Toward a Right to Development? : Reflecting on the Endorois Decision

Last month, the African Commission on Human and Peoples’ Rights (“ACHPR”) handed down a decision on the Endorois peoples’ situation in Kenya. The decision not only marks the end of a nearly 40 year struggle by the Endorois people against the Kenyan government but it also heralds the increasing importance of the third generation human right to development.

Background

The Endorois people are a sub-tribe from central Kenya that were evicted from their lands near Lake Bogoria in the 1970s. The government relocated them to an area that limited their access to a clean water source, central sites of worship and other daily requirements for their pastoral way of life. The Kenyan government failed to provide compensation for this eviction but still proceeded to develop a Game Reserve on the Endorois former lands.

After exhausting all domestic avenues for remedy, the Endorois – with the help of Minority Rights Group International – brought their case before the ACHPR. The ACHPR is a quasi-judicial regional body that renders non-binding decisions aimed at protecting human and collective rights in Africa as envisaged by the African Charter on Human and Peoples’ Rights (“African Charter”). Although non-binding, I believe that the decisions from the ACHPR can be viewed as a snapshot of general zeitgeist. Indeed, until the African Court on Human and Peoples’ Rights starts delivering decisions regularly, the Commission’s decisions will remain an important and indicative source of normative shifts.

The ACHPR found Kenya to be in violation of Articles 1, 8, 14, 17, 21 and 22 the African Charter which included the rights to free practice of religion, property, education, culture, natural resources and development. (An interesting documentary detailing exactly how the Kenyan government infringed each right can be found here). The case (Centre for Minority Rights Development (Kenya) and Minority Rights Group International on behalf of Endorois Welfare Council v. Kenya ), is a landmark decision in that it is the first time an international tribunal has recognized the right to development. The Commission seemingly utilizes Article 22 – the right to development – as an umbrella to safeguard numerous human rights including the right to property, religion and culture. In recent years, the right to development has remained a backdrop legal right, therefore this decision can be seen as a judicial indication of the direction of this debate in the global South.

The Right to Development

While the discourse surrounding developmental issues has traditionally taken a political and economic approach, the advent of documents like the Declaration on the Right to Development as well as the African Charter has allowed the discourse to take on a legal dimension.  However, the right to development remains a controversial tool because it is a group right designed to serve the collective. But does the ACHPR go too far regarding the right? Is this right to development too broad and subsequently is it in danger of collapsing upon itself? Or is this decision a recognition that collective rights are needed in communal societies?

The ACHPR grounded its finding of a violation of the right to development on the government’s failure to guarantee effective participation and to guarantee a reasonable share in the profits of the Game Reserve (or other adequate forms of compensation) to the Endorois. While the decision reflects the ideals of the African Charter, it continues to raise key questions regarding the right to development.  The basis for the decision seemingly moves this judicial organ beyond its conventional role into a politicized corridor. The broadness of the right to development allows it to touch upon the overall development process including largely political aspects like financial allocation. Ostensibly, as a result of this political aspect, the exact intersection between the right to development and human rights will continue to be illusive. Though the Endorois decision is a general step forward for the right to development, it seemingly reinforces the disconnect between the right and human rights.

The political dimension means that whether the decision will translate into concrete results remains to be seen.

Future considerations

The decision from the ACHPR requires the Kenyan government to compensate the Endorois and allow them to return to their lands. This decision, though not binding, has potential and precedential value. As Clive Baldwin, co-counsel for the Endorois, has stated:  “The Endorois decision, the first of its kind, can help many others across Africa who have been forced from their homes.”  He continues by stating that “the African Commission is clear: the land where the Endorois historically lived is their property and must be returned to them.” However, it is important to take a measured approach in ensuring that this decision does not slip through the cracks and disappear. All the key actors must be engaged. The Kenyan government, the larger African community, the Endorois and NGOs are equally important pillars that must cooperate to ensure that the decision rendered by the Commission is adhered to. Particularly, the decision takes the significant step of spotlighting an indigenous group as a stakeholder in the developmental project. An approach that continues to underscore the importance of indigenous groups as well as the more widely recognized actors will likely reinforce this decision and it will subsequently serve as a key step towards a legally recognized right to development.