BY DR SIEGBERT OTTO
Continuing from my articles of the past two months and with their preliminary judgements of Ethiopia’s hydro-electric and agricultural developments along the Omo River, with all its inevitable, disastrous effects on the livelihoods of the indigenous people along the Lower Omo River Valley and those surrounding a shrinking Lake Turkana, I wish to continue illustrating the violations of fundamental human and democratic rights and freedoms the indigenous peoples are currently subjected to, in particular as cross-border conflicts and deadly violence over dwindling natural resources.
The UN Declaration on the Rights of Indigenous Peoples (UNDRIP) as a relevant international agreement is without any doubt relevant in this case, although Kenya abstained from the vote for its adoption by the UN’s General Assembly in 2007, whilst Ethiopia was noted for its absence (i.e. one year after it started its Gibe III Dam project). A UN General Assembly Declaration is not a legally binding instrument under international law, however and according to the UN, it is nevertheless “an important standard for the treatment of indigenous peoples that will undoubtedly be a significant tool towards eliminating human rights violations against the planet’s 370 million indigenous people and assisting them in combating discrimination and marginalization.”
Many of the rights in the Declaration require new approaches to global issues, such as development, decentralization and multicultural democracy. Countries will need to pursue participatory approaches in their interactions with indigenous peoples that will require meaningful consultations and the building of partnerships with indigenous peoples. This, however, has not happened in the case of the Gibe III Dam or sugarcane plantations. This should come as no surprise, as both Ethiopia and Kenya do not define the term ’indigenous peoples’ in their respective Constitutions.
This may be understandable to a certain degree, as defining the term within a post-colonial African context would have been quite difficult, but not impossible, as the term ‘peoples living on their ancestral (traditional) lands’ could have been used instead, for instance. International law tends to use ‘indigenous peoples’ when referring only to hunter-gatherers and pastoralists and this is not considered just in most African countries. However, the term ‘indigenous peoples’ has now been unequivocably defined by the African Court of Human and Peoples’ Rights in the case Endorois Welfare Council v Kenya (Case No 276/2003).
To many of us it still remains an enigma why there was a need for an African human rights instrument in the form of the African Charter on Human and Peoples’ Rights (ACHP), when UN ones have anyway universal application, and the priority for all African States should have been to join a universal regime and implement its measures effectively instead of starting a new one. Whilst Ethiopia, as an independent country already then, voted in favour of the Declaration in 1948, Colonial-Kenya was not party to the Universal Declaration of Human Rights (UDHR), but it has since independence been able to sign and ratify the 1966 International Covenant on Economic, Social and Cultural Rights and the International Covenant on Civil and Political Rights, the same as Ethiopia did.
On the other hand there are certain features in the African Charter of the African Union (AU) that make it unique and possibly even necessary for the continent. Understandably, it is an international human rights instrument, intended to promote and protect human rights and basic freedoms in the African continent. The Charter recognizes most of what are regarded universally accepted civil and political rights. As an international, constituent treaty, it opened up Africa to supra-national accountability and all members are bound by its articles. The Charter has formed the basis for individuals to claim rights in an international forum, and thereby has also dealt a blow to state sovereignty by emphasizing that human rights violations could no longer be swept under the carpet of ‘internal affairs’.
The ACHP also recognises certain economic, social and cultural rights, and overall places considerable emphasis on these rights. The Charter recognizes the Right to Work (Art. 15), the Right to Health (Art. 16) and the Right to Education (Art. 17). The ACHP is also understood to include a Right to Housing and a Right to Food as ‘implicit’ in the Charter, particularly in light of its provisions on the Right to Life (Art. 4), Right to Health (Art. 16) and Right to Development (Art. 22). This was established through a decision by the African Commission on Human and Peoples’ Rights (in existence since 1986) in the Case Social and Economic Rights Action Centre (SERAC) and Another v Nigeria (2001) [AHRLR 60 (ACHPR 2001)]. The case revolved around environmental degradation and health problems caused by oil production activities.
In addition to individual rights, the Charter also recognises collective rights, such as ‘Group Rights’ or ‘Peoples’ Rights’, to a degree not matched by European or Inter-American regional human rights instruments. The ACHP awards ‘peoples’ the Right to Equality (Art. 19), the Right to Self-determination (Art. 20), the Right to freely dispose of their Wealth and Natural Resources (Art. 21), the Right to Development (Art. 22), the Right to Peace and Security (Art. 23) and the right to “a generally satisfactory environment” (Art. 24). Consequently, the ACHP certainly protects all people’s and peoples’ rights to participate in decisions over their wealth and natural resources.
