INTRODUCTION
Marginalized peoples in Africa have in recent decades increasingly adopted indigenous rights as a means to address their marginalization in their states. Indigenous rights evolved from the colonial and post-colonial experiences of indigenous people in the Americas and Australasia. The current distinguishing characteristics of indigenous peoples in international law focus on historical continuity with people who were on the territory of the state when the colonizers arrived. However, the law fails to clarify many situations, especially in Africa, where almost all peoples can claim this historical continuity.
The African Commission on Human and Peoples’ Rights (African Commission) established a working group to investigate claims to indigenous rights on the continent. The working group recognized the need for an indigenous concept in Africa, but considered that using historical continuity as a distinguishing characteristic would be problematic in Africa. It therefore formulated its own description of indigenousness for Africa. The African Commission applied this description in Centre for Minority Rights Development and Minority Rights Group International on Behalf of Endorois Welfare Council v Kenya (Endorois).Footnote 1 This article highlights the conceptual and legal challenges that have been encountered in introducing and implementing indigenous rights in Africa. It argues that, although the conceptual challenges that flow from the foreign origin of the indigenous concept have not been fully overcome, the African Commission's description is a major step towards locating Africa within the global indigenous rights framework. The article also argues that the legal and conceptual challenges of implementing indigenous rights in African states can be overcome.
THE EVOLUTION OF THE INDIGENOUS RIGHTS CONCEPT
The origin of the indigenous concept has been traced to the European colonization of the Americas or New World (as it was then called).Footnote 2 This colonization, ushered in by the Spanish incursion into the Americas in the 16th century, inspired debate among European scholars as to the legitimacy of the Spanish power to govern the Indians and control their lands.Footnote 3 These debates were focused on “the nature, legitimacy and justifications of rights” that the Europeans could claim over the Indians and their lands.Footnote 4 The European colonisers developed international law principles to provide legal and moral justification for their forceful takeover of the lands of the American Indians.Footnote 5
The application of international law to the colonization of the American Indians resulted in their progressive loss of status. At the initial stages of colonization, the European colonisers entered into treaties with the American Indians, suggesting recognition of the sovereignty of the people.Footnote 6 However, over time, the European colonisers abandoned these treaties, on the basis of the argument that these peoples did not legally exist in international law.Footnote 7 This reasoning occurred at a time when European colonization had expanded to regions like Australasia and inspired arguments that aboriginal and Indian lands were terra nullius.Footnote 8
The ultimate outcome of European colonization of American Indian and other aboriginal lands was the introduction of European religion, commerce and civilization,Footnote 9 ultimately resulting in the establishment of modern societies fashioned after European culture in these lands. In many of these societies there was a system of dual and sometimes multiple cultures because some or all of the natives adhered to their own culture and religion.
At the decolonization of these territories, the colonial boundaries were maintained in conformity with the uti possidetis principle.Footnote 10 At the time of decolonization, the political rule of the European colonies in the Americas was handed to Creole or local elites of European extraction in the South American statesFootnote 11 and the European settlers took over political control in the North American states. This Creole and European leadership adopted the position that the colonial boundaries had to be preserved.Footnote 12 Similarly, decolonization in Australia occurred without reference to the aboriginal people. Therefore, the Indians and aboriginal peoples who had been sovereign peoples in pre-colonial times became marginalized peoples with diminished status at the time of European colonization. At decolonization they remained marginalized peoples with diminished status under Creole or European settler governments.
In 1921, the International Labour Organization (ILO) commenced studies on indigenous workers in independent countries.Footnote 13 The studies that focused on the American Indians and aboriginal peoples ultimately led to the adoption of the ILO Convention 107 on 26 June 1957 (ILO 107).Footnote 14 ILO 107 entered into force on 2 June 1959.Footnote 15 This convention, which designated both the American Indians and the aboriginal peoples of Australasia as indigenous peoples, was the only international instrument that provided for the rights of indigenous peoples until the late 1980s. However, at the time ILO 107 was adopted, indigenous peoples were generally categorized as “backward” and “temporary societies”.Footnote 16 Their survival was considered to be dependent on their assimilation into their national societies.Footnote 17 ILO 107 gave governments responsibility for evolving protective and integrative measures for indigenous populations.Footnote 18 The 1960s witnessed a more effective agitation for the recognition of indigenous rights in the international arena, because indigenous peoples entered the debate with a new generation of men and women educated in the ways of the European colonizing states that had encroached upon them.Footnote 19 Through the means of non-governmental organizations (NGOs), these activists were better able to advocate for respect for their rights as distinct indigenous societies.
