, whose care becomes a
high priority.
218. The African Commission also notes that the ‘disproportionate' nature of
an encroachment on indigenous lands – therefore falling short of the test
set out by the provisions of Article 14 of the African Charter - is to be
considered an even greater violation of Article 14, when the displacement at
hand was undertaken by force. Forced evictions, by their very definition,
cannot be deemed to satisfy Article 14 of the Charter's test of being done
‘in accordance with the law'. This provision must mean, at the minimum, that
both Kenyan law and the relevant provisions of international law were
respected. The grave nature of forced evictions could amount to a gross
violation of human rights. Indeed, the United Nations Commission on Human
Rights, in Resolutions 1993/77 and 2004/28, has reaffirmed that forced
evictions amount to a gross violations of human rights and in particular the
right to adequate housing."[FN171] Where such removal was forced, this would
in itself suggest that the ‘proportionality' test has not been satisfied.
--------------------------------------------------------------------------------
[FN171] See United Nations Commission on Human Rights resolution 1993/77, UN
Doc. E/CN.4/1993/RES/77 and United Nations Commission on Human Rights
resolution 2004/28, UN Doc. E/CN.4/2004/RES/28. Both resolutions reaffirm
that the practice of forced eviction is a gross violations of human rights
and in particular the right to adequate housing.
--------------------------------------------------------------------------------
219. With respect to the ‘in accordance with the law' test, the Respondent
State should also be able to show that the removal of the Endorois was not
only in the public interest, but their removal satisfied both Kenyan and
international law. If it is settled that there was a trust in favour of the
Endorois, was it legally extinguished? If it was, how was it satisfied? Was
the community adequately compensated? Also, did the relevant legislation
creating the Game Reserve, expressly required the removal of the Endorois
from their land?
220. The African Commission notes that the Respondent State does not contest
the claim that the traditional lands of the Endorois people are classified
as Trust Land. In fact S. 115 of the Kenyan Constitution gives effect to
that claim. In the opinion of the African Commission it created a beneficial
right for the Endorois over their ancestral land. This should have meant
that the County Council should give effect to such rights, interest or other
benefits in respect of the land.
221. The Complainants argue that the Respondent State created the Lake
Hannington Game Reserve, including the Endorois indigenous lands, on 9
November 1973. The name was changed to Lake Bogoria Game Reserve in a second
notice in 1974.[FN172] The 1974 notice was made by the Kenyan Minister for
Tourism and Wildlife under the Wild Animals Protection Act (WAPA).[FN173]
The Complainants argue that WAPA applied to Trust Land as it did to any
other land, and did not require that the land be taken out of the Trust
before a Game Reserve could be declared over that land.
--------------------------------------------------------------------------------
[FN172] Pursuant to Kenyan law, the authorities published notice 239/1973 in
the Kenya Reserve to declare the creation of "Lake Hannington Game Reserve."
Gazette notice 270/1974 was published to revoke the earlier notice and
change the name of the Game Reserve on 12 October 1974: "the area set forth
in the schedule hereto to be a Game Reserve known as Lake Bogoria Game
Reserve."
[FN173] See section 3(2) for relevant parts of WAPA. Section 3(2) was
subsequently revoked on 13 February 1976 by S.68 of the Wildlife
Conservation and Management Act.
--------------------------------------------------------------------------------
222. They further argue that the relevant legislation did not give authority
for the removal of any individual or group occupying the land in a Game
Reserve. Instead, WAPA merely prohibited the hunting, killing or capturing
of animals within the Game Reserve.[FN174] The Complainants argue that
despite no clear legal order asking them to relocate to another land, the
Endorois community was informed from 1973 onwards that they would have to
leave their ancestral lands.
--------------------------------------------------------------------------------
[FN174] See section 3(20) of WAPA, which did not allow the Kenyan Minister
for Tourism and Wildlife to remove the present occupiers.
--------------------------------------------------------------------------------
223. In rebuttal, the Respondent State argues that the Constitution of Kenya
provides that Trust Land may be alienated. It also states that the
"Government offered adequate and prompt compensation to the affected
people..."[FN175] As regards the Complainants' claim that the Respondent State
prevented the Endorois community from accessing their other ancestral lands,
Muchongoi forest, the Respondent State argues that the land in question was
gazetted in 1941 by the name of Ol Arabel Forest with the implication that
the land ceased being communal by virtue of the gazettement.
--------------------------------------------------------------------------------
[FN175] See para 3.3.3 of the Respondent State's Merits brief.
--------------------------------------------------------------------------------
224. The African Commission agrees that WAPA merely prohibited the hunting,
killing or capturing of animals within the Game Reserve.[FN176]
Additionally, the Respondent State has not been able to prove without doubt
that the eviction of the Endorois community satisfied both Kenyan and
international law. The African Commission is not convinced that the whole
process of removing the Endorois from their ancestral land satisfied the
very stringent international law provisions. Furthermore, the mere gazetting
of Trust Land is not sufficient to legally extinguish the trust. WAPA should
have required that the land be taken out of the Trust before a Game Reserve
could be declared over that land. This means that the declaration of the
Lake Bogoria Game Reserve by way of the 1974 notice did not affect the
status of the Endorois land as Trust Land. The obligation of Baringo and
Koibatek County Councils to give effect to the rights and interests of the
Endorois people continued. That also has to be read in conjunction with the
concept of adequate compensation. The African Commission is in agreement
with the Complainants that the only way under Kenyan law in which Endorois
benefit under the trust could have been dissolved is if the County Council
or the President of Kenya had "set apart" the land. However, the Trust Land
Act required that to be legal, such setting apart of the land must be
published in the Kenyan Gazette.[FN177]
--------------------------------------------------------------------------------
[FN176] See note 125.
[FN177] The mechanics of such a ‘setting apart' of Trust Land under S.117 or
S.118 of the Constitution are laid down by the Kenyan Trust Land Act.
Publication is required by S.13(3) and (4) of the Trust Land Act in respect
of S.117 Constitution, and by s.7(1) and (4) of the Trust land Act in
respect of S.118 Constitution.
--------------------------------------------------------------------------------
225. Two further elements of the ‘in accordance with the law' test relate to
the requirements of consultation and compensation.
226. In terms of consultation, the threshold is especially stringent in
favour of indigenous peoples, as it also requires that consent be accorded.
Failure to observe the obligations to consult and to seek consent – or to
compensate - ultimately results in a violation of the right to property.
227. In the Saramaka case, in order to guarantee that restrictions to the
property rights of the members of the Saramaka people by the issuance of
concessions within their territory do not amount to a denial of their
survival as a tribal people, the Court stated that the State must abide by
the following three safeguards: first, ensure the effective participation of
the members of the Saramaka people, in conformity with their customs and
traditions, regarding any development, investment, exploration or extraction
plan within Saramaka territory; second, guarantee that the Saramakas will
receive a reasonable benefit from any such plan within their territory;
third, ensure that no concession will be issued within Saramaka territory
unless and until independent and technically capable entities, with the
State's supervision, perform a prior environmental and social impact
assessment. These safeguards are intended to preserve, protect and guarantee
the special relationship that the members of the Saramaka community have
with their territory, which in turn ensures their survival as a tribal
people.
