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Cultures Within Cultures: When laws ignore reality

Vincent O. Nmehielle

When compared to the Americas, African practice on indigenous rights protection is unguided by law. This state of affairs is largely the result of Special Rapporteur Martínez-Cobo’s famous 1984 Study of the Problem of Discrimination Against Indigenous Populations, which literally made all Africans indigenous, without any need for extra protection of any particular group. That mindset, which is shared by African leadership, long prevented any meaningful attempt at addressing the issues that specifically affect indigenous people in Africa.

Some African states address the issue in part by recognizing the concept of minorities rather than indigenous peoples, but hardly any state in Africa—except recently in South Africa—admits that it has indigenous peoples as separate vulnerable groups within its territories. Rather, states are concerned with “civilization” and “development.” As Bertrand Ramcharan puts it in his essay “The Protection of Minorities in Africa,” any undue focus on indigenous people’s issues would result in “stereotypes and negative perceptions of indigenous peoples,” as “many peoples tended to be portrayed as primitive, backward, and otherwise socially underdeveloped.” In other words, development policies do not pay any meaningful attention to the rights of indigenous people because their life styles “are perceived to be incompatible with the concept of development.”

This view of indigenous people as inimical to development is particularly apparent in the issue of land access. There is rampant displacement of indigenous groups from their traditional areas to create national parks, protected forests, and other conservation areas. In 1998, Rwanda displaced the Batwa of the Nyungwe Forest to create a military zone and a national park, just as the Batwa of the Parc des Volcans were driven out to make a sanctuary for mountain gorillas. There are many such examples in Uganda (against the Batwa), Central African Republic (against the Baka), Botswana (against the San), and Kenya and Tanzania (against the Maasai). Indigenous groups also are evicted from their lands to make way for the exploration for and exploitation of minerals and other resources. In the Great Lakes Region large company concessions for mining, logging, plantations, oil exploration, and dam construction are having severe consequences for the lives and survival of the Pygmies/Batwa people. In Nigeria the indigenous communities of the Niger Delta face dire ecological, health, and human-rights consequences due to state-sanctioned exploration and exploitation of oil and other petroleum products. The story is the same in the various other regions of the continent.

There have been legal, judicial, and political decisions relating to indigenous people in Africa, but they have mostly been aimed at the achievement of a single national identity rather than emphasizing the specific identity of indigenous people as groups in need of protection, and the results are mixed.

Legislation is built on a country’s constitution, of course, and in various African countries the constitution celebrates national unity rather than recognizing the ethnic, religious and linguistic realities of the state. But the Ethiopian and South African constitutions have recognized the existence of “nation, nationality and people in Ethiopia,” and “cultural, religious and linguistic communities” in South Africa, respectively. There is also evidence of promotion of the rights of cultural, religious and linguistic communities, at least in South Africa. Various indigenous communities in South Africa, such as the Khoesan, have benefited from the government’s restitution program, aspects of which have been affirmed in judicial opinions. In Nigeria, the Niger-Delta Development Commission Act created the Niger-Delta Development Commission with the mandate to “use the sums received from the allocation of the Federation Account for tackling ecological problems which arise from the exploration of oil minerals in the Niger-Delta area and for connected purposes.” The establishment of the commission was a way of assuaging the never-ending resource-control demands of the Niger Delta people of Nigeria.

There has been little domestic jurisprudence on indigenous peoples’ rights in African countries, and the few cases that have made it to court dealt mainly with access to land. The displacement of the Maasai from Mkomazi in Kenya and Tanzania resulted in legal actions where the Court of Appeal reversed the decision of a High Court that recognized the interest of the Maasai and completely disposed the Maasai of their land rights in Mkomazi, resulting in landlessness for the 20,000 pastoralist residents. On the other hand, South Africa has shown positive signs in the recognition of customary or native title—akin to the common-law doctrine of aboriginal title—for the benefit of its indigenous communities. In a recent decision in the case of Alexkor Ltd and the Government of South Africa v. Richtersveld Community, the South African Constitutional Court gave the indigenous communities of South Africa stronger legal tools to reclaim their ancestral lands.

There is growing interest in taking cases to the African Commission on Human and Peoples’ Rights, given the apparent willingness of that body to address issues that are of interest to indigenous peoples. In Social and Economic Rights Action Center and the Center for Economic and Social Rights v. Nigeria, the African Commission recognized the Ogoni of Nigeria as one of the “peoples” who are entitled to the various rights contained in the African Charter.

And while the Katangese people’s quest for recognition of their right to self-determination before the African Commission in Katangese Peoples’ Congress v. Zaire may not have proved successful, the African Commission has recognized other collective rights that may be beneficial to indigenous communities. Minority Rights Group International brought a case before the commission in defense of the Endorois community in Kenya—a case that is significant because it is the first to deal with issues that directly affect indigenous people’s rights before the Commission within this new period of work on indigenous rights issues in Africa.

The commission’s work and the African human-rights mechanisms in general are anchored in the African Charter on Human and Peoples’ Rights. This document has been hailed as having broken new ground by being the first treaty to codify, in a single instrument, all human rights—whether civil, political, economic, social or cultural—and irrespective of the addressee: the individual or collective. The fact that the African Charter recognizes “peoples” goes to the root of indigenous peoples’ protection via various collective rights. However, the traditional apathy regarding indigenous peoples in the continent long prevented the placing of indigenous issues before even the African Commission.

But recent events have shown that the discourse on indigenous peoples’ rights cannot be glossed over. The Ogonis of Nigeria have asserted their place since the hanging of the famous Ogoni 9, which included the Nobel Peace Price nominee, Ken Saro-Wiwa; the Maasai of Kenya have continued to demand recognition for their way of life and the return of their lands; the San of Southern Africa continue to remind the nation-state that they are not extinct, as was once believed; the Pygmies of the Great Lakes Region demand a place in society; the Berbers of North Africa are unwilling to deny their heritage; the Khoesan of South Africa do not fail to remind the new South Africa that they are the first peoples of South Africa, and the list goes on.

As a result of events like these—and the human rights abuses that resulted when states acted against indigenous peoples’ protests—the commission in 1999 created a committee of three commissioners and a working group of experts to examine the concept of indigenous people in Africa and the implications of the African Charter for them. The report of the working group was adopted in 2003 at the African Commission’s 34th Ordinary Session in Banjul, The Gambia, where the commission committed to maintaining the issue of indigenous rights on its agenda and re-established the Working Group of Experts as a permanent feature.

The report of the Working Group is thus the first real attempt at bringing indigenous rights issues to the fore. Rather than define indigenous peoples, indigenous populations, or indigenous communities in Africa—given the general lack of agreement on the existing definitions—the report notes that the application of the term “indigenous” is one that is based on self-identification and would cut across economic systems and embrace hunter-gatherers and pastoralists, as well as some small-scale farmers.

The term “indigenous” as understood in North America or Australia and other Pacific regions may not strictly fit in Africa, but indigenous culture and life are nonetheless vulnerable in the losing competition with the pop culture of the modern Westphalian state that Africa has strongly embraced. It thus becomes necessary to protect indigenous people and cultures who find themselves as nonparticipants in and nonbeneficiaries of the modern African state life. There are cultures within cultures in Africa, and this, I suggest, is the best way to approach indigenous discourse and rights issues in Africa, even though “all Africans are indigenous.”