The Enderoi Case as a Best Practice
International human rights law expert and advocate and Member of Parliament, Kenya
I am delighted to be here today. It is a profound honor to meet all of you today.
I want to thank the conference chair for inviting me here to speak to you about the Enderoi case in Kenya. Listening to the chair of my session, my friend Professor Dahl, he has really laid a firm foundation for how my presentation would be made. I am also really indebted to my friends at IWGIA, an organization without which a lot of work that we have done would not have succeeded.
The Endroi’s case as a best practice
What is it that makes a case a best practice? At what point do you decide that it is a best practice and who does it? Is it a factor of the ubiquity of citations of that case in popular and academic literature? What is it really a function of?
In seeking answers to this question, an interesting analysis that I found was from a Norwegian political scientist actually, Siri Gloppen, in her book Courts and Marginalized Comparative Perspectives, she writes:
The value of litigation should not only be judged in terms of how a case fares in court or whether the terms of the judgment are complied with, it is as important to look at the systemic impact, the broader impact of the litigation process on social policy directly and through influencing public discourses on social rights and the development of jurisprudence nationally and internationally.1
So based on what Dr. Gloppen says, my analysis of the Enderoi
Case would not just look at the immediate impact of the case in terms of how the case fared in court, but it would also look broadly at whether this case and the decision thereof has had more systemic implications for similar cases within the continent of Africa and elsewhere on the globe. But perhaps to start with it is important to ask ourselves: what is the Enderoi community?
The Enderoi community is a small community compared to others in Kenya. Sixty thousand is their estimated population out of a country of 40 million people. Even this population figure is an estimate, because in the desegregation of the population data in Kenya the Enderoi never reach anywhere. Because it is only the dominant communities whose figures are released and most other communities that fall fewer than 100,000 people are usually classified under a broader rubric called “others.” So, the othering that professor Dahl was talking about is very realistic even in times of statistical desegregation of a community such as the Enderoi.
The Enderoi practice a pastoralist livelihood. They have an economy that is highly dependent on livestock and the capacity of this livestock to be moved from one place to another according to the weather conditions. The Enderoi are organized at the clan level. But they have all come together under and an institution called the Enderoi Welfare Council, which is a fairly representative institution. In 1973, the government of Kenya reserved the bulk of Enderoi land within Lake Bogoria in Kenya’s Rift Valley and transformed that land into a game reserve, to be managed by two local authorities from Bogoria and Koibatek. In establishing this conservation area, the Kenyan government forcefully evicted over 400 Enderoi families without any consultation and no compensation. As a consequence of that eviction the Enderoi pastoralist enterprise was negatively impacted to the extent that they lost more than three quarters of their livestock and became destitute from that moment on.
Between the time of the eviction in 1973 and the early 1990s the Enderoi pursued, what one would call, a political petitioning strategy. Essentially what these involved was writing letters to the local authorities and seeking meetings with political leadership, including with the president of the Republic of Kenya at the time Daniel Arap Moi, who happened to be the member of parliament for that larger area called Baringo where lake Bogoria is situated. This strategy was less than successful.
In 1997, the Enderoi community made a decision that they needed to pursue a different strategy. They filed a case at the High Court of Kenya where they were seeking remedies under the law of trusts. Essentially, the government took over what was initially Enderoi trust land and then granted it to these two local authorities. Under trust law, the cardinal principle is that there is a trustee and a beneficiary relationship. And one of the obligations of a trustee is to render accounts to the beneficiary in terms of the manner in which the trust is being used, and secondly, to share the benefits arising from that trust. The Enderoi community went before the High Court of Kenya and essentially argued that this trust relationship had failed because the two local authorities had neither presented them with accounts in terms of how they were managing the resource, nor had it presented it with information as to how it would be using revenues accruing from the exploitation of that natural resource. They were unsuccessful.
The courts essentially reasoned as follows: first, the court questioned the standing of the community before the court because at that point in time, Kenyan law only recognized individuals. It only granted standing for the courts to individuals, and not to communities. And so the courts said: “Who are you again? You are just a bunch of individuals; we don’t know anything about people called the Enderoi.” Secondly, the court observed that the mere fact that the Enderoi lived contiguous to these natural resources that had been nationalized did not give them rights over and above the greater population of the country and that the only expectation that the Enderoi would have would be development arising from government programs based on taxation of that resource. Essentially, the court dismissed the entire claim. The court basically said it was not its responsibility to review whether or not the state was meeting its fiduciary or rights trust duty towards the Enderoi community.
