SECURING INDIGENOUS PEOPLES LAND AND TERRITORIAL RIGHTS IN AFRICA

CBI 5 members during the workshop

SECURING INDIGENOUS PEOPLES LAND AND TERRITORIAL RIGHTS IN AFRICA

The International Land Coalition (ILC) is a global membership network whose main objective is to attain people-centred land governance through its 10 commitment priority areas of focus known as Commitment Based Initiatives (CBIs). One of these areas of focus is on the Indigenous Peoples of Africa to secure their tenure rights under the Commitment Based Initiative 5 (CBI 5) of ILC.

CBI 5 is a regional platform with 15 members operating in about 10 countries including: Kenya, Tanzania, Ethiopia, Botswana, Cameroun, DRC Congo, Zimbabwe, Burundi and Central Africa Republic. The current target is to expand the network to West and North Africa reaching out to more indigenous peoples.

CBI 5 is currently hosted and coordinated by the Ogiek Peoples’ Development Program (OPDP) whose work focuses on advocating for the rights of indigenous peoples in the spheres of land and natural resources, cultural development and preservation, sustainable development etc. in Kenya and across Africa. Through OPDP efforts, the Ogiek community received a landmark ruling made by the African Court on Human and Peoples’ Rights declaring Mau Forest Complex as the ancestral home of the Ogiek.

Through its activities, CBI 5 is working to establish networks vital in advocating for indigenous peoples’ land and territorial rights. In November 2021, members of CBI 5 Africa congregated in Naivasha town, Kenya to develop an advocacy strategy to establish a working relationship with the Africa Commission on Human and Peoples’ Rights (ACHPR). The meeting also focused on the core of the indigenous peoples’ movement in Africa with the intention of creating a strong regional movement for the indigenous peoples.

Kubwimana giving his remarks

CBI 5 expansion plans

Speaking during the opening of the workshop, ILC’s Africa Coordinator Audace Kubwimana, urged CBI 5 to expand its network and include more members across all regions of Africa. He noted that CBI 5 membership was lacking representation from the West and North Africa region thereby encouraging members to double efforts towards bringing in indigenous peoples and their organisations from those regions. He further floated the idea of CBI 5 coordinators to write to these organizations inviting them to join CBI 5.

Kubwimana then urged the participants to be including young people in lobbying and advocacy activities geared towards securing territorial rights. “The youths will be picking the fight from us, we need to ensure that they are included and ready to advocate for their rights. The current trend shows that the fight for territorial rights may go on for years, we need to equip the youth to take up the fight and build their capacity to engage with key players in the local, national, regional and international levels”, concluded Mr Kubwimana.

Remarks from OHCHR representative, by Li Fung

The workshop was privileged to be graced by the representative of the Office of High Commission on Human Rights (OHCRH) based in Nairobi; Dr Li Fung.

Dr Li Fung during the workshop

“This is a noteworthy initiative by indigenous peoples to take action in solving issues that are affecting them instead of waiting for other peoples to offer help. Land is political and its effects in terms of conflicts are often spontaneous in nature requiring community preparedness. It is important for indigenous peoples to follow closely on business and development projects e.g. Lamu Port-South Sudan Ethiopia Transport (LAPSSET)[1] and other projects which impact on indigenous peoples by taking away their lands. Business and human rights impacts on development and sustainable development. In Kenya there is commitment on Sustainable Development Goals (SDGs) in leaving no one behind and addressing inequalities. Indigenous peoples have been systematically left behind and hence should be identified and counted. They should link their issues to SDGs e.g. target in land tenure. E.g. Increasing women land tenure in agricultural lands and endeavour to engaging SDGs forums at various levels. I am urging indigenous peoples to engage with human rights mechanisms set in place by United Nations (UN) that engage indigenous peoples for instance such as the Committee on the Elimination of All Racial Discrimination (CERD), Economic and Social Council (ECOSOC) and the UN Permanent Forum on Indigenous Issues (UNPFII).” Dr Li Fung explained.

Finally, she reminded the participants to mark the 10^th December on International Human Rights Day and the 16 days of activisms against Gender Based Violence.

