Survival in the 21st century: the protection of peoples’, their land and environment before the African Commission and African Court on Human and Peoples' Rights Oliver Windridge Independent news, comment and debate on the African Court on Human and Peoples’ Rights

Survival in the 21 st Century  Protection: The African Charter  Venue: African Commission & African Court  Case Study: (1) Endorois before African Commission; (2) Ogiek before African Court  Future? The African Court of Justice and Human Rights  Conclusion

Survival in the 21 st Century Protection: The African Charter African Charter on Human and Peoples’ Right Ratification

Survival in the 21 st Century Protection: The African Charter Articles 1-17 : individual rights Articles 19-24: Peoples’ rights

Survival in the 21 st Century Protection: The African Charter Article 17 (2): “Every individual may freely take part in the cultural life of his community” Article 17 (3): “The promotion and protection of morals and traditional values recognized by the community shall be the duty of the State”

Survival in the 21 st Century Protection: The African Charter Article 19 “All peoples’ shall be equal; they shall enjoy the same respect and shall have the same rights. Nothing shall justify the domination of a people by another”

Survival in the 21 st Century Protection: The African Charter Article 20 Peoples’ right to existence, freedom for economic and social development “1. All peoples shall have the right to existence. They shall have the unquestionable and inalienable right to self-determination. They shall freely determine their political status and shall pursue their economic and social development according to the policy they have freely chosen. 2. Colonized or oppressed peoples shall have the right to free themselves from the bonds of domination by resorting to any means recognized by the international community. 3. All peoples shall have the right to the assistance of the State Parties to the present Charter in their liberation struggle against foreign domination, be it political, economic or cultural.”

Survival in the 21 st Century Protection: The African Charter Article 21 Freedom to dispose of natural resources, where spoilation occurs a right to compensation, elimination of “foreign exploitation” of natural resources “1. All peoples shall freely dispose of their wealth and natural resources. This right shall be exercised in the exclusive interest of the people. In no case shall a people be deprived of it 2. In case of spoilation, the dispossessed people shall have the right to the lawful recovery of its property as well as to an adequate compensation. 3. The free disposal of wealth and natural resources shall be exercised without prejudice to the obligation of promoting international economic cooperation based on mutual respect, equitable exchange and the principles of international law. 4. State Parties to the present Charter shall individually and collectively exercise the right to free disposal of their wealth and natural resources with a view to strengthening African Unity and solidarity. 5. State Parties to the present Charter shall undertake to eliminate all forms of foreign exploitation particularly that practised by international monopolies so as to enable their peoples to fully benefit from the advantages derived from their national resources.”

Survival in the 21 st Century Protection: The African Charter Article 22 Economic, social and cultural development “1. All peoples shall have the right to their economic, social and cultural development with due regard to their freedom and identity and in the equal enjoyment of the common heritage of mankind. 2. States shall have the duty, individually or collectively, to ensure the exercise of the right to development.”

Survival in the 21 st Century Protection: The African Charter Article 23 National and international peace and security “1. All peoples shall have the right to national and international peace and security. The principles of solidarity and friendly relations implicitly affirmed by the Charter of the United Nations and reaffirmed by that of the Organisation of African Unity shall govern relations between States. 2. For the purpose of strengthening peace, solidarity and friendly relations, State Parties to the present Charter shall ensure that:  a. any individual enjoying the right of asylum under Article 12 of the present Charter shall not engage in subversive activities against his country of origin or any other State Party to the present Charter;  b. their territories shall not be used as bases for subversive or terrorist activities against the people of any other State Party to the present Charter.”

Survival in the 21 st Century Protection: The African Charter Article 24 “All peoples’ shall have the right to a general satisfactory environment favourable to their development.”

Survival in the 21 st Century Venue: African Commission & African Court African Commission on Human and Peoples’ Rights African Court on Human and Peoples’ Rights

Survival in the 21 st Century Venue: African Commission & African Court African Commission  Jurisdiction over all AU members states who have ratified African Charter  Flexible in terms of exhaustion of local remedies  Can only make recommendations  Can transfer cases to the African Court

Survival in the 21 st Century Venue: African Commission & African Court African Court  Created after African Commission  Strict rules on jurisdiction: 30 AU states ratified creation (African Commission, Intergovernmental Organizations and member states) & 8 signed Special Declaration (direct access for individuals and NGOs)  Can issue provisional measures  Judgements on merits can include orders for compliance  Power to award reparations

Survival in the 21 st Century Case Study 1: Endorois before African Commission In November 2009 the Commission considered the case of CEMIRIDE and Minority Group (on behalf of Endorois Welfare Council) v. Kenya. The Endorois people alleged violations resulting from their displacement from their ancestral lands around Lake Bogoria and surrounding areas, and Kenya’s failure to adequately compensate them. The African Commission found in their favor, finding Kenya in violation of Articles 1, 8, 14, 17, 21 and 22 of the Charter

Survival in the 21 st Century Case Study 1: Endorois before African Commission Commission recommended that Kenya:  recognize and restitute the ownership rights of the Endorois  allow access to other important sites in the surrounding areas  pay compensation for the loss suffered  pay royalties for existing economic activities  grant registration of the Endorois Welfare Committee  engage with the Endorois in the effective implementation of the recommendations and  report back the Commission within three months.

