Reclaiming Rights: The Endorois Case, Kenya AFRICAN ROUND TABLE ON EXTRACTIVES, MEGA INFRASTRUCTURE AND WOMEN RIGHTS OF CONSENT 30TH NOVEMBER TO 3RD DECEMBER 2016 - NAIROBI Reclaiming Rights: The Endorois Case, Kenya The Endorois is an indigenous minority community living around lake Bogoria in Baringo, Laikipia and Nakuru county, Kenya

Introduction… The Endorois Human rights struggle was necessitated by the forced eviction from their ancestral lands around Lake Bogoria in the early 1970s, to pave way for the creation of a wildlife conservation The community was promised alternative land, sharing of revenue collected from the tourism enterprise, gain employment opportunities etc; however it failed to bear fruit when the beneficiaries were paid a paltry amount of KES 3,150 ($31.50) as their final dues

Introduction… The community after several failed attempts to intervene through their member of Parliament and provincial administration opted to engage with the media and other means to advocate for their rights, including demonstrations Instead of issues addressed the community was branded opposition sympathizers; hence further marginalized socially and economically

Introduction… In 1998, the Endorois Welfare Council went to court, to seek redress; however it took five years, after which the decision was ruled in favour of the government with reservations In 2003, the case was taken to African Commission on Human and Peoples’ Rights (ACHPR) The Gambia, and in 2009 it was ruled in favour of the Community and adopted by heads of state summit in Feb 2010

ACHPR – RULING IN BRIEF The African Commission found Kenya to be in breach of articles 8, 14, 17, 21 and 22 of the African charter. Article 8: provides for freedom of religion. By evicting Endorois from their ancestral lands, the commission found that the Kenya government had denied us access to sacred sites that were essential to the practice of our religion. Article 14: the right to property. The commission found that Endorois had right to legal ownership of their land. By forcibly removing us, the government had infringed on this right. The had provided no lawful justification and had failed to provide compensation.

RULING IN BRIEF 3. Article 17: the right to culture. By forcing Endorois off their land and away from resources vital to the health of our livestock, the Kenyan government had threatened Endorois’ pastoralist way of life. The commission found that in doing so, the government had denied us right to culture 4. Article 21: A right to natural resources. On the basis that the Kenyan government had granted mining rights on Endorois land to private company, and had failed to consult or share the benefits with Endorois, the commission that the government was in breach of the article. 5. Article 22: A right to development. The commission found that by evicting Endorois from their ancestral land and failing to provide us with alternative land of sufficient quality to support our way of life and by failing to compensate us, the government had infringed Endorois’ right to development.

UNITED NATIONS DECLARATIONS ON INDIGENOUS PEOPLES’ (UNDRIP) Article 3: Right to freely determine their political status, pursue economic, social and cultural development Article 8: Right not to be subjected to forced assimilation or destruction of their culture Article 10: Indigenous peoples’ shall not be forcibly removed from their lands or territories, without free , prior and informed consent

UNDRIP Article 28: indigenous peoples have the right to redress, by means that can include restitution, or when this is not possible, just, fair and equitable compensation, for the lands, territories and resources which they have traditionally owned or otherwise occupied or used, and which have been confiscated, taken, occupied, used or damaged without free, prior and informed consent

UNDRIP Article 29: Indigenous peoples’ have the right to the conservation and protection of the environment and the productive capacity of their lands or territories and resources Article 37: Right to recognition, observance and enforcement of treaties, agreements and to have states honour and respect treaties, agreements and other constructive arrangements

UNDRIP Article 41: UN and its specialized agencies shall contribute towards the realization of this declaration through the mobilization, inter alia, of financial cooperation and technical assistance. Article 42: The United Nations, its bodies, including the permanent forum on indigenous issues, and specialized agencies, including at the Country level, and states shall promote respect for and full application of the provisions of this declaration and follow up the effectiveness of this declaration.

CHALLENGES OF IMPLEMENTATION Kenya government leadership making positive statements regarding implementation, but no action or formal commitment Kenya government ignoring the ACHPR ruling by inscription of Lake Bogoria as a World heritage site in 2011, without involving the Endorois in decision making process Kenya lack of commitment to engage with the African Commission e.g. failure to respond to a request to invite commissioners on a promotional mission to Kenya. Government undermining Endorois unity and self determination as a distinct community to

CHALLENGES… Implementation process taking unnecessarily too long High expectations of the deprived Endorois community and other indigenous minority communities in Kenya and Africa Very High levels of illiteracy, leading to low understanding of the importance of the ACHPRs ruling Lean secretariat, lack of financial and technical support to be able to engage with government appropriately

POTENTIAL UN HUMAN RIGHTS INVOLVEMENT IN IMPLEMENTATION Universal periodic review 2016, where Kenya publicly committed to the implementation of the commission decision UN special Rapporteur on indigenous peoples’ was verbally assured by the Kenyan government to implement the decision Shadow report to CERD 2011 Shadow report to human rights committee 2012

POTENTIALS… The UN social forum platform given to the Endorois in Geneva Switzerland in 2011 The human rights treaties division and OHCHRs regional office for eastern Africa have kept the profile of the case alive (tripartite meeting held July 2016) Therefore this would be good if various bodies could directly follow up on their recommendations to assist in securing implementation on the ground

Thank you Asante Sana Wilson K Kipkazi Executive Director Endorois Welfare Council (kipkaziwk@gmail.com) +254 721 549649