Cemiride and MRG v Kenya (Endorois Case) [African Commission on Human and Peoples' Rights]

JurisdictionDerecho Internacional
CourtArbitration Tribunal (International)
Date04 February 2010
Docket Number(Communication No 276/2003)

African Commission on Human and Peoples' Rights

(Alapini-Gansou, Chairperson; Malila, Vice-Chairperson; Bitaye, Tlakula, Kayitesi, Atoki, Maiga, Yuen, Khalfallah and Fayek, Members)

(Communication No 276/2003)

Centre for Minority Rights Development (CEMIRIDE) (Kenya) and Minority Rights Group International on behalf of Endorois Welfare Council
and
Kenya
(Endorois Case)

Territory Indigenous people Endorois community in Kenya Kenya forcibly removing Endorois from ancestral land to create game reserve Endorois community seeking redress Whether Endorois distinct community Definition of indigenous peoples Consideration of subsidiary sources of international law or general principles in determining rights under African Charter Relevant criteria Sacred relationship to land Self-identification African Charter on Human and Peoples' Rights, 1981 recognizing rights of peoples Indigenous rights Whether Endorois having collective rights Right to practise religion Right to property Right to culture Right to free disposition of natural resources Right to development African Charter on Human and Peoples' Rights, 1981, Articles 8, 14, 17, 21 and 22 Whether Kenya violating African Charter by forcibly removing Endorois from ancestral lands without proper consultation and adequate compensation African Commission's recommendations

Human rights Right to practise religion Whether Endorois' spiritual beliefs and ceremonial practices constituting a religion under African Charter and international law Whether Kenya interfering with Endorois' right to religious freedom by its actions or inactions Whether Kenya violating Article 8 of African Charter on Human and Peoples' Rights, 1981

Human rights Right to property Indigenous land rights Whether land constituting property Ownership of ancestral land Whether special measures of protection appropriate Whether Endorois land encroached upon by Kenya Whether encroachment proportionate to public need and in compliance with national and international law Whether adequate consultation and compensation Whether Kenya violating Article 14 of African Charter on Human and Peoples' Rights, 1981

Human rights Right to culture Requirement for State to protect and promote culture Whether Kenya creating major threat to Endorois' pastoralist way of life by displacement from ancestral land Whether Kenya violating Article 17(2) and (3) of African Charter on Human and Peoples' Rights, 1981

Human rights Right to free disposition of natural resources Ownership of natural resources Consultation Participation in benefits Prior environmental and social impact assessments Requirement of adequate compensation or restitution of land Whether Kenya violating Article 21 of African Charter on Human and Peoples' Rights, 1981

Human rights Right to development Whether Kenya providing adequately for Endorois in development process Whether consultation adequate Whether Endorois effectively participating Whether adequate compensation Whether Endorois accorded land of equal value Whether Endorois having equitable share in benefits from game reserve Whether Kenya violating Article 22 of African Charter on Human and Peoples' Rights, 1981

Summary: The facts:The complainants filed a complaint on behalf of the Endorois community alleging that the Respondent State, the Republic of Kenya, had violated the rights of the Endorois by forcibly removing them from their ancestral lands around Lake Bogoria within the Rift Valley Province in Kenya for the creation of a game reserve.

The Endorois, a community of approximately 60,000 people, had lived in the Lake Bogoria area for centuries; they had sometimes been classified as a sub-tribe of the Tugen tribe of the Kalenjin group. The complainants claimed that their forcible removal was without proper prior consultations, or adequate and effective compensation, and violated the African Charter on Human and Peoples' Rights, 1981 (African Charter), national law and the Constitution of Kenya. The complainants sought a declaration that Kenya had violated Articles 8,1 14,2 17,3 214 and 225 of the African Charter, restitution of their land with legal title and clear demarcation, and adequate compensation.

The complaint was held to comply with Article 56 of the African Charter and the communication declared admissible. Kenya's request to reopen arguments on the communication's admissibility was declined.

