In 1973 and 1978 the Kenyan government systematically evicted the semi-nomadic Endorois people from their traditional lands in the Great Rift Valley. In place of the approximately 60,000 Endorois who traditionally used the fertile banks of Lake Bogoria for cattle herding, the Kenyan government established a wildlife preserve. As a result, the Endorois were pushed onto arid desert lands where both their livelihood and culture have dramatically deteriorated.
After nearly forty years without relief, on February 4, 2010 the African Commission on Human and Peoples’ Rights recognized the plight of the Endorois people, finding the Kenyan government to be in violation of Articles 1, 8, 14, 17, 21, and 22 of the African Charter on Human and Peoples’ Rights. The Commission recommended that Kenya provide the Endorois community both restitution of ancestral lands and compensation for damage done to their lands and the community since they were evicted. The ruling allowed the Kenyan government three months to implement the Commission’s recommendations.
Human rights organizations have hailed the Commission’s decision as a landmark case for indigenous peoples’ rights and contemplated its implications throughout Africa. In particular, the ruling marks two developments in Commission jurisprudence. Never before has the Commission recognized an indigenous group to be a people entitled to benefit from Charter provisions that protect collective rights, and never before has the Commission, or any other international tribunal, declared a violation of the right to development.
In defining a “people,” the Commission recognized that “indigenous peoples have an unambiguous relationship to a distinct territory and that all attempts to define the concept [of a people] recognise the linkages between people, their land, and culture.” The Commission relied on the Endorois’s self-identification as a distinct community; objective features of the Endorois community; and the close interconnection between their culture, religion, traditional way of life, and their ancestral lands, as evidence of the Endorois being a people.
In assessing the right to development under Article 22 of the Charter, the Commission asserted that there are both procedural and substantive elements that must be met to satisfy this right. In the Endorois case, the Kenyan government’s failure to consult the community and obtain their prior consent in accordance with their customs and traditions, and its failure to provide land of equal value to the land taken, established a violation of the Endorois’s right to development.
If fully implemented, this decision could have a profound impact on the Endorois people and repercussions throughout Africa. The Commission’s expanded definition of a “people” and articulation of the right to development establish standards that will be applied in future cases involving other African indigenous groups who have lost ancestral land through government acquisition. Most importantly, both components of the Endorois precedent highlight a shift toward greater protection of the rights of minorities whose attachment to land is vital but traditionally outside the mainstream legal framework for land ownership.