Two weeks ago, the Committee on Economic, Social and Cultural Rights (CESCR) published its Concluding Observations on Kenya calling on the implementation of the decision from the African Commission on Human & Peoples’ Rights on the Endorois Case. After the ruling in 2010, a Task Force on the implementation of the decision has been established but failed to integrate community members from the Endorois.
Free, active and meaningful participation is crucial to inclusive and sustainable development.
The Right to Development has been widely criticized as unrealistic, aspirational and not justiciable. The international discourse is highly politicized and despite the Declaration on the Right to Development the prospects for a legally binding instrument to enforce the RTD on an international level are bleak.
Not surprisingly, since the right to development was born on the continent and is a collective right of peoples to development:
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. (Art. 22(1), ACHPR)
This means that the State has a legal responsibility to secure and promote development. The ACHPR in contrast to the ICESCR does not apply any „progressive realization‟ – clause and prohibits derogations.
The RTD is immediately applicable with positive as well as negative obligations. For example, one positive measure from states to enhance development in this sense would be increased public control in financial budgeting and distribution procedures. On the other hand, negative obligations are not adequately fulfilled where the state actively worsens the situation of the poor by taking valuable resources from them, land evictions being a prime example.
The landmark ruling of the African Commission on Human & Peoples’ Rights on the Endorois Case is the first case to find a violation of article 22 of the ACHPR and stresses the importance of participatory development.
The African Commission defines participation within development processes as “active, free and meaningful” referring to the Declaration on the Right to Development and echoing Amartya Sen’s capabilities approach the Commission emphasizes “freedom of choice” to be integral to the RTD. The government of Kenya did not fulfill its negative obligations and therefore violated the RTD by “decreas(ing) the well-being of the community”.
Another added value of the ruling is that the African Commission remarks that while the terms „peoples‟ or „indigenous peoples‟ are contested, there are de facto communities which are disproportionately marginalized and discriminated against and that the RTD can be collectively claimed by those groups.
The Endorois community, around 400 families, are from the Rift Valley province in Kenya where they lived beside Lake Bogoria. As a pastoralist community the Endorois relied on the grazing land close to the lake for their survival during rainy season and moved up to the nearby forest during dry season. Additionally, the lake is crucial for religious and cultural rituals. In 1973, this land was gazetted as a game reserve and the Endorois were not included in the decision-making process and not informed about the arrangement until 1977. In 1986, the community was evicted and relocated on infertile land resulting in their impoverishment.
 276/03 Centre for Minority Rights Development (Kenya) and Minority Rights Group (on behalf of Endorois Welfare Council) / Kenya
 Para. 283 & 289, 276/03 Centre for Minority Rights Development (Kenya) and Minority Rights Group (on behalf of Endorois Welfare Council) / Kenya
 Para. 294, 276/03 Centre for Minority Rights Development (Kenya) and Minority Rights Group (on behalf of Endorois Welfare Council) / Kenya
 Para 148, 276/03 Centre for Minority Rights Development (Kenya) and Minority Rights Group (on behalf of Endorois Welfare Council) / Kenya