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Land rights in Tanzania and Kenya: the impact of strategic litigation and legal empowerment
by Minority Rights Group International
Indigenous peoples’ land rights in Tanzania and Kenya: the impact of strategic litigation and legal empowerment
Minority Rights Group (MRG) recently commissioned an evaluation of its litigation and legal empowerment programmes implemented with minorities and indigenous peoples in East Africa over the last 15 years. The evaluation found that these activities are powerful tools that create spaces and opportunities for communities to unite around shared struggles and make decisions that can impact positively on their collective rights. The evaluation considered the cases of the Endorois and Ogiek of Kenya and the Maasai of Tanzania, finding these strategic litigation programmes to have had great success overall, and concluded that key lessons can be drawn from them which can be applied to the conduct of future similar activities.
The findings presented in the full version of the report are strongly based on feedback direct from the relevant communities. The core learning points from the review are summarised below while a broader list of conclusions and recommendations appear in the Report on Legal Empowerment and Strategic Litigation.
1. Common contextual factors are roots for litigation strategies
Part of the impact of strategic litigation in East Africa is attributable to the grounding of arguments in common contextual factors: indigenous peoples seeking remedy for land losses. The Endorois, Ogiek and Maasai share a similar history of human rights violations, where their rights to land and resources have been disregarded by colonial powers. The arrival of external actors resulted in land grabs with violent evictions and forceful land dispossessions without consultation or adequate compensation. Litigation was an effort to find solutions to deeply historically embedded land disputes. In both countries, the social and political climate has been extremely resistant to recognising indigenous peoples’ land rights in accordance with international law. The history of legal engagement by the communities is also a common factor: all three communities approached MRG for support after years of failed attempts to engage the national legal system in recognising their rights. These common contexts allowed for cross-fertilisation of human rights standards and provided a strong platform for community-led litigation strategies.
2. Material consequences: a long term project
The regional human rights system has ruled in favour of indigenous communities and ordered land restitution, demarcation and titling but a strong plan to support implementation and actual material gain for the communities is necessary. In terms of redress and material consequences, winning these regional legal cases is the start of a process. For all three communities, the material consequences of litigation have been minimal and implementation is a great challenge. The prospects of effective implementation can be stalled by a lack of access to long-term financial support and human resources for national and international NGOs, as well as for human rights mechanisms and governmental bodies responsible for implementation, so adequate support on that front is essential.
3. Legal impact: a work in progress
The impact of strategic litigation on the national legal frameworks of Kenya and Tanzania is not straightforward. While legal empowerment of communities is undeniable, the judiciary in Kenya and Tanzania have not yet taken on board international law on indigenous peoples’ rights. The training of judges and registrars held in Tanzania shows the importance of such activities in raising the awareness of decision-makers about indigenous peoples’ rights in Africa and internationally. Litigation is part of a larger advocacy strategy aiming at making national laws consistent with indigenous peoples’ rights in international law and supporting the legal profession to work to realise these rights. From this perspective, litigation is a powerful tool for change and the impact of litigation is felt mainly at the community, regional and international levels, where the contribution of indigenous peoples’ organisations in Kenya and Tanzania and of MRG to the regional jurisprudence on land rights in Africa is remarkable.
4. Social impact: significant legal empowerment and community impact
In the course of the litigation processes, significant and positive social changes have been observed. Reports were received regarding the enhancement of communities’ sense of justice, legal empowerment and unity around long-term struggles. A certain degree of positive change in attitudes and behaviours of other parts of society, such as neighbouring communities, local authorities and the media, has also been reported as a consequence of the legal and human rights activities and litigation. This state of affairs however remains fragile, given they are not supported by material and legal changes. Also, in the case of both Kenya and Tanzania, some concerns were expressed by communities that litigation can contribute to the inflammation of existing tensions and surges of violence where the socio-political climate is unstable. Responsible action is necessary and a litigation programme operating in such circumstances must be supplemented with security screening measures and risk assessments for the prevention of violence, as well as access to funding and remedies in case of violence.
5. Future advocacy strategy and partnership
The experience of litigation in the African human rights system testifies that it is a fruitful platform for change. In spite of an often lengthy process, the use of African human rights mechanisms is highly likely to continue to produce positive and progressive legal outcomes for indigenous peoples’ rights. In the case of indigenous peoples’ land rights, environmental conservation is a cornerstone argument for which further advocacy activity can be explored. The role of indigenous peoples in conservation is widely embedded in international jurisprudence but governments are still sceptical of this argument so further efforts in this area could have a positive impact.
As MRG is reflecting on its partnerships in Africa and elsewhere, the review highlights that drawing on commonality of contexts can strengthen litigation strategies. Intensification and diversification of efforts on implementation and the legal education and empowerment of decision makers is necessary. Donors also need to be committed to the long-term and extensive nature of the support needed to achieve change. Community consultations led under this review call for long-term partnerships with MRG. The communities have said these partnerships should continue to include support for legal empowerment, community outreach and exchanges, the inclusive participation of women, youth and elders. They also call for the development of support for other strategic activities held in parallel to litigation.
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The world has much to learn from indigenous peoples
by Mirna Cunningham Kai
UNDP: Human Development for Everyone
From my lifelong experiences, being an advocate for the rights of some of the most marginalized peoples, allow me to share what I have learned and come to see as essential elements to ensure peaceful societies and sustainable development in a plural world.
Indigenous peoples contribute to diversity, and their history emphasizes the importance of revitalizing and celebrating ancient cultures, music, languages, knowledge, traditions and identities. Living in an era where xenophobia, fundamentalism, populism and racism are on the rise in many parts of the world, celebrations and positive messages about the value of diversity can contribute to counter negative stereotypes, racism and discrimination and instead foster tolerance, innovation and peaceful coexistence between peoples.