All articles are of the same degree of importance and legal standing, and one may not negate or override another, and it is my considered opinion that most – if not all – of the ACHP Articles mentioned above have been and will continue to be breached by both Ethiopia and Kenya.
The African Court of Human and Peoples’ Rights (ACHPR), established by the ‘Court Protocol’ to the ACHP in 2004, could be the second instance for seeking remedies for these legal human rights’ wrongs (the first instance would be national courts). The ACHPR is a regional court created to make judgments on AU States’ compliance with the ACHP, and has powers to render legally-binding decisions that further tighten the noose on human rights violators in Africa.
In a landmark decision delivered in February 2010, the ACHPR in the Case Endorois Welfare Council v Kenya (Case No 276/2003) affirmed a report by the African Commission on Human and Peoples’ Rights that the Endorois, a pastoralist community in central Kenya, had customary rights to land from which they had been dispossessed by the Kenyan Government between 1974 and 1979. Submission of the case to the ACHPR was necessary after failing to secure a favourable ruling within the Kenyan corridors of justice. The ACHPR found that this eviction, with minimal compensation, violated the Endorois’ rights under the African Charter as an indigenous people, to property (Art. 14), culture (Art. 17(2) & (3)), religion (Art. 8), natural resources (Art. 21), and development (Art. 22). It ordered the Kenyan Government to restore the Endorois to their ancestral land and to compensate them.
This decision is far-reaching for many reasons, not least because it is the first to determine who indigenous peoples in Africa are, and what their rights are. It is also the first by an international tribunal to find a violation of the right to development. Despite the ACHPR’s clear–cut decision that found the Kenyan government responsible and liable for violating the Endorois’ human rights, the Government has so far – almost five years later – failed to provide a clear plan on how it is going to implement the ruling.
The decision has significant implications for the actions taken by the Ethiopian Government in respect of the Gibe III Dam and associated developments, as the projects along the Omo River are almost identical to the ‘Endorois scenario’ and violates the rights of indigenous peoples, including in respect of giving free, prior and informed consent to developments on their land, and the rights to determine the use of their lands and other resources, let alone being evicted from their historic abodes.
The AU has developed four further statutory instruments (SIs) to complement the substantive legal framework of its original African Charter. These instruments focus on specific groups of people and areas of life, which are deemed to be particularly vulnerable to human rights abuses. Rights are therefore articulated in more detail to offer additional protection. All of the following AU SIs seem to be of direct relevance to the Gibe III Dam project and its anticipated consequences:
(1)A universal human rights treaty to protect children’s rights, the UN Convention on the Rights of the Child (CRC), has been in force since 1990 (adopted in 1989), with all African Nations – except Somalia and South-Sudan – parties to the Convention. The CRC sets out the civil, political, economic, social, health and cultural rights of children. Despite having this comprehensive and powerful Convention in place, the African Union introduced its own African Charter on the Rights and Welfare of the Child the same year. This Charter originated because the Member States of the AU believed that the CRC missed important socio-cultural and economic realities particular to Africa. It emphasised the need to include African cultural values and experiences when dealing with the rights of the child. However, unlike the CRC, which specifically ascribes rights to children of minorities, there is no similar provision in the African Charter, despite many countries in the region, including Ethiopia and Kenya, having significant populations of minority and indigenous groups. The African Charter has thereby diluted provisions made in the CRC.
Furthermore, fundamental principles guiding implementation of the rights of children under the African Charter include their life, survival and development. These, however, are currently compromised and even undermined actively by Ethiopia and passively by non-action on the part of Kenya.
(2) The Protocol on the Rights of Women in Africa of 2003 guarantees comprehensive rights to women, including rights that are pertinent to these discussions, such as Right to Dignity (Art. 3), Rights to Life, Integrity and Security of the Person (Art. 4), Right to Peace (Art. 10), Protection of Women in Armed Conflicts (Art. 11), Right to Education and Training (Art. 12), Economic and Social Welfare Rights (Art. 13), Right to Food Security (Art. 15), Right to Positive Cultural Context (Art. 17), Right to a Healthy and Sustainable Environment (Art. 18) and Right to Sustainable Development (Art. 19). Ethiopia and Kenya have both signed the Protocol, but neither has ratified it as yet.
