Land and Post-Conflict Peacebuilding: Customary governance, property rights, and state building in Afghanistan

by Jennifer Brick Murtazashvili

Jennifer Brick Murtazashvili is assistant professor at the Graduate School of Public and International Affairs at the University of Pittsburgh. She recently completed The Political Economy of Customary Governance: Informal Order and State Building in Rural Afghanistan (under review), and is finalizing Land, the State, and War (with Ilia Murtazashvili), on how conflict over property rights has shaped the trajectory of the Afghan state. She also co-authored “Community Documentation of Land Tenure and its Contribution to State-building in Afghanistan” in Land and Post-Conflict Peacebuilding with J.D. Stansfield, M. Y. Safar and Akram Salam, and provides an update in this guest posting.

Conflict over land is one of the most important, yet poorly understood, drivers of instability in rural Afghanistan. The Taliban, for example, has been active in trying to establish its credibility and authority as reliable mediators of land conflict as it competes with the Karzai government for legitimacy.

The solution offered by the international community to the problem of tenure insecurity is the promotion of formal, state-backed legal titles. The chapter I authored with J.David Stanfield, Yasin Safar, and Akram Salam, “Community Documentation of Land Tenure and Its Contribution to State-Building in Afghanistan,” suggests that customary forms of land titles may be more effective in promoting the legitimacy of the state than by simply issuing formal government deeds.

The state has very little credibility with most Afghans as it is largely viewed as a source of corruption rather than governance.  This is not to say that Afghans do not want government. On the contrary, many Afghans are in demand of government but want to have little to do with formal state authority as it is currently exercised.

Thus, current efforts to promote property rights by promoting an extension of state authority in Afghanistan are not viewed by many Afghans as a viable solution. Instead, by making them more dependent upon a corrupt state, property rights based on state-issued legal titles may threaten, rather than enhance, tenure security in Afghanistan. This is largely due to the fact that many Afghans, especially those in rural areas, rely primarily upon customary mechanisms for the mediation of land disputes.  Furthermore, as Doug Batson suggests in his chapter in the volume, formal land titles often fail to adequately account for forms of customary land tenure.

One of the reasons efforts to extend state authority in rural Afghanistan have struggled, is because state-builders (both in the international community and some in the Afghan government) view the relationship between customary authority and the state in zero-sum terms.

While some analysts of Afghanistan have argued that that customary governance has withered away, my own fieldwork has shown that such structures remain quite strong but have changed over time to adapt to new circumstances in the country. Due to war and displacement, customary structures are actually more representative and democratic than they had been in the past.

Investment-related conflict in South Sudan: contested rights and the power of information

by David Deng

David Deng is Research Director for the South Sudan Law Society. These observations were originally presented at “Turning Point: What future for people and resources? A panel on the trends shaping rural lands and lives” on February 1, 2012 at The Royal Society of London.

Introduction

The new report by Rights and Resources Initiative (RRI) paints a vivid picture of a world in flux and the various struggles that are emerging over wealth, power, and natural resources. I’d like to pick up on a couple of these themes and flesh them out a bit with examples from South Sudan, where I’ve worked for the past few years on several projects relating to land rights. Most recently, my work has touched on the surge in land-based investment after the 2005 peace agreement, which brought to an end the 22-year civil war between north and south in Sudan.

Investment and conflict

The first issue that I’d like to touch on is the complex relationship between investment and conflict in resource-rich states. I think it is fairly clear to us all that poorly planned investments can contribute to conflict, particularly in fragile, post-conflict states; but what is perhaps a little less obvious is how conflict can actually serve to attract certain types of investment.

Let me explain. Struggles over land and natural resources were among the root causes of the civil war in South Sudan. Foreign investments during this period often contributed to the violence. Oil companies colluded with the government in Khartoum to forcibly displace local populations from oil producing areas, in order to make the land available for oil exploration. Armed groups in South Sudan used local monopolies of violence to control cross-border trade in precious woods.