Having lost this case, the Enderoi did not give up. Instead, it sought further legal advice and legal assistance. Of course, even before seeking further legal advice, the Enderoi sought to appeal the decision at the Court of Appeals. But between 1997, when this case was filed, and 2002 when this case was brought to our attention, the Enderoi appeal had never been heard by the Court of Appeals: one because of inefficiency of the court, two because of corruption, and three because of political interference. So by 2002, five years after filing an appeal, the Enderoi appeal had not been heard or determined by the Kenyan courts.
In 2002, the Enderoi community approached my organization at that time, the Center for Minority Rights and Development, which then was a young organization that had been established just that a year prior with the intention of championing the rights of minority communities in Kenya. The Center for Minority Rights Development had at that point in time just come into a relationship with another organization, based in the UK, Minority Rights Group International (MRGI). That was in the process of establishing a program of using law to advance the rights of minorities and Indigenous communities. And so when we were seized with this request one of the things we did in early 2003 was to have a discussion with MRGI on whether we could initiate a complaint on behalf of the Enderoi at the African Commission on Human and Peoples Rights (ACHPR).
As you know, the ACHPR is a creation, a board, it is a treaty body established by the African Charter of Human and Peoples’ Rights, and the charter is the most important human rights instrument on the continent. It is an instrument that enjoys universal ratification by most African countries, and the African Commission is the quasi-adjudicative body that the treaty established. It is a body that has both a promotional mandate but also a protection mandate. In its promotional mandate, like any other treaty body, it carries out research, etc. In its protective mandate, it invites and hears cases and makes determinations, so in 2003, Minority Rights Groups International and ourselves on behalf of the Enderoi and on their instructions, we filed a petition for the African Commission on Human and Peoples Rights. The Enderoi, were not only seeking benefits accruing from Lake Bogoria, in fact, they were seeking much more radical remedies: they were seeking restitution of their ancestral land. They were seeking compensation for all the material and spiritual losses. And most of all, they were seeking recognition, including registration of their organizing institution The Enderoi Welfare Council.
The case then went on for the next seven years. Not only had the Enderoi been in Kenyan courts for probably more than seven years, but also they even went before the African Commission, they were there for at least seven years. But in February of 2010, the African commission finally made a determination on the complaint and it determined that Kenya was in violation of various provisions of the African Charter, and granted the remedies that Enderoi sought!
What are the key aspects of the decision of the African Commission?
Probably the most fundamental aspect of this decision related to the recognition of the Enderoi as an indigenous community within the context of the African charter. Now the relevance of this recognition is because the African Charter recognizes not only individual rights, but between article 19 and article 24 of the African Charter there are several provisions that talk about peoples’ rights, and the Enderoi, therefore, were trying to locate themselves within the rubric of a people so that they could be a beneficiary to the protections accorded to a people. Previously the African Commission had ruled that peoples related to the entire population of a country. Its only in the case of a Nigerian community called the Agoni four years before the Enderoi decisions that the African commission had began to grapple with the possibility that a sub-national unit could actually be called a people that would be entitled to the protections of the African Charter. But the Enderoi case went farther than Agoni because they were a community that was not just saying that we are any grouping, they self-identified as an indigenous community. Thus, the commission was duty-bound to determine what the notion of an indigenous community in African meant.
In my view, what it determined is that the commission was basically saying that in Africa you do not look for aboriginality to determine indigeneity, what is important is what I would call constructive aboriginality. In other words, a community must demonstrate a dependence on a specific territory, it must demonstrate the experience of marginalization and discrimination, and then it must demonstrate the extent of the group’s non-accommodation by dominant development paradigms. When the commission subjected the Enderoi to the three objective standards that it had set out, it actually had determined that the Enderoi were an Indigenous community. The commission also struggled with an argument that the Kenyan government made before the commission that the community was no longer distinctive from the dominant communities that neighbored it to the extent that the community had “suddenly acquired sudden facets of modernity” and had therefore become integrated. And what the commission determined was that in determining and making this formulation they actually relied on a decision in the Inter-America court in a case called Saramaka in Suriname. The commission ruled that the Enderoi couldn’t be denied juridical personality just because there is a lack of individual identification within traditions and law of the Enderoi by some members of the community. The commission then recognized this dynamism in terms of indigenous identity in Africa.
