Rebecca Browning*¹

LLB, University of Cape Town

August 2011

 

The United Nations Office of the High Commissioner for Human Rights recently marked 2011 as the 25th anniversary of the UN Declaration on the Right to Development.ⁱ Unfortunately, the OHCHR acknowledged that the Declaration has had little significant practical impact:

 

‘Many children, women and men – the very subjects of development – still live in dire need of the fulfilment of their entitlement to a life of dignity, freedom and equal opportunity. This directly affects the realization of a wide range of civil, political, economic, social and cultural rights’.ⁱⁱ

 

Despite the office’s bleak conclusions on the state of human development, there is new jurisprudence emerging from Africa promoting the right to development as a justiciable human right. In a landmark decision, the African Commission on Human and People's Rights made a recommendation vindicating the right to development of the Endorois People. They alleged that Kenya had infringed their right to social, cultural and economic development under Article 22 of the African Charter on Human and People's Rightsⁱⁱⁱ in Centre for Minority Rights Development (Kenya) and Minority Rights Group International on behalf of Endorois Welfare Council v Kenya^iv issued in May of 2009.

 

The Endorois are a small group of indigenous Kenyans that inhabited the lake Bogoria area in central Kenya. They were evicted in 1970’s to make way for a nature reserve. Even though they had lived there since ‘time immemorial’, they were afforded no right of participation in the gazetting of the land as a nature reserve nor given adequate compensation for its expropriation. After being evicted from the fertile land around the lake, the Endorois were forced to live on arid land where many of their cattle died and they suffered hardships. In their recommendation after hearing from both the Endorois and Kenya, the Commission recommended the return of the Endorois’ lands. It also recommended that Kenya afford them the right to participate in their own development in the future. By doing so, the Commission took a controversial, yet firm stand in the promotion of indigenous and minority rights. This is particularly important as it ensures that states whose actions negatively affect access to commodities essential to the continued livelihoods of indigenous peoples are subject to scrutiny instead of being ignored – thus contributing to the emerging jurisprudence and scholarly debate on the right to development.

1. Contextualising the concept of development in a changing world order

To a Westerner, development is a term often used to distinguish the developed world with the developing or underdeveloped world. It is seen as an act of charity, such as when it’s used as ‘development aid’ to the developing world. To the development community, development can be seen as the use of social, economic and, more recently, legal mechanisms to effect change and achieve a higher standard of living in developing or underdeveloped states. As a discipline, it now encompasses such broad areas as human rights, infrastructure and planning, economics, political governance, health, a sustainable exploitation of the natural environment and international aid. It could thus be said that ‘development’ defies conceptual definition due to its broad scope, and remains subject to some controversy.^v

 

Previous approaches to development in developing states have often proven to be inadequate or narrowly focussed. Some concentrated on mere gains in Gross Domestic Product or increases in Foreign Direct Investment as primary outcomes as opposed to holistic social, economic and cultural development. Many programmes aimed to place facilities and infrastructure at the disposal of the poor instead of empowering self-development and choice.^vi These approaches may have ignored the complexities of culture, prolonged economic marginalization and capacity of the poor to take control of their own development when deciding on aid allocation and assistance programmes. Outcomes such as supporting democratic governance, expanding education and healthcare programmes and improving the sustainability of aid are now being seen as better approaches, as well as formulating novel means to achieve effective utilisation of and reducing dependency on aid.^vii Some also argue that participation by communities is an essential part of development and can lead to realization of other social, cultural and economic rights and freedoms through developing capacities for increased civic involvement and deliberative democratic processes.^viii

 

Economic theorists, for example, are now looking at the reasons for income disparities across nations and the reasons for success or failure for certain developmental interventions in trying to develop locally applicable development programs.^ix They take into account the different organisational structures between industrialised and developing states and push for organisational change of governments.^x The UN's Human Development Index has now been adapted to include a more holistic evaluation of human development including data on life expectancy, literacy, education and standards of living for countries worldwide. It is used to distinguish whether the country is a developed, a developing or an under-developed country, and also to measure the impact of economic policies on quality of life.

 

The World Trade Organisation (WTO) has special clauses that deal with the position and needs of developing countries and Least Developed Countries (LDC’s) which take into account their marginalised position in world trade and reliance on the export of primary goods.^xi The current round of trade negotiations, the Doha Round, has stalled as disagreements by developing nations over several issues, especially agricultural subsidies in the EU and the USA, which have negative effects on developing states reliant on agricultural exports, have not been resolved.^xii

 

There are now various international organisations and UN specialised agencies, such as the UN Development Program, World Health Organisation, the Food and Agriculture Organization, the Human Rights Council and the World Bank, which have attempted to develop programmes and policies to address poverty in developing states. International and regional organisations such as the New Partnership for Africa’s Development (‘NEPAD’) and the Southern African Development Community (‘SADC’) take more holistic approaches to development. As an example of initiatives taken to improve political governance NEPAD recently instituted the African Peer Review Mechanism to increase inter-state accountability in Africa.^xiii Development has become an important goal or aim in international economic relations and policy. As such, various agreements relating to trade^xiv and regional development^xv aim for more equitable trade relations, development and co-operation between states.

