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Evolving Legal Protections for Indigenous Peoples in Africa: Some Post-UNDRIP Reflections

Document Cited authorities 1 Cited in Related
Vincent
Date01 August 2018
DOI10.3366/ajicl.2018.0236
Published date01 August 2018
Pages339-365
INTRODUCTION

After over two decades of negotiations, the United Nations General Assembly adopted the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) on 13 September 2007, with 143 states voting in favour, 4 states opposing, 11 states abstaining and 34 states noted as absent.1 While this has rightly been seen as a momentous achievement for indigenous peoples worldwide, and for international law more generally, a closer examination of the voting record, where three African countries abstained from the final vote and another 15 African countries were absent, hints at a larger story: one concerning Africa's reaction to the UNDRIP and the human rights norms contained within the Declaration.2

Prior to the adoption of the UNDRIP, the text had been debated at length by the United Nations Working Group on Indigenous Populations, state representatives and indigenous communities with a negotiated version being adopted by the Human Rights Council in June 2006.3 Throughout this process most African states did not take any meaningful part in the debates, undoubtedly for a variety of reasons, all of which have been addressed elsewhere.4 Importantly, however, once the UNDRIP arrived in the Third Committee of the United Nations General Assembly, Namibia, on behalf of a group of African states and governments (the African Group), called for a deferment on consideration and action on the proposed Declaration, with no African state voting against Namibia's amendment.5 On 9 November 2006, the African Group published their concerns in a document entitled Draft Aide-Memoire – United Nations Declaration on the Rights of Indigenous Peoples6 (Draft Aide-Memoire), and their concerns can be summarised as follows. In particular African states:

wanted a formal definition of indigenous peoples in order to identify the rights holders and also to minimise inter-ethnic tensions and instability;

objected to indigenous peoples' right to self-determination as included in the UNDRIP because it could negatively impact political stability, and could confer the right to secede thus threatening territorial integrity;

feared that by recognising the right of indigenous peoples to political, social and cultural institutions, the UNDRIP contradicted several constitutions that promote unified states;

feared that by accepting the right to belong to an indigenous community or nation in accordance with traditions and customs of the nation or community meant that people could change their nationalities freely, resulting in political instability;

believed that the right of indigenous peoples to free, prior and informed consent meant that indigenous communities could veto national legislation;

believed that recognising the rights of indigenous peoples to the lands, territories and natural resources they traditionally owned, occupied or acquired was legally unworkable and in breach of states' rights over land and natural resources; and

objected to the provisions of the UNDRIP pertaining to the right of indigenous peoples to the recognition, observance and enforcement of treaties, agreements and other constructive arrangements concluded with states as treaties were exclusively a state matter.7

 As one can see, at the time of the Draft Aide-Memoire, many African states held a unified, and seemingly hostile position towards the UNDRIP. However, since then there have been many developments at the African level, which have led to a change in how the human rights norms contained within the UNDRIP are seen, understood and interpreted in the African context. In order to gain a better understanding of the protections offered to indigenous peoples on the African continent, it is necessary to examine the concerns raised in the Draft Aide-Memoire and highlight how these concerns have been addressed at the regional level. The purpose of this article is to do just that, to examine in particular how the issue of defining indigenous peoples has been tackled on the African continent, how the right to self-determination has unfolded for indigenous peoples in Africa and how indigenous peoples' right to free, prior and informed consent has been interpreted at the regional level INDIGENOUS PEOPLES IN AFRICA: A CONTESTED CONCEPT A Brief Overview

