ENDOROIS V KENYA:CASE REVIEW Korir Sing’Oei, Co-Counsel for the Endorois

Facts of the Case In 1973 the Government of Kenya in exercise of its statutory authority (police powers or compulsory acquisition?) over land, reserved Endorois’ land (then Trust Land) as a Wildlife Sanctuary first called L.Harrington and later, L.Bogoria Game Reserve controlled by the Baringo and Koibatek Local Authorities and managed by the Kenya Wildlife Services. The government proceeded to forcefully evict over 400 families from L.Bogoria without any consultation nor compensation. The failure to compensate the community with adequate grazing land to sustain their livestock, or to subsequently involve the Endorois in the management and benefit-sharing of the reserve, forced them into abject poverty from which they have never recovered. In 1997, the Endorois as beneficial owners of Trust Land sought constitutional interpretation regarding their rights within the L. Bogoria reserve. It specifically urged the court to abolish the Trust on the ground that the Baringo and Koibatek Councils had violated their fiduciary obligation/duty towards the community by failing to apply resources accrued from the reserve towards improving the social and economic welfare of the community. The Constitutional Court failed to assess the duty of a Local Authority towards a beneficiary community as envisaged in articles 114-119 of the former Constitution but instead found that the establishment of the reserve had nationalized the resource, placing it outside the direct control or enjoyment of the community. The intended appeal filed by the community was not heard over a period of 3 years, and in 2003, the Endorois, through CEMIRIDE and MRG approached the African Commission seeking remedies of restitution of its land and compensation for material and spiritual losses among others on the basis of the African Charter on Human and Peoples’ Rights.On February 2, 2010, the ACmHPR found in favour of the Endorois Community. This presentation reviews the key elements of this decision.

Procedural Challenges at the ACmHPR Retroactivity- Cause of action preceded the ratification of the African Charter by Kenya Response by Commission: A state is precluded from relying on retroactivity unless it can demonstrate that since ratifying the Charter it had taken legislative and other measures to bring its national system into compliance with the Charter. The Commission also agreed with Applicants that to the extent that the state had not remedied its unlawful conduct of evicting the community without due process or compensation, this was a case of “continuing violation.”

Substantive Issues Indigenousness in Africa: In response to the GOK’s objection that the inclusion of the Endorois in ‘modern society’ had affected their cultural distinctiveness for the purposes of special protection as an indigenous group, the Commission established: Actual aboriginality nor distinctiveness are not a requirement for indigenous status in Africa. What’s important is: a. Constructive aboriginality ( unambiguous dependence on a specific territory; b. the experience of marginalization and discrimination). Citing Saramaka v Suriname (Inter American Court), the Commission concluded that the mere fact that some members of Endorois no longer identified with the cultural traditions of the community did not deprive their community of juridical personality (para. 162).

Substantive Issues Right to Property:Strictly speaking, Article 14 of the Charter only applies to individual rights. Though the Ogoni case revealed that the Commission was prepared to apply the right beyond the narrow interpretation of individual property, it remains that the Endorois case marks the first instance in which the Commission clearly defines what the protection of collective land rights under the Charter entails. In determining whether L. Bogoria was Endorois’ property, the Commission found that neither paper title nor uninterrupted occupation were necessary indicia of ownership. Commission found: “possession” of the land should suffice for indigenous communities lacking real title to obtain official recognition of that property.[1] The Commission further added that, while traditional possession entitled indigenous people to demand official recognition and registration of property title, members of indigenous communities who had unwillingly left their traditional lands, or lost possession thereof, maintained property rights thereto, even though they lack legal title, unless the lands had been lawfully transferred to third parties in good faith.[2] Moreover, the Commission stressed that members of indigenous communities who had unwillingly lost possession of their lands, when those lands had been lawfully transferred to innocent third parties, remained entitled to restitution thereof or to obtain other lands of equal extension and quality. Consequently, possession is not a requisite condition for the existence of indigenous land restitution rights.[3] The government was urged to consult Endorois in clarifying the nature and content of tenure rights over L.Bogoria (para 195). Commission concluded that Trust Land regime had “ proved inadequate to protect the rights of communities…” (para 199). [1] Para 190. citing the case of The Mayagna Awas Tingni v. Nicaragua, Inter-American Court of Human Rights, 2001, para 151. The Commission also quoted Doğan and Others v. Turkey, European Court of Human Rights, Applications 8803-8811/02, 8813/02 and 8815-8819/02 (2004), paras. 138-139. [2] Endorois case, para. 209 [3] Id., para. 209.

Substantive Issues Contd. Right to Natural Resources: Article 21 of African Charter The Commission was cautious to explicitly grant ownership of rubies located on the Endorois ancestral land to the community, while acknowledging that the cultural and economic survival of indigenous peoples generally depended on their access and use of the natural resources in their territory.[1] It further stated that limitations on the prerogative of the State are most likely to apply when the extraction of one natural resource affects the use and enjoyment of other resources that are necessary for the survival of the indigenous community.[2] The Commission emphasized that any form of resource extraction required-at a minimum- effective consultation of the Endorois [3]. This included the obligation to allow the community to perform or supervise any EIA or SIA prior to the commencement of the project [4]. Finally, it held that an indigenous community was entitled to reasonably participate in the benefits (including royalties) derived from any concessions [5]. [1] Id. paras. 266-268. [2] Id., para. 266. [3] Id., para. 266 and Recommendations 1(c) and 1(d) at page 80. [4] Id., para 260. [5] Id., para 264.

Substantive Issues Contd. Right to Development: Article 22 of the Charter The Endorois case marks the very first instance globally in which the right to development has been adjudicated upon. The Commission’s findings clearly established that development must be equitable, non-discriminatory, participatory, accountable and transparent.[1] The Commission was equally emphatic on the development needing to lead to the empowerment of the Endorois community. In this regard, it held that both the choices and the capabilities of the Endorois had to improve in order for their right to development to be realized.[2] [1] Id., para. 277. [2] Id., para. 283.

Recommendations of the ACmHPR The Respondent State should implement the following recommendations: (a) Recognise rights of ownership to the Endorois and Restitute Endorois ancestral land. (b) Ensure that the Endorois community has unrestricted access to Lake Bogoria and surrounding sites for religious and cultural rites and for grazing their cattle. (c) Pay adequate compensation to the community for all the loss suffered. (d) Pay royalties to the Endorois from existing economic activities and ensure that they benefit from employment possibilities within the Reserve. (e) Grant registration to the Endorois Welfare Committee. (f) Engage in dialogue with the Complainants for the effective implementation of these recommendations.