LAND AND INDIGENOUS PEOPLES RIGHTS WORKSHOP 5-9 DECEMBER 2008 NAIROBI, KENYA

Transcription

1 LAND AND INDIGENOUS PEOPLES RIGHTS WORKSHOP 5-9 DECEMBER 2008 NAIROBI, KENYA REPORT WORKSHOP PARTICIPANTS Seated, L-R: Rhoda Rotino, Maulid Haji, Nyang ori Ohenjo, Mwambi Mwasaru, Leonida Odongo. Standing, L-R: Mariam Munang, Rose Odhiambo, George Mukundi, Ben Rapaine Koissaba, Munini Mutuki, Hassan Shano, Johnson Malih Ole Kaunga, Lawrence Mbelati, Daniel Salau Rogei, Angela Leshao, Soipan Tuya, Okelo Namadoa. Absent: Judith, Gerald Tushabe, Jackline Mwende, Henry Neza, Abel, Paul Mulindwa.

2 Land and Indigenous Peoples Rights Workshop, Nairobi, Dec INTRODUCTION From 5-9 December 2008, Equalinrights hosted a workshop on land and indigenous peoples rights in Nairobi, Kenya. This workshop was attended by 21 practitioners from Kenya, Uganda and South Africa and was facilitated by Mwambi Mwasaru. This workshop served as a follow-up activity to an earlier e-discussion held in April 2008 on the issue of the Law and HRBD. One of the issues that arose during this e-discussion was the question of land ownership by indigenous peoples. The issues that were raised included the marginalization of indigenous peoples in society as well as in law, deprivation of socio-economic development plans in indigenous community areas by the state, laws that conflict with indigenous peoples traditional way of life, individual versus community land ownership, ownership based on native customary laws, and reclaiming land from which indigenous peoples have been displaced due to conflict and violence. However, there was little opportunity during the e-discussion to discuss and explore each of these issues in depth but the participants nevertheless expressed their interest in participating in a follow-up discussion. This workshop thus provided a platform to further discuss these issues. Beyond that, Equalinrights envisaged this workshop to be part of a long-term collaborative learning process. It is hoped that this workshop would build relationships among practitioners who are dedicated to indigenous peoples rights and that they will continue to engage with each other in a continuous cycle of reflecting on present strategies, drawing out lessons and trialing new processes. It is hoped that this workshop will serve as a launch pad for future projects to support this learning process. This workshop aimed to achieve the following objectives: 1. Create space for practitioners from different cultural, political and social contexts to meet and interact with each other in order to learn from one another 2. Encourage practitioners to reflect on their current practices, compare and consider different methodologies and strategies and to learn new tools that would enable them to better support the realization of land rights by indigenous peoples from the bottom-up. 3. Provide opportunity for establishing new partnerships between practitioners that may lead to further processes of interaction, support and learning beyond the workshop. 4. Serve as a starting point for a collaborative project on land and indigenous peoples rights 5. Introduce a shared online platform (wiki) for future collaboration By the end of this workshop, it is hoped that participants can articulate the major challenges they face in the realization of the right to land of indigenous peoples, have deeper knowledge of structural and root causes of the deprivation of land suffered by indigenous peoples, enriched their experience and knowledge about good practices, new methodologies and strategies to realise the right to land by indigenous peoples, developed a plan of action to trial a new methodology in their own respective work and are motivated to collaborate and continue networking with each other to continue exchanges beyond the workshop. The facilitator for this workshop was Mwambi Mwasaru, a highly experienced facilitator who specializes on human-rights based approaches to development. Mwambi has more than 25 years experience in the formal and non-formal education sector. His expertise is using participatory methodology and human rights movement as a force for transformation at local, national and global traditions and he has long experience with assisting groups and organizations to develop strategic plans, project design, monitoring frameworks and project evaluation. He has previously been affiliated with the Development Education