In this period, the United Nations (UN) took an interest in the concerns of indigenous peoples and commissioned a study on indigenous peoples in the 1970s.Footnote 20 As part of its mandate of organizing NGO conferences on racism and racial discrimination, the UN Sub-Committee on Racism, Racial Discrimination, Apartheid and Decolonization also organized an international NGO conference on discrimination against indigenous populations in the Americas in 1977.Footnote 21 Following this conference, indigenous peoples started to appear before UN human right bodies in large numbers.Footnote 22 In 1981, another international indigenous NGO conference was held in Geneva, with a focus on indigenous peoples and their land.Footnote 23 This conference established the indigenous agenda firmly in the UN.Footnote 24 The UN Economic and Social Council (ECOSOC) followed this conference by establishing a UN Working Group on Indigenous Populations (UNWGIP) in 1982.Footnote 25 This soon became the largest UN forum dealing with indigenous rights and attracted people from Asia and Africa, which had not previously been part of the indigenous rights movement.Footnote 26
Around this time, ILO 107 came under severe criticism from indigenous peoples’ NGOs regarding its assimilationist approach.Footnote 27 The ILO Convention 169 (ILO 169) was therefore adopted in 1989. ILO 169 is said to represent “a major paradigm shift” on indigenous rights because “it adopts an attitude of respect for the identity and culture of indigenous peoples”.Footnote 28
UNWGIP commenced drafting the UN Declaration on the Rights of Indigenous Peoples (UNDRIP) in the late 1980s and finished the first draft in 1993.Footnote 29 After protracted debates, the draft declaration was adopted by the new UN Human Rights Council on 29 June 2006 and subsequently passed in September 2007.Footnote 30 Before the adoption of UNDRIP, the position of indigenous peoples in the UN was sealed by the establishment of a Permanent Forum on Indigenous Peoples in the UN in 2000Footnote 31 and the appointment of a UN Special Rapporteur on the situation of the human rights of indigenous people in 2001.Footnote 32
AFRICA AND THE INDIGENOUS CONCEPT
In 1989, Moringe Parkipuny, a member of the Tanzanian Maasai people, became the first African to address a UNWGIP session in Geneva.Footnote 33 Before he attended UNWGIP, Parkipuny founded the first Maasai NGO, framing the Maasai land struggles in eastern Africa within the context of the indigenous rights framework. Parkipuny's address to UNWGIP was a pioneering attempt to link the experience of the marginalization of peoples in Africa with that of the established indigenous peoples in the Americas and Australasia. Parkipuny asserted inter alia that, in post-colonial Africa, the uniform approach adopted by states and states’ monopoly of national identity opened the door for prejudice against and violations of the rights of peoples with cultures and identities that were distinctly different from those of the mainstream national population.Footnote 34 This was a call to protect peoples with distinct cultures from nationalization policies in their states threatening those cultures with extinction. He identified the hunter gatherers and pastoralists as two categories of eastern African peoples that possessed distinct cultures.Footnote 35 He warned that prejudices against these peoples have “crystallised into blatant cultural intolerance, domination and the violation of the fundamental rights of these peoples”.Footnote 36 In essence, Parkipuny's speech was a proposal for the application of the indigenous concept to Africa on the basis of the need to protect culturally distinct hunter gathering and pastoralist peoples from marginalization by agrarian peoples.
Parkipuny's lead was however followed by a people who were neither hunter gatherers nor pastoralists. In 1992, Ken Saro Wiwa, representing the Ogoni (an agrarian people in Nigeria), attended UNWGIP in Geneva and addressed them on the marginalization of the Ogoni by the Nigerian government.Footnote 37 His speech, in contrast to that of Parkipuny, was not premised on the protection of culturally distinct peoples, but on the fact that the destruction of the Ogoni lands deprived them of their collective rights to lands as a people. He asserted that, “[i]ncidental to and indeed compounding this ecological devastation is the political marginalization and complete oppression of the Ogoni and especially the denial of their rights, including land rights”.Footnote 38 Wiwa's speech presented the notorious Ogoni environmental struggles within the indigenous rights context. One year after this address, in a subsequent speech in another forum, Wiwa expressed his belief that:
“Contrary to the belief that there are no indigenous people in black Africa, our research has shown that the fate of such groups as … Ogoni in Nigeria [is], in essence, no different from those of the aborigines of Australia, the Maori of New Zealand and the Indians of North and South America. Their common history is of the usurpation of their land and resources, the destruction of their culture and the eventual domination of the people.”Footnote 39
This statement argues for the application of indigenous rights to the Ogoni on the basis of the similarity of their experiences in their post-colonial state with those of the indigenous peoples of the Americas and Australasia.
Despite the contradictory positions in Parkipuny's and Wiwa's speeches, they inspired the international indigenous movement to take a closer look at the application of the indigenous concept in Africa. In 1993, the International Work Group on Indigenous Affairs (IWGIA)Footnote 40 dedicated one of its sessions to the specific “question of indigenous peoples in Africa”.Footnote 41 This conference was held in Denmark and attended by the representatives of several African peoples.
IWGIA subsequently co-sponsored the first indigenous conference on the African continent. This took place in Arusha, Tanzania in 1999 with participants from eastern, western and central Africa.Footnote 42 This conference culminated in the adoption of the Arusha resolutions urging African governments to provide special legal protection for indigenous peoples in Africa.Footnote 43 The UN Office of the High Commissioner for Human Rights also convened two other conferences involving “various indigenous peoples and minority groups”.Footnote 44
DESCRIPTIONS OF INDIGENOUS PEOPLES
Attempts at describing indigenous people have proved problematic because of the challenge of finding a description that fits universally.
The International Labour Organization Convention 107
Article 1(1) of ILO 107 provides that the convention applies to:
“(a) members of tribal or semi-tribal populations in independent countries whose social and economic conditions are at a less advanced stage than the stage reached by the other sections of the national community, and whose status is regulated wholly or partially by their own customs or traditions or by special laws or regulations; (b) members of tribal or semi-tribal populations in independent countries which are regarded as indigenous on account of their descent from the populations which inhabited the country, or a geographical region to which the country belongs, at the time of conquest or colonisation and which, irrespective of their legal status, live more in conformity with the social, economic and cultural institutions of that time than with the institutions of the nation to which they belong.”
