* This text was reproduced and reformatted from the text available at the African Commission on Human and Peoples’ Rights website (visited May 26, 2010) http://www.achpr.org/english/activity_reports/27_acitivity.pdf.

1 Ctr. For Minority Rights Dev. (Kenya)&Minority Rights Grp. Int’l ex rel. Endorois Welfare Council v. Kenya, Commc’n No. 276/2003 (Afr. Comm’n Hum. & Peoples’ Rights 2010), available at http://www.reliefweb.int/rw/RWFiles2010.nsf/FilesByRWDocUnidFilename/SMAR-82H3UE-full_report.pdf/$File/full_report.pdf [hereinafter Endorois Case].

2 African Charter on Human and Peoples’ Rights, adopted June 27, 1981, available at http://www.achpr.org/english/_info/charter_en.html [hereinafter Charter].

3 Endorois Case, ¶ 3.

4 See Id. ¶¶ 76-135; Charter, supra note 2, arts. 14, 17(2)-(3), 21, 22.

5 Endorois Case, at 80.

6 Charter, supra note 2, arts. 19-24.

7 Endorois Case, ¶ 151.

8 Id. ¶ 157.

9 Id. ¶ 162.

10 United Nations Declaration on the Rights of Indigenous Peoples, G.A. Res. 61/295, U.N. Doc A/RES/61/295 (Sept. 13, 2007), available at http://www.un.org/esa/socdev/unpfii/en/drip.html.

11 Id. ¶ 155.

12 Charter, supra note 2, art. 14.

13 Id.

14 Endorois Case, ¶ 212.

15 Id. ¶ 214.

16 Id. ¶ 238.

17 Id. ¶ 277.

18 Id. ¶ 278.

19 Id. ¶ 291.

20 Id. ¶ 297.

21 Id. ¶ 298.

22 Id. at 80.

23 Id.

1 The Endorois have sometimes been classified as a sub-tribe of the Tugen tribe of the Kalenjin group. Under the 1999 census, the Endorois were counted as part of the Kalenjin group, made up of the Nandi, Kipsigis, Keiro, Tugen and Marakwet among others.

2 William Yatich Sitetalia, William Arap Ngasia et al. v. Baringo Country Council, High Court Judgment of 19 April 2002, Civil Case No. 183 of 2000, p. 6.

3 Depending on the context, Kenyan Authorities and Respondent State are used in this text interchangeably to mean the Government of Kenya.

4 Op cit, paras 3, 4 and 5 of this Communication, where the Complainants advance arguments to prove ownership of their land.

5 Op cit, paras 3, 4 and 5.

6 The Social and Economic Rights Action Centre for Economic and Social Rights v. Nigeria, African Commission on Human and Peoples’ Rights, Comm. No. 155/96, (2001), para. 40.

7 Free Legal Assistance Group and Others v. Zaire, African Commission on Human and Peoples’ Rights, Comm. No. 25/89, 47/90, 56/91, 100/93 (1995), para. 45.

8 See World Wildlife Federation Report, p. 18, para. 2.2.7.

9 Amnesty International and Others v. Sudan, (1999) African Commission on Human and Peoples’ Rights, Comm No. 48/90, 50/91, 52/91, 89/93 (hereinafter Amnesty International v. Sudan).

10 See Draft Declaration on the Rights of Indigenous Peoples, U.N. Doc. E/CN.4/Sub.2/1994/2/Add.1 (1994), Article 13.

11 Loren Laroye Riebe Star, Jorge Alberto Baron Guttlein and Rodolfo Izal Elorz/Mexico, (1999) Inter-American Commission on Human Rights, Report No. 49/99, Case 11.610.

12 Dianna Ortiz v. Guatemala, (1997) Inter-American Commission on Human Rights, Report 31/96, Case No. 10.526.

13 Ibid.

14 World Wildlife Federation, Lake Bogoria National Reserve Draft Management Plan, July 2004.

15 Draft Declaration on the Rights of Indigenous Peoples, U.N. Doc. E/CN.4/Sub.2/1994/2/Add.1 (1994), Article 13.

16 Amnesty International v. Zambia, African Commission on Human and Peoples’ Rights, Communication No. 212/98 (1999).

17 Report of the African Commission’s Working Group of Experts, submitted in accordance with the ‘‘Resolution on the Rights of Indigenous Populations/Communities in Africa’’, adopted by the African Commission on Human and Peoples’ Rights at its 28th Ordinary Session (2003).