And in the Nuba Mountains along the border between north and south, where today, we hear reports of mass killings and hundreds of thousands of people at risk of conflict induced-famine, the government expropriated community lands and gave them to foreign and domestic elites in order to establish large-scale mechanized farms. The disregard that Khartoum showed for their community lands caused many Nuba to join the liberation movement in the south. What followed was a long and costly civil war that eventually resulted in the secession of South Sudan.

But with its newfound independence, South Sudan finds itself in a harsh new world. It has a population of only 8 or 9 million, spread across a land area more than twice the size of the UK, considerable supplies of oil and minerals, fertile land and water; all this makes South Sudan an attractive prize in a resource-strapped world.

Proposals to allow private ownership of First Nations’ land spur debate in Canada

by Anneke Smit and Gloria Huh

Anneke Smit is Assistant Professor in the Faculty of Law, University of Windsor, Canada.  She is the author of The Property Rights of Refugees and Internally Displaced Persons(Routledge, forthcoming 2012) and co-editor of Private Property, Planning and the Public Interest (UBC, forthcoming 2013).  Gloria Huh will graduate in 2012 from the JD program at the Faculty of Law, University of Windsor. She has been involved in the promotion of housing rights for low-income individuals and families with the Hamilton Housing Help Centre and Legal Assistance of Windsor.

In a recent TerraNullius post, Rhodri Williams expressed optimism over Aboriginal participation in Canadian legislative processes, lauding Aboriginal leaders for engaging with the larger Canadian political system to better the position of their people.  Certainly it is positive that federal and provincial governments are engaged on an ongoing basis in land claims negotiations.  Further, a steady stream of judicial decisions (Beckman v. Little Salmon/Carmacks First Nation, 2010 SCC 53, [2010] 3 SCR 103.) continues to refine the nature of the relationship between the Canadian government and the country’s Aboriginal peoples.

Not all is well however.  Tensions on the subjects of housing and property rights on native reserves as between the federal government and native leaders are ongoing.  Hundreds of land claims remain unsettled, which has sometimes resulted in violent clashes.

Most recently the story of the wretched housing conditions on the Attawapiskat reserve in northern Ontario broke in late November 2011 and monopolized domestic Canadian news sources for weeks, reopening debate about Canada’s treatment of its aboriginal peoples.  Commentary has been voluminous and has focussed attention not only on Attawapiskat but on housing and property rights (and socio-economic conditions more generally) on reserves across Canada.  The Conservative government of Prime Minister Stephen Harper has been roundly criticized for its failure to address the Attawapiskat crisis earlier while negotiations between band leaders and government officials have been riddled with accusations of misinformation and miscommunication.

This media attention has provided an opportunity for advocates of a new approach to private property rights on reserves in Canada to gain public and government support for their position.  To date aboriginal title in Canada has been defined as a collective right (see for example the 1997 Supreme Court of Canada decision in Delgamuukw).  While the Indian Act allows for individual possession of reserve land, no private ownership of reserve lands has been permitted.  The proposed Act would change that.

The Nisga’a of British Columbia made history in 2009 when the band’s legislature passed a law allowing private ownership of band lands as part of their self-governance arrangement.  While this process is still in its early stages it is moving ahead both in effecting necessary legislative amendments and conducting public education sessions in affected communities.

While the Nisga’a development was one initiated at the band government level, some analysts in Canada have been advocating for such moves on a larger scale for some time.  University of Calgary political scientist Tom Flanagan, along with Manny Jules, head of the First Nations Tax Commission have long argued that private property ownership should be available for reserve lands.  Their arguments are classic de Soto, focussed on improving economic power through the exercise of private property rights.  They are now leading the push for a federal government-led legislative reform which would allow private ownership on reserves across the country.  The proposal was front-page news in Canada in mid- December and parliamentary hearings in 2012 will consider the proposed First Nations Property Ownership Act.