This description essentially creates two distinct categories by distinguishing between tribal (or semi-tribal) peoples who are indigenous and tribal (or semi-tribal) peoples who are not indigenous. Tribal people who are indigenous include the indigenous peoples of the Americas and Australasia who are descendants of pre-colonial inhabitants of their states and for whom colonization resulted in migration and the establishment of hegemonic domination by the colonizers.Footnote 45 Tribal people who are not indigenous includes those in “African and Asian states where, generally speaking, colonization did not result in European settlement and the struggles of the more advanced elements of the local population produced independence”.Footnote 46
UN Rapporteur Daes insists that ILO 107's distinction between tribal indigenous people and tribal non-indigenous people is insignificant, because “[s]pecial rights attach equally to both groups. No advantage is gained by virtue of being ‘indigenous’ in the sense of having been a victim, historically of ‘conquest and colonization’, but this distinction is of no practical consequence, since the convention guarantees both categories of people exactly the same rights”.Footnote 47 According to Daes, “the source of rights is not … a peoples’ history of being conquered, colonized or oppressed, but its history of being distinct as a society or nation”.Footnote 48 In other words, the fundamental factor for identifying the beneficiaries of the rights protected by ILO 107 is the issue of the marginalization of distinct vulnerable groups. This implies that the beneficiaries of the rights in ILO 107 could exist in states in which colonization did not result in settlement. International institutions adopt this philosophy and treat the terms “indigenous” and “tribal” as synonyms in the practical implementation of indigenous rights.Footnote 49
In 1972, the UN joined the international discourse on indigenous rights by commissioning a study on indigenous people to be undertaken by UN Rapporteur Martínez Cobo.Footnote 50
Cobo's description of indigenous people
UN Rapporteur Martínez Cobo's study provided the most commonly utilized description of indigenous peoples.Footnote 51 He described indigenous people thus:
“Indigenous communities, peoples and nations are those which, having a historical continuity with pre-invasion and pre-colonial societies that developed on their territories, consider themselves distinct from other sectors of the societies now prevailing in those territories or parts of them. They form at present non-dominant sectors of society and are determined to preserve, develop and transmit to future generations their ancestral territories and their ethnic identity as the basis of their continued existence as peoples in accordance with their own cultural patterns, social institutions and legal systems.”Footnote 52
Cobo's description suggests various elements in the identification of indigenous peoples.
Historical continuity with pre-invasion and pre-colonial societies
This element describes indigenous peoples as those having historic continuity with people who occupied the territory of the state before the colonialists arrived. Cobo suggests that this historic continuity may consist of one or more of the following factors: “occupation of ancestral lands, common ancestry with the original occupants of the lands, distinctive cultural forms, language, and residence in certain regions and other relevant factors”.Footnote 53 The factor of common ancestry with the original occupants of the lands has been the most emphasized by scholars and has been christened the “aboriginal” or “aboriginality” characteristic of the indigenous concept.Footnote 54 This factor of common ancestry with the original occupants of the land goes to the root of the indigenous concept, because the etymological meaning of the word “indigenous” is “originating in the region where found native”.Footnote 55 The descendants of the pre-colonial inhabitants are indigenous in comparison to the colonial settlers. Indigenous peoples are therefore also called “first nations” or “first peoples”.Footnote 56
This historical continuity element is applicable in the Americas and Australasia where the American Indians and aborigines are traceable to those who lived on the land before the European colonizers arrived. In Africa, this historical continuity element is problematic because most peoples in Africa can establish historical continuity with pre-colonial occupants of the continent.Footnote 57 The opposition to the concept in Africa is grounded on the belief that most Africans are indigenous.Footnote 58 UN Rapporteur Daes notes that the conceptual objection to the inclusion of Africans in the indigenous concept rests on the grounds that the UN definition of the concept “which implies a distinction between persons originating in a state as opposed to settlers is inapplicable to most African states ruled by natives”.Footnote 59 This element inspires the conclusion that the concept does not apply in regions that did not experience settlement by European colonizers.
They are culturally distinct from other sectors of society
This element suggests that, in indigenous peoples’ states, there is a dichotomy between a central, usually European, culture adopted by the majority of the citizens of the state and a traditional culture (considered backward and inferior to the central culture by the majority of the citizens of the state) adhered to by indigenous peoples. The central culture is traceable to colonization and the traditional culture is traceable to the pre-colonial lifestyle of the indigenous peoples. Indigenous people consider themselves alien to the central culture. In African societies, there is no central culture in the sense suggested by Cobo. The dominant groups are African peoples who, as a result of being placed in an advantaged position by the circumstances of colonization, have collectively advanced their political and economic dominance in the state. Thornberry observed that the African experience of marginalization suggests human rights problems among indigenous peoples.Footnote 60
They form non-dominant sectors of society
This element suggests that societies with indigenous peoples are bifurcated in terms of their citizenry into the dominant non-indigenous citizen and the non-dominant indigenous citizen. Cobo did not specify the sense in which they are non-dominant. Indigenous peoples all over the world suffer severe economic and political marginalization that is manifested in the seizing of their lands, distortion of their culture and the ascription of inferior status to them by the government of their states. African groups have emphasized their domination by dominant groups in their states as the basis for their claims to indigenous rights.
Their ancestral territory and cultural identity are the basis of their existence as a people
This element implies a connection between the culture, religion and economic survival of the indigenous people and their land or territory, such that removing them from their land would threaten their very survival. This element has also proved controversial in Africa. A percentage of the populations of almost all peoples in Africa are dependent on their land for survival.
ILO Convention 169
ILO 169 was adopted in 1989. The drafters of ILO 169 applied the ILO 107 approach of using two distinct categories. ILO 169 provides in article 1(1) that the convention applies to:
“(a) tribal peoples in independent countries whose social, cultural and economic conditions distinguish them from other sections of the national community, and whose status is regulated wholly or partially by their own customs or traditions or by special laws or regulations; (b) peoples in independent countries who are regarded as indigenous on account of their descent from the populations which inhabited the country, or a geographical region to which the country belongs, at the time of conquest or colonisation or the establishment of present state boundaries and who, irrespective of their legal status, retain some or all of their own social, economic, cultural and political institutions.”
ILO 169's distinction between “indigenous” and “tribal” has been explained:
“The term ‘indigenous’, refers to those who, … occupied a particular area before other populations or groups arrived. This is a description which is valid in the North and South America [sic] and in some parts of the Pacific. In most parts of the world however, there is very little distinction between the time at which tribal and other traditional peoples arrived in the region and the time at which other populations arrived. In Africa, for instance, there is no evidence to indicate that the Maasai, the pygmies or the San (Bushmen) … arrived in the region they now inhabit long before other African Populations … The ILO therefore decided … that it should refer to indigenous and tribal peoples. The intention was to cover a social situation, rather than to establish a priority based on whose ancestors had arrived in a particular area first.”Footnote 61
This statement implies that the term “tribal” was introduced to extend the concept to peoples in Africa who are not distinguished by historical continuity from pre-colonial inhabitants.Footnote 62 The statement also implies that, as was the case with ILO 107, the crux of the indigenous concept is the social situation of having a distinct culture that is marginalized. The distinction between the terms indigenous and tribal is again qualified by the fact that both categories have the same rightsFootnote 63 and the fact that international institutions treat both categories as synonyms.
