Working Group on Indigenous Populations/Communities and Minorities in Africa

This resolution (https://www.achpr.org/sessions/resolutions?id=56 ) mandated the Working Group to:

•   Examine the concept of indigenous populations / communities in Africa;
• Study the implications of the African Charter on the well-being of indigenous communities especially with regard to the right to equality (articles 2 and 3), the right to dignity (article 5), the right to protection of all peoples’ against domination (article 19), the right to self-determination (article 20), the right to cultural development and identity (article 22); 
• Consider appropriate recommendations for the monitoring and protection of the rights of indigenous communities.

In May 2001, during its 29^th Ordinary Session, the African Commission established the anticipated Working Group of Experts comprising of three Commissioners and three experts from indigenous communities in Africa and one independent expert on indigenous issues. The Working Group implemented its mandate by producing a report entitled “Report of the African Commission’s Working Group on Indigenous Populations / Communities”, which was adopted by the African Commission in November 2003. ( http://www.achpr.org/mechanisms/indigenous-populations/report-working-group/) One of the recommendations of this report was the establishment of a Working Group on Indigenous Populations / Communities in Africa for an initial term of two years. 

ii.            Mandate

The resolution (https://www.achpr.org/sessions/resolutions?id=70 ) which adopted the Report of the Working Group also re-constituted the Working Group with a mandate to:

•  Raise funds for the Working Group’s activities, with support and cooperation of interested donors, institutions and NGOs;
• Gather information from all relevant sources (including governments, civil society, indigenous populations and their communities) on violations of human rights and fundamental freedoms of indigenous populations and communities;
• Undertake country visits to study the human rights situation of indigenous populations/communities;
• Formulate recommendations and proposals on appropriate measures and activities to prevent and remedy violations of the human rights and fundamental freedoms of indigenous populations/communities;
• Submit an activity report at every ordinary session of the African Commission;
• Cooperate when relevant and feasible with other international and regional human rights mechanisms, institutions and organizations.

iii.           Activities of the WGIP

In discharging its mandate, the Working Group employs various means and ways of sensitization, lobbying and protection. These include country visits, research, publications, promotional videos, seminars, workshops and trainings.

a.    Country Visits

The Working Group has so far undertaken 15 country visits to 13 different African countries. The reports from these visits have been published in English and French and widely distributed. (https://www.achpr.org/specialmechanisms/detail?id=10 )  In these reports the Working Group highlights, among others, the socio-economic, environmental and land related challenges indigenous people are facing in the countries visited and make recommendations to the concerned governments to recognize, legislate and adopt best practices on indigenous populations.

b.    Publications

Some of the notable publications include the 2003 Report of the Working Group; the Overview Report on the Constitutional and Legislative Protection of Indigenous Peoples in 24 African Countries (2010) (https://www.achpr.org/presspublic/publication?id=50 ); the Advisory Opinion of the Commission on UNDRIP (2007)(https://www.achpr.org/presspublic/publication?id=49 ); and Extractive Industries, Land Rights and Indigenous Populations’/Communities’ Rights (2015) (https://www.iwgia.org/images/documents/extractive-industries-africa-report.pdf. )

c.     Seminars

One of the strategies adopted by the Working Group in creating awareness on the rights of indigenous peoples and engaging States Parties and other stakeholders on the issue is through the organization of sensitization seminars. So far the Working Group has organized four sensitization seminars in Yaoundé, Cameroon (2006) (https://www.achpr.org/presspublic/publication?id=53), Addis Ababa, Ethiopia (2008), Brazzaville, Congo (2011) (https://www.achpr.org/presspublic/publication?id=55 ) and Tunis, Tunisia (2014).

d.    Workshops

The Working Group also organizes workshops to advance and promote the rights of indigenous peoples in Africa. In light of this, it has organized various workshops including an Exchange workshop between the ASEAN Inter-Governmental Commission, Inter-American Commission and the African Commission in 2013, Workshop on the State of Implementation of the Endorois Decision of the Commission (2013) (https://www.achpr.org/news/viewdetail?id=139), Workshop on the Outcome Document of the World Conference on Indigenous Peoples (2015) (https://www.achpr.org/news/viewdetail?id=40 ) and National Dialogue on Extractive Industries and the Rights of Indigenous Peoples’ (2017) (https://www.achpr.org/news/viewdetail?id=27 )

e.    Short Course in Pretoria

The Working Group in collaboration with the Centre for Human Rights of the University of Pretoria and IWGIA gives a short course on Indigenous Peoples Rights every year at the University of Pretoria, Pretoria, South Africa. The course brings together participants from all walks of life whose work directly or indirectly relates to the issue of indigenous peoples’ rights. http://www.chr.up.ac.za/index.php/ahrc-courses/ipr-course.html

f.      A video film 'A Question of Justice: The Rights of Indigenous Peoples in Africa ’

The video film depicts the deplorable situation that the indigenous peoples of Kenya and Cameroon find themselves in as well as the work that the Working Group has been doing to improve the situation of indigenous communities on the continent.

