The African Human Rights System

The Endorois case and Southern Cameroon case

Madalina Tifrea
 The African Charter on Human and Peoples' Rights is giving a new perspective for
regional human rights instruments, including the concepts of peoples and group rights in its
provisions.1 The Charter is giving emphasis and an unique innovative perspective for
indigenous peoples rights, the paradigm of the concept of “peoples” is redefined in this
document, giving a new perspective and a broad understanding on the protection of human
rights. Groups of people’s are given criteria in order to be identified and categorised as
indigenous groups, those criteria are the nature of occupation and utility of specific territory,
voluntary perpetuation of cultural distinctiveness, different community as identified through
self-determination and the capability to be recognised by other groups.2 The African
Commission has in its consideration the articles 19 to 24 of the African Charter on Human
and Peoples' Rights when working for defending the rights of indigenous peoples3, therefore
considering rights of indigenous peoples to their ancestral land, as being collective rights.

In the case Centre for Minority Rights Development (Kenya) and Minority Rights
Group International on behalf of Endorois Welfare Council v. Kenya, or the Endorois case,
the United Nations Special Rapporteur recognises the status of the Endorois people as
indigenous population in the state of Kenya, as being a “hunter-gatherer community whose
life holds remain connected to the forest […] have lived for centuries in their traditional
territory around Lake Bogoria, which was declared a wildlife sanctuary in 1973.”4. The
Commission acknowledges that the state of Kenya does not recognize in its constitution and
5
legal framework the rights of indigenous pastoralist and hunter-gatherer communities nor
ratified the International Labour Organization`s Convention no.169 on Indigenous and Tribal
Peoples of 19896 and has not adopted the UN Declaration on the Rights of Indigenous
Peoples7 thus violating Article 1 of the African Charter on Human and Peoples' Rights.

The complaint was made on behalf of the Endorois community by the Centre for Minority
Rights Development (CEMIRIDE) with the assistance of Minority Rights Group International

1
http://www.achpr.org/files/instruments/achpr/banjul_charter.pdf, African Charter on Human and
Peoples' Rights, accessed on the 14th of October 2017;
2
Christof HEYNS, Magnus KILLANDER, Compendium of Key Human Rights Documents of the
African Union, ABC Press, Cape Town, 2013; pp. 241-243 ;
3
Ibidem;
4
Idem, p. 244;
5
Ibidem;
6
http://www.ilo.org/dyn/normlex/en/f?p=1000:11300:0::NO:11300:P11300_INSTRUMENT_ID:31231
4, Ratifications of C169 - Indigenous and Tribal Peoples Convention, 1989 (No. 169), accessed on 14th of
October 2017;
7
https://www.iwgia.org/en/kenya, Indigenous peoples in Kenya, accessed on 14th of October 2017;

1
(MRG) and the Centre on Housing Rights and Evictions8. The case complaint alleges that the
Endorois community, composed of approx. 60.0009 individuals whom have lived for centuries
in the area of the Bogoria Lake have the right to inhabit the area as their ancestral land, the
violations of indigenous peoples rights resulting from the failure to adequately compensate
and consultancy of the Endorois community after their displacement, thus resulting in
disruptions of the communities’ way of expressing their culture, religious beliefs and overall
development of its people. Given the facts presented, the African Commission on Human and
Peoples' Rights has decided that the authorities of the state of Kenya have violated the rights
to freedom of religion, property, health and access to natural resources under the African
Charter on Human and Peoples' Rights10.

The Commission has considered, from the African Charter on Human and Peoples' Rights for
this case Article 8, the Endorois community being displaced from their religious sites, thus
being prevented from practicing and expressing their religious beliefs.11 Article 14 of the
Convention, guaranteeing the right to property is the main issue found in this case, even if the
Endorois peoples ancestral land is legally held in trust by the country councils they are
rightful to the land by collective form of ownership.12 The compensations for the displaced
individuals had been insufficient and not in concordance with the initial agreements prior to
the displacement, the Commission concludes.13 The rights to culture under Article 17 had
been found to be violated by the Kenyan authorities because the Endorois community had
faced restrictions to their ancestral land thus being denied of their spiritual and cultural
activities strongly linked to the Bogoria Lake area.14 Article 21, the right to disposition to
natural resources had been found to be violated, the Commission arguing that the Endorois
community is strongly relating for their development to the land`s natural salt resources and

