Politics as land disputes by other means? Kenya braces itself for elections (updated)

by Rhodri C. Williams

Kenyans go to the polls next Monday in the culmination of an entire political season spent building institutional guarantees against a repeat of the appalling ethnic violence and mass-displacement that followed the country’s last elections in 2007. Prevention measures ranging from a new 2010 Constitution to a 2012 law criminalizing internal displacement have been earnestly discussed and adopted in the intervening years.

However, the breathtaking fact remains that some of the leading candidates in the current election may be responsible for the violence of the last round – and that their eventual election may be used as a pretext to effectively shield them from accountability for these crimes before the International Criminal Court (ICC).

The resulting ‘bizarre’ nature of the first debate between Kenya’s presidential candidates was captured by Mark Kersten at Justice in Conflict, who also reflected recently on the underlying question the ICC-Kenya brouhaha raises – namely whether transformative political change has supplanted individual criminal responsibility as at least the implicit primary aim of international justice.

There is certainly a case for such an approach, which arguably only transposes the consequences of the individual criminal behaviour of political leaders into the novel but expanding terrain of the state responsibility to protect (see Mark Kersten again, here). If the results of an individual leader’s acts are now recognized as giving rise to a threat to international peace and security, in other words, why should the rest of the international community sit around and twiddle its thumbs?

On the other hand, principled arguments against such an expansive view of the aims of international justice include the risk of politicization of the ICC through selective support of regime change by gatekeeper institutions such as the UN Security Council. However, beyond this concern about the tail wagging the dog, Kenya may now have usefully exposed a major practical limitation on politically transformative international justice. For example, in an otherwise highly cogent piece on the upcoming elections in Kenya on OpenDemocracy, Clare Castillejo argues for what some may view as closing the barn doors after the horses have bolted:

So what can the international community do in these final days before the polls? Firstly it must send strong signals that politicians who incite violence will face international sanctions such as asset freezing, travel bans and – where possible – prosecution. Kenya’s international partners (particularly the US, UK and the EU) and its East African Community neighbours must be prepared to speak out forcefully at the first signs of electoral fraud or organised political violence.

Got that? Politicians now hoping to elude international accountability for past electoral violence by running for elected office are to be prevented from resorting to further violence by threatening them with accountability for such acts. Is that entirely convincing? I do not mean to be facetious, and I am very concerned for Kenya, but is doubling down on a concept of accountability that has proven elusive in practice likely to be effective as a means of protection? Perhaps it will, if applied as part of a unified campaign of international condemnation. But if it does not, the result may further undermine the effectiveness of accountability as a check on such crimes.

Humanitarians are also talking prevention, but in a slightly more nuanced (some might say ambiguous) way.

The Kampala Convention on internal displacement in Africa: What does it mean for housing, land and property restitution?

by Mike Asplet and Megan Bradley

Mike Asplet is an attorney currently working with the Brookings-LSE Project on Internal Displacement. Megan Bradley is a Fellow at the Brookings Institution, where she works with the Brookings-LSE Project.

The African Union’s Kampala Convention for the Protection and Assistance of Internally Displaced Persons (IDPs) in Africa will hopefully come into force any day now. When it does, it will be the first regional treaty to comprehensively address the IDP issue, from preventing displacement to providing protection and assistance, and supporting durable solutions. The Kampala Convention represents a critical new tool for tackling some of the largest and most complex IDP situations in the world: some 10 million people are internally displaced across the continent, making up one third of the world’s IDP population.

The treaty reflects well-established normative frameworks, primarily the Guiding Principles on Internal Displacement, which have to date provided the foundation for IDP protection and assistance efforts. However, the Kampala Convention also significantly advances the normative framework on internal displacement in several key areas. These include protection from arbitrary displacement; the responsibilities of the African Union, multinational companies and private security actors; and the right to a remedy for the wrongs associated with displacement, including the loss of housing, land and property (HLP). The question of remedies for lost HLP is particularly important, as land conflict is at the root of many internal displacement flows in Africa, and the resolution of hotly contested land claims represents a key barrier to solutions for thousands of IDPs.

On first glance, it doesn’t seem like the Kampala Convention has much to say about land issues, and in particular the restitution of displaced persons’ lost property. In light of the popularization of the (contested) UN Principles on Housing and Property Restitution for Refugees and Displaced Persons (the so-called “Pinheiro Principles”) and trends such as the now-common practice of explicitly addressing the restoration of displaced persons’ HLP rights in peace treaties, it is striking that there is no reference to restitution in the Kampala Convention. This omission is clearly deliberate. While many provisions from the Guiding Principles have been specifically incorporated into the Kampala Convention (in some places without amendment), the documents diverge considerably in their approach to question of HLP rights, and restitution in particular.

Online books on land law in Africa

Just a brief announcement regarding a pair of very interesting online books from last year that are available for free download from the website of the Pretoria University Law Press. Both are edited by Robert Home and address the theme of African Land Law.

The first is a series of case-studies. While most take up development themes, the first two, by Patrick McAuslan and Geoffrey Payne, focus on post-conflict issues. In the case of McAuslan in particular, the analysis appears to further unpack development-based critiques of the Pinheiro Principles of the sort initially raised by the Overseas Development Institute.

The second book features a series of essays, including a discussion of the influence of Islamic Land Law in Africa by Siraj Sait, and several pieces on the trend toward recognition of indigenous peoples’ land rights, in contradiction to the post-colonial impulse to treat untitled land as the property of the state.

The need to move from recognition of such rights to implementation was recently highlighted by a report on Kenya by the Working Group on Indigenous Populations in Africa. According to reports earlier this month by the Nation and the Star, the report highlights not only Kenya’s failure to implement the findings of the African Commission of Human and People’s Rights in the Endorois case, but also ongoing land depredations that continue to threaten other minority groups in Kenya (as reported on earlier in TN here).

Redressing the ‘Endorois Case’ violations or replicating them?

by Rhodri C. Williams

Although I gather that the Government of Kenya is serious about implementing the February 2010 decision by the African Commission on Human and People’s Rights (ACHPR) in the ‘Endorois case‘, I have yet to hear much about what actual progress has been made in the nearly two years since it was issued. However, an article in the Guardian on the recent displacement of Kenya’s Samburu people indicates that the fundamental lesson of the Endorois decision may be slow in sinking in, at a high cost to indigenous peoples in East Africa.

One striking thing about the Samburu case is the broad similarity it bears to the original Endorois evictions in 1974. This includes the fact the Samburu are  also a pastoralist people, that they have been moved through acts of official violence and intimidation to marginal areas at the edge of their former homeland, and that the justification for the eviction in both cases involved the creation of a nature reserve. In both cases, national litigation appears to focus on formal title issue without apparent regard to customary ownership (or “indigenous title” in the ACHPR’s parlance). Coincidentally (or not?) both cases even involve land associated with former Kenyan President Daniel Arap Moi.

However, one factor clearly distinguishing the Samburu case is the involvement of two international charities, the Nature Conservancy and the African Wildlife Foundation in acquiring the land and gifting it to Kenya for use as a nature park. While the Guardian reports that both are maintaining a watchful silence, it will be interesting to see how they respond to the pressure that will inevitably mount on them. Given the public profile of these organizations, neither are likely to tolerate the patterns of cooptation and brutality apparently encouraged with regard to pastoralists by private safari park interests in neighboring Tanzania (I linked to an MRG account of this situation earlier here; for an exhaustive report by a Swedish observer who was actually expelled from the country for her troubles, see the view from the termite mound).

Whether the Nature Conservancy and AWF will be willing to act as decisively as the Body Shop did in Colombia last year in response to allegations of land-grabbing by one of its suppliers is another question. In that case, an NGO, Christian Aid, was able to act as an intermediary between the aggrieved Colombian farmers and a fundamentally sympathetic company. In the case of the Samburu, however, another NGO, Survival International, has taken a more skeptical stance. Upon reading their press release and watching a documentary clip on the evictions by Channel 4, it is not too hard to see why.

Colombia’s Victims’ Law enacted – Last stand or new beginning for programmatic property restitution?

by Rhodri C. Williams

In a signing ceremony attended by UN Secretary-General Ban Ki-moon, Colombian President Juan Manuel Santos ratified the Victims’ Law last Saturday, fulfilling his  unexpected and ambitious post-election pledge to enact a property restitution bill. Commentary on TN has highlighted both the unprecedented nature of this effort and the formidable obstacles it faces.

The fate of this legislation takes on additional significance against the background of current debates over the post-conflict ‘right to restitution’ proclaimed most prominently in the 2005 Pinheiro Principles. As early enthusiasm about restitution has faded, the need to respond to prevailing humanitarian trends such as urban vulnerability and protracted displacement has led to an increased emphasis on local integration as a durable solution. The extent to which programmatic restitution – and the promotion of voluntary return – remains seen as a viable complementary strategy to local integration efforts may depend on the outcome of the increasingly rare test cases, such as Colombia, that tackle this challenge head on.

Regional advocacy on the UN human rights mapping exercise in the Democratic Republic of Congo

by Shane Quinn

With the focus on North Africa these days, it’s a little difficult to sway observers of human rights issues to other pressing situations such as that of Democratic Republic of Congo (DRC). After all, DRC has received its fair share of analysis over the years from human rights and rule of law to humanitarian and peace-building perspectives, and yet this conflict continues to bubble accompanied oftentimes by horrendous mass rapes and internecine massacres. DRC has become synonymous with a deficit of accountability and lack of recourse for victims of grave human rights abuses.

So how then, will the recently published UN Mapping Exercise on Grave Human Rights Abuses from 1993-2003 manage to establish some long awaited justice for the many victims of its wars? With great difficulty, is the proverbial answer. Although the report succeeds in pointing out the roles and responsibility for human rights abuses of different actors including the Congolese state and its neighbours in the region, the latter have effectively dismissed the report as groundless. The Rwandan government in particular has been highly critical of the mapping report and related lobbying and advocacy activities of civil society organizations (CSOs) in DR Congo and Rwanda, directly questioning the UN’s mapping methodology and referring to the content of the report as lies.

The Human Rights in Ireland blog gives a very balanced overview of the expectations on the mapping report, while also dampening the expectations felt by many civil society actors within the DRC and the Great Lakes. The fact of the matter is that this mapping report – while initially shaking the regional status quo by accusing Rwanda and Uganda amongst other countries of grave human rights abuses – has failed to ignite a regional push for greater accountability by either civil society or international actors.

It is early days of course, and only three months have passed since the publication of the report, but already plans are being laid for the elections in DRC in June 2011 and the mapping has not been mentioned as a central issue of any electoral campaign. Instead, the danger is that it assumes a similar fate to prior human rights reports conducted in Timor Leste and Sudan, which attracted little more than a passing glance by the international community. The worrying proof is also in the lack of hits on the internet since the publication date of 1 October last year. Having waiting for this report to be published, maybe civil society actors in the region can now start communicating across the region’s borders and try to establish some momentum before the elections.

Upcoming guest-postings on Democratic Republic of Congo by Chris Huggins and Shane Quinn

by Rhodri C. Williams

As we become inured to a steady procession of breaking political and humanitarian crises, it is relatively easy to forget about the many protracted low-level conflict scenarios that seem to grind relentlessly forward, perpetuating human misery in isolated corners of the world without ever improving or deteriorating sufficiently to register very strongly in the public consciousness. The situation in the Democratic Republic of Congo (DRC) is arguably the premier example of this phenomenon. Featured in the most recent issue of Forced Migration Review (FMR), the situation in DRC is succinctly described by former UN Emergency Relief Coordinator John Holmes as ‘a scandal that needs to end’.

With nearly two million internally displaced persons and a history of being locked into its own conflicts and victimized by those of its neighbors, the untapped human potential and resource wealth of DRC is staggering. However, the nervous initial reception and subsequent awkward silence surrounding an October 2010 UN Mapping Report on human rights violations committed between 1993 and 2003 in DRC hint at the extent of the challenges to addressing the root causes of conflict there. This blog has not done justice to land and human rights issues in DRC to date, but that is about to change thanks to the expertise of two upcoming guest-bloggers:

First, Chris Huggins will be contributing his third guest-posting on TN, this time introducing an October 2010 report he wrote for International Alert on ‘Land, Power and Identity: Roots of Violent Conflict in Eastern DRC’. As indicated in the title, Chris’ report focuses not only on the significance of land for individuals but also its role as a sustaining factor in inter-group conflicts, particularly in the volatile province of North Kivu.

Second, first time TN guest-blogger Shane Quinn describes the role of civil society organizations (CSOs) in the Great Lakes region in seeking to draw attention to the findings of the above-mentioned UN Human Rights Mapping Report. Efforts to end impunity and promote reparations for victims identified through the report have been proposed through both political processes such as the upcoming DRC elections and legal procedures such as those before the African Commission on Human and Peoples’ Rights (ACHPR).

As in virtually all other contemporary conflicts, land is a crucial underlying issue in DRC. In both the findings of a recent RSC workshop and a number of articles in the latest issue of FMR (available for free download here), experts and practitioners have attested to the link between land competition and ethnic tensions that persist both within the eastern provinces of DRC and across its borders.

Week in links – Week 2/2011

This week picks up a few interesting items from the end of last year as well as some more updated texts:

- Now that the referendum on South Sudan’s separation appears to have gone off peacefully, attention is turning to the contested territory of Abyei. As described in this NYT article, Abyei represents a microcosm of the North-South conflict but one which has, alarmingly, been left on the sidelines of last week’s putative solution. Here’s a sample:

“We will go to war over this,” said Rou Minyiel Rou, a veterinarian in Abyei. “This is about land, and we can’t compromise on land.”