228. In the instant case, the African Commission is of the view that no
effective participation was allowed for the Endorois, nor has there been any
reasonable benefit enjoyed by the community. Moreover, a prior environment
and social impact assessment was not carried out. The absence of these three
elements of the ‘test' is tantamount to a violation of Article 14, the right
to property, under the Charter. The failure to guarantee effective
participation and to guarantee a reasonable share in the profits of the Game
Reserve (or other adequate forms of compensation) also extends to a
violation of the right to development.
229. On the issue of compensation, the Respondent State in rebutting the
Complainants' allegations that inadequate compensation was paid, argues that
the Complainants do not contest that a form of compensation was done, but
that they have only pleaded that about 170 families were compensated. It
further argues that, if at all the compensations paid was not adequate, the
Trust Land Act provides for a procedure for appeal, for the amount and the
people who feel that they are denied compensation over their interest.
230. The Respondent State does not deny the Complainants' allegations that
in 1986, of the 170 families evicted in late 1973, from their homes within
the Lake Bogoria Game Reserve, each receiving around 3,150 Kshs (at the
time, this was equivalent to approximately £30). Such payment was made some
13 years after the first eviction. It does not also deny the allegation that
£30 did not represent the market value of the land gazetted as Lake Bogoria
Game Reserve. It also does not deny that the Kenyan authorities have
themselves recognised that the payment of 3,150 Kshs per family amounted
only to ‘relocation assistance', and does not constitute full compensation
for loss of land.
231. The African Commission is of the view that the Respondent State did not
pay the prompt, full compensation as required by the Constitution. It is of
the view that Kenyan law has not been complied with and that though some
members of the Endorois community accepted limited monetary compensation
that did not mean that they accepted it as full compensation, or indeed that
they accepted the loss of their land.
232. The African Commission notes the observations of the United Nations
Declaration on the Rights of Indigenous Peoples, which, amongst other
provisions for restitutions and compensations, states:
Indigenous peoples have the right to restitution of the lands, territories
and resources which they have traditionally owned or otherwise occupied or
used; and which have been confiscated, occupied, used or damaged without
their free and informed consent. Where this is not possible, they have the
right to just and fair compensation. Unless otherwise freely agreed upon by
the peoples concerned, compensation shall take the form of lands,
territories and resources equal in quality, size and legal status. [FN178]
--------------------------------------------------------------------------------
[FN178] Declaration on the Rights of Indigenous Peoples, preambular para. 5,
E/CN.4/Sub.2/1994/2/Add.1 (1994).
--------------------------------------------------------------------------------
233. In the case of Yakye Axa v Paraguay the Court established that any
violation of an international obligation that has caused damage entails the
duty to provide appropriate reparations.[FN179] To this end, Article 63(1)
of the American Convention establishes that:
[i]f the Court finds that there has been a violation of a right or freedom
protected by th[e] Convention, the Court shall rule that the injured party
be ensured the enjoyment of his right or freedom that was violated. It shall
also rule, if appropriate, that the consequences of the measure or situation
that constituted the breach of such right or freedom be remedied and that
fair compensation be paid to the injured party.
--------------------------------------------------------------------------------
[FN179] See Case of Huilca Tecse. Judgment of 3 March 2005. Series C No.
121, para. 86, and Case of the Serrano Cruz Sisters, para. 133.
--------------------------------------------------------------------------------
234. The Court said that once it has been proved that land restitution
rights are still current, the State must take the necessary actions to
return them to the members of the indigenous people claiming them. However,
as the Court has pointed out, when a State is unable, on objective and
reasonable grounds, to adopt measures aimed at returning traditional lands
and communal resources to indigenous populations, it must surrender
alternative lands of equal extension and quality, which will be chosen by
agreement with the members of the indigenous peoples, according to their own
consultation and decision procedures.[FN180] This was not the case in
respect of the Endorois. The land given them is not of equal quality.
--------------------------------------------------------------------------------
[FN180] See case of the Indigenous Community Yakye Axa, para. 149. 27th
Activity Report of the ACHPR 162
--------------------------------------------------------------------------------
235. The reasons of the Government in the instant Communication are
questionable for several reasons including: (a) the contested land is the
site of a conservation area, and the Endorois – as the ancestral guardians
of that land - are best equipped to maintain its delicate ecosystems; (b)
the Endorois are prepared to continue the conservation work begun by the
Government; (c) no other community have settled on the land in question, and
even if that is the case, the Respondent State is obliged to rectify that
situation,[FN181] (d) the land has not been spoliated and is thus
inhabitable; (e) continued dispossession and alienation from their ancestral
land continues to threaten the cultural survival of the Endorois' way of
life, a consequence which clearly tips the proportionality argument on the
side of indigenous peoples under international law.
--------------------------------------------------------------------------------
[FN181] Indeed, at para 140 of the Sawhoyamaxa Indigenous Community v.
Paraguay case, the Inter-American Court stresses that: "Lastly, with regard
to the third argument put forth by the State, the Court has not been
furnished with the aforementioned treaty between Germany and Paraguay, but,
according to the State, said convention allows for capital investments made
by a contracting party to be condemned or nationalized for a "public purpose
or interest", which could justifiy land restitution to indigenous people".
Moreover, the Court considers that the enforcement of bilateral commercial
treaties negates vindication of non-compliance with state obligations under
the American Convention; on the contrary, their enforcement should always be
compatible with the American Convention, which is a multilateral treaty on
human rights that stands in a class of its own and that generates rights for
individual human beings and does not depend entirely on reciprocity among
States.
--------------------------------------------------------------------------------
236. It seems also to the African Commission that the amount of £30 as
compensation for one's ancestral home land flies in the face of common sense
and fairness.
237. The African Commission notes the detailed recommendations regarding
compensation payable to displaced or evicted persons developed by the United
Nations Sub-Commission on Prevention of Discrimination and Protection of
Minorities.[FN182] These recommendations, which have been considered and
applied by the European Court of Human Rights,[FN183] set out the following
principles for compensation on loss of land: Displaced persons should be (i)
compensated for their losses at full replacement cost prior to the actual
move; (ii) assisted with the move and supported during the transition period
in the resettlement site; and (iii) assisted in their efforts to improve
upon their former living standards, income earning capacity and production
levels, or at least to restore them. These recommendations could be followed
if the Respondent State is interested in giving a fair compensation to the
Endorois.
--------------------------------------------------------------------------------
[FN182] UN Sub-Commission on Prevention of Discrimination and Protection of
Minorities, Guidelines on International Events and Forced Evictions
(Forty-seventh session, 1995), UN Doc. E/CN.4/Sub.2/1995/13. 17 July 1995,
para. 16(b) and (e)
[FN183] Doğan v. Turkey (2004), para. 154.
