Authored By: Phindulo Wanga Radzuma
INTRODUCTION
Around 2003, the Working Group on Indigenous Population (WGIP) published a thorough study on indigenous peoples in Africa, which included a list of typical characteristics that may be used for recognising indigenous populations in Africa.[1] WGIP’s initiatives have contributed significantly to the recognition and preservation of indigenous rights in Africa. The meaning and breadth of indigenous peoples’ human rights are typically contested in Africa.[2] While indigenous peoples’ human rights have grown dramatically in recent years across the world, they are still seen as in their development in Africa.[3]In the case of Centre for Minority Rights Development (Kenya) and Minority Rights Group International on behalf of Endorois Welfare Council v Kenya, the Centre for Minority Rights Development (Kenya) and Minority Rights Group International brought a complaint towards the Kenyan government on behalf of the Endorois people. The case cites many violations including the removal of the Endorois, an indigenous people, from their traditional grounds near Lake Bogoria in Kenya.[4] This court case was an important turning point for fighting for the legal rights of indigenous people.
THE AFRICAN UNDERSTANDING OF INDIGENOUSNESS
In the overall context of the African Charter, the Working Group observes that the concept of ‘peoples’ is inextricably linked to collective rights.[5] Collective rights play an important role in promoting the implementation of other human rights, emphasising the interconnection of our common humanity. The African Commission further emphasises that Articles 20 through 4 of the African Charter provide for individuals to preserve their rights as peoples, or collectives.[6] The African Commission’s Working Group of Experts on Indigenous Populations/Communities established four requirements for describing indigenous people.
In reviewing the Endorois case, the African Commission upheld its statement of the freedoms of the Katangese People of the Democratic Republic of Congo, among others, to file petitions under the African Charter.[7] It outlined an array of criteria that a group of people should display in order to be regarded a people, including, among other things, a shared historical tradition, racial or ethnic identification, linguistic homogeneity, religious and intellectual connections, and a geographical link.[8] Prior to this case, none of the organisations had ever been involved in a case that involved indigenousness. In identifying indigenousness, the African Commission embraced the UN system’s tendency of making self-identification the main consideration for determining a group’s indigenous status.[9] The African Commission was keen to distinguish itself from the idea that indigenous people are descended from the inhabitants that lived in the nation during conquest or colonisation. [10] The emphasis should be on newer techniques that focus on self-definition as indigenous and uniquely distinct compared to other groups in a state; on a particular connection to and use of their traditional land, through which the preservation of their ancestral land and territory has an essential significance for their collective survival in both physical and cultural terms as peoples; and on a history of subjugation, marginalisation, displacement, exclusion, or prejudice as these individuals are distinct.[11] Self-definition, distinctive cultural characteristics, historical experiences, and devotion to ancestral territories all contribute to the identity of indigenous people and their battle for acknowledgment, rights, and survival. The African Commission’s Working Group uses the same criteria as Chair Rapporteur of the Un Working Group, Ms Daes to define indigenous people. They emphasise the importance of self-identification as indigenous peoples or communities and recognise that their cultures and ways of life vary significantly from the society in which they live. Some cultures are threatened with extinction. For most of them, access to and rights to their customary land and the natural resources it contains is critical to the survival of their way of life. They face discrimination because they are perceived as less evolved and advanced than the more dominating groups in society. [12]
CONTRAST BETWEEN INTERNATIONAL AND AFRICAN DEFINITION
Internationally, they acknowledge the reservations of many who believe that the phrase ‘indigenous peoples’ has negative connotations in Africa since it was used derogatorily during European colonialism and has additionally been overused in racist ways by some post-colonial African administrations.[13] It might be argued that, on an international level, a strict understanding of ‘indigenous peoples’ is not essential nor desirable; instead, it is far more productive to attempt to highlight certain characteristics that can assist us in identifying who the indigenous peoples and communities in Africa are. This is a significant globally recognised strategy promoted by the United Nations Working Group on Indigenous Population. On the other hand, in reaching a ruling in favour of the Endorois Community, the African Commission did not avoid the disputable issue of defining who indigenous people are. Several African states engaged in the discussion that led to UNDRIP’s adoption emphasised the necessity for a definition.[14] The African Commission noted in its Advisory Opinion that in Africa, referring to indigenous populations does not refer to initial residents in terms of aboriginality, as opposed to non-African groups or those who have arrived from abroad. This is an essential remark that emphasises that Africa’s main concern shouldn’t be placed on whether or not it is first. According to the African Commission, any African can lawfully claim to be indigenous to the continent. While the international view emphasises interconnections and global issues, the African perception of indigenousness is strongly anchored in local contexts and confronts different obstacles.
