Felix M Ndahinda
 LLM (Lund, Sweden) PhD (Tilburg, The Netherlands)
 Assistant Professor, Tilburg Law School, The Netherlands; Senior Lecturer, University of Rwanda
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 Edition: AHRLJ Volume 16 No 1 2016
  Pages: 29 - 57
 Citation: FM Ndahinda ‘Peoples’ rights, indigenous rights and interpretative ambiguities in decisions of the African Commission on Human and Peoples’ Rights’ (2016) 16 African Human Rights Law Journal 29-57
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The evolving jurisprudence of the African Commission on Human and Peoples’ Rights displays ambiguities in interpretations of the peoples’ rights provisions of the African Charter on Human and Peoples’ Rights. The article comparatively examines the Endorois and Southern Cameroon decisions adopted in 2009 in an effort to uncover the challenges faced by the African Commission in contextually applying peoples’ rights provisions of the African Charter to particular collectives. In the Endorois case, the Commission made a positive finding on violations of applicants’ claims of violations of their collective rights as an indigenous people. Conversely, in the Southern Cameroon case, the Commission made a negative finding on the applicants’ arguments for remedial secession, using more or less the same collective rights provisions of the African Charter. The article contextualises the two cases in critically examining the African Commission’s legal reasoning in both decisions.

Key words: indigenous; peoples; African Commission; jurisprudence; ambiguities

1 Introduction

More than three decades since the adoption of the African Charter on Human and Peoples’ Rights (African Charter),1 uncertainty persists over the boundaries of applicability of ‘peoples’’ rights provisions codified in the instrument. In 2009, the African Commission on Human and Peoples’ Rights (African Commission) concluded its deliberations in two important communications that extensively invoked the peoples’ rights provisions of the African Charter. In Gunme & Others v Cameroon,2 the African Commission found numerous violations of applicants’ rights by the respondent, but made a negative finding about their central claims for self-determination in the form of secession. In the second case, presented in the name of members of the Endorois community against Kenya (Endorois case),3 the African Commission found violations of numerous collective rights. The Commission further made an unambiguous pronounce-ment regarding the identity of the Endorois as constitutive of an indigenous people. The Endorois decision has been celebrated widely as a landmark achievement in vindicating indigenous rights on the African continent.4 However, in these two and prior cases, the African Commission’s interpretation of peoples’ rights in the African Charter raises concerns over a lack of consistency and clarity.

The article discusses the Endorois and Southern Cameroon decisions with a particular focus on the African Commission’s legal reasoning on the applicability of the peoples’ rights provisions of the African Charter to particular collectives. These decisions are analysed against the backdrop of the work of the African Commission over the last two decades in promoting the recognition and protection of indigenous peoples’ rights within African states. Moreover, the analysis builds on the available rich body of literature on the contentious meaning of people(s) under international law and, specifically, under the African Charter.5 The inquiry examines the legal reasoning in Endorois and Southern Cameroon and goes beyond positivistic arguments by digging into the socio-historical and political realities underpinning the legal contentions adjudicated by African Commission in the two cases.

2 Peoples’ rights as indigenous rights in the Endorois case

2.1 Facts of Endorois in a nutshell

The Endorois case before the African Commission dealt with the eviction (the Kenyan government refers to relocation) of some 400 Endorois families from the area around Lake Bogoria (formerly Lake Hannington), after the area was gazetted in 1973 as a national park. In negotiating the resettlement process, the Kenyan authorities promised fertile lands to resettled families, compensation and a share of revenues and jobs generated by the game reserve. The Kenyan Wildlife Service - the authority directly responsible for the relocation - also promised 3 150 Kenyan Shillings (around 30 British pounds at the time) per family for the resettlement, but only 170 allegedly received the money.6 The petition was presented in the name of not only the 400 expelled families, but the entire Endorois community, and claimed to represent some 60 000 people.7 Since their eviction, members of the affected community had unsuccessfully initiated numerous actions aimed at seeking redress for their loss. They appealed to Kenyan authorities, including to then President Daniel Arap Moi, and, as political remedies proved unsuccessful, equally unsuccessful legal actions were initiated in Kenyan courts. More than three decades after the gazetting of their lands, the legal contentions over the eviction of members of the Endorois community were submitted on their behalf to the African Commission.

