For one rural community in Taita Taveta County of south-western Kenya, life will never be the same for hundreds of families after a politically connected private investor fenced off their land. In an instant, they were denied access to food, housing and water and became squatters on their own land.

Beatrice Mjomba, Taita Taveta Human Rights Watch

This is just one of numerous examples of land-based human rights violations that were highlighted at a recent exchange meeting for human rights and land governance actors in Nairobi, Kenya. For millions of smallholder farmers and pastoralists, women, and indigenous people in Kenya and around the world, access to land is not formally secured through a land title.As demand for land continues to rise, these groups are often the first victims of evictions and other land rights violation, even though they may hold legitimate tenure rights through customary, community, leasehold, or other arrangements. When people lose access to their land and associated resources, it not only directly impacts their means of livelihood, but also violates several other human rights such as the right to food, housing and even the right to life and security.

The power of human rights to protect land rights

This struggle for secure land tenure is the backdrop for the unanimous adoption of the Voluntary Guidelines on the Responsible Governance of Tenure of Land, Fisheries, and Forests (VGGT) by the UN Committee on World Food Security in 2012. The VGGT clearly define what States should do to protect legitimate tenure rights. Legitimate tenure rights apply to all rights to own and/or access land and its resources, whether these are formally documented (such as through a land title) or not. Although these guidelines have found their way into progressive land laws in many countries, their application at the local level remains a challenge.

The key to unleashing the power of the VGGT is to adopt a human-rights based approach to land governance. It entails reiterating the fundamental link between the Voluntary Guidelines and universally recognized and binding human rights standards. Civil society organizations, national human rights institutions and other land rights actors can subsequently hold governments accountable for aligning land policies and actions with their human rights obligations.

Over the past two years, in partnership with the Danish Institute for Human Rights and the Malawi Human Rights Commission, TMG has tested a human rights-based approach to land governance in Malawi. From 24-26 January 2023, TMG hosted a regional exchange meeting in Nairobi to distil some insights from this experience and jointly explore how to leverage human rights standards, mechanisms and guidance to create an enabling environment for responsible land governance at all levels. The meeting brought together 50 representatives of human rights institutions and civil society networks from Ethiopia, Kenya, Uganda, Malawi, Sierra Leone, and Denmark, with many more joining the discussions online during a public segment on 25 January.

Demonstrating the links between human rights and land

The rich discussions elicited numerous examples of the application of a human-rights-based approach in various land sectors. But they also revealed how the interplay of weak institutions, power dynamics, impunity and other entrenched structural obstacles continues to undermine access to justice for the most marginalized groups. Despite a handful of legal successes in addressing such land-based human rights violations (notably the landmark Ogiek Case brought before the African Court on Human and Peoples’ Rights), the experiences shared showed that both the land and human rights communities continue to face significant knowledge, organizational, and resource gaps. This slows down progress in documenting cases of land rights violations and driving through litigation, and hampers them to fully tap the potential of the human rights system to protect tenure rights.

Through various presentations by human rights experts, as well as practical case studies of applying human rights for land in practice, the discussions helped lay the groundwork for a shared understanding of how human rights standards can support land claims. To start with, the discussions unpacked three key areas in which land governance intersects with human rights.

First, it is a misconception that there is no “right to land.” In fact, the right to land, is explicitly recognized in a number of human rights articles that expound on the rights of indigenous people and people working in rural areas, notably the Indigenous and Tribal Peoples Convention (ILO C169) the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) and Articles 5 and 17 of the United Nations Declaration on the Rights of Peasants and Other People Working in Rural Areas (UNDROP). Considering that in many African countries at least 75% of the population lives in rural areas, it is clear that these international human rights laws apply to the majority of smallholders and indigenous people globally.

Second, secure and equitable access to land is a prerequisite for realizing a range of other human rights, such as the right to food, housing, an adequate standard of living, and to enjoy one’s culture. The linkages between land and these rights are particularly well elaborated in the recently adopted milestone document, General Comment No. 26 on Land to the International Covenant of Economic, Social and Cultural Rights (ICESCR).

Third, there are related procedural rights that need to be respected in order to achieve tenure security and other fundamental human rights listed above. For example, land users are entitled to consultation and consent, fair compensation and non-discriminatory dispute resolution mechanisms in land use decisions. These rights are underpinned by various human rights provisions such as the International Covenant on Civil and Political Rights (ICCPR) Article 25,UNDROP Article 10 and the International Convention of the Elimination of All Forms of Discrimination Against Women (ICEDAW) Article 14.2.

Systematic land governance monitoring for increased accountability

A set of Human Rights 4 Land Tools – developed by TMG Research, the Danish Institute for Human Rights (DIHR) and the Malawi Human Rights Commission (MHRC) - with support from the German Federal Ministry for Economic Cooperation and Development (BMZ) - helps civil society actors and human rights institutions to connect land and human rights. The Human Rights 4 Land Navigator, makes these connections tangible, by linking each VGGT paragraph to underpinning human rights obligations by States. The Human Rights 4 Land Monitoring Tool, launched on the 25th of January, enables land and human rights actors to monitor land governance, shedding light on violations of legitimate tenure rights, and providing solid evidence for advocacy and litigation. Collected evidence is essential to hold governments accountable for protecting tenure rights.

