Centre for Minority Rights Development (Kenya) and Minority Rights Group International on Behalf of Endorois Welfare Council v. Kenya, also known as the Endorois case, was a ruling of the African Commission on Human and Peoples' Rights (ACHPR) surrounding the removal of the Endorois people from Lake Bogoria by the government of Kenya. The representatives of the Endorois alleged that being removed from their traditional land had violated the rights to culture, religion, property, disposal of natural resources, and development, as defined in the African Charter on Human and Peoples' Rights. The ACHPR found Kenya responsible for all counts of breaching the charter. The Endorois case was a landmark decision on indigenous rights, the first international ruling on the right to development, and the first ACHPR ruling on the definition of peoples or indigenous peoples.
The Endorois, a pastoralist community, historically lived around Lake Bogoria. The Kenyan government removed them from this land between 1973 and 1986 for the creation of a game reserve, which was later used for tourism and ruby mining. Despite promises by the government, the Endorois were only partially compensated, and the reserve did not share its revenue with the community. The Endorois Welfare Council (EWC) filed a case against the government with the High Court of Kenya in the 1990s, but the court ruled that the removal had been legal and the Endorois did not have a claim to the land. Considering it infeasible to pursue the case further in Kenyan courts, the EWC sought to file a case with the ACHPR. It was represented by the international NGO Minority Rights Group International and the Kenyan NGO Centre for Minority Rights Development, which filed a communication with the ACHPR in 2003, alleging that the removal of the Endorois had violated their rights.
The ACHPR admitted the case in 2005 and heard the case in 2009, issuing its ruling November 2009. The ACHPR ruled that the Endorois were an indigenous people and should be recognised as traditional landowners. It ruled violations of the rights to religion, as the Endorois had lost access to religious sites; property, as Kenya had not recognised Endorois land ownership or provided adequate compensation; natural resources, as the Endorois had the right to use and conserve their land; and development, as developments on the land had lacked the free, prior, and informed consent of the Endorois.
The ACHPR recommended that the Kenyan government grant the Endorois complete recognition and access to their land, as well as compensation. The government took little action to implement these recommendations, for which it faced disapproval from the ACHPR and United Nations bodies. Though the Endorois have been granted limited land access and revenue sharing, they have not been granted full ownership, . The Endorois decision influenced other cases involving land rights, such as the Ogiek case against Kenya.
Background Relocation of the Endorois
The Endorois people historically lived as pastoralists near Lake Bogoria and Mochongoi Forest in western Kenya. The lake is sacred in Endorois culture and was traditionally used for ceremonies. The government of British Kenya granted them indigenous land rights to the area of Lake Bogoria, which independent Kenya initially continued. Under the Trust Land Act, the land was held by the county governments of Baringo and Koibatek on behalf of the Endorois. The Kenyan government held the power to seize the land by eminent domain or under the terms of the Trust Land Act, which allowed it to "set apart" the land for any purpose without consulting the community.
In November 1973, a game reserve was created around Lake Bogoria and 400 Endorois families lost their land. The government said that the each Endorois family would be compensated with 3,150 Kenyan shillings (about 30 British pounds) and that part of the forest would be set aside for their resettlement. The government also promised that it would construct cattle dips and reservoirs and that the Endorois would benefit from 25% of revenue and 85% of employment from the game reserve. However, the community did not receive these benefits, and they were not resettled. Only 170 of the families that had been relocated received the promised 3,150 shillings, which were given in 1986. The recipients of this funding had expected it to be for relocation assistance, but the government said it was complete compensation for their land. More Endorois people were removed from the land in 1983 following an eviction notice labelling them as squatters.
After a meeting with Endorois leaders, President Daniel arap Moi ordered that land be allocated for the Endorois, and plots were established in the early 1990s; however, there were allegations of land grabbing. The Endorois held several protests and community events in following years. The failure of Moi's plan inspired the Endorois to file a court case.
Human rights in the African Charter Kenya is a party to the African Charter on Human and Peoples' Rights, a treaty of the African Union (AU) overseen by the African Commission on Human and Peoples' Rights (ACHPR). Provisions of the African Charter include freedom of religion (article 8), right to property (Article 14), right to culture (Article 17), right of peoples to "freely dispose of their wealth and natural resources" (Article 21), and right to development (Article 22).
The African Charter protects people's rights but does not include a definition of peoples. It also does not mention indigenous peoples as the concept was not commonly applied to Africa when the treaty was written. A definition of indigenous peoples of Africa was popularized by a late-20th-century global movement in which communities self-identified with the label based on a history of oppression or marginalisation. Due to this movement, the ACHPR created the Working Group on Experts in Indigenous Populations/Communities (WGIPC) in October 2000 to address the recognition of indigenous peoples of Africa and their rights. This working group defined indigenous peoples using four criteria: "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".
