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Indigenous peoples’ land rights in Tanzania and Kenya: the impact of strategic litigation and legal empowerment

MRG recently commissioned an evaluation of its litigation and legal empowerment programmes implemented with minorities and indigenous peoples in East Africa over the last 15 years. The evaluation found that these activities are powerful tools that create spaces and opportunities for communities to unite around shared struggles and make decisions that can impact positively on their collective rights. The evaluation considered the cases of the Endorois and Ogiek of Kenya and the Maasai of Tanzania, finding these strategic litigation programmes to have had great success overall, and concluded that key lessons can be drawn from them which can be applied to the conduct of future similar activities.

The findings presented in the full version of the report are strongly based on feedback direct from the relevant communities. The core learning points from the review are summarised below while a broader list of conclusions and recommendations appear in the Report on Legal Empowerment and Strategic Litigation.

1. Common contextual factors are roots for litigation strategies

Part of the impact of strategic litigation in East Africa is attributable to the grounding of arguments in common contextual factors: indigenous peoples seeking remedy for land losses. The Endorois, Ogiek and Maasai share a similar history of human rights violations, where their rights to land and resources have been disregarded by colonial powers. The arrival of external actors resulted in land grabs with violent evictions and forceful land dispossessions without consultation or adequate compensation. Litigation was an effort to find solutions to deeply historically embedded land disputes. In both countries, the social and political climate has been extremely resistant to recognising indigenous peoples’ land rights in accordance with international law. The history of legal engagement by the communities is also a common factor: all three communities approached MRG for support after years of failed attempts to engage the national legal system in recognising their rights. These common contexts allowed for cross-fertilisation of human rights standards and provided a strong platform for community-led litigation strategies.

2. Material consequences: a long term project

The regional human rights system has ruled in favour of indigenous communities and ordered land restitution, demarcation and titling but a strong plan to support implementation and actual material gain for the communities is necessary. In terms of redress and material consequences, winning these regional legal cases is the start of a process. For all three communities, the material consequences of litigation have been minimal and implementation is a great challenge. The prospects of effective implementation can be stalled by a lack of access to long-term financial support and human resources for national and international NGOs, as well as for human rights mechanisms and governmental bodies responsible for implementation, so adequate support on that front is essential.

3. Legal impact: a work in progress

The impact of strategic litigation on the national legal frameworks of Kenya and Tanzania is not straightforward. While legal empowerment of communities is undeniable, the judiciary in Kenya and Tanzania have not yet taken on board international law on indigenous peoples’ rights. The training of judges and registrars held in Tanzania shows the importance of such activities in raising the awareness of decision-makers about indigenous peoples’ rights in Africa and internationally. Litigation is part of a larger advocacy strategy aiming at making national laws consistent with indigenous peoples’ rights in international law and supporting the legal profession to work to realise these rights. From this perspective, litigation is a powerful tool for change and the impact of litigation is felt mainly at the community, regional and international levels, where the contribution of indigenous peoples’ organisations in Kenya and Tanzania and of MRG to the regional jurisprudence on land rights in Africa is remarkable.

4. Social impact: significant legal empowerment and community impact

In the course of the litigation processes, significant and positive social changes have been observed. Reports were received regarding the enhancement of communities’ sense of justice, legal empowerment and unity around long-term struggles. A certain degree of positive change in attitudes and behaviours of other parts of society, such as neighbouring communities, local authorities and the media, has also been reported as a consequence of the legal and human rights activities and litigation. This state of affairs however remains fragile, given they are not supported by material and legal changes. Also, in the case of both Kenya and Tanzania, some concerns were expressed by communities that litigation can contribute to the inflammation of existing tensions and surges of violence where the socio-political climate is unstable. Responsible action is necessary and a litigation programme operating in such circumstances must be supplemented with security screening measures and risk assessments for the prevention of violence, as well as access to funding and remedies in case of violence.

5. Future advocacy strategy and partnership

The experience of litigation in the African human rights system testifies that it is a fruitful platform for change. In spite of an often lengthy process, the use of African human rights mechanisms is highly likely to continue to produce positive and progressive legal outcomes for indigenous peoples’ rights. In the case of indigenous peoples’ land rights, environmental conservation is a cornerstone argument for which further advocacy activity can be explored. The role of indigenous peoples in conservation is widely embedded in international jurisprudence but governments are still sceptical of this argument so further efforts in this area could have a positive impact.

As MRG is reflecting on its partnerships in Africa and elsewhere, the review highlights that drawing on commonality of contexts can strengthen litigation strategies. Intensification and diversification of efforts on implementation and the legal education and empowerment of decision makers is necessary. Donors also need to be committed to the long-term and extensive nature of the support needed to achieve change. Community consultations led under this review call for long-term partnerships with MRG. The communities have said these partnerships should continue to include support for legal empowerment, community outreach and exchanges, the inclusive participation of women, youth and elders. They also call for the development of support for other strategic activities held in parallel to litiga

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