A. ‘Authenticity’ and ‘Indigenous’ Rights in Botswana

Over the last decade Botswana has been at the centre of litigation on indigenous peoples’ rights, which has attracted significant attention nationally, regionally and internationally.Footnote ²⁰ At the heart of the legal battle was the claim of the San and Bakgalagadi residents of the Central Kalahari Game Reserve (CKGR)—Botswana's largest protected area and the second largest game reserve in Africa—that they had been illegally removed from their ancestral land by the government. There have been issues about the rights of the indigenous community in the CKGR for many years, as the reserve was established in 1961, but matters accelerated in 1997 when some of the people in the reserve were relocated, and the situation worsened in 2002 when the government informed the remaining residents of the CKGR that they were shutting down the wells and stopping all food deliveries inside the reserve.Footnote ²¹ The government then proceeded with the removal of the peoples and their possessions out of the reserve. The residents decided to challenge their removal in court.Footnote ²²

Whilst the litigation was mainly about determining the rights to land and services for the indigenous communities, the issue of determining the specific rights of the CKGR inhabitants as an indigenous community was equally fundamental. The government of Botswana is well known for its opposition to the notion of indigenous peoples’ rights.Footnote ²³ A constant argument of the government's lawyers in the court case was that the San residents of the CKGR were not entitled to any specific rights, but should be treated as any other citizens of the State. Based on this approach, the argument put forward was that the San residents of the CKGR should be removed from their land to ensure their access to ‘modernization’ and ‘progress’, like other citizens of the country. One of the justifications for their forced relocation was to bring their standards of living up to the level of the rest of the country. As the minister for local government put it: ‘We as governments simply believe that it is totally unfair to leave a portion of our citizen undeveloped under the pretext that we are allowing them to practice their culture.’Footnote ²⁴ During the trial, the government's lawyers put forward the fact that the applicants’ were ‘no longer authentic’ because they were not hunting and gathering full-time, as they had in the past, and were involved in agriculture, livestock production, and migrant labour. On the other side of the spectrum, the legal counsel for the applicants referred to the concept of indigenous peoples’ rights as developed under international law, highlighting the need for the court to recognize their entitlements as specific indigenous rights. The recognition of the CKGR residents as indigenous peoples was an important element of their legal claims. Most important was the recognition of the CKGR inhabitants as the ‘Bushmen’ mentioned in Article 14.3.c of the Constitution, as people having certain rights to reside in the Reserve. As noted by Sapignoli, the San and Bakgalagadi ‘in speaking about indigeneity, entering the Court and adopting its language, found a way to obtain their rights’. Footnote ²⁵ As she noted: ‘(…) indigeneity in Africa is a recent identity claim born in the 1990s with the emergence of the international indigenous movement and international law and organizations on indigenous peoples. The Botswana Court Case and Bushmen's self-identification as indigenous peoples cannot be understood without considering these local, national, and global relationships.’Footnote ²⁶ During the court hearings much emphasis was put on the the need for anthropological experts to ‘prove’ the originality and ‘authenticity’ of the indigenous claims.

Ultimately, the High Court recognized the right of the community to live on their ancestral territory. In reaching this decision, two of the judges specifically highlighted the need to recognize them as indigenous, with Justice Dow noting: ‘the fact the applicants belong to a class of peoples that have now come to be recognized as ‘‘indigenous peoples’’ is of relevance’.Footnote ²⁷ As highlighted by the judge, this meant that the relevant international legal principles regarding indigenous peoples’ rights, and notably the Convention of the Elimination of All Forms of Racial Discrimination (ICERD), were relevant to the case.Footnote ²⁸ More generally, all the judges accepted that being recognized as ‘indigenous peoples’ meant that the colonial acquisition of their land and the following post-independence land legislation had not extinguished their rights to use their ancestral territories. Knowing that the government was pressing for the rejection of this legal approach, which recognized the relevance of indigenous peoples’ rights in the country, this was certainly an important legal development. As analysed by Hitchcock, Sapignoli and Babchuk: ‘The San of Botswana, in defining themselves as ‘‘indigenous’’ before and during the Central Kalahari court case, did so purposely. They sought to re-assert their rights, using the concept of indigeneity as a means of defining themselves as a group that: (1) was different from the majority population; (2) that historically had been mistreated and discriminated against; and (3) that this treatment occurred in part because of their lifestyles and distinct cultural attributes.’Footnote ²⁹

