Becoming indigenous in the pursuit of justice: The African Commission on Human and Peoples' Rights and the Endorois

Abstract

The February 2010 ruling of the African Commission on Human and Peoples’ Rights on the Kenyan government's violation of the Endorois people’s rights is the Commission's most substantive and radical decision to date, with important implications for international jurisprudence, national politics, and local strategies – as well as potential socio-economic realities and inter-communal relations. The ruling combined a liberal interpretation of the African Charter with far-reaching recommendations and the request for a government progress report. It was the first time that the Commission had decided on and extended individual and peoples' rights to indigenous people, and is the first time in the world that a specific right to development has been adjudicated upon. By accepting the Endorois as an indigenous community the decision completes a process of ethnic invention that began in the 1990s, and has seen Endorois assert ethnic difference from their Kalenjin neighbours as a strategy of legal argument. The outcome is a victory for Endorois leaders and may help other communities tackle state injustice. However, the broad implications for social justice and inter-communal relations are contentious given the decision's reinforcement of an inherently exclusive sense of ethnic territoriality and neglect of gross inequalities in wealth and power. From this perspective, the decision reflects a modern obsession with the ‘politics of recognition’ to the neglect of a ‘politics of redistribution’.

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