--------------------------------------------------------------------------------
238. Taking all the submissions of both parties, the African Commission
agrees with the Complainants that the Property of the Endorois people has
been severely encroached upon and continues to be so encroached upon. The
encroachment is not proportionate to any public need and is not in
accordance with national and international law. Accordingly, the African
Commission finds for the Complainants that the Endorois as a distinct people
have suffered a violation of Article 14 of the Charter.
ALLEGED VIOLATION OF ARTICLE 17 (2) AND (3)
239. The Complainants allege that the Endorois' cultural rights have been
violated on two counts: first, the community has faced systematic
restrictions on access to cultural sites and, second, that the cultural
rights of the community have been violated by the serious damage caused by
the Kenyan Authorities to their pastoralist way of life.
240. The Respondent State denies the allegation claiming that access to the
forest areas was always permitted, subject to administrative procedures. The
Respondent State also submits that in some instances some communities have
allowed political issues to be disguised as cultural practices and in the
process they endanger the peaceful coexistence with other communities. The
Respondent State does not substantiate who these "communities" or what these
"political issues to be disguised as cultural practices" are.
241. The African Commission is of the view that protecting human rights goes
beyond the duty not to destroy or deliberately weaken minority groups, but
requires respect for, and protection of, their religious and cultural
heritage essential to their group identity, including buildings and sites
such as libraries, churches, mosques, temples and synagogues. Both the
Complainants and the Respondent State seem to agree on that. It notes that
Article 17 of the Charter is of a dual dimension in both its individual and
collective nature, protecting, on the one hand, individuals' participation
in the cultural life of their community and, on the other hand, obliging the
state to promote and protect traditional values recognised by a community.
It thus understands culture to mean that complex whole which includes a
spiritual and physical association with one's ancestral land, knowledge,
belief, art, law, morals, customs, and any other capabilities and habits
acquired by humankind as a member of society - the sum total of the material
and spiritual activities and products of a given social group that
distinguish it from other similar groups. It has also understood cultural
identity to encompass a group's religion, language, and other defining
characteristics.[FN184]
--------------------------------------------------------------------------------
[FN184] Rachel Murray and Steven Wheatley (2003) ‘Groups and the African
Charter on Human and Peoples' Rights', Human Rights Quarterly, 25, p. 224.
--------------------------------------------------------------------------------
242. The African Commission notes that the preamble of the African Charter
acknowledges that "civil and political rights cannot be dissociated from
economic, social and cultural rights ... social, cultural rights are a
guarantee for the enjoyment of civil and political rights", ideas which
influenced the 1976 African Cultural Charter which in its preamble
highlights "the inalienable right [of any people] to organise its cultural
life in full harmony with its political, economic, social, philosophical and
spiritual ideas."[FN185] Article 3 of the same Charter states that culture
is a source of mutual enrichment for various communities.[FN186]
--------------------------------------------------------------------------------
FN185] African Cultural Charter (1976), para 6 of the Preamble.
[FN186] Ibid. Article 3.
--------------------------------------------------------------------------------
243. This Commission also notes the views of the Human Rights Committee with
regard to the exercise of the cultural rights protected under Article 27 of
the UN Declaration on the Rights of Persons Belonging to National or Ethnic,
Religious and Linguistic Minorities. The Committee observes that "culture
manifests itself in many forms, including a particular way of life
associated with the use of land resources, especially in the case of
indigenous peoples. That right may include such traditional activities as
fishing or hunting and the right to live in reserves protected by law. The
enjoyment of those rights may require positive legal measures of protection
and measures to ensure the effective participation of members of minority
communities in decisions which affect them."[FN187]
--------------------------------------------------------------------------------
[FN187] Human Rights Committee, General Comment 23 (Fiftieth Session, 1994),
U.N. Doc. CCPR/C/21Rev.1/Add5, (1994). Para. 7.
--------------------------------------------------------------------------------
244. The African Commission notes that a common theme that usually runs
through the debate about culture and its violation is the association with
one's ancestral land. It notes that its own Working Group on Indigenous
Populations/Communities has observed that dispossession of land and its
resources is "a major human rights problem for indigenous peoples."[FN188]
It further notes that a Report from the Working Group has also emphasised
that dispossession "threatens the economic, social and cultural survival of
indigenous pastoralist and hunter-gatherer communities." [FN189]
--------------------------------------------------------------------------------
[FN188] Report of the African Commission's Working Group on Indigenous
Populations/Committees (2003), p.20.
[FN189] Ibid. p.20.
--------------------------------------------------------------------------------
245. In the case of indigenous communities in Kenya, the African Commission
notes the critical ‘Report of the Special Rapporteur on the Situation of
Human Rights and Fundamental Freedoms of Indigenous People in Kenya' that
"their livelihoods and cultures have been traditionally discriminated
against and their lack of legal recognition and empowerment reflects their
social, political and economic marginalization."[FN190] He also said that
the principal human rights issues they face "relate to the loss and
environmental degradation of their land, traditional forests and natural
resources, as a result of dispossession in colonial times and in the
post-independence period. In recent decades, inappropriate development and
conservationist policies have aggravated the violation of their economic,
social and cultural rights."[FN191]
--------------------------------------------------------------------------------
[FN190] Report of the Special Rapporteur on the Situation of Human Rights
and Fundamental Freedoms of Indigenous Peoples, supra n. 47.
[FN191] Ibid. Italics added for emphasis.
--------------------------------------------------------------------------------
246. The African Commission is of the view that in its interpretation of the
African Charter, it has recognised the duty of the state to tolerate
diversity and to introduce measures that protect identity groups different
from those of the majority/dominant group. It has thus interpreted Article
17(2) as requiring governments to take measures "aimed at the conservation,
development and diffusion of culture," such as promoting "cultural identity
as a factor of mutual appreciation among individuals, groups, nations and
regions; . . . promoting awareness and enjoyment of cultural heritage of
national ethnic groups and minorities and of indigenous sectors of the
population."[FN192]
--------------------------------------------------------------------------------
[FN192] Guidelines for National Periodic Reports, in Second Annual Activity
Report of the African Commission on Human and Peoples Rights 1988–1989,
ACHPR/RPT/2nd, Annex XII.