B. The ‘Invisible’ Batwa of Uganda

In 2013, several members of Batwa communities of Southwest Uganda submitted a petition to the Constitutional Court.Footnote ³⁰ The petition seeks recognition of their status as indigenous peoples, redress for the historic marginalization and discrimination they are facing, and compensation for the continuous human rights violations they have experienced as a result of being dispossessed of their ancestral lands. The Batwa have been gradually evicted from their lands following the creation of national parks in the forests covering their ancestral territories.Footnote ³¹ The establishment of these national parks started during the colonial time in the 1930s, but many Batwa continued to live in the forest and to use its resources until the 1990s when they were evicted, without consultation, adequate compensation or any offer of alternative land. As a result, the Batwa have been living at the borders of the parks as squatters on other peoples’ land, resulting in severe poverty, malnutrition and health problems.Footnote ³² This loss of their lands and sources of livelihood is accentuated by the high levels of discrimination they are facing in Ugandan society.Footnote ³³ In general, the Batwa suffer from extreme and embedded forms of discrimination from mainstream society.Footnote ³⁴ They particularly suffer from forced labour, lack of political representation and participation, lack of access to education, housing, healthcare, social security and benefits.Footnote ³⁵

One of the arguments put forward by the Batwa in their petition to the Constitutional Court relates to their recognition as indigenous peoples. The government has so far rejected their claims as indigenous peoples, not recognizing their specific rights to land and natural resources, and not acknowledging the need to develop special measures to address the discrimination they are facing. In its Third Schedule, the 1995 Constitution lists ‘indigenous communities’. However, this Schedule is based on its colonial roots, listing all the ‘Tribes’ existing or residing within the colonial borders of Uganda as of 1926. Hence the Constitution adopts a very colonial tone by labelling all ethnic groups of the country as indigenous peoples, but not putting in place special measures of protection for the most marginalized indigenous communities. In the petition and in the expert affidavits submitted to the Constitutional Court, the importance of using contemporary standards of definition used at international and regional levels has been put forward as an essential element of their claim. The petitioners have invited the Court to consider the definition proposed by the Working Group on Indigenous Population/Communities of the African Commission (WGIP) which defines indigenous peoples based on the characteristics that:

1. a) their culture and way of life differ considerably from the dominant society, to the extent that their culture is under threat of extinction;

2. b) the survival of their particular way of life depends on access to lands and natural resources;

3. c) they suffer from discrimination as they are being regarded as less developed and less advanced than other more dominant sectors of society;

4. d) they often live in inaccessible regions and are often geographically isolated;

5. e) they are subject to domination and exploitation within national political and economic structures.Footnote ³⁶

The petitioners have also highlighted that the African Commission has further clarified that the term indigenous populations does not mean ‘first inhabitants’ in reference to aboriginality in postcolonial settlers societies. As noted by the African Commission: ‘if the concept of indigenous is exclusively linked with a colonial situation, it leaves us without a suitable concept for analyzing the internal structural relationships of inequality that have persisted from colonial dominance’.Footnote ³⁷

Relying on this approach, the petitioners want to challenge the historical (and colonial) classification of all tribes of the country as indigenous, and get the court to recognize formally their legal status as indigenous peoples. Hence, an important aspect of the petition is the demand that the Constitutional Court recognizes their self-identification as indigenous peoples as defined under international law. Such recognition would entitle them to have access to specific affirmative action policies. Article 32 of the Constitution affirms that the government ‘shall take affirmative action in favour of groups marginalised on the basis of gender, age, disability or any other reason created by history, tradition or custom, for the purpose of redressing imbalances which exist against them’. Despite the widespread discrimination faced by the Batwa, the government has not developed any affirmative action polices to tackle such entrenched forms of discrimination. In claiming their rights to be recognized as indigenous peoples who are facing historically embedded forms of discrimination, they are inviting the Constitutional Court to declare the government in breach of its constitutional obligation.

This case, and the previous case concerning Botswana, show the importance for the concerned communities of being able to articulate their rights under the banner of indigenous peoples’ rights. In these two cases (as well as in the cases that will be examined below), the lack of a proper legal framework coupled with the lack of political will to protect their rights as indigenous peoples has pushed the concerned communities to take legal action against the government. The recognition by the national courts that they are indigenous peoples constitutes an important first step in recognizing them as historically discriminated-against societies entitled to specific rights, notably rights to lands and natural resources as examined below.

A. The Survival of Customary Land Rights in South Africa

Following the post-apartheid legacy on both land rights and non-discrimination, the courts in South Africa examined in detail the connection between land rights and indigenous peoples’ rights in a case which reached both the Supreme Court and the Constitutional Court.Footnote ⁴⁴ The case in question was by members of the Richtersveld community who brought a claim for the restoration of their ancestral land under the Restitution of Land Rights Act, a statutory mechanism giving effect to the government's constitutionally-mandated land reform and restitution programme. The Richtersveld community is a community of approximately 3,000 formerly nomadic and pastoralist people, who traditionally occupied land that was then annexed by Alexkor, a State-owned diamond mine. When the land was annexed, the company argued that the community lost their rights to the land. The government contended that indigenous customary laws on ownership ceased with the annexation of South Africa by the British in 1847, and that this loss of rights was not a dispossession as envisaged under the post-apartheid Restitution of Land Rights Act.