In Malawi, MHRC and the civil society organization, Land Governance Alliance, have made significant headway in applying these tools, allowing them to investigate land conflicts and advocate for improved land laws that are compliant with the VGGT and human rights obligations. MHRC’s experience further demonstrated the value of human rights-based land governance monitoring in generating evidence for national human rights reports, such as the recently completed alternative report to the Committee of Economic Social and Cultural Rights. Moreover, the evidence-gathering and reporting process has helped raise land rights awareness among government officials, traditional authorities and land users.

Participants at the regional exchange had an opportunity to delve into these tools and get inspired by the experiences in Malawi, to step up efforts to systematically monitor land governance to hold governments accountable for implementing the VGGT.

Way forward: A call for human rights and land actors to join hands

One of the objectives of the regional workshop was to bridge silos between land and human rights actors to advance human rights-based land governance monitoring and practice. As clearly shown during the discussions, each group of stakeholders brings specific strengths and competencies to bear. Civil society and networks have links to community organizations and a deep knowledge of land rights violations on the ground. National Human Rights Institutions (NHRIs) – with their vast legal expertise and links to the international human rights system – can help draw broader attention to violations and litigation processes to secure legitimate tenure rights.

The meeting concluded by identifying concrete action points at national and regional level. In Malawi, for example, the multistakeholder consultation to validate data collected with the Human Rights 4 Land Monitoring Tool helped initiate an exchange and collaboration between the members of the National Land Coalition and the Malawi Human Rights Commission. Similarly, the Human Rights Commission of Sierra Leone and Land for Life, a CSO, agreed to jointly engage in land governance monitoring and reporting. The NHRIs from Kenya, Uganda and Ethiopia and the Network of African National Human Rights Institutions – a regional umbrella organization - equally confirmed their interest and plans to link efforts to leverage human rights to protect tenure rights.

MHRC Executive Director Habiba Osman reads out the joint statement at the close of the public session.

We call on land and human rights stakeholders to step up efforts to empower and support people most at risk of losing their land and livelihoods and to join a regional partnership to use the power of human rights to protect land rights.

This is the resounding call made in a joint statement by the 19 civil society and human rights organizations represented at the meeting.

FULL STATEMENT

The Power of Human Rights to Protect Tenure Rights - A call for a human rights-based approach to land governance Nairobi, 25 January 2023

There is an intimate link between access to land and enjoyment of human rights. As we speak, people who are poor and marginalized are losing land at a rapid pace due to urbanization, infrastructure development, natural resource exploitation and intensive agriculture. This often leads to loss of livelihoods with serious human rights implications including violation of the right to food, housing and even the right to life and security.

As civil society organizations and national human rights institutions we bear witness to these violations in our daily work. The lack of respect for people’s right to land and resources also exacerbates the world food crisis – where more than 800 million people are currently affected by hunger worldwide. Our governments have unanimously adopted the Voluntary Guidelines on the Responsible Governance of Tenure of Land, Fisheries, and Forests (VGGT) at the UN Committee on World Food Security. Binding human rights obligations form the basis of these Tenure Guidelines. We call on governments to apply the VGGT and align policies and actions with their human rights obligations and protect legitimate tenure rights with a particular focus on marginalized groups.

To ensure the realization of these human rights, all stakeholders need to step up efforts to empower and support those most at risk of losing their land and livelihoods. For accountability, it is important to regularly monitor the implementation of the VGGT and the realization of rights in a way that is inclusive and participatory. We have developed the Human Rights 4 Land Monitoring Tools to enable monitoring of land governance in a systematic way that is explicitly based on human rights obligations. The tools provide a human rights-based framework for analysing and investigating land conflicts. The tools enable generation of evidence for use in advocacy at the local and national level and inform human rights reporting to international UN human rights bodies.

We invite other land and human rights actors to join our partnership to use the power of human rights to protect land rights!

Signatories

Action Aid, Kenya Citizen Participation Forum, Kenya Danish Institute for Human Rights Ethiopian Human Rights Commission Human Rights Commission of Sierra Leone Kenya Land Alliance Kenya National Commission on Human Rights Kenya Wildlife Conservancies Association Kituo Cha Sheria, Kenya Land for Life Initiative, Sierra Leone Land Governance Alliance, Malawi Malawi Human Rights Commission Namati, Kenya Network of African National Human Rights Institutions Resource Conflict Institute (Reconcile), Kenya Shibuye Community Health Workers, Kenya Taita Taveta Human Rights Watch, Kenya TMG Research, Germany Uganda Human Rights Commission