To be clear there is strong opposition to the proposals from a number of factions including many aboriginal leaders.  A similar proposal was soundly defeated by aboriginal chiefs in 2010 and it is not likely that the appetite of aboriginal leaders for such proposals will have changed, even in the wake of Attawapiskat.  But given the interest of the majority Conservative government, it is certain that Canadians will see a vigorous debate on aboriginal property ownership at the very least.

Understanding the outcomes of customary justice: implications for land practitioners

by Erica Harper

The international community has traditionally concentrated its legal development activities on the reform of formal justice sector institutions: the courts, legislature, police and correctional services. As it has become clear that these approaches have been relatively unsuccessful in improving access to justice for poor and disadvantaged populations, attention has shifted to the role that customary justice systems might play in the programming of governments, international organizations and NGOs operating in development, post-conflict or post-disaster contexts. A strong argument can be put forward that, in most developing countries, the state cannot provide justice services to its entire population and it might not be the most cost-effective provider of these services. Moreover, part of the reason that customary systems exist is due to shortcomings in formal justice systems.

Sometimes these shortcomings are connected to issues of physical access or dysfunctions such as discrimination or corruption; they can also be because state justice fails to respond to the needs and social imperatives of disputants in the way that the customary system does. Such arguments have influenced the rule of law programming strategies of many organizations. A review of the current policy and programmatic landscape reveals a growing consensus that, despite some obvious challenges, excluding customary justice systems from reform strategies may not be the best approach for enhancing access to justice and protecting the rights of vulnerable groups. There is a growing appeal for strategies that aim to improve the quality of outcomes resolved at the community level by building on the positive aspects of customary systems, particularly their reach and popularity, and attempting to reform negative practices.

But while there is now greater consensus around the issue of engaging with the customary sector, programmatic guidance on how this should occur remains scant. Moreover, partnering with customary justice systems raises new and important concerns. Principally, how can customary systems be supported while at the same time ensuring that this does not equate with a recognition or formalization of rights-abrogating practices? Such concerns have arguably led to technocratic ‘fix it’ programming, such as reforming customary laws to strengthen procedural or substantive protections, or modifying the state-customary interface with a view to regulating or harmonizing the two frameworks. This is problematic because where customary norms do not align with international human rights standards, there are often complex rationales in play, touching upon issues such as culture, socio-economic factors and security. Approaches that concentrate on bringing customary systems into alignment with international norms can thus be, at best ineffective and at worst harmful.

A further concern is the gap between the proliferation of customary justice programs and the evidence and knowledge base on which such programming is grafted. There have been few comprehensive or empirically driven efforts that reflect on or evaluate the impact of past programming efforts. Nor has there been sufficient critical analysis of the objectives of customary justice programming: is the aim to support or supplement state courts, to act as a venue for a decentralization of state legal services, or to form part of a broader spectrum approach to accessing justice? One result is that development practitioners have tended to re-apply programs designed for use at the state level rather than craft activities specifically for use in customary contexts, and replicate activities perceived to have been effective elsewhere without a proper understanding of what conditions facilitated such results.

These questions promted the International Development Law Organization to conduct research into the impact of customary law programming in developing countries. This research culminated in two volumes: “Customary Justice: From Program Design to Impact Evaluation” and an edited volume: “Working with Customary Justice Systems: Post-Conflict and Fragile States”.

Guest-posting by Erica Harper on new IDLO customary justice books

I am very pleased to announce that Erica Harper, Senior Rule of Law Advisor at the International Development Law Organization (IDLO), will shortly be guest-posting at TN. The topic will be a set of three books recently released by the IDLO on customary justice (all of which are available for free download as .pdfs at the above link). In her posting, Ms. Harper will address both the general issues explored by the volumes and their specific implications for land practitioners.  A little further ahead, we are looking forward to guest-postings by Rachael Knight, a contributor to the customary justice books and manager of an IDLO project on Community Land Titling that just released reports related to Liberia, Mozambique and Uganda.