Article 1(2) of ILO 169 introduced a crucial element: “self-identification as indigenous or tribal shall be a fundamental criterion for determining the group to which this convention shall apply”.
The UN declarations on the rights of indigenous peoples
At the debates preceding the passing of UNDRIP at UNWGIP, state governments insisted on a precise definition, because “overly broad and subjective criteria for determining who is indigenous would lead to an exponential rise in the number of groups making claims for indigenous rights”.Footnote 64 Indigenous peoples argued on the other hand that the question of definition should be left to the world indigenous organizationsFootnote 65 as “a strict definition would limit flexibility in the application of relevant instruments to indigenous circumstances”.Footnote 66 The ILO joined the debate by proposing that UNDRIP should adopt the terms “indigenous” and “tribal” to cater for Asian states such as India and Bangladesh where domestic law applies the term “tribe” to describe groups claiming indigenous identity and where the government rejects the idea that tribes are indigenous peoples.Footnote 67 UNWGIP decided that a global definition of indigenous peoples was not indispensable, as the adoption of UNDRIP was not conditioned on the articulation of a definition of indigenous peoples.Footnote 68 This was premised on the desire to provide a declaration on indigenous rights that was of universal application on the basis of the UNWGIP chairperson's argument that any attempt to define indigenous peoples in UNDRIP would “result in a definition which lacked scientific and logical credibility which would in turn, undermine its credibility and usefulness”.Footnote 69 UNDRIP was passed without any definition of the indigenous concept.
THE INDIGENOUS CONCEPT FOR AFRICA
The indigenous rights concept is particularly appealing to some marginalized peoples in Africa, because it adopts a holistic approach to the peoples’ problems. Indigenous rights protect indigenous peoples’ collective rights to a healthy environment,Footnote 70 and to own and control their lands and resources;Footnote 71 at the same time the concept also guarantees their right to self-determination and autonomy.Footnote 72 In the past, the problems faced by marginalized peoples in Africa have been over simplified as relating merely to environmental conservation or relocation from ancestral lands. In reality, the problems exceed this narrow conceptualization and embrace wider issues in the political realities of these peoples in their states. The Maasai land dispute in eastern Africa, for instance, transcends the mere relocation of the Maasai from their lands in the national interest by the colonial and post-colonial governments of Kenya and Tanzania. It embraces historical factors including the colonial re-positioning of peoples in the region, which overturned the pre-colonial political arrangement of Africa. This resulted in the pastoralist Maasai losing their dominant pre-colonial position in the post-colonial states and now being vulnerable in the endemic competition for ethnic supremacy that characterizes African states.Footnote 73 Similarly, the Ogoni crisis transcends mere environmental rights or even human rights concerns. Watt aptly described the Ogoni crisis as representing “an almost archetypical modernist struggle over rights, and especially over state accountability and local representation”.Footnote 74 In other words, the Ogoni crisis involves political issues including inequalities in Nigerian fiscal structures, domination of the Ogoni by politically dominant peoples in Nigeria, exclusion of the Ogoni from the benefits of oil extraction in the region, dispossession from land, and the general perception among the Ogoni that they are colonized by the Nigerian state. Indigenous rights are therefore perceived by African peoples who have lost faith in their national judicial systems as providing an alternative means to protect their rights as a people, through international and regional organizations.
In Africa, colonization did not lead to foreign settlement.Footnote 75 The term “indigenous” was thus globally applied to all Africans. In colonial Africa, the term was used in treaties to describe all African people of the territories, in contrast to the colonizers.Footnote 76 In the era of decolonization, the term was used to describe the non- European majorities of European colonies in Africa.Footnote 77 The implication is that the decolonization of African states was viewed as the transfer of sovereignty from the European colonizers to the indigenous populations.Footnote 78 African state governments therefore perceive claims by some African peoples to their indigenous identity as a threat to national unity.Footnote 79
The African Commission was initially reluctant to apply the term “indigenous” to any people in Africa, on the basis that most Africans are indigenous.Footnote 80 However, the issue of indigenous peoples was incorporated as an independent agenda item at the African Commission's 28th ordinary session.Footnote 81 The Resolution on the Rights of Indigenous Populations / Communities, which provided for the establishment of the African Commission's Working Group of Experts on Indigenous Populations / Communities (ACWG) was adopted at the same session. ACWG's mandate was to examine the concept of indigenous peoples in Africa and study the implications for their rights of the African Charter on Human and Peoples’ Rights, with particular regard to making recommendations for their protection.Footnote 82 ACWG's report could be divided into background analysis of the indigenous concept in Africa and distinguishing characteristics of indigenousness in Africa.
Background analysis
The ACWG report noted that there are “African peoples who are facing particular human rights violations, and who are applying the term ‘indigenous’ in their efforts to address their situation”.Footnote 83 ACWG justified its adoption of the term “indigenous” by noting that: “[t]hey are not accommodated by dominant development paradigms and in many cases they are even being victimized by mainstream development policies and thinking”.Footnote 84 ACWG emphasizes that their marginalization related to their deprivation of their lands. It noted that these peoples are “dispossessed of their land and natural resources, which leads to impoverishment and threatens their cultures and survival as peoples”.Footnote 85 ACWG described the indigenous peoples in Africa as falling under the category of hunter gatherers, pastoralists and farmers.
