IMPACT OF THE VIDEOS
On the ACHPR’s Decision
In 2009, the ACHPR issued a groundbreaking decision finding the government of Kenya guilty of violating the rights of the Endorois community by evicting them from their lands in 1970 to make way for a wildlife reserve. Specifically, the ACHPR found that the:
- Endorois were an indigenous people, and
- eviction violated their rights to property, natural resources, development, culture, health, and religion.
The Commission then ordered Kenya to restore the Endorois to their historic land and compensate them for damages caused by the wrongful eviction.
In the ruling on this case, the Commissioners relied on video evidence to find that:
- the Endorois are a distinct indigenous people which entitles them to rights as a community in addition to individual rights;
- access to clean drinking water was severely undermined as a result of the eviction from their ancestral land; and
- their traditional means of subsistence — grazing animals — was limited due to lack of access to the green pastures of their traditional land.
ACHPR decisions do not become law until the African Union (AU) adopts the decision. They did so on February 2, 2010, resulting in a landmark victory for indigenous peoples throughout Africa and a high point in the forty years of struggle led by the Endorois community.
To reach the target audiences, Rightful Place was screened at international events such as the UN Forum on Indigenous Peoples and at locations in Kenya’s capitol city of Nairobi, as well as in locations near the Endorois’ ancestral lands in the Rift Valley Province.
The full campaign, supported by the films, generated significant debate about indigenous rights and land rights during the drafting stage of Kenya’s most recent constitution. As a result of these debates, Kenya’s 2010 constitution better protects indigenous peoples and their land rights. Regionally, indigenous groups in Tanzania, such as the Maasai, successfully leveraged the Commission’s decision to secure further protections.
Additionally, the Endorois community felt empowered by the creation of the videos. The filming helped motivate the community to stay united and continue the decades-long fight, because they felt that finally someone from outside of was listening and willing to help. Also, the many hours of recorded interviews now serve as a valuable oral history for the Endorois people and will be shared for generations to come.
A Contrasting Example
To counter the Endorois’ arguments, the Kenyan government decided to submit their own video. But unlike the Endorois’ submission, the government’s video was long and roughly edited. The Commissioners did not want to watch several hours of videos, so they watched only a part of the government’s film.
The screening resulted in a moment in court that every lawyer looks forward to in his or her ca- reer. The video submitted by the Kenyan government included an interview with a member of the Endorois community. As the Endorois Chief was speaking in Kiswahili on camera, English subti- tles appeared below. One of the subtitles quoted the Chief as saying that all the Endorois had been fully compensated by the Kenyan government. One of the African Commissioners spoke Kiswahili. As he listened, he noticed that the Kiswahili audio did not match the written English subtitles, so he asked the government to rewind and play a section of the video again. Upon listening for a sec- ond time, the Commission discovered that the Chief had actually said the opposite: the Endorois were not fully compensated.
The Kenyan government’s credibility was gone!
TAKE HOME POINTS
- First, in addition to using video in the criminal justice process, it is important to consider how it can also be used for human rights monitoring and advocacy, in the media, to secure reparations, and in truth and reconciliation processes. In this case, the Endorois successfully used video at the ACHPR, and in front of key target audiences that could make policy changes.
- Second, video captured for justice processes must be relevant and reliable. However, it only needs to meet the highest standard when it’s being introduced in a court of law, such as the Endorois’ Evidentiary Submission to the ACHPR. Even if the video does not meet a “trial-ready” standard, it can still be valuable for protecting human rights, as we saw with the use of Rightful Place.
- Third, the same footage can be edited to serve different purposes. In this case, the footage was used as evidence in front of the ACHRP and then re-edited for advocacy directed toward government decision makers, media outlets, and grassroots-awareness- raising efforts. It also serves as an important historical record for the tribe.
- Fourth, it’s important to think strategically about how, when, and where to share footage. The nine-minute video submission to the ACHPR was embargoed. In other words, it could not be shared publicly until the ACHPR’s decision was final. Sometimes you will be unable to share eye-opening footage because of process restrictions.
- Fifth, never, ever compromise your credibility, because once it’s lost, it is very difficult (if not impossible) to get back.
- Sixth, be thoughtful about the length of your video. The Commissioners happily watched a nine-minute video but did not watch the hours of video submitted by the government.
To learn more about “relevance”, “reliability” and what makes video “trial-ready”, see “All About Evidence“