--------------------------------------------------------------------------------
247. The African Commission's WGIP has further highlighted the importance of
creating spaces for dominant and indigenous cultures to co-exist. The WGIP
notes with concern that:
Indigenous communities have in so many cases been pushed out of their
traditional areas to give way for the economic interests of other more
dominant groups and to large scale development initiatives that tend to
destroy their lives and cultures rather than improve their situation.[FN193]
--------------------------------------------------------------------------------
[FN193] Report of the African Commission's Working Group on Indigenous
Populations/Committees (2005), p. 20. [Emphasis added]
--------------------------------------------------------------------------------
248. The African Commission is of the opinion that the Respondent State has
a higher duty in terms of taking positive steps to protect groups and
communities like the Endorois,[FN194] but also to promote cultural rights
including the creation of opportunities, policies, institutions, or other
mechanisms that allow for different cultures and ways of life to exist,
develop in view of the challenges facing indigenous communities. These
challenges include exclusion, exploitation, discrimination and extreme
poverty; displacement from their traditional territories and deprivation of
their means of subsistence; lack of participation in decisions affecting the
lives of the communities; forced assimilation and negative social statistics
among other issues and, at times, indigenous communities suffer from direct
violence and persecution, while some even face the danger of
extinction.[FN195]
--------------------------------------------------------------------------------
[FN194] See UN Declaration on the Rights of Persons Belonging to National or
Ethnic, Religious and Linguistic Minorities, Article 4(2): States shall take
measures to create favourable conditions to enable persons belonging to
minorities to express their characteristics and to develop their culture,
language, religion, traditions and customs; CERD General Recommendation
XXIII, Article 4(e): Ensure that indigenous communities can exercise their
rights to practise and revitalize their cultural traditions and customs and
to preserve and to practise their languages; International Covenant on
Economic, Social and Cultural Rights, Article 15(3).
[FN195] See statement by Mr. Sha Zukang Under-Secretary General for Economic
and Social Affairs and Coordinator of the Second International Decade of the
World's Indigenous People to the Third Committee of the General Assembly on
the Item "Indigenous Issues" New York, 20 October 2008.
--------------------------------------------------------------------------------
249. In its analysis of Article 17 of the African Charter, the African
Commission is aware that unlike Articles 8 and 14, Article 17 has no
claw-back clause. The absence of a claw-back clause is an indication that
the drafters of the Charter envisaged few, if any, circumstances in which it
would be appropriate to limit a people's right to culture. It further notes
that even if the Respondent State were to put some limitation on the
exercise of such a right, the restriction must be proportionate to a
legitimate aim that does not interfere adversely on the exercise of a
community's cultural rights. Thus, even if the creation of the Game Reserve
constitutes a legitimate aim, the Respondent State's failure to secure
access, as of right, for the celebration of the cultural festival and
rituals cannot be deemed proportionate to that aim. The Commission is of the
view that the cultural activities of the Endorois community pose no harm to
the ecosystem of the Game Reserve and the restriction of cultural rights
could not be justified, especially as no suitable alternative was given to
the community.
250. It is the opinion of the African Commission that the Respondent State
has overlooked that the universal appeal of great culture lies in its
particulars and that imposing burdensome laws or rules on culture undermines
its enduring aspects. The Respondent State has not taken into consideration
the fact that by restricting access to Lake Bogoria, it has denied the
community access to an integrated system of beliefs, values, norms, mores,
traditions and artifacts closely linked to access to the Lake.
251. By forcing the community to live on semi-arid lands without access to
medicinal salt licks and other vital resources for the health of their
livestock, the Respondent State have created a major threat to the Endorois
pastoralist way of life. It is of the view that the very essence of the
Endorois‟ right to culture has been denied, rendering the right, to all
intents and purposes, illusory. Accordingly, the Respondent State is found
to have violated Article 17(2) and (3) of the Charter.
ALLEGED VIOLATION OF ARTICLE 21
252. The Complainants allege that the Endorois community has been unable to
access the vital resources in the Lake Bogoria region since their eviction
from the Game Reserve.
253. The Respondent State denies the allegation. It argues that it is of the
view that the Complainants have immensely benefited from the tourism and
mineral prospecting activities , noting for example:
a) Proceeds from the Game Reserve have been utilised to finance a number of
projects in the area, such as schools, health facilities, wells and roads.
b) Since the discovery of ruby minerals in the Weseges area near Lake
Bogoria, three companies have been issued with prospecting licences, noting
that two out of three companies belong to the community, including the
Endorois. In addition, the company which does not consist of the locals,
namely Corby Ltd, entered into an agreement with the community, binding
itself to deliver some benefits to the latter in terms of supporting
community projects. It states that it is evident (from the minutes of a
meeting of the community and the company) that the company is ready to
undertake a project in the form of an access road to the prospecting site
for the community's and prospecting company's use.
c) The Respondent State also argues that the mineral prospecting activities
are taking place outside the Lake Bogoria Game Reserve, which means that the
land is not the subject matter of the Applicants' complaint.
254. The Respondent State also argue that the community has been holding
consultations with Corby Ltd., as evidence by the agreement between them is
a clear manifestation of the extent to which the former participants in the
decisions touch on the exploitation of the natural resources and the sharing
of the benefits emanating therefrom.
255. The African Commission notes that in The Ogoni case the right to
natural resources contained within their traditional lands is also vested in
the indigenous people, making it clear that a people inhabiting a specific
region within a state could also claim under Article 21 of the African
Charter. [FN196] The Respondent State does not give enough evidence to
substantiate the claim that the Complainants have immensely benefited from
the tourism and mineral prospecting activities.
--------------------------------------------------------------------------------
[FN196] The Ogoni Case (2001), paras 56-58.
--------------------------------------------------------------------------------
256. The African Commission notes that proceeds from the Game Reserve have
been used to finance a lot of useful projects, ‘a fact' that the
Complainants do not contest. The African Commission, however, refers to
cases in the Inter-American Human Rights system to understand this area of
the law. The American Convention does not have an equivalent of the African
Charter's Article 21 on the Right to Natural Resources. It therefore reads
the right to natural resources into the right to property (Article 21 of the
American Convention), and in turn applies similar limitation rights on the
issue of natural resources as it does on limitations of the right to
property. The "test" in both cases makes for a much higher threshold when
potential spoliation or development of the land is affecting indigenous
land.
257. In the Saramaka case and Inter-American case law, an issue that flows
from the IActHR assertion that the members of the Saramaka people have a
right to use and enjoy their territory in accordance with their traditions
and customs is the issue of the right to the use and enjoyment of the
natural resources that lie on and within the land, including subsoil natural
resources. In the Saramaka case both the State and the members of the
Saramaka people claim a right to these natural resources. The Saramakas
claim that their right to use and enjoy all such natural resources is a
necessary condition for the enjoyment of their right to property under
Article 21 of the Convention. The State argued that all rights to land,
particularly its subsoil natural resources, are vested in the State, which
it can freely dispose of these resources through concessions to third
parties.
258. The IActHR addressed this complex issue in the following order: first,
the right of the members of the Saramaka people to use and enjoy the natural
resources that lie on and within their traditionally owned territory;
second, the State's grant of concessions for the exploration and extraction
of natural resources, including subsoil resources found within Saramaka
territory; and finally, the fulfilment of international law guarantees
regarding the exploration extraction concessions already issued by the
State.
