Key MRG legal cases undertaken since 2002
- African Commission of Human and Peoples’ Rights v Kenya (the ‘Ogiek case’)
- Centre for Minority Rights Development, Minority Rights Group International and Endorois Welfare Council (On Behalf Of the Endorois Community) v Kenya (the ‘Endorois’ case)
- Minority Rights Group International and UNIPROBA (on behalf of the Bahakwaninda family) v Burundi
- Kamanakao Association, RETENG and Minority Rights Group International v Botswana
- Mondorosi, Sukenya and Soitsambu Village Councils v Tanzania Breweries Limited, Tanzania Conservation Ltd, Ngorongoro District Council, Commissioner for Lands and Attorney-General (Tanzania)
- Mauritania - challenging slavery of Haratine Women
- Finci v Bosnia and Herzegovina
- Bagdonavicius v Russia
- Pilav v BiH
- Maya in Belize
- Chile - Mapuche
African Commission of Human and Peoples’ Rights v Kenya (the ‘Ogiek case’)
The Ogiek, one of the last forest-dwelling hunter-gatherer communities, are among some of the most marginalised of all indigenous peoples and minorities in the Republic of Kenya. They have lived since time immemorial in the Mau Forest in Kenya’s Rift Valley and in the forested areas around Mt Elgon, relying on these territories for food, shelter, identity and therefore their very survival. Since independence, and indeed prior to it, the Ogiek have been routinely subjected to arbitrary forced evictions from their ancestral land by their Government, without consultation or compensation. This has had a detrimental impact on the Ogiek’s pursuit of their traditional lifestyle, religious and cultural life, and access to natural resources on their land and, more generally, access to education, health services and justice.
In 2009, a case was lodged by OPDP and CEMIRIDE, on behalf of the Ogiek, before the African Commission on Human and Peoples' Rights against the Government of Kenya. The case alleges violations of the Ogiek's rights to life, property, natural resources, development, religion, culture and non-discrimination under the African Charter on Human and Peoples' Rights. MRG became involved in the case in April 2010 and, after an extensive fact finding mission and community consultations, drafted and filed admissibility submissions before the African Commission in August 2010.
In 2012, the African Commission decided to refer the case to the African Court on Human and Peoples' Rights as it demonstrated serious and mass human rights violations. On 15 March 2013, the Court issued a provisional measures order, requiring the Kenyan authorities to (i) immediately reinstate the restrictions it had imposed on land transactions in the Mau Forest Complex, and (ii) refrain from any act/thing that would/might irreparably prejudice the main application, until the Court gives its final decision in the case. The order was issued as the Court considered that “there is a situation of extreme gravity and urgency, as well as a risk of irreparable harm to the [rights of the] Ogiek of the Mau Forest”.
This is one of the first cases brought originally by NGOs to have been referred to the African Court by the African Commission, and is the first case to have reached hearing stage. It is therefore creating both important procedural as well as legal precedent. It is also one of the Court’s first ever cases, and the first to consider the rights of indigenous peoples. It should be heard by the Court later in 2014.
Centre for Minority Rights Development, Minority Rights Group International and Endorois Welfare Council (On Behalf Of the Endorois Community) v Kenya (the ‘Endorois’ case)
The Endorois are semi-nomadic pastoralists who were evicted from their ancestral land in and around Lake Bogoria in Kenya’s Rift Valley in the 1970s, in order to pave way for the creation of a national park. Following unsuccessful efforts to resolve the situation at the national level, in 2003, MRG assisted the Endorois to lodge a case before the African Commission on Human and Peoples’ Rights. The case challenged the lack of consultation or compensation for the forced displacement, and lack of protection afforded to the Endorois’ traditional way of life, and claimed violations of the Endorois’ rights to non-discrimination, religious and cultural life, and property, access to natural resources on their land and to development.
In a landmark decision adopted by the African Union on 2 February 2010, (download the decision here) the African Commission declared the expulsion of Endorois from their ancestral lands illegal. The Commission found that the Government had failed to recognise and protect Endorois’ ancestral land rights and failed to provide sufficient compensation or alternative grazing land following their eviction, or to grant restitution of their land, and similarly failed to include the community within the relevant development processes. It also made a series of wide-reaching recommendations for the Kenyan government to follow.