Survival in the 21 st Century Case study 1: Endorois before African Commission Kenya have done very little to implement the Commission’s recommendations. In November 2013, the Commission issued a resolution (the first of its kind) calling on Kenya to implement its recommendations. The resolution includes revealing information on the Kenyan response to Commission findings including:  Kenya’s failure to send any representative to a workshop organized specifically to discuss the Commission decision by the Commission’s Working Group on Indigenous Populations/Communities, and  a lack of feedback from Kenya on the measures it has taken to implement the decision.

Survival in the 21 st Century Case Study 2: Ogiek before the African Court The Ogiek people of the Mau Forest in the Rift Valley, Kenya. They claim that the Kenyan government is evicting them from their ancestral land under the auspices of a Kenyan Forestry Service notice to conserve the forest as a” reserved water catchment zone”

Survival in the 21 st Century Case Study 2: Ogiek before the African Court The Ogiek argue that this eviction will have far reaching consequences on the political, social and economic survival of their community. Specifically, they argue that the eviction notice violates Articles 1 (recognition of rights in the Charter), 2 (right to enjoyment of rights without distinction), 4 (right to life), and 17 (2) and 17 (3) of the Charter.

Survival in the 21 st Century Case Study 2: Ogiek peoples’ before African Court  This case was originally brought before the African Commission  However, the Commission elected to transfer it to the African Court  No details yet on standard or test applied for this, but the Endorois case could well be a factor

Survival in the 21 st Century Case Study 2: Ogiek peoples’ before African Court Kenya makes preliminary objections to the admissibility and jurisdiction of the application before the African Court, arguing that the applicants have failed to exhaust judicial remedies, and that since the same application is before the Commission, the Court has no jurisdiction to act.

Survival in the 21 st Century Case Study 2: Ogiek peoples’ before African Court On the merits, Kenya states that:  it acknowledges the indigenous rights of the Ogiek to their land. It argues that in  recognition of the Ogiek’s transition from hunter-gathering to livestock rearing it has instigated a ‘resettlement’, designating large areas of the Mau Forest for farming which in itself lead to deforestation after encroachment into these areas by other ethnic groups.  As a result of this, a task force was set up to deal with the issue and that the task force has been working with representatives of the Ogiek to implement changes. Since the task force has been created and national initiatives for the representation of minorities have been created, Kenya has fulfilled its African Charter obligations.

Survival in the 21 st Century Case Study 2: Ogiek peoples’ before African Court While this case was pending, the Kenyan Ministry of Lands issued a directive lifting restrictions on the transfer of small parcels of land in the Mau Forest On 15th March 2013, the African Court issued provisional measures under Article 27(2) of the Court’s Protocol to order Kenya to immediately reinstate restriction on the transfer of land in the Mau Forest, these provisional measures remain in place

Survival in the 21 st Century The African Court of Justice and Human Rights Article 28L Bis Illicit Exploitation of Natural Resources  For the purpose of this Statute, “Illicit exploitation of natural resources” means any of the following acts if they are of a serious nature affecting the stability of a state, region or the Union:  a) Concluding an agreement to exploit resources, in violation of the principle of peoples’ sovereignty over their natural resources  b) Concluding with state authorities an agreement to exploit natural resources, in violation of the legal and regulatory procedures of the State concerned;  c) Concluding an agreement to exploit natural resources through corrupt practices;  d) Concluding an agreement to exploit natural resources that is clearly one- sided;  e) Exploiting natural resources without any agreement with the State concerned;  f) Exploiting natural resources without complying with norms relating to the protection of the environment and the security of the people and the staff; and  g) Violating the norms and standards established by the relevant natural resource certification mechanism.

Survival in the 21 st Century Conclusion  African Charter contains several articles for the protection of peoples’ and their land, culture and environment  Full range of people’ rights yet to be fully explored  Effective application? Endorois not helped by Commission, Ogiek not helped by the Court (yet)  The future, an African Environment Court?

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