Hunter gatherers
ACWG's report describes the following peoples as falling into the category of hunter gatherers: the Pygmies of the Great Lake Region,Footnote 86 the San of South Africa, the Hadzabe of Tanzania and the Ogiek of Kenya.Footnote 87 The indigenous concept was intended to apply to peoples in the category of what anthropologist Schmidt describes as Urkultur, meaning of primeval or primitive culture.Footnote 88 Accordingly, anthropologists have traditionally categorized African hunter gatherer peoples such as the San and the Pygmies, along with the Australian aborigines and American Indians, as coming within the definition of indigenous peoples.Footnote 89 These African hunter gathering peoples fit Cobo's “culturally distinct” element because there are perceivable cultural differences between the hunter gatherers and other African peoples, not just in terms of the hunter gathering mode of production but also in terms of lifestyle, marriage, religious rites etc. However, challenges remain for the African hunter gathering groups. The African hunter gatherer cultural distinction fades in multi-cultural African states where all peoples have unique cultures. While the culture of the San of South Africa is distinct from that of Europe, the San live in South Africa with other African peoples such as the Zulu and Xhosa whose cultures are equally distinct from European culture. African scholars attempt to overcome this limitation by arguing that hunter gatherers, like the pastoralists, are distinct by virtue of their mode of production in a continent dominated by agrarian peoples.Footnote 90 The weakness of this argument is that it provides no solution for situations in which agrarian peoples are marginalized.
Pastoralists
ACWG's report identifies the following groups as pastoralists: the Pokot, the Barabaig, the Karamojong and the Maasai of eastern Africa; the Samburu, Turkana, Rendille, Orma and Borana of Kenya and Ethiopia; the isolated pastoralist communities in Sudan, Somalia and Ethiopia; and the Tuareg, Fulani and Mbororo of western and central Africa.Footnote 91 The Maasai stand out in this category. Colonial administrators used stereotypes of Maasai as culturally distinct or inferior, backward and primitive, to justify activities such as the formation of the Maasai Reserve in 1922.Footnote 92 At independence, African leaders advanced these policies by promoting the Maasai as “icons of primitive Africa in order to promote the lucrative tourist industry”.Footnote 93 However, as demonstrated above, this category raises similar problems in terms of cultural distinctiveness in that these peoples are culturally distinct among other culturally distinct peoples.
Farmers
ACWG describes the following groups as falling into this category: the Mbororo of western and central Africa, the Ogoni of Nigeria and the Berbers of northern Africa.Footnote 94
Distinguishing characteristics of indigenousness in Africa
ACWG began by noting that “clear-cut definitions” of the indigenous concept are “unworkable”.Footnote 95 ACWG expressed a preference for outlining the major characteristics of indigenousness in Africa.Footnote 96 While acknowledging that all Africans were indigenous to Africa in the strict sense of the word,Footnote 97 ACWG emphasized that it was not using the term “indigenous” in its aboriginal sense but was applying it in the modern analytical form of the concept to describe the situation of tribes that suffer discrimination.Footnote 98 ACWG proceeded to explain that the term indigenous has:
“come to have connotations and meanings that are much wider than the question of ‘who came first’. It is today a term and a global movement fighting for rights and justice for those particular groups who have been left on the margins of development and who are perceived negatively by dominating mainstream development paradigms, whose cultures and ways of life are subject to discrimination and contempt and whose very existence is under threat of extinction.”Footnote 99
ACWG's description excludes Cobo's “historical continuity element” that emphasizes being a descendant of pre-colonial inhabitants on the land in favour of the element of marginalization. ACWG's approach has been criticized. Bojosi argues that the assertion that the indigenous concept has connotations wider than the question of who came first is inaccurate, as leading commentators still see the term as bound to prior habitation, conquest and colonization.Footnote 100 He argues that the ILO 169's distinction between the terms “indigenous” and “tribal” is proof that the term “indigenous” is inexorably tied to “aboriginality”.Footnote 101 The ACWG report acknowledged that ILO 169 applied the term “tribal” for Africa,Footnote 102 but offered no explanation for its preference for the term “indigenous”. Perhaps ACWG had concerns that the application of the term “tribal” to African peoples may exclude them from indigenous instruments (such as UNDRIP) that are not specifically described as protecting both “indigenous” and “tribal” peoples.
ACWG's description was not the first to de-emphasize Cobo's “historical continuity element”. ACWG's description drew support from UN Rapporteur Daes's summary of indigenous descriptors proposed by experts. She listed the following criteria: “[p]riority in time in the occupation and use of a specific territory; voluntary perpetuation of cultural distinctiveness; self-identification and recognition by other groups as distinct; and an experience of subjugation, marginalization and discrimination”.Footnote 103
Daes's criteria adopted the more flexible expression “priority in time” in place of Cobo's “historic continuity element”. This implies that, while indigenous peoples are not necessarily descendants of the original inhabitants in their territory, they have legitimate claims to that territory.
Similarly, the Inter-American Court of Human Rights (IACtHR) applied this approach when considering the case of the Maroon people, who were descended from African slaves forcefully taken to Suriname in the colonial era in the 17th century (and were thus not descendants of the pre-colonial inhabitants of Suriname). The court held that they qualified for indigenous rights because they were a tribal people who had a special relationship with their ancestral lands, practised communal ownership of their land and identified themselves as a distinct people.Footnote 104
The World Bank also excluded “historical continuity” in its description of indigenous peoples in its operational directive 4.20, which described indigenous peoples as possessing a varying degree of the following characteristics: “a close attachment to ancestral territories and to the natural resources in these areas; self-identification and identification by others as members of a distinct cultural group; an indigenous language, often different from the national language; presence of customary social and political institutions; and primarily subsistence-oriented production”.Footnote 105
ACWG explained the reason for this approach as follows: “[i]f the concept of indigenous is exclusively linked with a colonial situation, it leaves us without a suitable concept for analysing internal structural relationships of inequality that have persisted after liberation from colonial dominance”.Footnote 106 ACWG's approach was motivated by the need for a concept that addresses the domination of vulnerable peoples in independent African states. The African Commission prioritized the protection of vulnerable peoples in Africa because of notorious cases of ethnic based human rights abuses on the African continent in the 1990s, such as the Tutsi genocide in Rwanda.Footnote 107
The African Commission's approach to describing indigenousness is justified by Cobo's acknowledgement that the study that produced his definition did not include Africa.Footnote 108 Cobo recommended that certain population groups in Africa should be considered as indigenousFootnote 109 and that “a corresponding study might be undertaken to cover African countries, perhaps with a slightly modified working definition”.Footnote 110 Furthermore, Cobo did not intend his definition to be the sole basis for identifying indigenousness. He described his definition as “tentative,” “preliminary” and “provisional”.Footnote 111
A good description of indigenousness in Africa must have specific elements that distinguish indigenous peoples from non-indigenous peoples. ACWG listed the descriptive elements of African indigenous peoples as follows:
“Their culture and way of life differ considerably from the dominant society and their cultures are under threat, in some cases to the extent [sic] extinction.”Footnote 112 The weakness of this element is that, as noted above, there is no dominant culture in African societies. Therefore, this element does not distinguish between indigenous and non-indigenous peoples in Africa.
