Tag Archives: Kenya

Week in links – Week 37/2011: Palestinian statehood and other matters

With Mahmoud Abbas’ (by all accounts rather persuasive) affirmation today that Palestine would seek full membership in the UN, the stage is set for a showdown in the most dramatic and controversial attempt to exercise the right to self-determination in some time. This development has been bemoaned by a ‘pro-Palestinian anti-statehood’ school of thought perhaps best expressed in a recent legal opinion by Oxford professor Guy Goodwin-Gill. The New York Times editorial page and other observers have also raised concerns that a vote for statehood will also derail the possibility of negotiations entirely, delaying yet further a sustainable end to the conflict. And as noted by Robert M. Danin at Foreign Affairs, the decision to seek de jure status may also lead to the abandonment of a project of de facto state building that appeared to be working:

By focusing on state-building, the PA had improved living conditions and strengthened security for Palestinians. All along, one of its aims was to create a peaceful and conducive environment for negotiations, rendering Israel’s occupation unnecessary and ultimately unjustifiable. And indeed, slowly and without fanfare, Israelis have taken steps to lift the burden of the occupation on Palestinians, opening the West Bank a little more to the movement of people and goods and allowing Palestinian security forces to expand their control over larger parts of the West Bank. The under-the-radar approach made such tangible improvements possible.

In fact, the Israeli response has been to warn of the ‘harsh and grave consequences’ of UN recognition of Palestine, fuelling speculation that this could lead to outright annexation of parts of the West Bank. And lest anyone forget the complications involved in the territorial question, David Makovsky has provided a fascinating graphic of the current proposals as an Op-Ed in the New York Times.

Meantime, perhaps the parties to the Middle East conflict may be inspired by Belgium, which has finally resolved a deadlock focused on three contested municipalities near Brussels and may get a government 15 months after elections.

In less uplifting news, the ramifications of the oil pipeline fire in a Nairobi slum that killed scores of residents continue to unfold, with competent officials passing blame back and forth. To make a long story short, it reads like the fact section in the Öneryildiz case before the European Court of Human Rights several years back, in which Turkey was held responsible for violations of the right to life and property for having failed to take reasonable steps to prevent the foreseeable explosion of a garbage dump located near a slum. Perhaps some jurisprudence for the fledgling African Court of Human and People’s Rights to consider.

Finally, the New York Times provides some timely political analysis of the land struggle currently shaking the Bajo Aguán valley in northern Honduras.

The week in links – week 41/2010

This week’s food for thought:

– Continuing the nervous drumbeat on the upcoming Southern Sudan referendum, here is Open Democracy on the apparent new delay to the Abyei referendum, and a good news-then-bad news analysis by Phillipe De Pontet at the Carnegie Endowment for International Peace.

– The International Law Observer notes that the Human Right to Water and Sanitation is now official – a recent decision by the Human Rights Council brings the number of states that have gone on the record to 178.

– Meanwhile, the FAO Right to Food people are about to release a guideline on responsible land tenure management and the right to food (it is available now in Spanish).

– Lyric Thompson reports in Open Democracy on the whiff of UN politics behind the anticlimactic tenth birthday party in the UN Security Council for Resolution 1325.

– In case anyone forgot the link between land and identity, here is a comment in the Jerusalem Post on what the construction ban and its absence is seen to signify by some in the Middle East. In the meantime, the NYT reports on the resumption of construction plans in East Jerusalem, and Open Democracy has news of a possible response, with the Arab League apparently considering whether to “appeal directly to the UN to recognise the state of Palestine.”

– From the US, Paul Krugman reports on the ongoing fallout of the mortgage crisis and the fact that it now appears that the USA, one of the world’s great proponents of rule of law and the sanctity of property, is witnessing foreclosures by banks that are unable to actually document the mortgage agreements they are enforcing.

– And in the unremarked on but terrifying land violence category, IRIN reports on inter-clan skirmishes over land in northeastern Kenya that displaced 600 families.

– Finally, the ECFR has issued a new short comment and report on the ‘spectre of a multipolar Europe with a fairly provocative set of findings:

  • The post-Cold War order is unravelling. Rather than uniting under a single system, Europe’s big powers are moving apart. Tensions between them have made security systems dysfunctional: they failed to prevent war in Kosovo and Georgia, instability in Kyrgyzstan, disruption to Europe’s gas supplies, and solve frozen conflicts.
  • The EU has spent much of the last decade defending a European order that no longer functions. Russia and Turkey may complain more, but the EU has the most to lose from the current peaceful disorder.
  • A frustrated Turkey still wants to join the EU, but it is increasingly pursuing an independent foreign policy and looking for a larger role as a regional power. In the words of foreign minister Davutoglu, Turkey is now an ‘actor not an issue’. Its accession negotiations to the EU should be speeded up, and it must also be engaged as an important regional power.
  • Russia never accepted the post-Cold War order. Moscow is now strong enough to openly challenge it, but its Westpolitik strategy also means that it is open to engagement – that is why Dmitri Medvedev suggested a new European security treaty a couple of years ago.
  • Obama’s non-appearance at the 20th anniversary of the fall of the Berlin Wall was the latest sign that the US is no longer focused on Europe’s internal security. Washington has its hands full dealing with Afghanistan, Iran and China and is no longer a European power.

Endorois implementation campaign in Kenya

Thanks to Chris Huggins for forwarding a very interesting email announcing the beginning of a campaign by Kenyan human rights actors to ensure the implementation of the African Commission on Human and People’s Rights recent decision awarding restitution of traditional lands to the Endorois indigenous group. Chris previously posted on the likely regional effects of this decision here and I posted on its legal implications for indigenous peoples’ right to property here. In opening the campaign for implementation of the decision, David Malombe of the Kenya Human Rights Commission writes:

Following the ruling on the Endorois land question under the African Union, a number of human rights organizations including the Endorois Welfare Council, Kenya Human Rights Commission (KHRC), Centre for Minority Rights and Development (CEMIRIDE), MPIDO, Kenya National Commission on Human Rights (KNCHR),  Kenya Land Alliance (KLA), International Commission for Jurists (ICJ-Kenya), Action Aid Kenya, Constitution Reform Education Consortium (CRECO) among others are organizing a commemorative and campaign rally in Bogoria on Saturday, March 20, 2010. We are expecting more than 10,000 participants drawn from the affected communities in the country; and state and non-state actors working on land rights and justice issues. After this, we shall have a campaign to ensure that the Government of Kenya complies with the AU recommendations.

It is often the case that winning a groundbreaking precedent decision like that in the Endorois case appears, in retrospect, to have been the easy part. Continuing advocacy work of the nature described above can be crucial to implementation and I will endeavor to provide further updates on this blog regarding how these efforts fare.

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.

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.