BY DR SIEGE OTTO
Last month my contribution to The Nairobi Law Monthly concentrated exclusively on the adverse environmental and associated socio-economic effects of Ethiopia’s Gilgel Gibe III Hydroelectric Dam. It must be appreciated though that Ethiopia and Kenya must be looked upon in tandem regarding issues surrounding ‘Gibe III’, as both governments signed a legally-binding Power Purchase Agreement (PPA) in January 2012, against the advice by international experts and counsel by UNESCO, and even contrary to a prior resolution passed by the Kenyan Parliament in 2011.
It has been demonstrated beyond reasonable scientific doubt that there will be far-reaching, devastating and permanent damage to the peoples, their lives, livelihoods and environments of the Lower Omo Valley and Lake Turkana, caused by Ethiopia’s ambitious development plans regarding hydro-dams along the Omo River and associated vast – state-owned, as well as land leased by foreign corporations for sugarcane and other cash-crop plantations, not only within its borders, but also across into Kenya.
In a nutshell, the situations along the Lower Omo Valley in Ethiopia and Kenya’s Turkana County are currently both dire and will even get worse for the lives of individuals and that of local communities, as well as within the context of national, regional, continental and global human and democratic rights and freedoms.
Livelihoods differ along the length of the Omo Valley and between ethnic groups; the majority are agro-pastoralists, practicing flood-retreat agriculture on the banks of the Omo River, while also raising cattle for which the annual flooding of the Omo River replenishes important grazing areas. For many of these ethnic groups, cattle are a source of pride, wealth, food and are intimately tied to their cultural identity.
The annual flooding of the Omo River dictates the rhythms of life and culture that permeate the area, but that cyclical, dynamic, natural system will cease to exist once the Gibe III Dam is fully operational. Intermittent releases of water from the dam to simulate flooding have been promised, but that same promise was given and not kept in the case of the previous Gibe Dams. In any case, there has not been even one dam project in Sub-Saharan Africa that has delivered its expectations in respect of socio-economic or environmental benefits.
In addition to the forecast food insecurity, starvation and associated health problems, forced evictions and displacement of indigenous peoples from their traditional and ancestral lands with minimal (if any) compensation, intensively irrigated crop plantations with water from the River Omo (the only source available for irrigation), foremost for sugarcane, will be devastating. Eviction is followed by predominantly involuntary relocation in villages under the widely publicized Ethiopian resettlement and ‘villagization’ programme.
Arid, drought-stricken Turkana County is currently already part of a conflict region, not only internal, but also devastating cross-border conflicts with raiders from Uganda, South Sudan and Ethiopia. Pastoralist communities in Turkana have highest poverty and food insecurity (crisis status on famine-index) levels. They have lowest education levels with large numbers of out-of–school children and high levels of civil insecurity. About 90% of Turkana are dependent on animal husbandry and subsistence agriculture. Unreliable rainfall and cyclical drought, followed by severe floods, increasingly driven by man-made climate change, impoverishes the region. It causes food scarcity, malnutrition and high child mortality. Competition over already scarce and ever decreasing natural resources, such as pasture and water, is often severe and violent. Cattle rustling, traditionally practiced, has become more destructive with increasing poverty and proliferation of illicit arms and under the influence of external political and economic motives. Livelihoods are frequently disrupted and unemployment among young pastoralists is turning them into key participants in perpetuating conflicts. Welfare facilities are limited and the few that exist are abandoned or even destroyed, because of violent conflicts and insecurity, leaving children with no access to education or health services.
The perpetual conflict makes it difficult to carry out effective development action and infrastructure building. There is frequent loss of life and property, and displacement of people who are rendered landless and without access to livelihoods. In the camps of the displaced, there is a high level of starvation, epidemics, as well as increased rape, assault, prostitution and child labour. There is a disproportionate effect on children and women, with associated impaired development and psycho-social trauma, and inadequacy of protection, relief and peace building measures and interventions. Conflict management is made difficult due to remoteness of the area (as Kenya, with all its powers and prowess, does not appear to extend beyond Kitale) and to the nomadic lifestyle of the pastoralists.
Inadequate state security and marginalization of the indigenous peoples is the bifurcating root cause of all of these symptoms of a Turkana County already in peril.