“The survival of their particular way of life depends on access to their traditional land and natural resources.”Footnote 113 This element expresses the fact that indigenous peoples in Africa perpetuate their traditional subsistence mode of production, such as pastoralism or farming, and depend on their land for their economic, cultural and spiritual survival. In post-colonial Africa, many Africans have embraced modern careers and do not practise traditional life-styles. A large percentage of the populations of most African peoples still practise an historically traditional life-style that is dependent on their land. However, African indigenous peoples’ dependence on their lands is highlighted by their marginalization, which deprives them of their lands.
“They suffer from discrimination as they are being regarded as less developed and less advanced than other more dominant sectors of society.”Footnote 114 This relates to the fact that these peoples are often stereotyped as “primitive” or “un-progressive”. African peoples such as the Maasai, San and Pygmies are often discriminated against on the basis of societal stereotypes that label them as backward and inferior.Footnote 115
“They often live in inaccessible regions, often geographically isolated”.Footnote 116 Although this is true of some African peoples identifying as indigenous (such as the Maasai), many non-indigenous identifying peoples also live in inaccessible areas.
“They are subject to domination and exploitation within national political and economic structures that are commonly designed to reflect the interests and activities of the national majority”.Footnote 117 This is a distinguishing element because, even though there are many marginalized peoples in Africa, ACWG's choice of the terms “domination” and “exploitation” implies that the marginalization of these peoples primarily manifests in their dispossession from their lands and resources. This element describes the fact that lands on which these peoples have depended for their survival for centuries were taken by their states for natural resource exploitation and tourism.
“They identify themselves as distinct from other groups in the state.”Footnote 118 This subjective element is also a distinguishing factor for indigenous peoples by virtue of the fact that they proclaim themselves to be distinct groups within their various states.
This analysis demonstrates that the obstacles to finding a description of indigenousness that meets Africa's needs has not been fully overcome. However, the description of indigenousness provided by ACWG has taken Africa a step closer to inclusion in the global indigenous concept by proffering the following criteria for distinguishing indigenous groups in Africa: “[t]heir way of life depends on their land and natural resources for survival”;Footnote 119 “[t]hey experience domination and exploitation (manifested in their dispossession from their lands) within the political and economic structures of their states”;Footnote 120 and “[t]hey identify themselves as distinct from other groups in their state”.Footnote 121
These distinguishing features imply that the indigenous concept is potentially applicable in states such as Kenya where the indigenous concept is resisted (on the grounds of the inapplicability of the historical continuity element)Footnote 122 but in which there are marginalized groups.
THE AFRICAN COMMISSION'S APPLICATION OF INDIGENOUS RIGHTS
The opportunity for the African Commission to implement indigenous rights came in 2009, when it was called in the Endorois caseFootnote 123 to resolve the claims of the Endorois people of Kenya to, inter alia, the collective rights of property and to dispose of their wealth freely. The facts of this case are that the Endorois, a pastoralist society living in Kenya's Rift Valley, were expelled from their lands by the Kenyan government in 1973 to make way for a games reserve.Footnote 124 In 2002 the government granted concessions for ruby mining on the land.Footnote 125 For the community, their eviction meant the loss of access to grazing lands as well as significant cultural and religious sites.Footnote 126 After exhausting all possible remedies at the national level, the community turned to the African Commission.Footnote 127
The Endorois argued before the African Commission that they were a distinct people who qualified for protection of their indigenous rights on the basis of their cultural and religious dependence on their land for survival, their marginalization in terms of their dispossession from their lands and their self-identification as a people.Footnote 128 This argument by the Endorois was a call for the recognition of their indigenousness on the basis of the three distinguishing elements of indigenousness in Africa identified by ACWG: their way of life depends on their land and natural resources for survival; they experience domination and exploitation (manifested in their dispossession from their lands) within their state; and they identify themselves as distinct from other groups in their state.Footnote 129
The Kenyan government argued that the Endorois were not a distinct people fitting the indigenous description because they were one of four sub-groups of the Kelenjin people, sharing the same language, names and other features with the other sub-ethnic groups.Footnote 130 However, the African Commission decided that the Endorois were indigenous on the grounds that they met the criteria provided in the ACWG report because: they were dispossessed of their land by the Kenyan government; they were culturally, religiously and economically dependent on their land as evidenced by the fact that their culture, religious ceremonies and traditional way of life were intimately intertwined with their ancestral land;Footnote 131 and they identified themselves as distinct.Footnote 132
By holding that the Endorois, as a sub-group of the Kelenjin people, were indigenous, the African Commission was setting a precedent that sub-groups of peoples can claim indigenousness independently of the other constituent parts of the group.Footnote 133
The African Commission emphasized that “vital aspects of their religion and culture such as ancestor worship, traditional ceremonies were connected to their land”.Footnote 134 The commission noted further that self-identification was another important criterion for determining indigenous peoples,Footnote 135 but did not specify how the Endorois fulfilled this requirement. Presumably, their affirmation of themselves as distinct sufficed in this case. The African Commission insisted that the application of indigenous rights to people who were not distinguished by aboriginality was not peculiar to Africa. It cited the IACtHR cases of Moiwana Village v Suriname Footnote 136 and Saramaka People v Suriname.Footnote 137 In these cases, the IACtHR applied its jurisprudence regarding indigenous rights to the Maroon people, “based on their special relationships to their ancestral lands, their communal ownership of land and their self-identification as distinct peoples”, thus moving “beyond the narrow / aboriginal / pre-Colombian understanding of indigenous peoples generally adopted in the Americas”.Footnote 138
The implementation of the African Commission's decision in the Endorois case raises various challenges. How can the indigenous and minority concepts be distinguished in Africa? Would the application of the indigenousness concept not result in the balkanization of African states? How can the indigenous claims be reconciled with the fact that many African peoples have embraced modernization? Would the African Commission's decision on indigenous rights be implemented by African states?