The case has created an important judicial precedent. It represents the first time that an African indigenous peoples’ rights over traditionally owned land have been legally recognised. In affirming Endorois’ collective right to ancestral lands, the Commission’s decision has not only awarded a full remedy to the Endorois community but has also significantly contributed to a better understanding and greater acceptance of indigenous rights in Africa. The decision also represents the first case globally in which a ruling has been made on the right to development. The Commission found that the Kenyan government’s failure to consult or compensate Endorois in relation to the use of their land amounted to a violation of this right. In doing so, the body has provided a strong incentive to all governments to regard their indigenous peoples as stakeholders in their development projects and to involve them in the development process. Together, the Commission’s rulings constitute a milestone in the progress of indigenous rights in Africa.
MRG continues to work with the Endorois community to seek implementation of the Commission’s ruling, assisting them with international and national advocacy work and providing capacity building training to the community by providing paralegal training. This includes securing and attending one of the first ever African Commission hearings on implementation and successfully requesting the first ever African Commission resolution against a State party for non-implementation of a Commission decision. We have also been supporting the Endorois to identify their land, and undertake a detailed survey of the losses suffered by the Endorois over the last 40 years. A 3D community map of the Endorois land has been produced as a result of a project undertaken by ERMIS. The map is housed within a cultural centre built on a small area of land, strategically placed at the entrance to the Lake Bogoria National Reserve and handed over to them by the local council.
Minority Rights Group International and UNIPROBA (on behalf of the Bahakwaninda family) v Burundi
The Batwa are a forest people recognised as being the first inhabitants of the land. They are traditionally a hunter gatherer community. The Batwa represent some of the poorest and most vulnerable minority groups in the Great Lakes Region found in Rwanda, Burundi, the Democratic Republic of Congo and Uganda. As hunter-gatherers and former hunter-gatherers, they are commonly associated with the bush by their neighbours and stereotyped accordingly.
This small Batwa community have been locked in a land dispute with their neighbouring majority community for over 40 years. In 1975, the local Burundi court granted the Batwa rights to access and ownership over the land in dispute, but this decision has never been enforced, and the community remains deprived of access to their land. In 2005, in violation of usual court procedure, the case was re-opened by the judiciary on request of the majority community, and decided against the Batwa, in clear violation of national and international law. In 2011, a case focusing on the right to effective remedy and execution of judgments, together with the right not to be discriminated, was brought before the African Commission on Human and Peoples’ Rights, where it remains pending.
Kamanakao Association, RETENG and Minority Rights Group International v Botswana
MRG has been involved in this struggle to ensure non-discriminatory access for minority tribes to the House of Chiefs for over ten years. Botswana’s laws, including the Tribal Territories Act and the Chieftainship Act, only recognise the dominant Tswana-speaking tribes, denying the remaining 38 non-Tswana speaking tribes access to representation in the House of Chiefs. Following a finding of the discriminatory nature of these laws by the High Court in 2001, failure of the Government to comply with the judgment and subsequent engagement of CERD by the Wayeyi, the Botswana Government then embarked on drafting of a new law, which left the discriminatory provisions in place thus only effecting superficial changes to the Act. In 2007, a case was filed before the African Commission on Human and Peoples’ Rights, which led to the Government temporarily granting the Wayeyi access to the House of Chiefs, but only on a discretionary basis. In late March 2008, the inauguration of the Wayeyi Chief took place, but there was no subsequent re-appointment in the next round of elections.
Unfortunately, the case was declared inadmissible by the Commission towards the end of 2011, on the basis that domestic remedies had not been exhausted, even though other decisions of Botswana’s highest court indicated that such domestic legal action would be futile. After adoption of the Commission’s report by the African Union in 2013, MRG requested a review of the inadmissibility decision based on the Commission’s own jurisprudence (according to which domestic remedies do not need to be pursued wheredoing so would be futile), but this was denied.
MRG however continues to work with the Wayeyi exploring other advocacy options on issues surrounding tribal recognition and equality and possible further domestic legal proceedings.