2.2 Collective identity of the Endorois

The communication was presented on behalf of the Endorois community by the Nairobi-based Centre for Minority Rights Development (CEMIRIDE) and London-based Minority Rights Group International (MRG). The applicants alleged violations of several provisions of the African Charter guaranteeing collective rights or individual rights with a collective dimension, including the right to practise religion (article 8); the rights to property (article 14); to culture (article 17(2)(3)); the right to free disposition of natural resources (article 21); and the right to development (article 22). In their submissions, the applicants ingeniously supported their case under the African Charter with relevant African Commission jurisprudence. Using the generous permissibility under the African Charter system to draw inspiration from domestic, regional and international human rights law and jurisprudence in interpreting African Charter provisions, they invoked numerous landmark rulings on indigenous collective rights.8 Since the Endorois represent one among more than two dozen communities in Kenya claiming an indigenous status,9 the African Commission specifically elaborated on regional, international and domestic rulings of relevance to indigenous rights.

2.2.1 The Endorois as a(n indigenous) people

In examining the merits of the case, the African Commission found that the Endorois constituted a people, an indigenous people, and were entitled to invoke the collective rights provisions of the African Charter.10 The legal reasoning over the Endorois as an indigenous people betrays an ambiguous marriage between the interpretative and the promotional mandates of the African Commission. The unequivocal application of peoplehood and indigenousness to the Endorois raised questions that remained unanswered in the decision. To avoid reductionist or essentialist constructions of the Endorois identity, one needs to contextually examine their claims against the backdrop of socio-political and historical dynamics in colonial and post-colonial Kenya.

The lack of terminological uniformity in references to the Endorois, the Tugen and the Kalenjin throughout the African Commission’s decision displays either a disregard for the historicity of these collective attributes, or a lack of analytical and terminological rigor. The Endorois are described in some sections of the communication as a ‘clan’ of the Tugen (sometimes Tungen11) ‘sub-tribe’, which itself is part of the Kalenjin ‘tribe’.12 However, elsewhere the communication refers to the Endorois as a sub-tribe or a clan of the Tugen tribe.13 Hence, while the term ‘clan’ is used only in reference to the Endorois; ‘sub-tribe’ is used for both the Endorois and the Tugen.14 The same applies to the concept of tribe, used in reference to both the Tugen and the Kalenjin.15 Elsewhere, the Endorois decision is referred to as ‘this judgment’.16 These errors and considerations clearly suggest that the deliberations about and the drafting of the Endorois decision could have received better attention.

In submissions to the African Commission, Kenya contended that the Endorois could not be regarded as a people since they were only a clan of the Tugen sub-tribe, the latter being itself part of the larger Kalenjin tribe or group.17 The state invoked linguistic and other similarities between the various clans making up the Tugen (sub-) tribe.18 In essence, Kenyan authorities disputed the autonomous existence of the Endorois as a cultural and socio-political community distinct from the related Tugen and Kalenjin groups, and challenged the applicants to prove the contrary. Arguably, the position of the government was in line with the 1989 and 1999 official censuses that included tribal/ethnic data whereby only the Kalenjin were listed as one of more or less 43 ethnic communities constituting the population of Kenya.19 The African Commission’s ruling that the Endorois constituted a distinctive identity did not answer the above, more than semantic, considerations (as will be discussed in the next section).