3 Land and Indigenous Peoples Rights Workshop, Nairobi, Dec of Leadership Teams in Action, the Legal Advice/Kituo Cha Sheria, the Coastal Rural Support Program, and the Rights and Participation Project of the Institute of Development Studies. He was formerly a Visiting Fellow at the Human Rights Program of the Harvard Law School and Acting Executive Director of the Kenya Human Rights Commission. Currently he lectures on community development and advocacy at the Catholic University of Eastern Africa. DAY 1: 6 DECEMBER 2008 THE STRUGGLE TO PROTECT INDIGENOUS PEOPLES LAND RIGHTS: A CONTEXTUAL ANALYSIS ORGANISATIONAL SUCCESSES AND CHALLENGES The diversity amongst the participants provided much space for sharing organizational experiences. Participants were members of community-based organizations, non-governmental organizations, lawyers, academics, legal aid bodies, organizations that were newly-established as well as more established ones and they each represented various indigenous and minority groups ; the Maasai, the Batwa and the Fisher peoples. The organisations were prompted to compare their experiences based on the following questions: What are the main activities of your organization? Activities Awareness raising on land and property rights Networking Advocacy & Lobbying o Participate in policy and legislation drafting processes, notably the Kenyan national land policy and national constitution o Submit memorandums to governments o Participate in parallel reporting procedures o Using African Union (AU) institutions and international human rights instruments as strategic advocacy and lobbying tools Training o Train paralegals and community land owners on land rights issues o Train communities in sustainable environmental management o Promote environmentally-friendly income generating activities, e.g. ecotourism Environmental conservation o Protect the natural resources of indigenous peoples Public interest litigation o Provide legal aid to communities bringing cases to the court o Strategic litigation o Host legal aid clinics Research and Documentation o Document indigenous knowledge on biodiversity and environmental management

4 Land and Indigenous Peoples Rights Workshop, Nairobi, Dec o Investigate allegations of human rights violations suffered by indigenous peoples o Publish research materials on land issues targeted at the grassroots level, policy level and academic level o Build-up a documentation centre What have been the major successes enjoyed and challenges faced by your organization in the past five years? What are the underlying factors influencing those successes and challenges? Successes Commitment to the cause of justice and human rights by individuals/communities Strong collaboration between national/international NGOs and CBOs and willingness to accommodate partners Strong vision, focus and leadership of an organisation Community awareness o Sale of land has stopped in some areas o Other marginalized group are becoming more vocal in voicing their problems Expanded democratic space o Landmark cases decided in favour of indigenous peoples o More and more cases brought against the government, including against foreign governments o Out of court settlement of land eviction cases o Increased representation of indigenous peoples at the policy level Institutional accountability and transparency o Indigenous community representatives at the local council and communities are now being invited by governments to discuss land issues Support by some government officers and organs o Some recommendations made by community representatives have been accepted by government agencies Support from mainstream media o More media attention to corruption cases and human rights violations in certain districts Challenges Unequal distribution of resources o The wealthy control the resources of the poor o Funds meant for communities misused by the powerful, and they enjoy impunity Conflict over natural resources o Discrimination and social exclusion suffered by specific groups within indigenous community o Competition over resources among and between groups in communities, provinces, countries High proportion of community who are landless o Communities are difficult to reach and are often inaccessible o Land acquired have no titles Lack of infrastructure o Communities are difficult to reach and are often inaccessible o Indigenous community areas excluded from mainstream development programmes

5 Land and Indigenous Peoples Rights Workshop, Nairobi, Dec Limited resources o Fading popularity among donors to support legal aid and land rights issues o Insufficient pro bono legal aid to support indigenous peoples land cases o Lack of expert knowledge on land rights issues Inadequate legal framework and judicial processes o Statutory laws in conflict with traditional systems of land ownership o Court cases take too long and are costly o Legislations which restrict freedom of NGOs (requirement for NGOs to renew registration yearly in Uganda). Lack of government support o Legal and policy framework which impedes indigenous ownership of land o Little support for public interest litigation from the government o Reluctant recognition for diversity of livelihoods and identities o Inefficient mechanisms to implement policies and/or laws Climate change o Negatively affecting traditional lifestyles and livelihoods of indigenous peoples Political (state) interference o Community leaders and organisations suffer harassment from the government o Evidence of human rights violations or historical injustices destroyed Organisational o Lack of commitment by members of network itself o Ethical and operational differences amongst members of organization High illiteracy amongst indigenous communities The underlying factors that influence the success enjoyed or challenges faced by organisations working to protect the land rights of indigenous peoples as articulated above, is in turn determined to a large extent by the power relations between all stakeholders including the individual, the community, the CBOs or NGOs and the government. Rather than equally distributed, power is often tipped in favour of one party, enabling them to control resources such as land that is so essential for the very livelihood of indigenous peoples. Action thus needs to be targeted not only towards the phenomenon of landlessness, but also to the structural causes of this phenomenon to address power imbalance. ANALYSING POWER RELATIONS: A TOOL Power relations can be seen at three levels: power over, power with and power within. Source: Veneklasen, Lisa and Miller, Valerie (2007 Revised Edition. First published 2000). A New Weave of Power, People, and Politics: the Action Guide for Advocacy and Citizen Participation, Washington D.C., Stylus Publishing and Practical Action Publishing. Power Over Power over is a situation in which one party effectively controls most of the resources. These are the dominant actors which can independently influence how much resources will be available for use by others and how must it be utilized. These dominant actors How do we identify the dominant actors? Look at who makes the decisions for an organization or agency. For example, individual countries are responsible for policy decisions of the World Bank. Advocacy and lobbying should then be targeted to these countries to influence World Bank practices.