Mondorosi, Sukenya and Soitsambu Village Councils v Tanzania Breweries Limited, Tanzania Conservation Ltd, Ngorongoro District Council, Commissioner for Lands and Attorney-General (Tanzania)
This case concerns Maasai pastoralists who were forcibly ejected from their land on Sukenya farm, Loliondo, Northern Tanzania. Their troubles began in the 1980s, when Tanzania Breweries Limited (TBL) acquired 10,000 acres of land within Soitsambu village with the intentions of wheat and barley cultivation. The local communities contend that this acquisition was never legalised, as TBL failed to follow the required conditions such as consulting with the landowners; neither did they offer any compensation for the land. Out of the 10,000 acres it acquired, it only used about 700 for cultivation. As such, life continued as normal for the Maasai, who continued to use the land for grazing and watering their livestock. They did so for a period of 19 years without any disturbance, a fact that led to the belief that they had legally become the landowners again. However, in 2006, TBL sold the land to Tanzania Conservation Limited (TCL) – a Tanzanian incorporated company, run by an American couple who own US safari company Thomson Safaris. There have been allegations of destruction of homes, livestock and harassment of villagers who were trying to access the natural resources upon their ancestrally-owned land to graze their animals and for water.
The community started legal proceedings before the local courts, bringing an adverse possession action on behalf of the villagers against TBL, which previously owned the land, and Tanzanian Conservation Limited, the current owners of the land and subsidiary of Thomson Safaris. In addition, the villagers sought an injunction seeking to stop further development on the land pending the determination of the case. The applications were dismissed in 2013 for procedural reasons but new proceedings were lodged several months later, and remain pending.
MRG is also working with Earthrights International, who have successfully pursued a 1782 discovery action against Thomson Safaris in the US courts, which has given access to information relevant to the proceedings in Tanzania.
In light of the alleged harassment and extra judicial arrests of the villagers, MRG lodged an urgent action request before the UN’s Committee on the Elimination of Racial Discrimination (CERD) in March 2009 and, as a direct result, CERD wrote to the Tanzanian Government stipulating a set of interim measures to curtail the harassment, and requesting further information from the Government. MRG has continued to follow-up with CERD, which submitted further letters to the Tanzanian Government in 2011 and 2013.
Mauritania - challenging slavery of Haratine Women
The Haratine are an ethnic minority people found in Mauritania, whose population is essentially composed of Moors (or Beidanes) who live in the North of the country. The term Haratine refers to slaves (freed slaves) and persons of slave descent. Haratine are descendants of black ethnic groups that were captured by the majority white Maures or Berber- Arabs and have been discriminated against and have lived under slavery for years. Slavery, underpinned by deep-seated discrimination as well as marginalisation, remains a common practice in Mauritania regardless of its prohibition under the law. Mauritanian adults and children continue to be sold and bought as slaves, children are enslaved by the masters of their parents and women are forced to marry their masters. Some are also disposed of their ancestral property by their masters or masters of their parents upon their parents’ deaths.
MRG has been supporting five domestic cases challenging slavery and discrimination against Haratine women and children in Mauritania. We work closely with a local partner and a Haratine lawyer, providing input and guidance in the litigation. In November 2011, we saw a breakthrough in one of our cases resulting in the handing down of the first successful prosecution against a slave master since the passing of the Anti-Slavery Law. The master of two slave children was fined and sentenced to two years’ imprisonment and ordered to pay compensation to the children; however their lawyer appealed on the grounds that the judgment was too lenient. However, the owner was released on bail after four months’ detention. The victim is also now appealing and this case, together with four others, remains pending before the courts.
Reluctance at the judicial and political levels has proved to be a stumbling block towards pursuing these cases. This is despite the local lawyer and partner meeting with Ministers and other officials. A joint shadow report addressing slavery and its impact was provided to the United Nations Committee on Economic, Social and Cultural Rights in September 2012. In September 2013, MRG submitted a shadow report to the Human Rights Committee in conjunction with Anti-Slavery International and SOS-Esclaves, in efforts to further increase awareness of the issues.
