CENTRE FOR MINORITY RIGHTS DEVELOPMENT (KENYA) AND MINORITY RIGHTS GROUP INTERNATIONAL ON

BEHALF OF ENDOROIS WELFARE COUNCIL V. KENYA

276/2003

FACTS:

- Endorois are a semi-nomadic indigenous community of approximately 60,000 people who for centuries have
earned their livelihoods from herding cattle and goats in the Lake Bogoria area of Kenya’s Rift Valley.

- They have established and practiced a sustainable way of life that is inextricably linked to their ancestral land.
They occupied and enjoyed undisturbed use of the land for more than 300 years, even under British colonial
administration. Endorois have a strong attachment to the area surrounding Lake Bogoria, which is both fertile land
providing pasture and medicinal salt licks for their cattle, and central to their religious and cultural practices.

- The community’s historical prayer sites, places for circumcision rituals, and other cultural ceremonies are situated
around Lake Bogoria. These sites were used on a weekly or monthly basis for smaller local ceremonies, and on
an annual basis for cultural festivities involving Endorois from the whole region.

- Endorois also believe that the spirits of all their community, no matter where they are buried, live on in Lake
Bogoria. The Mochongoi forest is considered to be the birthplace of Endorois and the settlement of the first
Endorois community.

- When Kenya gained independence in 1963, ownership of Endorois land, previously designated as a native land
under the management of the Native Lands Trust Board in London, was transferred to the relevant county council,
who held the land in trust and for the benefit of the Endorois community. Endorois remained on the land and
continued to hold, use and enjoy it.

- In 1973, however, the Endorois people were dispossessed of their land by the Kenyan government through the
creation of the Lake Hannington Game Reserve in the Central Rift Valley – subsequently renamed Lake Bogoria
Game Reserve in 1978.

- Endorois challenged their eviction with the Kenyan authorities. They were assured that 400 Endorois families
would be compensated with plots of fertile land, that the community would receive 25 per cent of the tourist
revenue from the Game Reserve and 85 per cent of the employment generated, and that cattle dips and fresh
water dams would be constructed. None of these terms was ever implemented: only 170 out of the 400 families
were eventually given some money in 1986, years after the agreements were concluded. This money was always
understood to be a means of facilitating relocation rather than compensation for Endorois’ loss.

- The Endorois community took their case to the Kenyan High Court in 2000. The High Court gave judgment
against them in 2002, finding that although Endorois were the former bona fide occupants of the land, their
customary claim to the land had been extinguished as a result of the designation of the land as a game reserve in
1973 and 1978. It concluded that the money given in 1986 to 170 families for the cost of relocating represented
the fulfillment of any duty owed by the authorities towards Endorois for the loss of their ancestral land. The High
Court also stated that it could not address the issue of a community’s collective right to property, and that it did
not believe Kenyan law should address the issue of special protection to a people’s land based on historical
occupation and cultural rights.

- The court also viewed the Lake Bogoria reserve as a national resource, so a community, such as Endorois, was
precluded from laying claim to any revenue from such an asset. Having had no success in the Kenyan courts, the
Endorois community – represented by CEMIRIDE and MRG took the matter to the African Commission in 2003.
ARGUMENTS:

ENDOROIS:

- Argued that Endorois are a ‘people’, a status that entitles them to benefit from provisions of the African Charter
that protects collective rights. Relying on previous case law,

- Argued that the African Commission had affirmed the rights of ‘peoples’ to bring claims under the African Charter.

- Further argued that the African Commission had already stated that, in the case of a large number of individual
victims, it may be impractical for each individual complainant to take a case before domestic courts. In such
situations, the African Commission can decide the rights of a people as a collective.

- They therefore argued that Endorois, as a people, are entitled to bring their claims collectively under those
relevant provisions of the African Charter.

- The Complainants alleged a breach of Endorois’ right to property, as guaranteed under Article 14 of the African
Charter, with regard to the continuing dispossession of their ancestral land.

- They argued that these property rights are derived both from Kenyan law and the African Charter, which
recognize indigenous peoples’ property rights to their ancestral lands. Furthermore, they argued that a provision
in Article 14 of the African Charter stating that any encroachment on land should be ‘in accordance with the
provisions of appropriate laws’ referred not only to Kenyan law but also to international law on the protection of
indigenous land rights.