6 Land and Indigenous Peoples Rights Workshop, Nairobi, Dec could be either state actors or non-state actors. Non-state actors could include a whole range of actors; donor organisations, religious bodies, militant groups, transnational corporations, men (in a patriarchal society), industrial countries (e.g. G8 countries), the World Bank, the International Monetary Fund (IMF), and even the NGO/CBO representing indigenous communities themselves. All these actors could potentially be in a position where they dictate the terms and conditions under which indigenous peoples obtain and use their lands. At the grassroots level, the impact of these dominant actors could be illustrated in examples of the following situations: o A regional development ministry imposes a development plan to be implemented in a specific area. These development plans were drawn up without the participation or knowledge of the communities involved. To make way for these developments, indigenous peoples living in that area are forcibly evicted from their lands, without being offered any compensation or alternative lands. o Upon knowledge of a possible oil exploration project in an area, the community living in that area requested details about this project from the government. The community does this after having learnt from a previous experience, in which an American company had mined in their area, resulting in devastating environmental consequences killing off much of the community s livestock. However, the request for information by the community was denied by the government, arguing that such information are state secret and cannot be made public. o When communities challenge dominant actors policies, these dominant actors defend their actions by pinning it to the law, arguing that they are acting within the law and for national interest. In this situation, the law itself presents challenges and communities have to find ways to overcome legal obstacles. o Parliamentarians enact a law exempting them from paying tax, while maintaining tax payments from the masses including the poor. o The World Bank partners with governments to implement development projects. However, because of dependence on aid, governments often have no control over how aid money is being spent and are only responsible for the implementation of projects. Often, the result is that these projects negatively impact the lifestyle and livelihoods of indigenous peoples. o A national committee on female genital mutilation has no representative from the communities that practice it. How can such a committee legitimize its actions to stop this harmful practice in a certain community? While the situations described above involve the more typical dominant actors i.e. governments, little is it realized that some NGOs or CBOs, the very organisations that claim to represent the interests of the communities, may themselves become dominant actors wielding power over the communities: o An NGO purchased land on behalf of indigenous communities to reduce

7 Land and Indigenous Peoples Rights Workshop, Nairobi, Dec landlessness amongst the community. However, instead of transferring the lands to the community unconditionally, the NGO insists that certain conditions be met, such as having to wait a certain time period before the land is transferred. In addition to that, the lands were purchased without the consultation of the communities it is intended for. Some of these lands in fact were incompatible to the community s traditional lifestyle and culture. However, in a situation where they do not have a choice, they are forced to accept the land given. As a result, some lands have not been utilized at all and remain idle. NGOs/CBOs representing community interests may themselves become dominant actors! o Some NGOs independently determine the issues and problems that need to be addressed within the community, without the participation of the community members themselves. o Since NGOs/CBOs are the organs mandated to receive and spend funding from donors, in some cases NGO/CBO work becomes an industry in itself. The situation in which the communities on the ground negatively experience power over them by dominant actors is largely determined by the absence of consultation between the agents possessing that power and the beneficiary communities. However, the situation of power over is unsustainable it always elicits resistance from below! The question is: how is this resistance to dominant actors built and strengthened? Power with Power with is a situation in which the victim of human rights violations partner with allies to assert their human rights. Allies could be any state or non-state actors; the key difference from a power over situation being that these allies work in close consultation and be in solidarity with the individuals or communities who are oppressed. To be in solidarity with the oppressed necessarily requires an understanding of the factors and reasons which resulted in their predicament: How did indigenous peoples, one of the earlier settlers of the land, come to be landless in the present day? What is the history behind the present situation? What were the colonial policies and post-independence agenda that contributed to the people being dispossessed of their access to livelihoods? A good example of a power with situation is the development of the women s rights movement. Over the decades, with support from allies (including men), the movement has challenged patriarchal societies and continues to demand for gender equity, resulting in the movement being one of the most visible in present times. How has a certain community been stereotyped and what are the paternalistic attitudes that are attached to those stereotypes? For example, the Batwa peoples are stereotyped as bush peoples and thus have no need for school or development but must remain in the bush. How do we challenge this stereotype? Because power with requires close consultation and solidarity amongst all stakeholders, the balance to achieve power with is delicate and challenges remain. Most importantly, all stakeholders must identify with a common goal. If stakeholders have diverging interests, suspicions and conflicts between stakeholders may arise. Such internal conflicts and competing interests may be exploited by dominant

8 Land and Indigenous Peoples Rights Workshop, Nairobi, Dec actors, to revert back to the power over situation, hampering the progress made. Furthermore, because the context in which power relations take place is so complex, the way in which existing power relations are discussed can be tricky. For example, how do you approach the elders of a community? How do you communicate with donors? What are the cultural, political and economical considerations to be made with respect to each target? Strategies to address power relations will certainly differ between targets, and so will the nature of an alliance or partnership between two organs/agencies in a common struggle. INDIGENOUS PEOPLES A MINORITY OR NOT? How do we place the struggle of indigenous peoples in the larger context? One of the ways in which we could do this is by looking at indigenous groups as a minority. However, using this approach has its implications. How do we determine qualifications as a minority group language, religion, traditional way of livelihood, political representation, numerical? Was the notion of minority not one that was created by the dominant actors to oppress? If it was, should we stop lamenting our rights as minorities and instead simply live our rights as equals? Placing the struggles of indigenous peoples in one discourse or another will necessitate a deep understanding of the relevant conceptual frameworks. Doing so could greatly contribute to a common understanding amongst all stakeholders involved and result in a targeted and unified struggle. Power Within Power also has to come from within the individual itself. The individual must possess certain characteristics which once triggered, will empower that individual to withstand and overcome The Story of Alice Alice is a girl from the Batwa community in Uganda. Presently, she is the only Batwa at university and is the source of great pride for her family and community. The United Organisation for Batwa Development Uganda, the organization which has been supporting her in mobilizing the funds to study at university, considers her achievements as one of their successes. At university, she faces discrimination and marginalization from her peers for being a Batwa. Nevertheless, Alice overcomes the challenges and continues to inspire other girls and marginalized peoples. What makes Alice such a strong person? During the workshop, Alice, and others like her provided a concrete example of individual traits that characterize power within. marginalization and discrimination. What are traits which will distinguish a person from one that simply accepts the status quo and one that challenges it? Confidence Tolerance Awareness of rights Conviction that marginalization and exclusion is wrong, and must be addressed Strong vision Inner drive Leadership Religious strength History is not short of examples of power over which is why many human rights violations continue to occur. However, history also points to examples in which the dominant powers have been challenged, to create a society that is more democratic, equal and humane. The actors driving this change are those which are in power with those victims of human rights violations, as well as the victims themselves. The challenge will be to build and strengthen power with and within.

9 Land and Indigenous Peoples Rights Workshop, Nairobi, Dec NATIONAL AND INTERNATIONAL TRENDS Besides power relations between stakeholders, other processes taking place at the national and international levels also influence the struggle to protect indigenous peoples land rights. These processes cannot be ignored because in today s world of connectivity, they may present opportunities to further the cause of indigenous peoples as well as challenges that may hinder it. National level trends In Uganda: A national development programme is currently being developed, presenting the opportunity for NGOs/CBOs and other organs to influence the policies relating to the development of indigenous peoples. An Equal Opportunities Commission is being established. This Commission could potentially play an important role in mitigating the discriminatory practices and policies suffered by indigenous peoples. Unfortunately, the legal framework protecting indigenous rights is weak. The Constitution is not explicit on minority rights. In Kenya: Politics and government policies tend to take on an ethnic approach, favouring the interests of majority groups. Indigenous peoples and minorities suffer further marginalization. National laws and policies tend to be assimilationist: indigenous peoples are forced to conform to the mainstream practices, otherwise they would be excluded from development processes. International level trends The Millennium Development Goals provide a framework of targets that includes poverty eradication and the interests of minorities. The UN human rights instruments, bodies, including those that are targeted specifically to indigenous peoples rights such as the UN Declaration for Indigenous Peoples, Forum on Minority Issues and the UN Permanent Forum on Indigenous Issues provide international human rights standards. However, some international human rights standards recognize indigenous peoples rights may conflict with those that do not. At the same time, these conventions do not offer any practical solutions for the communities on the ground. At the regional level, the African Commission on Human and Peoples Rights also has a working group on indigenous peoples with several local organisations having observer status. National and regional courts are increasingly finding in favour of indigenous peoples, contributing to a large body of jurisprudence on indigenous peoples rights. Communities in a specific country may use jurisprudence from another jurisdiction to strengthen its claims.