An important aspect of the case was the community's assertion that it used the land according to its ‘indigenous customs’ and that such customary law interests had not been extinguished by colonization and its apartheid legacy. The case went from the local Land Court to the Supreme Court, and then the Constitutional Court. An essential element was for the courts to define whether the customary land rights of the community could constitute land rights as protected under the Restitution of Land Rights Act. One of the arguments was that the community had a right to the land in question on the basis of their own indigenous customary land rights, rights that were discriminatorily ignored. At the lower levels, the claim was dismissed on the grounds that the claimants were dispossessed for the purpose of mining of diamonds and not because of racially discriminatory laws or practices. On appeal, the Supreme Court of Appeal recognized that the dispossession of the community was racially discriminatory ‘because it was based upon the false, albeit unexpressed premise that, because of the Ritchersveld community's race and lack of civilization, they had lost all rights in the land upon annexation’.Footnote ⁴⁵ The Court highlighted that even though the undisturbed possession of the land by the indigenous community concerned was ignored on discriminatory grounds, indigenous laws regarding land rights had survived and extended to the current legal regime. The judges ruled that the Richtersveld community's customary right of ownership had survived the annexation by the British Crown as ‘these rights constituted a ‘‘customary law interest’’ and consequently a ‘‘right in land’’’.Footnote ⁴⁶ As noted by the Court: ‘[A]n interest in land held under a system of indigenous law is thus expressly recognised as a ‘‘right in land’’, whether or not it was recognised by civil law as a legal right.’Footnote ⁴⁷ The Court ultimately recognized the Richersveld right to land based on their ‘customary law interest under their indigenous customary law entitling them to exclusive occupation and use of the subject land and that its interest was akin to the right of ownership held under common law’.Footnote ⁴⁸

Both the company and the government challenged the ruling before the Constitutional Court, alleging that the Court of Appeal was wrong in holding that the community had a customary law interest in the subject land. A central aspect of their challenge was based on the colonial history of the land claim. Alexkor's representatives argued that after annexation in 1847 by the British the land had not been granted under any form of tenure, meaning that the British Crown became the only legal owner. Hence, from their perspective, the community had lost its rights to land in 1847 as a result of the annexation. Joining the Supreme Court of Appeal, the Constitutional Court rejected this argument, highlighting that colonial rules had not extinguished the customary land rights of the community. In highlighting the legal value of customary indigenous peoples’ land rights, the Constitutional Court stated: ‘indigenous law feeds into, nourishes, fuses with and becomes part of the amalgam of South African law’.Footnote ⁴⁹

This ruling constitutes an important decision not only for the community concerned but also for many other indigenous communities who have also faced serious discrimination and non-recognition of their rights to land in South Africa. Due to the unique post-apartheid legal regime on which this decision was based, it is hard to foresee how such a decision might translate to other jurisdictions outside South Africa. Nonetheless, some aspects of this decision could be of some relevance to legal developments outside of South Africa, particularly its highlighting that colonization and its resulting postcolonial legacy has not extinguished indigenous peoples’ land rights. This case also highlights the importance of the formal recognition of indigenous customary land laws. The cohabitation between customary laws and formal laws is extremely relevant for the whole continent, as most indigenous peoples still predominately refer to customary land tenure systems as their main legal norms when it comes to land rights.

B. Land and Natural Resources in Botswana

At nearly the same time another important legal battle on land rights was taking place across the border in Botswana. In the case concerning the CKGR, mentioned earlier, one of the central issues for the court was to determine whether the indigenous community had any right to the land and, if so, whether their forced removal was illegal. To address this issue the judges had to examine the issue of the survival of customary land laws and the nature and value of possession as constituting title. The High Court ruled in favour of the indigenous community, highlighting that their possession based on customary law ‘survived’ the creation of the game reserve both under colonial rules and in the post-independence period. The court highlighted that the forced removals of the community and the denial of their rights to occupy their ancestral territory were unlawful and unconstitutional. As noted by one of the judges, the establishment of the game reserve did not extinguish their customary land rights so the applicants ‘were in possession of the land that they lawfully occupied.’Footnote ⁵⁰ The court unanimously recognized the right of the applicants to live and reside in the reserve. In a similar approach to that adopted by the judges in South Africa, an important element of the ruling was the recognition of the non-extinguishment of indigenous peoples’ customary land rights under colonial rules and post-independent legislation.

