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Centre for Minority Rights Development (Kenya) and Minority Rights Group International on Behalf of Endorois Welfare Council v Kenya: A Landmark Decision from the African Commission

Published online by Cambridge University Press:  14 September 2011

Elizabeth Ashamu
Rights & Permissions [Opens in a new window]

Abstract

This is the first judgment from the African Commission on Human and Peoples' Rights to address the rights of indigenous peoples and their claims to land and natural resources. It is also the first ruling by an international tribunal which finds a violation of the right to development. The Commission examined the Kenyan government's eviction of the indigenous Endorois community from their ancestral land around Lake Bogoria to establish a game reserve. Finding violations of the rights of the Endorois to religion, culture, property, natural resources and development, the Commission called for the recognition of Endorois ownership of their ancestral land and its restitution to the community. This case note describes the Commission's legal analysis of the Endorois case and explains how the decision establishes an important precedent for ensuring equity and participation in natural resource management and development on indigenous lands.

Information

Type
Recent Developments
Information
Journal of African Law , Volume 55 , Issue 2 , October 2011, pp. 300 - 313
Copyright
Copyright © School of Oriental and African Studies 2011

INTRODUCTION

On 20 March 2010, the Endorois community gathered around Lake Bogoria in celebration. Some 20 bulls and 30 goats were slaughtered,Footnote 1 elders conducted rituals along the shore and long-separated friends were reunited.Footnote 2 The Endorois are a pastoralist community of approximately 60,000 people who, for centuries, had lived in the Lake Bogoria area, in the heart of Kenya's Great Rift Valley region.Footnote 3 At Kenyan independence in 1963, the British crown's claim to Endorois land was passed to the local county council to be held in trust on behalf of the Endorois community. The Endorois, however, maintained their customary use rights.Footnote 4 In 1973, the Kenyan government gazetted the area as a game reserve and the Endorois were dispossessed of their ancestral lands.Footnote 5 Almost 40 years later, the African Commission on Human and Peoples' Rights (the Commission) appealed to the Kenyan government to return the land to the Endorois and compensate them for losses suffered. The decision marked an important victory. “There's a sense of comfort and optimism, a sense of happiness”, explained one community member; “[t]hat the scary days are gone seems too good to be true”.Footnote 6

Following an unsuccessful pursuit of a legal solution within Kenyan courts,Footnote 7 the Centre for Minority Rights Development and Minority Rights Group International brought the communication to the African Commission on behalf of the Endorois in 2003. The communication alleged that the Kenyan government forcibly and illegally removed the indigenous Endorois community from their land without paying fair compensation. They were displaced to semi-arid lands and denied access to the medicinal salt licks, grazing areas, and cultural and religious sites around the lake. The Kenyan government used the land for tourism, sold parts to third parties and granted concessions for ruby mining, all without allowing the Endorois to participate in decisions regarding their land or share in the revenues generated. The community was geographically divided, imperilling their pastoral lifestyle and cultural integrity.Footnote 8 Under the African Charter of Human and Peoples' Rights (the African Charter), these allegations included violations of the Endorois right to practise religion (article 8), right to culture (article 7(2) and (3)), right to property (article 14), right to dispose freely of their natural resources (article 21) and right to development (article 22). Following repeated delays due to Kenya's failure to make submissions on time, the Commission concluded consideration of the communication during its 41st session and released its decision in February 2010.Footnote 9 The Commission recognized the Endorois as an indigenous people, and found the Kenyan government responsible for all alleged violations of the African Charter.

As the following analysis reveals, this decision is remarkable for several reasons. It is the first time that the Commission has adjudicated the definition of indigenous peoples in Africa and their corresponding rights to land and natural resources. As the African Charter is the only legally binding international treaty containing the right to development,Footnote 10 this is also the first ruling by an international tribunal finding a violation of this right. The decision is therefore not only a victory for the Endorois, but also represents a new avenue for marginalized and vulnerable communities across Africa to compel recognition of their rights. In the context of mounting pressure on land for environmental conservation and economic development, the significance of the Commission's ruling cannot be overstated.