18 The Awas Tingni Case (2001), paras. 140(b) and 151.

19 Ibid at para. 148.

20 See Amodu Tijani v. Southern Nigeria, United Kingdom Privy Council, 2 AC 399, (1921).

21 Calder et al v. Attorney-General of British Columbia, Supreme Court of Canada, 34 D.L.R. (3d) 145 (1973).

22 Mabo v. Queensland, High Court of Australia, 107 A.L.R. 1, (1992).

23 Alexkor Ltd v Richtersveld Community, Constitutional Court of South Africa, CCT 19/03, (2003).

24 Op cit, para 12.

25 Constitutional Rights Project, Civil Liberties Organisation and Media Rights Agenda v. Nigeria, (1999), African Commission on Human and Peoples’ Rights, Comm Nos. 140/94, 141/94, 145/95, para. 42 (The Constitutional Rights Project Case).

26 Handyside v. United Kingdom, No. 5493/72 (1976) Series A.24 (7 December), para. 49. 27 X & Y v. Argentina, ( 1996) Report No. 38/96, Case 10.506 (15 October), para. 60. 28 They state that pursuant to Kenyan law, the authorities published Notice 239/1973 in the Kenya Reserve to declare the creation of ‘‘Lake Hannington Game Reserve.’’ Gazette Notice 270/1974 was published to revoke the earlier notice and changed the name of the Game Reserve on 12 October 1974: ‘‘the area set forth in the schedule hereto to be a Game Reserve known as Lake Bogoria Game Reserve.’’

29 The Complainants state that Section 3(2) of WAPAwas subsequently revoked on 13 February 1976 by S.68 of the Wildlife Conservation and Management Act.

30 The Complainants argue that Section 3(20) of WAPA did not allow the Kenyan Minister for Tourism and Wildlife to remove the present occupiers.

31 The Complainants argue that the process of such a “setting apart” of Trust Land under S. 117 or S.118 of the Constitution are laid down by the Kenyan Trust Land Act. They state that publication is required by S. 13(3) and (4) of the Trust Land Act in respect of S.117 Constitution, and by S.7(1) and (4) of the Trust land Act in respect of S.118 Constitution.

32 They also argue that recently the area has been referred to as Lake Bogoria National Reserve. Even if there has been a legal change in title, this still would not mean that the Endorois’ trust has been ended under Kenyan law without the ‘‘setting aside’’.

33 Constitution of the State of Kenya, Section 117(4).

34 Land Acquisition Act,‘‘Principles on which Compensation is to be determined’’. 35 See Kenya Land Acquisition Act, Part IV, para 29(3).

36 The Complainants argue that in the European Court of Human Rights, for instance, compensation must be fair compensation, and the amount and timing of payment is material to whether a violation of the right to property is found. They cite the case of Katikaridis and Others v. Greece, European Court of Human Rights, Case No. 72/1995/578/664, (1996). The Complainants also cite Article 23(2) of the American Convention on Human Rights which provides that ‘‘no-one shall be deprived of his property except upon payment of just compensation, for reasons of public utility or social interest, and in the cases and according to the forms established by law.’’

37 The Complainants refer to Rodolfo Stavenhagen et al. eds, (2001), ‘‘Cultural Rights: A Social Science, Perspective,’’ in Economic, Social and Cultural Rights, (Asbjørn Eide) 2nd ed., pp. 85, 86-88. see also Rachel Murray and Steven Wheatley (2003), “Groups and the African Charter on Human and Peoples’ Rights”, Human Rights Quarterly, Vol. 25, p. 222.

38 The Ogoni Case (2001), paras 56-58.

39 Report of the African Commission’s Working Group of Experts, p. 20.

40 World Bank Operational Directive 4.10.

41 The Ogoni Case, (2001), para. 46.

42 Apirana Mahuika et al v. New Zealand, Human Rights Committee, Communication No. 547/1993, UN Doc. CCPR/C/70/D/547/1993 (2000), paras. 5.7-5.9.

43 Apirana Mahuika et al v. New Zealand (2000) Human Rights Committee, Comm. No. 547/1993, UN Doc. CCPR/C/70/D/547/1993, paras. 5.7-5.9.

