Monthly Archives: February 2010

Refugees International on civilian protection: a cautionary note on Blue Helmet HLP interventions

by Rhodri C. Williams

Refugees International just released a report on peacekeeping and civilian protection that makes for some interesting but sobering reading from an housing, land and property (HLP) rights perspective. This in a context where a number of advocacy documents have recently called for peacekeepers to be given a greater role in protecting the property rights of displaced civilians, ranging from ensuring that abandoned properties are not occupied or destroyed to enforcing, where necessary, orders for the eviction of occupants of claimed properties.

For instance, the UN Secretary General’s 2007 report on the protection of civilians in armed conflict recommended “strategic deployment of peacekeeping troops to prevent evictions and the illegal appropriation of land and property” as well as “the inclusion of [HLP] issues as an integral part of future peacekeeping and other missions, with provisions for dedicated, expert capacity to address these issues” (paragraph 59).

UN-HABITAT has gone further in its 2007 “Post-Conflict Land Administration and Peacebuilding Handbook“, proposing that international security forces be mandated to provide assistance in lawful evictions from occupied property (page 23) and that UN peacekeeping forces carry out eviction orders against criminal elements where necessary to execute demolition orders for illegally built structures (page 33).

Finally, the 2005 Pinheiro Principles call for international peace operations to help maintain a a secure and stable environment such that restitution programs can be implemented (Principle 22.5) and, upon request, to “support the protection of the right to housing, land and property restitution, including through the enforcement of restitution decisions and judgments” (Principle 22.6). UN Security Council members are encouraged to consider including these roles in the mandate of peace operations.

By contrast, the new Refugees International report points out the difficulties peacekeeping missions have faced in the exercise of the most fundamental protection mandate imaginable, namely the physical protection of civilians under “imminent threat of violence”. The report points out that structuring even such basic protection is often complicated by the failure of peacekeeping mandates to provide guidance on how to prioritize numerous conflicting tasks. However, it also notes the structural difficulty of getting trained soldiers to to do things they were not trained for – and do them well and consistently:

The lack of clarity is made even more challenging by the fact that peacekeepers do not have a standard doctrine on how to conduct protection activities. This forces peacekeepers to improvise tactics in the field. Traditional military doctrines and training were built mainly to defend territories, not to protect individuals. While a refugee camp is more straightforward to defend, it is much more difficult to plan an operation to protect civilians in far-flung communities.

The report does not really address protection of abandoned property, with the implication that the authors may view this as the type of peripheral task that can raise dangerous expectations on the part of affected populations while distracting peacekeepers from the type of basic protection work they may actually be able to achieve.

This conclusion would largely resonate with international experience in Bosnia, where peacekeepers’ presence and arrests of war crimes suspects was helpful in achieving an overall security environment conducive to restitution but any direct military involvement in actual evictions would have invoked rather unhelpful shades of prior ethnic cleansing and undermined the idea that addressing property disputes was an essentially civilian rule of law exercise.

Moreover, post-Bosnia situations in which international military personnel have been drawn into property disputes appear to reinforce RI’s central point that uninformed protection interventions will lead to improvised, ad hoc outcomes, potentially doing  more harm than good. A good example is provided by Human Rights Watch’s description, in its 2004 Claims in Conflict report on northern Iraq:

In the absence of any legal framework or practical mechanism for resolving property disputes, U.S. forces in some places began conducting their own mediations to resolve property disputes. There appeared to be no coordinated approach to these mediations, and the approach of different U.S. commanders varied widely. Some commanders told Human Rights Watch that they refused to engage in resolving property disputes. ….

Other U.S. troops, however, decided to play a limited mediation role, to resolve the least controversial of property disputes and to prevent inter-ethnic violence. The U.S. efforts presented a host of problems. While well-intentioned, the ad hoc mediations were often conducted by U.S. military personnel with limited knowledge of the complex property issues involved, and without the guidance of a standardized framework to ensure fairness. No clear guidelines were developed to structure the ad hoc mediations, so the weight given to different claims was determined by the mediators, rather than by standardized policies. Neither was it clear that all affected parties, including the displaced Arabs, were fully represented at the negotiations. ….