Work with customary norms and community-level institutions reflect both the potential and the complications inherent in housing, land and property (HLP) work in a world where development expertise has destabilized some of the late 1990s certainties reflected in documents such as the Pinheiro Principles – but without necessarily replacing them with new ones. They are also burningly relevant as the agrarian communities most dependent on land find themselves increasingly threatened by large-scale investment and natural resource concession trends.

NRC consultancy on customary land dispute resolution in South Sudan

NRC has advertised a one month consultancy working on customary law issues related to land administration and dispute adjudication in South Sudan. This is a very important initiative on NRC’s part and a great opportunity to contribute to the development of informed practice in this highly challenging area. See the ToRs posted in the resource page of this blog. The timeline is quite short, so if you are interested, qualified and available, please contact Laura Cunial (laura.cunial@nrc.no) in order to receive the invitation to bid.

Liberia’s ‘Peace Imperative’ – can it undermine tenure security? An introductory commentary to the NRC report ‘Confusions and Palava’

by Alexandre Corriveau-Bourque

Since the end of the civil war in 2003, the Liberian government and the United Nations peacekeeping mission (UNMIL) have been working to stabilise the country and rebuild a functioning state. Despite their ability to (arguably) maintain political stability at the macro scale, the ability of the state to effectively intervene in localised problems is limited. Many of these localised disputes manifest themselves over land, as individuals return to their pre-war homes or resettle in an attempt to rebuild their lives and encounter a complex web of often conflicting claims on the same parcel.

This process is situated in a context of recent massive social disruption which indelibly altered the pre- war systems of authority that regulated access to land resources.  Since the judiciary can only intervene in the rare cases in which formal title deeds are involved, the state is limited in its ability to enforce the rule of law with regards to land relations.  As a result, individuals are predominantly reliant on customary and informal institutions to resolve disputes. For reasons articulated in a recent report from the United States Institute of Peace, many Liberians prefer to use mechanisms for informal mediation, even for disputes that could technically be handled by the courts.

However, the repeated displacement and return of populations has forced individuals and groups to forge new networks and relationships, giving rise to new opportunities to question or challenge the legitimacy of pre-war authorities. As such, while disputes may be between individuals, their ability to seek out alternative fora for a resolution that will satisfy them often brings multiple systems or networks into conflict with each other. The NRC report notes that opportunities for individuals to forum-shop increases as one gets closer to official cities in Lofa County. One means to secure contentious claims is through formal land title, which cannot necessarily be acquired in all parts of Lofa County. As one travels further away from the cities, customary authorities appear to command a stronger control over local communities’ land practices and relationships.

Release of NRC report on land disputes in Liberia – and guest blog by author Alexandre Corriveau-Bourque

TN readers are encouraged to check the Norwegian Refugee Council website starting tomorrow (Wednesday, 28 April) in order to access a new report on post-conflict land disputes in the context of legal pluralism in Liberia. The report, entitled ‘Confusions’ and Palava: The Logic of Land Encroachment in Lofa County, Liberia’ promises to make for some interesting reading:

As Liberia recovers from nearly a decade and a half of civil war, the largest obstacle to long-term stability remains the divisive issue of land. Using Lofa County as a case study, this study explores the conditions that produce land conflict and the mechanisms used to resolve them. Multiple waves of displacement, return and (re)settlement have significantly altered the many institutions that regulated access to land and land-based resources prior to the war. This has resulted in a range of tenure systems that are struggling to (re)establish themselves at a variety of scales. The very systems at play are undergoing intensive renegotiation from both internal and external forces.

This study argues that the competing discourses employed by the various systems of authority in Lofa County to legitimise/justify claims are creating opportunities for land encroachment, which is significantly reducing the security of tenure in this area. The perception of dispossession can lead to ‘confusions’ or palava, stages of a dispute that are generally being channeled into informal dispute resolution systems rather than formal mechanisms. These informal mechanisms are shaped by imperatives for ‘peace’ and ‘development,’ which increase the likelihood that negotiations will have a ‘satisfactory’ outcome for both parties, providing few disincentives for others to encroach.

