Kenya: Landmark Ruling on Indigenous Land RightsPublished by MAC on 2010-02-15
Source: Human Rights Watch
In 2006, a group of Botswana San (Baswara) Bushmen won an historic state court case, allowing them to return to land from which they had been evicted by the government, at least partly in order that diamond exploration may continue. See: http://www.minesandcommunities.org/article.php?a=7136
The same year, the African Commission on Human Rights ruled that ruby mining was illegal on land occupied in Kenya by another Indigenous group, the Endorois.
However, the Endorois had already seen their traditional territory sequestered by the Kenyan government to make way for a national reserve and tourism companies.
Earlier this month, the African Commission ruled that these evictions had violated the Endorois' human rights.
Now, they will not only be allowed to return to their lands, but also must be compensated for having been initially deprived of it.
Kenya: Landmark Ruling on Indigenous Land Rights
African Human Rights Commission Condemns Expulsion of Endorois People for Tourism Development
Human Rights Watch, WITNESS and Minority Rights Group Press Release
4 February 2010
New York - A ruling by the African Commission on Human and People's Rights condemning the expulsion of the Endorois people from their land in Kenya is a major victory for indigenous peoples across Africa, Human Rights Watch, WITNESS, and the Endorois' lawyers said today. The Commission ruled on February 4, 2010 that the Endorois' eviction from their traditional land for tourism development violated their human rights.
The Kenyan government evicted the Endorois people, a traditional pastoralist community, from their homes at Lake Bogoria in central Kenya in the 1970s, to make way for a national reserve and tourist facilities.
In the first ruling of an international tribunal to find a violation of the right to development, the Commission found that this eviction, with minimal compensation, violated the Endorois' right as an indigenous people to property, health, culture, religion, and natural resources.
It ordered Kenya to restore the Endorois to their historic land and to compensate them. It is the first ruling to determine who are indigenous peoples in Africa, and what are their rights to land. The case was brought on behalf of the Endorois by CEMIRIDE and Minority Rights Group International.
"The Endorois decision, the first of its kind, can help many others across Africa who have been forced from their homes," said Clive Baldwin, senior legal adviser at Human Rights Watch, who was co- counsel for the Endorois in the case while employed with Minority Rights Group International. "The African Commission is clear: the land where the Endorois historically lived is their property and must be returned to them."
Lake Bogoria is considered to have great tourism potential due to its hot springs and abundant wildlife, including one of Africa's largest populations of flamingos. The African Commission accepted the Endorois' evidence that they have lived there since "time immemorial" and the lake was the center of their religion and culture, with their ancestors buried nearby. After being evicted from the fertile land around the lake, the Endorois were forced to congregate on arid land, where many of their cattle died.
They tried unsuccessfully to persuade the Kenyan government, the local authorities, and the Kenyan Wildlife Service to reverse their policy of evicting everyone, including traditional inhabitants, from areas the government designated national parks and reserves.
They were also rebuffed when they sought an adequate share of the tourism and revenues generated by the reserve. After Kenyan courts refused to address their case, they brought their case to the African Commission in 2003. As a component of the case, WITNESS and CEMIRIDE collaborated on a landmark use of video as evidence , demonstrating how conditions on the ground breached articles of the African Charter on Human and Peoples' Rights, and bringing voices of the Endorois to the Commission.
Violations of land rights, including the rights of the generations of Kenyans displaced through historic and recent evictions, are one of the key unresolved issues in Kenya, which former United Nations Secretary-General Kofi Annan acknowledged in the aftermath of Kenya's electoral violence in 2007-2008.
The African Commission found that the Kenyan government has continued to rely on a colonial law that prevented certain communities from holding land outright, and allowed others, such as local authorities, effectively to own their traditional land on "trust"for these Communities. The local authority in Lake Bogoria was able to end the Endorois trust at will and to seize the land.
In the last decade there have been several attempts at comprehensive land reform that would allow for final and fair determination of land ownership and create a system to restore land to those unlawfully evicted or to compensate them. None of these reforms has been completed. While the adoption by the government of a new land policy in August 2009 marks a significant step forward, it still needs to be translated into effective protection on the ground for Kenya's most marginalized.
"This ruling is good for every Kenyan," said Korir Singo'ei, who represented the Endorois while director of CEMIRIDE. "The law that treats some communities as children, unable to own their own land, is a colonial relic that needs to be changed."
The African Commission determined that the Endorois, having a clear historic attachment to particular land, are a distinct indigenous people, a term contested by some African governments who claimed all Africans are indigenous.
It also found that the Endorois had property rights over the land they traditionally occupied and used, even though the British and Kenyan authorities had denied them a formal title. In finding a violation of the right to development for the first time the Commission relied on the failure of the Kenyan authorities to respect the right of the Endorois to consent to development, and the failure to provide them adequate compensation for the loss they had suffered, or any benefit from the tourism.
The African Commission had ruled in 2006 against the Kenyan government for allowing a ruby mining company to start illegal mining on another part of the Endorois' land, severely affecting their remaining access to water. Following that ruling, the mining company abandoned its activities.
"The African Commission's ruling makes clear to governments that they must treat indigenous peoples as active stakeholders rather than passive beneficiaries," said Cynthia Morel, who was co-counsel for the Endorois as senior legal adviser with Minority Rights Groups International. "That recognition is a victory for all indigenous peoples across Africa whose existence was largely ignored - both in law and in fact - until today. The ruling spells the beginning of a brighter future."
The Commission requires Kenya to take steps to return the Endorois land and compensate them within three months. Comprehensive reform to bring Kenya's land laws to the standards set by the Commission is vital before the 2012 elections, Human Rights Watch, WITNESS, and the Endorois' lawyers said.
For more on Human Rights Watch's work on Kenya, please visit:
For more on MRG's work on the Endorois, please visit:
To see the video evidence presented to the court and the film about the Endorois and the case produced by CEMIRIDE and WITNESS, please visit:
For more information, please contact:
In New York, Clive Baldwin (English, French): +1-917-880-8756
In Nairobi, Korir Singo'ei (English, Swahili): +254-722-776994
In London, Cynthia Morel (English, French): +44-79-527-19484
In New York, Bukeni Waruzi (Swahili, English, and French) : +1- 718-783-2000, ext. 307 (For WITNESS)