This message is underscored by the fact that forthcoming UN guidance to humanitarian actors in the field – who could reasonably expected to be more sensitized to the complexities of HLP issues than peacekeepers – has adopted ‘do no harm’ as its departure point and primarily advises humanitarians to avoid getting in over their heads where possible and to defer to land tenure experts.

Given the fundamental importance of HLP issues to security and stability in post-conflict settings, it is not unreasonable to expect peacekeepers to be aware of them and to consciously take on at least indirect roles in securing HLP rights in the course of exercising their mandate. However, RI’s findings serve as a reminder that unclear and unrealistic expectations of what peacekeepers can do will serve no one’s interest.

Human rights are dead! Long live human rights!

by Rhodri C. Williams

I was struck recently by a commentary I came across by Joshua Kurlantzick in Newsweek entitled “The Downfall of Human Rights“. The thrust of the argument was that the West had stopped lecturing everyone else on human rights and everyone else had stopped listening anyway. All this in a global gentlemen’s agreement reflecting new American post-Bush humility and isolationism, the pragmatic approach to civil liberties accepted as part of the “war on terror”, and the economic clout of rising powers that prefer Sun Tzu to Eleanor Roosevelt. The author draws on diverse authorities ranging from opinion poll results to revealing anecdotes and does not shy away from the odd historical flourish:

The age of global human-rights advocacy has collapsed, giving way to an era of realism unseen since the time of Henry Kissinger and Richard Nixon.

He concludes on the pessimistic note that the only way to return to a human rights-driven agenda may be to experience another historic shock on the magnitude of the fall of the Berlin Wall or the 9/11 attacks. Having gone to law school in the ferment of the late 1990s, I was receptive to these arguments – but also a little puzzled by them. For one thing, many observers concede that the human rights ascendancy that sputtered into life at the end of the Cold War was flickering out again within weeks of the 9/11 attacks. The Bush administration’s decision to demand absolute loyalty of its allies and treat terrorism as a purely military rather than a criminal issue presaged a polarization that would undermine the shaky post-Cold War consensus around placing individual rights on any kind of a par with state sovereignty. In this sense, Kurlantzick could have published a variant of this article anytime during the last nine years and been just as right.

A second question that occurs to me is whether it would, in any case, be a healthy development for human rights to continue to be something exclusively purveyed by the global north and received by the global south. In Kurlantzick’s analysis, the grassroots human rights base in the West is too preoccupied with their mortgage payments to keep struggling for human rights abroad, while the masses in developing countries are often satisfied to forgo civil liberties in favor of political stability and economic mobility. However, the answer to this dilemma is phrased not as a worldwide re-invigoration of human rights discourses but such a shock as would be necessary to “to shake Western populations out of their torpor”.

There is an element of truth to the idea that human rights are primarily a Western construct that has been promoted as universal to the rest of the world – usually with the best of intentions and often with a failure to recognize the aspects of recent history and current power dynamics that might lead some in the developing world to be skeptical. However, this approach tends to underplay the extent to which Western powers still remain responsible for human rights violations. Moreover, declaring the human rights movement dead in the world if it is dead in the West does little justice to the courage of the Zimbabwean activists who faced down Mugabe and his torturers, the Iranian democracy protesters, the few but extraordinarily tenacious Chinese dissidents, those struggling for the land rights of Colombia’s three million displaced and many, many more. If the human rights movement is alive anywhere in the world today, it is alive in the developing world.

A third point of contention I had with Kurlantzick relates to the idea that human rights are something divorced from the grubby business of politics. This viewpoint is implied in the author’s critique of Western foreign offices for failing to maintain their commitment to human rights:

Today the lack of interest in human rights has been virtually institutionalized in Washington and other capitals. A decade ago, policymakers could move up the ladder within bureaucracies like the U.S. State Department, the British Foreign Office, or Germany’s Foreign Ministry by focusing on human rights, but today advocating for global freedom will get you nowhere. In many Western democracies, increasingly partisan politicians apply far greater scrutiny to every detail of diplomats’ records, and human-rights work requires aggressive, often controversial statements and actions—just the types of activities that could get a promotion blocked by elected legislators.

