The right to development in the African human rights system: The Endorois case

Abstract

Notwithstanding the controversy about the right to development (RTD), the African human rights system expressly recognizes it as a human right. The aim of this paper is to examine the impact of the Centre for Minority Rights Development (CEMIRIDE) (on behalf of the Endorois) v Kenya (Endorois case) on the realization of the RTD in the African human rights system. After an overview of the RTD characterized by the controversy on its nature, the paper proceeds to show that Endorois departs from Social and Economic Rights Action Center and the Center for Economic and Social Rights v Nigeria (SERAC case), Democratic Republic of the Congo v Burundi, Rwanda, and Uganda (DRC case) and Kevin Mgwanga Gumne et al v Cameroon (Gumne case). In this respect, Endorois defines the concept of “peoples”, clarifies the beneficiaries of the RTD and stresses the role of the state as the primary duty bearer. It also explains the content of RTD which is multifaceted as it comprises elements of non-discrimination, participation, accountability, transparency, equity and choices as well as capabilities. In addition, it explains the threshold of people’s participation needed in development endeavours and emphasizes the immediate realization of human rights as subscribed to by the African Charter on Human and Peoples’ Rights. The Endorois decision provides guidance on how to ensure the justiciability of the RTD. Prior to the Endorois decision, all these features of the RTD were never clarified by the African Commission in the SERAC, DRC and Gumne cases.