The weaknesses of formal, customary and informal institutions limits what punitive measures can be brought against those who violate the norms that would guarantee secure tenure, thus helping to perpetuate the cycle of encroachment.

The report was written by Alexandre Corriveau-Bourque, who is also a contributor to a volume on post-conflict land management I’m currently working on. I’m very pleased to announce that Alexandre will also be writing an exclusive guest-posting for TN later this week introducing some of the key issues addressed in the report. Watch this space!

Côte d’Ivoire: land reform as a substitute mechanism for restitution to displaced persons

by Barbara McCallin

Côte d’Ivoire is currently experiencing a renewed political crisis that has overshadowed many of the issues faced by internally displaced persons (IDPs), and in particular land disputes. On 12 February, Ivorian President Laurent Gbagbo dismissed both the Electoral Commission and the Coalition Government, thereby delaying the election process for the sixth time since 2005 when they were first scheduled to take place. Meanwhile, the mandate of the Ministry of Solidarity and War Victims to act as a national IDP focal point has been discontinued. The Ministry had set up an inter-ministerial committee on IDPs and was working on draft legislation on compensation and restitution issues. It is unclear whether its responsibilities will be taken up by another branch of the executive. A new government was announced on 23 February but, as of the beginning of March, the eleven remaining vacant ministerial posts (out of a total of 27) included the Ministry for Agriculture, which is in charge of implementing important land reform legislation.

Background

The political crisis and the conflict in Côte d’Ivoire are closely linked to the issue of migrants’ citizenship and land rights. One of the underlying causes of the original 2002 conflict was resentment against the very migrants’ whose massive immigration to the Western Forest area of the country had been encouraged during the 1960s and the 70s through facilitated access to land and voting rights. The exploitation of region’s fertile lands contributed to increased exports of agricultural products that benefited the whole country. However, resentment against migrants from other regions of Côte d’Ivoire as well as foreigners was exacerbated by the economic crisis that affected the country in the 1980s and the 90s, resulting in growing calls by ‘indigenous’ Ivoirians to revoke the land and voting rights granted to migrant workers during previous decades.

These tensions resulted in an armed conflict which broke out in 2002, causing the displacement of hundreds of thousands people. Since the 2007 Peace Agreement was signed, the number of displaced has dropped to approximately 600,000. However, as there are no comprehensive records of return movements, the total number for IDPs in 2009 cannot be precisely determined except for the Moyen-Cavally region where some 80,000 people remain displaced.

A November 2009 report by the Internal Displacement Monitoring Centre (IDMC) examines land disputes in the Moyen Cavally and 18 Montagnes regions which are situated in the Western Forest area of Côte d’Ivoire. This area was one of the main arrival points for migrants and has been most affected by displacement and return movements. Longstanding land disputes in these regions have been exacerbated by the armed conflict, the resulting displacement and the subsequent return of IDPs. As in many other post-conflict situations, many IDPs and returnees have found their plots sold or leased by others, depriving of the means to independent subsistence and sustainable return.

The IDMC report analyses the nature of land disputes and the existing customary and statutory mechanisms to address them, focusing on the specific difficulties faced by displaced persons and returnees in resolving their land claims by these means. As Côte d’Ivoire has not developed an IDP-specific system of restitution or compensation for properties abandoned due to the conflict, these pre-existing mechanisms represent the only hope of redress, despite not being adapted to IDPs’ specific circumstances.

Reliance on the Rural Land Law

The Government’s intention is to settle both pre-war and post-war land disputes through its 1998 Rural Land Law, which aims to recognise and formalise customary land rights by setting out procedures and conditions for them to be transformed into title deeds. However, the law reflects the tensions between native Ivoirians and migrants in that only Ivorian citizens are to be granted ownership title, while others will be entitled to a long-term lease. Although this formulation at least allows Ivorian migrants from other regions of the country the possibility of obtaining title, the resentment of ‘autochtones’, or original inhabitants of the region, against all migrants, domestic or foreign, means that careful monitoring of the process will be necessary to avoid discrimination. The implementation of the law is likely to raise all of the social, economic, institutional and political challenges inherent in ordinary titling programs exacerbated by tensions related to the conflict and resulting displacement.