THE COMMISSION'S DECISION

The Endorois community as an indigenous people

The Commission began its discussion on the merits of the case by addressing whether the Endorois are a “people” within the meaning of the African Charter, and whether they are “indigenous” and therefore in need of special protection.Footnote 11 Although the African Charter provides in articles 19 to 24 for the protection of certain collective rights for “all peoples”, the charter itself does not define the concept. Indeed, according to the Commission, the political controversy surrounding this term led the drafters of the charter to refrain from elaborating a definition.Footnote 12 In considering the Endorois case, however, the Commission followed its affirmation of the rights of the Katangese People of the Democratic Republic of Congo,Footnote 13 the Ogoni people of NigeriaFootnote 14 and the black citizens of MauritaniaFootnote 15 to bring claims under the African Charter. It identified a certain number of features that a group of individuals should manifest in order to be considered as a people, including, inter alia, a common historical tradition, racial or ethnic identity, linguistic unity, religious and ideological affinities, and a territorial connection.Footnote 16

Before its consideration of the Endorois communication, the Commission had never identified a group involved in a case before it as “indigenous”. Nonetheless, the Commission began preparing for this moment a decade earlier when, in October 2000, it adopted a resolution establishing a Working Group of Experts on Indigenous Populations/Communities (WGIPC). The WGIPC was given the mandate to examine the concept of indigenous people and communities in Africa and formulate recommendations for the monitoring and protection of their rights.Footnote 17 In consultation with human rights experts and representatives of indigenous communities, the WGIPC drafted a comprehensive report that was adopted by the Commission during its 28th session in 2003. It clearly indicated the Commission's recognition of the existence of indigenous peoples and communities in Africa and demonstrated the Commission's commitment to address seriously the human rights violations that they commonly confront.Footnote 18 At its 29th session, the Commission began for the first time to question states presenting periodic reports about measures to address the human rights of indigenous peoples in their countries.Footnote 19 The Commission also issued a resolution welcoming the 2007 UN Declaration on the Rights of Indigenous Peoples as a “valuable tool and point of reference” for its efforts to protect indigenous peoples' rights in Africa.Footnote 20 Indeed, as this decision illustrates repeatedly in citations to international sources, the Commission's initiative to address the issue of indigenous peoples is taking place within, and is supported by, the international movement for indigenous rights.

In defining indigenousness, the Commission followed the trend within the UN system, which places self-identification as a central criterion for determining the indigenous status of a group.Footnote 21 The Commission also cites common characteristics identified in the WGIPC report: “the occupation and use of a specific territory; the voluntary perpetuation of cultural distinctiveness; self-identification as a distinct collectivity, as well as recognition by other groups; and experience of subjugation, marginalization, dispossession, exclusion or discrimination.”Footnote 22 Above all, the Commission emphasized two key factors: self-identification as both “indigenous” and as a “people”; and the existence of strong linkages between the people, their land and their culture.Footnote 23

The Commission was careful to distance itself from a conception that indigenous people descend “from the populations which inhabited the country … at the time of conquest or colonization”,Footnote 24 one factor often assumed to be essential in the meaning of “indigenous”.Footnote 25 The Commission found support for a non-temporal definition of indigenousness in the jurisprudence of the Inter-American Court of Human Rights (IACtHR) and cited the cases of Moiwana Village v Suriname Footnote 26 and Saramaka People v Suriname,Footnote 27 both of which involved alleged violations against Maroon communities (the descendents of African slaves forcibly taken to Suriname during the 17th century).Footnote 28 The Commission underlined that, based on their special relationships to their ancestral lands and their communal concept of ownership, the IACtHR applied its jurisprudence regarding indigenous peoples, thus moving “beyond the ‘narrow/aboriginal/pre-Columbian’ understanding of indigenous peoples generally adopted in the Americas”.Footnote 29 Given that almost all Africans can claim a heritage of aboriginality to somewhere on the continent, the fear of temporal hierarchies has been a key source of opposition to recognizing certain African communities as indigenous.Footnote 30 The Commission's discussion reflected the WGIPC's statement that the term “‘[i]ndigenous peoples’ has come to have connotations and meanings that are much wider than the question of ‘who came first’”.Footnote 31 It made clear its understanding that the element of first or original occupancy is not always relevant within the African historical experience.Footnote 32