Recognition of Indigenous Peoples in Africa

There is a disconnect in the understanding of the term “indigenous” across countries within Africa, different countries have adopted different meanings to suit their specific needs as well as meet their constitutional standards and demands e.g., “minority and marginalized”, “vulnerable groups”, “less developed”, ‘special groups’ etc. The African Commission’s Working Group on Indigenous People[2] (ACWGIP) does not define ‘indigenous peoples’, instead it outlines the major characteristics as a benchmark in identifying indigenous peoples and communities in Africa. These characteristics relate to culture and way of life (which differ considerably from the dominant society), discrimination (they are regarded as “less developed”) and less advanced (compared to dominant groups).

A majority of African countries hold to the belief that every native citizen is indigenous based on the notion that every native citizen originated from the host country and eventually became citizen after independence e.g. Botswana. On the other hand, a few African countries have recognized the existence of indigenous peoples within their borders for example the Central Republic of Congo.

Globally, indigenous people’s rights are being improved gradually through a number of international human rights instruments including:

The challenge now falls on individual countries to ratify and implement the contents of the mentioned documents. For instance Kenya is yet to ratified ILO 169 and UNDRIP.

The history of insecure land tenure in Africa

CBI 5 had commissioned case studies in Kenya, Tanzania, and Botswana to analyse the status of indigenous peoples’ territorial rights. The findings of these studies were presented at the workshop. A thorough analysis indicated that indigenous peoples across Africa face a myriad of common challenges which stem from insecure land tenure. These case studies showed that:

Indigenous peoples started losing their land at the onset on colonization, lands and territories where lost to White farmers, ranchers and foresters. In Kenya, indigenous peoples presented their land woes during the 1932 Kenya Land Carter Commission hearings, pleading to be given land to settle. However, the commission, then, ruled that these minority communities were to be forcefully assimilated by their neighbours.

These land woes spilled over to the independent government and are still experienced to date. Recently, the National Lands Commission (NLC) in Kenya has been receiving Historical Land Injustices (HLI) claims from across the country. By the end of the exercise, over 900 claims had been submitted. NLC has three years to analyse, investigated and give recommendation to the relevant authorities to redress these HLI claims. This provides hope to indigenous communities in Kenya on finally attaining their land rights.

Strides in attaining recognition of indigenous peoples

Participants engaged in an intense discussion of the Case Studies findings, it emerged that indeed there are positive developments towards recognition of indigenous peoples. For instance, the Kenyan government now officially recognizes indigenous peoples through the provision of minority and marginalized within the Constitution of Kenya 2010 (COK 2010). In addition to the COK 2010 provisions, the government has been working with indigenous peoples’ to develop policies that are sensitive to the needs of indigenous peoples. For instance, Indigenous Livelihood Enhancement Partners (ILEPA) was engaged by the government in the creation of Free Prior and Informed Consent (FPIC) guidelines. The government has now adopted those guidelines to ensure that indigenous peoples are involved in all stages of development. Recently, the government through a report to International Convent on Civil and Political Rights (ICCPR) officially stated that indeed, there are indigenous peoples living in Kenya and specified that these peoples have rights that need to be protected.

What next for indigenous communities?

Participants discussing way forward

Capacity building on land policies: Indigenous peoples should work on securing and protecting their lands and territories. This could be done by first building their capacity on existing land policies and those being developed. These capacity building is to cut across all sphere of communities ensuring that everyone is informed and knows what is going on and what to do to advocate for and protect their land rights.

Documentation and mapping territories: There is a pressing need for indigenous peoples to document their territories and lands, map out migration routes in readiness to defending their claims on their ancestral lands. It came out clearly during the workshop’s discussions that at times indigenous peoples especially nomadic pastoralists have lost their lands when they move to one end of their territory, when they move back they find that parts of their lands have been grabbed having been labelled “unoccupied”. This necessitates the need to map out migration routes hence stabling a claim over these lands which may prevent the prevalent land grabbing cases.

