Mukesh Kapila

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Strengthening Rights Protection for Indigenous Peoples

Geneva, 10 December 2012 - Human Rights Day Address by Professor Mukesh Kapila, Chair, Minority Rights Group International

On this year's Human Rights Day, the spotlight is on the rights of all people including those who are particularly marginalised and disadvantaged - to make their voices heard in public life and to be included in political decision-making.

The indigenous peoples' movement has gone from strength to strength over the last decade. We have seen the establishment of the UN Permanent Forum on Indigenous Issues (2002) and the agreement of the UN Declaration on the Rights of Indigenous Peoples (2007), both of which have made a huge contribution to the international profile, and the practice, of indigenous rights. Just as importantly, national governments, particularly in Latin America, have made substantial progress in recognising indigenous rights and we have even seen the first indigenous President, in Bolivia's Evo Morales. All of this was the product of the struggle by indigenous peoples themselves, who for too long had their claims ignored or sidelined, both by governments and by international organisations.

Minority Rights Group International is the leading international human rights organization working to secure rights for ethnic, religious and linguistic minorities and indigenous people around the world. Our work offers overwhelming evidence that the inclusion of indigenous peoples leads to stronger, more cohesive societies. Conversely exclusion can result in instability, conflict, and in the most extreme cases, genocide. We have worked with over 150 partners across 60 countries for more than 40 years to promote peaceful coexistence and sustainable social change.

MRG is proud to have supported indigenous activists in their long campaign to have their rights recognised. In particular, we are pleased to have played a role in helping to support the indigenous movement in Asia in the 1990s and early 2000s. Despite accounting for over half of the world's indigenous peoples (UN figures), it may be fair to say that the Asian indigenous peoples movement was less prominent internationally than their North and South American counterparts in particular. For many years MRG sponsored indigenous activists from Asia to attend UN working groups, and then the Permanent Forum, and I am pleased to say that now they are amongst some the leading figures in the international movement. The problems on the ground remain profound, of course. In India, for example, the Adivasis were recognised as meriting particular protection as Scheduled Tribes under the Indian Constitution, but today continue to experience deep social and economic exclusion, as well as patterns of serious human rights violations, particularly in India's north-east.

In recent years, as the indigenous movement internationally has matured, our attention at MRG has focused on a new frontier: indigenous rights in Africa. Indigenous identity may be more contentious, or contended, in many African states than in the Americas, for example, where colonial history followed a different pattern. But across the continent there are marginalized peoples who have a very old customary attachment to the lands they inhabit, a unique culture and a strong sense of collective identity. One such people are the Endorois of Kenya.

Indigenous land rights in Africa: the Endorois case

The 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. Endorois land was originally appropriated by the Kenyan government in the 1970s to create the Lake Bogoria National Reserve.

MRG, and Kenyan NGO the Centre for Minority Rights Development (CEMIRIDE), lodged a complaint with the African Commission on Human and Peoples' Rights in 2003, claiming that the Kenyan government had violated the African Charter by failing to recognise and protect the Endorois' ancestral land rights and refusing to compensate the community adequately or grant restitution of their land.

When tourists flock to the Lake Bogoria National Reserve they have little idea of the high cost the Endorois have paid for their eviction. The vast majority of the community live in severe poverty, have little or no electricity, walk miles to collect water in an area stricken by drought, and are consistently dependent on relief food. Since the creation of the wildlife reserve, the Endorois have also been unable to gather the plants they once relied on for medicinal purposes, conduct religious ceremonies at their sacred sites or to visit the graves of their ancestors.

In a landmark decision in 2009, the African Commission found the Kenyan government responsible for violating the rights of the country's indigenous Endorois community, by evicting them from their lands to make way for a wildlife reserve. The decision, approved by the African Union in 2010, creates a major legal precedent by recognising, for the first time in the African regional system, indigenous peoples' rights over traditionally owned land and their right to development.

In another first for Africa, the Commission also found that in failing to provide sufficient compensation or suitable alternative land for grazing after the eviction of the Endorois, Kenya's government fell short of adequately providing for the community in the development process. Wilson Kipsang Kipkazi, of the Endorois Welfare Council (EWC), said "This decision is the result of a sustained campaign for the recognition of the Endorois as a distinct indigenous community and the restoration of our ancestral land."

At MRG we are hoping that the Endorois case will have the same effect in the African human rights system as was achieved in the Inter-American system with the Awas Tingni case in Nicaragua, on which the UN Special Rapporteur, James Anaya, worked for so long. But profound challenges remain. After many delays and a concerted campaign led by the Endorois Welfare Council with MRG's support, the Kenyan government has at last shown signs that it will implement the decision. A small area of land, strategically well placed immediately next to the entrance to Lake Bogoria National Reserve has been handed over to the Endorois by the local council and an enlarged cultural centre is being built on it which will, inter alia, house a 3D community map of the Endorois land. The community is now set to negotiate on detailed implementation issues including land access and compensation.

MRG has also brought another case which we expect to be the first indigenous land rights case before the new African Court on Human and Peoples' Rights. The Ogiek are a hunting gathering community, also from Kenya, who are facing eviction from their lands in the Mau Forest. The African Commission has now referred their case to the African Court.

The wider lessons

I have focused on the specific case of the Endorois to make a wider but particular point: so much still needs to be done to make the implementation of indigenous rights a reality. And this needs to be done with some urgency as several indigenous groups face threats that are close to being of an existentialist nature. The struggle of the Endorois demonstrates several lessons of value elsewhere.

  • First, leadership by the indigenous peoples themselves is vital to the success of their struggles. Help them with care so that their voices are amplified and not drowned.
  • Second, capacity building has more substance and is more sustainable when it relates to specific issues around which the concerned communities and their external well-wishers can come together to make a practical difference.
  • Third, mitigating damage and compensating for the wrongs done is fine as far as it goes but this is often too little and too late; would it not be better still to prevent and protect? Are our international, regional, and national mechanisms sufficiently well-formed for that task?
  • Fourth, international bodies such as the Commonwealth, African Union, and the United Nations are vital. This is so not just for setting norms and providing moral leadership but, in a globalised and interconnected world, providing a place where the desperate can go for fairness and justice when individual states cannot or will not honour the social contract with their own citizens.
  • Fifth, and not least, when an indigenous community - such as the Endorois in my case study - struggles against the odds to regain some of its rights, this serves to re-affirm the supremacy of human rights for all of society.

Thus, we are all victorious. Thank you - indigenous peoples - everywhere.

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