Indigenous People in Africa: Contestations, Empowerment and Group Rights

1. Indigenous as equals under the African Charter

1 Indigenous People in Africa: Contestations, Empowerment and Group Rights 1 Indigenous as equals under the African Charter TheEndoroisCommunityversusKenya Cynthia Morel1 INTRODUCTION On 2 February 2010, the African Union adopted the first ever indigenous land rights case to be decided by the African Commission on Human and Peoples’ Rights (ACHPR).2 The landmark victory is the culmination of 40 years of struggle led by the Endorois community, which in 1973 was dispossessed of the ancestral land it had occupied since time immemorial. Lake Bogoria, located in the heart of Kenya’s Rift Valley, was to become a wildlife reserve. The failure to compensate the community with adequate grazing land following their eviction severely depleted their livestock. This, coupled with the failure to subsequently involve the Endorois in the management and benefit-sharing of the reserve, forced them into abject poverty. Crucially, the severed ties with their ancestral land not only threatened their socioeconomic well-being but also their spiritual and cultural survival. The Endorois case constitutes the first ruling before the African Commission to recognise indigenous peoples in the African context. Flowing from this recognition was the unprecedented legal recognition of collective rights to ancestral land under the Charter, along with related rights to natural resources. The case also constitutes the first ruling on the international stage to adjudicate on the right to development. This article serves to outline the key arguments presented before the Commission, and assesses the scope of its impact going forward. INITIAL STEPS The Endorois community first filed their legal claims before Kenya’s domestic courts, challenging the manner in which the county councils responsible for the Lake Bogoria game reserve exercised their trusteeship.3 Pleadings before the domestic courts challenged 2 Africa Institute for South Africa Indigenous as equals under the African Charter | Cynthia Morel the allocation of revenues collected from the game reserve, the legality of the community’s eviction, and the sustained denial of access to the reserve for the grazing of their animals, as well as for cultural and religious purposes.4 The community’s unsuccessful bid before the Kenyan High Court was predicated upon the judiciary’s finding that ‘the law did not allow individuals to benefit from such a resource simply because they happen to be born close to the natural resource.’5 The court’s related findings were equally out of step with international norms relating to indigenous peoples. EXHAUSTION OF DOMESTIC REMEDIES In its submissions on admissibility before the African Commission, the Endorois community argued that the massive nature of the violations and the lack of ‘effective, available and efficient’ remedies within the Kenyan domestic system absolved them from pursuing any further domestic recourse. In doing so, counsel drew on the Commission’s jurisprudence that remedies existing at the domestic level must be ‘available, effective and sufficient’,6 such that ‘if the right is not well provided for, there cannot be effective remedies or any remedies at all’.7 A remedy is considered ‘available if the petitioner can pursue it without impediment’, ‘effective if it offers a prospect of success’ and ‘sufficient if it is capable of redressing the complaint’.8 In terms of availability, counsel first drew attention to the fact that, at the time of filing the case, collective notions of property were not recognised within the Kenyan Bill of Rights.9 Moreover, the trust land regime that formed the legal basis for the expropriation of the Endorois community afforded no legal protection with respect to beneficial ownership of their ancestral land. Although the vesting of radical title in the county councils was supposed to ‘protect’ this domain, expert opinions confirmed that the state or its agencies could effectively ‘raid’ such land without recourse to the stringent procedures of compulsory acquisition applicable to private land.10 Communities qua communities therefore remained deprived of legal (i.e. statutory) claims to the radical title of the land they occupied. In addition to the above, the nature of the fundamental rights contained in the Constitution in force at the time of filing placed them squarely within the sphere of civil and political rights. Economic, social and cultural rights, such as the right to development (protected by Article 22 of the African Charter) or the right to cultural life (protected by Article 17 of the African Charter) – central to the community’s claim – received no equivalent degree of constitutional protection. The community therefore argued that the possibility of bringing such grievances before the...