Centre for Minority Rights Development and Minority Rights Group International on behalf of Endorois Welfare Council v Kenya (2009) - a decision of the African Commission

It is the decision in which the African Commission pronounced on the right to development, and the reason that is significant is a fact you should be able to state flatly: the African Charter is the only international binding human rights instrument to recognise that right.

It is also the decision in which the Commission elaborated on the rights of indigenous peoples in Africa - a subject the universal instruments barely touch.

The African system is the youngest of the three judicial or quasi-judicial regional human rights systems. It was created under the auspices of what is now the African Union; the Organization of African Unity had been established in 1963 at Addis Ababa on signature of the OAU Charter. Like the Inter-American system it is composed of two entities, a commission and a court.

The African Commission on Human and Peoples' Rights receives communications. Three features of its procedure are examinable:

• Exhaustion of local remedies. Individual communications are considered only after local remedies have been exhausted. Article 58(1) provides the exception, and it is worth quoting: "when it appears after deliberations of the Commission that one or more communications apparently relate to special cases which reveal the existence of a series of serious or massive violations of Human and Peoples' Rights, the Commission shall draw the attention of the Assembly of Heads of State and Government to these special cases."
• State reporting. By Article 62 each State Party must submit a report every two years on the legislative or other measures taken to give effect to the rights and freedoms recognised and guaranteed by the Charter. Compliance is relatively low compared with the United Nations systems.
• Reporting to the Assembly, and thematic rapporteurs. The Commission submits a report of its activities to each ordinary session of the Assembly of Heads of State and Government, and has appointed thematic rapporteurs - for instance a Special Rapporteur on Extrajudicial, Summary or Arbitrary Executions and a Special Rapporteur on Prisons and Conditions of Detention.

The African Court on Human and Peoples' Rights was established through a Protocol to the African Charter, adopted in 1998 and in force from 2004, to complement the protective mandate of the Commission. Its decisions are final and binding on States Parties to the Protocol. It consists of 11 judges, elected by the Assembly of the African Union from candidates nominated by member States, sitting in their personal capacity, no two being nationals of the same State, with due consideration given to gender and geographical representation.

The Kenyan government forcibly removed the Endorois people, an indigenous community, from their ancestral lands around the Lake Bogoria area of Kenya, without proper consultation or compensation. As a result the Endorois could not access their religious sites in the Lake Bogoria region. The complainants alleged that this violated the African Charter.

The Commission decided the communication on the merits in favour of the Endorois and, in doing so, pronounced on the right to development under the Charter and elaborated on the rights of indigenous peoples in Africa.

The Charter is different from the European and American Conventions in kind, not merely in detail, and this case shows why. Four features:

Peoples' rights, not only individual rights. The Charter's very title says Human and Peoples' Rights. Article 19 provides that all peoples shall be equal, that they shall enjoy the same respect and have the same rights, and that nothing shall justify the domination of a people by another. Article 20 gives all peoples the right to existence and to self-determination. The Endorois complaint was brought on behalf of a people, and there is no equivalent standing in the European system.

The right to natural resources. Article 21 provides that all peoples shall freely dispose of their wealth and natural resources, in the exclusive interest of the people, and that "In case of spoilation, the dispossessed people shall have the right to the lawful recovery of its property as well as to an adequate compensation." That is the Charter's answer to dispossession, and it fits the facts of this case exactly.

The right to development. Article 22 provides that "All peoples shall have the right to their economic, social and cultural development with due regard to their freedom and identity and in the equal enjoyment of the common heritage of mankind", and that "States shall have the duty, individually or collectively, to ensure the exercise of the right to development." This is the third-generation right made binding, and it is the provision on which the Commission pronounced.

The environment. Article 24 provides that "All peoples shall have the right to a general satisfactory environment favourable to their development" - again a solidarity right in binding form.

The Charter's preamble ties these together and is worth having, because it states the indivisibility thesis in treaty language: it records the conviction that it is henceforth essential to pay particular attention to the right to development, "and that civil and political rights cannot be dissociated from economic, social and cultural rights in their conception as well as universality and that the satisfaction of economic, social and cultural rights is a guarantee for the enjoyment of civil and political rights".

Follow the structure and the case becomes easy to reproduce.

The community was displaced from ancestral land. That engages Article 21, because the land and the resources of the Lake Bogoria area were the wealth of the Endorois people, and it engages Article 20, because a people removed from the territory that defines it is deprived of the conditions of its existence as a people.

There was no proper consultation and no compensation. Consultation is the procedural safeguard; compensation is the substantive one. The Charter provides for the second in terms in Article 21, and the failure of the first is what makes the removal arbitrary rather than a lawful acquisition for a public purpose. Compare Chameli Singh, where land was acquired for public housing and the Court, while allowing the acquisition, examined the compensation procedure. The two cases raise the same question - when may a State take land from those living on it? - and give it the same structure of answer: purpose, procedure, compensation.

The loss of access to religious sites turns a property claim into a cultural and religious one, which is why the right to development, framed in Article 22 as economic, social and cultural development with due regard to freedom and identity, was the right the Commission found most apt.