10 Land and Indigenous Peoples Rights Workshop, Nairobi, Dec Multi-national corporations exploiting natural resources may negatively affect the livelihood of indigenous peoples. Various agencies are discussing ways to mitigate the effects of climate change. Indigenous peoples are not involved in this process, although they are likely to be the worst affected. The analysis of the context in which the struggle to protect indigenous peoples land rights takes place reveals certain emerging issues, challenges and opportunities: Emerging issues Land as a critical source of livelihood and survival for indigenous peoples The role of the state and non-state actors in realizing indigenous peoples rights The need to empower indigenous peoples to claim their rights through advocacy, lobbying, awareness raising, etc The negative influences of large industrialized countries (e.g. G8 countries) on the livelihood of indigenous peoples The absence of close cooperation between actors in East African countries dealing with indigenous peoples issues and the need to strengthen such networks Participating in policy and legislation formulation processes Mineral exploration in indigenous territories Emerging challenges Need to building strategic alliances amongst indigenous peoples and minorities to optimize their resources, in order to create momentum at all level and operationalising joint advocacy strategies and activities How to overcome government resistance to recognizing indigenous peoples identities and territories and to push for explicit recognition of indigenous peoples rights in national constitutions Increase organizational capacity (resources and technical expertise) to challenge human rights violations Diversify funds to reduce over dependence on donors Emerging opportunities National and international legal frameworks and bodies (e.g. UN forums) present tools for indigenous peoples to assert their human rights Judiciaries are pragmatic, deciding in favour of indigenous peoples rights Existing networks and information sharing processes exchange good practices and strategies Increasing willingness for donor bodies to support indigenous peoples activities DAY 2: 7 DECEMBER 2008 METHODOLOGIES AND STRATEGIES TO PROTECT INDIGENOUS PEOPLES RIGHTS CROSS-CUTTING METHODOLOGIES AND STRATEGIES In order the effect the change we want to see, organisations use a variety of approaches:

11 Land and Indigenous Peoples Rights Workshop, Nairobi, Dec Lobbying and advocacy Give statements at national, regional and international level negotiation sessions, highlighting the plight of indigenous peoples to influence policy makers and obtaing observer status at these forum to ensure that indigenous peoples issues are included in the documentation Invite UN Special Rapporteurs to visit countries Networking Connect with organisations elsewhere who are also promoting the land rights of indigenous peoples. Find out what they are doing, how they do it and if possible, trial out their strategies in own contexts. Various NGOs and CBOs conduct extensive consultation during the Bomas Drafting process, to decide on common objectives to be achieved in negotiation with government representatives. Public interest litigation Support communities in bringing their cases to court. Although a lengthy process, there has been some successes in the past, with the Constitutional Court of Kenya deciding in favour of indigenous peoples (e.g. Maji Moto, Ilchamus and Endorois cases) Use jurisprudence from other jurisdictions to strengthen claims The African Commission provides the opportunity for further appeal of an unsuccessful case at the national level. Media The media can be an important tool to bring attention to the issues faced by indigenous peoples Community mobilisation and sensitisation Organisations should contribute to the empowerment of communities to enable them to demand the realisation of their own rights. This includes raising awareness and facilitate organisation within the community. Help community come up with their own initiatives Use a variety of tools to raise awareness, such as music and drama Research and documentation, shadow reporting The effectiveness of shadow reporting processes has been such that governments are now more willing to talk to organisations and find out their issues face-toface, before the shadow reports are published Indigenous peoples have a lot of information on solutions based on their experiences, which if documented, can be submitted as recommendations Monitoring and evaluation To ensure that any action and activity is effective and Choosing the right strategy There is not one formula for a successful strategy different situations require different strategies. This is because communities are not homogenous and there are various power structures within then. Thus, choosing a suitable strategy necessarily requires consideration of such factors.