The scarcity mentality: Indigenous peoples and their organisations in Africa are riddled with the scarcity mentality and fragmentation. During his presentation, Dr Kanyinke Sena who is the Director of the Indigenous Peoples of Africa Co-ordinating Committee (IPACC) elaborated on the scarcity mentality experienced by indigenous peoples and their organisations in Africa; they rarely support each other or present a united front when dealing with their common challenges. He noted that stronger organisations are often reluctant to share resources or empower weaker organisations feeling that this will limit their own resources. He went ahead to encourage the participants to come together through CBI 5 and rally their forces on issues common to all of them. He emphasized the power in unity dissuading indigenous peoples from selfish individualistic approach to advocating for secure territorial rights and overall sustainable development. Dr Sena gave an example of the just concluded Conference of the Parties (COP26), where over 6 billion were committed to support indigenous land rights as it was recognized that indigenous peoples play a critical role in conservation. These funds are available to all and therefore there is no need for indigenous peoples and their organisation to feel threatened by each other.

Dealing with instances of human rights violations: Indigenous peoples across Africa have had negative experiences in the hands of development projects that have been established within their lands and territories. These projects often forcefully evict indigenous peoples without adhering to FPIC. The participants agreed that is time for indigenous people to directly approach organizations that fund these projects and express their dissatisfaction with the said projects. This approach has been known to work, for instance, the Sengwer and the Water Rower project funded by the European Union (EU) case. The Sengwer community wrote to the EU explaining that EU’s funds were being used to propel violation of human rights in Embobut forest. The project was halted immediately waiting for a human rights centred resolution between the community and the government.

Core issues at the heart of the indigenous people movement:

Identity, land and wealth complexities: Wealth is viewed in terms of how much land one owns. Indigenous peoples across Africa have lost most of their ancestral lands therefore they are inherently poor. Land is a store of value, it is a capital good, where there is a market or a perceived market, buyers are available; without security tenure indigenous peoples’ lands remain vulnerable to grabbing or being sold off by greedy community members leaving the rest utterly deprived. Indigenous peoples should now work towards building land registries, map out their territories to stamp their claims on those territories which is vital in protecting land rights. Communities should make efforts to maps out where their territories lay. In the case of nomadic pastoralists, they need to map out their migration routes to protect them from land grabbers.

Safe guarding human rights: Human Rights Defenders (HRDs) should prioritize their personal security before embarking on fighting for other peoples’ rights. To ensure that they are secure at all times, HRDs are to be observant of what is happening around them e.g. careful of when their name, picture and location are being shared; by whom and to further which agenda. HRDs are to take note of such incidences and respond accordingly e.g., changing schedule and locations and lessening personal visibility.

Justus Wambayi, a representative from CADASTA foundation explaining about mapping

Documentation of territories – indigenous peoples should ensure that their lands and territories are clearly marked and mapped out. This gives them an added advantage when they are tasked to identify where their land boundaries are. In cases where indigenous peoples’ lands have been grabbed and the grabbers insist that the lands they have taken were unoccupied; proving maps is a way of stamping their ownership claims better. The CADASTA Foundation has been instrumental in helping indigenous peoples map out their territories e.g., the Ogiek community story map. The information is stored using technology making it secure and can be used when needed without complication; it can be used both online and offline.

Documenting history, culture and traditional knowledge: There is also a need to document indigenous history, language, culture and capture essential traditional knowledge to be shared and preserved to be passed through generations. Indigenous peoples can explore capturing data through audio, videos, graphics and other technological tools to tell stories e.g., podcasts to easy the process of documentation.

On safeguarding lands and territorial rights participants where reminded to always ensure that FPIC guidelines are adhered to. Additionally, indigenous peoples are to ensure that contract documents are signed, rubber stumped, dated, full names written, designation at the company added and the person representing the government should also sign and indicate their job title. These documents should capture all information in a language that the indigenous peoples understand.

Collective safety– indigenous peoples across Africa should lend a hand to each other to help in developing FPIC protocols and implementing them. It will be ideal if indigenous peoples could lend their voices to their counterparts in times of need. There should be unbreakable unity of purpose amongst the indigenous peoples’ circles. Indigenous peoples should speak one language, put emphasis on a common need, push and put pressure on governments until the situation changes.

Building allies and partnerships– in addition to uniting, indigenous peoples ought to build strong allies and partnerships with local, national, regional and international organisations that are involved in issues affecting indigenous peoples. These alliances and networks will be essential in influencing power at the local, national regional and the international level to develop laws and policies that are favourable and sensitive to indigenous peoples’ matters.