 

Thus it is clear that we are entering a new phase in our approach to development, where appreciation for the ability of persons to participate in their own develop and effective distribution of aid and a more coherent idea of what human development encompasses is evolving. As the economic and social theories are crystalizing into more concrete action plans, there is a need for a better discussion of the often neglected legal aspects of development. This work examines the nature of the right to development in light of the Endorois recommendation of the African Commission, which shed light on development as a human right as it emerged at regional African level, and is the product of a unique African jurisprudence. The recommendation should be seen for what it is: hope for a African solution to respect and participation of its peoples to their own development, which I will argue, also includes the right to be self-sustaining and the freedom to make their own choices, and not be ‘developed’ in the traditional sense of the word.

2. The Right to Development

In international human rights discourse, the Universal Declaration on Human Rights, International Covenant on Civil and Political Rights (ICCPR)^xvi and the International Covenant on Economic, Social and Cultural Rights (ICESCR)^xvii are seen as part of a universal Bill of Rights, which some have argued have become part of customary international law. The legal basis for the right to development (‘RTD’) evolution is contained in Article 1 of the ICCPR which states that ‘[a]ll peoples have the right of self-determination. By virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development.’ Furthermore it states that ‘[a]ll peoples may, for their own ends, freely dispose of their natural wealth and resources … In no case may a people be deprived of its own means of subsistence.’

 

After being discussed by academics and in the General Assembly of the UN, the GA adopted the UN Declaration on the Right to Development^xviii in 1986. It is not a binding convention but, as is often the case with soft law documents, can lead to further legally binding effects through treaties or the crystallisation of state practice and opinio iuris into customary international law.^xix The Declaration on the RTD is the only truly international document dealing with the right in detail.^xx It defines what the right entails and assures collective and individual achievement of the RTD. It places the prerogative of equal development with both individuals and states.^xxi The Declaration states that the individual is both subject and participant in their own development, and individual not take a passive role, but actively seek to better their situations in co-operation with the state and the international community.^xxii

 

Some have described the RTD as a ‘composite right’ due to its complex nature – very similar to the right to self-determination - as it involves the realization of both classic freedom rights as well as socio-economic policies, whose reasonableness may be tested in times of gross violation.^xxiii Some developed blocs, such as the European Union have asked for further clarity on the right and have contributed positively to the field.^xxiv Despite this, the right is still contested in both academic and political circles, with some questioning whether it is a right at all.^xxv Thus, some conclude that the right is too broad and difficult to quantify, can be inferred from other rights (the so-called ‘interconnectedness of rights theory’),^xxvi is difficult to litigate and is perhaps more of a moral principle than a true right.

3. The African approach to the Right

The African Union, constituted in 2000, replaced the Organisation of African Unity, which, due to its principle of non-interference was arguably largely ineffective in the promotion and protection of human rights in post-colonial Africa.^xxvii In its Constitutive Act of 2000 the AU committed itself to a policy of non-indifference^xxviii to abuses of human rights and the right to interfere in member state's internal affairs, further recognition of the full range of human rights, promotion of social, cultural and economic development, human centred-development and gender equality.^xxix The AU made human rights part of its programmes, activities and institutions - but concerns remain about the capacity of the AU to make a difference due to the lack of political will on behalf of many states to implement human rights standards in domestic law - as well as lack of resources available to human rights mechanisms and the non-binding nature and lack of implementation and oversight measures of many of the human rights instruments.^xxx

 

Signatories of the African Charter on Human and People's Rights^xxxi ('the Charter') have gone one step further than the UNGA regarding the RTD and are bound by treaty to protect, promote and fulfil the right to development under Article 22 of the Charter. The Charter is seen as a very progressive human rights instrument which recognises several controversial ‘third generation’ rights such as the right to development and a clean environment, certain group rights such as the right to self-determination as well as duties, such as the duty to promote the achievement of African unity. Interestingly, the African Charter was the first and is the only international human rights instrument that recognises the right to development as a discrete justiciable right, as now confirmed in the Endorois recommendation.

