Tag Archives: Africa

“Endorois decision” update – Kenyan task force appointed

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

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

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

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

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

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

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

by Rebecca Marlin

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

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

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

A pattern of empty promises emerges

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

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

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

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The World Bank adopts sound principles on land, but HRW points out gaps in practice

by Rhodri C. Williams

Two very interesting reports linked land, development and the World Bank’s role last week. Released on precisely the same day, the reports reflected a good deal of consensus on what should be done and rather less agreement regarding what is actually being done.

First, on 22 June, Human Rights Watch released a report criticizing the World Bank for failing to take human rights issues sufficiently into account in its development calculus – with one of the primary examples being the confiscation of land and villageization of its occupants in the Gambella region of Ethiopia. Then, almost as if in response, the Bank released a new study the same day asserting that pro-poor land reform in Africa could provide tremendous benefits at minimal costs by securing the rights of local communities and protecting them against encroachment by large investment projects.

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Alternative history: The Nobel Peace Prize goes to Eurafrique!

by Rhodri C. Williams

As we all know, the European Union (EU) received the Nobel Peace Prize last week for “over six decades contributed to the advancement of peace and reconciliation, democracy and human rights in Europe”. The award has been debated, not only because it comes at a moment when a largely self-made economic crisis is severely straining the very element of European solidarity that justified it, but also because it comes after a series of other controversial recipients – most notably Barack Obama in 2009, whose contribution to peace consisted, according to many commentators, of not being George W. Bush.

Although there has always been a perceptible undercurrent of skepticism about the extent to which the EU is built on a foundation of unalloyed idealism, it has rarely been expressed more concretely than in a fascinating commentary in the edition of the Swedish broadsheet Dagens Nyheter (DN) that appeared the day before the Nobel ceremony. There, the Linköping University researchers Stefan Jonsson and Peo Hansen give a preview of their forthcoming book, “Eurafrica: The untold history of European integration and colonialism”. For Europhiles well-versed in the use of Google translate, it will not make for comfortable reading.

Without denying the pacific effect of early economic integration measures such as the European Coal and Steel Community, the authors note that their primary motivation may have been a last ditch attempt to shore up the European colonial project. Faced with an increasingly assertive global anti-colonial movement and the humiliation of the Egyptian nationalisation of the Suez Canal in 1956, the EU was founded in no small part as a means of economically integrating not only Europe but also its remaining African possessions. Consider, for instance, a curious passage in the foundational 195o Schuman Declaration:

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

by Mike Asplet and Megan Bradley

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

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

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

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

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Addressing injustice and managing expectations: Displacement and transitional justice discourses in Northern Uganda

by Rhodri C. Williams

Last week, I announced the publication of a new book on Displacement and Transitional Justice and provided an overview of some of the main themes touched on in my chapter on restitution in humanitarian and transitional justice contexts. My basic conclusions were twofold: First, that restitution has come to the fore in humanitarian practice not only due to its practical utility as a means of facilitating durable solutions to displacement, but also as part of the adoption of rights-based approaches by humanitarian actors. And, second, that restitution may actually be a more comfortable fit in transitional justice practice, given both the latter’s more direct concern with redressing violations (as opposed to ameliorating resulting vulnerability) and its political emphasis on sustainably transforming societies.

I wanted to return to these themes because I believe it is crucial to acknowledge the difficulty of drawing any tidy conclusions in any of these areas or even assuming that well-intentioned international forays into their post-conflict application are always effective. In fact, both transitional justice and humanitarian responses to displacement remain contested terrain, and one of the challenges in writing on restitution in this context was the need to deal with challenges to the legitimacy and effectiveness of both fields while describing a tactic for addressing past displacement – restitution – that has also become mired in controversy.

The whipsaw nature of these debates is exemplified by comparing recent commentaries on their fallout in Africa, and specifically Uganda. First, in a 2009 press release, the Refugee Law Project of Uganda’s Makerere University welcomes the recently adopted African Union ‘Kampala Convention‘ on internal displacement as “an important step towards clearly recognising the role of transitional justice in resolving forced migration situations”. The drafters of the press release made this connection in light of the Convention’s inclusion of reparatory measures meant to “take stock of the causes of and redress the violence of displacement.”

However, two years later, Makerere University visiting scholar Adam Branch wrote in Pambazuka to excoriate both concepts. While the earlier Makerere University press release and Branch’s later critique represent diametrically opposed viewpoints on the potential for international discourses to address local atrocities, I believe that they are also intimately linked. In essence, the Makerere statement represents the type of expectations – both realistic and unrealistic – that humanitarian responses to displacement as well as transitional justice measures tend to be burdened with. Branch’s article, by contrast, represents the tendency to dismiss both categories of measures when these expectations fail to be fully met.

This dichotomy of responses raises a number of familiar dilemmas. At a broad level, it invokes the risk that any international engagement always bears, namely that attention may be diverted from the primary responsibility of domestic actors to guarantee respect for human rights. Assuming that international engagement is unlikely to grind to a halt tomorrow over this moral hazard, a more practical dilemma involves how international actors and standards can make a positive difference without raising expectations that exceed their capacities, mandates and resources. In analyzing this question, it may be helpful to undertake a closer reading of Branch’s critique.

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Online books on land law in Africa

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

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

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

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