“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.

We have met the enemy and it is We (the Peoples)

by Rhodri C. Williams

Its now twelve years since the 9-11 attacks sent the post-Cold War human rights revival into a tailspin, and two years since the outbreak of what would quickly amount to civil conflict in Syria – where 70,000 have died and millions are displaced; where the international community cannot even pay for relief, let alone intervene to stop the regime from firing scud missiles into cities it purports to be defending; where the post-Ottoman Middle Eastern political order threatens to crack into pieces, risking the worst collective foreign policy failure since Bosnia, and where the ‘responsibility to protect’ doctrine has met an untimely and inglorious end .

So you might think we would all be pretty inured to a nip of salt with our humanitarianism these days. Not so, it seems. Its been a particularly bad run recently for those who still reflexively think the UN is part of the solution (hey, I’m with you) despite all better advice. I’m not quite sure where to start. Perhaps with the UN decision two weeks ago to assert diplomatic immunity for having failed to take measures to ensure that its peacekeepers’ latrines avoided triggering a devastating outbreak of cholera in Haiti. Particularly rich, as the Economist points out, coming on the same day as the UN pilloried Haiti for failing to hold its former dictator ‘Baby Doc’ Duvalier accountable for his crimes.

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

by Rhodri C. Williams

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

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

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

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

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

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

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

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

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:

Week in links – Week 27/2012 – grab some sugar (or water) with your land?

Incredibly, its been about 7 months since my last WIL, but I thought I might dust the institution off now that the summer is upon me. As usual, it would be more accurate to describe this as a month in links, but here goes.

First, a moment to note the passing last month of Elinor Ostrom, a pioneering economist who decided that the commons might not actually be so tragic after all. At the top of my list of readings for whenever I eventually become an actual rather than frustrated academic. One of those scholars where even if one has yet to read her, one suspects she has colored analysis of these issues so thoroughly that her works will seem familiar.

Next, on the familiar theme of the global land rush/grab, a few items of interest recently. First, Grain just came out with a new report arguing that much of the land investment going on in Africa is actually targeting the scarce water resources necessary for large-scale agriculture – and in a manner heedlessly destructive of local, sustainable water management systems. Second, the Journal of Peasant Studies has been cranking out an amazing amount of analysis of the land grab phenomenon in all three issues of this year’s volume 39 (many articles available for free download).

And finally, Human Rights Watch released a grim report last month detailing the Ethiopian government’s self-inflicted land grab in the southern Omo valley, where a dam and state-run sugar plantations are expected to run 300,000 indigenous persons off their land, while ruining the livelihoods of a further 200,000 to the south in Kenya’s Lake Turkana region:

These developments – which threaten the economic, social, and cultural rights of the Omo valley’s indigenous inhabitants – are being carried out in contravention of domestic and international human rights standards, which call for the recognition of property rights, with meaningful consultation, consent, and compensation for loss of land, livelihoods, and food security, and which state that displacement, especially of indigenous peoples from their historic homelands, must be treated as an absolute last resort.

If that doesn’t drive home the message that sugar is the new palm oil, this video from Cambodia may. David Pred, who is pushing for the EU to take a more rigorous approach to human rights abuses related to Cambodian land concessions will hopefully guest post on the blood sugar phenomenon shortly.

Not that palm oil has reformed, mind you. The Economist provided a timely reminder of the inverse relationship between the money to be had from this lucrative form of monoculture and the chances of Indonesian-controlled West Papua ever being able to achieve ‘external’ self-determination in the manner East Timor did. Meanwhile, the ICTJ rather bravely attempts to promote a transitional justice approach to a situation in West Papua where the only transition seems to be toward more oppressive and militarized control and less chances of even meaningful internal self-determination (e.g. autonomy).

Update: See David Pred, Is the European Commission sweet on land grabbing? How trade benefits to sugar companies displace Cambodian farmers (23 July 2012)

Local governance in Somalia – New emperor in old clothes?

by Shane Quinn

Somalia has endured a rash of misguided international interventions to resolve its malaise, and apart from initial optimism of the Arta process in 2000 with its extensive civil society participation, these have consistently failed to deliver on their intentions. After all these years, is it finally time for the international community to move away from a centralised state solution towards a hybrid system of governance?

It’s a moot point, although in its latest policy briefing, Crisis Group is heavily advocating in favour of this solution. The latter is not the first to push for this. Back in 1999, in his article, ‘New Hope for Somalia? Building Block Approach’, Matt Bryden promoted autonomy for enclaves or regions which were traditonally recognised as being relatively clan homogenous. In his long research association with the country, Ken Menkhaus has gone further and addressed the idea of organic regional or district administrations assuming a greater role as a viable form of governance in Somalia.