 

Some have argued that the RTD is promoted through other rights in the Charter such as the rights to self-determination, property, natural resources, life and some socio-economic rights. Many of these rights were vindicated in the Commission's 1996 SERAC & CESR v Nigeria recommendation which dealt with environmental and socio-economic rights of the Ogoni people in Nigeria.^xxxii The interconnectedness of rights principle states that a socio-economic right, such as the right to food is inherent in the protection of the rights to life, health and the right to economic, social and cultural development.^xxxiii

4. The Emergence of the Right to Development under International Law

The Universal Declaration on Human Rights (‘UDHR’) and the Charter of the United Nations^xxxiv form the basis of any analysis on the RTD and its genesis. Article 56 of the Charter commits all member states to take ‘joint and separate action in co-operation’ with the UN to achieve the purposes of Article 55 which includes human rights, ‘higher standards of living … and conditions of economic and social progress and development’ and ‘solutions of international economic, social, health and related problems’. Article 28 of the UDHR provides that: ‘[e]veryone is entitled to a social and international order in which the rights and freedoms set forth in this Declaration can be fully realized’.^xxxv Some have interpreted these articles to give rise to a duty to co-operate or a right to solidarity with other nations whose resources are inadequate or who are unable to provide social assistance to their own people.^xxxvi However, there is much theoretical discord amoung scholars regarding this deduction, with some doubting that such a duty exists in international law, due to the non-binding nature of the UN Charter and disputed customary international law status of the UDHR.

1. Theoretical discord

The RTD is a difficult right to place within the classic human rights dichotomy, which is often divided by ‘justiciable’civil and political rights and ‘non-justiciable’social, economic and cultural rights. However, the UDHR included both civil, political, economic and social rights as fundamental human rights. Many scholars and the UN in its 1993 programme of action also assert that ‘political and economic rights [are] interrelated and interdependent’.^xxxvii In fact, US President Roosevelt stated in 1944 that ‘true individual freedom cannot exist without economic security and independence’ and included ‘freedom from want’ as one of the four freedoms of the new post-war order.^xxxviii Eleanor Roosevelt, head of the US delegation during the drafting of the UDHR, was the first person to advocate the right to development as part of a global bill of rights when she stated that ‘one of the most important rights is the opportunity for development’.^xxxix

 

However a rift was created between civil/political and economic/social rights due to the differing political ideologies of the world powers during the Cold War period. The United Nations Human Rights Commission (HRC) drafted two conventions to resolve the standoff between the first and second world, and to appease the non-aligned blocs within the UN. The two conventions were the International Covenant on Civil and Political Rights (ICCPR)^xl and the International Covenant on Economic, Social and Cultural Rights (ICESCR).^xli Arguing for two separate covenants, states such as the US argued that social, economic and cultural rights were in fact not true human rights^xlii as they did not meet certain requirements – they did not attach to individuals as subjects of the right, there was no identifiable duty-holder or addressee of the right and was not justiciable in a legal forum.^xliii They argued that these rights depended on the creation of governmental policies for their realization and involved budgetary allocations that are beyond the scope of traditional human rights – involving positive duties on government expenditure. They argued that civil and political rights were classic human freedom rights as they entailed a negative duty refrain from infringement of an individual’s liberties – whereas socio-economic rights were merely non-justiciable ideals of a moral nature.^xliv

 

Such theoretical critiques of socio-economic rights have largely been discredited. It is now becoming accepted that the fact that a right attached to a collective such as a ‘people’ and not an individual is not an obstacle to the realization of human rights.^xlv The African Charter on Human and People’s Rights specifically recognizes certain group rights^xlvi and the UDHR recognizes that persons develop and live in communities. Thus, as long as rights are enforceable, there is no reason why collective or group rights are different from individual rights.^xlvii

 

The argument that economic and social rights require positive action and civil and political rights only abstention from interference in rights is patently incorrect - some civil and political rights can require positive action and vice versa.^xlviii Regarding the criticism that socio-economic rights have no identifiable addressee, it is clear that their identity would depend on the nature of the right as well as the circumstances surrounding its enforcement, and this qualification does not make the right invalid from the outset.^xlix Thus, as these criticisms have been refuted, scholars in some jurisdictions are trying to reconcile the idea of human rights as universal in application – but scepticism remains.

1. The Right to Development – Harmony returns

It took many years after the adoption of separate human rights conventions for the world to return to the original consensus that human rights are interrelated, universal and indivisible.^l It was hoped that the right to development would go some way in achieving such unity. However, the debate regarding the right to development has been highly politicized since its inception, as the right has become involved in debates regarding exploitation of the global South by the North, the demand for compensation for colonialism and unfair terms of trade (such as agricultural subsidies) that hinders developing states’ economic and social development.^li

 

As a short introduction, the right to development is known as a third ‘wave’ or ‘generation’ right as it is relatively new in terms of recognized international human rights.^lii Less than three years after its initial mention by Keba M'Baye, Chairman of the Commission on Human Rights in 1977, it had been proclaimed as a human right by the United Nations Educational, Scientific and Cultural Organization (UNESCO) and the General Assembly.^liii The first embodiment of the right in an international instrument was in 1981 in Article 22 of the African Charter on Human and Peoples' Rights.

