On Friday, May 26, the African Court on Human and Peoples’ Rights (African Court) delivered its long-awaited judgement on the expulsion of the Ogiek people, a Kenyan hunter-gatherer community, from their ancestral lands in the Mau forest. As the African Commission on Human and Peoples’ Rights (African Commission) did not manage to settle the conflict, it was transferred to the African Court in 2012. The relationship between the African Court and the African Commission is complementary. The African Court’s Protocol does not automatically allow for individual complaints (only eight states signed the Special Declaration rendering individual complaints possible) and its judgements are binding. It was the first indigenous rights case before the Court and it had raised hope with regard to the clarification and operationalization of the Charter’s “peoples’ rights”.
The Court widely followed the African Commission’s application and found that the eviction of the Ogiek without consultation amounted to several rights violations: the right to non-discrimination (Art. 2), culture (Art. 17(2) and (3)), religion (Art. 8), property (Art. 14), natural resources (Art. 21) and development (Art. 22). The respondent’s argument that the eviction was justified by the need to protect the Mau forest was dismissed by the Court. It, however, found no violation of the right to life, as the applicants failed to show that the physical existence of the community was being threatened by the eviction.
This article highlights some of the decision’s most interesting features: (1) the characteristics of indigenousness, (2) the right to land, (3) the right to food as derived from the right to natural resources, and (4) the state’s duty to obtain the free, prior and informed consent (FPIC) of communities. It will be shown how the new judgement relates to the African Commission’s jurisprudence (particularly the well-known 2001 Ogoni and 2009 Endorois decision), as well as to international law.
Indigenousness in Africa
In sub-Saharan Africa, the concept of indigenousness is more controversial than in other regions and the distinction between minorities, indigenous peoples and “peoples” is still not clear cut. The status of a community is relevant insofar as it can allow for the interpretation of the African Charter in light of international indigenous or minority rights and jurisprudence.
In the Ogiek decision, the African Court, instead of applying the characteristics of the AU Working Group of Indigenous Populations/Communities, used the criteria elaborated by the Erica-Irene Daes, the former Chairperson of the UN of the Sub-Commission on Prevention of Discrimination and Protection of Minorities:
- A timely dimension with regard to the occupation and use of the land
- Voluntary perpetuation of cultural distinctiveness
- Self-identification and recognition by other groups or by state authorities
- An experience of subjugation, marginalisation, dispossession, exclusion or discrimination (para 107)
The “voluntary perpetuation of cultural distinctiveness”, as well as the recognition by other groups or the state are new features. With regard to the cultural distinctiveness, it is questionable, whether this element is not already covered by the principle of self-identification. Moreover, it seems to convey an essentialist understanding of culture, which does not sufficiently acknowledge that culture is constantly changing through endogenous and exogenous influences.
While the identification as indigenous community by other communities may be a reasonable indicator for the status of a group, it can be quite problematic to give much weight to the point of view of state institutions in view of the non-recognition of indigenous rights in the majority of sub-Saharan African states. Regrettably, the judgement does not provide any illumination on the underlying rationale.
The right to land
While the indigenous right to land is recognised by ILO Convention 169 and the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP), the African Charter does not explicitly contain a right to land. In the African context, the right to land has been derived in three different ways: from the right to property (Art. 14), the right to practice religion (Art. 8) and the right to culture (Art. 17) of the African Charter.
In the Endorois case, the African Commission found an infringement of the indigenous community’s right to access religious sites, which constituted a violation of the right to practice religion (Art. 8). Religious communities have the right to “worship or assemble in connection with a religion or belief, and to establish and maintain places for these purposes” (para 165). The African Court followed the African Commission’s jurisprudence emphasizing that the “practice and profession of religion are usually inextricably linked with land and the environment“(para 164).
Reading the right to land as an aspect of the right to culture is quite common in the context of minority rights and the approach has also been applied to indigenous groups. The African Commission emphasized the intrinsic link between culture and land. Consequently, it found that the respondent’s claim that the protection of the environment constituted a public interest exception under Art. 27(2) not convincing in the Endorois case.