Needless to say that Turkana’s newly discovered water and oil riches will make the County even more ‘attractive’ and prone to cross-border – violent and deadly – raids and invasions, and will exacerbate the currently already desperate humanitarian crisis. The inadequate competence of the KDF will not be able to remedy the issue of county insecurity and will most probably concentrate (still with difficulties) chiefly on securing the newly established oil fields and water treasures in the county.
The question arises: How can current and unfolding situations in Ethiopia and Kenya be reconciled with their respective Constitutions?
It could be argued that the Ethiopian Constitution (adopted in 1994) is very much an incomplete, not self-contained or ‘stand alone’ document; it is also arguably riddled with contradictions and omissions.
Articles 9 and 10 provide the national context in which obligations emanating from international treaties will be looked at, because the Constitution assures that all international agreements ratified by Ethiopia are an integral part of national law (Art. 9(4)), and Article 10 stress that human rights and freedoms are inviolable and inalienable, and that human and democratic rights of citizens and peoples will be respected. Human and democratic rights are specified and defined in Chapter III (Fundamental Rights and Freedoms) Part I and II respectively. Whilst Part I contains universally accepted standards on human rights, Articles in Part II on democratic rights are of particular interest and relevance in this case. For instance, Article 32(1) guarantees any Ethiopian, within the national territory, the right to liberty of movement and freedom to choose his residence.
Further rights relevant to people in the Lower Omo Valley are enshrined in Articles 40 and 41. Article 40(3) vests the right to ownership of rural and urban land, as well as of all natural resources, exclusively in the State and in the peoples of Ethiopia. This common property may not be subject to sale or to other means of exchange. This seems to contradict Article 40(6), because any ‘private investors’ have the right to the use of land on the basis of payment arrangements (see also Part II of this article in the January issue of The Nairobi Law Monthly for further elaboration on this particular subject).
Peasants have the right to obtain land without payment and the protection against eviction from their possession (Art. 40(4)), whilst pastoralists have the right to free land for grazing and cultivation as well as the right not to be displaced from their own lands (Art. 40(5)). However, Articles 40(4), (5) & (6) contain each the caveat that their provisions are all still subject to separate national laws. Articles 41(1) & (2) deal with the rights of all Ethiopians to choose and pursue a livelihood of their choice anywhere within the national territory. The State has also the responsibility to protect and preserve historical and cultural legacies (Art. 41(9)).
Kenya’s new 2010 Constitution (replacing the 1969 Constitution) has achieved many gains and is much more comprehensive than the Ethiopian one. For instance, Article 2 not only states that any treaty or convention ratified by Kenya shall form part of the law of Kenya (Art. 2(6)), but Article 2(5) – preceding it – makes it already clear that the general rules of international law shall form part of Kenyan law.
The national values and principles of governance include in Article 10(2), inter alia, the rule of law, participation of the people, human dignity, human rights and protection of the marginalised. Good governance, integrity, transparency, accountability and sustainable development are further ‘virtues’ the national government is supposed to aspire to and rules to abide by.
An advanced Bill of Rights recognizes, inter alia, socio-economic rights of Kenyan citizens (Chapter 4). Under Article 29 every person has the right to freedom and security which includes the right not to be subjected to any form of violence from either public or private sources. An advanced Human Rights and Equality Commission will also have power to investigate and summon people involved in human rights abuses – whether within the government or members of the public. Its functions include, inter alia, “to receive and investigate complaints about alleged abuses of human rights and take steps to secure appropriate redress where human rights have been violated.”
Furthermore, any member of the public has a right to bring up a case against the government on the basis of infringement of Human Rights and the Bill of Rights (Art. 23(1)(2)). The courts and government institutions are all bound by the Bill of Rights as per the Constitution (Art. 2(1) & Art. 10(1)). Article 204 establishes an Equalization Fund to improve access to basic needs of marginalised communities. Finally, environmental rights are recognised under Chapter 5 (Part 2), including, inter alia, the right to a clean and healthy environment.
In respect of Devolution, County Governments will only be autonomous in the implementation of distinct functions, as listed in Part 1 of the Fourth Schedule. Foreign affairs, foreign policy and international trade remain the responsibilities of the National Government (Part 1(1)), as are national defence and the use of the national defence services (Part 1(6)), and the Police services (Part 1(7)).