 

The UN General Assembly adopted the Declaration on the Right to Development in 1986, expressing its concern about the ‘serious obstacles to development, as well as to the complete fulfilment of human beings and of peoples, constituted, inter alia, by the denial of civil, political, economic, social and cultural rights, and considering that all human rights and fundamental freedoms are indivisible and interdependent’.^liv

 

The right to development is classified as a group right and includes both a right to substantive improvements in living conditions as well as the right by groups to participate in developmental processes. The Declaration states that all human beings, individually and collectively, have a responsibility to secure the right to development, as well as their duties to the community with full respect for human rights and fundamental freedoms – thus all are addressees of the right.^lv Finally, the right to development is also meant to ensure international co-operation for the realization of its tenets, as was envisaged under Article 56 of the UN Charter.

 

Development is meant to be ‘an inalienable human right by virtue of which every human person and all peoples are entitled to participate in, contribute to, and enjoy economic, social, cultural and political development, in which all human rights and fundamental freedoms can be fully realized.’^lvi States have ‘the primary responsibility for the creation of national and international conditions favourable to the realization of the right to development.’^lvii This is because states play instrumental roles in creating the processes for realizing the right to development, but not necessarily substantive development itself which is often effected through private business and services. Thus ‘[s]tates have the right and the duty to formulate appropriate national development policies.’^lviii

 

However, the rift between the first world country’s support for civil and political rights and the second world’s support for socio-economic rights continued to influence international human rights and the RTD in particular.^lix Issues are still raised relating to the RTD’s legitimacy, justiciability and coherence^lx with some academics questioning whether it was a right at all.^lxi The developing states and the Non-Aligned Movement pushed for the recognition and clarification of the content of the right to development to resolve these problems, but the controversies surrounding the first and second generation rights kept lingering. A new consensus seemed to emerge in Vienna at the Second UN World Conference on Human Rights in 1993^lxii (the Vienna Declaration and Programme of Action) which states in Article 10:

 

The World Conference on Human Rights reaffirms the right to development … as a universal and inalienable right and an integral part of fundamental human rights. The human person is the central subject of development … States should cooperate with each other in ensuring development and eliminating obstacles to development. The international community should promote an effective international cooperation for the realization of the right to development and the elimination of obstacles to development.

 

The Declaration on the Rights of Indigenous Peoples^lxiii recognizes the right to development as an indigenous peoples' right. Article 23 states that ‘[i]ndigenous peoples have the right to determine and develop priorities and strategies for exercising their right to development. In particular, indigenous peoples have the right to be actively involved in developing and determining health, housing and other economic and social programmes affecting them and, as far as possible, to administer such programmes through their own institutions.’ In addition, some African states have included the right to development in their national constitutions, such as section 30 of the Human Rights chapter in the Malawian Constitution.^lxiv

 

In an attempt to further promote and clarify the right, in 1998 the HRC adopted a resolution on the right to development and recommended the UN Committee on Economic, Social and Cultural Rights (ECOSOC) establish an open-ended working group and an Independent Expert as a follow up mechanism to the Vienna Declaration. Under its mandate, the Independent Expert, currently Dr Arjun Sengupta, a prominent Indian economist, monitors progress in the implementation of the right to development.^lxv

World leaders adopted the Millennium Development Goals in the year 2000, which identify 8 goals for implementation by 2015.^lxvi The eight goals – ‘to reduce poverty, hunger and disease and promote gender equality, education, environmental sustainability and global partnerships – are interrelated and to achieve them requires a partnership between developed and developing countries. This is articulated in Goal number 8 which asserts the collective responsibility for international cooperation and assistance to achieve all the MDGs.’^lxvii Goal eight of the MDG encourages member states ‘develop a global partnership for development’ in the achievement of the right to development. The 2007 report by the Working Group^lxviii noted the need for the elaboration and implementation of a set of standards that could ‘evolve into a basis for consideration of an international legal standard of a binding nature, through a collaborative process of engagement.’^lxix

 

More recently, the ECOSOC, in their Statement on the Importance and Relevance of the Right to Development^lxx in May of 2011 emphasized ‘the close relationship and the complementarity existing between the International Covenant on Economic, Social and Cultural Rights and the Declaration on the Right to Development.’^lxxi The ECOSOC’s statement thus confirms the importance of the fulfilment of basic human needs as part of, and conditional to full human development and places the right to development in its proper place: as a broad, underlying right that complements and contributes to the fulfilment of other substantive rights through adequate participation and benefit sharing of other substantive rights.