Indigenous rights versus minority rights in Africa
Two distinguishing elements of the indigenous and the minority conceptsFootnote 139 can be discerned from the description of indigenous people by ILO 107, ILO 169 and Cobo. The first is the indigenous concept's emphasis on the centrality of land to the indigenous identity. The attachment to a specific territory is the first defining factor of indigenousness.Footnote 140 Indigenous people perceive their relationship with their land as central to their identity, culture and survival.Footnote 141 Even though “minority groups may increasingly make claims to autonomy based on the existence of discrete concentrations of their populations in particular regions of States”,Footnote 142 minorities do not have “the long ancestral, traditional and spiritual attachment and connections to their lands and territories that are usually associated with self-identification as indigenous peoples”.Footnote 143 The second is the historical continuity element.
In Africa, most peoples have long ancestral attachment to their lands and the African Commission rejects the historic continuity element. The African Commission noted in the Endorois case that being the first inhabitants or occupiers of a territory did not automatically convey a right to indigenousness.Footnote 144 This implies that it is difficult to distinguish the indigenous and minority concepts in Africa. UN Rapporteur Daes expresses this dilemma in her observation that aboriginality appears to be the obvious characteristic distinguishing indigenous peoples from minorities; however this characteristic excludes indigenous peoples from Africa.Footnote 145 She explained further that attempts to replace the aboriginal characteristic with cultural distinctiveness and subordination in Africa have failed to distinguish the indigenous concept from the minority concept.Footnote 146 UN Rapporteur Martínez therefore argues that claims for indigenousness in African states should be analysed in UN fora concerned with minority rights.Footnote 147
Several factors make the minority concept unattractive to marginalized peoples in Africa. The first is the existence for many decades of dominant minority groups in African states including Angola, Mozambique, Namibia, Zimbabwe and South Africa.Footnote 148 Secondly, the task of identifying minorities in African states with many diverse peoples of diverse populations is very complex. For instance, in Kenya, the minority peoples are listed as Aweer, Abasuba, Kuria, Wlilwana, Nubi, Samburu, Taita, Luo, Kamba, Kalenjin, Kisii, Meru, Asians, Europeans, Arabs, Somalis, Ogiek, Maasai and Dahalo.Footnote 149 These peoples are defined as minorities in contrast to the Kikuyu and the Luhya, who constitute 20 per cent and 14 per cent of Kenya's entire population respectively.Footnote 150 The Kalenjin are included in the list of minorities despite the fact that they constitute 13 per cent of Kenya's population.Footnote 151 Similarly, the Luo and the Kamba are included as minorities even though they each constitute 10 per cent of Kenya's population.Footnote 152 The politically and economically dominant position of the Kikuyi and the Luhya would probably have influenced this categorization.
Although African peoples who have embraced the indigenous identity do not insist on their differences from minorities,Footnote 153 the importance of distinguishing the two concepts lies primarily in determining the rights each category can claim. The African Commission's jurisprudence on indigenous rights is in its nascent stages and African indigenous rights are an emerging framework. This article proposes that indigenous rights be distinguished as follows. First, indigenous peoples are peoples who meet the three distinguishing elements set by the African Commission, that their way of life depends on their land and natural resources for survival, etc.Footnote 154 Secondly, the marginalization of these peoples over time must have defied the solution proffered by the judicial systems of their states and they must have claimed the protection of indigenous rights in the African Commission. In other words, these peoples must (like the Endorois) have exhausted the local remedies in their states and tested their qualification for indigenous rights with the African Commission.
African indigenous claims and the balkanization of African states
Rapporteur Martínez expressed concern that indigenous “claims by groups living within African states with artificially drawn state boundaries provide an additional ground for balkanisation of these states”.Footnote 155 In other words, the indigenous concept may inspire claims to “statehood” by dissatisfied peoples in Africa. This argument arises because ACWG's report included pastoralists and farmers in the indigenous categorization. Their inclusion in the indigenous categorization is perceived as problematic because pastoralists and farmers constitute the bulk of Africa's population.Footnote 156 Recognition of these categories is perceived as capable of “opening a Pandora's Box of indigenous claims in African states struggling to unify the diverse peoples within their boundaries”.Footnote 157 This concern is unfounded because the African Commission's description of indigenousness is akin to the constructivist approach to describing indigenousness proposed by Kingsbury. He proposed that the global indigenous concept is not fixed on sharply defined universal criteria. Instead it should embody a continuous process (which this article recommends should be administered by regional judicial bodies such as the African Commission) in which specific claims to indigenousness are abstracted (interpreted and made the basis of regional jurisprudence) and then made specific (in terms of the decision in a particular dispute) for implementation in the state from which the dispute originated.Footnote 158 Where a people in an African state claims indigenousness, the state has an obligation to test the group's claim by the three distinguishing elements set by the African Commission as to who is indigenous, that their way of life depends on their land etc.Footnote 159 If the state refuses to do so, or does so and holds that the group is not indigenous and the group wishes to test this, it is obliged to address the matter to the state's domestic courts. If the group is unsatisfied with the domestic court's decision, the matter can be brought to the African Commission. The African Commission ultimately decides whether or not the people are indigenous to avoid indiscriminate claims to indigenousness.