Interestingly, we’ve come full circle after a series of failed initiatives aimed at establishing a central state. Despite all these calls for ‘going local’, promoting autonomy in Somalia is not without its critics. Many Somalis see autonomy as the final nail in the break-up of the country, and also a means of pandering to Ethiopian realpolitik with its emphasis on keeping the country weak rather than having a strong and potentially radical neighbour. The legitimacy of these emerging administrations has also been questioned, as some of them lack a close proximity to their respective communities and in some cases are more interested in being service providers or even, as a Chatham House report terms it, having a monopoly on security. International donors will have to make some hard calls before being possibly immersed in another political maelstrom.

From National Responsibility to Response – Part II: IDPs’ Housing, Land and Property Rights

by Elizabeth Ferris, Erin Mooney and Chareen Stark

This post continues our discussion of the study entitled “From Responsibility to Response: Assessing National Response to Internal Displacement” recently released by the Brookings-LSE Project on Internal Displacement.

Addressing housing, land, and property (HLP) issues is a key component of national responsibility. Principle 29 of the non-binding but widely accepted Guiding Principles on Internal Displacement emphasizes that competent authorities have a duty to assist IDPs to recover their property and possessions or, when recovery is not possible, to obtain appropriate compensation or another form of just reparation.

The 2005 Framework for National Responsibility – which set the benchmarks we applied in our current study – reaffirms this responsibility (in Benchmark 10, “support durable solutions”) and flags a number of the challenges that often arise, such as IDPs’ lack of formal title or other documentary evidence of land and property ownership; the destruction of any such records due to conflict or natural disaster; and discrimination against women in laws and customs regulating property ownership and inheritance.  The Framework for National Responsibility stresses that, “Government authorities should anticipate these problems and address them in line with international human rights standards and in an equitable and non-discriminatory manner.”

The extent to which a government has safeguarded HLP rights, including by assisting IDPs to recover their housing, land, and property thus was among the indicators by which we evaluated the efforts of each of the 15 governments examined in our study. Our findings emphasized the importance of both an adequate legal and policy framework for addressing displacement related HLP issues and the role that bodies charged with adjudication and monitoring can play in ensuring implementation.

Redressing the ‘Endorois Case’ violations or replicating them?

by Rhodri C. Williams

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

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

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

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

Week in links – week 42/2011: land disputes in Bolivia, India, Kyrgyzstan and the UK

This week, we have a few updates on recent stories covered in TN:

First, the indigenous protesters marching against the construction of a road through the Tipnis national park in Bolivia have reached the capital La Paz and are settling in to force the Government to negotiate on the issue. Nicholas Fromherz of Foreign Affairs provides an analysis of the tremendous damage the mishandling of this issue has done to President Evo Morales’ credibility.

Having recently taken China to task for its stereotypically stilted response to public outrage over crooked land takings, as well as its stereotypically draconian response to community resistance to being evicted, I am now presented with the classic counter-stereotype in India, where public acquisition of rural land to facilitate large-scale investment is also a pressing issue. Having adopted a new ‘light footprint’ policy on facilitating purchases of land for industrial use after protests last spring and summer, the government of the Uttar Pradesh province now faces a court decision ordering the return of previously acquired land and compensation for parcels investors already built on. Without taking a position on the actual case, it is a classic instance of the great BRIC dichotomy, with India a trickier business environment than China, but frequently for the right reasons.

More dispiriting follow-up to the ethnic mayhem in Kyrgyzstan last year, this time in OpenDemocracy. First, Bruno de Cordier gives a bleak overview of structural violence in Central Asia in the form of rentier politics and patronage societies. Then Elmira Satybaldieva portrays how these patterns are reflected in the fragmented and untransparent politicking in the leadup to Kyrgyzstan’s 30 October elections. With the land disputes and other grievances underlying last year’s violence still unresolved, the prognosis is worrisome.

FAO has described how Sweden, notwithstanding its past ambiguity on the right to water, is funding a highly innovative scheme to help farmers in eastern Kenya develop greater resilience in the face of climate instability, in part through better water management techniques. IRIN, for its part, reports on how poorly Kenya fares in general in advance mitigation of disasters, whether of the natural variety or man-made examples such as last month’s appalling pipeline fire.

And just to recall that housing and land issues remain relevant in the Global North, the New York Times reports on the messy beginnings of the eviction of a traveler community from the Dale Farm encampment they have occupied for years in Essex, UK – while the Guardian documents the surprisingly peaceful end of the process. On OpenDemocracy, Justin Baidoo-Hackman explores the issue of whether the evictions qualify as ethnic cleansing (my take: forced evictions are already plenty bad).