259. First, the IActHR analysed whether and to what extent the members of
the Saramaka people have a right to use and enjoy the natural resources that
lie on and within their traditionally owned territory. The State did not
contest that the Saramakas have traditionally used and occupied certain
lands for centuries, or that the Saramakas have an "interest" in the
territory they have traditionally used in accordance with their customs. The
controversy was the nature and scope of the said interest. In accordance
with Suriname's legal and constitutional framework, the Saramakas do not
have property rights per se, but rather merely a privilege or permission to
use and occupy the land in question. According to Article 41 of the
Constitution of Suriname, and Article 2 of its 1986 Mining Decree, ownership
rights of all natural resources are vested in the State. For this reason,
the State claimed to have an inalienable right to the exploration and
exploitation of those resources. On the other hand, the customary laws of
the Saramaka people give them a right over all natural resources within its
traditional territory.
260. The IActHR held that the cultural and economic survival of indigenous
and tribal peoples and their members depends on their access and use of the
natural resources in their territory that are related to their culture and
are found therein, and that Article 21 of the Inter-American Convention
protects their right to such natural resources. The Court further said that
in accordance with their previous jurisprudence as stated in the Yakye Axa
and Sawhoyamaxa cases, members of tribal and indigenous communities have the
right to own the natural resources they have traditionally used within their
territory for the same reasons that they have a right to own the land they
have traditionally used and occupied for centuries. Without them, the very
physical and cultural survival of such peoples is at stake; [FN197] hence,
the Court opined, the need to protect the lands and resources they have
traditionally used to prevent their extinction as a people. It said that the
aim and purpose of special measures required on behalf of members of
indigenous and tribal communities is to guarantee that they may continue
living their traditional way of life, and that their distinct cultural
identity, social structure, economic system, customs, beliefs and traditions
are respected, guaranteed and protected by states.
--------------------------------------------------------------------------------
[FN197] See case of the Indigenous Community Yakye Axa, and the Case of the
Indigenous Sawhoyamaxa Community.
--------------------------------------------------------------------------------
261. But the Court further said that the natural resources found on and
within indigenous and tribal people's territories that are protected under
Article 21 (of the American Convention) are those natural resources
traditionally used and necessary for the very survival, development and
continuation of such people's way of life.[FN198]
--------------------------------------------------------------------------------
[FN198] Ibid.
--------------------------------------------------------------------------------
262. In the Saramaka case, the Court had to determine which natural
resources found on and within the Saramaka people's territory are essential
for the survival of their way of life, and are thus protected under Article
21 of the Convention. This has direct relevance to the matter in front of
the African Commission, given the ruby mining concessions which were taking
place on lands, both ancestral and adjacent to Endorois ancestral land, and
which the Complainants allege poisoned the only remaining water source to
which the Endorois had access.
263. The African Commission notes the opinion of the IActHR in the Saramaka
case as regards the issue of permissible limitations. The State of Suriname
had argued that, should the Court recognise a right of the members of the
Saramaka people to the natural resources found within traditionally owned
lands, this right must be limited to those resources traditionally used for
their subsistence, cultural and religious activities. According to the
State, the alleged land rights of the Saramakas would not include any
interests on forests or minerals beyond what the tribe traditionally
possesses and uses for subsistence (agriculture, hunting, fishing etc), and
the religious and cultural needs of its people.
264. The Court opined that while it is true that all exploration and
extraction activity in the Saramaka territory could affect, to a greater or
lesser degree, the use and enjoyment of some natural resource traditionally
used for the subsistence of the Saramakas, it is also true that Article 21
of the Convention should not be interpreted in a way that prevents the State
from granting any type of concession for the exploration and extraction of
natural resources within Saramaka territory. The Court observed that this
natural resource is likely to be affected by extraction activities related
to other natural resources that are not traditionally used by or essential
for the survival of the Saramaka community and, consequently, their members.
That is, the extraction of one natural resource is most likely to affect the
use and enjoyment of other natural resources that are necessary for the
survival of the Saramakas.
265. Nevertheless, the Court said that protection of the right to property
under Article 21 of the Convention is not absolute and therefore does not
allow for such a strict interpretation. The Court also recognised the
interconnectedness between the right of members of indigenous and tribal
peoples to the use and enjoyment of their lands and their right to those
resources necessary for their survival but that these property rights, like
many other rights recognised in the Convention, are subject to certain
limitations and restrictions. In this sense, Article 21 of the Convention
states that the "law may subordinate [the] use and enjoyment [of property]
to the interest of society." But the Court also said that it had previously
held that, in accordance with Article 21 of the Convention, a State may
restrict the use and enjoyment of the right to property where the
restrictions are: a) previously established by law; b) necessary; c)
proportional, and d) with the aim of achieving a legitimate objective in a
democratic society.[FN199]
--------------------------------------------------------------------------------
[FN199] See case of the Indigenous Yakye Axa Community, paras. 144-145
citing (mutatis mutandi) Case of Ricardo Canese v. Paraguay. Merits,
Reparations and Costs. Judgment of August 31, 2004. Series C No. 111, para.
96; Case of Herrera Ulloa v. Costa Rica. Preliminary Objections, Merits,
Reparations and Costs. Judgment of July 2, 2004. Series C No. 107, para.
127, and Case of Ivcher Bronstein v. Peru. Merits, Reparations and Costs.
Judgment of February 6, 2001. Series C No. 74. para. 155. See also, Case of
the Indigenous Sawhoyamaxa Community, at para. 137.
--------------------------------------------------------------------------------
266. The Saramaka case is analogous to the instant case with respect to ruby
mining. The IActHR analysed whether gold-mining concessions within
traditional Saramaka territory have affected natural resources that have
been traditionally used and are necessary for the survival of the members of
the Saramaka community. According to the evidence submitted before the
Court, the Saramaka community, traditionally, did not use gold as part of
their cultural identity or economic system. Despite possible individual
exceptions, the Saramaka community do not identify themselves with gold nor
have demonstrated a particular relationship with this natural resource,
other than claiming a general right to "own everything, from the very top of
the trees to the very deepest place that you could go under the ground."
Nevertheless, the Court stated that, because any gold mining activity within
Saramaka territory will necessarily affect other natural resources necessary
for the survival of the Saramakas, such as waterways, the State has a duty
to consult with them, in conformity with their traditions and customs,
regarding any proposed mining concession within Saramaka territory, as well
as allow the members of the community to reasonably participate in the
benefits derived from any such possible concession, and perform or supervise
an assessment on the environmental and social impact prior to the
commencement of the project. The same analysis would apply regarding
concessions in the instant case of the Endorois.
267. In the instant case of the Endorois, the Respondent State has a duty to
evaluate whether a restriction of these private property rights is necessary
to preserve the survival of the Endorois community. The African Commission
is aware that the Endoroids do not have an attachment to ruby. Nevertheless,
it is instructive to note that the African Commission decided in The Ogoni
case that the right to natural resources contained within their traditional
lands vested in the indigenous people. This decision made clear that a
people inhabiting a specific region within a state can claim the protection
of Article 21.[FN200] Article 14 of the African Charter indicates that the
two-pronged test of ‘in the interest of public need or in the general
interest of the community' and ‘in accordance with appropriate laws'should
be satisfied.
--------------------------------------------------------------------------------
[FN200] The Ogoni Case (2001), paras 56-58.