In respect of the Gibe III Dam and its associated developments that will result in considerable adverse impacts on Turkana County and its population, responsibilities rest solely with the National Government, whether by way of action or non-action. The KDF, however, fail to secure the borders not only with Ethiopia, but also with Uganda and South Sudan, thereby exposing the population of Turkana County to unprecedented human rights violations.
International human rights instruments, very much applicable in this instance, are relevant to international human rights law and the protection of human rights in general. They can be classified into two categories: ‘Declarations’, adopted by bodies such as the UN’s General Assembly, which are not legally-binding, and ‘Conventions’, which are legally-binding instruments concluded under international law. International treaties and even declarations can over time, however, obtain the status of customary international law.
International human rights instruments can be divided further into global instruments, to which any state in the world can be a party to, and regional instruments, which are restricted to states in a particular region of the world. For instance, in 1981 the African Charter on Human and Peoples’ Rights was adopted, although the core international treaties on human rights, such as the Universal Declaration of Human Rights (UDHR), the International Covenant on Economic, Social and Cultural Rights (ICESCR) and the International Covenant on Civil and Political Rights (ICCPR) were already in place.
The Universal Declaration of Human Rights (UDHR) was adopted by the United Nations’ General Assembly in 1948, partly in response to the atrocities committed in World War II. It is generally viewed as the preeminent statement of international rights and has been identified as being a culmination of centuries of thinking along both secular and religious lines. Although the UDHR was a non-binding resolution, it is now considered by many to have acquired the force of international customary law which may be invoked in appropriate circumstances by national and other judiciaries. In 1966, the International Covenant on Economic, Social and Cultural Rights (ICESCR) and the International Covenant on Civil and Political Rights (ICCPR) were adopted by the UN, between them making the rights contained in the UDHR binding on all states that have signed this treaty, creating Human Rights Law. For whatever reasons of convoluted diplomatic negotiations, the ICESCR was adopted shortly before the ICCPR, i.e. 16 & 19 December 1966 respectively.
Relevant to the current Gibe III Dam situation are the following provisions made in the ICESCR and the ICCPR:
The ICESCR in Article 1 recognizes the right of all peoples to self-determination, including the right to pursue their economic, social and cultural goals, and manage and dispose of their own resources. It also recognizes a negative right (i.e. one that usually obliges inaction) of a people not to be deprived of its means of subsistence. Article 12 recognizes the right of everyone to the enjoyment of the highest attainable standard of physical and mental health, including for the healthy development of the child, and the prevention, treatment and control of epidemic, endemic and other diseases. Article 13 recognizes the right of everyone to education and that primary education shall be compulsory, available free to all and “be directed to the full development of the human personality and the sense of its dignity, and shall strengthen the respect for human rights and fundamental freedoms.” The right of everyone to take part in cultural life is enshrined in Article 15(1).
The ICCPR follows the structure of the UDHR and ICESCR with relevant parts of Article 1 being identical to those of Article 1 in the ICESCR, for instance the same wording is used that “in no case may a people be deprived of its own means of subsistence”. Furthermore, the Charter recognizes the Right to Freedom of Movement (Art. 12); it guarantees that every individual will have the right to freedom of movement within the borders of their own state so long as they abide by the state’s laws. Article 27 ensures that ethnic minorities are not denied the right, inter alia, to enjoy their own culture.
In the case of SW Ethiopia and Turkana County, freedom of movement has been greatly restricted because of active eviction from traditional and ancestral lands (SW Ethiopia), insecurity and associated displacement of people from traditionally used areas (NW Kenya), thereby also resulting in the deprivation of means of subsistence, access to water, education and health services, to name but four.
It is obvious from all of the above that the constitutional and international rights of people and peoples in the Lower Omo Valley and in Turkana County, relating to human and democratic rights and freedoms, movements, residence, property, livelihoods, and historical and cultural legacies, have been and will continue to be violated by the developments in the area.
As a final question in this dilemma: Is there actually any point or validity in politicians – being sworn in either on the Holy Book or their country’s Constitution – when moral and legal obligations enshrined within them are not being observed or enforced?
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