Indigeneity of Peoples in the Context of Ethiopia: A Tool in the Pursuit of Justice Against Land Dispossessions
| Date | 01 February 2019 |
| Published date | 01 February 2019 |
| DOI | 10.3366/ajicl.2019.0257 |
| Pages | 1-24 |
| Author |
Categorising people as ‘indigenous’ has legal consequences. International human rights law confers special rights, albeit limited, on indigenous peoples to maintain access and ties to their traditional land. The Indigenous and Tribal Peoples Convention (ILO Convention on Indigenous Peoples),
The legal protections incorporated in these instruments can provide more avenues and laws to indigenous peoples to challenge the dispossessions of their ancestral lands, which are often encroached upon by private and government actors motivated by the ‘prospect of accumulating wealth from the natural resources on indigenous lands’.
The international legal instruments can be important tools that indigenous peoples use in their struggle to maintain access and control over their ancestral lands. Distinct peoples in Ethiopia who qualify as indigenous may invoke the legal protections accorded under international instruments to which Ethiopia is a party, including the ICCPR, the ICESCR and the African Charter, and challenge state actions facilitating their traditional land dispossessions before regional judicial bodies (such as the ACHPR) and some international institutions. Furthermore, given that indigenous peoples' ancestral land is not just a source of economic well-being but also has a ‘fundamental importance for their collective physical and cultural survival as peoples’,
The answers to the questions which groups of peoples can qualify as indigenous and what are the criteria to identify specific groups of peoples as indigenous are far from clear. The relevance and appropriateness of seeking protection as indigenous peoples are contested by governments, scholars and non-governmental organisations. As will be noted below, even though some distinct marginal communities in Ethiopia self-identify as indigenous peoples and seek legal protection as such, the Ethiopian government contests singling out some distinct peoples as indigenous (in the sense of the term used in international human rights law) and thus resists their legal protection as such.
There is neither a domestic nor international instrument to which Ethiopia is a party that defines the term indigenous peoples. We need to refer to the broader literature to examine whether some groups of peoples in Ethiopia qualify as indigenous. Drawing on the criteria of indigeneity at the international and regional (African) levels, this article argues that irrespective of the Ethiopian government's resistance to identifying groups of peoples as indigenous and conferring legal protection as such, there are some groups of peoples who qualify as indigenous. Case studies on three marginal groups (the Anywaa, the Gumuz and the Afar) are provided to support this proposition.
The article is structured as follows. Section II analyses the position of the Ethiopian government regarding recognising distinct groups as indigenous peoples. Section III explores the criteria of indigeneity that has evolved at the international level. This section also examines whether such criteria can be adopted or adapted to situations in Africa and Ethiopia in particular. Section IV deals with the criteria of indigeneity in the context of Africa. Section V examines indigeneity in Ethiopia based on the criteria developed at the international and regional levels. The final section provides some concluding remarks.
Like many African governments, the Ethiopian government has been reluctant to embrace the legal concept of indigenous peoples. In a document published in 2015, the government rejected the use of the term ‘indigenous peoples’ in the context of Ethiopia.
Furthermore, before 2013 the World Bank could not trigger the application of the safeguard policy on Indigenous Peoples (OP 4.10) in projects that the Bank funds in Ethiopia.
The World Bank could not trigger the application of OP 4.10 because of the Ethiopian government's resistance to the application of the policy. Thus, rather than directly applying OP 4.10, the Bank resorted to using what it calls the ‘Functional Equivalence’ of OP 4.10. According to the Bank, this approach achieved much of the ‘intent’ of the policy without formally triggering OP 4.10.
In the meantime, the government in 2012 agreed to conduct World Bank-commissioned field research on the relevance and appropriateness of applying OP 4.10. The research found that there are numerous groups of people in Ethiopia for which the application of OP 4.10 is required.
However, the Ethiopian government apparently resisted the Bank's application of OP 4.10 even after the research finding. It was apparently only when the Bank insisted and withheld some funding until the Ethiopian government accepted the application of OP 4.10 that the government accepted the policy.
The government provides the following reasons for resisting the recognition of groups as indigenous. First, the government contends that singling out some specific groups of peoples as indigenous for distinct treatment is tantamount to conferring on these groups special rights over and above others, and would be inconsistent with the Constitution of the Federal Democratic Republic of Ethiopia (the Constitution) which grants each group equal protection.
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