Indigeneity of Peoples in the Context of Ethiopia: A Tool in the Pursuit of Justice Against Land Dispossessions

Date01 February 2019
Publication Date01 February 2019
DOI10.3366/ajicl.2019.0257
Pages1-24
Author
INTRODUCTION

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),1 and the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP)2 – international instruments that explicitly deal with indigenous peoples' rights issues – confer indigenous peoples the right to maintain access and ties to, and control over, their land resources.3 Furthermore, even though the International Covenant on Civil and Political Rights (ICCPR),4 the International Covenant on Economic, Social and Cultural Rights (ICESCR)5 and the African Charter on Human and Peoples' Rights (African Charter)6 do not expressly deal with indigenous peoples' rights issues, they have been construed by the UN Human Rights Committee (HRC), the UN Committee on Economic, Social and Cultural Rights (CESCR) and the African Commission on Human and Peoples' Rights (ACHPR) respectively as conferring indigenous peoples legal protection to maintain access and ties to, and control over, their traditional land.7

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’.8 This has been the case in Ethiopia particularly since 2008 where hundreds of thousands (millions according to some data) of hectares of marginal communities' ancestral lands have been transferred to investors in the lowland areas of the country.9

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’,10 recognising distinct peoples as indigenous suggests the need for developing a domestic legal regime that limits the intrusion on indigenous land by private and commercial actors. That said, the indigeneity of groups of peoples should be first established to seek legal protection as indigenous. It is against this backdrop that this article analyses the indigeneity of peoples in the context of Ethiopia.

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.11 There has been limited research to address this controversy. This article is a step towards filling this gap.

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.

ETHIOPIAN GOVERNMENT'S RESISTANCE TO RECOGNISE PEOPLES AS INDIGENOUS

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.12 In its Concluding Observations on Ethiopia's Periodic Reports, the ACHPR observed that the Ethiopian government resists recognising specific groups as indigenous.13 The ACHPR noted that Ethiopia's resistance to accepting the criteria of indigenous peoples formulated by the Commission led to ‘Ethiopia's denial of the status of indigenous populations to certain ethnic groups thereby negatively impacting on their human rights’.14

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.15 According to OP 4.10, when a World Bank-funded project is implemented in indigenous peoples' territories, the Bank ‘requires the borrower to engage in a process of free, prior, and informed consultation’ with the indigenous community. The policy states that project financing is provided only when the ‘free, prior, and informed consultation results in broad community support to the project by the affected indigenous peoples’.16

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 4.10.17

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.18 Following the finding, the Bank in 2013 announced that it would formally trigger OP 4.10.19 In the face of field-based evidence demonstrating the presence of peoples in Ethiopia for which OP 4.10 is required, ignoring the application of the policy would potentially damage the Bank's image in the eyes of actors who claim to speak for vulnerable groups. The decision to formally trigger the application of OP 4.10 can thus be seen as the Bank's effort to portray itself as an institution that uses proper procedures to ensure that due protection is accorded to vulnerable communities when projects the Bank funds are implemented.

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.20 Even so, it accepted on the condition that the terms ‘people who trigger OP 4.10’ should appear in policy assessment documents rather than ‘indigenous peoples’ if the documents are to be made publicly available.21 This demonstrates how the Ethiopian government resists the official recognition of some specific groups as indigenous peoples.

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.22 Second, the government notes that the criterion of indigeneity as described under OP 4.10 is similar to the definition of ‘nation, nationality or people’ under the Constitution.23 The Constitution defines a nation, nationality or people as ‘a group of people who have or share a large measure of a common culture or similar customs, mutual intelligibility of language, belief in common or related identities, a common psychological make-up, and who inhabit an identifiable, predominantly contiguous territory’.24 The government argues that the concept of nation, nationality and people (terms generally used to refer to all distinct ethnic groups in the country) is described in similar terms to those criteria of indigenous peoples under OP 4.10. This would appear to imply that all ethnic groups in Ethiopia are indigenous according to the Bank's policy.25 The implication of this argument is that in the circumstances where all peoples qualify as indigenous, it makes no sense to single out few groups as such. Third, the government posits that the recognition of some groups as indigenous and conferring distinct treatment on them would create tensions...

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT