Customary communities as ‘peoples’ and their customary tenure as ‘culture’: what we can do with the Endorois decision

This paper published by the Legal Resources Centre explores the implications for practitioners and traditional communities in Africa of the decision by the African Commission on Human and Peoples’ Rights in the seminal 2010 case Endorois Welfare Council v. Kenya. The authors argue that the Court’s rationale for declaring the Endorois community a “people” and subsequently recognizing that their rights to property, culture, development, religion, and natural resources had been violated, could enable similar communities throughout Africa to assert their customary tenure rights. According to the authors, a nuanced interpretation of culture so as to encompass customary land systems could be used to extend legal protections in African domestic and regional courts to traditional communities that are not considered indigenous or tribal. Since customary tenure systems are often fundamental articulations of a community’s culture, the authors suggest that the right to culture has the potential to effectively safeguard rural communities’ customary land rights.