In relation to the right of property, which was really the crux of the claim before the African commission, the committees determined that it was necessary to have a paper title to demonstrate ownership because the Kenyan government and many African governments and many governments in the West as well, obviously would link ownership with a clear paper demonstration. The Commission found that neither a paper title nor uninterrupted occupation were necessary indicators of ownership for an indigenous community. What do you look for then in determining ownership? The commission said you look for traditional occupation. And if traditional occupation is absent then you ask yourself the question of whether the traditional occupation has been lost through forced eviction. Ask yourself whether unlawful dispossession and transfer has favored third parties in relation to the indigenous community. Ultimately, the commission determined that the property rights of the Enderoi had been violated in line with article 14 of the African Charter.
The other right that was implicated by the Enderoi claim is the right to development in article 22 of the African Charter. Essentially, what the Enderoi were arguing was that this development is not “our development.” This is development that excluded us from our land; it’s a development that has been procured without our concern and consultation. It is a development that has diminished our capability and our dignity as a people. The commission agreed with the people. It determined that the right of development is both constitutive and instrumental. In other words, it is useful as both a means and an end. So, in order to determine whether the right to development has been complied with you cannot just look at the end product, you must pay attention to the process that generated that end. Second, the commission set down various indicators of development and it determined that the development must be equitable; it must be non-discriminatory, participatory, accountable and transparent. Again, setting a fairly high benchmark for the process of development. The community determined that the active free and meaningful participation in development would ideally lead to the empowerment of the Enderoi community. It cannot be development if it leads to the disempowerment of the alleged beneficiary community. That is the reasoning of the commission. And lastly the commission determined that if there were any agreements that were based on a meaning capacity between the state and community, those agreements could not constitute proper consultations and proper consent. So again, putting a responsibility to ensure that the negotiating capabilities of a community—in terms of what Professor Dahl was talking about—are enhanced so in the process of negotiation for development gains. There were other determinations in terms of the rights to religion and culture as well as the right to natural resources.
Ultimately, these are recognition measures given to the Enderoi, including the rights of the recognition of ownership of the Enderoi community and restitution of the ancestral land. It included the community being granted unrestricted access to Lake Bogoria and surrounding sites for religious and cultural purposes, as well as grazing of their livestock. It also included payment that was adequate compensation arising from the losses they had suffered as a community over the years. It included the payment of royalties to the Enderoi for existing economic activities as well as benefit sharing from employment possibilities from within the reserve.
Why did the Enderoi succeed? This is the big question? I think it must be said that the Enderoi benefitted from what I will call fortuitous circumstances in a way. One of the most important fortunate circumstances here was the establishment of the Working Group on the Rights of Indigenous Peoples in Africa. This working group, which as you know has been funded for years by IWGIA, from 2003, began a process of research, researching issues of indigenous people. Through this process, the mindset of the commission was gradually changed. When the process started in 2003, the commission was even resistant to the notion of indigenous people. But five years down the line, after the working group had reported on its findings and after several missions to various countries by the commission there was a dramatic mindset change.
The Enderoi also succeeded because of the existence of transnational networks. I mentioned early that on the road, Minority Rights Group International, the role that IWGIA played, the role that the UN Permanent Forum played, and the mechanisms therein and the UN mechanisms related to indigenous peoples. All of the mechanisms provided the push factors that were necessary to ensure the community moved forward. Obviously, the community would not succeed without effective representation. But most of all, and this is really the fundamental part, even with the three factors that I have highlighted. Without a resilient community, without a united community, without an organizing principle, an impulse at the local level, the achievements that we are talking about today, would not have been realized.
I’m sure you are all excited about the remedies the commission gave. And so the question is: has it made a difference to anyone on the ground? Has it really mattered? Well, I think the jury is still out there, it terms of whether it has mattered. I look at it in two ways. There is the implementation of a judicial decision as a top down process, a process lead by the states and its organs; and there is an implementation in the pursuit for enforcement, which is championed and led and sustained by the community itself. So, in looking at that implementation, I think it is important to pay attention to those two facets.