- In relation to religious links with the Lake Bogoria area, the Complainants argued that the continual refusal of the
Kenyan authorities to give the community access to the religious sites to worship freely amounted to a violation of
Article 8 of the African Charter, which provides for freedom to practice religion without unnecessary restrictions.
As an indigenous community, Endorois’ religion is ultimately tied to the land; religious sites are located around the
lake, where they pray and carry out regular religious ceremonies. The lake area is the spiritual home of all
Endorois, living and dead, and it is where their ancestors’ burial grounds exist. They therefore claimed that the
refusal to grant them access was a violation of their right to practice religion.

- In addition, Endorois also claimed a violation of their right to culture protected under Article 17 of the African
Charter. They argued that the continuous restriction of their access to Lake Bogoria, a central element in Endorois
cultural practice, meant that they could not practice their way of life by holding cultural rites and celebrations that
distinguished them as a people from other similar groups.

- The Complainants also alleged a breach of Article 21 of the African Charter, which guarantees the right to natural
resources. They claimed that the lack of access to the medicinal salt licks and fertile soil essential for their
livestock violated their right to free disposition of their natural resources. This lack of access was further
aggravated by mining concessions on the land, which were granted without consultation and without any share of
the benefits passing to Endorois.

- The Complainants claimed a violation of their right to development under Article 22 of the African Charter. The
Kenyan government had failed to consult Endorois in the development process that saw the creation of the game
reserve, totally disregarding the need to ensure the continued improvement of the community’s well-being.
KENYA:

- The government argued that Endorois had no legal standing before the Commission, on the basis that they were
not a distinct community.

- They claimed the land around Lake Bogoria was occupied by the Tugen tribe, which is made up of four clans:
Endorois, Lebus, Somor and Alor. All these groups co-exist in one geographical area and share the same
language. The government therefore argued that it was incumbent on the Complainants to prove that Endorois
are distinct from the other Tugen groups.

- The government also argued that the Endorois community was no longer living in the Lake Bogoria area. They
claimed that most of the tribes around the lake, including Endorois, had moved from their ancestral land due to
other factors such as the search for pasture for their livestock and for arable land to carry out agriculture.

- They had been relocated by the government to facilitate development in the form of the creation of irrigation
schemes, national parks, game reserves and forests and for the extraction of natural resources.

- The government further claimed that it had instituted a program of universal free primary education and an
agricultural recovery program. The intention of these programs was to increase the household income of the rural
poor, including Endorois. The government also claimed that following the creation of the Lake Bogoria Game
Reserve, it had complied with the appropriate law by resettling the majority of Endorois in the Mochongoi
settlement scheme. This measure, they said, was in addition to the compensation they had already paid to
Endorois when the land was initially designated as a game reserve.

ISSUE:

Whether or not the Government of Kenya violated Articles 8, 14, 17, 21 and 22 of the African Charter

RULING:

- The African Commission found Kenya to be in breach of Articles 8, 14, 17, 21 and 22 of the African Charter.

o Article 8 provides for freedom of religion. By evicting Endorois from their ancestral lands, the Commission
found that the Kenyan government had denied them access to sacred sites that were essential to the
practice of their religion.
o Article 14: the right to property. The Commission found that Endorois had a right to legal ownership of
their land. By forcibly removing them, the government had infringed this right. They had provided no
lawful justification and had failed to provide compensation.
o Article 17: the right to culture. By forcing Endorois off their land and away from resources vital to the
health of their livestock, the Kenyan government had threatened Endorois’ pastoralist way of life. The
Commission found that in doing so, the government had denied their right to culture.
o Article 21: a right to natural resources. On the basis that the Kenyan government had granted mining
rights on Endorois land to a private company, and had failed to consult or share the benefits with
Endorois, the Commission found that the government was in breach of the Article.
o Article 22: a right to development. The Commission found that by evicting Endorois from their land and
failing to provide them with alternative land of sufficient quality to support their way of life and by failing to
compensate them, the government had infringed Endorois’ right to development.