The Commission’s Decision on the Merits In view of the foregoing, the Commission
Declares that the Democratic Republic of Congo has violated the provisions of Articles 1, 2, 3, 4, 8, 14, 16, 17 (1)-(3), 21, 22 and 24 of the African Charter.
Declares that the Kahuzi-Biega Forest has been the ancestral home of the Batwa people since time immemorial. Consequently, the occupation of this forest by the Batwa people is essential for their survival and the maintenance of their cultural identity.
Declares that the occupation of the Kahuzi-Biega Forest did not constitute any danger to biodiversity and that, consequently, the forest is a customary property that the Democratic Republic of Congo is obliged to recognise and protect under international law by putting in place a law on customary property.
Declares that fortress conservation models based on the exclusion of indigenous peoples from their ancestral lands without their free and prior consent are ineffective, and recalls that, in cases where such conservations are necessary, their impact on indigenous peoples must be carefully analysed and remedied. In particular, the conservation model used in the Kahuzi-Biega National Park has failed, by excluding the Batwa as custodians of the forest.
States that as good stewards of the environment, measures to exclude the Batwa from their land may be harmful to the environment given the positive historical record of conservation of the Kahuzi-Biega forest by the Batwa
232. Notes that the creation of the Kahuzi-Biega National Park and the authorisation of other non-Batwa communities to continue to exploit their ancestral lands constitutes a violation of the Charter.
The Commission therefore requests the Democratic Republic of Congo to:
i. Adopt as soon as possible, in consultation with the Batwa, such legislative, administrative and other measures as may be necessary to establish a mechanism for demarcation and titling of Batwa ancestral territory and related rights in accordance with their values, customs and beliefs.
ii. Ratify the International Labour Organisation Convention No. C169 concerning Indigenous and Tribal Peoples, 1957.
iii. Take physical, legislative and administrative measures to clarify and determine Batwa ancestral lands
iv. Reintegrate the Batwa into their ancestral territory
v. Refrain from any action that may prevent the Batwa from using or enjoying their ancestral lands in the Kahuzi-Biega National Park until these measures are adopted and implemented,
vi. Rescind all laws, ordinances or other measures that prohibit the presence of the Batwa on their ancestral lands and their traditional use and enjoyment.
vii. Take the necessary material, legislative and administrative measures to implement the African Union Convention for the Protection and Assistance of Internally Displaced Persons in Africa (Kampala Convention)
viii. Remove, within a period not exceeding 6 months from the notification of this decision, non-Batwa from Batwa ancestral lands and territories.
ix. Establish, in collaboration with the National Independent Human Rights Commission, an independent committee of experts in compensation and reparations for human rights violations to examine the value of compensation required to redress the harm suffered by the Batwa.
x. Establish a community development fund administered by the community to address growing deficiencies in health, housing and education;
xi. Paying royalties from economic activities in the Kahuzi-Biega Forest;
xii. Ensure that Batwa are given priority for employment opportunities in Kahuzi Biega National Park, particularly in guarding, conservation and land repair;
xiii. Engage in regular dialogue with the Batwa to provide them with the basic public services they need;
xiv. Work with the Batwa, through the ministry responsible for culture, to protect their traditional values and beliefs as a source of pride in Congolese culture;
xv. Adopt national legislation on the rights of indigenous peoples and define measures for their protection
xvi. Make a full public apology to the Batwa people, acknowledging the abuse by park rangers resulting in loss of life, the deaths resulting from eviction, and the inhumane and degrading living conditions to which the Batwa community has been subjected
xvii. Recognise the Batwa as citizens of the DRC, including their social, cultural and other contributions to the heritage of humanity;
xviii. Provide training on national and international human rights and indigenous peoples' standards to ICCN administrators and PNKB rangers;
xix. Publicise this decision in accordance with the instructions drawn up by the Commission in paragraph 226 of this decision.
Adopted by the African Commission on Human and Peoples' Rights at its 71st Ordinary Session held virtually from 21 April 2022 to 13 May 2022