Although Kenya argued that the Endorois, as part of the Tungen tribe and the Kelenjin group, were not a distinct community on their own,Footnote 33 the Commission found to the contrary.Footnote 34 Based on the evidence submitted, it was “satisfied that the Endorois can be defined as a distinct tribal group whose members enjoy and exercise certain rights, such as the right to property, in a distinctly collective manner”Footnote 35 and, furthermore, agreed with the complainants that “the Endorois consider themselves to be a distinct people, sharing a common history, culture and religion”.Footnote 36 The decision thus recognized the Endorois as a “people” entitled to benefit from those provisions of the African Charter that protect collective rights.Footnote 37 The Commission was also of the view that “the Endorois culture, religion, and traditional way of life are intimately intertwined with their ancestral lands”.Footnote 38 It therefore agreed with the complainants that the Endorois are an indigenous people.Footnote 39

The rights to religion and culture

The Commission's recognition of the Endorois as an indigenous community led naturally to its finding that the restrictions on access to the community's ancestral land constituted a violation of its people's rights under articles 8 and 17 of the African Charter to “freedom of conscience, the profession and free practice of religion” and “freely [to] take part in the cultural life of [their] community”. The complainants argued that, as a sacred ground where weddings, funerals, circumcisions and traditional initiations are held, where prayers are conducted and where ancestors are buried, the lake and its surrounding area is “the spiritual home of all Endorois, living and dead” and thus essential to religious practice and belief.Footnote 40 As the location for cultural rites and celebrations and necessary for the maintenance of the Endorois pastoralist lifestyle, the complainants made the parallel argument that the area was essential to Endorois culture.Footnote 41 The Kenyan government did not deny that the Endorois had been removed from their ancestral land.Footnote 42 Its arguments, rather, sought to justify their removal and establish that access to the area was permitted, “subject to administrative procedures.”Footnote 43

While article 8 of the charter permits limitations on the right to religion based on “law and order”, the Commission pronounced, as it has before, that states cannot take recourse to the limitations of the African Charter, or “claw-back” clauses in order to violate the express provisions of the charter and its underlying principles.Footnote 44 It thus declared that any restrictions on religious practice should be established by law, applied in a way that would not completely vitiate the right, based on exceptionally good reasons, and that the respondent state must prove that the restrictions are both proportionate to the specific need on which they are predicated and reasonable. The Commission was not convinced that removing the Endorois from their land was a lawful action necessitated by any reasonable justification.Footnote 45 It was of the view that “allowing the Endorois to use the land to practice their religion would not detract from the goal of conservation or developing the area for economic reasons”.Footnote 46

The Commission engaged in even heavier scrutiny when reviewing restrictions on the Endorois right to culture. It cited its interpretation of article 17(2) of the African Charter as requiring governments to introduce measures “aimed at the conservation, development and diffusion of culture”.Footnote 47 It added that, due to the many challenges faced by minority or indigenous communities like the Endorois, including displacement, poverty and political marginalization, the respondent state had an especially high duty to take positive steps to protect their identity and culture.Footnote 48 The Commission analysed the absence of a claw-back clause in article 17 to indicate that the drafters of the charter envisaged few circumstances where a limitation could be appropriate.Footnote 49 It went on to say that, even if the right were subject to limitations and the game reserve was a legitimate aim, Kenya's failure to secure a right of access for the Endorois was neither proportionate nor justified, as their cultural activities posed no harm to the reserve's ecosystem.Footnote 50

The Commission concluded that, by forcibly evicting the Endorois from their ancestral lands and restricting their ability to return, the respondent state “denied the community access to an integrated system of beliefs, values, norms, mores, traditions and artefacts closely linked to access to the Lake”, making it impossible for them to maintain practices central to their culture and religion.Footnote 51 By forcibly resettling them to semi-arid lands and separating them from the medicinal salt licks and other resources vital for the health of their livestock, the Commission found that the respondent state had endangered the Endorois pastoralist way of life and rendered their right to culture “illusory”.Footnote 52

The rights to property and to dispose freely of natural resources

The complainants' allegations that the Kenyan government violated articles 14 and 21 of the African Charter compelled the Commission to elaborate clear contours for understanding the rights of indigenous communities to land and natural resources. It acknowledged that the rights, interests and benefits of indigenous communities in their traditional lands constitute “property” under article 14 of the charter, citing the Commission cases Malawi African Association and Others v Mauritania and SERAC v Nigeria, in which the Commission entertained land-based claims of the violation of the right to property.Footnote 53 In light of the fact that African minorities often face dispossession of their lands, the Commission noted that special measures may be necessary to secure their property rights.Footnote 54 The Commission drew on international jurisprudenceFootnote 55 and the UN Declaration on the Rights of Indigenous PeoplesFootnote 56 to define the rights of indigenous communities to their traditional lands as rights of ownership, and not merely access or use rights. It reasoned 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.”Footnote 57 The Commission concluded that traditional possession, occupation or use of land by indigenous communities, even in the absence of official title deeds, has the effect of a state-granted property title and entitles indigenous people to demand official recognition and registration of their property.Footnote 58 It emphasized that it was a state's duty to provide a legal framework that allows communities to exercise property rights collectively and according to their communal tenure regimes.Footnote 59

The Commission broached the question of whether the rights of indigenous landowners extend to subterranean mineral resources in its discussion of the alleged violation of article 21. It relied primarily on the jurisprudence of the IACtHR, which has established that the ownership rights of indigenous communities extend only to those natural resources “traditionally used and necessary for the very survival, development and continuation of such people's way of life”.Footnote 60 The Commission noted that the Endorois had no traditional attachment to ruby. Nevertheless, because mining concessions almost inevitably have an impact on other resources that are traditionally used and relied upon, such as grazing land and water, collateral encroachments on these ownership rights must accord with article 14.Footnote 61

The Commission described article 14 as requiring any limitations or encroachments on property rights to satisfy a two-pronged test. First, they must be “in the interest of public need or in the general interest of the community”.Footnote 62 The Commission interpreted this to incorporate the requirements that they be proportionate to a legitimate need and as least restrictive as possible.Footnote 63 Secondly, any restrictions must be “in accordance with appropriate [Kenyan and international] laws”.Footnote 64 Legality, said the Commission, necessarily requires consultation and compensation.Footnote 65 Furthermore, the Commission held that, when dealing with indigenous peoples, standards for allowing limitations are especially stringent. Adequate public interest must meet “a much higher threshold in the case of encroachment of indigenous land rather than individual private property”Footnote 66 and consultations must result in obtaining actual consent.Footnote 67

In applying this framework to the situation of the Endorois, the Commission found that their rights had been violated under articles 14 and 21 on multiple grounds. It declared that both the trust land system and the limited access that Kenya argued it granted to the Endorois provided insufficient legal recognition and protection to Endorois rights of ownership. It called on Kenya to grant the Endorois full title to their territory within the framework of their communal property system.Footnote 68 It further found that Kenya had encroached on Endorois land through forced evictions, limitations on free access to religious and cultural sites, the construction of roads and buildings, ruby mining operations and the sale of land to third parties.Footnote 69 The Commission declared that “the upheaval and displacement of the Endorois from the land they call home and the denial of their property rights over their ancestral land is disproportionate to any public need served by the Game Reserve”.Footnote 70

Additionally, it was of the view that, even if the game reserve was a legitimate aim, its creation could have been accomplished without excluding the Endorois. The Commission noted that “as the ancestral guardians of the land [the Endorois] are best equipped to maintain its delicate ecosystem” and that they expressed a willingness to work in coordination with the government's conservation and tourism efforts.Footnote 71 Nor was the Commission convinced, as Kenya tried to argue, that the creation of the reserve and the eviction of the Endorois were legal under Kenyan and international law. It pointed to the lack of effective participation by the Endorois, the lack of prior environmental and social impact assessments, and inadequate compensation or benefit sharing. While Kenya presented its resettlement initiative and the payment of approximately £30 to 170 families as fulfilling its duties, the Commission was frank in its opinion that such a low level of compensation “flies in the face of common sense and fairness”.Footnote 72 With this, Kenya was found to have violated article 21(2), which provides that “in case of spoliation, the dispossessed people shall have the right to the lawful recovery of its property as well as to an adequate compensation”.

The right to development

The Commission defined and delimited the contours of the right to development under the African Charter for the very first time in this decision. Article 22 provides that “[a]ll peoples shall have the right to their economic, social and cultural development with due regard to their freedom and identity and in the equal enjoyment of the common heritage of mankind”. Inspired by the writing of Arjun Sengupta, former independent expert on the right to development for the Human Rights Commission, the Commission declared that, for development to be in keeping with human rights principles, it must be equitable, non-discriminatory, participatory, accountable and transparent.Footnote 73 It further elaborated that a rights-respecting development process must satisfy both constitutive (procedural) and instrumental (substantive) tests.Footnote 74

The procedural element described by the Commission is grounded in its view that “freedom of choice must be present as part of the right to development”.Footnote 75 It found support for this in states' duty under the UN Declaration on the Right to Development to formulate development policies that include the “active, free and meaningful participation” of all individuals.Footnote 76 It also cited a report of the WGIPC in requiring that indigenous peoples should not be “coerced, pressured or intimidated in their choices of development”.Footnote 77 It looked to IACtHR case history for an elucidation of the nature of effective participation and agreed with its requirements for active consultation with an affected community in accordance with their customs and traditions, to include dissemination of information, constant communication between parties, good faith and culturally appropriate procedures.Footnote 78 As in its discussion of limitations on property rights, the Commission held that the right to development required not only consultation with indigenous communities, but for the state to obtain their “free, prior, and informed consent”.Footnote 79

Despite Kenya's arguments that there had been consultation and democratic participation in decision-making, the Commission was clear that, in its view, Kenya had failed in its duty to involve the Endorois adequately in the development process. It agreed with the claims made by the complainants that any consultations that had taken place were insufficient and not appropriate to the circumstances.Footnote 80 It pointed notably to the illiteracy of those who represented the Endorois in discussions with the respondent state, a fact that Kenya apparently did not contest.Footnote 81 In the Commission's understanding, the creation of a reserve was presented as a fait accompli [completed action which cannot be reversed], the community members had no opportunity to shape the policies or their role in reserve, and they were offered no choice but to leave the lake.Footnote 82 According to the Commission, the inadequacy of the consultations “left the Endorois feeling disenfranchised from a process of utmost importance to their life as a people”.Footnote 83

The Commission described the substantive element of the right to development as necessitating that development result in empowerment of the community and the expansion of capabilities and choices.Footnote 84 It also required an improvement in the well-being of the community, stating that, when a development project decreases well-being, the community's right to development will be violated.Footnote 85 The Commission found that communities must benefit from development projects and defined their right under the African Charter “to reasonably share in the benefits made as a result of a restriction or deprivation of their right to the use and enjoyment of their traditional lands and of those natural resources necessary for their survival”.Footnote 86

Taking stock of the relegation of the Endorois to semi-arid land, their loss of access to the lake's medicinal salt licks, fresh water and green pastures, and the death of more than half of their cattle, the Commission concluded that the Endorois had faced a “loss in well-being” as well as a “significant loss in choice”.Footnote 87 It repeated its findings that they had been denied adequate compensation or equitable benefit-sharing.Footnote 88 The Commission had little difficulty finding a violation of their right to development under article 22 of the charter.

Remedies

The Commission called on Kenya to: recognize the Endorois rights of ownership and return their ancestral land; ensure that the Endorois have unrestricted access to Lake Bogoria for religious and cultural rites and for cattle grazing; pay adequate compensation for the loss suffered; pay royalties to the Endorois from existing economic activities and ensure that they benefit from employment possibilities within the reserve; grant registration to the Endorois Welfare Committee; engage in dialogue with the complainants for the effective implementation of the recommendations; and report on their implementation within three months.Footnote 89

CONCLUSION

The Kenyan minister of lands, James Orengo, addressed the Endorois who reunited around Lake Bogoria following the publication of the ruling and offered hope for concrete results. “The Government” he announced “has no option but to implement the African Commission's recommendations”.Footnote 90 Kenya's adoption of a new land policy in December 2009Footnote 91 indicates a possible paradigm shift in the government's approach to land issues and lends credence to the minister's promise. As though it foresaw the Commission's recommendations, the new policy abolishes the trust land system,Footnote 92 recognizes customary communal tenure,Footnote 93 and calls for participatory resource managementFootnote 94 and benefit sharing from land-based resources.Footnote 95 It also makes a number of relevant concessions of how “[s]uccessive governments in Kenya have been poor stewards of Government Land and Trust Land”Footnote 96 including that “[o]ver the years, [minority communities] have lost access to land and land-based natural resources that are key to their livelihoods. For example, such loss of access follows the gazettement of these habitats as forests or national reserves or their excision and allocation to individuals and institutions, who subsequently obtain titles to the land.”Footnote 97 In light of Kenya's apparent willingness to confront these past injustices, it is hoped that the Commission's ruling will indeed be implemented and that other Kenyan indigenous and minority groups might benefit from any momentum it generates.

The significance of this case extends far beyond Lake Bogoria or the borders of Kenya. By recognizing an African community as “indigenous”, the Commission took a bold step into a controversial area and placed itself squarely above opposition to the use of the term in the African context. It demonstrated the utility of the concept to analyse the hierarchies and diversities within African states and to address internal structural dynamics of inequality and marginalization. Furthermore, with indigenous complainants before it, the Commission was able to draw on the international law regime on the rights of indigenous peoples, which offers precisely the kind of protection that many groups in Africa, particularly pastoralists and hunter-gatherers, urgently need. This ruling therefore offers groups who identify as indigenous peoples, such as the pygmies of the Great Lakes Region, the San of Southern Africa and the Maasai of Kenya and Tanzania,Footnote 98 a new platform from which to voice their concerns and the opportunity to seek protection from the dispossession of land and natural resources within the African human rights system.

In this, its first adjudication of the right to development, the Commission gave further confirmation of the justiciability of economic, social and cultural rights and lived up to the promise it made in SERAC v Nigeria that “there is no right in the African Charter that cannot be made effective”.Footnote 99 The Commission's definition of the right to development as requiring participation, benefit-sharing, improvement of well-being, consultation, and free, prior and informed consent, articulated clear duties incumbent on states parties to the African Charter. While the Commission illustrates the application of the right to development with respect to past wrongs, in the context of steadily increasing pressure on land for food, fuel, wood fibre and mineral resources,Footnote 100 protecting the rights of indigenous peoples to their natural resources is more important now than ever. The decision establishes an important line of defence for rural African communities, allowing them to control the use of their resources, determine priorities for development, and negotiate favourable terms, including revenue sharing. The difficult question is to what extent African states will be willing to accept and adopt proactively the blueprint for the protection of indigenous resource rights presented by the Commission's landmark decision.

Footnotes

Ibid
Ibid
Ibid
Ibid

References

1 “Kenya: Endorois celebrate return of ancestral land” (19 March 2010) Daily Nation, available at: <http://www.nation.co.ke/News/Endorois%20celebrate%20return%20of%20ancestral%20land%20/-/1056/883110/-/f6qxb8z/-/index.html> (last accessed 24 April 2010).

2 A Kiprotich “Endorois finally return to their family land” (22 March 2010) The Standard, available at: <http://www.standardmedia.co.ke/InsidePage.php?id=2000006093&cid=4&> (last accessed 24 April 2010).

3 Centre for Minority Rights Development (Kenya) and Minority Rights Group International on behalf of Endorois Welfare Council v Kenya African Commission on Human and Peoples' Rights, comm no 276/2003 (Endorois judgment), available at: <http://www.achpr.org/english/Decision_Communication/Kenya/Comm.%20276-03.pdf> (last accessed 9 July 2011) at para 3.

4 Id at para 5.

5 Id at para 6.

6 Kiprotich “Endorois finally return”, above at note 2.

7 Endorois judgment, above at note 3 at paras 10–13.

8 Id at paras 1–21.

9 Id at paras 23–56. Kenya never made submissions on admissibility, obliging the Commission to rule to admit the communication without having received a submission from Kenya. Although Kenya later submitted arguments opposing admissibility along with its arguments on the merits, the Commission refused to reconsider its previous decision on admissibility: id at paras 57–70.

10 See African Charter, art 22.

11 Endorois judgment, above at note 3 at paras 144–62.

12 Id at para 147.

13 Katangese Peoples' Congress v Zaire Commission comm no 75/93, available at: <http://www.achpr.org/english/_info/List_Decision_Communications.html> (last accessed 24 April 2010).

14 The Social and Economic Rights Action Center (SERAC) and the Center for Economic and Social Rights v Nigeria Commission comm no 155/96/2001, available at: <http://www.achpr.org/english/_info/List_Decision_Communications.html> (last accessed 24 April 2010).