Finci v Bosnia and Herzegovina
The electoral system in Bosnia and Herzegovina (BiH) is based on a strict division into Bosniak, Croats and Serbs who are defined as the nation’s ‘Constituent Peoples’. This system excludes all other citizens (known as ‘Others’), including Jews, Roma and other national minorities who have lived in BiH for centuries, from standing for election to either the three-member presidency or the House of Peoples of the Parliamentary Assembly.
MRG represented Mr Finci, a member of the Jewish minority, before the European Court of Human Rights (ECtHR), challenging the discrimination resulting from his inability to stand for election to the Presidency or the House of Peoples. This was joined with the case of Dervo Sedjic, a member of the Roma community. In 2009, the case was referred to the ECtHR’s Grand Chamber. Later that year, the Grand Chamber found BiH to be in breach of Protocol 12 of the European Convention on Human Rights (ECHR), which provides for the right to equal treatment and non-discrimination, in failing to allow its citizens who are not ‘Constituent Peoples’ to stand for election to the presidency. The ECtHR also found a violation of Article 14 of the ECHR, which provides for freedom from discrimination, taken in conjunction with Article 3 of Protocol 1, which protects free elections to the legislature, as a result of the inability of ‘Others’ to stand for election to the House of Peoples. The judgment represents the first time that the ECtHR has considered how Protocol 12 of the ECHR should be applied to potentially discriminatory situations.
However, the ruling has not been implemented to date. MRG has been working actively to secure its implementation, through international advocacy at the Council of Europe, EU and UN. In October 2013, a high level political meeting was held between representatives of the Bosnian Government and the European Commission, and it was agreed that the former would implement the ruling in Finci v Bosnia and Herzegovina.
However the parties failed to implement the agreed by the envisaged deadline. As a result, The European Commission has curbed financial funding provided to Bosnia by half. Though Bosnia and Herzegovina is still reluctant to implement the ruling, the agreements made to facilitate the implementation still remain valid and the government is obliged to put them into operation.
Bagdonavicius v Russia
MRG, in conjunction with European Roma Rights Centre, submitted a third party intervention in this case concerning Roma housing rights. The applicants are all members of the Roma community whose homes were demolished and burned by the Russian authorities, whilst homes in the same area owned by ethnic Russians were left standing. The case raises several critical issues in relation to permissible restrictions of rights protected under Article 8. One of the key legal issues concerns the degree to which the right to housing can be legitimately restricted in order to safeguard the rights and freedom of others and safeguard public order, an issue which affects Roma across Europe. Similarly, in relation to Article 1 of Protocol No. 1, the issue of respect for the right to property has not yet been fully explored by the Court in the context of evictions of Roma. The case also raises fundamental issues regarding proving discrimination under Article 14 since, evidentially at least, it is a more clear-cut case of discrimination. The case also complements our work on Roma housing issues under the Bosnia programme.
Pilav v BiH
MRG, in conjunction with Human Rights Watch and Cardozo Law School (with pro bono assistance from lawyers at US firm Chadbourne & Parke) submitted a third party intervention in this case concerning a Bosniak in the Republika Srpska (RS) who is prevented from standing for election for the Presidency by nature of his ethnicity (only Serbs in RS can stand for election). The case raises several critical issues in relation to permissible restrictions of rights protected under the ECHR, especially when minority groups are involved. One of the key legal issues concerns the degree to which the right to run for the Presidency, and consequently to be freely elected, can be limited without constituting a case of discrimination on the grounds of ethnicity. A further issue is whether the principles set out in Sejdic & Finci should be applied to the different, but related, situation in this case. The case therefore complements and furthers work already conducted under the programme in relation to Finci and also MRG's Bosnia programme.
Maya in Belize
In 2004, the Inter-American Commission on Human Rights (IACHR) issued a report recognizing Maya people’s collective rights to land traditionally used and occupied in Toledo. The IACHR found that the Government had violated Maya people’s right to property and equality under international law, and it recommended that the Government delimit, demarcate and title Maya ancestral land. MRG has been advising SATIIM (Sarstoon-Temash Institute for Indigenous Management), a small NGO in Belize that is working to protect the rights of the Maya in Toledo in relation to Belize’s non-implementation of this IACHR decision.
