“Endorois decision” update – Kenyan task force appointed

Last Tuesday, Minority Rights Group International Legal Fellow Rebecca Marlin contributed a guest post on the failure of the Government of Kenya to take any meaningful steps to implement the groundbreaking “Endorois decision” issued in 2010 by the African Commission on Human and Peoples’ Rights. However, by Friday, the situation had improved, if only slightly.

My first notice came in a comment to a subsequent post by Sam Marigat, the head of the Endorois Welfare Council, but the news was also quick to make the Kenyan press. While the details remained nebulous, it seemed that the Kenyan Government had finally appointed the task force responsible for looking into the concrete modalities for implementation of the decision.

Today, a hat tip to colleagues at MRG, who have acquired a copy of the appointment order and given their first analysis of it in a press release. While the order is a welcome sign of progress, MRG has noted a number of serious concerns, not least the fact that the task force is not required to consult with the Endorois community, nor is there an Endorois representative included.

Meanwhile, the phrasing of the mandate, which refers to assessing ‘the practicability of restitution’ and ‘the potential environmental impacts on Lake Bogoria… of implementation’ leaves ample room for skepticism. While the appointment of the task force is a necessary and overdue step toward implementation of the ACHPR’s findings, it must be watched carefully to ensure that it does not simply become a means of thwarting them.

As Mr. Marigat pointed out in response to MRG’s original post, the signs have been grimly clear so far:

Our Kenyan government has not demonstrated any iota of commitment to implement the ACHPR recommendations. Some of the Endorois elders who suffered personal injury are either terminally ill or dead. We buried 2 recently.

Upcoming discussion of restitution at Stockholm University

Just a quick note to say I will be giving a talk on the right of restitution in two weeks at the Stockholm Center for International Law and Justice. Any TN readers locally-based or passing through are welcome to join!

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“The Endorois decision” – Four years on, the Endorois still await action by the Government of Kenya

by Rebecca Marlin

Rebecca Marlin is currently the Legal Fellow at Minority Rights Group International (MRG) in London. She earned her B.A. from Wellesley College and her J.D. from Fordham University School of Law. During her time at MRG she will be working extensively with the Endorois to achieve implementation of the 2010 African Commission decision granting them rights to Lake Bogoria.

For the Endorois of Kenya’s Lake Bogoria, the process of reclaiming their land from the government of Kenya has been one step forwards and two steps back. In 2003, MRG and partner organisation Centre for Minority Rights Development (CEMIRIDE), acting on behalf of the Endorois Welfare Council, went before the African Commission on Human and Peoples’ Rights to demand that the Kenyan government recognise the rights of the Endorois to Lake Bogoria.

The Endorois had inhabited Lake Bogoria for over 300 years before being evicted by the government in the 1970s. In 2010, the Endorois won the landmark case Centre for Minority Rights Development and Minority Rights Group International (on behalf of Endorois Welfare Council) v Kenya. The land rights aspects of this groundbreaking decision have been discussed on this blog here and some of the regional implications here.

A pattern of empty promises emerges

Immediately following the Commission’s ruling in February 2010, the government of Kenya welcomed the decision, promising to begin implementation. A large celebration of the decision was held at Lake Bogoria; the Minister of Lands was in attendance and the momentous occasion was broadcast on television nationally. Kenya’s progressive National Land Policy had been enacted only a few months prior to the ruling and, with a forward-thinking new Constitution in the drafting stages, it seemed the decision might soon be translated into restitution of land, compensation, and benefit-sharing for the Endorois.

However, in May 2010, a report on implementation due to be submitted by the government of Kenya to the African Commission failed to arrive. Throughout 2010 and 2011, the government of Kenya failed to take any significant action on the recommendations. One MP openly challenged the Minister of Lands in Parliament about this delay in January 2011; the official response from the Minister was that he would not be able to take any action until he received an official sealed copy of the 2010 decision – despite the fact that the decision had been officially adopted and published one year earlier. A sealed copy was thereafter delivered to the Minister, but this did little to improve the situation.

When pressed on the matter, the government continues to affirm that it supports the decision and is taking steps to carry out the Commission’s recommendations. Yet, steps taken by the government indicate the exact opposite and new legislation on Lake Bogoria threatens to further separate the Endorois from their land.

