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Background & Introduction
The issues that underpin the case between the Endorois Community and the Government of Kenya include the rights of the people to: property; culture; religion; free disposal of natural resources; and development. The Government of Kenya had dispossessed the Endorois Community of their ancestral land in its creation of the Lake Bogoria Game Reserve. This dispossession is hinged upon the fact that this land was categorised as ‘public property’ through the definition of the provision of the Trust Lands Act. The Community thus alleged that this development displaced them of their ancestral lands; they were inadequately compensated for property that they lost; their pastoral enterprise was disrupted; and their rights practice their culture and religion, rights to property and sustainable development were violated. These rights were usurped by the government’s claim that being under the category of Trust lands in the country, the land in question falls under public property that can be disposed off by the government for the purpose of development. In this way issues of adequate compensation and access to the Lake Bogoria Game Reserve, and indeed a claim to ownership lays with the Kenyan Government.
Having exhausted all local remedies according to the provisions of the African (Banjul) Charter on Human and Peoples’ Rights (African Charter) – following the ruling of the High Court of Kenya which dismissed the case of the Endorois Community – the Endorois Community (represented by the Centre for Minority Rights Development (CEMIRIDE) with the assistance of Minority Rights Group International (MRG) and the Centre on housing Rights and Evictions (CORE)) approached the African Commission on Human and Peoples’ Rights (ACHPR) on the 22nd of May 2003 seeking redress. According to the complainant, the actions of the Kenyan Government was in violation of the provisions of Articles 8, 14, 17 (2) & (3), 21 and 22 of the African Charter, and so the African Commission should declare this and impress upon the State to make Restitution for the expropriated land (i.e. recognise the property rights of the people and make adequate compensation to the Endorois people for all the loses suffered in the displacement.
Although the government proffered arguments denying that the Endorois community qualify to be referred to as a people and that the land was not really theirs legally, the African Commission ruled that the creation of the lake Bogoria Game Reserve on the Ancestral land of the Endorois amounted to series of violations of the peoples’ rights to: practice their religion since they were refused access to their religious sites to worship freely within the Lake Bogoria Game Reserve; property as dispossession of the lake Bogoria land area continued with less (or no) compensation; culture since the after effects of the creation of the Game Reserve meant the restriction of access to the people to perform their cultural practices in the land, and even more as some of these cultural sites are destroyed during the re-development of the lands; free disposition of natural resources since there was less access to vital agricultural and medicinal resources within the area; sustainable development since they people were not involved in the development plan targeted at their region despite their readiness to participate.
From all of this, the African Commission made a landmark declaration that the Kenyan government were in violation of the provisions of Articles 1, 8, 14, 17, 21 and 22 of the African Charter, and should thus recognise rights of ownership of the Lake Bogoria Game Reserve region to the Endorois and restitute their ancestral land. The Endorois community should have unrestricted access to Lake Bogoria and surrounding sites for religious and cultural activities and for grazing their cattle. Adequate compensation should be made to the community for all the loss suffered and royalties to be given to the Endorois from existing economic activities. The State should allow the registration to the Endorois Welfare Committee and engage in dialogue with the Complainants for the effective implementation of these recommendations. In all, the report on the implementation of these recommendations was expected within three months from the date of notification.
The dispossession of the Endorois land was as a result of the inadequacies of the Trust land Act and the constitutional framework designed to suit the interest of the State as opposed to the overall well-being of the minority groups within the State of which the Endorois Community was a part of. The involvement of the indigenous people as active stakeholders in development that concerns them is very important. There is also the need for States to be receptive of the need to pursue development bearing in mind the fact that peoples’ ways of life – culture and traditions – their property and their well-being can be sensitive to certain strategies, hence the need to engage with them. In other words, the series of Violations of the Human Rights of the Endorois Community can be explained in the lack of attention towards a Rights-Based Approach to Development since the indigenous minorities (including marginalised groups) were not incorporated into the development strategies. It was a top-down approach and thus culminated in the displacement of the people, the loss of their property and ways of life, and even the endangering of the environmental and physical health of the area due to the mining activities that lack proper Environmental Impact Assessment Mechanism. Thus the ruling of the African Commission resonates the need to emphasize that the Human Rights of people must not be sacrificed on the altar of economic gains/growth. Finally, the State has a duty to effectively ensure that the recommendations given by the African Commission are domesticated and implemented for the improvement of Human Rights situation in the Country especially with issues that concern minority groups.
 The Endorois are a distinct Kalenjin speaking community and are the original inhabitants of Lake Bogoria area within Rift Valley Province. The Community numbers approximately 400 families. Historically, they have been practitioners of a pastoralist lifestyle.
Contributor(s): This article was modified by George Hodge (4).