 

Amartya Sen, in his book Development as Freedom,^lxxii sees development as a ‘process of expanding the real freedoms that people enjoy.’^lxxiii Sen views the expansion of freedom both as the primary end (the ‘constitutive role’) and the principal means (instrumental role) of development. The constitutive role of freedom ‘relates to the importance of substantive freedom in enriching human life’^lxxiv such as freedom from starvation, causes of early death as well as the freedom of literacy, opportunities for political participation and free speech. In the constitutive role, development entails expansion of these freedoms and Sen’s assessment of development would include such considerations. Thus for Sen, political participation and freedom of speech are constitutive of the right to development. The right to development thus should address deprivations of freedoms and these freedoms are ‘part and parcel of enriching the process of development’^lxxv The instrumental role of freedom ‘concerns the way different kinds of rights, opportunities, and entitlements contribute to the expansion of human freedom in general, and thus to promoting development’.^lxxvi

 

Sen distinguishes his view on development from ‘narrower views of development, such as identifying development with the growth of gross national product, or with the rise in the personal incomes, or with industrialization, or with technological advance, or with social modernization.’^lxxvii He defines development as ‘a comprehensive economic, social, cultural and political process, which aims at the constant improvement of the well-being of the entire population and of all individuals on the basis of their active, free and meaningful participation in development and in the fair distribution of benefits resulting there from.’ The UN Working Group on the Right to Development on its website states that ‘[t]he pursuit of economic growth is not an end in itself. The right to development puts people at the centre of the development process, which aims to improve “the well-being of the entire population and of all individuals on the basis of their active, free and meaningful participation in development and in the fair distribution” of the resulting benefits.’^lxxviii

 

Sen’s approach to development could be classed as a human rights based approach’’ to development which sees good governance, participation, accountability and transparency within states to inevitably have human rights dimensions, and human development as an aim cannot be adequately addressed without promoting basic human rights.^lxxix This approach to development was taken up in the UN Human Development Report of 2000.^lxxx The report notes that the full range of human rights – civil and political and social and economic – are needed for ‘equitable development and accelerated human development.’^lxxxi

5. The Communication before the Commission

The African Commission on Human and Peoples' Rights is a body of the AU established under Article 30 of the African Charter.^lxxxii It is mandated to promote human and people’s rights in the African continent. These duties include giving its views or making recommendations regarding human rights abuses to member state’s governments or the African Union upon receipt of a communication from a complainant. Although not a court per se, the Commission is a body that renders non-binding decisions, which the AU can then endorse, making it binding on the state.^lxxxiii The basic procedure it follows is that it receives communications from the parties before it and, after hearing all information it deems necessary, prepares a report which is then sent to the concerned states and which is also communicated to the Assembly of the of Heads of State and Government.^lxxxiv The Commission can then make such recommendations as it deems useful.^lxxxv

1. Substantive recommendations of the Commission

The case concerned some problems that are endemic in Africa: the fair allocation of resources (especially land) and respect for traditional ways of life. As a measure of the nature of the complexity of cases of this kind (aggravated by Kenya’s tardy responses to the facts alleged in the original communication) the Commission struggled with the case for some 6 years (2003 until 2009). The Commission recommended that Kenya return their lands and thus vindicate the Endorois’ cultural, developmental, religious, property rights and rights to natural resources only in 2009. However, the AU made the recommendation legally binding on Kenya in February 2010 by endorsing it at a meeting of heads of states and governments and thus showed its support for the finding of the Commission.

 

Briefly, the Communication was filed before the Commission by the Centre for Minority Rights Development, Kenya (CEMIRIDE) and Minority Rights Group International under Article 55 of the African Charter. They alleged that the Endorois were a community of approximately 60,000 people who had, prior to the gazetting of Lake Bogoria Game Reserve in 1973, established and practised a sustainable way of life which was inextricably linked to their ancestral land, where the Endorois had lived since ‘time immemorial’. They alleged that the Endorois were reliant on the lake’s resources for their continued livelihoods, including their access to the lake as a water resource, for grazing cattle, harvesting medicinal herbs, housing and cultural and spiritual activities.