44 Mary and Carrie Dann vs. USA (2002), para. 136.

45 Ibid at para. 140. Antoanella-Iulia Motoc and the Tebtebba Foundation, Preliminary working paper on the principle of free, prior and informed consent of indigenous peoples in relation to development affecting their lands and natural resources that they would serve as a framework for the drafting of a legal commentary by the Working Group on this concept. U.N. Doc. E/CN.4/Sub.2/AC.4/2004/4 (2004), para. 14 (a).

46 See Report of the Special Rapporteur (Rodolfo Stavenhagen) on the Situation of Human Rights and Fundamental Freedoms of Indigenous People on ‘‘Implementation of General Assembly Resolution 60/251 of 15 March 2006, A/HRC/4/32/Add.3, 26 February 2007: ‘‘Mission to Kenya’’ from 4 to 14 December 2006, at ¶ 9.

47 See the Report of the Rapporteur of the OAU ministerial meeting on the draft African Charter on Human and Peoples’ Rights held in Banjul, The Gambia, from 9 to 15 June 1980 (CAB/LEG/67/3/Draft Rapt. Rpt (II)), p.4.

48 Report of the African Commission’s Working Group of Experts on Indigenous Populations/Communities, published jointly by the ACHPR/IWGIA 2005.

49 The African Charter is not an accident of history. Its creation by the OAU came at a time of increased scrutiny of states for their human rights practices, and the ascendancy of human rights as a legitimate subject of international discourse. For African states, the rhetoric of human rights had a special resonance for several reasons, including the fact that postcolonial African states were born out of the anti-colonial human rights struggle, a fight for political and economic self-determination and the need to reclaim international legitimacy and salvage its image.

50 Report of the Special Rapporteur (Rodolfo Stavenhagen) on the Situation of Human Rights and Fundamental Freedoms of Indigenous People, supra n. 47.

51 Ibid.

52 See The Social and Economic Rights Action Centre for Economic and Social Rights v. Nigeria.(SERAC and CESR) or The Ogoni case 2001. African Commission on Human and Peoples’ Rights, Decision 155/96, The Social and Economic Rights Action Centre and the Centre for Economic and Social Rights – Nigeria (27 May 2002), Fifteenth Annual Activity Report of the African Commission on Human and Peoples’ Rights, 2001-2002.

53 Report of the African Commission’s Working Group of Experts on Indigenous Populations/Communities (adopted at the Twenty-eighth Session, 2003).

54 Report of the African Commission’s Working Group of Experts on Indigenous Populations/Communities (adopted at the Twenty-eighth Session, 2003).

55 Ibid.

56 See Article 60 of the African Charter.

57 Jose Martinez, Cobo (1986), Special Rapporteur, Study of the Problem of Discrimination Against Indigenous Populations Google Scholar, Sub-Commission on the Prevention of Discrimination and the Protection of Minorities, UN Doc. E/CN.4/Sub.2/1986/7/Add.4.

58 The UN Working Group widens the analysis beyond the African historical experience and also raises the slightly controversial issue of ‘‘first or original occupant’’ of territory, which is not always relevant to Africa.

59 Convention concerning Indigenous and Tribal Peoples in Independent Countries (ILO No. 169), 72 ILO Official Bull. 59, entered into force Sept. 5, 1991, Article 1(1)(b).

60 Convention concerning Indigenous and Tribal Peoples in Independent Countries (ILO No. 169), 72 ILO Official Bull. 59, entered into force Sept. 5, 1991, Article 1(1)(b).

61 See Report of the Special Rapporteur (Rodolfo Stavenhagen) on the Situation of Human Rights and Fundamental Freedoms of Indigenous People, op. cit, Supra n. 47 - Emphasis added.

62 See Report of the Special Rapporteur (Rodolfo Stavenhagen) on the Situation of Human Rights and Fundamental Freedoms of Indigenous People, op. cit, supra note 47.

63 The Commission has affirmed the right of peoples to bring claims under the African Charter. See the case of The Social and Economic Rights Action Center for Economic and Social Rights v. Nigeria. Here the Commission stated: ‘‘The African Charter, in its Articles 20 through 24, clearly provides for peoples to retain rights as peoples, that is, as collectives.’’

64 The Commission has also noted that where there is a large number of victims, it may be impractical for each individual complainant to go before domestic courts. In such situations, as in the Ogoni case, the Commission can adjudicate the rights of a people as a collective. Therefore, the Endorois, as a people, are entitled to bring their claims collectively under those relevant provisions of the African Charter.