Moreover, the decision leaned on the subjective criteria of self-identification by the Endorois and their relative marginality in reaching the conclusion that they were both a people and indigenous. In reaching the conclusion that the Endorois are an indigenous people, the African Commission rehearsed the mantra of indigenous collective rights norms, jurisprudence and discourses as elaborated by national and regional systems (particularly the Inter-American human rights system), and international institutions or networks.20 Since 1999, the African Commission has initiated an active campaign aimed at securing the recognition and protection of indigenous peoples’ rights by African states.21 Proponents of this dynamic sought to invoke the ‘peoples’ rights’ provisions of the African Charter in drawing the world’s attention to the plight of claimant indigenous peoples.22 Composed essentially of members of (former) hunter-gatherers and pastoralist communities, but also some (small-scale) farmers and fishers, communities enrolled in the global indigenous movement claim historical marginality as well as an attachment to ancestral lands and lifestyles threatened by the modernisation project of the post-colonial state. The import of the indigenous rights legal framework in the African human rights regionalism, with a determinant role played by the Copenhagen-based International Work Group for Indigenous Affairs, was a result of a dynamic of globalisation of this form of identification since the early 1980s.23 The promotion of indigenous rights within African human rights regionalism became an integral part of the African Commission’s agenda, ever since the establishment of its Working Group on Indigenous Populations/Communities in Africa in 2000.24

Remarkably, the indigenous rights narrative in the Endorois decision contrasts with the language of the Ogoni decision rendered in 2001 where the African Commission found violations of the applicants’ collective rights as a people without any recourse to indigenous rights precepts.25 Since both groups are enrolled in the global indigenous movement26 and indigenous rights are not, after all, explicitly recognised in the African Charter, the focus on the indigenous attributes of the Endorois can only be read against the background of ongoing efforts by the African Commission to promote this particular legal framework on the continent.

2.2.2 On the peoplehood attribute: Endorois, Tugen or Kalenjin?

The undeniable legitimacy of the Endorois’ demand for redress for land spoliation does not preclude an examination of their identity claims under the lens of identity politics in Kenya. Early colonial anthropology made limited reference to the Endorois as a specific identity. In fact, studies have struggled to clearly differentiate members of what used to be known as Nandi-speaking groups before they became ‘Kalenjin’.27 It is documented that ‘”Kalenjin” is ‘a corporate name for the ‘Nandi-speaking tribes’ 28 adopted since the mid-1940s and early 1950s and popularised by elites from these communities. Prior to the adoption of the federative Kalenjin identification, studies are in many ways vague in their attempts to establish historical linkages and differences between the various ‘Nandi-speaking’ and, to some extent, neighbouring groups. The difficulty to delineate - territorially, linguistically and socio-politically - the various sub-units of the Nandi/Kalenjin community is rooted in the inherent dynamism of identification with a particular ethno-cultural community.29 More generally, relevant historical and ethno-anthropological studies have displayed the fluidity of boundaries of ethno-cultural identification.30

According to the 2009 population census, the Kalenjin are the third largest ethno-cultural group in Kenya - next to the Kikuyu and the Luhya - with a total population of 4 967 328 people.31 A combined reading of different sources provides the following main ‘tribal’ subdivisions of Kalenjin: Kipsigis (Lumbwa); Nandi (Chemgal); Tugen (Kamasia or Tuken); Marakwet (Marakweta); Keiyo (Elgeyo); Pokot (Suk); Terik (Nyangori or Elgon); Sebei (Sabaot); and Ogiek.32 These sub-units, generally referred to as Kalenjin tribes or sub-tribes, are further divided into several clans each.33 This classification is far from authoritative: It is subject to alternative groupings or nomenclatures.34 The status of tribe or ethnicity is attributed to the Kalenjin community as a whole or to the sub-units grouped therein, depending on whether the identification stresses commonalities or differences. In 2002, Anderson deplored the fact that Kalenjin history had received ‘only slight scholarly attention, and what research has been conducted has focused in the main upon Nandi and Kipsigis, with a concentration upon precolonial history ... and the impact of colonial conquest’.35

As contended by Kenyan authorities before the African Commission, existing ethnographic data considers the Endorois as one of the clans of the Tugen people.36 Other Tugen clans are the Arror, the Samor(r), the Lembus and the Pokor.37 Like the Tugen, other (sub-) tribes of the Kalenjin are each equally divided into several clans and age sets.38 Generally, most of these clans or (sub-) tribes of the Kalenjin can be demarcated territorially, linguistically and, indeed, culturally.39 Yet, only some of these identities are currently more active than others in asserting their differences vis-à-vis fellow Kalenjin. For instance, alongside the Endorois, the Sabaot, the Pokot and the Ogiek are equally involved in a global indigenous rights movement that essentially advocates special protection of particular groups on grounds of differential socio-cultural characteristics.40 In an ever-dynamic context, like Kenya, whereby national identity, clan, sub-tribe, tribe or communities regrouping several tribes are all notions in constant renegotiation, a clear determination of what exact societal unit constitutes a people indigenous to a specific territory is more than challenging.41