Recognize the existence of women, youths and people with disability and ensure they are present in all meeting to expose them and help them in advocating for their rights. Special groups should be allowed to document their plight and be given a chance to highlight what form of remedy they need. Additionally, there is a need to create a positive cultural environment for these special groups to advance their rights and attain sustainable development. Men should also be at the forefront in championing for the advancement of women rights. This could be achieved through putting the means of development in the hands of women not just ensuring that women have access to land just for the sake of it. Every leader within indigenous peoples’ circles should be cognisant in including special groups in governance allowing them to be in leadership spaces. It came out clearly during the discussions that special groups rarely participate in decision making arenas because of when, where and how these meetings happen.

How best can indigenous peoples protect themselves?

Proactive defence– indigenous peoples should put in place mechanisms to protect themselves against perpetrators of human rights violations. For instance, the development of Bio-Cultural Protocols (BCP) or FPIC protocols to guide how a community deals with prospective developers. These protocols indicate how that specific community wants to be treated. Intense civic education on rights, legal instrument to protection/ policy implementation should be conducted to bridge the knowledge gap that is present at the grassroots level; this will ensure that consent is devolved and those targeted groups are aware that they can give or withhold consent and are knowledgeable and equipped to do the same.
Retroactive defence-litigation/after violation has happened- seek justice in case a violation has already happened. Clear documentation of the violations, well captured evidence and clearly stated redress are necessary for successful litigation.
Strategic advocacy– creating working relationships, partnerships and ensuring that indigenous peoples have representatives strategically placed at the decision making tables to give inputs and ensure decisions made are sensitive to the needs of indigenous peoples.
Protect HRDs/ set aside resources for protection– there should be a fund set aside by indigenous peoples to be accessed by those in dare need. There are times when HRDs are faced with threats and they may need to disappear or lay low for a while or a community being evicted without prior notice therefore no preparations on alternative accommodation: the fund would be ideal in helping in such scenarios.
Conducting Monitoring Evaluation Accountability and Learning (MEAL) periodically.

Defining relevant terms

Total land loss

This is a situation where indigenous peoples have lost up to ¾% or more of their original lands and their overall land ownership is threatened.

Adam, a participant from Tanzania defining total land loss

Poverty: International definitions on poverty (absolute poverty which measures poverty in relation to amount of money available to meet basic needs[3]) are ignorant on local situations, for instance hunter-gatherers with a constant food supply are defined as poor while in essence they are not poor according to their own standards (someone is rich if they have food and shelter). When a Maasai does not have cattle he is regarded as poor according to the Maasai culture; regardless of how much money he has without cattle he is but a poor man.

Techniques to use when engaging with human rights mechanisms

Indigenous peoples in Africa need to be organized and strategic in bringing attention to the issues they battle with. Consolidating their voices at the Africa Commission and other international mechanisms and platforms will put them in a better place to advocate for land and territorial rights. Unity will enable indigenous peoples to develop targeted statements to specific agencies and make a point of following it up consistently.

There is a pressing need for indigenous peoples in Africa to deal with the fragmentation of their organizations across the continent. Fragmentation has been caused by the scarcity mentality. The scarcity mentality is unfounded as there are numerous opportunities and resources available only if indigenous peoples work together to access these resources.

When engaging ACHPR and other mechanisms, indigenous peoples are to do their due diligence by ensuring they have done enough research about the organization they intend to engage. Specific United Nations agencies handle different matter. Writing to the relevant UN agency guarantees that issues are swiftly handle.

It is essential that indigenous peoples exhaust the local and national human rights mechanism before approaching regional mechanisms. When indigenous peoples engage human rights agencies in a systematic order, they stand a chance in gaining allies in their battle to attain territorial and land rights.

