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 19^th 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.