However, there were some serious limitations within the ruling of the High Court in 2006. First, the court ruled that the stopping of services was lawful and the government was not required to restore basic and essential services in the reserve. This led to the impossible situation for the community of having their rights to live on their ancestral land recognized but not having the right to the water that could allow them to live on the land. During the forced relocation of the community outside the reserve, the authorities had destroyed several water tanks and sealed off some of the essential boreholes. This led to another court case which started in 2010. This time the focus was on the recognition of their right to access and use of water resources. In particular, the applicants sought permission to recommission, at their own expense, a borehole that had been closed by the government. The applicants lost their case at the first instance, the judge stating that ‘The Basarwa have chosen to settle in areas far from those facilities. They have become victims of their own decision to settle an inconveniently long distance from the services and facilities provided by the government.’ This was overturned on appeal when the community's fundamental right to access water was recognized. The court ruled that since the applicants were in ‘lawful occupation’ of their ancestral lands, they should have the right to drill their boreholes for domestic purposes. It has been a long legal battle for the San community residents of the game reserve to gain their right to live on their lands, taking four different cases of litigation.Footnote ⁵¹

Some important lessons can be drawn from this process, and notably the importance of recognizing the fundamental connection between land and natural resources. Indeed, for many indigenous communities not only the San, land rights relate to the rights to use and access the natural resources found on their territories, including water rights and hunting and gathering rights. The second limitation of the case relates to the fact that the ‘legal’ victory concerns only a limited number of the original inhabitants of the reserve, as only the applicants listed had the right to go back, not the entire communities which were forcedly removed. Whilst the case has often been perceived to be a victory for the San of Botswana, the reality is different, as the case was filed in the name of 243 specific applicants. Hence the decision concerns only these applicants not the San communities as a whole. This restriction came to be realized by many of the residents of the reserve only very late in the day. This has served as a lesson across the border, as a case which was launched by several San communities in Namibia has been brought as a class action rather than as an individually based claim.

Overall, looking at litigation in both South Africa and Botswana, what emerges is the importance of a legal theory on ‘indigenous customary title’. In both situations, the communities concerned won their cases based due to the recognition that colonial title to land ownership, and its ensuing postcolonial legacy, have not ‘extinguished’ indigenous peoples’ land rights, and that their rights to land formed part of the contemporary legal framework governing land laws alongside other statutory and jurisprudential rights. Comparative legal analysis has played an important role in these decisions.

The courts have highlighted the importance of integrating indigenous peoples’ customary land rights within the mixed and pluri-legal African systems. It is in this mix of common law, Roman–Dutch, civil statutory laws and customary law that a specific African approach to the meaning and content indigenous peoples’ land rights appears. In terms of legal theories regarding indigenous peoples’ land rights, it is important that the recognition of possession and customary law as a source of land rights does not come with the limitation of extinguishment which has been developed in common law countries such as Australia and Canada. Under the common law doctrine, Aboriginal or Native titles are subordinated to the ‘illegitimate assumption of State power to extinguish such title’.Footnote ⁵² Instead, the courts in South Africa and Botswana adopted a less State-centric approach to indigenous peoples’ land rights, emphasizing the power of customary laws.

Whilst, to some extent, this approach builds on the Aboriginal/Native title theories, it includes indigenous land laws on a much more equalitarian footing alongside other competing right. This approach is very specific to Africa, and arguably more compelling, as indigenous title seems to be less fragile and less totalizing as it is not submitted to a nearly impossible burden of proof that marks the common law theories on aboriginal title.Footnote ⁵³ The emergence of an African indigenous title theory, or as captured by McHugh the ‘creolisation’ of indigenous title theory, is based on a more atomized place for customary collective rights.Footnote ⁵⁴ It is also developed in a way which better reflects human rights principles of equality and non-discrimination, which were clearly articulated by the petitioners and their legal teams as essential element of land rights.

A. The Right to Development and the Endorois in Kenya

The Endorois are a predominantly pastoralist society living in Kenya's Rift Valley, and their practice of pastoralism has consisted of grazing their animals in the lowlands around Lake Bogoria. A Game Reserve has been established on their territory, and several game lodges, roads and a hotel have been built on their land. The government has also granted a concession for ruby mining on part of the territory. After years of frustrating negotiations and litigation at the national level, the Endorois community decided to take their case to the African Commission on Human and Peoples’ Rights.Footnote ⁶⁰ The Endorois alleged violations resulting from their forced displacement from their ancestral lands, the failure to adequately compensate them for the loss of their property, the disruption of their pastoralist way of life and violations of the right to practise their religion and culture, as well as the overall process of development of the Endorois people.