The complainants argued that the Endorois were an indigenous people entitled to the protection of collective rights under the African Charter. They alleged that Kenya had violated Article 8 of the African Charter since expulsion from their ancestral land had meant that the Endorois were unable to access Lake Bogoria and surrounding areas to conduct religious rituals and ceremonial practices thus preventing the practice of their religion. They maintained that the Endorois had a right to property with respect to their ancestral land, its possessions and cattle, despite lack of formal title recognition, and that Kenya had violated Article 14 by its actions. They contended that the Endorois' cultural rights had been violated in contravention of Article 17(2) and (3) since Kenya had systematically restricted access to cultural sites and damaged their pastoralist way of life. They also alleged that Kenya had violated Article 21 since their eviction had prevented access to vital natural resources and Article 22 in failing to involve the Endorois adequately in the development process.

Kenya disputed that the Endorois were a distinct community entitled to protection under the African Charter. It asserted that there was no recognition of economic, social and cultural rights or group rights in the Kenyan Constitution and that Kenya had not ratified the International Labour Organization Convention No 169 concerning Indigenous and Tribal Peoples in Independent Countries, 1989 and withheld approval of the UN Declaration on the Rights of Indigenous Peoples. With respect to Article 8 of the African Charter, Kenya argued that the complainants had not shown that the gazetting of the game reserve to conserve the environment and wildlife failed the constitutional test of reasonableness and justifiability. Kenya denied that the Endorois community had a right to property with respect to ancestral land, which was in fact trust land. It asserted that there was access to forest areas subject to administrative procedures and that political issues were sometimes disguised as cultural. With respect to Article 21, it contended that the Endorois had benefited greatly from tourism and mineral prospecting activities. With respect to development, Kenya argued that communities should contribute to society's well-being as a whole within participatory democracy, that the Endorois had also benefited from programmes for the rural poor and that they were well represented in the decision-making structure.

Held:Kenya was in violation of Articles 1, 8, 14, 17, 21 and 22 of the African Charter.

(1) From all evidence, the Endorois were a distinct indigenous community. While there was no universal and unambiguous definition, all attempts to define indigenous peoples, also using subsidiary sources of international law and general principles in accordance with Article 61 of the African Charter,6 required a sacred relationship to land and self-identification. The Endorois culture, religion and traditional way of life were intimately intertwined with their ancestral lands. The members of this pastoral community enjoyed and exercised rights, such as the right to property, in a distinctly collective manner from the Tugen sub-tribe or the larger Kalenjin tribe. As such, the Endorois had people status warranting collective rights protection under the African Charter (paras. 14462).

(2) Kenya had violated Article 8 of the African Charter.

(a) The Endorois' spiritual beliefs and ceremonial practices constituted a religion under the African Charter. Their cultural and religious practices, centred around Lake Bogoria, were of prime significance to all Endorois. As recognized by the Human Rights Committee, religion was broadly construed under the International Covenant on Civil and Political Rights, 1966 (paras. 1658).

(b) By forcibly evicting the Endorois from their ancestral lands, Kenya had interfered with their right to religious freedom. Denied access to Lake Bogoria, it was virtually impossible for the Endorois to maintain religious practices central to their culture and religion. This severe restriction was disproportionate to the goal of economic development or ecological protection and thus unlawful. The limitations placed on the State's duties to protect rights had to be viewed in light of the African Charter's underlying sentiments (paras. 16373).

(3) Kenya had violated Article 14 of the African Charter.

(a) It was clear that the land surrounding Lake Bogoria was the Endorois' traditional land. African Commission jurisprudence considered land as property for the purposes of Article 14; property rights included undisturbed possession, use and control as well as access and freedom from encroachment. Under international case law official title deeds were not necessary for ownership of ancestral land.7 The acknowledgement that traditional African communities' rights, interests and benefits constituted property under the African

Charter and might require special measures to secure was the first step in their protection (paras. 17490)

(b) Kenya was obliged to protect as well as to respect the right to property under Article 14. Special measures of protection were owed to tribal community members to guarantee the full exercise of their rights.8 Kenya was obliged to establish mechanisms to give domestic legal effect to that right; positive discrimination was permitted under international law to redress imbalance (paras. 1918).

(c) The property of the Endorois was severely encroached upon by Kenya, in particular by the expropriation and effective...

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