 

They alleged that the Government of Kenya, in violation of the African Charter, the 1963 Kenyan Constitution and international law, forcibly and unlawfully removed the Endorois from their lands around the Lake Bogoria area.^lxxxvi The Endorois were thus forced to the periphery of the Reserve and became divided as a community. They alleged that the process of evicting them from their traditional land not only violated the Endorois community's property rights, but severed their spiritual, cultural and economic ties to the land.^lxxxvii Promises by the Kenyan government to provide sufficient compensation for the expropriated land and a share of the revenue and employment opportunities from the nature reserve were not honoured and the community became impoverished. In addition, the Kenyan government had allowed mineral prospecting on the land which would pollute the lake and surrounding pasture. The Complainants claimed that for the Endorois, access to the Lake Bogoria region was a right for the community and the Government of Kenya denied the community effective participation in decisions affecting their own land, in violation of their right to development.^lxxxviii In their submissions, they asked for restitution of their land, legal title and clear demarcation of the boundaries and compensation to the community for all the loss they suffered from the loss of their property and developmental and natural resources.^lxxxix

 

After unsuccessfully approaching the former Kenyan President, Mr Arap Moi, in an effort to negotiate the return of their land, the community approached the Kenyan courts. The High Court stated clearly that it could ‘not address the issue of a community’s collective right to property, referring throughout to “individuals” affected and stating that “there is no proper identity of the people who were affected by the setting aside of the land … that has been shown to the Court”.’^xc The High Court also stated that it did not believe Kenyan law should address any special protection to a people’s land based on historical occupation and cultural rights.^xci Unsatisfied with this result, the CEMIRIDE and MRGI approached the Commission in 2003 by writing a formal letter of intent regarding the submission of the Communication^xcii and the Commission decided to be seized of the matter.^xciii

2. The status of the Endorois People in International Law

As a preliminary issue that the Commission had to deal with, they had to determine whether the Endorois were the proper addressees of the right. Some rights in the African Charter, such as the right to development, attach to ‘peoples’ as their subjects. In arguing that they constitute a ‘people’, the Endorois alleged that they had lived in the Lake Bogoria area for centuries, and all neighbouring tribes had accepted them as bona fide owners. They had also continued to use and occupy the land under British colonial rule.^xciv However, Kenya asserted that the influence of modern society and the fact that some Endorois no longer live according to their own customs means that the Endorois could no longer be distinguished from broader tribal categories, and were thus not a people. This was rejected by the Commission, which also elaborated on the requirements for ‘peoples’ under the Charter by including a test of ‘distinctiveness’:

 

From all the evidence… the African Commission agrees that the Endorois are an indigenous community and that they fulfil the criterion of “distinctiveness.” The African Commission agrees that the Endorois consider themselves to be a distinct people, sharing a common history, culture and religion…is satisfied that the Endorois are a “people”, a status that entitles them to benefit from provisions of the African Charter that protect collective rights… [T]he alleged violations of the African Charter are those that go to the heart of indigenous rights – the right to preserve one’s identity through identification with ancestral lands.^xcv

3. The Right to Development

Under Article 22.1 of the Charter, the Endorois are afforded a right to their economic, social and cultural development. They alleged a violation of the RTD due to Kenya’s removal of their community for the creation of a Game Reserve in 1973, which led to a decrease in access to their developmental needs and Kenya’s failure to adequately involve the Endorois in the development process.^xcvi The Endorois asserted that the right to development required the fulfilment of five main criteria - development must be equitable, non-discriminatory, participatory, accountable, and transparent, with equity and choice as important, over-arching themes in the right to development.^xcvii

 

However, Kenya argued that ‘the task of communities within a participatory democracy is to contribute to the well-being of society at large and not only to care selfishly for one’s own community at the risk of others’^xcviii and argued that they had programmes for the education, agricultural development and income support of rural communities in place. They however noted that there was a decline in tourism in the area which affected local council’s budgets, making them unable to perform certain functions and thus not render all public services to communities.^xcix Kenya, in response to the claim that the Endorois were evicted illegally, argued the purpose of gazetting the game reserve was for the conservation of the fragile environment of the lake, a purpose which allows them expropriate land as part of a legitimate governmental policy. Regarding the allegation that they had inadequate participation in the decision, Kenya alleged that the Endorois were fully aware and informed of the gazetting and of the recent mining prospecting undertaken. They had an opportunity to participate in the development process through their elected officials on the local Councils ‘therefore presenting the community the opportunity to always be represented in the forum where decisions are made pertaining to development.’^c

 

The Commission began its legal analysis by setting forth its view that the right to development ‘is both constitutive and instrumental’ or useful as both a means and an end to achieving other fundamental freedoms. Thus the right to development can be used both as a lever to gain other rights as well as being an end in itself. As an illustration, Arjun Sengupta, the UN Independent Expert on the Right to Development, stated that development is not about providing houses but is instead about providing people with the ability to choose where to live. He stated elsewhere that ‘[t]he right to development unifies civil and political rights with economic, social and cultural rights into an indivisible and interdependent set of human rights and fundamental freedoms.’^ci

 