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Scotland chooses a bird in the hand

by Rhodri C. Williams

I declined to comment in advance on the Scottish referendum in part because I have been too busy to blog much at all, but also in part because it is none of my business. The wonderful thing about free and fair referenda like this is that they render outside observations almost entirely superfluous. Unless you actually have information that bears directly on the outcome – like EU experts – you are just projecting your own concerns onto somebody else’s drama – like the Spanish government panicking about Catalonia’s impending independence bid. Or China freaked out by any state reaction to regional agitation short of obsessive centralized control.

Perhaps the most spectacular example of such projection has been Russia’s cringe-inducing effort to project its new non-linear warfare to Caledonia. As described in the Guardian, a Russian monitoring team has rubbished the vote there because the rooms where the ballots were counted being “too big”. The same article quotes a Russia Today host questioning the high turnout as “what you would expect in North Korea”. Perhaps they are expecting the Scots to begin demanding an intervention by little green men? Perhaps they had a few geographically challenged paratroopers in the belly of the superannuated bomber they sent to buzz Scotland on referendum day?

As nicely skewered by the “Darth Putin – KGB” twitter account, Russia was clearly hoping that a truly legitimate independence referendum in Scotland would not only distract London from things like sanctions but also somehow cast unearned retroactive legitimacy on the shambles Russia staged in Crimea. However, as observed by Thomas De Waal at the time, the Crimea referendum was not only aggression masquerading as self-determination (even accepting that minorities can secede from states that have blatantly violated their rights, this did not apply in Crimea), but also a departure from what Scotland has now consolidated as international best practice for negotiated democratic decision-making on sovereignty.

Despite some post-referendum ugliness in Glasgow, the Russians’ blatant attempt to make hay on a genuinely democratic referendum, and their misreading of public sentiment afterwards may at least give both sides something to chuckle about. Is it really so inconceivable that placing the fate of a nation in its own hands would not inspire widespread and passionate participation? RT’s cynicism on this point says far more about the state of contemporary Russia than it does about Scotland. Notwithstanding the bruised feelings on both sides, Kevin McKenna points out that the combination of passion and civility throughout the campaign does all sides proud:

Scotland has delivered to the world a new gold standard in how modern political democracy ought to function. This was achieved during a struggle that was as passionate, raw and emotional as anything ever previously encountered in these islands. Yet not a bullet was fired and nor were there any physical casualties. The conduct of those chiefly involved in both campaigns was exemplary and, if not entirely chivalrous, certainly characterised by dignity and mutual respect.

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Controversial World Bank safeguard policies rewrite goes to consultations

by Rhodri C. Williams

Perhaps unsurprisingly, the World Bank’s rollout of a draft set of reworked safeguard policies took little note of a critical petition initiated last month by Inclusive Development International. However, even as the Bank announced a consultation period scheduled to run through the end of November, IDI elaborated on its concerns in a comment in Devex.

Without having yet had time to read through the Bank’s draft, it is difficult not to be concerned by the fundamental nature of the regression indicated by IDI’s criticisms. Elimination of the requirement to prepare advance resettlement plans, removal of substantive monitoring rules, the right to opt out of indigenous peoples safeguards, and an approach so flexible that the World Bank Inspection Panel “would have no hard rules against which to hold the World Bank accountable.” As Nezir Sinani notes in Huffington, the opt-out provision alone could undo a real – but fragile – sea change in the recognition of indigenous rights in parts of Africa.

Its hard to imagine what progressive innovations could offset the negative effects of all the above, but the Bank’s plug for the new draft is both disarmingly bullish and alarmingly bland, checking off all the catchphrases without giving any meaningful indications of the actual changes involved:

Through the revision of our environmental and social safeguard policies, the World Bank is ramping up its standards to ensure the delivery of an environmental and social framework which is more efficient and comprehensive; includes a strengthened approach to the management of environmental and social risks that will support sustainable development through standards that are clear to those impacted by the projects we finance, those who implement, and those holding us to account.

It is no secret that the Bank’s public statements tend to run more progressive than its practice, and that there are real dilemmas that the Bank faces in trying to live up to its own standards. But to gut the standards while claiming to strengthen them would not only be wrong, but downright Orwellian.

 

Petition against watering down of World Bank safeguard policies

Having obtained and analysed a draft of proposed new World Bank social and economic policies, my colleagues at Inclusive Development International (full disclosure – I am on the IDI Advisory Board) have circulated a petition demanding that the Bank follow its own first principles in this matter – in that the draft submitted for upcoming consultations should provide for conditions “no worse off” than those that prevailed under the old policy.