The author concludes with a telling anecdote about a British diplomat sacked for criticizing not only Uzbekistan’s human rights abuses but Britain’s toleration of them in service of prosecuting the war on terror. However, it is hard to imagine any foreign ministry in the world that would tolerate such direct criticism of any of its policies – human rights, trade, cultural exchange or otherwise – by a diplomat in its service. For governments, human rights are a matter of policy that must be balanced with other interests and that has always been the case, right or wrong. There is little doubt that the atmosphere was more conducive in the 1990s, but even then, for example, NATO bombed Serbia over Kosovo but gave Russia a pass for similar violations in Chechnya. In other words, even at its very best, the human rights policy of liberal democratic states is likely to be selective, favoring campaigns that can most easily be sold to domestic constituencies and won at reasonable cost.

As a system for human rights protection, this is inherently arbitrary and lets the bigger states (China) or those they choose to protect (Burma, North Korea, Sudan) violate with impunity. On the other hand, consider the fact that former heads of state are now almost routinely tried for their previous crimes, or that Europe has become a no-go zone for many of the world’s current thugs, or that the Swiss are now considering legislation to ensure that the ill-gotten gains of dictators will be sent back to the citizens they were stolen from. Until 1949, human rights did not exist as such; now they are an unquestioned article of both domestic and foreign policy in many countries. Until 1989, the idea of humanitarian intervention in states engaged in massive human rights violations was unthinkable; in 2005 it was adopted by the UN General Assembly in the guise of ‘responsibility to protect’ (R2P). Even if we are now looking at a significant step back, it comes in the wake of a few pretty big steps forward.

Perhaps most reassuring, human rights may now increasingly be understood for what they actually are, not what we think they should be. A reading of any of the major international and regional human rights conventions reveal a set of rules laced with exceptions and often subject to derogation in times of emergency. Human rights are a set of norms binding on states but devised by states; they are neither perfect nor absolute. However, the fact that human rights are not unconditional is conducive, by design, to balancing the interests of individual rights-holders against those of society; the city needs to widen the road so the adjoining property holders must settle for compensation.

A better and more realistic understanding of human rights may facilitate their belated incorporation into discourses such as development where they have the potential to make a major impact. The fact that the World Bank long resisted mainstreaming human rights in its policies, but is now committed to doing just this, shows that human rights may be making a healthy transition from the drawing rooms of diplomacy to the more quotidian places where the concrete work of promoting the rights and dignity of individual human beings gets done.

NYT on earthquakes and urbanization

First, on an administrative note, sorry about the recent gap in postings! Its lots of fun blogging but when the wife is on a business trip and the kids come down with a fever, its inevitably one of the first things to go out the window. Temporarily. I have a number of interesting posts in the works, including the long-promised analysis of the new Durable Solutions Framework for IDPs.

In the meantime, it had just occurred to me this morning to wonder when journalists might begin to devote their attention to the many cities (and megacities) beyond Port au Prince that are sitting perilously close to geological fault-lines. Ten minutes later, I opened up the New York Times to discover an article on earthquakes and urbanization that was both terrifying (experts estimate that a quake on Haiti’s scale would kill up to one million people in Tehran) and hopeful, particularly in its detailed description of comprehensive disaster risk reduction measures underway in Istanbul since 2006.

Haiti’s urban disaster becomes rural?

The sudden destruction of Port au Prince has had such powerful symbolic value that it has arguably obscured the extent to which the informal urban neighborhoods that now lay in ruins sprang up in reaction to generations of rural misery and natural disasters. As the focus shifts from relief to reconstruction, the fact that nearly 600,000 urban dwellers have fled to the countryside – e.g., that long-term urbanization flows have essentially gone into reverse – has begun to register.

On one hand, some commentators such as Robert Maguire and Robert Muggah in a recent CSM opinion piece, have seen this trend as an opportunity to prevent the reconstitution of urban slums by promoting both sustainable rural livelihoods and decentralized governance:

Close to 1 million Haitians have already fled Port-au-Prince for towns and villages from which they originally migrated since the 1960s. But if conditions in the countryside are not improved, and quickly, these people will drift back to Port-au-Prince and rebuild as before. The Haitian government’s proposal to provide real opportunities in 200 towns and villages equipped with “welcome centers” merits support. These centers will issue short-term relief, and bundle health, education, job-creation, and investment services to help the rural economy take off.