The Commission stated that ‘a violation of either the procedural or substantive element constitutes a violation of the right to development.’^cii In making this assertion, the Commission referred to the jurisprudence of the Inter-American Human Rights Court and Commission and UN human rights charter-bodies and treaty-bodies, such as the UN Working Group on Indigenous Populations, the Independent Expert on the Right to Development and the Committee on the Elimination of all forms of Racial Discrimination. The definition in the Declaration on the Right to Development states that ‘development is a comprehensive economic, social, cultural and political process, which aims at the constant improvement of the well-being of the entire population and of all individuals on the basis of their active, free and meaningful participation in development and in the fair distribution of benefits resulting there from.’ [My emphasis] The improvement is the end or goal of development, and the means of development have to be fair and participative. The Commission relied on the Declaration, even though it is not binding upon it to give effect to and elaborate on the right in the Charter.

 

Applying the principles of the right to development, the Commission found that Kenya had denied the Endorois both the procedural and substantive right elements of the right to development. Thus, their relocation to infertile, semi-arid land away from the medicinal herbs, salt licks for their cattle, adequate water and grazing and cultural and religious connection to the Lake did not improve their well-being as a people, an entire population or as individuals. The Endorois felt they had no choice but to leave their lands, which they argued contradicted the guarantees of the right to development in which freedom of choice is part of the right.^ciii If Kenya had allowed the conditions needed to facilitate the right to development as provided for in the African Charter, the development of the Game Reserve would have increased the capabilities of the Endorois instead of decreasing them as they would have had a possibility to benefit from the Game Reserve.^civ

 

The standard of participation that the Declaration on the Right to Development uses is ‘active, free and meaningful participation’.^cv The Commission states that ‘[t]he result of development should be empowerment of the Endorois community. It is not sufficient for the Kenyan Authorities merely to give food aid to the Endorois. The capabilities and choices of the Endorois must improve in order for the right to development to be realised.’^cvi The Commission stated that even though Kenyan government had said it had consulted with the Endorois community, it was of the view that the consultation was not sufficient. The Commission was convinced that the Kenya ‘did not obtain the prior, informed consent of all the Endorois before designating their land as a Game Reserve and commencing their eviction.’^cvii

 

The Commission further emphasised the requirements of consultation and benefit-sharing with the affected community and in considering the impact that the creation of the game reserve would have on the Endorois, the Commission found that Kenya was under a duty not only to consult with the affected community, but also to obtain their ‘free prior, and informed consent, according to their customs and traditions.^cviii This, the Commission found, had not been done, as Kenya had only consulted with a few members of the community. The Endorois Welfare Council, the representative body of the Endorois community, was also refused registration, thus denying the right of the Endorois to fair and legitimate consultation.

 

With regard to benefit sharing, the commission found that ‘the Endorois, as beneficiaries of the development process, were entitled to an equitable distribution of the benefits derived from the Game Reserve’.^cix Finding that Kenya had failed to include the Endorois in the development process, the Commission determined that Kenya had violated their right to development.^cx The Commission thus recommended restitution of their land; compensation for their loss, Kenya must engage in dialogue with the community, grant unrestricted access to Lake Bogoria, pay them royalties out of the Reserve income and give the Endorois employment opportunities in the Reserve.

4. Further analysis

The communication has also attracted attention from academics because of its recognition of indigenous people’s land rights. It is well documented that indigenous, customary or traditional peoples often struggle to assert secure property rights within their national legal systems - in some cases they only have statutory occupation licenses or live on land actually classified as state-owned or public land.^cxi They may also have to contend with the loss of their land through governmental or private forestry, mining and agricultural activities^cxii

 

The Commission made a conscious decision to vindicate the Endorois’ rights by recommending compensation and restitution of their ancestral lands and thereby signalling a new era of the protection of the rights of indigenous persons.^cxiii This is linked to their right to development, as much of the tangible, social and cultural resources vital to the Endorois’ continued development (grazing, water, cultural and religious sites of significance) are located on their land. Thus, security of tenure is a significant component of the right to development for indigenous peoples. The continued expropriation and attrition of their land by governments and outside parties should be seen as clear infringements of this right.

This new willingness to protect indigenous people’s rights under the African Charter can be attributed largely to the hard work of the African Commission’s Working Group on Indigenous Populations/ Communities^cxiv as well as many other indigenous rights scholars, activists and NGO’s who made the cause their own.^cxv One of the Working Group’s key areas of concern was the ‘vulnerable situation of indigenous populations on the African Continent which [was] compounded by forced evictions from forest areas to give way to commercial forest activities, parks and conservation areas.’^cxvi Their work has been rewarded now that the Commission has applied the right to development in a concrete case, giving it further legitimacy as a justiciable human right.