(3) The African Charter on Democracy, Elections and Governance (adopted in 2007 and entered into force in 2012), was at the time hailed as a milestone for democracy in Africa, stating the minimum requirements for the observance of democratic principles, and its ratification and implementation as imperative to the attainment of peace and security, protection of human rights and effective democratic governance in Africa. Kenya signed the Charter in 2008, but has not ratified it yet, whilst Ethiopia signed it in 2007 and ratified it in 2008.
(4) The Convention for the Protection and Assistance of Internally Displaced Persons in Africa (adopted in 2009 and entered into force in 2012) is a treaty of the AU that addresses internal displacement caused by armed conflict, natural disasters and large-scale development projects in Africa. Article 5(4) specifically establishes State responsibilities for the protection and assistance of internally displaced persons, whose displacement is the result of “natural or human made disasters, including climate change”. Ethiopia signed the treaty in 2009, but has not ratified it yet, whilst Kenya is not even a signatory to the treaty.
In this instance, it is ultimately immaterial and of no consequence in a legal sense whether or not Ethiopia and Kenya have signed and ratified all of the above quoted (African) international human rights agreements, as both are – fully and to the utmost – legally-bound by the African Charter on Human and Peoples’ Rights. Consequently and not least backed-up by the ‘Endorois Case’, it is my considered opinion that the African Court for Human and Peoples’ Rights is probably the most appropriate court of first instance to seek justice for human rights’ wrongs that are currently perpetrated by AU State Governments and to pursue appropriate and just remedies.
Lastly, corporate activities abroad within a legal context must also be considered, as part of the agricultural development land in SW Ethiopia has been leased to foreign companies. Around 100,000ha are apparently being made available to ‘private investors’, corporations from Malaysia, India, Italy and Korea, who are planting bio-fuel and cash crops, such as cotton and maize. However, there is the extra-territorial obligation ‘to protect’ that obliges States to ensure that businesses, incorporated or domiciled within their jurisdiction, do not violate human rights abroad. Furthermore, States have extra-territorial obligations to respect, protect and fulfil human rights abroad, including through decisions made as part of inter-governmental organisations, including international financial institutions (such as the World Bank and the European Bank for Reconstruction and Development). However, in addition to these obligations already in existence, there must be greater accountability of business actors for human rights abuses through a binding international legal instrument, such as a treaty, and the currently slow pace of implementing the UN Guiding Principles on Business and Human Rights and its apparent unenforceability must be remedied as a matter of priority.
A stark choice remains now for political powers and policy makers, whether to find amicable, peaceful, legal and just solutions to these seemingly insurmountable problems currently facing both Ethiopians and Kenyans, otherwise both respective Governments lay themselves wide open, and with only few or any arguments available or accessible to them (i.e. pre-emptied and ‘barred’ by their own constitutions) to protect them should any legal action in an international forum be considered against them.
Operation of the Gibe III Dam and full implementation of the large-scale irrigation projects present the recipe for a perfect storm of human catastrophe, setting the stage for mass starvation, regional armed conflict and irreversible destruction of natural resources, possibly followed by political collapse. The alternative is an approach that embraces everything ignored by policy makers to date – the protection of the lives and livelihoods of the region’s half million indigenous peoples, the promotion of regional peace, and the sustainment of critical natural resources.
On a final note and in my personal opinion, any legal action that could be brought against the Ethiopian Government, as well as the Kenyan one (admittedly not as readily as against the former, but nevertheless), would require for all possible and blatantly obvious evidence and arguments combined to be used against the Gibe III Dam and its associated agricultural developments, whether of a socio-economic, cultural, environmental, constitutional or human and democratic rights nature, as these are all ultimately and intimately related and intertwined. By signing the Power Purchase Agreement with Ethiopia in 2012, the Government of Kenya has breached obligations under its own Constitution, has ignored a parliamentary resolution in 2011 regarding the Gibe III Dam and has ultimately accommodated the violation of fundamental human and democratic rights by way of actions and non-actions.
As human rights are the enshrinement of principles of morality, an imaginary ‘Morality Jury’ has already been out and returned with a majority verdict establishing that the Ethiopian Government’s attitude and actions are immoral, i.e. actively opposed to morality and that which is good or right, whilst those of the political powers in Kenya are amoral, as they are either unaware of, indifferent toward or do not believe in the devastating effects Ethiopia’s Gibe III Dam and irrigation of huge crop plantations will have on a large proportion of Kenya’s Turkana County and its people.
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