CONCLUSION
Indigenous Peoples have different languages, cultures, social and political structures that may differ significantly from those in mainstream civilization. Whilst indigenous people confront comparable persecution, loss of language, and marginalization as other ethnic minorities, there are significant disparities in terms of their rights and identity. And it is undeniable that the African Commission’s contribution to the definition is crucial, its decision on the content of indigenous peoples’ rights is as vital. Aside from the essential question of definition, the Commission’s work in recent years has resulted in unambiguous jurisprudence on the fundamental freedoms of indigenous peoples. The Commission’s latest jurisprudence on indigenous peoples’ human rights has significant worldwide implications. From this viewpoint, the African Commission’s decisions on problems of cultural integrity, land rights, and development demonstrate how human rights legislation has become crucial to the existence of indigenous peoples.[15]
REFERENCE(S):
CASES
Centre for Minority Rights Development (Kenya) and Minority Rights Group International on behalf of Endorois Welfare Council v Kenya
LEGISLATION
Article 1 of the International Labour Organization Convention No 169 Concerning Indigenous and Tribal Peoples in Independent Countries (1989)
JOURNAL ARTICLES
Gilbert J ‘Indigenous Peoples’ Human Rights in Africa: The Pragmatic Revolution of the African Commission on Human and Peoples’ Rights’ (2011) 60 International and Comparative law Quarterly 269
Ashamu E ‘Centre for Minority Rights Developments (Kenya) and Minority Rights Group International on Behalf of Endorois Welfare Council v Kenya: A Landmark Decision from the African Commission’ (2011) 55 Journal of African Law 304
INTERNET SOURCES
IWIGIA ‘The Indigenous World 2024: African Commission on Human and Peoples’ Rights (ACHPR)’ available at https://www.iwgia.org/en/african-commission-on-human-and-peoples%E2%80%99-rights-achpr/5401-iw-2024-achpr.html
REPORTS
The African Commission on Human and Peoples’ Rights Reports of the African Commission’s Working Group of Experts on Indigenous Populations/Communities (2005) 93
[1] IWIGIA ‘The Indigenous World 2024: African Commission on Human and Peoples’ Rights (ACHPR)’ available at https://www.iwgia.org/en/african-commission-on-human-and-peoples%E2%80%99-rights-achpr/5401-iw-2024-achpr.html (Accessed 17 April 2024)
[2] Gilbert J ‘Indigenous Peoples’ Human Rights in Africa: The Pragmatic Revolution of the African Commission on Human and Peoples’ Rights’ (2011) 60 International and Comparative law Quarterly 245
[3] Gilbert J ‘Indigenous Peoples’ Human Rights in Africa: The Pragmatic Revolution of the African Commission on Human and Peoples’ Rights’ (2011) 60 International and Comparative law Quarterly 246
[4] Centre for Minority Rights Development (Kenya) and Minority Rights Group International on behalf of Endorois Welfare Council v Kenya
[5] The African Commission on Human and Peoples’ Rights Reports of the African Commission’s Working Group of Experts on Indigenous Populations/Communities (2005)
[6] The African Commission on Human and Peoples’ Rights Reports of the African Commission’s Working Group of Experts on Indigenous Populations/Communities (2005)
[7] Centre for Minority Rights Development (Kenya) and Minority Rights Group International on behalf of Endorois Welfare Council v Kenya
[8] Centre for Minority Rights Development (Kenya) and Minority Rights Group International on behalf of Endorois Welfare Council v Kenya
[9] Ashamu E ‘Centre for Minority Rights Developments (Kenya) and Minority Rights Group International on Behalf of Endorois Welfare Council v Kenya: A Landmark Decision from the African Commission’ (2011) 55 Journal of African Law 304
[10] Article 1 of the International Labour Organization Convention No 169 Concerning Indigenous and Tribal Peoples in Independent Countries (1989)
[11] The African Commission on Human and Peoples’ Rights Reports of the African Commission’s Working Group of Experts on Indigenous Populations/Communities (2005) 93
[12] The African Commission on Human and Peoples’ Rights Reports of the African Commission’s Working Group of Experts on Indigenous Populations/Communities (2005)
[13] The African Commission on Human and Peoples’ Rights Reports of the African Commission’s Working Group of Experts on Indigenous Populations/Communities (2005) 88
[14] Gilbert J ‘Indigenous Peoples’ Human Rights in Africa: The Pragmatic Revolution of the African Commission on Human and Peoples’ Rights’ (2011) 60 International and Comparative law Quarterly 250
[15] Gilbert J ‘Indigenous Peoples’ Human Rights in Africa: The Pragmatic Revolution of the African Commission on Human and Peoples’ Rights’ (2011) 60 International and Comparative law Quarterly 269