This is essential to safeguard the inherent belief in human beings’ equal worth, as reflected in the fundamental principles of the Universal Declaration on Human Rights.
Taking special measures to ensure equality and combat discrimination
The world today is more unequal than ever before yet, there is an increasing recognition of the crucial importance of addressing systematic inequalities to ensure sustainable development. To address inequalities, a first step is to repeal discriminatory policies and laws that continue to exist in many countries, preventing particular groups of peoples from fully realizing their potential.
For indigenous peoples, it is necessary to adopt positive or special measures to overcome discrimination and ensure the progressive achievement of indigenous peoples’ rights, as emphasised in the UN Declaration on the Rights of Indigenous Peoples (article 21.2). This includes measures to safeguard cultural values and identities of indigenous peoples (article 8.2) or to ensure access to education in their own languages (article 14).
Further, nondiscrimination for indigenous peoples is strongly related to the right to self-determination and cultural integrity. These principles should be promoted in the context of addressing target 16b of the 2030 Agenda, promoting and enforcing nondiscriminatory laws and policies.
Getting down to the root causes of conflicts
No solution to conflicts and injustices will be possible without addressing the root causes for these conflicts. For indigenous peoples, root causes most often relate to violations against their human rights, in particular rights related to their lands, territories and resources.
Across the world, indigenous peoples increasingly experience militarization, armed conflict, forced displacements or other conflicts on their lands, which have become increasingly valuable in light of globalization and the continued quest for resource extraction.
Indigenous human rights and environmental defenders, who mobilize to protect their rights, face death threats, harassment, criminalization and killings. According to an Oxfam Report, 41 percent of murders of human rights defenders in Latin America were related to the defence of the environment, land, territory and indigenous peoples.
The essential and first step to prevent conflict and ensure peaceful development is hence to protect, promote and ensure the basic rights of all peoples, including their free, prior and informed consent on development activities taking place on their lands. In that light the 2030 Agenda’s goal 16 on peaceful societies and strong institutions is essential. In particular, the focus on transparency, the rule of law and equal access to justice will be crucial to ensure accountability to the rights of all peoples.
Bringing in the voices, world views and power of indigenous peoples
Indigenous peoples have called for their rights to be at the negotiating table and have a voice in decision making processes. “Nothing about us, without us” goes one of the mottoes, that is being repeated. Consistent with the UN Declaration on the Rights of Indigenous Peoples article 7, indigenous peoples have the collective right to live in freedom, peace and security as distinct peoples.
Furthermore, in post conflict societies, states should ensure the participation of indigenous peoples through their own representative institutions in peace negotiations, peacebuilding, peacekeeping, humanitarian assistance and reconciliation processes.
By strengthening indigenous peoples’ own institutions and governance systems and ensuring their inclusion in essential decision making processes at the local, national and global levels, just solutions to conflicts can be found, and the structural root causes that led to the conflicts can be addressed. Indigenous peoples can also contribute to peace processes through their ancient wisdom and approaches to reconciliation and peace.
Indigenous approaches to reconciliation often go beyond legal solutions with an essential focus on forgiveness, coexistence and harmony, which can inspire in a conflict situation that might otherwise seem protracted.
The world has much to learn from indigenous peoples in the quest for peace and development in a plural world, as the one we are living in.
* Mirna Cunningham Kai, is former Chairperson of the United Nations Permanent Forum on Indigenous Issues. This text was originally published in the Human Development Report 2016 “Human Development for Everyone”.
Apr. 2018 (UN News)
Protect indigenous people’s land rights and the whole world will benefit, UN forum declares.
Protecting the land and resource rights of indigenous peoples will not only provide security for historically exploited groups but also help the global fights against climate change and biodiversity loss, said speakers at the annual United Nations Permanent Forum on Indigenous Issues.
In her opening remarks to the Forum in New York, the chairperson, Mariam Wallet Aboubakrine, a medical doctor from Timbuktu, Mali, called the land husbandry of Aboriginal peoples “part of our history and heritage.”
But few countries have acted to defend these peoples’ collective rights, she added. “Law enforcement is inadequate or non-existent, and other elements of legislation goes against these rights,” she said.
Measures necessary to give meaning to land rights, such as tenure delimitation and allocating title deeds, are often not implemented. Those who defend indigenous rights continue to be targeted when they raise their voices – particularly when States or private actors seek their resources for aggressive development such as logging.
“As long as our rights over our lands, territories and resources are not recognized,” she added, indigenous people risk falling far short of the UN’s Sustainable Development Goals.
“In the same way,” she said, “the world risks losing the fight against climate change and the destruction of the environment.”
UN General Assembly President Miroslav Lajcak reminded everyone “The United Nations is here for people. And that includes indigenous people.. But we cannot yet say that this Organization has opened its doors wide enough,” he said. “And so, we need to be more ambitious.”
He painted a grim picture of the situation facing indigenous people today, pointing out that while they make up only five per cent of the world’s population, they comprise 15 per cent of the world’s poorest people.
“That is shocking,” he said, adding that their human rights are being violated, they are being excluded and marginalized and face violence for asserting their basic rights.
Focusing on the theme of indigenous land, territories and resources, he said: “Indigenous people are being dispossessed. They are losing the lands their ancestors called home.”
But with global attention to indigenous rights on the rise, Mr. Lajcak saw reasons for hope, but we cannot ignore the very real, and very serious, challenges. They cast a shadow over the future of many indigenous communities. And they demand our urgent attention,” he said.
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