By Miranda Jolicoeur, Guest Contributor
The effect of the African Commission’s ruling last month on indigenous land rights in Kenya is an important ruling, not only for the recognition of land rights among indigenous populations in Africa, but for a wide-scale acknowledgment of indigenous people and their marginalization. The ruling could also potentially help other marginalized groups in Africa, including women, because the Commission found that the discrimination against Kenya’s Endorois people violated the African Charter on Human and Peoples’ Rights because the discrimination emanated from colonial law and attitudes.
The African Commission on Human and Peoples’ Rights is mandated to promote and protect human rights throughout Africa by ruling on cases which require it to interpret the Charter on Human and Peoples’ Rights, a regional human rights instrument. On February 4, 2010, the African Commission found that Kenya violated the rights of the Endorois people when it threw them off of their land in order to develop the area for tourism. The Kenyan government had relied on laws from its colonial British past to prevent the Endorois people from outright owning their land and instead gave the power to local authorities whom could remove them from their land at any time.
The Commission ruled that the Kenyan government could not rely on colonial British law to marginalize its people. One of the foundational purposes of the African Charter, which the African Commission interprets in its rulings, is to eradicate all former roots and remnants of colonialism from the African continent. The Commission found that this marginalization of indigenous people was another harmful dark residue of colonialism.
While this ruling is a landmark ruling, enforcement is always a challenge. While, land reform has been attempted in Kenya and other parts of Africa, it is not always done with success. Even when the government reforms rule of law to allow for example women to own or inherit land, the law often does not affect the ground because tribal elders still call the shots in their communities (This is only one in a myriad of reasons legislation doesn’t always affect the ground). While enforcement in the short and long term is of course a significant issue, the ruling by itself is an important recognition of indigenous people in Africa, which have long been discriminated against.
The term “indigenous” has often been ignored in Africa because the vast majority of the African population is considered indigenous, unlike in other countries such as Australia, the United States, and Latin America. African populations that are considered indigenous are most often those that have ties to the land through their cultural, economic, and traditional livelihoods. They are often nomadic pastoralists, hunters and gatherers, or practice traditional forms of dry-land horticulture. Additionally, groups such as the San and Pygmy people have unique physical features which make them stand out from other local populations. Governments and society have de facto discriminated against these indigenous groups in terms of access to land, education, and healthcare. Their lifestyles or in the case of the San and Pygmy people, their physical characteristics, have made them the target of de factor state and social discrimination. In conflict, these groups are specifically targeted. During the 1994 genocide in Rwanda, not only were Tutsi’s victims, but Hutu militias specifically targeted Pygmies as well.
The discrimination of indigenous peoples is a problem around the world. However, in Africa it has been hard to lay the foundation for recognition of indigenous peoples, never mind promoting the human rights of such populations. The African Commission’s ruling is important as it recognizes indigenous populations in Africa and also the rights of these individuals. Furthermore, it sets precedence that the marginalization of these populations within Africa evolved from colonialism. It is therefore the duty of the state to eradicate such laws which allow for discrimination because Africa seeks to root out colonialism. While the African Commission’s or even Kenya’s ability to enforce its ruling is of course an issue, this interpretation of the African Charter is important. It at least gives some precedence of the recognition of indigenous people and their rights to land, which could be a starting point for claiming other important rights, such as education and healthcare. It also gives other marginalized people a basis to attack unjust rules based in colonialism. This could be an important strategy for women, especially for those cultures that lived in matriarchal societies prior to colonialism. This ruling has the potential to open a lot of doors, but it is also an important first step to recognizing the indigenous people in Africa and their rights to land. Hopefully, this ruling will make some difference in the lives of indigenous African people.
Miranda Jolicoeur is an International Liaison/ Research Analyst at the National Institute of Justice/U.S. Dept. of Justice (contractor). She is also an Associate Professor at the American Military University. She graduated with a J.D./M.A. in International Affairs from American University in Washington, DC. Please note that the views she expresses in this piece are her views alone and are not to be construed as the views of her employers.
