African Union Court ruling in four-decade-old land litigation sends ripples of excitement across the continent, writes EMMAN OMARI
Minority communities whose rights have been trampled upon in the East African region will be trooping to Banjul, The Gambia, following the landmark ruling by the African Commission on Human and People’s Rights, the supreme African Union court, which found the Kenya Government guilty of snatching the Endorois’ ancestral land.
The Endorois, a pastoral ethnic group of an estimated 60,000 people, fought unsuccessful battles through the Kenyan courts and finally decided to go to Banjul, where they have been battling with the Kenyan Government for the last seven years.
Already, the ruling is causing excitement and could open the floodgates for the disadvantaged people in the region. Pending before the court are two other cases from Kenya — the Wagalla Massacre, attributed to the Kenyan Army in 1984 in Wajir and the Nubians, who are seeking to reclaim land in Kibera, Nairobi.
In Uganda, the Karamajong, the Bakenye and Banyarwanda, who form minority groups and who have been agitating for their rights, could be preparing for the journey to Banjul, inspired by the Endorois ruling.In Tanzania, a group of bushmen, the Barbaig and of Albinos, who face a threat of extinction, might also make a trip to Banjul if they fail to be guaranteed proper protection by the Government in Dar es Salaam.
The case filed on the Endorois’ behalf by the Centre for Minority Rights Development and the Minority Rights Group International in 2003 sought judgment over a decision by the Kenyan Government to evict the Endorois from their ancestral land around Lake Bogoria and turn it into a game reserve 37 years ago.
The land in contention measures 197 square kilometres and is situated some 260 kilometres West of Nairobi.First, it was gazetted as Lake Hannington Game Reserve in 1973, then as Lake Bogoria Game Reserve the following year. The Endorois, who inhabited the land, were relocated to a scheme created in the neighbourhood.
Their battle in the Kenyan High Court failed when a judge ruled that “the law did not allow individuals to benefit from such a resource simply because they happen to be born close to the natural resource”.
Attempts to appeal in Kenya were frustrated for three years, when court administrators failed to issue a certified court ruling. The community’s representatives also pointed out to the Banjul court that members of the Endorois Welfare Committee and lawyers who were at championing the fight faced harassment from government.
The case cited five grounds which the Kenyan State violated Articles 8, 14, 17, 21 and 22 of the AU Charter.
The relevant Articles vest in all people on the continent and, by extension, the world, the right to practice religion; the right to property; the right to culture; Rights to free disposition of natural resources; and the right to development.
The African Court indicted Kenya after receiving oral and written evidence from both parties, including video tapes from the advocates of the Endorois at its sittings in Banjul.
They cited other landmark cases which have come before it such as the Ogoni of Ken Serawiwa fame in the exploitation of oil wealth in the Niger Delta. They also quoted extensively from the case of the Saramaka of Suriname in which the Inter-American Court of Human Rights ruled that the State had the responsibility to ensure that people rights to resources are protected.
The Kenyan Government in its arguments made several attempts to demonstrate that the Endorois are not a distinct community, that they have already been compensated, and that they were involved in decisions at every stage.
For instance, the State argued that the Endorois are among the four sub-clans of the Tugen, the others being the Lebus, Somor and Alor. And in 1986 the Government paid 170 out of the 400 families compensation of Sh3,150 each (£30 at the time), which it acknowledged was to facilitate their movement.
The State also argued that the group did not exhaust local avenues such as the Court of Appeal, intervention by their district commissioner and the County Councils of Koibatek and Baringo, who run the game reserve.
KNCHR Vice-Chairman Hassan Omar Hassan promises that the commission will pursue the matter “to the end”
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