A highlight of issues and the spaces informing CBI 5 frame of work

Building solidarity, coordination and uniting indigenous peoples in Africa on land and territorial rights.
Harnessing traditional knowledge to benefit members through documentation and looking for ways their knowledge could be monetized to benefit them. They could identify business opportunities that they can engage in to create income and empower themselves.
Have established mechanisms of dealing with research institutions/universities and other development parties that may seek to access land and natural resources within indigenous peoples’ lands and territories. This could be through developing BCPs/FPIC protocols to guide association with developers.
Utilize the present networks/collaborate with organizations with interest in indigenous peoples’ issues/ pull indigenous peoples from West African countries as they are currently not part of CBI 5. Work on expanding the network by inviting organisations that are not members. It is also important to involve organisations that may not be indigenous peoples’ based but are interested in working with indigenous peoples or special groups within these communities for instance organisations interested in women empowerment, children right, girl child empowerment, people living with disability, youth, elderly etc.
CBI 5 should engage in strengthening the capacity of indigenous peoples and their organization on African Commission and other human rights mechanisms. Engagements should start at the country level with national human rights commissions/land coalitions; ensuring that these commissions/coalitions have indigenous peoples’ issues within their policies. This will ensure that there is no duplication of work.
CBI 5 to embark on climate change adaptation and mitigation. These could be done through the utilization of indigenous science held by different indigenous peoples across the continent. Additionally, there is a need to ensure intergenerational transfer of traditional knowledge to prevent losing gradually with the demise of elders who hold this information.

Conclusion

It is apparent that indigenous peoples across Africa battle similar challenges, top on the list being insecure territorial rights. The indigenous peoples and their organisation, should embrace unity in fighting for their territorial rights as a united group.

In Africa most land is owned by governments and hence their reluctance in recognizing customary ownership as legal ownership. In the few instances where customary right have been acknowledged as property rights and customary leaders put in charge, new challenges arise for instance; the elite may take complete control over all the lands e.g., in Malawi and Zimbabwe chiefs have complete control over lands, they own it and may lease it out to community members as need arise.

The newly developed ILC strategy is set to serve for the next 9 years with a prime focus to shifting power to indigenous peoples and local communities that live on and from land.

“The new strategy offers more opportunities for CBI5 because it is placing land rights at the centre which are the major issue faced by CBI 5 members. This strategy is placing peoples’ organisations at the forefront; CBI 5 member are peoples’ organization giving CBI 5 an edge over the other CBIs. CBI 5 has a large space to engage in e.g. Africa Commission, and should therefore expand its network and ensure inclusivity of all indigenous peoples across Africa. CBI 5 should now focus on unifying indigenous peoples across Africa ascertaining that they speak with one voice”. Concluded Kabwimana.

Participants during the meeting

[1] A brief providing detailed information about the LAPSSET project and what the government intents to achieve through its completion. https://s3-eu-west-1.amazonaws.com/s3.sourceafrica.net/documents/118442/LAPSSET-Project-Report-July-2016-1.pdf

[2] The International Labour Organization and the African Commission on Human and Peoples’ Rights on the constitutional and legislative protection of the rights of indigenous peoples.

Harnessing traditional knowledge to benefit members through documentation and looking for ways their knowledge could be monetized to benefit them. They could identify business opportunities that they can engage in to create income and empower themselves.
Have established mechanisms of dealing with research institutions/universities and other development parties that may seek to access land and natural resources within indigenous peoples’ lands and territories. This could be through developing BCPs/FPIC protocols to guide association with developers.
Utilize the present networks/collaborate with organizations with interest in indigenous peoples’ issues/ pull indigenous peoples from West African countries as they are currently not part of CBI 5. Work on expanding the network by inviting organisations that are not members. It is also important to involve organisations that may not be indigenous peoples’ based but are interested in working with indigenous peoples or special groups within these communities for instance organisations interested in women empowerment, children right, girl child empowerment, people living with disability, youth, elderly etc.
CBI 5 should engage in strengthening the capacity of indigenous peoples and their organization on African Commission and other human rights mechanisms. Engagements should start at the country level with national human rights commissions/land coalitions; ensuring that these commissions/coalitions have indigenous peoples’ issues within their policies. This will ensure that there is no duplication of work.
CBI 5 to embark on climate change adaptation and mitigation. These could be done through the utilization of indigenous science held by different indigenous peoples across the continent. Additionally, there is a need to ensure intergenerational transfer of traditional knowledge to prevent losing gradually with the demise of elders who hold this information.

Conclusion

The newly developed ILC strategy is set to serve for the next 9 years with a prime focus to shifting power to indigenous peoples and local communities that live on and from land.

Participants during the meeting

SECURING INDIGENOUS PEOPLES LAND AND TERRITORIAL RIGHTS IN AFRICA

Leave Your Comment Cancel reply