In a country where only two per cent of rural land is registered, and nearly all land transfers are informal, the reform represents a radical change. Populations used to customary management of land may be wary of a system that imposes a complex procedures and a new land tax without providing clear new benefits. Migrants, whose land rights have been challenged, may appreciate the new possibility to secure their land rights, even if this is limited to a long-term lease for non-Ivorians. From an institutional point of view, the formalisation program will require considerable administrative, financial and human capacity over the short and long term. To put this in perspective, in 2009 Côte d’Ivoire had only 23 surveyors available to demarcate the over twenty million hectares of rural land covered by the Land Law.

Little impact, high tensions

Although the aim of the Land Law is to reduce tensions resulting from the uncertainty of customary transactions, implementing it in the context of ongoing displacement may raise new tensions, as its provisions now represent IDPs’ only legal recourse to repossess their property. The IDMC report identifies several rules in the Law that may discriminate against IDPs and makes corresponding recommendations. For instance, in the absence of a formal instruction clarifying that absence due to the conflict should not be taken into account, there is a risk that the Land Committees implementing the law may interpret the requirement of “a certified statement of the continuous and peaceful existence of customary rights” to the detriment of absent IDPs. Similarly, the requirement that requests for formalisation must be made in the place of origin penalises IDPs. Finally, IDPs also need to be informed that requests may be submitted on their plot of land without their knowledge, so that they can make inquiries and defend their interests.

While the various elements of the Law have hardly begun to be applied, a recent announcement by the Ministry of Agriculture on accelerated implementation has raised tensions in the Western Forest area. It is therefore imperative to inform the population about the actual content of the law while at the same time advocating with the authorities to correct the problems identified.

The Rural Land Law has had a limited impact so far. As of November 2009, not a single title deed had been issued based on the Law. This means that IDPs and others affected by land disputes have to seek other mechanisms to address their problems. Unfortunately, the crisis has also rendered existing customary, administrative and judicial mechanisms for managing land disputes less effective. The legitimacy of customary institutions has been weakened by the younger generation’s rejection of land sales concluded with migrants by the elders. Conflict also stems from confusion over the nature of land sales: migrants believed they bought the land permanently while native villagers pretend they merely sold a temporary right of use. The displacement of many customary chiefs has kept them from performing their roles and led others assert contested claims to their office. Finally, local authorities, NGOs and private individuals have initiated ad hoc dispute resolution mechanisms in some areas, adding further confusion and promoting inconsistent adjudication processes.

Adjudicating rights in forestland

The Rural Land Law does not cover disputes over land located in protected forests, where many IDPs had plantations, and there is at present no mechanism to address such disputes. Land transactions in protected forests are prohibited by the forest code and the administration of the forest is delegated to a public institution (‘Sodefor’), which may contract with private companies to undertake regulated exploitation of forest resources. In practice, many transactions between native Ivorians and migrants have taken place. Such transactions being illegal, there is currently no possibility either for IDPs to repossess their land or for migrants to formalise rights they acquired. The ad hoc solutions that have been proposed so far reflect political calculations than a rights-based approach. Further research on ways to address land disputes in protected forests would be useful, and I would welcome examples of good practice from other countries readers may be familiar with.

On the occasion of the report’s launch by the Norwegian Refugee Council in Abidjan last November, the participants agreed to create working groups on land issues in Abidjan and in the Prefectures (regional level) that would include the Ministry of Agriculture, Sodefor and UN agencies. However, in view of the current political tensions, only two local land working groups have begun work in the Western Forest area.