12 Land and Indigenous Peoples Rights Workshop, Nairobi, Dec targeted towards the objectives. Monitoring and evaluation should be conducted not only with respect to a project, but also to organisational strategies. Advocacy on behalf of? Advocacy is often one of the main activities of many organisations. However, when advocacy takes place at the national or global level, the same organisations tend to take over the position of the communities and start advocating on their behalf. The implication of this situation would be that the organisation may evolve into a dominant power, exerting power over the communities (which is undesirable see above). How do we ensure that organisations advocate in solidarity with the communities? One of the strategies would be to first sensitise the communities about their rights and which actions they can take to overcome their rights violations. With awareness, communities can organise demands and actions, at which point the organisation s role would be to forward those demands to the relevant agencies, which may include supporting a members of that communities to speak out. USING LAW AS A TOOL TO PROTECT INDIGENOUS LAND RIGHTS The law can be a useful tool to facilitate indigenous peoples struggles; it provides legitimacy for the claims made. In addition to domestic laws recognizing property law, international human rights instruments and institutions also provide an important framework and legitimacy for indigenous peoples to base their claims to ancestral lands. Major international human rights instruments such as the Universal Declaration of Human Rights, the International Convention on Civil and Political Rights and the International Convention on Economic, Social and Cultural Rights provide minimum human rights standards. More recently, the UN Declaration on the Rights of Indigenous Peoples deals specifically with the rights of indigenous peoples. The UNDRIP is important for the struggle of indigenous peoples rights because amongst others, it recognizes their unique cultural lifestyles, their right to self-determination and the importance of land for their livelihood. At the regional level, the African Court of Human Rights provides a higher body of adjudication above national courts to which indigenous peoples may further their claims. The law has been used successfully in the Ilchiamus, Olentutu, Endorois and Richterveld cases in Kenya and South Africa, amongst others. There are numerous other landmark cases not only in Africa but also in other regions which provide precedence for the protection of indigenous peoples rights. Limitations of using the law as a tool However, the law can facilitate the struggle of indigenous peoples only to some extent. In many of the cases cited above, the law was interpreted by the judiciary in a progressive manner as to extend the application of the law to include indigenous peoples rights. Nevertheless, even with a progressive judiciary, some major loopholes in the (Kenyan) law remains, in addition to other factors: Written laws are given primacy over oral native customary laws; upon which many indigenous property ownership systems are based.

13 Land and Indigenous Peoples Rights Workshop, Nairobi, Dec Group rights are not recognized Individual land ownership is preferred over communal land ownership Judicial procedures are lengthy and costly Little free legal aid is provided to indigenous communities Some justice systems are non-transparent and corrupt A positive judgment by the judiciary does not guarantee its implementation by the executive Some legislation itself directly or indirectly supports human rights violations (e.g. immunity for regime leaders who were responsible for human rights violations). Because the law can only do so much to further indigenous peoples struggles, extra-legal means must also be used to ensure that indigenous peoples rights are realized. Some of the non-judicial measures that could be adopted are: Highlight a case through the media to build public opinion for the community Negotiate with the relevant parties Delay the legal procedure as much as possible in order to buy time to find more effective non-judicial means Base claims not only on the law, but also on historical injustice and discrimination. Mount a constitutional challenge to amend or nullify the offending law itself. HUMAN RIGHTS-BASED APPROACH TO INDIGENOUS PEOPLES DEVELOPMENT The link between human rights and development has not always been clear. Previously, human rights and development were seen as two distinct and separate discourses development was thought of only in terms of meeting the basic needs of the individual while human rights was seen within the narrow scope of civil and political rights. Development was not seen from the individual s perspective on priorities but rather a top-down exercise in which the development workers saw themselves as experts who would dictate intervention processes. From a rights-based perspective, the individual who would benefit from development interventions are seen as citizens who have rights, rather than as passive beneficiaries. Thus, rights-based approaches (RBA) focus on empowering communities to articulate and assert their rights. Indeed, the distinctions between the two are being blurred, as international development agencies and governments have begun speaking in terms of not of basic needs but of basic rights.

14 Land and Indigenous Peoples Rights Workshop, Nairobi, Dec Human Rights, Development, Politics Should we politicize a development process so that it is not only a matter of technical intervention but also of power relations? Can we avoid doing so? Politics in the context of development is the policy making processes which determine how resources are distributed. Thus, from this perspective, the level of development of a particular community/state/region is intrinsically related to the power relations at play. Politics has long been seen as an exclusive domain of politicians and government officials not any more. The decision making process needs to be expanded to include the participation of the community and individual who are not mere beneficiaries, but are citizens who have basic human rights necessary for a life in dignity. Thus, not only is it impossible to separate development and human rights from politics, it is in fact necessary to tackle political issues head on in order to successfully address development issues and assert human rights. Defining features of RBA An RBA promotes transformative change through a rights and social justice paradigm where efforts for human development: Address basic needs as rights Question and address structures of equal power relations that perpetuate inequality with respect to o Access to resources necessary for the development of people in a given area or situation o Realistic participation of primary stakeholders in key decisions that affect their lives o The voice of citizens especially those marginalized on any basis, for example gender, ethnicity, age, economic status, etc. o Opening up opportunities and building capacities of peoples in order to realize their potential to develop individually and collectively o Local, national and global inequality RBA: A Passing Fad? Although the term rights-based approaches may be relatively new in the development discourse, its application is not. From the perspective of the individual, their struggle to improve their livelihood has always been seen holistically. As a result, they find various strategies to improve it. Beyond the effects of poverty, they also strive to address its root causes. RBA aims at changing the structural causes of poverty, such as discrimination, power relations and institutions a holistic approach to poverty. Promotes participatory methods and approaches so as to facilitate change from below through popular power expressed through various ways, e.g.: o Popular organization o Popular cultural activities o Social movements DAY 3: 8 DECEMBER 2008 CHARTING THE WAY FORWARD