Indigenous rights claims and the issue of modernization
The inclusion of the Ogoni in the indigenous category has been criticized on the basis that the Ogoni are not culturally distinct, as members of the Ogoni participate in the Nigerian government and have embraced modern careers.Footnote 160 The inclusion of the Maasai in the indigenous category has been similarly criticized in that, in contrast to the hunter gatherers, pastoralist Maasai have been less excluded from national politics.Footnote 161 An argument in this regard was raised in the Endorois case. The government of Kenya argued that “the inclusion of the Endorois in ‘modern society’ has affected their cultural distinctiveness, such that it would be difficult to define them as a distinct group that is very different from the Tugen sub-tribe or indeed the larger Kalenjin tribe”.Footnote 162 The African Commission drew its response on this issue from the decisions in the Saramaka case.Footnote 163 The fact that some members of the Maroon people had opted out of the traditional way of life did not affect the distinctiveness of the group.Footnote 164 The IACtHR noted that: “[t]he fact that some individual members of the Saramaka people may live outside of the traditional Saramaka territory and in a way that may differ from other Saramakas who live within the traditional territory and in accordance with Saramaka customs does not affect the distinctiveness of this tribal group nor its communal use and enjoyment of their property”.Footnote 165
This statement was the basis for the African Commission's conclusion that “the Endorois cannot be denied a right to juridical personality just because there is a lack of individual identification with the traditions and laws of the Endorois by some members of the community”.Footnote 166 This decision accords with the fact that the indigenous concept does not preclude indigenous peoples from participating in the national politics of their states. UNDRIP recognized the rights of indigenous peoples “to participate fully, if they so choose, in the political, economic, social and cultural life of their States”.Footnote 167
The issue of the implementation of the African Commission's decision
There remains the issue of the implementation of the decision in the Endorois case. In the past some African Commission decisions have not been implemented by states.Footnote 168 Before 2010, the African Commission was a quasi-judicial body that only made recommendations, which were not binding decisions for states. In 2010, the African Commission enacted new rules of procedures.Footnote 169 These rules empower the African Commission to give a state that has not responded 180 days after its judgment, 90 days’ notice to report in writing the steps it intends to take regarding the decision.Footnote 170 The rules of procedure provide that, where the 90 days’ notice is given and it is discovered that the state is unwilling or has refused to comply, the African Commission may submit the communication to the African Court of Human Rights (African Court).Footnote 171 The rules also provide that non-complying states be referred to the Sub-Committee of Permanent Representatives and the Executive Council of the African Union.Footnote 172 This rule implies that implementing a decision of the African Commission is no longer at the discretion of states. The government of Kenya pledged shortly after the Endorois decision to implement the decision.Footnote 173 This pledge was often repeated by the government but no significant actions were taken to implement the decision.Footnote 174 Citing its obligation to follow up on its decision under rule 112 of its rules of procedure, in April 2013 the African Commission invited the government of Kenya to its headquarters in The Gambia and requested that the government of Kenya present a road map for implementing the Endorois decision case.Footnote 175 A Kenyan representative attended this meeting and promised to submit the road map within 90 days.Footnote 176 This promise was never fulfilled.Footnote 177 In November 2013, the African Commission issued a resolution calling on the government of Kenya to take concrete steps to implement the decision, with the consequence of a referral of the communication to the African Court in the event of non-compliance.Footnote 178 Kenya still did not comply for ten months and the African Commission did not carry out its procedure of referring the matter to the African Court or African Union. In August 2014, an international NGO, Minority Rights Group, wrote a letter to the African Commission requesting that the African Commission refer Kenya's non-compliance to the African Union as provided in its Rules of Procedure.Footnote 179 The African Commission did not respond to this request. In September 2014, the Kenyan government yielded to pressure by setting up a legislative task force for the implementation of the Endorois decision.Footnote 180 This tentative step towards compliance is yet to yield any practical benefit for the Endorois people.Footnote 181 The African Commission has not applied its procedure of referring Kenya to the African Union or the African Court. Perhaps the African Commission is being cautious in this pioneering attempt to introduce indigenous rights in Africa. Nevertheless, the existence of the rules of procedure implies that indigenous rights in Africa are potentially enforceable.
CONCLUSION
Marginalized peoples in Africa have insisted on their inclusion in the indigenous concept on the basis of the similarity of their experience of domination to that of indigenous peoples in the Americas and Australasia. The global descriptions of the indigenous concept emphasize the quality of historical continuity with the pre-colonial inhabitants of the land as the distinguishing characteristic of indigenousness. This element is unworkable in Africa because most African peoples can demonstrate historical continuity. The African Commission insisted that the indigenous concept is needed in Africa to address the situation of marginalized peoples. The African Commission advocated a description of indigenousness for Africa that excluded historical continuity. The African Commission's approach deviated from the approaches of the indigenous rights specific instruments. ILO 169 adopts both “tribal” and “indigenous” to identify the beneficiaries of indigenous rights. “Indigenous” is applied to states in the Americas and Australasia where the historical continuity of indigenous peoples is not disputed. For African states, where historical continuity is not an exclusive quality of any people, “tribal” is adopted.Footnote 182 The African Commission applied the term “indigenous” instead of “tribal” to Africa. This is inconsequential as both terms convey entitlement to the same rights and are treated as synonyms. The African Commission advocated dependence on land for survival, marginalization in terms of dispossession from land and self-identification as the distinct criteria for African indigenousness. This article concludes that, although the challenges of fitting Africa into the global indigenous framework have not been completely overcome, the African Commission's description has taken Africa a step closer to this goal.
The African Commission applied its description of indigenousness in the Endorois case. The implementation of the decision in this case raised challenges, such as the difficulty of distinguishing the indigenous and minority concepts, the fear that the concept may result in the balkanization of African states and the reluctance of African states to implement indigenous rights. The first two challenges can be overcome by treating indigenous claims on a case by case basis that requires people claiming indigenousness to test their claims in the African Commission after exhausting the remedies in their domestic legal system. States’ reluctance to implement indigenous rights can be addressed by the full application of the African Commission's rules of procedure.