65 Report of the African Commission’s Working Group of Experts on Indigenous Populations/Communities (adopted at the Twenty-eighth Session, 2003).

66 See Rodolfo, Stavenhagen (2002), Report of the Special Rapporteur on the Situation of Human Rights and Fundamental Freedoms of Indigenous People , U.N. Commission on Human Rights, UN Doc. E/CN.4/2002/97, (2002)Google Scholar at para. 53.

67 See also Committee on the Elimination of Racial Discrimination, General Recommendation 8 , Membership of Racial or Ethnic Groups Based on Self-Identification (Thirty-eighth Session, 1990), U.N. Doc. A/45/18 at 79 (1991). ‘‘The Committee’’, in General Recommendation VIII stated that membership in a group, ‘‘shall, if no justification exists to the contrary, be based upon self-identification by the individual concerned’’.

68 See Rodolfo, Stavenhagen (2002), Report of the Special Rapporteur on the Situation of Human Rights and Fundamental Freedoms of Indigenous People, U.N. Commission on Human Rights, UN Doc. E/CN.4/2002/97, (2002)Google Scholar at para. 100, where he argues that self-identification is a key criterion for determining who is indeed indigenous.

69 Op. cit, infra n. 71.

70 See Moiwana Village v Suriname, Judgment of June 15, 2005. Series C No. 124, paras 85 and 134-135. On 29 November 1986, the Suriname army attacked the N’djuka Maroon village of Moiwana and massacred over 40 men, women and children, and razed the village to the ground. Those who escaped the attack fled into the surrounding forest, and then into exile or internal displacement. On 12 November 1987, almost a year later, Suriname simultaneously ratified the American Convention on Human Rights and recognized the jurisdiction of the Inter-American Court of Human Rights (IACtHR). Almost ten years later, on 27 June 1997, a petition was filed with the Inter-American Commission on Human Rights (IACmHR) and later on lodged with the IACtHR. The Commission stated that, while the attack itself predated Suriname’s ratification of the American Convention and its recognition of the Court’s jurisdiction, the alleged denial of justice and displacement of the Moiwana community occurring subsequent to the attack comprise the subject matter of the application. In this case the IACtHR recognised collective land rights, despite being an Afro-descendent community (i.e. not a traditional pre- Colombian /“autochtonous” understanding of indigenousness in the Americas).

71 The Respondent State during the oral hearings at the 40th Ordinary Session in Banjul, The Gambia, stated that: (a) the Endorois do not deserve special treatment since they are no different from the other Tungen sub-group, and that (b) inclusion of some of the members of the Endorois in ‘‘modern society’’ has affected their cultural distinctiveness, such that it would be difficult to define them as a distinct legal personality (c) representation of the Endorois by the Endorois Welfare Council is allegedly not legitimate. See Inter-American Commission on Human Rights (IACHmR), Report No.9/06 The Twelve Saramaka Clans (Los) v Suriname (March 2, 2006) ; Inter-American Court of Human Rights (IACtHR), Case of the Saramaka People v Suriname (Judgment of 28 November 2007) at paras 80-84.

72 Human Rights Committee, General Comment 22, Article 18 (Forty-eighth session, 1993), Compilation of General Comments and General Recommendations Adopted by Human Rights Treaty Bodies, U.N. Doc. HRI\GEN\1\ Rev.1 (1994), 35.

73 Declaration on the Elimination of All Forms of Intolerance and of Discrimination Based on Religion or Belief (Thirty-sixth session, 1981), U.N. GA Res. 36/55.

74 See Free Legal Assistance Group v. Zaire, African Commission on Human and Peoples Rights, Comm. No. 25/89, 47/90, 56/91, 100/93 (1995), para. 45. See also the Declaration on the Elimination of All Forms of Intolerance and of Discrimination Based on Religion or Belief, (Thirty-sixth session, 1981), U.N. GA Res. 36/55.

75 See paras 73 and 74.

76 Amnesty International and Others v. Sudan, African Commission on Human and Peoples’ Rights, Communication No. 48/90, 50/91, 52/91, 89/93 (1999) (hereinafter Amnesty International v. Sudan).

