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Customary communities as 'peoples' and their customary tenure as 'culture': what we can do with the Endorois decision

Wilmien Wicomb

Henk Smith

Legal Resources Centre

1. Introduction

Ten years ago, Phillip Alston wrote that "there is no reason to expect that the African Charter will prove in the years ahead to be a force for the progressive development of peoples' rights, despite the occasional invocation of the concept for rhetorical purposes". Two years later, the African Commission on Human and Peoples' Rights ("African Commission"), the institution mandated with giving content to the rights contained in the African Charter of Human and Peoples' Rights ("African Charter"), took a bold step in proving Alston's pessimism wrong by recognising the Ogoni people of Nigeria as a 'people' in terms of the Charter and protecting their rights in this capacity. This prompted Rachel Murray and Steven Wheatley to argue that the Commission has taken peoples' rights beyond mere 'aspirational' and 'exhortatory' tools of rhetoric, to being the subject of legal claims before the Commission.

In the communication brought by the Endorois community against the Kenyan government, the Commission found the Endorois community to constitute a 'people' and, as such, recognised the violation of its rights to property, culture, development, free disposal of resources and religion.

The question we pose is whether the Endorois decision opens the door for customary communities to also seek recognition of their customary rights in communal land and other resources and, importantly, whether they can use the Charter to protect their tenure rights and enforce their right to participate in any decision involving the use of their land by mining companies and other extractive industries. We argue that this is a crucial and urgent potential role for the Charter and the Commission because few, if any, African domestic courts have protected customary tenure rights effectively. If the Charter continues to protect the rights of individuals and indigenous communities only, the majority of the continent (living on communal land under customary law) will remain onlookers of the human rights discourse in Africa.

At this stage a qualification is in order: we write as practitioners rather than academics, and therefore shall declare our interest. We are deliberately promoting a purposive interpretation of the Endorois decision that gives room for the recognition of African customary tenure rights beyond the rights ascribed to indigenous peoples by certain international law instruments.

We are not advocating for the re-drawing of the African map in order to recreate some pre-colonial ideal; rather, we are attempting to assert the rights of customary African communities who live on land still effectively regarded as 'terra nullius'.

We proceed to analyse how the Commission reached its decision to recognise the title claim of the Endorois community with particular reference to their choice of authorities and their use of the international instruments and precedents relating to indigenous peoples' rights.

In the following section, we address the situation of customary communities in Africa. We briefly outline the history that has led to the current predicament of rural communities in that their customary forms of land tenure receive scant formal legal recognition in domestic African courts.