g.    Urgent Appeals

Whenever cases of emergency or actions or inactions that are believed to cause irreparable harm or damage to indigenous peoples or their environment are brought to the attention of the Working Group, it issues what are called Urgent Appeals to prevent further violence or destruction of indigenous peoples’ property.

h.    Resolutions

The Working Group as part of its mandate also drafts and tables resolutions for adoption before the Commission on issues relating to the rights of indigenous populations.

i.      Engaging with Stakeholders

This involves participation in meetings of international mechanisms and institutions that work directly or indirectly on the issue of indigenous peoples such as the United Nations Permanent Forum on Indigenous Issues and UN Expert Mechanism on the Rights of Indigenous Peoples and also communicating and working closely with the UN Special Rapporteur on the Rights of Indigenous Peoples’. The Working Group also closely follows and monitors the policies, programs and projects of international financial institutions such as the World Bank and African Development Bank.

iv.           Membership

The Working Group is currently composed of ten members: three members of the African Commission, three independent experts and four indigenous experts, and it is Chaired by Commissiner Soyata Maiga.

1. Commissioner Soyata Maiga – Chairperson
2. Commissioner Jamesina King – Commissioner member
3. Commissioner Remy Ngoy Lumbu – Commissioner member
4. Dr. Albert Barume – Independent Expert - Democratic Republic of Congo - nmkra@hotmail.com
5. Ms Marianne Jensen – Independent Expert – Denmark – mj@iwgia.org
6. Dr Melakou Tegegn – Independent Expert – Ethiopia – tegmel@gmail.com
7. Ms Hawe Bouba – Indigenous Expert – Cameroon - hawehamman@gmail.com
8. Ms Lesle Jansen – Indigenous Expert – South Africa - lesle@naturaljustice.org.za
9. Mr Belkacem Lounes – Indigenous Expert – Algeria - congres.mondial.amazigh@wanadoo.fr
10. Dr Paul Kanyinke Sena – Indigenous Expert – Kenya - kanyinke@gmail.com

v.            The Concept of Indigeneity in Africa

According to the 2003 report of the African Commission which was endorsed by the AU in 2005, in post-colonial Africa, the term ‘indigenous peoples’ does not mean:

• first habitants in a country or on the continent;
• natives as understood in the Americas or Australia,

It rather refers to those communities in Africa:

• whose cultures and ways of life differ considerably from the dominant society, and whose cultures are under threat, in some cases to the point of extinction;
• the survival of their particular way of life depends on access and rights to their traditional lands and the natural resources thereon;
• who suffer from discrimination as they are regarded as less developed and less advanced than other more dominant sectors of society;
•  who live in inaccessible regions, often geographically isolated, and suffer from various forms of marginalization, both politically and socially;   
• who are subjected to domination and exploitation within national political and economic structures that are commonly designed to reflect the interests and activities of the national majority; and
• who identify themselves as indigenous;

Therefore, this human rights-based meaning of the term ‘indigenous peoples’ should not be confused with its etymological or generic one, presented in most dictionaries as meaning ‘originating from’, and which comes to the minds of most people in Africa when they hear the word indigenous peoples.

It is crucial that the critical human rights situation of indigenous peoples is addressed and, for this purpose, it is necessary to have a concept by which to highlight and analyse their situation. ‘Indigenous peoples’ is today a term and a global movement fighting for rights and justice for those particular groups who have been left on the margins of development, who are perceived negatively by dominant mainstream development paradigms and whose cultures and lives are subject to discrimination and contempt. The linking up to a global movement - by applying the term ‘indigenous peoples’ - is a way for these groups to try to address their situation, analyse the specific forms of inequalities and repression they suffer from, and overcome the human rights violations by also invoking the protection of international law.

It is the modern analytical understanding of the term ‘indigenous peoples’, with its focus on the above-mentioned facts of marginalisation, discrimination, cultural difference and self-identification, that has been adopted by the Commission, which has also been endorsed by the African Union Heads of States and Governments.

vi.           Common Misconceptions About the Application of the term in Africa 

1. Are Indigenous Peoples’ Demanding Special Rights?

One of the misconceptions regarding indigenous peoples is that to advocate for the recognition and protection of the rights of indigenous peoples would be to give special rights to some ethnic groups over and above the rights of all other groups within a state. Indigenous peoples’ are not asking for special rights. As explained above, the issue is that certain marginalized groups are discriminated in particular ways because of their particular way of life and marginalized position within the state. This is a form of discrimination which other groups within the state are not subject to. It is legitimate for these marginalized groups to call for protection of their rights in order to alleviate this particular form of discrimination.