A central argument of the government was that tourism and the exploitation of natural resources (notably ruby mining) would bring significant resources to the region. The government highlighted the fact that the project for tourism around Lake Borogia was seen as a potentially positive development and all the revenues raised by the Game Reserves were reused to support development projects carried out by the County Council for the area. One of the arguments put forward by the government was that the establishment ‘of a Game Reserve under the Wildlife laws of Kenya is with the objective of ensuring that wildlife is managed and conserved to yield to the nation in general and to individual areas in particular optimum returns in terms of cultural, aesthetic and scientific gains as well as economic gains as are incidental to proper wildlife management and conservation’.Footnote ⁶¹ Overall, the government argued that other communities, and the country as a whole would benefit from the development. They also added that the community knew about the mining concession and would also benefit from its exploitation. The government concluded that ‘the task of communities within a participatory democracy is to contribute to the well-being of society at large and not only to care selfishly for one's own community at the risk of others’.Footnote ⁶²

On their side, the Endorois argued that these developments were a violation of their right to development protected under Article 22 of the African Charter, which states: ‘All peoples shall have the right to their economic, social and cultural development with due regard to their freedom and identity and in the equal enjoyment of the common heritage of mankind.’ Based on this article, the Endorois argued that the decision of the government to proceed with these developments on their lands put them into a situation of disenfranchisement since it resulted in their losing access to a land essential for the maintenance of their pastoralist way of life. The pastoralist community contended that the government had violated their right to development by its failure to adequately involve them in the development process taking place on their customary lands, as well as by its failure to ensure the continued improvement of the community's well-being. They highlighted that in forcing such developmental projects on their lands the government ‘did not embrace a rights-based approach to economic growth, which insists on development in a manner consistent with, and instrumental to, the realization of human rights and the right to development through adequate and prior consultation’.Footnote ⁶³ It is not so much the legitimacy of the decision of the government in turning the land into a tourism and wildlife reserve that the community was contesting but rather the way the decisions were made and, in particular, the lack of consideration given to their culture and survival. They emphasized that the Game Reserve and their pastoralist way of life should not be considered mutually exclusive. Linking self-determination and development, they stressed that they had ‘suffered a loss of well-being through the limitations on their choice and capacities, including effective and meaningful participation in projects that will affect them’.Footnote ⁶⁴ The community highlighted that ‘self-determination also include the ability to dispose of natural resources as a community wishes, thereby requiring a measure of control over the land’.Footnote ⁶⁵

In terms of legal jurisprudence, the position of the two parties on the meaning of the right to development made it a very compelling case since there has been very little litigation on the right to development. Under international human rights law there have been debates on the theoretical implications of the right to development but very few instances of legal adjudication.Footnote ⁶⁶ In general, the right to development has not been seen as a justiciable right. Regarding the scope of the right to development, the African Commission highlighted that ‘the right to development is a two-pronged test, that it is both constitutive and instrumental, or useful as both a means and an end’.Footnote ⁶⁷ Adopting a pragmatic focus, the Commission concentrated on two principal issues: (1) the extent to which the community had (or had not) been consulted prior to the establishment of the wildlife reserve on their territories and (2) whether such development provided benefits to the community concerned. The Commission found that the lack of ‘meaningful participation’ by the Endorois, who ‘were informed of the impending project [on their land] as a fait accompli’, was a violation of the right to development. The Commission found that the government had violated the right of the indigenous community to their culture, land, and development. It rejected the argument put forward by the government that the community's rights should be ‘sacrificed’ in the name of development, tourism and conservation. Instead, the Commission underscored that a fair balance should be struck, ensuring that the community would also benefit and participate in these developments. From a global legal perspective, this aspect of the case is extremely appealing since there are few cases that have specifically focused on the right to development in the context of large-scale developmental projects taking place on indigenous peoples’ territories. This legal reasoning could have some important echoes across the continent, as most governments usually justify the forced displacement of marginalized indigenous communities on the basis that it is necessary to allow development, conservation and tourism.

B. Tourism, Corporations and the Maasai in Tanzania

Three indigenous Maasai communities in northern Tanzania find themselves in the middle of a complex legal battle to reclaim their rights over their ancestral lands and resources following the acquisition of their lands by private corporations.Footnote ⁶⁸ In 2010, the Maasai villagers concerned had filed a petition with the local High Court in Arusha after they were forced from their land and blocked from vital water sources to make way for a luxury safari camp near the world-famous Serengeti National Park. The safari camp is run by a subsidiary Tanzania entity of a US-based Safari Company, Thomson-Wineland Adventures Inc., also known as Thomson Safaris. In 2006, Thomson's affiliate, Tanzania Conservation Ltd. (TCL), acquired 12,617 acres of land known as ‘Sukenya Farm’, which had traditionally been used by the Maasai communities. Their legal claim is based on a complex and historical battle over the land which started in 1984 when the government-owned Tanzania Breweries Limited (TBL) acquired 10,000 acres at Sukenya Farm, without any consultations with, consent from or compensation to the local communities. The aim of the brewery company was to cultivate barley and wheat, but ultimately it only used a very small parcel of the land (700 acres), while the remaining part of the land was used by the Maasai communities for grazing and watering their livestock. In 2006, the land was then sold to the Tanzania subsidiary of Thomson Safari without any form of consultation, or involvement of the indigenous pastoralists communities.

The indigenous communities challenged the legality of the acquisition of their lands in a petition to the High Court. Their claim was based on the fact that the acquisition had not followed required conditions concerning consultation and compensation. In their complaint to the court the villagers also highlighted that their continuous peaceful occupation of the land since its wrongful acquisition in 1984 meant that they were the rightful owners of the land under the theory of acquired rights. They asked the court to recognize the illegality of the acquisition of the land by the US based Safari Company. In their application the villagers requested that the court revoke the company's land title, prevent them from converting the land's designated use from pastoralism to tourism, and award damages for the injuries they suffered due to their exclusion from the land. However, in 2015, the High Court ruled against the villagers, except for a minor point concerning an illegal transfer of part of the land, but no damages were awarded to the communities.Footnote ⁶⁹ Whilst this undoubtedly represents an important setback for the applicants, there are some important legal aspects of their legal battle that need to be highlighted.

An important aspect of the case relates to the allegation being against the act of a corporation based in the US. Legally, the communities could not take direct action against the US-based corporation in a local court as it had been operating through a subsidiary based in Tanzania. With the assistance of Earth Rights International, an international NGO based in the US, the three Maasai communities turned to a US federal court to support their ongoing legal battle over the land they had lost to Thomson Safaris.Footnote ⁷⁰ The federal court action was filed under the Foreign Legal Assistance (FLA) Statute (28 U.S.C. section 1782), a law that allows people to obtain documents and information from individuals or companies in the US to support foreign legal proceedings. The aim of the legal action in the US was to show that Thomson Safari knew that the land confiscation was illegal and were aware of the extremely negative consequences that such illegal acquisition would have for the communities. The documents and information that were made available through this legal proceeding in the US were vital to support the claim of the communities in Tanzania. It was also an innovative and novel way—not much used in the US—of bringing the litigation ‘home’. Whilst the situation in this case might sound very specific, it reflects the situation faced by many indigenous communities across the globe. In many situations private corporations acquire indigenous territories under similar processes using nationally or locally registered subcontractors or use subsidiaries to conduct their operations on indigenous territories. From this perspective, the complexity of the legal action that the Maasai villagers had to go though is a good indicator of the complexity of the legal strategies that many indigenous communities have to face when multinational corporate interests are invading their territories. It also shows how international support from international actors can be crucial when engaging in such transnational litigation.

A. Pre-Trial Strategy: Community and Evidence Gatherings in Uganda

The decision to take legal action by the Batwa represents a compelling example of community mobilization and the development of a legal strategy before going to litigation. The Batwa do not live as one united community but live in scattered small communities, squatting either at the borders of the lands they have been evicted from or in the vicinity of villages or towns that are near the parks. In 2000, several community leaders, with the support and involvement of outsiders and NGOs, decided to establish the United Organisation for Batwa Development in Uganda (UOBDU) as an umbrella organization to support the Batwa unite and engage in informed advocacy for their rights. The UOBDU quickly became a place for communities to voice their concerns and share similar stories of discrimination. It became the main avenue for them to express their concerns to the government, notably through numerous exchanges and discussions with local councils, various government departments as well as the Parliament of Uganda.Footnote ⁷¹ Under the umbrella of the organization the Batwa also started to address international and regional human rights mechanisms, which led to the issuance of clear guidance on how Uganda should address the human rights situation of the Batwa.Footnote ⁷² However, over the years of negotiations and push by international and regional human rights institutions, the hope of achieving remedies outside the courts faded as no concrete measures were put in place by the national authorities. Worse, the overall situation of the Batwa continued towards further impoverishment and discrimination. As a result of the lack of proper engagement from the local and national authorities, the Batwa, via their traditional leaders and through discussions with most members of the communities, decided to take the government to court.

Initially, most of the Batwa would have preferred the option of dialogue and negotiations. The predominant view from most members of the community was in favour of not ‘attacking’ the government in court, as the authorities were still seen as important and respectful allies whose support was necessary to them. However, after a few years of frustration and the lack of any proper engagement by the authorities a debate started within the community about the next steps to follow. Under the umbrella of UOBDU, the Batwa had put in place a very efficient forum for discussion in which representatives of many communities gathered together to discuss the process ahead.Footnote ⁷³ Over the years, this forum has proven to be a very powerful agent for the Batwa not only to express their view, but also to get a sense of empowerment by sharing their common experiences. Through this forum the Batwa started to use a common language to express their grievances. Hence when the issue of taking legal action eventually arose, the Batwa had already been developing a common platform to engage with the issues to be put forward. This forum was used to express grievances and translate these into a legal language. The representatives of the communities would report back to their communities and then report back to the forum about the decisions from the other members. As such, the decision to take legal action was taken collectively though a long process of dialogue.

Once the decision to take legal action was put forward, the forum was then used as a platform to build the legal argumentation. An important aspect was to gather evidence to bring to court. Generally, bringing evidence on land and resources ownership is a serious challenge for indigenous communities. As they usually do not have official administrative proof of ownership they have to rely on oral testimony and community members’ evidence of usage and possession of the land. Increasingly, communities are using mapping technologies, such as GPS and GIS, to support their claims. The Batwa faced all these difficulties, which were made more difficult due to the fact that their removal had taken place over a prolonged period from the 1920s until the 1990s. This meant that many members of the community had never ‘legally’ lived on their ancestral territories. Hence the decision was made to record evidence from the eldest of the community who had lived on the lands concerned and who had faced the eviction. In 2011 the Batwa created three-dimensional models of both Bwindi and Mgahinga national parks which depicted their spiritual and cultural attachments to the forest and specific sites within the forest. At the time of writing, the case has yet to be heard and ruled upon by the Constitutional Court. However, many of the issues faced before launching the case highlight some important elements regarding the process of legal empowerment which flows from a community deciding to use litigation and the process of evidence gathering.

B. Strategy to Support Litigation in Botswana

The previously mentioned case from the High Court of Botswana is the longest and most expensive case in the country’ legal history. The first court case ran from 2004 to 2006, but the legal proceedings started in 2002, and two other cases followed in 2011 and 2015. The long and arduous legal procedings meant that many of the applicants, at least 10 per cent of the original applicants, passed away before the case even began in 2006.Footnote ⁷⁴ In addition, litigation is also a costly process, especially since these cases are usually extremely lengthy and technical. Indigenous communities are usually marginalized and do not have the necessary monetary means to support such long processes of litigation. From this perspective, all the cases mentioned so far have received support from legal firms and civil society organizations. In the case of the San in Botswana, Saugestad has analysed how the support from external actors was essential in supporting the indigenous communities both in terms of legal analysis, via the involvement of international lawyers, funding, via the support from international NGOs, and also advocacy via the use of international media and lobbying groups.Footnote ⁷⁵ As she noted: ‘there is no way a group of poor illiterate San could have raised the case on their own (..)’. Originally the applicants and their legal team had envisaged that the court case would take about one year, instead of the nearly 11 years it actually took. This meant that the financial resources initially made available were not sufficient to sustain the case. After the first phase of the case, the claimants decided that it would be a good idea to hire more lawyers. To that end, a fundraising tour of the US was sponsored by the Indigenous Land Rights Fund and the Kalahari Peoples Fund was initiated.Footnote ⁷⁶

The situation of the San in the CKGR in Botswana has received significant coverage and involvement from INGOs, including some of the most well-established international organizations working in support of indigenous peoples. The International Work Group for Indigenous Affairs (IWGIA) has funded First People of the Kalahari (FPK) which was instrumental in supporting the capacity-building of the community for the purposes of the legal case.Footnote ⁷⁷ Cultural Survival, one of the largest NGOs supporting indigenous rights globally, has been extremely proactive in producing numerous articles, reports and press releases on the central Kalahari. Survival International has been especially active producing ‘Urgent Action Bulletins’ on the central Kalahari situation, and by providing some funding and support for the applicant's legal team. As highlighted by Sapignoli, an important element in the San receiving such strong support from Western NGOs was because they became a ‘receptacle of Western imaginaries of anti-modernity and otherness, as peoples’ and ‘a focal point of conflict over different understandings of human worth, dignity, and equality’.Footnote ⁷⁸ This involvement from international NGOs led the government to claim that the case was led by foreigners.

International and regional human rights organizations also played a significant role in the background of the case, particularly by putting pressure on the authorities regarding the situation in the CKGR.Footnote ⁷⁹ For example, in 2005 in the midst of the legal case two members of the Working Group on Indigenous Populations/Communities of the African Commission on Human and Peoples’ Rights visited Botswana.Footnote ⁸⁰ The African Commission on Human and Peoples’ Rights has also expressed concerns to the government about the treatment of the people of the Central Kalahari.Footnote ⁸¹ The (former) UN Special Rapporteur on the human rights and fundamental freedoms of indigenous peoples has also played a proactive role in reporting on the situation and visiting the country.Footnote ⁸²

The involvement of international actors was not always a positive force as it created some dissension amongst the various local and national organizations previously involved. For example, some of the local NGOs pulled out of the negotiations because they felt that the approaches being employed by Survival International were too aggressive and counterproductive.Footnote ⁸³ As analysed in great detail by Saugestad, the involvement of so many international actors, and the polarization that it created between the different local actors, ‘has paradoxically endangered the possibility of generating a stronger locally-based movement advocating for San rights’.Footnote ⁸⁴ International involvement was also an essential ingredient in the establishment of the legal team. The legal team was composed of lawyers from South Africa, who were joined by a British lawyer when Survival International became involved in the case. The role of the lawyers raises several issues, not only in this case but also more generally when it comes to litigation on indigenous rights. The legal procedures being usually extremely complex and jargonized, lawyers representing the indigenous communities tend to become the leaders of the legal strategy rather than the community itself. In the case of Botswana, Saugestad noted that ‘once the case proper started, the formalities of the legal process took control, the lawyers took centre stage, and the applicants became spectators’.Footnote ⁸⁵

This case shows how essential it was for the applicants to get international support, but it also highlight the potential pitfalls of this involvement. The international involvement played a positive role in supporting the legal argumentation and the advocacy around the case. It was also an essential element in the case management and in ensuring the financial sustainability of the court action. However, it has also created serious tensions within the national and local setting, creating dissension between the national human rights actors and the communities. Ironically, it contributed to the disempowerment of the individuals most concerned, who became secondary actors in their own court case as the centre stage was taken over by international actors, including INGOs and lawyers. In this context, it is essential to ensure that a cohesive strategy between all partners in the court case is defined and respected to ensure the direct participation and consultation at all levels of the communities concerned. This is certainly an important lesson which should be learnt from in other cases of litigation with a heavy involvement of external actors.

C. Strategy to Support Implementation of the Endorois Decision

Winning a case is undoubtedly an extremely positive outcome, but it is not the end of the road as very often the process of implementation is in itself an arduous process for communities engaging with litigation. As noted earlier, in 2010, after years of litigation, the Endorois of Kenya won an important legal battle when the African Commission established that the government should return their ancestral lands, ensure unrestricted access to Lake Bogoria, pay adequate compensation for all losses suffered, pay royalties regarding existing economic activities, and engage in dialogue with the complainants regarding future development on their territory.Footnote ⁸⁶ More than six years later, at the time of writing, the decision still remains to be implemented by the Kenyan government. Unfortunately, this is not an isolated story, as across the globe many indigenous communities who have won cases are still awaiting implementation.Footnote ⁸⁷

From this perspective, an interesting development is taking place in Kenya, where the community has been leading a process to support the implementation of the decision. The community established the Endorois Welfare Council as a platform to enhance their capacity to support the litigation. The council now plays an important role in seeking to focus the effort and support the community to effectively negotiate with the government regarding the implementation of the decision. Working alongside other national and international organizations, Minority Rights Group (MRG) has been extremely proactive in holding strategic meetings, organizing workshops with leaders of the Endorois community on different options of land restitution and compensation, conducting surveys on immaterial losses, analysing data on material losses, building the capacity of the Endorois Welfare Council to seek implementation, organizing paralegal training, supporting community outreach and seeking the active involvement of African Union and United Nations bodies, including the ACHPR holding one of only two hearings on implementation and issuing its first ever resolution on non-implementation.Footnote ⁸⁸ As a result of such proactive civil society action, in 2014 the government established a ‘Task Force’ to address the ACHPR's decision.Footnote ⁸⁹ Whilst this task force has some serious limitations, notably the fact it is mainly composed of government officials, and that its mandate is to ‘study the Decision’, it nonetheless represents an important platform which has emerged following the persistent push from civil society to support the implementation of the legal decision. Moreover, due to civil society pressure there has been some movement on the part of the government, which was at first quite lethargic regarding the implementation of the decision. This experience of implementation could be shared across the continent as non-implementation is not unique, nor is it limited to decisions adopted by regional institutions rather than national courts. For example, the government of Botswana has failed to implement the ruling issued by the High Court in 2006. In many ways, the lack of implementation raises the question of the viability and usefulness of litigation. Litigation takes up a lot of resources, time and energy from the communities, hence the prospect of non-implementation calls into serious question the viability of using courts as an agent of change.

Nonetheless, what the litigation process in Kenya, as well as the other cases that have been examined in this article, show is the important role that litigation plays as a tool to support the legal empowerment of the communities concerned. In all the situations examined the communities are extremely marginalized, and are usually facing some serious forms of discrimination from the rest of society. Taking legal action is often an important catalyst to support their affirmation as equal citizens of the State entitled to a voice. As powerfully captured by Sapignoli in the context of Botswana, litigation can have important effects as not only does it put into the open the illegality of the government's action against its own citizens, but it also ‘reinstated the applicants’ ‘‘right to have rights’’, as those who, as citizens, can bring their own government to court and refer to state laws to have their rights recognized’.Footnote ⁹⁰ This analysis is equally applicable to Kenya, and also more generally for all indigenous communities who have engaged in litigation. It seems that, in addition to its direct outcomes through the court decision, litigation supports community building through the process of developing legal strategies to gain recognition of their rights. The process itself contributes to the empowerment of the communities and thus the reclamation of their rights whilst enhancing their visibility and entitlement as citizens. From this perspective, engaging in litigation can be seen as an important element within a more general strategy aimed at visibility and political empowerment even if the decisions themselves may lack implementation.