There is no doubt that the term ‘indigenous peoples’ is an evolving concept. As Albert Barume noted in Land Rights of Indigenous Peoples in Africa: ‘to reach its current understanding in international law, the meaning of the term “indigenous” seems to have evolved through several distinct phases.’8 During the colonial era, the term ‘indigenous’ was applied to all peoples found in colonised territories, regardless of where they were born or their migration patterns, or descendants of those who occupied a given territory that was invaded, conquered and colonised by white colonial powers.9 Following this, different meanings alluding to ‘indigenous peoples’ emerged from the aftermath of the Second World War, the subsequent decolonisation process and the changing attitudes towards the fate or current situation of colonised populations.10 This is evidenced through the evolution of definitions attached to indigenous peoples from the International Labour Organisation (ILO) Convention No. 107 of 1957,11 to ILO Convention No. 169 of 1989,12 to the widely used definition emanating from the José Martinez Cobo study on the problem of discrimination against indigenous peoples, which was completed in 1986.13

However, the foci of the above mentioned definitions are the elements of ‘historical continuity’, ‘pre-invasion’ and ‘pre-colonial’, in other words first peoples who were dislocated from their traditional way of life through colonial conquest, mass murder, dispossession and displacement.14 When it came to Africa, this presented an obstacle, as clearly the situation in most parts of the continent was very different, with very few groups being able to claim status as ‘first peoples’.15 As the Assembly of the African Union affirmed in January 2007: ‘… the vast majority of the peoples of Africa are indigenous to the African Continent.’16 As questions concerning the conceptual applicability of the term ‘indigenous peoples’ in Africa arose, it became obvious that there was a need to refocus the definition from an African perspective.17

Work in this area was already underway, as the African Commission on Human and Peoples' Rights (ACHPR or African Commission) established the African Commission's Working Group of Experts on Indigenous Populations/Communities (African Working Group) in 2000, with a mandate to: ‘examine the concept of indigenous people and communities in Africa; study the implications of the African Charter on Human Rights on the well-being of indigenous communities; consider appropriate recommendations for the monitoring and protection of the rights of indigenous communities; and submit a report to the African Commission’.18 Linked to the future approach to be taken with regard to indigenous peoples in Africa was the emotive debates surrounding the scope and meaning of the term ‘peoples’, and the associated rights, as enshrined in the African Charter on Human and Peoples' Rights (African Charter),19 which was unclear at the time of drafting.20 In the Report of the African Commission's Working Group of Experts on Indigenous Population/Communities (African Commission Report) the African Working Group echoed this sentiment, taking the view that the lack of a definition for ‘peoples’ leaves open the possibility that the collective rights, formulated as peoples' rights, should be available to sections of populations within nation states, including indigenous peoples and communities.21

Evolving jurisprudence concerning the meaning of ‘peoples’ seemed to support the position advanced by the African Working Group with the Social and Economic Rights Action Center and the Center for Economic and Social Rights v. Nigeria (Ogoni)22 being the most relevant case to inform the debate on indigenous peoples. The Ogoni case was concerned with the impact of oil development activities on the Ogoni people who live in the areas surrounding the Niger delta, where most of the oil production was taking place.23 The African Commission found that the Nigerian government, through the Nigerian military and the Nigerian National Petroleum Company, violated, inter alia, the Ogoni peoples' rights found in the Charter, namely the right of the Ogoni people to freely dispose of their wealth and natural resources.24 The Ogoni decision was pivotal and should not be downplayed in the struggle for the recognition of indigenous peoples in Africa even though the Ogoni were not explicitly determined to be ‘peoples’, as the decision was the first time the African Commission recognised a sub-national group as holders of the substantive peoples' rights enshrined in the African Charter.25

While recognising the existence of indigenous peoples' rights as analogous to peoples' rights in the African human rights regime, the African Commission Report also stressed that: if emphasis remains on early definitions that were intertwined with colonisation, the African continent will be left without a suitable concept for ‘analyzing internal structural relationships of inequality that have persisted after liberation from colonial dominance’.26 Instead the African Working Group suggested the following elements for determining ‘indigenousness’ in Africa: self-identification; special attachment to and use of their traditional land whereby their ancestral land and territory has a fundamental importance for their collective physical and cultural survival as peoples; and experiences of subjugation, marginalisation, dispossession, exclusion or discrimination because these peoples have different cultures, ways of life or modes of production than the national hegemonic and dominant model.27

Moreover, the Advisory Opinion of the African Commission on Human and...

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