In 2007, the Maya Leaders Alliance and Toledo Alcaldes Association, on behalf of 38 Maya communities, brought an action in the domestic courts for non-implementation of the IACHR decision. The Supreme Court of Belize ordered the Government to recognise Maya land rights, demarcate and title their land, and cease and abstain from interfering with their right to property. The Government never appealed this decision. After 2007, very little progress was made in terms of enforcing the customary land rights recognised by the Supreme Court of Belize. Another lawsuit was lodged with the Supreme Court in June 2008, seeking a declaration that the Government’s failure to protect the Mayan rights is a violation of the Constitution, and requesting that the Supreme Court order the government to abstain from carrying out any activities on Mayan land. In 2010, the Supreme Court clarified that the 2007 judgment applied to Maya throughout Toledo and issued an injunction prohibiting concessions.
After a government appeal was lodged to the 2010 judgment in 2013, the Court of Appeal affirmed Maya land rights finding that Maya of Toledo possess rights to land and resources in Southern Belize based on their longstanding use and occupancy. However it also found that the Supreme Court had erroneously found that the Constitution of Belize imposes a positive obligation on the Government to adopt affirmative measures to protect the rights of the respondents. Based on this, the Court of Appeal revoked the Supreme Court’s order of injunction against Government, concerning interference with Maya land.
Additionally, a claim was brought by SATIIM and four communities to stop US Capital operating in the Sarstoon-Temash National Park. This was heard in October 2013 and judgment was delivered at the end of March 2014. In a strong ruling, the Supreme Court held that government permission to commence oil drilling and construct roads in the national park by US Capital Energy was unlawful on the basis that the permission was granted without the government seeking the free, prior and informed consent of the affected Maya communities. However, a few weeks after issuing this order it was modified to provide that the government need simply make good faith attempts to obtain consent rather than actually obtaining it. The court also went on to order mediation between the parties.
A case is also currently pending in front of the Caribbean Court of Justice. MRG has continued to advocate Mayan rights and in early 2013, several shadow reports were submitted to the Human Rights Committee and the Universal Periodic Review (UPR). The Committee for the Elimination of Racial Discrimination (CERD) and the Human Rights Council have both condemned the government’s non compliance with the IACHR recommendation. MRG continues to give support to the work of SATIIM, and in March 2014, MRG and SATIIM delivered an oral statement at the adoption of the UPR report in March 2014. Furthermore in August 2014, MRG, together with SATIIM, the Maya’s Leaders Alliance (MLA) and the Indigenous People’s Law and Policy Programme (Arizona), submitted an alternative report to the Committee on Elimination of Racial Discrimination (CERD) in respect of its examination of the USA regarding the USA’s failure to comply with its extra-territorial obligations with regards to US Capital Belize which had parent companies registered in the US.
Chile - Mapuche
MRG submitted an amicus brief in this case before the Inter-American Court of Human Rights (IACtHR), which focuses on the right to non-discrimination and equality before the law to concerning members of the Mapuche community who were persecuted under domestic anti-terrorism legislation in respect of attacks on certain land holdings and vehicles. Anti-terrorism has only been invoked in the prosecution of members of the Mapuche community and its application means that the provisions of the right to fair trial available under general criminal law are not fully applied, e.g. under the anti-terrorist legislation, witnesses can be anonymous. Members of the community had been accorded high prison sentences after being convicted under the controversial Anti-Terrorist Act. The IACHR had already found against the state of Chile in all three cases, finding that there had been violations of, inter alia, the rights to equality and non-discrimination and the right to a fair trial.
MRG’s amicus submission sought to argue that given there was a prima facie case of discrimination on the basis of statistics, the burden shifted to the state to prove that the application was not discriminatory. We also looked into specific standards regarding ethnic discrimination and the violations of such standards by and negative consequences of racial stereotyping.
In May 2014, the Inter-American Court of Human Rights found the State of Chile guilty of violating the human rights of members of the Mapuche people. Even though the court did not consider that the law had been applied discriminatorily by the prosecuting authorities against the Mapuche, the judgment nevertheless found that the legislation itself was framed as to violate the right of presumed innocence, and that the domestic courts had relied on stereotypes and prejudices regarding the ‘Mapuche conflict’, rather than verifying that all the elements of the crime had been proved against the accused by the prosecuting authorities.