• • • • • • • the failure to provide adequate recognition and protection in domestic law of the community’s rights over the land, in particular the failure of Kenyan law to acknowledge collective ownership of land; the declaration of the game reserve in 1973/74, which purported to remove the community’s remaining property rights over the land, including its rights as beneficiary of a trust under Kenyan law; the lack of and full compensation to the Endorois community for the loss of their ability to use and benefit from their property in the years after 1974; the eviction of the Endorois from their land, both in the physical removal of Endorois families living on the land and the denial of the land to the rest of the Endorois community, and the resulting loss of their non-movable possessions on the land, including dwellings, religious and cultural sites and beehives; the significant loss by the Endorois of cattle as a result of the eviction; the denial of benefit, use of and interests in their traditional land since eviction, including the denial of any financial benefit from the lands resources, such as that generated by tourism; the awarding of land to title to private individuals and the awarding of mining concessions on the disputed land. 100. The Complainants argue that an encroachment upon property will constitute a violation of Article 14, unless it is shown that it is in the general or public interest of the community and in accordance with the provisions of appropriate laws. They further argue that the test laid out in Article 14 of the Charter is conjunctive, that is, in order for an encroachment not to be in violation of Article 14, it must be proven that the encroachment was in the interest of the public need/general interest of the community and was carried out in accordance with appropriate laws and must be proportional. Quoting the Commission’s own case law, the Complainants argue that: ‘The justification of limitations 25 must be strictly proportionate with and absolutely necessary for the advantages which follow. They 26 argue that both the European Court of Human Rights and the IACmHR have held that limitations on 27 rights must be “proportionate and reasonable.” 101. They argue that in the present communication, in the name of creating a game reserve, the Kenyan authorities have removed the Endorois from their land, and destroyed their possessions, including houses, religious constructions, and beehives. They argue that the upheaval and displacement of an entire community and denial of their property rights over their ancestral lands are disproportionate to any public need served by the game reserve. They state that even assuming that the creation of the game reserve was a legitimate aim and served a public need, it could have been accomplished by alternative means proportionate to the need. 102. They further argue that the encroachment on to Endorois property rights must be carried out in accordance with“appropriate laws” in order to avoid a violation of Article 14, and that this provision must, at the minimum mean that both Kenyan law and the relevant provisions of international law were respected. They argue that the violation of the Endorois’ rights failed to respect Kenyan law on at least three levels: (i) there was no power to expel them from the land; (ii) the trust in their favour was never legally extinguished, but simply ignored; and (iii) adequate compensation was never paid. 103. The Complainants state that the traditional land of the Endorois is classified as Trust Land under Section 115 of the Constitution, and that this obliges the County Council to give effect to “such rights, interests or other benefits in respect of the land as may under the African customary law, for the time being in force.” They argue that it created a beneficial right for the Endorois over their ancestral land. 104. They further argue that the Kenyan Authorities created the Lake Hannington Game Reserve, th including the Endorois indigenous land, on 9 November 1973, but changed the name to Lake Bogoria 28 Game Reserve in a Second Notice in 1974. The 1974 ‘Notice’ was made by the Kenyan Minister for 29 Tourism and Wildlife under the Wild Animals Protection Act (WAPA). WAPA, the Complainants informs the African Commission, applied to Trust Land as it did to any other land, and did not require that the land be taken out of the Trust before a game reserve could be declared over that land. They argue that the relevant legislation did not give authority for the removal of any individual or group occupying the land in a game reserve. Instead, WAPA merely prohibited the hunting, killing or