1. ‘All Africans are Indigenous’

A closely related misconception is that the term ‘indigenous’ is not applicable in Africa as ‘all Africans are indigenous’. There is no question that all Africans are indigenous to Africa in the sense that they were there before the European colonialists arrived and that they were subject to subordination during colonialism. The Commission is in no way questioning the identity of other groups. When some particular marginalized groups use the term ‘indigenous’ to describe their situation, they are using the modern analytical form of the concept (which does not merely focus on aboriginality or a state of being first people) in an attempt to draw attention to and alleviate the particular form of discrimination from which they suffer. This in no way is tantamount to denial of the legitimate claim of all other Africans to belong to Africa and identify as such. The concept rather connotes the present-day broad understanding of the term because it is a term by which they can very adequately analyse the particularities of their sufferings and by which they can seek protection in international human rights law.

1. Reconizing Indigenous Peoples leads to tribalism and ethnic conflict

Another misconception is that talking about indigenous rights will lead to tribalism and ethnic conflict. This is, however, turning the argument upside down. There exists a rich variety of ethnic groups within basically all African states, and multiculturalism is a living reality. Giving recognition to all groups, respecting their differences and allowing them all to flourish in a truly democratic spirit does not lead to conflict, it rather prevents it. What creates conflict is when certain dominant groups force through a sort of “unity” that only reflects the perspectives and interests of certain powerful groups within a given state, and which seeks to prevent weaker marginalized groups from voicing their particular concerns and perspectives. Or, put another way: conflicts do not arise because people demand their rights but because their rights are violated. Demanding protection of the human rights of particularly discriminated groups should not be seen as tribalism and disruption of the unity of African states. On the contrary, it should be welcomed as an interesting and much needed opportunity in the African human rights arena to discuss ways of developing African multicultural democracies based on respect for, and the contributions of, all ethnic groups. It promotes and facilitates all inclusive development and nation-building.

1. Question of Secession

Many Governments in Africa are reluctant to recognize indigenous peoples within their territories because they fear that it will lead to claims of secession. However, the UN Declaration on the Rights of Indigenous Peoples’ categorically states that indigenous peoples right to self-determination does not include secession. Therefore, the international legal framework on indigenous peoples’ rights recognizes and respects territorial sovereignty and hence does not pose any threat to the territorial integrity of states.

The Commission recognizes the concern of those who feel that the term ‘indigenous peoples’ has negative connotations in Africa, as it was used in derogatory ways during European colonialism and has also been misused in chauvinistic ways by some in post-colonial Africa. However, notwithstanding the possible negative connotations of the word itself, it has today become a much wider internationally recognized term by which to understand and analyse certain forms of inequalities and repression, such as those suffered by many pastoralists and hunter-gatherers in Africa today, and by which to address their human rights sufferings.

vii.          Indigenous peoples as distinguished from minorities

In debates and discussions on the issue of indigenous peoples in Africa, some argue that “minorities” would be a more appropriate term to describe the groups of people known as “indigenous”. It is the Commission’s position that it is important to accept the use of the term indigenous peoples all over the world, including in Africa, as the concept of indigenous peoples in its modern form more adequately encapsulates the real situation of the groups and communities concerned. There may certainly be overlaps between groups identified as ‘indigenous’ and groups identified as ‘minorities’, and no definition or list of characteristics can eliminate these overlaps. Moreover, cases will continue to arise that defy any simple attempt at classification. The usefulness of a sharp and clear-cut distinction between minorities and indigenous peoples is therefore limited, which is why it is important to apply a flexible approach based on a concrete analysis of the human rights issues at stake.

The nature of the types of rights ascribed to indigenous peoples and minorities in international law differs considerably and this has major implications. The specific rights of persons belonging to national or ethnic, religious or linguistic minorities include the right to enjoy their own culture, to practice their own religion, to use their own language, to establish their own associations, to participate in national affairs etc. These rights may be exercised by persons belonging to minorities individually as well as in community with other members of their group.

Indigenous rights are collective rights, even though they also recognize the foundation of individual human rights. Some of the most central elements in the indigenous rights regime are the collective rights to land, territory and natural resources. The UN Declaration on the Rights of Persons belonging to National or Ethnic, Religious and Linguistic Minorities contains no such rights, whereas land and natural resource rights are core elements of ILO Convention 169 (arts 13- 19) and the UN Declaration on the Rights of Indigenous Peoples (arts 25-30). Collective rights to land and natural resources are one of the most crucial demands of indigenous peoples – globally as well as in Africa – as they are so closely related to the capability of these groups to survive as peoples, and to be able to exercise other fundamental collective rights such as the right to determine their own future, to continue and develop their mode of production and way of life on their own terms and to exercise their own culture. The types of human rights protection groups such as the San, Batwa, Ogiek, Maasai, Barabaig, Tuareg, Hadzabe etc. are seeking are, of course, individual human rights protection, just like other individuals the world over. However, it goes beyond this. These groups seek recognition as peoples, and protection of their cultures and particular ways of life. A major issue for these groups is the protection of collective rights and access to their traditional land and the natural resources upon which the upholding of their way of life depends. As the protection of their collective rights, including land rights, is at the core of the matter, many of these groups feel that the indigenous human rights regime is a more relevant platform than the minority rights arena.