77 Loren Laroye Riebe Star, Jorge Alberto Baron Guttlein and Rodolfo Izal Elorz/Mexico, Inter-American Commission on Human Rights, Report No. 49/99, Case 11.610, (1999). Dianna Ortiz v. Guatemala, Inter-American Commission on Human Rights, Report 31/96, Case 10.526, (1997).

78 Human Rights Committee, General Comment 22, Article 18 (Forty-eighth session, 1993), Compilation of General Comments and General Recommendations Adopted by Human Rights Treaty Bodies, U.N. Doc. HRI\GEN\1‚Rev.1 (1994), 35, para. 8.

79 The African Commission is of the view that the limitations placed on the state’s duties to protect rights should be viewed in light of the underlying sentiments of the African Charter. This was the view of the Commission, in Amnesty International v. Zambia, where it noted that the “claw-back” clauses must not be interpreted against the principles of the Charter . . . and that recourse to these should not be used as a means of giving credence to violations of the express provisions of the Charter. See Amnesty International v. Sudan (1999), paras. 82 and 80.

80 Amnesty International v. Zambia, African Commission on Human and Peoples’ Rights, Communication No. 212/98 (1999).

81 See para 3.3.3 of the Respondent’s Merits brief.

82 Italics for emphasis.

83 Italics for emphasis.

84 See The Mayagna Awas Tingni v. Nicaragua, Inter-American Court of Human Rights, (2001), para. 146 (hereinafter the Awas Tingni Case 2001). The terms of an international human rights treaty have an autonomous meaning, for which reason they cannot be made equivalent to the meaning given to them in domestic law.

85 Malawi African Association and Others v. Mauritania, African Commission on Human and Peoples’ Rights, Comm. Nos. 54/91, 61/91, 98/93, 164/97 á 196/97 and 210/98 (2000), para. 128. See also Communications 54/91 et al v Mauritania, 13th Activity Report, para. 128.

86 The Ogoni Case (2001), para. 54.

87 Communication No. 225/98 v Nigeria, 14th Annual Report, para. 52.

88 See Doğan and Others v. Turkey, European Court of Human Rights, Applications 8803-8811/02, 8813/02 and 8815-8819/02 (2004), paras. 138-139.

89 See Report of the African Commission’s Working Group of Experts, Submitted in accordance with the ‘‘Resolution on the Rights of Indigenous Populations/Communities in Africa’’, Adopted by the African Commission on Human and Peoples’ Rights at its 28th Ordinary Session (2005).

90 Doğan and Others v. Turkey, European Court of Human Rights, Applications 8803-8811/02, 8813/02 and 8815-8819/02 (2004), paras. 138-139.

91 Doğan and Others v. Turkey, European Court of Human Rights, Applications 8803-8811/02, 8813/02 and 8815-8819/02 (2004), para. 138-139.

92 The Awas Tingni Case (2001), paras. 140(b) and 151.

93 African Commission on Human and Peoples’ Rights, Communications 54/91, 61/91, 98/93, 164/97, 196/97 and 210/98.

94 African Commission on Human and Peoples’ Rights, Decision 155/96, The Social and Economic Rights Action Centre and the Centre for Economic and Social Rights – Nigeria (27 May 2002), Fifteenth Annual Activity Report of the African Commission on Human and Peoples’ Rights, 2001-2002, done at the 31st Ordinary Session of the African Commission held from 2 to 16 May 2002 in Pretoria, South Africa.

95 African Commission on Human and Peoples’ Rights, Decision 155/96, The Social and Economic Rights Action Centre and the Centre for Economic and Social Rights – Nigeria (27 May 2002) (citing Committee on Economic, Social and Cultural Rights, General Comment No. 7, The right to adequate housing (Art. 11 (1) of the Covenant): forced evictions, para. 4, U.N. Doc. E/C.12/1997/4 (1997)).