This view is part of a larger debate related to the appropriate role of assertive, well-funded international actors in a near-collapsed state with little capacity or resources of its own. The authors propose decentralization as part of a set of recommendations meant to fall between the more interventionist ‘build back better’ views of development thinkers such as Paul Collier (who recently advocated the creation of a new Haitian aid coordination agency to monitor the work of donors) and schools of thought starkly critical of the utility of development funding in light of fundamental imbalances of power and trade.

However, the presence of one million disaster IDPs in the countryside does not only have long-term implications for Haiti’s governance and development path. FAO and CARE pointed out recently that the strain on host families is not only threatening immediate food supplies but also the next season’s harvest, raising serious food security concerns:

Rapid assessments undertaken by FAO and its partners in the Agriculture Cluster have shown that “host families” caring for displaced people are spending their meagre savings to feed new arrivals and consuming food stocks.

In many cases these poor people are resorting to eating the seeds they have stored for the next planting season and eating or selling their livestock, in particular goats.

Even as the crisis in Haiti recedes from the headlines, it also appears to have receded to some degree from the highly visible scenes of destruction in Port au Prince, creating a potentially dangerous double invisibility for both the displaced survivors themselves and the families who have taken them in.

FAO Gender and Land Rights Database

FAO recently announced the launching of a new database focusing on gender equality in land relations. The Gender and Land Rights Database can be searched by both country and thematic issues, including national and international legal frameworks, customary law, land tenure institutions, civil society institutions and land-related statistics. The FAO press release announcing the launch noted that the database was developed in response to consist demand for information on this topic, which, as FAO notes, is a good sign in and of itself:

“Disparity in land access is one of the major causes for social and economic inequalities between males and females in rural areas. It jeopardizes food security at the household and community levels, and has an impact on national food security and development. It is vital information for policy makers. But until now, finding information on this phenomenon in one place has been difficult to come by,” Marcela Villarreal, Director, FAO Gender, Equity and Rural Employment Division said as the new database was placed online.

The new information tool, available to anyone with access to the Internet, provides policymakers and other users with a better picture of the major social, economic, political and cultural factors which affect access to land and enforcement of women’s land rights.

As with any new initiative (this blog included), there are likely to be growing pains. I took my first foray into the new database with a somewhat random request for the full country reports on Afghanistan and Cambodia. While Afghanistan came back blank, the Cambodia report was a pretty impressive compilation of information – relevant, well-organized, quite up to date at first blush and well-sourced, with footnoted and hyper-linked citations.

Pastoral peoples’ rights and livelihoods

This week’s earlier posts have focused fairly extensively on the recent “Endorois communication”, by the African Commission on Human and People’s Rights, in a case that involved the land rights of of pastoral indigenous group in central Kenya. Among other sources, the decision relies on the findings of the African Commission’s Working Group on Indigenous Communities/Populations. This body drafted a report that was adopted by the Commission in 2003 as its official policy on indigenous peoples’ rights in Africa. One interesting detail in the report (also cited in para. 150 of the Endorois case) is its identification of pastoralism as one of the specific characteristics of African indigenous groups.

… those groups of peoples or communities throughout Africa who are identifying themselves as indigenous
peoples or communities and who are linking up with the global indigenous rights movement are first and foremost (but not exclusively) different groups of hunter-gatherers or former hunter-gatherers and certain groups of pastoralists. (page 89)

There has been a good deal of attention to pastoralism in Africa recently, including the OCHA-led Pastoral Voices project which released a report yesterday focusing on mobility in the Horn of Africa in light of drought conditions and security issues:

An on-going collaboration between UN-OCHA, United Nations Environmental Programme (UNEP), the Institute for Security Studies (ISS) and the International Organization for Migration (IOM) is taking this concern forward through the Security in Mobility project. The inter-agency project promotes pastoralists’ internal and cross-border mobility needs as a climate change adaptation. And it also advocates for regional cross-border security needs to be reconciled with pastoralists livelihood needs.

Meanwhile, at a more global level, the FAO yesterday released its State of Food and Agriculture report, which focuses on the need for greater investment, research and governance “to ensure that the world’s livestock sector responds to a growing demand for animal products and at the same time contributes to poverty reduction, food security, environmental sustainability and human health”. Here, again, land issues and climate change adaption measures figure in strongly:

There is a need to enhance the efficiency of natural-resource use in the sector and to reduce the environmental footprint of livestock production, the report says. The goal is to ensure that continued growth in livestock production does not create undue pressure on ecosystems, biodiversity, land and forest resources and water quality and does not contribute to global warming.

