Kenya: Landmark Ruling on Indigenous Land Rights

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.