96 Inter- American Court of Human Rights, Case of the Saramaka People v Suriname (Judgment of 28 November 2007).

97 Inter- American Court of Human Rights, Case of the Saramaka People v Suriname (Judgment of 28 November 2007).

98 Op. cit, paras 11 and 12.

99 See ECHR, Connors v. The United Kingdom, (declaring that States have an obligation to take positive steps to provide for and protect the different lifestyles of minorities as a way of providing equality under the law). See also IACmHR Report on the Situation of Human Rights in Ecuador, (stating that ‘‘within international law generally, and Inter-American law specifically, special protections for indigenous peoples may be required for them to exercise their rights fully and equally with the rest of the population. Additionally, special protections for indigenous peoples may be required to ensure their physical and cultural survival - a right protected in a range of international instruments and conventions’’). See also U.N. International Convention on the Elimination of All Forms of Racial Discrimination, Art. 1.4 (stating that ‘‘[s]pecial measures taken for the sole purpose of securing adequate advancement of certain racial or ethnic groups or individuals requiring such protection as may be necessary in order to ensure such groups or individuals equal enjoyment or exercise of human rights and fundamental freedoms shall not be deemed racial discrimination’’), and UNCERD, General Recommendation No. 23, Rights of indigenous peoples, para. 4 (calling upon States to take certain measures in order to recognise and ensure the rights of indigenous peoples).

100 Indigenous Community Yakye Axa v. Paraguay 17 June 2005, Inter American Court of Human Rights. 101 Case of the Sawhoyamaxa Indigenous Community v. Paraguay, Judgment of 29 March 2006 Inter-American Court of Human Rights.

102 See The Mayagna Awas Tingni v. Nicaragua, Inter-American Court of Human Rights, (2001) hereinafter the Awas Tingni Case 2001.

103 Committee on Economic, Social and Cultural Rights, General Comment 4, The right to adequate housing (Sixth session, 1991), para. 18, U.N. Doc. E/1992/23, annex III at 114 (1991), reprinted in Compilation of General Comments and General Recommendations Adopted by Human Rights Treaty Bodies, U.N. Doc. HRI/GEN/1/Rev.6 at 18 (2003).

104 See, Commission on Human Rights resolution 1993/77, UN Doc. E/C.4/RES/1993/77 (1993); Commission on Human Rights Resolution 2004/28, UN Doc. E/C.4/RES/2004/28 (2004).

105 See Committee on Economic, Social and Cultural Rights, General Comment 7, Forced evictions, and the right to adequate housing (Sixteenth session, 1997), para. 14, U.N. Doc. E/1998/22, annex IV at 113 (1998), reprinted in Compilation of General Comments and General Recommendations Adopted by Human Rights Treaty Bodies, U.N. Doc. HRI/GEN/1/Rev.6 at 45 (2003).

106 Protocol to the Convention for the Protection of Human Rights and Fundamental Freedoms, Art. 1, 213 U.N.T.S. 262, entered into force 18 May 1954.

107 See 3.2.0 of the Respondent State Brief on the Merits. See also para 178 of this judgment where the Respondent State argues that the community’s rights of access is not extinguished.

108 See Articles 8(2) (b), 10, 25, 26 and 27 of the UN Declaration on the Rights of Indigenous Peoples.

109 Para 110 of the Saramaka case.

110 The Awas Tingni Case (2001), paras. 140(b) and 151.

111 Ibid, at para. 148.

112 Ibid, at para. 151.

113 See case of the Mayagna (Sumo) Awas Tingni Community, supra note 184, para. 151.

114 See case of the Moiwana Community. Judgment of 15 June 2005. Series C No. 124. para. 134.

115 See case of the Indigenous Community Yakye Axa, supra note 1, paras. 124-131.

116 Nazila, Ghanea and Alexandra, Xanthaki (2005) (eds). ’Indigenous Peoples’ Right to Land and Natural Resources’ in Erica- Irene Daes “Minorities, Peoples and Self-Determination”, Martinus Nijhoff Publishers Google Scholar.

117 Constitutional Rights Project, Civil Liberties Organisation and Media Rights Agenda v. Nigeria, African Commission on Human and Peoples’ Rights, Comm Nos. 140/94, 141/94, 145/95 (1999), para. 42 (hereinafter The Constitutional Rights Project Case 1999).

118 Handyside v. United Kingdom, No. 5493/72, Series A.24 (7 December 1976), para. 49.

119 The Constitutional Rights Project Case, para. 42.

120 See United Nations Commission on Human Rights resolution 1993/77, UN Doc. E/CN.4/1993/RES/77 and United Nations Commission on Human Rights resolution 2004/28, UN Doc. E/CN.4/2004/RES/28. Both resolutions reaffirm that the practice of forced eviction is a gross violations of human rights and in particular the right to adequate housing.