Not to be left out, the pastoralists of the world themselves appear to be uniting and have started not one but (at least) two websites, namely those of the League for Pastoral Peoples and the Pastoralist Communication Initiative.

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.

Background on the “Endorois Case”

As background to Chris Huggins’ post (below) on the regional significance of the African Commission on Human and Peoples’ Rights recent decision on indigenous land rights in Kenya, readers are referred to the concise and comprehensively hyperlinked overview provided by the Jurist website (hats off to Andrew Solomon for the tip). The decision itself (Communication 276/2003) weighs in at eighty pages but merits the reading – I’ll post tomorrow with some observations on its significance for international law and practice.

Chris Huggins on the significance of the “Endorois Decision” for Kenya and East Africa

by Chris Huggins

The decision of the African Commission on Human and Peoples’ Rights on the land rights of the Endorois minority will have a significant impact within Kenya and the wider East African region.  The timing of the decision means that a number of crucial ongoing legislative and political projects within Kenya will have to take the decision into account. These include the approval of the draft land policy, which states that the government will “establish mechanisms to resolve historical land claims arising in 1895 or thereafter”, and makes provision for new legal categories of land to be established, including “community land”. This revolutionary provision would lead to the demarcation and recognition of land customarily owned and used by particular communities. The draft Land Policy proposes so many fundamental changes to the land tenure system that a key issue will be the sequencing and financing of the process of drawing up regulations and establishing institutional mechanisms for the implementation of the Policy. Perhaps the decision of the African Commission will lead to increased focus on the aspects of the Policy which touch on the rights of indigenous communities in the country.

One of the other processes on the horizon is the Truth, Justice and Reconciliation Commission (TJRC), which was established following the 2007/2008 post-election violence. By the terms of the power-sharing agreement that ended the post-election violence, the TJRC is mandated to enquire into human rights violations, including community displacements, settlements, evictions, historical land injustices, and the illegal or irregular acquisition of land, especially as these relate to conflict or violence.  This is because land-related grievances are one of the root causes of the recurrent political violence in Kenya. A short background piece on this is included in an online forum hosted by Oxford University. However, since that piece was written, it has become clear that there is little appetite in Kenya for the TJRC, due to concerns that it will be yet another expensive process which results only in a set of reports gathering dust on a shelf. The Kenyan state has a very poor record when it comes to implementing the recommendations of commissions on key issues such as land and justice. Nevertheless, the African Commission decision is likely to increase a focus within the TJRC on land issues, which may have some positive results, albeit in indirect ways.

The drafting of the constitution, a marathon process that has been bound up in cynical and divisive political horse-trading and gamesmanship, remains an important project for the near future. The current draft includes some principles which are echoed in the draft Land Policy. As Kenya comes closer to the 2012 election, the constitutional wrangles become more important and politically-charged. It is to be hoped that the debates on the provisions on land in the constitution will focus on the needs of the most vulnerable landless groups. Some other indigenous communities in Kenya are described below.

Indigenous Groups and Land Claims in Kenya

The Endorois are not, of course, the only community in Kenya with land claims related to forced displacement, and several other groups likewise claim indigenous identity. The Masaai are the best-known indigenous community, with long-standing grievances related to colonial-era displacements. These have thus far been oriented towards the British government, rather than the Kenyan state, but it is possible that the African Commission decision might prompt a change of tactics. The Ogiek are another group who have engaged in an organized struggle to regain their land rights. After being evicted from their forest homes in Rift Valley Province during colonial times, and seeing this dispossession further entrenched after independence, they filed a suit in the High Court in 1997. However, in 2000 the High Court ruled that the evictions were legally justified due to the need to conserve the forest, and questioned the Ogiek community’s ability to inhabit and manage the forest in sustainable ways, as their lifestyles and livelihood strategies had altered from those customarily practised. This ruling should also be interpreted, of course, in the wider Kenyan context: the judiciary has rarely ruled against government interests.

