Complaint against Kenyan government alleging violations under the African Charter on Human and Peoples' Rights, the Constitution of Kenya and international law, for the forced removal of the Endorois peoples from their ancestral lands; Violation of Land and Natural Resource Rights; Violation of Indigenous Rights; Freedom of Religious and Cultural Practices; Right to Development.
In the 1970s, the Kenyan government evicted hundreds of Endorois families from their land around the Lake Bogoria area in the Rift Valley to create a game reserve for tourism. The Endorois, an indigenous people, had been promised compensation and benefits, but these were never fully implemented, and the community's access to the land was restricted to the discretion of the Game Reserve Authority. This prevented the community from practicing their pastoralist way of life, using ceremonial and religious sites, and accessing traditional medicines. Complainants (Centre for Minority Rights Development, Kenya and Minority Rights Group International on behalf of the Endorois Welfare Council) submitted this claim before the African Commission on Human Rights after domestic legal efforts and action failed to constitute an effective remedy for the violations alleged.
The Commission found that the Kenyan government had violated the Endorois' rights to religious practice, to property, to culture, to the free disposition of natural resources, and to development, under the African Charter (Articles 8, 14, 17, 21 and 22, respectively). The Commission stated that lack of consultation with the community; the subsequent restrictions on access to the land; and the inadequate involvement in the process of developing the region for use as a tourist game reserve, had violated the community's right to development under the U.N. Declaration on the Right to Development. Also, the Commission found that the Kenyan Government's Trust Land System violated the Endorois' right to property. The system allowed gradual encroachment onto Endorois land, and even though the system allowed for compensation, it nevertheless violated property rights by effectively causing forced evictions. For these violations, the Commission recommended that the government recognize rights of ownership, restitute to the Endorois' their ancestral lands, compensate their losses, and ensure the Endorois benefit from the royalties and employment opportunities within the game reserve.
Keywords: Centre for Minority Rights Development (Kenya) and Minority Rights Group International on behalf of Endorois Welfare Council v. Kenya, 276/2003, Development
The Commission's decision was formally approved by the African Union at its January 2010 meeting. The Commission's decision calls upon the state to report on the implementation of its recommendations within three months from the date of notification and further recommends collaboration with the Endorois in implementing these remedies. Concurrently with this decision, Kenya is undergoing a process of Constitutional review and there is hope on the part of civil society involved in this case that its result will positively impact the negotiation process in favor of greater recognition of economic, social and cultural rights.
This case marks the first time the Commission has recognized indigenous peoples' rights over traditionally owned land and their right to development under the African Charter. The decision is also noteworthy because the Commission emphasizes the African Charter's protection for collective claims to land rights by indigenous communities. It is also a relevant decision for economic, social and cultural rights advocates because the Commission stated that while the Kenyan Constitution guaranteed civil and political rights, it did not give an equivalent degree of constitutional protection to economic, social, cultural, or group rights and concluded that this denied the Endorois an opportunity to launch an effective claim on their ancestral land in the Kenyan High Court.
Centre for Minority Rights Development Kenya (CEMIRIDE) www.cemiride.or.ke Minority Rights Group International (MRG) www.minorityrights.org