5. Analysis and Criticism of the Commission's Recommendation

Since the inauguration of the African Commission 25 years ago, its recommendations have been highly deferential to state sovereignty and the internal affairs of state parties. The Endorois case breaks new ground for the Commission and contributes significantly to the evolution of the international human rights jurisprudence. Firstly it indicates the willingness of the African Commission and the African Union to uphold the African Charter on Human and People’s Rights. The Commission takes a firm stand in the protection of minority and indigenous people’s rights, and instils confidence in the African Human Rights system. It reaffirms the justiciability of collective rights, and it contributes to the debate currently underway relating to land tenure security for traditional or indigenous groups.^cxvii

 

The application of the right to development in a concrete case assists in clarifying the ambit of the right. Here, the Commission applied the right negatively – the Endorois suffered a reduction in their development as a people, socially, culturally, religiously and materially, and were denied procedural developmental rights by having insufficient participation in the decisions regarding their land. This is significant – as Kenya only had to return what was legitimately the property of the Endorois and not provide services which developing countries struggle to provide due to resource constraints. This fact may go some way in allaying the fears of developed states about further demands on their resources or African governments fearful of the Commission dictating their development programs.

 

Kenya, like many African states, face massive land rights problems. The country has many different ethnic groups and during the election violence of 2007-2008, past grievances about land allocation was raised. It could be argued that the Commission may have entered into an arena where more caution should have been exercised. A broader discussion of land rights problems in Kenya could have been undertaken. In addition, it must be stressed that developmental programmes and the choices a government makes in implementing or creating a policy of development is a complex decision that should not be interfered with lightly. The right remains broad enough to allow for any cultural or fiscal circumstances of a state, but does create a high standard of involvement in developmental decisions by the people who affected by such decisions.

 

Unfortunately, barely any mention is made in the recommendation of environmental sustainability of the return of the Endorois to their lands, arguably an aspect of the right to development.^cxviii The Lake area may have conservation value and the remedy of full return of the land without some restriction may be inappropriate. It is acknowledged that community-driven conservation has seen success as an alternative to removing people from the protected land.^cxix It is seen by some to be the future of nature conservation as these groups have often lived sustainably in these areas for hundreds of years. However, the remedy that the Commission granted could have been considered more carefully, and the jurisprudence of the Commission in the Ogoni case dealing with environmental rights could have been of assistance.

 

Perhaps the main fear is that this recommendation could lead to a floodgate of litigation by minority and indigenous groups, which in some cases may lead to bypassing legitimate state programmes to resolve land issues or may prioritize indigenous groups’ development over national development as a whole. However, notwithstanding the possible perils of increased litigation by indigenous peoples, the government of Kenya has now promised to respect and implement the decision.^cxx The success of the recommendation is however, beyond the scope of this paper, although the promulgation although Kenya enacted a new constitution in 2010 which, along with better protection of basic human rights (instrumental to achieving the broader right to development), gives effect to and protects communal land rights.^cxxi This is encouraging as most of the Commission’s previous recommendations were largely ignored by state parties.^cxxii

 

6. Conclusion

Although the case adds considerably to the jurisprudence surrounding the right to development and its appropriate use of comparative cases and international jurisprudence should be commended, the right to development, as was opined in the 2007 Working Group on the Right to Development, still needs further elaboration and a set of standards for it to be utilised in other regional human rights systems needs to be formulated. Human rights can become a dead letter if the population is unable to access sufficient resources for their continued livelihoods (such as the many poor rural people living under communal or traditional tenure arrangements in Africa currently), states and other duty-holders need to ensure certain basic needs are met through the development of policies and programmes, which is the main focus of the right to development.^cxxiii Amartya Sen’s human rights based approach to development which is an inclusive and instrumental view of development as giving rise to other freedoms and vice versa, should be the jurisprudential foundation for further debate on this matter.

 

As a final word, High Commissioner for Human Rights Navi Pillay has called on governments and all concerned to seize the opportunity of the 25th anniversary to move beyond political debate and focus on practical steps to implement the Declaration. She stated that ‘we must ensure that people can benefit from their country’s natural resources and participate meaningfully in decision-making. These are the kind of issues addressed by the Declaration, which calls for equal opportunity and a just social order’.^cxxiv I would hope that her words are heeded and that all states take a more inclusive, community-orientated approach to development in future. The Endorois recommendation, although not perfect in many respects, should be analysed and used to further the already growing jurisprudence in this area.

 

Selected Bibliography

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Cerone, John ‘African Commission on Human and Peoples' Rights: Endorois Welfare Council v. Kenya Introductory Note’ 49 I.L.M. 858.

 

Donelly, Jack ‘In search of the unicorn: The jurisprudence and politics of the right to development’ 15 Cal. W. Int'l L.J. 473 1985.

 

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