Another colonial-era dispossession in the vicinity of Mt Elgon in Western Kenya eventually resulted in a violent contestation over land, as documented in several reports, including this one by Human Rights Watch. The displacement of Sabaot communities in colonial times was followed by several post-independence attempts by the Kenyan government to resettle other communities around Mt Elgon, in a manner marred by corruption. Some communities claim indigenous status as Ndorobo, originally a derogatory term applied to people who had lost their livestock and were seen as poor. Over time, tensions around land escalated and by the early 2000s armed militias had formed, most notably the Sabaot Land Defence Force. Local politicians’ alliances with armed militias led to worsened violence following the disputed 2007 elections in Kenya.

In March 2008, the Kenyan army was mobilised in the Mt Elgon area, allegedly killing dozens (perhaps hundreds) of civilians and torturing others. This heavy-handed response was prompted by political factors and also reflects the government’s tendency to apply a ‘security’ lens to problems which have a more complex set of socio-political roots. The tensions around land are likely to reoccur on the slopes of Mt Elgon unless a committed effort is made to address community concerns even-handedly. However, even with the African Commission decision pushing the government to address indigenous land claims, it is unlikely that a concerted effort will be made prior to the 2012 general elections. Already, the eviction of squatters within the ecologically-significant Mau forest complex has threatened to split some political alliances. Leading politicians may see an attempt to address the Mt Elgon problems as too costly an investment for a distant and politically marginalized constituency in Western Kenya.

The distribution of land in the Coast Province of Kenya is particularly unequal. Along the ten-mile-wide coastal strip, the colonial regimes recognised the claims of the Sultan of Zanzibar, at the expense of those he had controlled through force of arms and economic might. Only his ‘subjects’ could register land. This meant that up to 25% of the local population were turned into landless ‘squatters,’ unable to register the land that they had lived on for generations. Successive governments have provided resettlement schemes for local people, but these have sometimes benefitted ‘outsiders’ with political connections or enough money to bribe the officials involved. There remains a high degree of landlessness and ‘squatting’ at the Coast, amidst the high-end luxury of the tourist trade. Though the Mijikenda tribes of the Coast are not usually categorised as ‘indigenous’, the African Commission decision is likely to re-ignite local calls for redistribution that may be heeded, at least in part, given the economic significance of the Coast and the potential for political violence there in 2012. Of course, it should be remembered that election violence is usually mobilized and financed by politicians; there are some, therefore, who would enter the debate with ulterior motives.

Regional Effects – The Batwa in Rwanda

The Batwa (also known simply as Twa) are located in Uganda and parts of Eastern Democratic Republic of Congo, but their situation in Rwanda is perhaps most precarious due to a history of discrimination and government refusal to accept the concept of indigeneity. As discussed in this report for the Forest People’s Programme, the status of the Batwa as indigenous is acknowledged by the Rwanda population and by scholars, but is denied by the government.  The sensitivity of the issue relates to the Rwandan genocide, and specifically the targeting and stereotyping by Bahutu extremists of the Batutsi as ‘foreigners’ who originated elsewhere (and hence, according to this twisted logic, should be expelled or killed). However, it is important to understand that a country’s population may be comprised of groups that have all migrated to the territory at some point in the past and such immigration in no way affects the rights of citizens.  Nor does the presence of an indigenous population – either in the sense of the first occupants or as distinct cultural collectivities that self-identify as such – negate or otherwise impair the rights of citizenship.

The Batwa are generally recognised as the earliest inhabitants of what is now called Rwanda. Prior to the development and expansion of the centralized Rwandan state, control over land used for agriculture or grazing was essentially obtained from the act of clearing that land. When land had been used previously by Batwa, the clearers of the land gave the Batwa small payments to acknowledge the previous claim of the Batwa to the area. By the early 19th century, many Batwa had been forced out of their forest habitats due to a combination of deforestation by farmers and the socio-political ascendancy of the other ethnic groups in the country. Over time, most Batwa were to some extent incorporated into wider Rwandan society, albeit in a marginal position. However, some Batwa remained on the peripheries of society, inhabiting the remaining forests.

The Batwa self-identify as a minority, and were identified as ‘Twa’ on national identity documents until ethnic differentiation on these cards was abolished after the genocide. They also retain a great number of songs, dances, oral narratives and other cultural artifacts which clearly signal their Batwa identity. The Batwa therefore meet all four of the recommended principles to be taken into account in any possible definition of indigenous peoples, as put forward by the UN Working Group on Indigenous Populations. A 2004 survey of Batwa land ownership found that 43% of households were landless, compared to a landlessness rate of 12% within the general population of Rwanda. Of those Batwa households with land, 46% own less that 0.15 hectares. According to recent data, about 40% of the Batwa community members now rely on begging as their primary source of livelihood.

