Limitations to the Rights of Indigenous Peoples in Africa: A Model for Balancing National Interest in Development with the Rights of Indigenous Peoples?
| Date | 01 October 2012 |
| Published date | 01 October 2012 |
| Author | Adem Kassie Abebe |
| DOI | 10.3366/ajicl.2012.0043 |
| Pages | 407-422 |
The African Charter on Human and Peoples’ Rights, which is the principal human rights instrument in Africa, was adopted on 27 June 1981 and entered into force in 1986.
The Charter together with the African Charter on the Rights and Welfare of the Child (adopted in July 1990, entered into force on 29 November 1999) and the Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa (adopted July 2003, entered into force 25 November 2005) constitute the African Bill of Rights.
The entry into force of the Charter marked Africa as the third regional human rights system and coincided with the ‘third wave’ of democratisation in the 1990s.S. Huntington,
The African Commission on Human and Peoples’ Rights, established under article 30 of the Charter with a view to ensuring the promotion and protection
The analysis of periodic country reports, the activities, including country visits, of the Special Rapporteurs on several thematic issues, and the organisation of seminars, conferences and workshops constitute the major part of the Commission's promotional work. The communications procedure that allows individuals, non-governmental organisations and states to submit complaints to the Commission constitutes the major protection mandate. The Protocol to the African Charter on Human and Peoples’ Rights on the Establishment of the African Court (adopted in 1997, entered into force in 2004) established the African Court on Human and Peoples’ Rights to complement the protection mandate of the Commission. See also the new Protocol on the Statute of the African Court of Justice and Human Rights (adopted in 2008, not yet in force), merging the African Court of Justice with the African Court on Human and Peoples Rights.
of human rights, started operation in 1987. Despite compliance challenges,On the low level of compliance with the recommendations of the Commission, see Lirette Louw ‘An Analysis of State Compliance with the Recommendations of the African Commission on Human and Peoples’ Rights’ (2005) (unpublished LLD dissertation, University of Pretoria; on file with Centre for Human Rights and O. R. Tambo Library, University of Pretoria). For a summarised version of the findings, see F. Viljoen and L. Louw, ‘State Compliance with the Recommendations of the African Commission on Human and Peoples’ Rights: 1994–2004’, 101
One of the major defects, it has been indicated, of the African Charter is its extensive inclusion of claw-back clauses. The fear was that the African Charter would simply subject the exercise of most of the rights to applicable domestic laws, thereby giving primacy to domestic laws over the Charter and effectively depriving the regional system any significance. Gittleman observed that the Charter does not provide ‘external control over State behaviour’ and is therefore, in relation to the right to liberty, ‘incapable of creating even a scintilla of external restraint upon a government's power to create laws contrary to the spirit of the rights granted’; R. Gittleman ‘The African Charter on Human and Peoples’ Rights: A Legal Analysis’, 22
Principles and Guidelines on the Right to a Fair Trial and Legal Assistance in Africa (2001); and The Declaration of the Principles of Freedom of Expression in Africa (2002).
The recognition of the right to self-determination of indigenous peoples and their collective right to land and resources with the emphasis on the development interests and priorities of indigenous peoples has created a situation in which the interests of States in development might collide with the interests of indigenous peoples. There is therefore a need to understand the exact extent to which the rights of indigenous peoples may be sacrificed to give way to development aspirations in the national interest of States. The current ‘land grab’ saga in Africa launched by several African governments to enhance economic development, for instance, may seriously affect the collective right to land and resources of indigenous peoples. Similar concerns include the extent to which environmental protection efforts may justify relocating indigenous peoples or restricting or tampering with their way of life; the extent to which the creation of national park reserves justifies restricting the access of indigenous peoples to their traditional lands; and the extent to which the extraction of resources such as minerals or forests justifies relocating indigenous peoples. Does mere consultation with indigenous peoples suffice or is there a need to ensure that States obtain the free and informed consent of indigenous peoples before restricting their rights?
This article assesses the approach of the Commission in determining the delicate balance between the interest of States in national development and the survival needs of indigenous peoples. For this purpose, section II discusses the recognition of the rights of indigenous peoples by the African Commission and the potential conflict of rights of indigenous peoples with development projects in the national interest. Section III analyses the extent to which the general limitation standards may be applied in relation to the rights of indigenous peoples based on the jurisprudence of the Commission in the
Indigenous communities have in so many cases been pushed out of their traditional areas to give way for the economic interests of other more dominant groups and to large scale development initiatives that tend to destroy their lives and cultures rather than improve their situation.
Report of the African Commission's Working Group on Indigenous Populations/Committees (2005), p. 20, available at
J. P. Kastrup ‘The Internationalization of Human Rights from Environmental and Human Rights Perspective’, 32
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