- Anyone remember Osh? Fortunately Transitions OnLine does, and they released a series of reports last week on the aftermath of last June’s orchestrated attacks on Uzbek minority communities in this town in southern Kyrgyzstan. The first two reports focus squarely on land and property issues, including the plight of women left behind to safeguard destroyed family homes, and ongoing ethnic tensions over land access in the region. Against a chilling backdrop of arbitrary arrests of Uzbek men, the latter report notes that the reconstruction of Uzbek neighborhoods may not take place according to the victims’ preferences:

Other unsubstantiated claims center around the urban plan under discussion by city authorities. Few details have been released, but the plan is said to include building apartment blocks in place of the traditional family compounds where many Uzbeks live. Uzbek neighborhoods take up large areas of the city, particularly in central districts and around the famous Suleiman Mountain.

- Carl Soderbergh of Minority Rights Group International (MRG) wrote a two part report in the MRG Blog late last year on the threatened land rights of the Maasai in Tanzania. The first part of the report analogizes latter day practices of removing this indigenous group from the environs of a wildlife park with the colonial doctrine of terra nullius (sound familiar?) used to justify earlier annexations. The second part examines the violent expulsion of another group of Maasai from a wildlife sanctuary acquired on disputed legal grounds by the American tour operator Thomson Safaris. Fully 37 years after the facts that triggered the Endorois decision by the ACHPR in neighboring Kenya, this must be only one of many more such cases in the making.

Revisiting uti possidetis: Is Southern Sudan’s referendum scarier if it succeeds?

by Rhodri C. Williams

On day three, all signs indicate that the referendum on the separation of Southern Sudan from Khartoum is going shockingly well. Continued high turnout bodes well for achievement of the key threshold of 60% of registered voters and the mood appears to be nigh on festive at many polling stations. Violence has flared in the contested Abyei region, but it remains to be seen whether this dispute will join the ranks of the intractable (along with Jerusalem, Kirkuk and Nagorno Karabakh) or can eventually be arbitrated into submission (a la Bosnia’s Brcko District). So why are there still some long faces in the world of diplomacy?

In looking at land issues in conflict, it is helpful to recall that various individuals’ and groups’ asserted property rights are not the only relevant claims. States have traditionally had rather an important vote as well. Indeed, until recently states were relatively unfettered in their ability to regulate and expropriate property rights and forcibly remove people from their homes and lands when they deemed it necessary. Sovereignty-related concerns related to development, national security and territorial integrity were paramount.

Since the end of Cold War, greater attention to both regional and global human rights standards and the assertion of doctrines such as human security and responsibility to protect (R2P) have altered this balance. As a result, while states continue to enjoy  broad discretion over the use of their land resources, they have come under increasing pressure to recognize that their ‘territory’ is co-terminous with the homes, homelands, property and possessions of their citizens, and to respect the rights accruing to affected individuals and groups as a result.

The resulting situation should in theory ensure that the costs of necessary government action that infringes on private property interests are not externalized solely onto those directly affected. As I blogged on earlier here, both development and human rights standards are converging on this understanding. In situations where these rights are egregiously violated in the context of war and ethnic cleansing, legal remedies such as restitution have come to the fore, both in practice and in standards such as the Pinheiro Principles.

However, as many commentators have pointed out, the current exercise of self-determination by the people of southern Sudan hearkens back to older understandings of the primacy of state territorial control and threatens the integrity of a longstanding legal consensus of such age and fixity that it has been anointed with a Latin phrase. “Uti possidetis” or “as you possessed” is a sort of interstate rule of adverse possession that originally ratified territorial conquests in warfare and later shaped the process of liberation of former colonies.

The Pinheiro Principles take a licking (and keep on ticking?)

by Rhodri C. Williams

Based on my early experience of both, working on international soft law standards seems a bit like parenthood – you have a limited period to create a warm, protective space around the text that will give it the resilience and flexibility to make a difference in the world and then you let it go and watch its fitful progress with your heart in your mouth. Maybe you don’t hear from it in a while and then, for better or for worse, there it is in the morning paper.

My first brush with the ‘Pinheiro Principles’ on property restitution for displaced persons came during their infancy, when I sent comments on a draft and was invited to participate in a March 2005 expert consultation to groom the text for  presentation to the UN Sub-Commission on Human Rights. I was fresh from my prolonged engagement with Bosnian restitution and pleased to see so much of what we had struggled to articulate there being expressed in the draft. At the same time, a prior consultancy job with IPA had put me on notice that both the nature of post-conflict property issues and means of addressing them could take many forms.