--------------------------------------------------------------------------------
268. As far as the African Commission is aware, that has not been done by
the Respondent State. The African Commission is of the view the Endorois
have the right to freely dispose of their wealth and natural resources in
consultation with the Respondent State. Article 21(2) also concerns the
obligations of a State Party to the African Charter in cases of a violation
by spoliation, through provision for restitution and compensation. The
Endorois have never received adequate compensation or restitution of their
land. Accordingly, the Respondent State is found to have violated Article 21
of the Charter.
ALLEGED VIOLATION OF ARTICLE 22
269. The Complainants allege that the Endorois' right to development have
been violated as a result of the Respondent State's creation of a Game
Reserve and the Respondent State's failure to adequately involve the
Endorois in the development process.
270. In rebutting the Complainants' allegations, the Respondent State argues
that the task of communities within a participatory democracy is to
contribute to the well-being of society at large and not only to care
selfishly for one's own community at the risk of others. It argues that the
Baringo and Koibatek Country Councils are not only representing the
Endorois, but other clans of the Tugen tribe, of which the Endorois are only
a clan. However, to avoid the temptation of one community domineering the
other, the Kenyan political system embraces the principle of a participatory
model of community through regular competitive election for representatives
in those councils. It states that elections are by adult suffrage and are
free and fair.
271. The Respondent State also submits it has instituted an ambitious
programme for universal free primary education and an agricultural recovery
programme which is aimed at increasing the household incomes of the rural
poor, including the Endorois; and initiated programmes for the equitable
distribution of budgetary resources through the Constituency Development
Fund, Constituency Bursary Funds, Constituency Aids Committees and District
Roads Board.
272. It adds that for a long time, tourism in Kenya has been on the decline.
This, it argues, has been occasioned primarily by the ethnic disturbance in
the Coast and the Rift Valley provinces which are the major tourist circuits
in Kenya, of which the complainants land falls and therefore it is expected
that the Country Councils of Baringo and Koibatek were affected by the
economic down turn.
273. Further rebutting the allegations of the Complainants, the Respondent
State argues that the Complainants state in paragraph 239 of their Merits
brief that due to lack of access to the salts licks and their usual pasture,
their cattle died in large numbers, thereby making them unable to pay their
taxes and that, consequently, the government took away more cattle in tax;
and that they were also unable to pay for primary and secondary education
for their children is utterly erroneous as tax is charged on income.
According to the Respondent State it argues that if the Endorois were not
able to raise income which amounts to the taxable brackets from their animal
husbandly, they were obviously not taxed. The Respondent State adds that
this allegation is false and intended to portray the Government in bad
light.
274. The Respondent State argues that the Complainants allege that the
consultations that took place were not in ‘good faith' or with the objective
of achieving agreement or consent, and furthermore that the Respondent State
failed to honour the promises made to the Endorois community with respect to
revenue sharing from the Game Reserve, having a certain percentage of jobs,
relocation to fertile land and compensation. The Respondent State accuses
the Complainants of attempting to mislead the African Commission because the
County Council collects all the revenues in the case of Game Reserves and
such revenues are ploughed back to the communities within the jurisdictions
of the County Council through development projects carried out by the County
Council.
275. Responding to the allegation that the Game Reserve made it particularly
difficult for the Endorois to access basic herbal medicine necessary for
maintaining a healthy life, the Respondent State argues that the prime
purpose of gazetting the National Reserve is conservation. Also responding
to the claim that the Respondent State has granted several mining and
logging concessions to third parties, and from which the Endorois have not
benefited, the Respondent State asserts that the community has been well
informed of those prospecting for minerals in the area. It further states
that the community's mining committee had entered into an agreement with the
Kenyan company prospecting for minerals, implying that the Endorois are
fully involved in all community decisions.
276. The Respondent State also argues that the community is represented in
the Country Council by its elected councillors, therefore presenting the
community the opportunity to always be represented in the forum where
decisions are made pertaining to development. The Respondent State argues
that all the decisions complained about have had to be decided upon by a
full council meeting.
277. The African Commission is of the view that the right to development is
a two-pronged test, that it is both constitutive and instrumental, or useful
as both a means and an end. A violation of either the procedural or
substantive element constitutes a violation of the right to development.
Fulfilling only one of the two prongs will not satisfy the right to
development. The African Commission notes the Complainants' arguments that
recognising 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, over-arching themes in the
right to development.[FN201]
--------------------------------------------------------------------------------
[FN201] Arjun Sengupta, "Development Cooperation and the Right to
Development," Francois-Xavier Bagnoud Centre Working Paper No. 12, (2003),
available atwww.hsph.harvard.edu/fxbcenter/working_papers.htm. See also U.N.
Declaration on the Right to Development, U.N. GAOR, 41st Sess., Doc.
A/RES/41/128 (1986), Article 2.3, which to refers to "active, free and
meaningful participation in development."
--------------------------------------------------------------------------------
278. In that regard it takes note of the report of the UN Independent Expert
who said that development is not simply the state providing, for example,
housing for particular individuals or peoples; development is instead about
providing people with the ability to choose where to live. He states "... the
state or any other authority cannot decide arbitrarily where an individual
should live just because the supplies of such housing are made available".
Freedom of choice must be present as a part of the right to
development.[FN202]
--------------------------------------------------------------------------------
[FN202] Arjun Sengupta, "The Right to Development as a Human Right,"
Francois-Xavier Bagnoud Centre Working Paper No. 8, (2000), page 8,
available at http://www.hsph.harvard.edu/fxbcenter/working_papers.htm 2000.
--------------------------------------------------------------------------------
279. The Endorois believe that they had no choice but to leave the Lake and
when some of them tried to reoccupy their former land and houses they were
met with violence and forced relocations. The Complainants argue this lack
of choice directly contradicts the guarantees of the right to development.
The African Commission also notes a Report produced for the UN Working Group
on Indigenous Populations requiring that "indigenous peoples are not
coerced, pressured or intimidated in their choices of development."[FN203]
Had the Respondent State allowed conditions to facilitate the right to
development as in the African Charter, the development of the Game Reserve
would have increased the capabilities of the Endorois, as they would have
had a possibility to benefit from the Game Reserve. However, the forced
evictions eliminated any choice as to where they would live.
--------------------------------------------------------------------------------
[FN203] Antoanella-Iulia Motoc and the Tebtebba Foundation, Preliminary
working paper on the principle of free, prior and informed consent of
indigenous peoples in relation to development affecting their lands and
natural resources that they would serve as a framework for the drafting of a
legal commentary by the Working Group on this concept. U.N. Doc.
E/CN.4/Sub.2/AC.4/2004/4 (2004), para. 14 (a).