8
http://minorityrights.org/law-and-legal-cases/centre-for-minority-rights-development-minority-rights-
group-international-and-endorois-welfare-council-on-behalf-of-the-endorois-community-v-kenya-the-endorois-
case/, Kenya: Protecting the Endorois’ right to land, accessed on 14th of October 2017;
9
http://www.achpr.org/files/sessions/46th/comunications/276.03/achpr46_276_03_eng.pdf, 276/03 :
Centre for Minority Rights Development (Kenya) and Minority Rights Group (on behalf of Endorois Welfare
Council) / Kenya, accessed on 14th of October 2017;
10
Christof HEYNS, Magnus KILLANDER, Compendium of Key Human Rights Documents of the
African Union, ABC Press, Cape Town, 2013, pp. 245-254;
11
Idem, p. 245;
12
Idem, pp. 246-250;
13
Ibidem;
14
Idem, p.251;

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fertile land, from this, joint with the incapacity of guaranteeing fair and equal compensations,
further occurring the violation of Article 22, the right to development of the Endorois.15

The recommendations made by the Commission for the Endorois Case, the Kenyan
authorities need to grant recognition of the communities` rightful ownership of their ancestral
land, guaranteeing unrestricted access to the land and monetary compensations to the
community as well as constructive dialogue for the implementation of recommendations
within three months.16

The Gunme and Others v Cameroon or the Southern Cameroon case consists in the
complaint of 14 individuals on behalf of people of Southern Cameroon, whom alleged
violations of Articles 2, 3, 4, 5, 6, 7.1, 9, 10, 11, 12, 13, 17.1, 19, 20, 21, 22, 23.1 and 24 of
the African Charter on Human and Peoples' Rights by the Republic of Cameroon.17 Before the
Commission the complainants argue continued and systematic marginalization by the
Authorities of the Republic of Cameroon and various forms of the violations of rights to life,
integrity of person, right to assembly, rights to representation and rights to a fair trial amongst
others.18

The Commission decided that multiple violations of human rights under the African Charter
have been violated, although the complainants do not have the right to succeed from the
Republic of Cameroon and thus form their own state.19 Issues in this case where raised by
time factors, given that the right to self-determination of the South Cameroonian people
where allegedly denied in 1961, outside the temporal jurisdiction of the African Charter and
thus the Commission`s.20 Concluding acknowledgements of the Commission in regard of the
recognition of the South Cameroonian people as a people with separate and distinctive
identity where made, although the right to self-determination under Article 20 has not been
found to be violated, motivating that territorial integrity is an issue which needs evidence of
massive human rights violations in order to take the form of exercising serf-determination
trough succession from the Republic of Cameroon.21 The Commission concluded that
violation of the right to make use of English language of the South Cameroonians under

15
Christof HEYNS, Magnus KILLANDER, Compendium of Key Human Rights Documents of the
African Union, ABC Press, Cape Town, 2013, pp. 252-254;
16
Idem, pp. 254-255;
17
Idem, pp. 275-280;
18
Ibidem;
19
Ibidem;
20
Ibidem;
21
Ibidem;

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Article 2 was violated, Article 4 had been violated through multiple cases of violations of the
integrity of persons under appurtenance to Southern Cameroon, conclusive evidences brought
to the case gives legitimacy to the allegations of violations of Article 5, Article 6, Article 7
and Article 11, based on the economic initiatives and measures of the Republic of Cameroon
in detriment of the Southern Cameroon the Commission concludes as well, violations of
Article 19 .22

In regard of the Commission`s conclusions for the Endorois case and Southern
Cameroon case we can argue that there are different contextual interpretations in regarding
the concept of “people`s rights” in the provisional contexts of the African Charter. In these
two distinctive cases, the Commission attributed two distinctive approaches to the people’s
rights, thus defining “peoples” in a different perspective. If for the Endorois case there has
been a clear recognition of the status of the 60.000 people as indigenous, therefore concluding
violations of collective rights, in the Southern Cameroon case there had been attributed
violations in regard of people’s rights but not as a collectivity as understood in the Endorois
case, regardless of the comparatively higher number of population, ethnically distinctive
community of the formerly British South Cameroon.

Even if in international United Nations framework we can use the concept of minority, the
African charter has no distinction in regard on minority and peoples, often times referring to
peoples as nations and citizen of a state, disregarding as in the second case the ethnic,
linguistic and historic diversity of a state`s minority. Even further, we can argue that the term
of “peoples” is being used to distinguish, in the first case a national minority and its interests
inhabiting within the national borders of a recognised state, in this case the country being the
Republic of Kenya.

The main problem risen by the comparison of the cases presented is the right to self-
determination of recognised communities of peoples. We can conclude that given the wide
interpretations in regard of people`s rights the African Charter aims to address the need for
protection of the vulnerable communities such as the case of the indigenous community of
Endorois, but, nevertheless this flexibility in interpretation and application of the provisions
of the Charter in regard of this specific issue furthers political disruptions and fragmentation
within the highly diverse African states as in the Southern Cameroon case.

22
Christof HEYNS, Magnus KILLANDER, Compendium of Key Human Rights Documents of the
African Union, ABC Press, Cape Town, 2013, p. 279.