15 Malawi Africa Association and Others v Mauritania Commission comm nos 54/91, 61/91, 98/93, 164/97 to 196/97 and 210/98, available at: <http://www.achpr.org/english/_info/List_Decision_Communications.html> (last accessed 24 April 2010).

16 Endorois judgment, above at note 3 at para 151.

17 Commission resolution on the rights of indigenous peoples' communities in Africa (2000): ACHPR/Res.51(XXVIII) 00, available at: <http://www.achpr.org/english/_doc_target/documentation.html?../resolutions/resolution56_en.html> (last accessed 23 April 2010).

18 “Report of the African Commission's Working Group of Experts on Indigenous Populations/Communities” (2005, the Commission and International Work Group for Indigenous Affairs) (WGIPC Report), adopted by the Commission at its 28th ordinary session, at 8; see also resolution on the adoption of the report of the WGIPC (2003): ACHPR/Res.65 (XXXIV) 03, available at: <http://www.achpr.org/english/_doc_target/documentation.html?../resolutions/resolution70_en.html> (last accessed 24 April 2010).

19 WGIPC Report, id at 78. For later examples of the Commission's questioning on indigenous rights see, for example: “Concluding observations of the ACHPR on the first periodic report of the Republic of South Africa” (2005), available at: <http://www.chr.up.ac.za/images/files/documents/ahrdd/southafrica/southafrica_concluding_observations_periodic_report_2005.pdf> (last accessed 19 June 2011); “Concluding observations on the periodic report of Cameroon” (2005), available at: <http://www.chr.up.ac.za/images/files/documents/ahrdd/cameroon/cameroon_concluding_observations_periodic_2005.pdf> (last accessed 19 June 2011); and “Concluding observations of the ACHPR on the initial report of the Republic of Kenya” (2007), available at: <http://www.chr.up.ac.za/images/files/documents/ahrdd/kenya/kenya_concluding_observations_2007.pdf> (last accessed 19 June 2011).

20 Resolution on the UN declaration on the rights of indigenous peoples (2007): ACHPR/Res. 121 (XXXXII) 07, available at: <http://www.achpr.org/english/resolutions/resolution121_en.htm> (last accessed 22 April 2010).

21 Barelli, M “The role of soft law in the international legal system: The case of the United Nations declaration on the rights of indigenous peoples” (2009) 58 International Comparative Law Quarterly 957 at 961CrossRefGoogle Scholar; see also WGIPC Report, above at note 18 at 12.

22 Endorois judgment, above at note 3 at para 150, citing WGIPC Report, id.

23 Endorois Judgment, id at para 151.

24 International Labour Organization Convention No 169 Concerning Indigenous and Tribal Peoples in Independent Countries (1989), art 1(1)(b).

25 Endorois judgment, above at note 3 at para 153.

26 IACtHR series C no 124 (2005).

27 IACtHR series C no 172 (2007).

28 Endorois judgment, above at note 3 at paras 159–60 and 198.

29 Id at para 159.

30 See generally WGIPC Report, above at note 18.

31 Id at 87.

32 Endorois judgment, above at note 3 at footnote 58.

33 Id at para 145.

34 Id at para 161.

35 Ibid.

36 Id at para 162.

37 Ibid.

38 Id at para 156.

39 Id at para 162.

40 Id at paras 78–79.

41 Id at para 116.

42 Id at para 170.

43 Id at para 240; see also para 170.

44 Id at para 173, citing Amnesty International v Zambia Commission comm no 212/98, available at: <http://www.achpr.org/english/_info/List_Decision_Communications.html> (last accessed 24 April 2010).

45 Endorois judgment, id at paras 172–73.

46 Id at para 173.

47 Id at para 246. The Commission cites “Guidelines for national periodic reports” in Second Annual Activity Report of the African Commission on Human and Peoples' Rights 1988–1989: ACHPR/RPT/2nd, annex XII.