The African Commission “Endorois Case” – Toward a Global Doctrine of Customary Tenure?

by Rhodri C. Williams

Every now and then, a judicial decision comes along that seems to snap a fuzzy area of law into crisp focus. One such decision is the communication released this month by the African Commission on Human and Peoples’ Rights in what will probably come to be known as the “Endorois Case” (full title: “Centre for Minority Rights Development (Kenya) and Minority Rights Group International on behalf of Endorois Welfare Council v Kenya”). The Endorois people were evicted from their traditional lands near Lake Bogoria in central Kenya in the 1970s, relocated to an area unsuitable for their pastoral way of life and granted only sporadic access to sites central to their spiritual beliefs. In the wake of the eviction, promises to provide compensation and a share of the proceeds from the nature reserve established on the Endorois’ traditional lands were broken.

In its decision, the African Commission finds violations of the rights to freedom of religion, property, health, culture, religion and natural resources under the African Convention on Human and Peoples’ Rights (ACHPR). The Commission accordingly “recommends” restitution of the Endorois’ traditional lands, recognition of their ownership rights, compensation for harm suffered during the community’s displacement and other measures. There are many noteworthy features of this decision; not least, as Human Rights Watch notes, it is the first time that any international tribunal has found a violation of the right to development. However, it is likely to be most interesting for the current readership in light of the approach the Commission takes to the right of property under Article 14 of the ACHPR – particularly in cases where it is alleged to be held collectively by an entire community. As such, it is worth summarizing the relevant portions of the decision in some detail.

The communication begins with a summary of facts and relatively short discussion of the admissibility of the complaint. After an extended treatment of the allegations and legal arguments made by the complainants, the Commission unfolds its decision on the merits in a cascade of holdings that would seem like self-evident restatements of Kenya’s commitments under international and regional law – except that no tribunal has ever laid them out with such precision and grounded in such a concrete scenario before. First, the Commission rejects the assertion by Kenya that the conditions of modern life and the existence of segments of the Endorois community who do not live according to customary precepts means that the Endorois can no longer be meaningfully distinguished from broader tribal categories and are not a “people” in the sense of the ACHPR. In doing so, they clearly anchor the collective enjoyment of indigenous rights in the protection of ancestral lands:

The African Commission is satisfied that the Endorois are a “people”, a status that entitles them to benefit from provisions of the African Charter that protect collective rights. The African Commission is of the view that the alleged violations of the African Charter are those that go to the heart of indigenous rights – the right to preserve one’s identity through identification with ancestral lands (para. 162).

After finding a violation of the right to freedom of religion under Article 8 of the Convention – again, based in large part on the failure of the Kenyan authorities to provide access as of right to religious sites located on the Endorois’ traditional lands (para. 173), the Commission goes on to consider the property issue under Article 14 directly. The Commission first confirms that the lands in question are the traditional territory of the Endorois, based on centuries of uncontested pre-1973 occupation and use as well as the failure of the respondent Government to dispute this point:

The Complainants argue that apart from a confrontation with the Masai over the Lake Bogoria region three hundred years ago, the Endorois have been accepted by all neighbouring tribes, including the British Crown, as bona fide owners of their land. The Respondent State does not challenge those statements of the Complainants. The only conclusion that could be reached is that the Endorois community has a right to property with regard to its ancestral land, the possessions attached to it, and their animals (para 184).

The Commission goes on to cover a number of preliminary issues, including the appropriate scope and nature of ‘property rights’ in indigenous settings. Here, the Commission takes explicit notice of the informal, unwritten nature of such rights and the vulnerability this gives rise to in cases where they are not given some degree of formal recognition (para. 187). It then rejects Kenyan government objections on the basis of positive discrimination, noting that special measures (in this case, recognition of collectively held indigenous land rights) are not discriminatory where they serve to redress imbalances:

The African Commission shares the Respondent State’s concern over the difficulty involved; nevertheless, the State still has a duty to recognise the right to property of members of the Endorois community, within the framework of a communal property system, and establish the mechanisms necessary to give domestic legal effect to such right recognised in the Charter and international law (para. 196).