15 Land and Indigenous Peoples Rights Workshop, Nairobi, Dec What are the challenges and opportunities for promoting networks and partnerships in Africa and beyond with a view to support struggles of indigenous peoples and minority groups? Challenges Assumption that networks are the easiest and cheapest way to do things Lack of commitment among members in network and partnerships Diverging interests among members to be in network Difference in expectations among members from being part of the network Possible domination of the network by more established and better funded organizations Concentration on dominant issues within network Networks are perceived as a threat by dominant actors Little or no mechanism for coordination of activities within network, resulting in duplication of activities Language as a communication barrier Geographical and infrastructural barriers (remoteness and little infrastructure to facilitate communication) Governance Lack of funds Opportunities Focused and strategic lobbying and advocacy Common objectives among stakeholders Conducive working environment Solidarity amongst members Technological advancement to facilitate communication (e.g. internet) Willingness of donors to support network Willingness of some organizations to host network (although this risks that host organization would evolve into a dominant power in the network). Indigenous peoples becoming more aware about their rights Availability of various forums to discuss issues (e.g. meetings and internet). In light of our two-day reflection, what have you considered to be practical next steps to promote collaboration in the effort to support the struggles of indigenous peoples and minority groups within the next two years? Share workshop outcome Compile workshop outcomes, discussions and analysis into report to be shared and based on any issues arising, develop into a training manual Share recommendations from workshop with other parties by mid-january 2009 Information exchange Need to create a database related to indigenous peoples rights to facilitate the exchange of information, such as a profile of all organizations working in the field of indigenous peoples rights Exchange site/field visits

16 Land and Indigenous Peoples Rights Workshop, Nairobi, Dec EiR could provide the leadership in building the capacity of its partners in relation to the effective articulation of issues and collecting and documenting information. Networking among workshop participants and others Share workshop report with other potentially interested individuals/organizations to expand network beyond workshop participants EiR to play a role in linking up with interested individuals/resource persons/organizations and establish a framework for networking What conditions need to exist in order to facilitate implementation of the said next steps? Willingness to commit by all stakeholders Supportive state institutions are in place, such as national human rights commissions A willingness to share and trial good practices Transparent and accountable network Central coordination point to ensure smooth process, avoid duplication and ease communication Availability of financial resources How are the next steps to be coordinated so as to be realized? EiR to take on the role as international focal point, to link local individuals/organizations with those in other regions, as well as with international aid agencies Develop a two-year strategic plan Schedule periodic meetings or points of reflection to monitor progress and plan next steps Establish a mechanism to identify and distribute best practices Identify individuals to take on specific responsibilities WORKSHOP FOLLOW-UP ACTIVITIES: POSSIBLE JOINT PROJECTS One of the major outputs from this workshop is a list of recommended activities that could be jointly taken up by the workshop participants and Equalinrights, as well as other interested parties: 1. Create a database of information related to indigenous peoples land rights. Establish a platform on which organizations and individuals could contribute their resources on good practices, training manuals, cases, relevant legislation etc to facilitate the exchange of information. 2. Translate court decisions and legal documents into a language more comprehensible to practitioners on the ground. More and more cases related to indigenous peoples land rights are being generated by courts all over the world. However, these documents remain almost exclusively accessible only to legal experts, because of the technical language being used. Consequently, those decisions cannot be used effectively by communities which are considering litigation as a strategy. Here is a clear gap in the dissemination of information. Thus, it could be a possibility to establish a group of legal experts and practitioners working on the ground to work together to translate legal documents into a language more comprehensible. The documents generated by this group could feed into a database (see No.1 above).

