274. The Respondent State argues that the Complainants allege that the consultations that took place were not in ‘good faith’ or with the objective of achieving agreement or consent, and furthermore that the Respondent State failed to honour the promises made to the Endorois community with respect to revenue sharing from the game reserve, having a certain percentage of jobs, relocation to fertile land and compensation. The Respondent State accuses the Complainants of attempting to mislead the African Commission because the County Council collects all the revenues in the case of game reserves and such revenues are ploughed back to the communities within the jurisdictions of the County Council through development projects carried out by the County Council. 275. Responding to the allegation that the game reserve made it particularly difficult for the Endorois to access basic herbal medicine necessary for maintaining a healthy life, the Respondent State argues that the prime purpose of gazetting the national reserve is conservation. Also responding to the claim that the Respondent State has granted several mining and logging concessions to third parties, and from which the Endorois have not benefited, the Respondent State asserts that the community has been well informed of those prospecting for minerals in the area. It further states that the community’s mining committee had entered into an agreement with the Kenyan company prospecting for minerals, implying that the Endorois are fully involved in all community decisions. 276. The Respondent State also argues that the community is represented in the Country Council by its elected councillors, therefore presenting the community the opportunity to always be represented in the forum where decisions are made pertaining to development. The Respondent State argues that all the decisions complained about have had to be decided upon by a full council meeting. 277. The African Commission is of the view that the right to development is a two-pronged test, that it is both constitutive andinstrumental, or useful as both a means and an end. A violation of either the procedural or substantive element constitutes a violation of the right to development. Fulfilling only one of the two prongs will not satisfy the right to development. The African Commission notes the Complainants’ arguments that recognising the right to development requires fulfilling five main criteria: it must be equitable, non-discriminatory, participatory, accountable, and transparent, with equity and 150 choice as important, over-arching themes in the right to development. 278. In that regard it takes note of the report of the UN Independent Expert who said that development is not simply the state providing, for example, housing for particular individuals or peoples; development is instead about providing people with the ability to choose where to live. He states “… the state or any other authority cannot decide arbitrarily where an individual should live just because the supplies of such housing are made available”. Freedom of choice must be present as a 151 part of the right to development. 279. The Endorois believe that they had no choice but to leave the Lake and when some of them tried to reoccupy their former land and houses they were met with violence and forced relocations. The Complainants argue this lack of choice directly contradicts the guarantees of the right to development. The African Commission also notes a Report produced for the UN Working Group on Indigenous Populations requiring that “indigenous peoples are not coerced, pressured or intimidated in their 152 choices of development.” Had the Respondent State allowed conditions to facilitate the right to development as in the African Charter, the development of the Game Reserve would have increased the capabilities of the Endorois, as they would have had a possibility to benefit from the game reserve. However, the forced evictions eliminated any choice as to where they would live. 280. The African Commission notes the Respondent State’s submissions that the community is well represented in the decision making structure, but this is disputed by the Complainants. In paragraph 27 of the Complainants Merits brief, they allege that the Endorois have no say in the management of their ancestral land. The EWC, the representative body of the Endorois community, have been refused registration, thus denying the right of the Endorois to fair and legitimate consultation. The Complainants further allege that the failure to register the EWC has often led to illegitimate consultations taking place, with the authorities selecting particular individuals to lend their consent ‘on behalf’ of the community. 281. The African Commission notes that its own standards state that a government must consult with 153 respect to indigenous peoples especially when dealing with sensitive issues as land. The African Commission agrees with the Complainants that the consultations that the Respondent State did