However, subsuming land under the right to culture and the right to religion bears dangers: it allows for easy contestations by states that argue the community has embraced another religion or culture. Moreover, religious and cultural sites can be interpreted in a geographically narrow way.
Interpreting the communal right to land as a property right could thus be a promising alternative. It is driven by the principle of non-discrimination and challenges the original, Western understanding of property. Just like the Inter-American Court of Human Rights, the African Commission takes the view that the right to property also includes “rights guaranteed by traditional custom and law to access to, and use of, land and other natural resources held under communal ownership”. It is thus not very surprising that the African Court also interpreted Art. 14 in a broad way and in light of the UNDRIP. As the expulsion happened against the Ogieks’ will, without prior consultation and without sufficient public interest, the Kenyan government violated Art. 14. Consequently, the African Court’s position is in line with the approach of the African Commission, the Inter-American Court, as well as the ILO Convention 169 and the UNDRIP.
The right to food
The African Court found a violation of the right to natural resources, as the Ogiek were deprived of their traditional food resources produced by their ancestral land. Unlike the American Convention on Human Rights, the African Charter recognises the right to natural resources as a stand-alone right. The African Commission takes the view that natural resources vest in indigenous peoples inhabiting the land.
Without stating so explicitly, the Court seems to derive the right to food from the right to natural resources. This is a very interesting approach as the right to food is mainly discussed as an aspect of the right to life. This was also the approach taken in the Ogoni decision.
Reading the right to food as a derivate of the right to natural resources holds a crucial advantage: the Ogiek case shows that the causality between the eviction of a group and a violation of their right to life can be difficult to establish. The threshold for finding a violation of the right to food as an aspect of the right to natural resources tends to be lower and renders it easier to claim for local communities.
Free, prior and informed consent
One of the most controversial issues in the field of indigenous and minority rights is the right to FPIC. It is not explicitly mentioned in the African Charter, but has been increasingly discussed by the African Commission and other (sub)regional organizations.
In the Ogoni case, the African Commission derived from the right to a healthy environment (Art. 24) the obligation to provide information and meaningful opportunities to be heard and to participate. According to the Endorois decision, the right to development (Art. 22) requires the FPIC of indigenous communities. The African Court interpreted the right to development in light of UNDRIP and found that the Kenyan state had failed to “effectively consult” with the Ogiek (para 210). Besides that, “prior consultations” are required by the right to land under Art. 14 (para 131). In this regard, it missed an opportunity to clarify and extend the African Commission’s position on FPIC.
Nevertheless, the judgement strongly indicates that the African Union organs do not understand the right to self-determination as the only legal source of FPIC. As the right to self-determination is still widely seen as a governmental and an indigenous right, this approach renders it easier to argue for the applicability of FPIC to non-indigenous groups
The judgement of the African Court has been much celebrated amongst indigenous activists. It is a success insofar as it shows that the rights of marginalised communities are increasingly on the African human rights system’s plate and that the African Charter has a particularly great potential to accommodate such claims. A good example for this is the right to food under the right to natural resources, but also the jurisprudence on the right to land. Moreover, the Court seems to assume a broad scope of its collective rights, not limiting them to indigenous groups.
However, some questions remain open: the line between indigenous communities, minorities and peoples has still not been drawn. This partly reflects the intentions of the authors of the African Charter, simultaneously it can be a practical obstacle for many groups. Additionally, the scope and implications of FPIC remain unexplored. While it may be reasonable to detach it from the right to self-determination, the concept remains still remains blurry. In view of the limited resources of the Court, this is not too surprising. Ideally, the African Commission by issuing more General Recommendations or the African Court’s advisory opinion procedure could mitigate some of these shortcomings. But also academia should assume responsibility and dedicate more resources to the exploration of the African human rights system.