Other indigenous rights mechanisms, including the UN's Declaration on the Rights of Indigenous Peoples (UNDRIP) and jurisprudence of the Inter-American Court of Human Rights (IACtHR), described a right to traditionally owned lands and resources. Kenya abstained from voting on UNDRIP, and the country's laws did not recognise indigenous rights. The ACHPR recognised UNDRIP as a source of law in 2007. By 2010, the ACHPR had not made a decision regarding the application of people's rights to indigenous groups. The first ACHPR case to apply people's rights to a sub-national group had been SERAC v. Nigeria (2001), which had declared the Ogoni to be a people. Prior to the Endorois case, this had been the commission's most comprehensive decision about people's rights, although it did not elaborate on what qualifies a group as a people. The African Charter is the only human rights instrument to include the right to development. By 2010, the ACHPR interpreted the right to development as a people's right that that states must protect, and it had not decided a case about the right. This right was also defined in the UN's Declaration on the Right to Development, which urged states to enable the "active, free and meaningful participation" of humans in their development.
Pursuit of the case High Court of Kenya The Endorois Welfare Management Committee (later the Endorois Welfare Council) was created in 1985. In the mid-1990s, the EWC filed the case William Yatich Sitetalia, William Arap Ngasia et al v Baringo County Council. The case focused on the government's failed promise to share the revenue of Lake Bogoria Game Reserve with the Endorois. The case was brought to the High Court at Nakuru in 1998 and was dismissed. This case was brought to the court again in 2000 and was dismissed in April 2002. It ruled that the removal had been legal under the Trust Land Act as the establishment of the game reserve superseded the Endorois community's land claim and the government had compensated them. The court held that Lake Bogoria was a natural resource and declined to rule on the right to property, stating that the law should not protect land rights based on cultural claims. It also noted that the Kenyan Bill of Rights protected property rights for individuals but not for groups. The court said, "It is now too late to complain. In any case there is no proper identity of the people who were affected by the setting aside of the land to form the game reserve that has been shown to court".
The EWC appealed their case but considered it unlikely to succeed due to the Kenyan judiciary's inefficiency and lack of clarity about the right to appeal. After the High Court case, the government continued to sell the lands of Lake Bogoria, granting a concession to a ruby mining firm in 2002. This mining posed a risk of water pollution. The Kenya National Commission on Human Rights—an agency created in 2002 after the National Rainbow Coalition took power—stated its willingness to participate in discussions with the Endorois about their case.
Application to ACHPR
Minority Rights Group International (MRG), a British NGO supporting indigenous rights, first worked with the EWC during a pastoralist initiative led by the Centre for Minority Rights Development (Cemiride), a Kenyan NGO. In 2003, MRG took applications for a case with the ACHPR, and the legal strategy director of Cemiride, Korir Sing'Oei, suggested the Endorois case. The head of law of MRG, Cynthia Morel, said the case was noteworthy due to the Endorois community's strong coordination and their specific claim over land not claimed by other groups. The case filed with the ACHPR was different from the one in the High Court, rather than appealing the case.
Cemiride, supported by MRG and the Centre for Housing Rights and Evictions, filed a letter of intent on 22 May 2003. Cemiride and the MRG alleged that the Kenyan government had illegally expelled the Endorois people from their land. According to this communication, the Endorois people were divided, which violated their cultural integrity; relocated to semi-arid land, which denied them access to religiously, culturally, and economically important locations; and excluded from government decisions to sell the land, use it for tourism development, and grant concessions to ruby mining companies. Cemiride and the MRG alleged that the acts violated the African Charter's rights to culture, religion, property, disposal of natural resources, and development. This communication cited the ACHPR's ruling in SERAC v. Nigeria and focused on recently developed jurisprudence of indigenous rights. The Endorois sought the remedies of restitution of their land and financial compensation.
The complainants petitioned to admit the case in August 2003. Kenya argued that the Endorois case was ineligible for the ACHPR as there were further options within the national court system, with the case being pending at the Court of Appeal. The commission sided with the complainants, who said such options would be ineffective, noting that Kenyan law did not recognise collective rights. Another eligibility requirement was that alleged acts must have occurred after the ratification of the African Charter, as it did not apply retroactively. Although the removal of the Endorois had occurred before Kenya's ratification, the case was admitted under an exception for continuing violations.