In terms of the top down implementation: at the time when the Enderoi decision was implemented in 2010, the Kenyan constitution was still very much individualist in orientation, there were no provisions in the Kenyan constitutions relating to ownership of land by a community. There were many constitutional limitations. But in August of 2010, Kenya adopted a new constitution. In the new constitution the entire notion of trust land has actually been abolished, instead a new land tenure arrangement has been established. And through the establishment of the community land tenure, lies the recognition and provides very clearly that ethnic, cultural, and other groupings can own community land. There are provisions in the same constitution relating to examination of historical land injustices and the establishment of a national institution known as the national land commission to investigate historical land questions. There is recognition by way of article 46 in the new constitution of the notion of marginalized communities and in article 260 of the new constitution there are pastoral communities and indigenous communities. So there are many provisions in Kenya’s new laws that provide the broad framework for the implementation of the constitution.
The other very important development in Kenya, normatively, has been the reforms going on within our judiciary and the establishment of a supreme court. This basically means that one can seek advisory opinions from the Supreme Court in relation to, for example, the import of the determination of the African Commission on Human and Peoples Rights in relation to Enderoi. Other important institutions that have been established also include a Gender and Equality Commission, as well as a commission on administrative justice. So all these normative arrangements now exist in Kenya, which places implementation, in my view, within a stronger footing.
There have been attempts by the Kenyan parliament since the decision was made to require accountability by the executive in terms of the steps it has taken. For example, in February 2011, the Kenyan Parliament debated the Enderoi decision. Again, this was a milestone that has never been witnessed in Kenya’s history, where the plight of a marginalized minority or indigenous community is actually discussed by the highest legislative organ. This meeting or this session of parliament, the minister in charge of justice, essentially was required to provide the steps taken to implement the decision, but he was unable to do that, instead, he blamed it on the commission, indicating that the Kenyan government had not been formally served with a sealed copy of the ruling of the commission. So there have been a number of top-down implementation processes that have taken place. But none of this has yielded any result.
But the community has not stood still and held its hands and decided there was nothing it could do. Instead, and again with support of various institutions, the commission has pursued various measures. For example in 2011, under the leadership of Enderoi’s women, they appeared before the African Commission on Human and Peoples Rights adopted a resolution on the protection of indigenous people in the context of the wild heritage convention and the designation of Lake Bogoria as a world heritage site. Essentially, this resolution, urged the Kenyan government to ensure expeditious implementation of the Enderoi decision. The most important action by the community to date, involves the establishment of a management committee and a boundaries committee. The management committee has basically come up with a strategic plan, a comprehensive strategic plan that has been formulated with consultation of the community relating to how the community can manage Lake Bogoria Game Reserve if it is restituted back to them. The boundaries committee, on the other hand, established by the community, has done a lot of work in terms of determining the outer limits of Enderoi territory.
Lastly, in terms of systemic impacts, what impact has this decision had on other communities? I would say it has had huge impacts on how Indigenous people’s advocacy as conducted in the African context. For example, right now, another community filed a case before the African commission, similar to the Enderoi case, relating to the restitution of ancestral land. The commission is persuaded a by the strength of this case. Instead of hearing it itself, they based their finding on the challenges of non-implementation of the Enderoi case to date. The Commission itself referred this case to the African Court on Human and Peoples Rights. So that the other case is now sitting for hearing before the African Court on Human and Peoples Rights next April, making it again, one of the very first Indigenous rights cases to be heard by the African court. And that is largely because of the work, the groundbreaking work that was done in Enderoi. There have been numerous cases that are cited with approval the Enderoi case in various courts. Most importantly, the Enderoi case basically legitimized the application of the UN Declaration on the Rights of Indigenous People in the African continent. It made reference, in various chapters to the UNDRIP, which goes a long way to say that the resistance on the part of African states towards the notion of Indigenous people and towards the adoption of the UNDRIP in the period of 2007 has been pushed back because of the Enderoi decision.
I want to end there, and say how grateful I am again for being invited.
Gloppen, Siri. Courts and the Marginalized: Comparative Perspectives. Oxford: Oxford University Press, 2007.