The Commission then observes, almost drolly, that the fact of the Endorois’ eviction without process or compensation tends to undermine the Kenyan Government claim that the existing Land Trust system constitutes an adequate measure to protect the Endorois’ rights (para. 199) and goes on to make a pointed argument on the necessity of domestic guarantees of ownership rights for indigenous communities, rather than mere access rights:

The African Commission notes that if international law were to grant access only, indigenous peoples would remain vulnerable to further violations/dispossession by the State or third parties. Ownership ensures that indigenous peoples can engage with the state and third parties as active stakeholders rather than as passive beneficiaries (para. 204, citation omitted).

From here, the Commission asserts that mere settled possession of ancestral lands by indigenous groups (rather than any showing of formal title) is sufficient to trigger the state obligation to provide legal recognition. However, the Commission also explicitly draws the consequence of the above reasoning in cases, such as the present one, where recognition has been withheld: namely , that where the concerned groups have subsequently faced wrongful eviction from their lands, their loss of possession cannot then be invoked to deny their rights, including restitution and compensation. In a nutshell, traditional possession must be recognized as title and wrongful dispossession cannot extinguish it (para. 209).

Having set up this impressive legal architecture, the Commission goes on to make fairly short work of the actual proportionality analysis. The interference (“encroachment”) is crystal clear  in the form of evictions, denied access, and subsequent construction, concession and extraction activities on the affected land (para. 210). The public need for a game reserve is given heightened scrutiny in light of the significance of the land to the affected community (para. 212). Accordingly, the means used by the Kenyan government – forced evictions without consultation onto land that denied dignity and livelihood to those affected – were found disproportionate to “any public need served by the Game Reserve” (para. 214). And, for good measure, the Commission finds numerous violations related to the separate requirement of legality, both in relation to the failure to consult the affected community and the paltriness of the compensation proffered. All this, and then the Commission goes on to find violations to the Endorois rights to enjoyment of their culture and development under Article 17. The resulting prescription is sweeping:

The African Commission recommends that the Respondent State:
(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.
(g) Report on the implementation of these recommendations within three months from the date of notification.

Much of the “padding” between the key observations and holdings summarized above consist of extensive reference to international and regional human rights standards and jurisprudence, and particularly that of the Inter-American Court and Commission. It might be surmised that the Commission sensed the extent to which it was breaking new ground and took pains to ground its decision as thoroughly as possible in emerging understandings of indigenous rights. One might hope that this will also increase the likelihood of the Commission’s decision  influencing other regional human rights interpretations in turn, though this would perhaps be less relevant to Inter-American system, where recognition of indigenous community rights are relatively advanced.

However, it could be of interest in the European system, particularly if the logic behind the decision survives the leap from indigenous communities (few of which are recognized in Europe, the main exception being the Nordic Sami people) to national minority communities; the latter are both common and recognized in Europe and share many of the key criteria discussed in the Endorois case as markers both of indigenous identity and vulnerability, such as attachment to specific traditional lands, self-identification, and historical persecution. Indeed the key question more broadly speaking may revolve around whether international law will ultimately make the leap of faith reflected in the formulation of Principle 9 of the Guiding Principles on Internal Displacement:

States are under a particular obligation to protect against the displacement of indigenous peoples, minorities, peasants, pastoralists and other groups with a special dependency on and attachment to their lands.

In other words, notwithstanding the achievement the Commission’s decision represents, there is an arguable case that international law should move from protecting land rights based on a formal finding that a community is “indigenous”, as in the Endorois Case, to protecting land rights based on the underlying dynamic of dependence on and attachment to informally held land seen among many of the world’s poorest and most vulnerable citizens, “indigenous” or not. But that said, the most interesting thing for the time being will be to watch what happens as governments throughout Africa begin to come to terms with their new acquaintance, the “P” in ACHPR.