--------------------------------------------------------------------------------
280. The African Commission notes the Respondent State's submissions that
the community is well represented in the decision making structure, but this
is disputed by the Complainants. In paragraph 27 of the Complainants Merits
brief, they allege that the Endorois have no say in the management of their
ancestral land. The EWC, the representative body of the Endorois community,
have been refused registration, thus denying the right of the Endorois to
fair and legitimate consultation. The Complainants further allege that the
failure to register the EWC has often led to illegitimate consultations
taking place, with the authorities selecting particular individuals to lend
their consent ‘on behalf' of the community.
281. The African Commission notes that its own standards state that a
Government must consult with respect to indigenous peoples especially when
dealing with sensitive issues as land.[FN204] The African Commission agrees
with the Complainants that the consultations that the Respondent State did
undertake with the community were inadequate and cannot be considered
effective participation. The conditions of the consultation failed to fulfil
the African Commission's standard of consultations in a form appropriate to
the circumstances. It is convinced that community members were informed of
the impending project as a fait accompli, and not given an opportunity to
shape the policies or their role in the Game Reserve.
--------------------------------------------------------------------------------
[FN204] Report of the African Commission's Working Group of Experts on
Indigenous Populations/Communities (Twenty-eighth session, 2003). See also
ILO Convention 169 which states: "Consultations carried out in application
of this Convention shall be undertaken, in good faith and in a form
appropriate to the circumstances, with the objective of achieving agreement
or consent to the proposed measures."
--------------------------------------------------------------------------------
282. Furthermore, the community representatives were in an unequal
bargaining position, an accusation not denied or argued by the Respondent
State, being both illiterate and having a far different understanding of
property use and ownership than that of the Kenyan Authorities. The African
Commission agrees that it was incumbent upon the Respondent State to conduct
the consultation process in such a manner that allowed the representatives
to be fully informed of the agreement, and participate in developing parts
crucial to the life of the community. It also agrees with the Complainants
that the inadequacy of the consultation undertaken by the Respondent State
is underscored by Endorois' actions after the creation of the Game Reserve.
The Endorois believed, and continued to believe even after their eviction,
that the Game Reserve and their pastoralist way of life would not be
mutually exclusive and that they would have a right of re-entry on to their
land. In failing to understand their permanent eviction, many families did
not leave the location until 1986.
283. The African Commission wishes to draw the attention of the Respondent
State that Article 2(3) of the UN Declaration on Development notes that the
right to development includes "active, free and meaningful participation in
development".[FN205] The result of development should be empowerment of the
Endorois community. It is not sufficient for the Kenyan Authorities merely
to give food aid to the Endorois. The capabilities and choices of the
Endorois must improve in order for the right to development to be realised.
--------------------------------------------------------------------------------
[FN205] U.N. Declaration on the Right to Development, U.N. GAOR, 41st Sess.,
Doc. A/RES/41/128 (1986), Article 2.3. (hereinafter Declaration on
Development).
--------------------------------------------------------------------------------
284. The case of the Yakye Axa is instructive. The Inter-American Court
found that the members of the Yakye Axa community live in extremely
destitute conditions as a consequence of lack of land and access to natural
resources, caused by the facts that were the subject matter of proceedings
in front of the Court as well as the precariousness of the temporary
settlement where they have had to remain, waiting for a solution to their
land claim.
285. The IActHR noted that, according to statements from members of the
Yakye Axa community during the public hearing, the members of that community
might have been able to obtain part of the means necessary for their
subsistence if they had been in possession of their traditional lands.
Displacement of the members of the community from those lands has caused
special and grave difficulties to obtain food, primarily because the area
where their temporary settlement is located does not have appropriate
conditions for cultivation or to practice their traditional subsistence
activities, such as hunting, fishing, and gathering. Furthermore, in this
settlement the members of the Yakye Axa Community do not have access to
appropriate housing with the basic minimum services, such as clean water and
toilets.
286. The precariousness of the Endorois' post-dispossession settlement has
had similar effects. No collective land of equal value was ever accorded
(thus failing the test of ‘in accordance with the law', as the law requires
adequate compensation). The Endorois were relegated to semi-arid land, which
proved unsustainable for pastoralism, especially in view of the strict
prohibition on access to the Lake area's medicinal salt licks or traditional
water sources. Few Endorois got individual titles in the Mochongoi Forest,
though the majority live on the arid land on the outskirts of the Reserve.
[FN206]
--------------------------------------------------------------------------------
[FN206] See U.N. Doc. E/C.12/1999/5. The right to adequate food (Art. 11),
(20th session, 1999), para. 13, and U.N. Doc. HRI/GEN/1/Rev.7 at 117. The
right to water (Articles 11 and 12 of the International Covenant on
Economic, Social and Cultural Rights), (29th session 2002), para. 16. In
these documents the arguments is made that in the case of indigenous
peoples, access to their ancestral lands and to the use and enjoyment of the
natural resources found on them is closely linked to obtaining food and
access to clean water. In this regard, the Committee on Economic, Social and
Cultural Rights has highlighted the special vulnerability of many groups of
indigenous peoples whose access to ancestral lands has been threatened and,
therefore, their possibility of access to means of obtaining food and clean
water.
--------------------------------------------------------------------------------
287. In the case of the Yakye Axa community, the Court established that the
State did not guarantee the right of the members of the Yakye Axa community
to communal property. The Court deemed that this had a negative effect on
the right of the members of the community to a decent life, because it
deprived them of the possibility of access to their traditional means of
subsistence, as well as to the use and enjoyment of the natural resources
necessary to obtain clean water and to practice traditional medicine to
prevent and cure illnesses.
288. In the instant Communication in front of the African Commission, video
evidence from the Complainants shows that access to clean drinking water was
severely undermined as a result of loss of their ancestral land (Lake
Bogoria) which has ample fresh water sources. Similarly, their traditional
means of subsistence – through grazing their animals – has been curtailed
due to lack of access to the green pastures of their traditional land.
Elders commonly cite having lost more than half of their cattle since the
displacement.[FN207] The African Commission is of the view that the
Respondent State has done very little to provide necessary assistance in
these respects.
--------------------------------------------------------------------------------
[FN207] See, for example, the affidavit of Richard Yegon, one of the Elders
of the Endorois community.
--------------------------------------------------------------------------------
289. Closely allied with the right to development is the issue of
participation. The IActHR has stated that in ensuring the effective
participation of the Saramaka people in development or investment plans
within their territory, the State has a duty to actively consult with the
said community according to their customs and traditions. This duty requires
the State to both accept and disseminate information, and entails constant
communication between the parties. These consultations must be in good
faith, through culturally appropriate procedures and with the objective of
reaching an agreement.
290. In the instant Communication, even though the Respondent State says
that it has consulted with the Endorois community, the African Commission is
of the view that this consultation was not sufficient. It is convinced that
the Respondent State did not obtain the prior, informed consent of all the
Endorois before designating their land as a Game Reserve and commencing
their eviction. The Respondent State did not impress upon the Endorois any
understanding that they would be denied all rights of return to their land,
including unfettered access to grazing land and the medicinal salt licks for
their cattle. The African Commission agrees that the Complainants had a
legitimate expectation that even after their initial eviction, they would be
allowed access to their land for religious ceremonies and medicinal purposes
– the reason, in fact why they are in front of the African Commission.