121 Pursuant to Kenyan law, the authorities published notice 239/1973 in the Kenya Reserve to declare the creation of ‘‘Lake Hannington Game Reserve.’’ Gazette notice 270/1974 was published to revoke the earlier notice and change the name of the Game Reserve on 12 October 1974: ‘‘the area set forth in the schedule hereto to be a Game Reserve known as Lake Bogoria Game Reserve.’’

122 See section 3(2) for relevant parts of WAPA. Section 3(2) was subsequently revoked on 13 February 1976 by S.68 of the Wildlife Conservation and Management Act.

123 See section 3(20) of WAPA, which did not allow the Kenyan Minister for Tourism and Wildlife to remove the present occupiers.

124 See para 3.3.3 of the Respondent State’s Merits brief.

125 See note 125.

126 The mechanics of such a “setting apart” of Trust Land under S.117 or S.118 of the Constitution are laid down by the Kenyan Trust Land Act. Publication is required by S.13(3) and (4) of the Trust Land Act in respect of S.117 Constitution, and by s.7(1) and (4) of the Trust land Act in respect of S.118 Constitution.

127 Declaration on the Rights of Indigenous Peoples, preambular para. 5, E/CN.4/Sub.2/1994/2/Add.1 (1994).

128 See Case of Huilca Tecse. Judgment of 3 March 2005. Series C No. 121, para. 86, and Case of the Serrano Cruz Sisters, para. 133.

129 See case of the Indigenous Community Yakye Axa, para. 149.

130 Indeed, at para 140 of the Sawhoyamaxa Indigenous Community v. Paraguay case, the Inter-American Court stresses that: ‘‘Lastly, with regard to the third argument put forth by the State, the Court has not been furnished with the aforementioned treaty between Germany and Paraguay, but, according to the State, said convention allows for capital investments made by a contracting party to be condemned or nationalized for a ‘‘public purpose or interest’’, which could justifiy land restitution to indigenous people. Moreover, the Court considers that the enforcement of bilateral commercial treaties negates vindication of non-compliance with state obligations under the American Convention; on the contrary, their enforcement should always be compatible with the American Convention, which is a multilateral treaty on human rights that stands in a class of its own and that generates rights for individual human beings and does not depend entirely on reciprocity among States.

131 UN Sub-Commission on Prevention of Discrimination and Protection of Minorities, Guidelines on International Events and Forced Evictions (Forty-seventh session, 1995), UN Doc. E/CN.4/Sub.2/1995/13. 17 July 1995, para. 16(b) and (e)

132 Doğan v. Turkey (2004), para. 154.

133 Rachel, Murray and Steven, Wheatley (2003) “Groups and the African Charter on Human and Peoples’ Rights”, Human Rights Quarterly, 25, p. 224 Google Scholar.

134 African Cultural Charter (1976), para 6 of the Preamble.

135 Ibid. Article 3.

136 Human Rights Committee, General Comment 23 (Fiftieth Session, 1994), U.N. Doc. CCPR/C/21Rev.1/Add5, (1994). Para. 7.

137 Report of the African Commission’s Working Group on Indigenous Populations/Committees (2003), p.20.

138 Ibid. p.20.

139 Report of the Special Rapporteur on the Situation of Human Rights and Fundamental Freedoms of Indigenous Peoples, supra n. 47.

140 Ibid. Italics added for emphasis.

141 Guidelines for National Periodic Reports, in Second Annual Activity Report of the African Commission on Human and Peoples Rights 1988–1989, ACHPR/RPT/2nd, Annex XII.

142 Report of the African Commission’s Working Group on Indigenous Populations/Committees (2005), p. 20. [Emphasis added]

143 See UN Declaration on the Rights of Persons Belonging to National or Ethnic, Religious and Linguistic Minorities, Article 4(2): States shall take measures to create favourable conditions to enable persons belonging to minorities to express their characteristics and to develop their culture, language, religion, traditions and customs; CERD General Recommendation XXIII, Article 4(e): Ensure that indigenous communities can exercise their rights to practise and revitalize their cultural traditions and customs and to preserve and to practise their languages; International Covenant on Economic, Social and Cultural Rights, Article 15(3).

144 See statement by Mr. Sha Zukang Under-Secretary General for Economic and Social Affairs and Coordinator of the Second International Decade of the World’s Indigenous People to the Third Committee of the General Assembly on the Item ‘‘Indigenous Issues’’ New York, 20 October 2008.

