Nairobi — A high-powered Government delegation is in Banjul, Gambia, to defend the State against charges of alleged human rights abuses on a little known community - the Endorois of Lake Bogoria.
The defence will be before the African Commission on Human and People's Rights and this will be the first time that Kenya is the subject of discussions at the continental level in relation to alleged violations of the African Charter on Human and People's Rights.
The Government's legal team for the hearings, which will run up to May 22, is led by deputy solicitor general Muthoni Kimani of the Ministry of Justice and Constitutional Affairs.
"The advance Government team has already left the country for Banjul but we cannot disclose more details to our opponents. This is a judicial process like any other and our strategy is confidential at this point," the director of the legal department at the Ministry of Justice and Constitutional Affairs, Mr Gichira Kibaara, said.
Through the Centre for Minorities Rights and Development (Cemiride), a Nairobi-based lobby, the Endorois, who number about 60,000, claim they were evicted from their ancestral land to create a wildlife sanctuary - the Lake Bogoria Game Reserve - with no compensation.
They made their application in 2003.
Not only do they want the game reserve back, they also want the Baringo and and Koibatek county councils to surrender all the revenues they have been collecting from the reserve to the Endorois Welfare Council.
In their historic application, the Endorois are seeking special protection under the law, including special rights to their land and natural resources.
Among past rulings the commission has made was the restoration of the citizenship of former Zambian president, Dr Kenneth Kaunda, who had been stripped of Zambian citizenship by his successor, Mr Frederick Chiluba. It also made a declaration that the government of late Sani Abacha and international corporations had short-changed the Ogoni People of Nigeria in oil revenue sharing.
The Endorois, who live on the fringes of the Lake Bogoria Game Reserve, now want the Kenyan Government compelled to hand over the reserve and what they call "Lake Bogoria Region" which includes Lake Bogoria.
A favourable ruling for the Endorois would have legal implications as it would overturn a 2002 High Court ruling that declined to recognise collective identity of the community.
Article 22 of the African Charter not only defines indigenous communities and recognises group identity, but also provides for enforcement of collective and communal rights.
A ruling in favour of the Endorois would put the Kenya Wildlife Service in the spotlight, as the agency charged with oversight on the creation and management of game parks and reserves.
However, KWS deputy director in charge of community conservation, Mr Joachim Kagiri, said KWS was only in charge of policy direction and game protection. He said the management and stewardship of game reserves was in the hands of respective local authorities.
The admission of the precedent-setting Endorois application by the African Commission of Human and People's Rights is significant not only because it amplifies the community's case against the Government, but also forces the Government to come forward to give its side of the story at an independent forum and and under international spotlight.
The commission admits applications from individuals and groups only after it is satisfied they have merit and after all national processes have been either exhausted or proved unhelpful.
Although the commission's decisions and rulings are not legally binding, they have enormous economic and diplomatic implications, not least because AU's organs like the Nepad and the Peer Review Mechanisms have recently assumed increasing importance in shaping the world's perception of member states.
"If the commission rules in favour of the Endorois, the Government will have little choice but go along, or ignore it on the pain of being viewed as a rogue state that has no regard for protocols it is signatory to," said Catherine Mumma, a commissioner with the state-funded Kenya National Human Rights Commission in charge of international obligations.
A ruling in favour of the Endorois would be a boost to other groups and individuals with a beef against the Government.
In their application, submitted to the commission by Cemiride, the Endorois state that:
They had always lived around the Lake Bogoria area of the Baringo and Koibatek districts, as well as in the Nakuru and Laikipia districts within Rift Valley Province.
The lake is the centre of the community's religious and traditional beliefs: around the lake are the community's historical prayer sites, places for circumcision rituals, and other cultural ceremonies.
The Monchongoi forest is considered the birthplace of the Endorois people and the settlement of the first Endorois community.
As a pastoralist community, the Endorois' conception of land "ownership" has not been one of ownership by paper. Nonetheless, the community has always understood the land in question to be "Endorois" land, belonging to the community as a whole and used by it for habitation, cattle rearing, beekeeping, and religious and cultural practices.
The Endorois have been accepted by all neighbouring tribes as bona fide owners of their land.
At independence in 1963, the British crown's claim to the Endorois land was passed onto the respective county councils. However, under section 115 of the Kenyan Constitution, the county councils held this land in trust on behalf of the Endorois community who lived and used the land.
The Endorois' customary rights over the Lake Bogoria region were not challenged until a 1973 legal notice.
In 1973, by Legal Notice No 239, the Lake Bogoria area was renamed the Lake Hannington Game Reserve and later in 1974 it became the "Lake Bogoria Game Reserve".
Very limited discussions took place after this decision was made, and the Endorois community was not aware that, as well as having to leave its dwellings on the land, it would be prevented from accessing the land for natural resources, culture, or religion.
"The Endorois concept of land did not conceive of the loss of land without conquest," their petition says.
The entire community was eventually evicted from the reserve beginning in the 1970s with the final evictions taking place in 1986.
The Endorois now live in crowded conditions around the borders of the game reserve and 30 years after the evictions began, they remain without compensation.
The African Charter is unique among regional human rights instruments in placing special emphasis on the rights of people.
It defines indigenous peoples as a group that occupies and uses a specific territory. This group has a cultural distinctiveness and identifies itself as a distinct collectivity and is recognised as such by other groups. The African Charter resolves cases of groups that have experienced subjugation, marginalisation, dispossession, exclusion or discrimination. The Kenyan justice system has not provided for communal and collective identity and group rights.
In 2002, High Court judge David Rimita ruled in Nairobi that he could not address the issue of a community's right to property, stating that "there is no proper identity of the people who were affected by the setting aside of the land ... that has been shown to the court".
Cemiride, on behalf of the Endorois community, seeks a declaration that Kenya is in violation of the African Charter.
And among remedies sought include, restitution of its historic land, with legal title and clear demarcation, and compensation to the community for all the loss they have suffered through the loss of their property, development, natural resources but also freedom to practise their religion and culture.
"Given the importance of this land for the Endorois religion and culture, only the restitution of this particular land would allow them to fully enjoy their rights," they say.
"We went to the commission after all local avenues, including negotiations with retired President Moi, failed to provide relief," said Cemiride's CEO Abbey Sing'oei.
The State-funded Kenya National Human Rights Commission, that watches and advises the Government on human rights matters, will also be represented at the hearings, said Ms Mumma, Kenya human rights commissioner in charge of International Obligations.