There are alarming indications that the current draft standard fails to meet even this minimum threshold. The full text of the petition setting out these concerns can be downloaded here, and I have reprinted IDI’s summary version below. Concerned individuals and organizations are welcome to join the petition anytime before Monday at 12 pm (EST) by sending an email to IDI Managing Director David Pred (david@inclusivedevelopment.net).

–//–

Dear Friends,

As many of you will have already heard (depending on which lists you’re on), the World Bank has presented to its Board an appalling draft of its new social and environmental safeguards policies.  The Board Committee on Development Effectiveness (CODE) will be meeting on July 30th to decide whether the draft is “fit for purpose” and should be opened up for public consultations.

A leaked version of the draft Social and Environmental Framework that we have reviewed effectively turns back the clock 30 years to the days before people and the environment were protected from harm by binding Bank policies.  At the same time, the Bank is proposing to significantly scale up its lending and get back in the business of high-risk mega-projects.  All this while slashing its operational budget and the resources available for project due diligence, monitoring and supervision.  Remember the Chixoy dam in Guatemala? The Sobradinho dam in Brazil?  Narmada in India?  We’ll be seeing plenty more of these human rights disasters if the Bank moves forward with this draft.

For those of us concerned about the global land grabbing crisis, this draft opens the floodgates to more massive land grabs, forced evictions, and dispossession of poor communities –  financed with our public purse.

Some of the most alarming proposed changes include:

  • An ‘opt out’ option for governments that decide they don’t want to apply the Indigenous People’s policy.
  • Major dilutions of the Bank’s current standards on “involuntary resettlement,” including the requirement for borrowers to submit and the Bank to review and approve – prior to project approval – a comprehensive resettlement plan that ensures affected people are not harmed and have an opportunity to share in the benefits of the project.
  • Exclusion of land titling projects from the coverage of the resettlement policy, leaving people like Cambodia’s Boeung Kak Lake community whose homes were demolished after they were determined not to have ownership rights by a Bank titling project completely unprotected from forced eviction. 
  • Totally inadequate protections against land-grabbing, despite an alarming reference indicating that Bank projects could involve large-scale transfers of land for agricultural investment. 
  • The elimination of essential appraisal and supervision requirements, which made the Bank itself accountable for non-compliance with the policies.

The World Bank released a statement last year pledging that its new safeguards would be informed by the Voluntary Guidelines on the Responsible Governance of Tenure and that “additional efforts must be made to build capacity and safeguards related to land rights.”  This commitment, which we welcomed at the time, has translated into one vague line in the draft framework about assessing risks or impacts associated with land tenure, which fails to articulate any policy objectives related to access to land or security of tenure, while many of the protections in the current Bank policies have been eviscerated as outlined above.

We have drafted the attached statement on land rights to send to CODE by Monday morning with the message that this draft is a non-starter for consultation and must be sent back for major revisions.   It has been endorsed so far by Asian Indigenous People’s Pact, Forest Peoples Program, Ulu Foundation, Urgewald (Germany), Friends of the Earth (US), Indigenous Peoples Links, Jamaa Resource Initiative (Kenya), Institute for Policy Studies, Center on International and Environmental Law, Lumière Synergie pour le Développement (Senegal) and Inclusive Development International. 

Will you add your voice to the global outcry?  Please consider signing on as an organization or an individual and sharing this with anyone else you think would want to join. 

In solidarity,

David and Natalie 
Inclusive Development International

 

 

Happy Midsummer’s Eve – and World Refugee Day

by Rhodri C. Williams

Every now and then the various preoccupations of this blog collide in unexpected ways. Today is such a day. Sitting here on Åland, its the first day of my summer vacation and time for the rites of Midsummer Eve, a pagan celebration the observance of which is an important part of the local community’s sense of itself. It is a day of rootedness in traditions carried out on a particular piece of turf since time out of mind by people connected through the ages by language and a sense of cultural continuity and the simple fact of their abiding presence.

All of which makes the contrast with this day’s other guise so jarring. It is World Refugee Day and not just any such day, but the one that has seen the greatest spike in conflict-related displacement since World War II. As this village’s 30 families raise the midsummer pole tonight, over 50 million people in other parts of the world have been violently uprooted from their communities, their traditions, their homes and their lands. It is a truly grim milestone and one that will cast a shadow over this and many future midsummer evenings to come.