During the colonial period, the Government enacted legislation to restrict access to areas of primary forest, putting in motion a process of exclusion which eventually culminated in Batwa communities being completely prohibited from continuing to live, hunt, or gather products found in the forest areas. Following independence, some Batwa families lost land at the hands of corrupt local authorities. Others, caught in a general process of impoverishment, sold land at give-away prices in order to buy food or medical supplies. Batwa land was not only expropriated through local mechanisms, but also on a larger scale. The First and Second Republics established protected forest areas from which Batwa inhabitants were evicted. The Batwa hunters of Nyungwe area were evicted from the forest in 1988 when it was re-classified into a National Park and military training zone. Some 4,500 Batwa living in Gishwati forest and what is now the Volcanoes National Park were evicted from these areas by the 1990s. The Batwa were not consulted before or during the evictions, nor did they receive compensation or assistance with resettlement.

Ethnic discourse has been essentially criminalized in Rwanda, and Batwa rights organizations have been unable to use the term ‘indigenous’. Article 33 of the Constitution states that, “Propagation of ethnic, regional, racial or discrimination or any other form of division is punishable by law.” The text of the law on ‘divisionism’ is very broad, to an extent that it risks violating constitutional equal protection and freedom of expression guarantees. While the Rwandan Constitution does not explicitly mention the Batwa, it does refer to ‘historically marginalized Rwandan communities,’ a phrase which was generally understood during the constitution-making process to refer to the Batwa. However, since the Constitution was promulgated, members of the government have claimed that the Batwa are not included in this category.

As observed by the Eminent Panel of the African Peer Review Mechanism (APRM)’s report on Rwanda, “the approach adopted by the authorities was based on a policy of assimilation. There appears to be a desire to obliterate distinctive identities and to integrate all into some mainstream socio-economic fabric of the country.” Following the publication of the APRM report, the government has recognised that the Batwa need special assistance, but has yet to acknowledge that the Batwa continue to face institutionalised discrimination or to give them a clear legal status. With African commentators complaining about the weakness of the APRM process, perhaps the recent African Commission ruling will encourage a more rigorous process of monitoring and follow-up. As yet, however, and perhaps because of their marginal socio-economic and legal position, the Rwandan Batwa claims have not been asserted in any legal forum.

CSM on land disputes in Africa

Thanks to Laura Cunial of NRC in Liberia for cluing me in to an interesting recent article in the Christian Science Monitor on land disputes in Africa. Its a long piece, and frustratingly journalistic in that it refers briefly to virtually every possible issue (post-conflict, development, gender, legal pluralism, the new land-grabbing trend, etc.) and scenario (latent conflict in Uganda, inflamed grievances in Kenya, post-conflict issues in Liberia, historical restitution in South Africa, etc.) without going into a great deal of depth on any. On the other hand, the article does do a nice job right up front of framing the point that land issues may be endemic and complicated but that the opportunity cost of not addressing them is simply profligate:

Africa’s most famous disasters, many argue, could have been prevented with changes in national land laws or better local conflict resolution but for one problem: Prevention doesn’t sell.

What does sell – what gets airtime, aid dollars, and military or other attention – is the violent chaos the world fails to prevent. By the time land conflict gets an international audience, land is an afterthought; talk turns to tribe and ethnicity or local politics and corruption. News coverage and nonprofits focus on the worst symptoms – refugees, rapes, massacres. Distracted by suffering, they miss the structural problem that can, it turns out, be solved.

Fixing the land problem may lay the foundation for fixing so many others, from poverty to famine to ethnic conflict. If farmers feel their claims to plots are sound, if social groups feel land policies are impartial and just, and if women and men have equal rights to the soil, experts say Africa’s other ills will be easier to treat.

The article also includes quotes from a pretty impressive array of big names in the land and conflict field. The research was supported by the Pulitzer Center on Crisis Reporting and I’d be interested to hear from any readers who are aware of whether this is just a blip or whether it might represent something in the way of a more sustained attempt to make these issues accessible.