2.2.3 Ethnicity and indigenous identification in Kenya

Ethnic politics have been an integral part of the Kenyan socio-political landscape since the creation of the first political organisations in the run-up to the country’s independence.42 During the 1950s and 1960s, elites active in local and national politics engineered the unity of communities with ethno-cultural affinities in moves intended to boost their ethnic competitiveness at local and national stages.43 Conversely, the 1990s witnessed a ‘marked tendency in Kenya for communities to emphasise the fact that they are distinct’.44 In fact, members of Kalenjin communities were collectively identified or identified themselves with elites that most benefited from more than two decades of the rule of the Tugen-Kalenjin President Daniel Arap Moi from 1978 to 2002.45

The prevalence of contemporary indigenous rights activism in Kenya’s Rift Valley province should be examined against the backdrop of the politics of belonging that predates the country’s accession to independence. The Kalenjin-Maasai-Turkana-Samburu communities - once known as Kamatusa - have aggressively used different platforms to ensure their recognition as the authentic natives of the Rift Valley.46 They have constantly portrayed members of other communities, such as the Kikuyu living in the province but whose ‘homelands’ are in other provinces, as invading foreigners. Before they started framing their claims using the global language of the indigenous rights struggle for survival, political elites from the Rift Valley advocated majimboism (coined from Majimbo, the Swahili word for regional administrative entities) as the appropriate ‘basis for a devolved constitutional arrangement that would protect smaller “minority” communities from the dominance of larger communities’.47 Majimboism did not simply promote a decentralisation of power from Nairobi to the regions, but rather some form of federalism based on ethnicity.48 The most radical consequences of the implementation of majimboism would be for ‘all those who find themselves in the [regions] other than those in which their ancestors were living in 1895 when Kenya was born to return to the [regions] of their ancestors and abandon property without compensation’.49

Since the Kenyan struggle for independence, political debates have been characterised by a constant quest for a suitable constitutionalism.50 National political processes have been described as having undergone phases of ‘Africanisation’, ‘Kenyanisation’ (known also as ‘Kikuyunisation’) and ‘Kalenjinisation’.51 The lack of coherence, inclusiveness and accountability has somehow resulted in an institutionalisation of ethnicity as a legitimate source of representation.52 After half a century of failed attempts to institute a state structure consisting of a federation of ethnicities, Rift Valley political operatives have found in the indigenous rights framework a powerful source of legitimacy in their efforts to shelter ‘ancestral territories’ against perceived invasions from members of non-native communities. The perceived lack of sufficient protection against invasions by members of other groups, coupled with ethnic politics, were the main grounds for the negative vote of all the Kalenjin-dominated constituencies on the proposed Kenyan Constitution backed by 67 per cent of the national population during the 4 August 2010 referendum.53

2.3 Substantive violations of the Endorois’ rights by Kenya
2.3.1 Temporal applicability of the African Charter

The African Commission found violations of all provisions invoked by the applicants. Since the communication invoked violations that took place over a long period of time, starting from a time before the entry into force of the African Charter, the African Commission needed to address the temporal applicability of the instrument. Central to the applicants’ case was the eviction from ancestral lands around Lake Bogoria since the 1973 gazetting of the area as a game reserve.54 The sequence of facts as summarised in the communication focuses on the adverse consequences of the creation of the Lake Bogoria Game Reserve for the Endorois community. The applicants further extended their claims for redress to their eviction from the Mochongoi forest.55 The Kenyan government argued that the eviction from the Mochongoi forest - renamed Ol Arabel forest56 - took place in 1941 under colonial administration.57 The Kenyan authorities further contended that this particular claim was not part of the issues addressed by domestic courts and could, therefore, not be addressed in first instance by the African Commission.58