145 The Ogoni Case (2001), paras 56-58.

146 See case of the Indigenous Community Yakye Axa, and the Case of the Indigenous Sawhoyamaxa Community.

147 Ibid.

148 See case of the Indigenous Yakye Axa Community, paras. 144-145 citing (mutatis mutandi) Case of Ricardo Canese v. Paraguay. Merits, Reparations and Costs. Judgment of August 31, 2004. Series C No. 111, para. 96; Case of Herrera Ulloa v. Costa Rica. Preliminary Objections, Merits, Reparations and Costs. Judgment of July 2, 2004. Series C No. 107, para. 127, and Case of Ivcher Bronstein v. Peru. Merits, Reparations and Costs. Judgment of February 6, 2001. Series C No. 74. para. 155. See also, Case of the Indigenous Sawhoyamaxa Community, at para. 137.

149 The Ogoni Case (2001), paras 56-58.

150 Arjun, Sengupta, ‘‘Development Cooperation and the Right to Development,’’ Francois-Xavier Bagnoud Centre Working Paper No. 12, (2003)Google Scholar, available at www.hsph.harvard.edu/fxbcenter/working_papers.htm. See also U.N. Declaration on the Right to Development, U.N. GAOR, 41st Sess., Doc. A/RES/41/128 (1986), Article 2.3, which to refers to ‘‘active, free and meaningful participation in development.’’

151 Arjun, Sengupta, ‘‘The Right to Development as a Human Right,’’ Francois-Xavier Bagnoud Centre Working Paper No. 8, (2000)Google Scholar, page 8, available at http://www.hsph.harvard.edu/fxbcenter/working_papers.htm2000.

152 Antoanella-Iulia Motoc and the Tebtebba Foundation, Preliminary working paper on the principle of free, prior and informed consent of indigenous peoples in relation to development affecting their lands and natural resources that they would serve as a framework for the drafting of a legal commentary by the Working Group on this concept. U.N. Doc. E/CN.4/Sub.2/AC.4/2004/4 (2004), para. 14 (a).

153 Report of the African Commission’s Working Group of Experts on Indigenous Populations/Communities (Twenty-eighth session, 2003). See also ILO Convention 169 which states: ‘‘Consultations carried out in application of this Convention shall be undertaken, in good faith and in a form appropriate to the circumstances, with the objective of achieving agreement or consent to the proposed measures.’’

154 U.N. Declaration on the Right to Development, U.N. GAOR, 41st Sess., Doc. A/RES/41/128 (1986), Article 2.3. (hereinafter Declaration on Development). 155 See U.N. Doc. E/C.12/1999/5. The right to adequate food (Art. 11), (20th session, 1999), para. 13, and U.N. Doc. HRI/GEN/1/Rev.7 at 117. The right to water (Articles 11 and 12 of the International Covenant on Economic, Social and Cultural Rights), (29th session 2002), para. 16. In these documents the arguments is made that in the case of indigenous peoples, access to their ancestral lands and to the use and enjoyment of the natural resources found on them is closely linked to obtaining food and access to clean water. In this regard, the Committee on Economic, Social and Cultural Rights has highlighted the special vulnerability of many groups of indigenous peoples whose access to ancestral lands has been threatened and, therefore, their possibility of access to means of obtaining food and clean water.

156 See, for example, the affidavit of Richard Yegon, one of the Elders of the Endorois community.

157 In Mary and Carrie Dann v. USA, the IAcmHR noted that convening meetings with the Community 14 years after title extinguishment proceedings began constituted neither prior nor effective participation. To have a process of consent that is fully informed ‘‘requires at a minimum that all of the members of the community are fully and accurately informed of the nature and consequences of the process and provided with an effective opportunity to participate individually or as collectives.’’ Mary and Carrie Dann vs. USA (2002).

159 The UNCERD has observed that ‘‘[a]s to the exploitation of the subsoil resources of the traditional lands of indigenous communities, the Committee observes that merely consulting these communities prior to exploiting the resources falls short of meeting the requirements set out in the Committee’s general recommendation XXIII on the rights of indigenous peoples. The Committee therefore recommends that the prior informed consent of these communities be sought’’. Cf. UNCERD, Consideration of Reports submitted by States Parties under Article 9 of the Convention, Concluding Observations on Ecuador (Sixty Second Session, 2003), U.N. Doc. CERD/C/62/CO/2, 2 June 2003, para. 16.

160 Declaration on the Right to Development,Article 3.