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HUMAN RIGHTS SYSTEMS

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58UPDATES FROM THE REGIONAL HUMAN RIGHTS SYSTEMSafricaN reGioNal aNd suB-reGioNal systemslanD RigHts case may Have faR-ReacHing impact fOR inDigenOus peOplesIn 1973 and 1978, the Kenyan gov-ernment systematically evicted the semi-nomadic Endorois people from their tradi-tional lands in the Great Rift Valley. In place of the approximately 60,000 Endorois who traditionally used the fertile banks of Lake Bogoria for cattle herding, the Kenyan gov-ernment established a wildlife preserve. As a result, the Endorois were forced onto arid desert lands where both their livelihood and culture have dramatically deteriorated.After nearly forty years without relief, on February 4, 2010 the African Commission on Human and Peoples’ Rights recognized the plight of the Endorois people, finding the Kenyan government to be in violation of Articles 1, 8, 14, 17, 21, and 22 of the African Charter on Human and Peoples’ Rights. The Commission recommended that Kenya provide the Endorois commu-nity both restitution of ancestral lands and compensation for damage done to their lands and the community since they were evicted. The ruling allowed the Kenyan government three months to implement the Commission’s recommendations, or poten-tially face litigation before the African Court of Human and Peoples’ Rights.Human rights organizations have hailed the Commission’s decision as a landmark case for indigenous peoples’ rights and considered its implications throughout Africa. In particular, the ruling marks two developments in Commission jurispru-dence: never before has the Commission recognized an indigenous group to be a people entitled to benefit from Charter provisions that protect collective rights; and never before has the Commission, or any other international tribunal, declared a violation of the right to development.In defining a “people,” the Commission recognized that “indigenous peoples have an unambiguous relationship to a distinct territory and that all attempts to define the concept [of a people] recognise the linkages between people, their land, and culture.” The Commission relied on the Endorois’s self-identification as a distinct community, objective features of the Endorois commu-nity, and the close interconnection between their culture, religion, traditional way of life, and their ancestral lands, as evidence of the Endorois being a people.In assessing the right to develop-ment under Article 22 of the Charter, the Commission asserted that there are both procedural and substantive elements that must be met to satisfy this right. In this case, the Kenyan government’s failure to consult the community and obtain its prior consent in accordance with its customs and traditions, and the government’s fail-ure to provide land of equal value to the land taken violated the Endorois’s right to development.If fully implemented, this decision could have a significant impact on the Endorois people and far-reaching repercus-sions throughout Africa. The Commission’s expanded definition of a “people” and articulation of the right to development establish standards that will be applied in future cases involving other African indigenous groups who have lost ances-tral land through government acquisition. Most importantly, both components of the Endorois precedent indicate a shift toward greater protection of the rights of minori-ties whose attachment to land is vital but traditionally outside the mainstream legal framework for land ownership.gamBia’s cOmpliance WitH tHe ecOWas cOuRtOn February 17, 2010, the Economic Community of West African States (ECOWAS) Community Court of Justice granted Gambia’s request to postpone until April 27, 2010 the initial hearing in the case of Gambian journalist Musa Saidykhan. In November 2007, the human rights watchdog Media Foundation for West Africa initiated the lawsuit against Gambia on behalf of Saidykhan, who cur-rently resides in exile in the United States. The complaint alleges that Saidykhan, former Editor-in-Chief of the Gambian Independent, was detained and tortured by the Gambian National Intelligence Agency on March 28, 2006, after the newspaper printed the names of suspects in the March 21 attempted coup d’état. At the initial hearing, Saidykhan and his doctor were scheduled to give testimony concerning the injuries he sustained while in detention. Although Gambia’s history of contentious relations with the Court makes implemen-tation of an outcome in Saidykhan’s favor questionable, Gambia’s continued engage-ment with the Court and other ECOWAS organs is reason for optimism.President Yahya Jammeh has repeat-edly sought to limit the effectiveness of the Court. In a 2008 case with similar facts to Saidykhan’s, where the Court declared the Gambian government’s arrest of reporter Ebrima Manneh “illegal” and urged his release and compensation, Jammeh refused to enforce the Court’s ruling. Neither wide-spread criticism nor the fact that Gambia’s rejection of the Court’s ruling contravened Article 24 of the 2005 Supplementary Protocol of the Court, which makes rul-ings binding on Member States, induced Jammeh’s compliance. Separately, in an effort to limit individuals’ standing before the Court, in September 2009 Jammeh attempted to amend the Court’s protocol to make exhaustion of domestic remedies a prerequisite.Notwithstanding Jammeh’s overt protest of the Court, Gambia’s continued engage-ment with the Court and other ECOWAS institutions and agencies may tacitly bolster the legitimacy of the sub-regional court. By participating in Court proceedings, even when such involvement entails submitting requests for postponement, Gambia dem-onstrates recognition of the Court’s author-ity. Indeed, Gambia’s latest maneuver in the Saidykhan case marks the second occa-sion on which government lawyers have contested the proceedings, thereby dem-onstrating a genuine concern for potential outcomes. The Court’s legitimacy may also be augmented by Gambia’s involvement in other associated ECOWAS organs, such as the Commission, and its ratification of ECOWAS treaties. For


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