48 Id at para 248.

49 Id at para 249.

50 Ibid.

51 Id at para 250; see also para 173.

52 Id at para 251.

53 Id at para 186, citing Malawi African Association, above at note 15; SERAC v Nigeria, above at note 14.

54 Id at para 187, citing WGIPC Report, above at note 18.

55 See Endorois judgment, above at note 3 at paras 192–93, citing Saramaka People v Suriname, above at note 27. See also id at para 208, citing Mayagna (Sumo) Awas Tingni Community v Nicaragua IACtHR series C no 66 (2000).

56 UN Declaration on the Rights of Indigenous Peoples (2007): UN doc A/RES/61/29. The Commission noted that arts 26 and 27 call for ownership over lands “occupied or otherwise used”: Endorois judgment, id at para 207.

57 Endorois judgment, id at para 204.

58 Id at para 210.

59 See id at paras 192–93 and 206, citing Saramaka People v Suriname, above at note 27. See also Endorois judgment, id at para 207, citing Mayagna (Sumo) Awas Tingni v Nicaragua, above at note 55.

60 See Endorois judgment, id at para 261, citing IACtHR jurisprudence including: Yakye Axa Indigenous Community v Paraguay IACtHR series C no 125 (2005); Sawhoyamaxa Indigenous Community v Paraguay IACtHR series C no 146 (2006); Saramaka People v Suriname, id.

61 Endorois judgment, id at paras 266–67, noting the decision in Saramaka People v Suriname, id.

62 Id at para 212.

63 Id at para 213. The Commission noted its conclusions in Constitutional Rights Project, Civil Liberties Organization and Media Rights Agenda v Nigeria Commission comm nos 140/94, 141/94 and 145/95 (1999).

64 Id at para 212.

65 Id at para 226.

66 Id at para 212.

67 Id at para 226.

68 See id at paras 196, 199 and 206.

69 Id at para 210.

70 Id at para 214.

71 Id at para 235; see also at para 215.

72 Id at para 236; see also at paras 229–31 and 236.

73 Id at para 277, citing A Sengupta “Development cooperation and the right to development” (Francois-Xavier Bagnoud Centre working paper no 12, 2003), available at: <http://www.harvardfxbcenter.org/resources/working-papers/FXBC_WP12-Sengupta.pdf> (last accessed 4 May 2011) and UN Declaration on the Right to Development (1986): UN doc A/RES/41/128 UN at art 2.3.

74 Id at para 277.

75 Id at para 278.

76 Id at para 283, quoting UN Declaration on the Right to Development, above at note 73 at art 2.3.

77 Id at para 279, quoting UN “Preliminary working paper on the principle of free, prior and informed consent of indigenous peoples in relation to development affecting their lands and natural resources that they would serve as a framework for the drafting of a legal commentary by the Working Group on this concept” (2004): UN Doc. E/CN.4/Sub.2/AC.4/2004/4.

78 Id at paras 281 and 289.

79 Id at para 291.

80 Id at para 281.

81 Id at para 292.

82 Id at para 281.

83 Id at para 297.

84 Id at para 283.

85 Id at para 294.

86 Id at para 295.

87 Id at para 297.

88 Ibid.

89 Id at 80.

90 A Kiprotich “Will state respect community's land rights?” (22 March 2010) The Standard, available at: <http://www.standardmedia.co.ke/specialreports/InsidePage.php?id=2000006073&cid=259&story=Will%20State%20respect%20community%E2%80%99s%20land%20rights?> (last accessed 25 April 2010).

91 Sessional paper no 3 of 2009 on National Land Policy (2009, Ministry of Lands, Kenya), available at: <http://ldgi.org/publics/Sessional-paper-on-Kenya-National-Land-Policy.pdf> (last accessed 19 June 2011).

92 Id at sec 3.3.1.

93 Id at sec 3.3.2.

94 Id at sec 3.4.3.1.

95 Id at sec 3.3.4.1.

96 Id at sec 3.3 (55).

97 Id at sec 3.6.6 (198).

98 See WGIPC Report, above at note 18 at 15–19 for discussion of these and other indigenous groups in Africa.

99 SERAC v Nigeria, above at note 14 at para 68.

100 For a general discussion of the increasing demand for land in Africa see L Cotula et al Land Grab or Development Opportunity: Agricultural Investment and International Land Deals in Africa (2009, FAO, IIED and IFFEAD), available at: <www.ifad.org/pub/land/land_grab.pdf> (last accessed 24 April 2010).