Commission to consider Kenya pastoralist case following urgent appeal to state
The African Commission is due to hear a legal case brought by the Endorois, a pastoralist community of Kenya, at an admissibility hearing scheduled to take place in Dakar in early December. In a significant development in the struggle for rights of the Endorois pastoralists, in June 2004, the Commission accepted a call by rights groups to enact ‘Provisional Measures’ to prevent irreparable harm to the community and their lands as a result of mining activities. The Commission made an urgent appeal to President Mwai Kibaki of Kenya, urging him to halt activities detrimental to the Endorois and ensure ‘no further issuance of the alleged mining concessions’. The community have struggled over the course of 30 years to achieve justice through petition to the Government of Kenya and domestic courts without success, resulting in the current legal action at Africa’s regional rights body.
The case is likely to coincide with Kenyan ‘pastoralist week’ during which pastoralist communities will raise rights issues in an attempt to ensure their future cultural survival. In view of imminent mining activities that would cause irreversible damage to Endorois traditional land, Minority Rights Group International (MRG) and the Centre for Minority Rights Development (CEMIRIDE) requested, during the Commissionfs 35th Ordinary Session, that such urgent measures be taken.
The Endorois Community have lived for centuries around the Lake Bogoria region in the South Baringo and Koibatek Administrative Districts of Kenya. In the 1970s, the Government of Kenya, without effectively consulting the Community, gazetted the Community’s traditional lands for the purposes of creating a game reserve. The Community were told by the Government to vacate the land and were forced to move. The Community now live in a number of locations on the periphery of the reserve, being forced from fertile lands to semi-arid areas, divided and displaced from their traditional lands. Access to the Lake Bogoria region is not of right for the Community and the Government continues to deny the Community effective participation in decisions affecting their land, in violation of their right to development.
The Community have brought the situation to the attention of the Government on numerous occasions, most importantly in a High Court Constitutional Case in the year 2000. In this case the Community argued that, by creating the game reserve, the County Council breached Trust Land provisions of the National Constitution. The High Court of Kenya in Nakuru ruled against the Community. Despite these efforts at domestic recourse, the Community is still unable to access the land as of right and is denied effective participation in decisions affecting it. The Community has not received adequate compensation, as required by both national and international law, from the Government for the loss of land.
Minority Rights Group International (MRG) are working closely with Kenyan based NGO, CEMIRIDE, and the community itself, in order to obtain justice for the Endorois. Restitution of land, encompassing the giving of effect to their traditional rights to dwell on, access and benefit from the land, is a priority for the Endorois community. A communication was filed before the African Commission for Human and Peoplesf Rights in August 2003. The communication was seized during the Commissionfs 34th Ordinary Session in November 2003, and is now pending on admissibility. The African Commission’s commitment to fully address the rights of indigenous communities such as the Endorois, was suggested by the adoption of a Resolution on the Rights of Indigenous Populations/Communities in Africa in 2003. This important report offers the Commission a valuable basis upon which to extend its understanding and treatment of indigenous and collective rights, including economic, social and cultural rights.
The Endorois people’s health, livelihood, religion and culture are all intimately connected with their traditional land, as grazing lands, sacred religious sites and plants used for traditional medicine are all situated around the shores of Lake Bogoria. By forcing the community to move, not only were the Community’s property rights violated, but spiritual, cultural and economic ties to the land were severed. Under Kenyan Law, the region was designated Trust Land; land to be held for the benefit of the Community by local authorities. In the creation of the game reserve, the Government of Kenya, disregarded national law, Constitutional provisions and, most importantly, numerous African Charter Articles, including the right to property, free disposition of natural resources, the right to religion, the right to cultural life and the right to development.
Minority Rights Group International and the Centre for Minority Rights Development urge the government of Kenya to act in accordance with measures requested of it by the African Commission in good faith and cease activities detrimental to both the land and the Endorois community.
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