Kenya: Landmark Ruling on Indigenous Land Rights

February 8, 2010

By DiasporaKenyan

African Human Rights Commission Condemns Expulsion of Endorois People for Tourism Development

(New York, February 4, 2010) – 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 soughtan adequate share ofthe 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 landto 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:

http://www.hrw.org/africa/kenya

http://www.hrw.org/en/reports/2008/03/16/ballots-bullets

http://www.hrw.org/en/reports/2008/07/27/all-men-have-gone-0

For more on MRG´s work on the Endorois, please visit:

http://www.minorityrights.org/7407/trouble-in-paradise/meet-the-

endorois.html

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:

http://hub.witness.org/en/RightfulPlace

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)

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