The Commission agreed with the applicants that ‘Lake Bogoria and the Monchongoi [sic] forest are central to the Endorois’ way of life and, without access to their ancestral land, the Endorois are unable to fully exercise their cultural and religious rights, and feel disconnected from their land and ancestors’.59 The African Commission decision requested the Kenyan government, among others, to (a) recognise the Endorois’ ownership of, and restitute, their ancestral land; and (b) grant them ‘unrestricted access to Lake Bogoria and surrounding sites for religious and cultural rites and for grazing their cattle’.60

Clearly, the acts of eviction, the non-payment of adequate compensation and initial restrictions to access to or use of the gazetted areas surrounding Lake Bogoria took place before 1992 when the African Charter entered into force for Kenya following its ratification of the instrument. Undoubtedly, the various restrictions to access to or use of ancestral lands adversely affected and continue to affect the Endorois and might, arguably, be interpreted as constitutive of ‘continuous violations’.61 However, a closer examination of the case and of the decision shows that the awarded remedy (land restitution, the recognition of land ownership and unrestricted access to ancestral land) challenges acts that mainly took place prior to the entry in force of the African Charter. A revealing example is the African Commission’s finding under article 8 of the African Charter that the forced eviction of the Endorois from ancestral lands constituted a violation of their right to religious freedom,62 despite the fact that the actual act of eviction was completed by the time of the entry in force of the African Charter.63

The theory of applicability of the African Charter to continuous violations does not explain how the instrument can be used retrospectively to determine violations of an instrument not in force at the time of the facts. The decision suggests that it is possible to invoke the protective mandate of the African Charter in respect of facts that took place any time in the past, as long as one proves that they have contemporary repercussions that may be interpreted as (continuous) violations of the instrument. As far as the applicability of the African Charter is concerned, there appears to be no difference between the eviction of the Endorois by Kenyan authorities since the 1970s and the Maasai moves by British authorities at the beginning of the twentieth century, since the latter are still central to contemporary indigenous discourses of the Maasai in Kenya.64 If the latter were to be considered as continuous violations of the African Charter, there would be virtually no temporal limits to the notion of continuous violations, as the list of historical wrongs with contemporary repercussions is potentially endless.

2.3.2 Freedom of religion and the Endorois’ beliefs

The African Commission relied on submissions by, and testimony of, the applicants in finding a violation of their freedom of religion through a denial of access to the reserve.65 It failed to elaborate on the contemporary significance of the Endorois’ traditional religious practices. More specifically, the religious dimension of rituals such as circumcision, marriage and initiation is not self-evident. In spite of local variants, many traditional African societies hold these customary rituals.66 The commendably broad interpretation of freedom of religion by the African Commission was nonetheless unconvincingly applied to the Endorois case. Since the pre-colonial, but mostly during the colonial and post-colonial eras, many African societies have adhered to institutionalised religions originating from other continents, such as Christianity and Islam.67 The domestication of these other forms of beliefs in some cases tolerated the subsistence of traditional beliefs but, in many others, was accompanied by the erosion of the latter.68 Accordingly, these considerations should have dictated a deeper examination by the African Commission of the contemporaneous reality of the Endorois community’s traditional practices, their religious character and the sacredness of reserve sites. Such in-depth examination is even more vital in light of the retreating boundaries between myth and reality in reconstructions of the Endorois’ historical settlement around Lake Bogoria.69

2.3.3 Land and cultural rights of the Endorois

Land rights are central to the communication since, besides compensation for their losses, the applicants before the African Commission primarily sought the restitution of their land, ‘with title and clear demarcation’.70 The Commission found that the eviction of the Endorois and the denial of their access to ancestral land represented violations of both relevant Kenyan laws and the applicable provisions of the African Charter relating to land rights. Under Kenyan law applicable at the time of the eviction, the land occupied by the Endorois was considered as trust land and administered by the Baringo and Koibatek County Councils for the benefit of the traditional occupants.71 The facts of the case clearly show that the Kenyan authorities did not comply with established procedures for the alienation of trust land, namely, registration to a person other than the County Council or an Act of Parliament providing for the County Council to set apart an area of trust land,