17 Land and Indigenous Peoples Rights Workshop, Nairobi, Dec Gather a group of dedicated legal experts from various jurisdictions specializing on land rights issues. Litigation is widely seen as an important and powerful way to realize the land rights of indigenous peoples. Consequently, more and more organizations are supporting communities not only in Kenya but all over the world, in bringing forward a case to the courts concerning their land rights. However many cases are stalled because of the lack of fresh perspective to the issue. A group of legal experts, based on their experience from their own jurisdictions, could be called upon to analyse a given case, providing it with fresh insights and creative strategies from a comparative perspective. 4. Establish partnerships with educational institutions Several organizations would like conduct more research into the issues they are working with. Unfortunately, many are unable to do so because of limited time and resources. It could be an idea to link up such organizations with educational institutions (locally or from abroad). Many educational institutions require that their students conduct some research as a graduation requirement. From the organization s perspective, here is a possible resource that could be used to build up their own capacity for research and documentation. In return, organizations could provide the necessary facilities and supervision to support such students. The activities listed above all have vast potential and must be explored. Equalinrights is willing to pursue this with all participants and any other interested parties and perhaps establish long term collaboration together. FINAL REMARKS & ACKNOWLEDGMENTS At Equalinrights, we are very satisfied with the workshop process and outcomes. We highly appreciate the participant s active participation and engagement in the workshop sessions. In particular, we are humbled by the dedication shown by many participants to come to this workshop, travelling very far distances to come to Nairobi and share their stories and struggles with us. We truly hope that this workshop, in even the smallest way has helped in the struggle to fight for the rights of the communities they work with. Our deepest gratitude also to the facilitator, Mwambi who did a great job in helping all of us learn throughout this workshop. But hopefully our cooperation will not stop here. This workshop was held to identify the various issues pertaining to indigenous peoples rights that are out there; explore the ways in which Equalinrights could contribute to furthering the struggle and to prepare the ground for potential joint projects. We are pleased with the honesty all the participants have shown with respect to what they expect from an organization like Equalinrights, and highlighted the inherent limitations of an organization like us. We look forward to continue engaging with all of you. Mariam Munang, Junior Project Officer, Equalinrights

18 Land and Indigenous Peoples Rights Workshop, Nairobi, Dec ANNEX 1 LIST OF WORKSHOP PARTICIPANTS NAME ORGANISATION CONTACT 1 Abel United Organisation for Batwa Development Uganda 2 Angela Leshao Human Rights Officer, Economic aleshao@knchr.org Social and Cultural Rights Programme, Kenya National Commission on Human Rights 3 Ben Rapaine Koissaba Maa Civil Society Forum bkoissaba@yahoo.com 4 Bether Kokach East African Coalition on Economic, bether@eacor.org (represented by Judith) Social and Cultural Rights (EACOR) 5 Daniel Salau Rogei Simba Maasai Intergrated rogeioleng@yahoo.com Organizaton (SIMOO) 6 George Mukundi Researcher mukundigeorge@gmail.com 7 Gerald Tushabe Human Rights Network (HURINET) tushg@yahoo.co.uk Uganda 8 Hassan Shano Waso Trustland Project hassangshano@yahoo.com 9 Jackline Mwende Kituo Cha Sheria mwende@kituochasheria.or.ke 10 Johnson Malih Ole IMPACT olekaunga@yahoo.com Kaunga 11 Lawrence Mbelati Land and Natural Resources Rights lawrence.mbelati@mpido.org Officer, Mainyoito Pastoralist Integrated Development Organization (MPIDO). 12 Leonida Odongo Ebony Youth and Orphans Support nanodo2001@yahoo.com Initiative Kenya 13 Maulid Haji Programme Manager, Federation for info@fkpw.org Kenya Pastoralists Women 14 Munini Mutuku Centre for Minority Rights muhnyny@yahoo.com Development (CEMIRIDE) 15 Neza Henry United Organisation for Batwa nezahenry@yahoo.co.uk Development Uganda 16 Nyang ori Ohenjo Executive Director, Indigenous Fisher ohenjo@fishersrights.org Peoples Network 17 Okelo Namadoa Indigenous Fisher Peoples Network 18 Paul Mulindwa Minority Rights paulomug@yahoo.com 19 Rhoda Rotino Indigenous Information Network (IIN) iin.kenya@gmail.com 20 Rose Odhiambo Indigenous Fisher Peoples Network franmaloba@yahoo.com 21 Soipan Tuya Kituo Cha Sheria soipan@kituochasheria.or.ke