Kenya: Landmark ruling on indigenous land rights
NewsNotes, March-April 2010
Written by Fr. Frank Breen, MM
On February 4, 2010, the African Union (AU) ratified the ruling previously issued by the African Commission on Human and People’s Rights condemning the expulsion of the Endorois people from their ancestral land in the Lake Bogoria area of Kenya’s Rift Valley. In the 1970s the government of post-independence Kenya evicted the Endorois in order to convert their land into a national reserve and tourist destination. The Catholic Information Service for Africa (CISA) reported that Human Rights Watch, WITNESS and the Endorois’ lawyers consider this a major victory for indigenous peoples across Africa.
The Endorois are a traditional pastoralist community of 60,000 who have lived in the Lake Bogoria area for millennia. Prior to the colonial era they freely roamed with their cattle from the fertile grazing lands near the lake to the lush highlands thirty or more miles away. After expulsion from their homeland they were forced to graze cattle in a small, arid lowland area, where many cattle died. Richard Yegon, an Endorois elder, said constant grazing in this area means the “grass cannot rejuvenate quickly enough to allow for large herds, as in the old days.” With few cattle they cannot survive according to their traditional culture.
The ruling found that their eviction, with minimal compensation, was a violation of the right to development and that it violated their rights as an indigenous people to property, health, culture, religion, and natural resources. The nearest hospital to where the Endorois now live is almost forty miles away, with only one maternity clinic containing four beds providing medical service to the whole community. The Commission ordered Kenya to resettle the Endorois in their ancestral land and to compensate them. It is the first ruling to determine who indigenous peoples in Africa are and what their rights to land are.
“The Endorois decision, the first of its kind, can help many others across Africa who have been forced from their homes,” said Clive Baldwin, the senior legal adviser at Human Rights Watch, who was co-counsel for the Endorois. He was employed by Minority Rights Group International, which brought the case on behalf of the Endorois along with the Centre for Minority Rights Development (CEMIRIDE).
Lake Bogoria is considered to have great tourism potential due to its hot springs and abundant wildlife, including one of Africa’s largest population of flamingos. The Kenyan government put in a paved road from Nakuru 80 miles away to the lake to spur tourism, and two tourist-class hotels were built next to the lake. A gemstone mine was also begun in 2001 by a private company on Endorois land, but due to an African Commission ruling in 2006 it ceased production.
The African Commission accepted Endorois’ evidence that they have lived there since “time immemorial” and that the lake was the center of their religion and culture, with their ancestors buried nearby. The Endorois tried unsuccessfully to persuade the Kenyan government, local authorities, and the Kenyan Wildlife Service to reverse their policy of evicting everyone, including traditional inhabitants from areas the government designates for national parks and reserves. They were also rebuffed when they sought an adequate share of the tourism revenues generated by the reserve. After Kenyan courts refused to address their case, they brought their case to the African Commission in 2003.
WITNESS is an organization that uses video to illustrate injustices against minority or indigenous peoples around the world, and it collaborated with CEMIRIDE 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. The videos also brought the voices of the Endorois to the Commission.
CISA, which is based in Nairobi, Kenya, says that violations of land rights are one of the key unresolved issues in Kenya, which former United Nations Secretary-General Kofi Annan acknowledged in the aftermath of Kenya’s post-election 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, to effectively 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.
“The 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 Commission requires Kenya to take steps to return the Endorois land and to 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, according to Human Rights Watch, WITNESS, and the Endorois’ lawyers.
The ruling does not fully resolve the question of which groups in Africa can be clearly labeled as "indigenous." Some African governments claim that all Africans (i.e. black Africans) are indigenous. The African Commission determined that the Endorois have a clear historic attachment to a particular piece of land and are therefore a distinct indigenous people.
Kenya’s most iconic tribe, the Maasai, may also look closely at how this ruling might affect them. They are much larger than the Endorois, with a population of about a half million. They have lost 75 percent of the land they had just prior to the colonialist enterprise beginning in 1900, to national parks and reserves, to private ranches and large farms, and to privatization of the best reserve grazing lands and guaranteed water sources that they traditionally utilized. With a population ten times that of the year 1900 and fewer cattle than in that year, today over 50 percent of the Maasai can no longer survive in the savanna grasslands of their origins, but have moved into urban centers where most live in terrible poverty. The Maasai are just one of several such pastoralist or hunter-gatherer groups in Kenya facing radical cultural change, due to loss of land and way of life – and this does not include many other such groups all over the continent of Africa.
According to the United Nations Declaration on the Rights of Indigenous Peoples and to the United Nations Permanent Forum on Indigenous Issues, the definition of an indigenous group is first any ethnic group who inhabit a geographic location with which they have the earliest known historical connection. However, since indigenous groups share criteria with groups of the majority culture within nations, further restrictive distinctions are needed. It can then be formulated that “indigenous are a politically underprivileged group, who share a particular ethnic identity different to the nation in power, and who have been an ethnic entity in the locality before the present ruling nation took over power.” It has an even more restrictive interpretation when used in the more formalized legal and academic sense, associated with the collective rights of human peoples. In these contexts the term is used to denote groups who, in addition to being native to or associated with a particular geographical territory, also meet certain other criteria, such as having reached a social or technological plateau several thousand years ago.
Some well-known indigenous groups in Africa are the Pygmy of central Africa, San of southern Africa, Tuareg of the Sahara, and the Berbers of northern Africa. All share key characteristics associated with indigenous claims in Africa, such as political and economic marginalization rooted in colonialism, de facto discrimination based on the dominance of the settled agricultural system of modern African nations, the particularities of their culture, economy and territory that link herding and hunting with their desert or forest environments, and in some cases, such as the San and Pygmy, distinctive physical attributes that make them subject to discrimination.
The Indigenous Peoples of Africa Coordinating Committee (IPACC) states that, “All Africans should enjoy equal rights and respect. All of Africa’s diversity is to be respected. Particular communities, due to historical and environmental circumstances, have found themselves outside the state system and underrepresented in governance. This is not to deny other Africans their status; it is to emphasize that affirmative recognition is necessary for hunter-gatherers and herding peoples to ensure their survival.”
For further information, contact:
Indigenous Peoples of Africa Coordinating Committee (IPACC)
African Commission on Human and Peoples' Rights (ACHPR)
UN Permanent Forum on Indigenous Issues (UNPFII)
UN Declaration on the Rights of Indigenous Peoples
Minority Rights Group International
Center for Minority Rights Development (CEMIRIDE) – This organization is located in Kenya and is a part of International Network for Economic, Social and Cultural Rights
Human Rights Watch