291. Additionally, the African Commission is of the view that any
development or investment projects that would have a major impact within the
Endorois territory, the State has a duty not only to consult with the
community, but also to obtain their free, prior, and informed consent,
according to their customs and traditions.
292. From the oral testimony and even the written brief submitted by the
Complainants, the African Commission is informed that the Endorois
representatives who represented the community in discussions with the
Respondent State were illiterates, impairing their ability to understand the
documents produced by the Respondent State. The Respondent State did not
contest that statement. The African Commission agrees with the Complainants
that the Respondent State did not ensure that the Endorois were accurately
informed of the nature and consequences of the process, a minimum
requirement set out by the Inter-American Commission in the Dann
case.[FN208]
--------------------------------------------------------------------------------
[FN208] In Mary and Carrie Dann v. USA, the IAcmHR noted that convening
meetings with the Community 14 years after title extinguishment proceedings
began constituted neither prior nor effective participation. To have a
process of consent that is fully informed "requires at a minimum that all of
the members of the community are fully and accurately informed of the nature
and consequences of the process and provided with an effective opportunity
to participate individually or as collectives." Mary and Carrie Dann vs. USA
(2002).
--------------------------------------------------------------------------------
293. In this sense, it is important to note that the U.N. Special Rapporteur
on the Situation of Human Rights and Fundamental Freedoms of Indigenous
People observed that: "[w]herever [large-scale projects] occur in areas
occupied by indigenous peoples it is likely that their communities will
undergo profound social and economic changes that are frequently not well
understood, much less foreseen, by the authorities in charge of promoting
them. [...] The principal human rights effects of these projects for
indigenous peoples relate to loss of traditional territories and land,
eviction, migration and eventual resettlement, depletion of resources
necessary for physical and cultural survival, destruction and pollution of
the traditional environment, social and community disorganization, long-term
negative health and nutritional impacts as well as, in some cases,
harassment and violence."[FN209] Consequently, the U.N. Special Rapporteur
determined that "[f]ree, prior and informed consent is essential for the
[protection of] human rights of indigenous peoples in relation to major
development projects." [FN210]
--------------------------------------------------------------------------------
[FN209]
[FN210] The UNCERD has observed that "[a]s to the exploitation of the
subsoil resources of the traditional lands of indigenous communities, the
Committee observes that merely consulting these communities prior to
exploiting the resources falls short of meeting the requirements set out in
the Committee's general recommendation XXIII on the rights of indigenous
peoples. The Committee therefore recommends that the prior informed consent
of these communities be sought". Cf. UNCERD, Consideration of Reports
submitted by States Parties under Article 9 of the Convention, Concluding
Observations on Ecuador (Sixty Second Session, 2003), U.N. Doc.
CERD/C/62/CO/2, 2 June 2003, para. 16.
--------------------------------------------------------------------------------
294. In relation to benefit sharing, the IActHR in the Saramaka case said
that benefit sharing is vital both in relation to the right to development
and by extension the right to own property. The right to development will be
violated when the development in question decreases the well-being of the
community. The African Commission similarly notes that the concept of
benefit-sharing also serves as an important indicator of compliance for
property rights; failure to duly compensate (even if the other criteria of
legitimate aim and proportionality are satisfied) result in a violation of
the right to property.
295. The African Commission further notes that in the 1990 ‘African Charter
on Popular Participation in Development and Transformation' benefit sharing
is key to the development process. In the present context of the Endorois,
the right to obtain "just compensation" in the spirit of the African Charter
translates into a right of the members of the Endorois community to
reasonably share in the benefits made as a result of a restriction or
deprivation of their right to the use and enjoyment of their traditional
lands and of those natural resources necessary for their survival.
296. In this sense, the Committee on the Elimination of Racial
Discrimination has recommended not only that the prior informed consent of
communities must be sought when major exploitation activities are planned in
indigenous territories but also "that the equitable sharing of benefits to
be derived from such exploitation be ensured." In the instant case, the
Respondent State should ensure mutually acceptable benefit sharing. In this
context, pursuant to the spirit of the African Charter benefit sharing may
be understood as a form of reasonable equitable compensation resulting from
the exploitation of traditionally owned lands and of those natural resources
necessary for the survival of the Endorois community.
297. The African Commission is convinced that the inadequacy of the
consultations left the Endorois feeling disenfranchised from a process of
utmost importance to their life as a people. Resentment of the unfairness
with which they had been treated inspired some members of the community to
try to reclaim the Mochongoi Forest in 1974 and 1984, meet with the
President to discuss the matter in 1994 and 1995, and protest the actions in
peaceful demonstrations. The African Commission agrees that if consultations
had been conducted in a manner that effectively involved the Endorois, there
would have been no ensuing confusion as to their rights or resentment that
their consent had been wrongfully gained. It is also convinced that they
have faced substantive losses - the actual loss in well-being and the denial
of benefits accruing from the Game Reserve. Furthermore, the Endorois have
faced a significant loss in choice since their eviction from the land. It
agrees that the Endorois, as beneficiaries of the development process, were
entitled to an equitable distribution of the benefits derived from the Game
Reserve.
298. The African Commission is of the view that the Respondent State bears
the burden for creating conditions favourable to a people's
development.[FN211] It is certainly not the responsibility of the Endorois
themselves to find alternate places to graze their cattle or partake in
religious ceremonies. The Respondent State, instead, is obligated to ensure
that the Endorois are not left out of the development process or benefits.
The African Commission agrees that the failure to provide adequate
compensation and benefits, or provide suitable land for grazing indicates
that the Respondent State did not adequately provide for the Endorois in the
development process. It finds against the Respondent State that the Endorois
community has suffered a violation of Article 22 of the Charter.
--------------------------------------------------------------------------------
[FN211] Declaration on the Right to Development, Article 3
--------------------------------------------------------------------------------
RECOMMENDATIONS
In view of the above, the African Commission finds that the Respondent State
is in violation of Articles 1, 8, 14, 17, 21 and 22 of the African Charter.
The African Commission recommends that the Respondent State:
(a) Recognise rights of ownership to the Endorois and Restitute Endorois
ancestral land.
(b) Ensure that the Endorois community has unrestricted access to Lake
Bogoria and surrounding sites for religious and cultural rites and for
grazing their cattle.
(c) Pay adequate compensation to the community for all the loss suffered.
(d) Pay royalties to the Endorois from existing economic activities and
ensure that they benefit from employment possibilities within the Reserve.
(e) Grant registration to the Endorois Welfare Committee.
(f) Engage in dialogue with the Complainants for the effective
implementation of these recommendations.
(g) Report on the implementation of these recommendations within three
months from the date of notification.
2. The African Commission avails its good offices to assist the parties in
the implementation of these recommendations.
Done in Banjul, The Gambia at the 46th Ordinary Session of the African
Commission on Human and Peoples' Rights held from 11 - 25 November 2009 |
|
