11 February 2010

Africa: Indigenous Rights Ruling Could Have Big Impact on Land Disputes

Photo: Minority Rights Group International
Endorois children in Kenya.
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In 1973, Kenya forced the Endorois people off their ancestral land in the heart of the Great Rift Valley to create a wildlife reserve, plunging a community of traditional cattle-herders into poverty and pushing them to the brink of cultural extinction.

Nearly 40 years later, the Endorois have won a measure of justice. In a landmark decision just released, the continental body charged with promoting and protecting human rights has ruled that the failure to consult or compensate adequately the community violated the African Charter on Human and Peoples’ Rights. The commission has called for the recognition of the Endorois’ ownership of their ancestral land, and its restitution.

Yet without implementation, the ruling means nothing. What needs to be done now is clear: the Kenyan authorities must demarcate the borders of the Endorois’ ancestral land and provide the community with a title that recognises its ownership as a collective. While the judgment does not require the closure of the wildlife reserve, its future existence must be predicated on the consent of the Endorois and their full inclusion in its operation.

This ruling, and whether it is successfully implemented, will have a tremendous impact on how land disputes are settled in the future.

The case is the first to be decided by the African Commission on Human and Peoples’ Rights that expressly recognizes indigenousness — maintaining a traditional way of life that is dependent on ancestral land — in the African context. By taking into account rights flowing from an indigenous community’s deep cultural and historical connection to the land, the commission’s ruling sets an important precedent for respecting the claims of traditional herders and forest peoples.

The ruling comes at a critical moment in African development. New players such as China have increasingly claimed large stakes in forested and mineral-rich areas often inhabited by indigenous communities. Pan-African in scope, the decision could serve as a blueprint for the effective protection of the continent’s indigenous peoples, who are now under more pressure than ever before.

Forced evictions in Kenya — and across Africa — have swelled the ranks of the disinherited, creating instability and tension. The recognition of indigenous rights can play a critical role in countering this trend, maintaining domestic stability by building a more inclusive society. As former United Nations secretary-general Kofi Annan noted after widespread violence in Kenya two years ago, land reform is key to domestic peace.

Kenya’s recent adoption of a new land policy which recognizes customary land rights in the context of indigenous land management systems demonstrates that the government is not only in step with the African Commission decision, but that it is also poised to become a leading example on the continent.

However, while Kenya has never been better positioned to rise to the challenge, political will to convert legislation into real change on the ground cannot be taken for granted.  Successful implementation of the ruling on the Endorois will require vital monitoring support from the commission itself, with a view to holding the Kenyan government to account when key objectives are not met.

Given their commitment to promoting good governance, accountability and the rule of law, donors to and within Kenya also have an interest in ensuring that the decision leads to meaningful change on the ground. Success would set an example for the entire continent, where justice for indigenous people is long overdue.

Cynthia Morel is legal officer for the Equality and Citizenship Program of the Open Society Justice Initiative, which is developing a framework for strengthening the implementation of African Commission decisions across the continent. She served as co-counsel for the Endorois case while serving with Minority Rights Group International.

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