Endorois to get back their land, thanks to AU court

Tuesday February 9 2010

The government may soon have to share tourism earnings from Lake Bogoria with the Endorois following a ruling by an African Union commission. Photo/ File

The government may soon have to share tourism earnings from Lake Bogoria with the Endorois following a ruling by an African Union commission. Photo/ File 

By SAMWEL KUMBA

Job Kiprotich was only four years old, in 1974, when his family was ordered out of their ancestral land. Today, 36 years later, he is celebrating justice after a court ruling that the government should return their land.

The African Union has approved a decision by the African Commission on Human and People’s Rights (ACHPR), which found the Kenyan Government guilty of violating the rights of the indigenous Endorois community, by evicting them from their land to make way for a wildlife reserve.

The decision that Mr Kiprotich and his community get back their land was approved by the African Union Assembly of the Heads of State on January 3, in the Ethiopian capital, Addis Ababa.

President Kibaki was at the assembly.

The ruling, which has been described variously as a major victory for indigenous peoples across Africa, especially by the Human Rights Watch, if upheld could open a floodgate of suits against forced acquisition of land by the government and its agencies including local authorities, Railways Corporation, Kenya Wildlife Service and the military.

The ruling creates a major legal precedent by recognising, for the first time in Africa, indigenous peoples’ rights over traditionally owned land and their right to development.

Traditional land

The commission had ruled, in May 2009, that the Endorois’ eviction from their traditional land in Lake Bogoria for tourism development violated their human rights. But this could not be made public before being ratified by the AU Heads of State.

The African Commission accepted the Endorois’ evidence that they have lived in the area surrounding Lake Bogoria since “time immemorial” and the lake was the centre of their religion and culture, with their ancestors buried nearby.

The government evicted the pastoralist community, between 1973 and 1986 but it was in 1998 when the Centre for Minority Rights Development (Cemiride) began to challenge their eviction in Kenyan courts. They lost the battle.

Cemiride founder Korir Singoei termed the decision “landmark” revealing that the commission now requires Kenya to take steps to return the Endorois land and compensate them within three months.

“This ruling is good for every Kenyans,” said Mr Singoei, who represented the Endorois, told the Nation, adding: “The law that treats some communities as children, unable to own land, is a colonial relic that needs to be changed.”

Currently 25 African states, including Kenya, have acknowledged the court’s jurisdiction. Kenya did so in 1992.

The Endorois have sometimes been classified as a sub-tribe of the Tugen. In the 1999 census, they were counted as part of the Kalenjin group, made up of the Nandi, Kipsigis, Keiyo, Tugen and Marakwet.

The commission found that Kenya was in violation of Articles 1, 8, 14, 17, 21 and 22 of the African Charter and recommended that the state recognises the rights of ownership to the Endorois and restitute their ancestral land.

The government is to ensure that the Endorois community has unrestricted access to Lake Bogoria and surrounding sites for religious and cultural rites and for herding their cattle.

Even with that, the government will also be required to pay adequate compensation to the community for all the loss suffered, pay royalties to them from existing economic activities and ensure that they benefit from employment possibilities within the reserve.

“Kenya has to grant registration to the Endorois Welfare Committee, engage in dialogue with the complainants for the effective implementation of these recommendations,” the ruling reads in part.

The welfare committee’s secretary-general is Mr Wilson Kipkanzi, who said the commission’s recommendations should be fully effected.

“We would want the government to implement that decision to the letter. We are ready to sit and dialogue, should there be need, on how to go about it,” he said.

The government is required to report on the implementation of these recommendations within three months from the date of notification.

“We deserve this compensation. Although only 172 of our people had registered their complaints, well over 400 were displaced. The others feared government reprisal,” Mr Kiprotich said.

Although Kenya became a party to the African Commission Charter in 1992, it was in 2006 that it submitted its first report combining all overdue reports. The reports are done after every two years.

“The decision on the Endorois, the first of its kind, can help many others across Africa, which might have been forced from their homes,” said Mr Clive Baldwin, a senior legal adviser at Human Rights Watch, who was co-counsel for the Endorois in the case while working with Minority Rights Group International.

Overdue reports

Lake Bogoria has great tourism potential due to its hot springs and abundant wildlife, including one of Africa’s largest populations of flamingos.

The African Commission had ruled in 2006 against the Kenyan Government for allowing a ruby mining company to start illegal mining on another part of the Endorois’ land, severely affecting their remaining access to water.

Following that ruling, the mining company abandoned its activities.

“The African Commission’s ruling makes clear to governments that they must treat indigenous peoples as active stakeholders rather than passive beneficiaries,” said Cynthia Morel, who was co-counsel for the Endorois as senior legal adviser with Minority Rights Groups International.

The Endorois tried unsuccessfully to persuade the Kenyan Government, the local authorities, and the Kenyan Wildlife Service to reverse their policy of evicting everyone, including traditional inhabitants, from areas the government designated national parks and reserves.