Can Business Rights Alleviate Group-Based Inequality in Sub-Saharan Africa? Understanding the Limits to Reform

Abstract

Africa’s indigenous minorities face unique constraints, particularly in terms of engaging in even the most basic business activities. They typically lack business rights, but, even where such rights have been extended, they have had scant impact on group poverty. This paper argues that the failure of business rights to meaningfully transform the livelihoods of marginalised minority groups stems from elite capture of resources, dependency on external validation, and a contradiction between a collective problem (group poverty) and an individualist solution (business rights). African states could alter conditions through active pursuit of affirmative action policies, but lack socio-economic and political incentives.

1. Introduction

Despite the growth of business in Africa and celebratory assertions of an ‘Africa Rising’ in the past two decades, certain communities on the continent have been systematically excluded from pursuing or benefitting from opportunities in business and entrepreneurship, even on a small scale. These groups, which can be defined in ethnic or racial terms, have historically been denied, explicitly or implicitly, the ability to alleviate their poverty through access to entrepreneurship and, more formally, private sector development opportunities. Recent changes in the legal and regulatory environment in many countries have nominally expanded the rights and opportunities to engage in business activities, but achieving the outcome of sustainable enterprise beyond subsistence remains a formidable challenge. Although beginning about 2000 Africa became self-consciously ‘open for business’ and certain sections of black African business and capital have thrived, severe disadvantages persist that find many existing small businesspeople and potential entrepreneurs alike facing protracted competitive challenges that limit or preclude altogether their commercial activity. Defined in group terms, rather than in terms of the rights and achievements of individuals, many African communities can be considered poor and lacking full business rights: their very economic and business marginalisation is inextricably linked to their ethnic identity.

Some groups are far more excluded than others. The lack of empowerment and business rights is especially acute among the continent’s smallest, poorest, and most marginalised ‘indigenous peoples’. A focal point of the global Indigenous Rights movement, these groups consist mainly of nomadic and semi-nomadic pastoralists, and hunter-gatherer communities.¹ Indigenous peoples disproportionately suffer ‘discrimination, domination and marginalisation [that] violates their human rights as peoples/communities, threatens the continuation of their cultures and ways of life and prevents them from being able to genuinely participate in deciding on their own future and forms of development’ (African Commission on Human and People’s Rights [ACHPR] and International Work Group for Indigenous Affairs [IWGIA], 2005, p. 89; United Nations General Assembly [UNGA], 2007). Indigenous communities survive by traditional means, living oftentimes atop lands and resources increasingly coveted by dominant groups, including more powerful economic and state actors who have been ‘“no less cruel towards their indigenous populations than the colonialists”’ (Salih as cited in ACHPR & IWGIA 2005, p. 90). As traditional lands, livelihoods and lifestyles have come under threat, indigenous peoples are thrust into and dependent on the modern economy, yet they remain confined largely to its margins.

2. Legal empowerment of the poor and business rights

UNDP’s Legal Empowerment of the Poor (LEP) initiative, specifically in its fourth and last pillar on business rights, was advanced, in part, to address these disparities (Bruce et al., 2007, p. 29). The LEP agenda seeks to address social exclusion and poverty, thereby promoting inclusive development and conflict prevention (Commission on Legal Empowerment of the Poor and United Nations Development Programme, 2008). At its core, LEP is ‘a process of systematic change through which the poor and excluded become able to use the law, the legal system, and legal services to protect and advance their rights and interests as citizens’ (CLEP & UNDP, 2008, p. 3). For indigenous groups, then, gaining ‘legal empowerment’ entitles them access to the same rights as other citizens.

Business rights is the least developed of the four sets of rights, or ‘pillars’, identified by the independent Commission on Legal Empowerment of the Poor (CLEP). The concept of ‘business rights’ itself is embedded in a lengthy set of objectives including ‘reducing regulatory burdens; removing unnecessary barriers to formal markets and institutions; increasing opportunities for business linkages; increasing benefits and protections for all working in the informal sector; strengthening the organisation and representation of the informal entrepreneurs, and providing equal access of working poor women and men to all of the above’ (CLEP & UNDP, 2008, p. 197). Business rights are comprised of three prescribed sequential levels of reform: first, basic commercial rights including ‘the right to work, the right to vend; right to a work space (including public land and private residences) and to related basic infrastructure (shelter, electricity, water, sanitation)’; intermediary commercial rights, including the ‘right to government incentives and support (including procurement, tax holidays, export licensing, export promotion), and right to public infrastructure (transport and communication)’; and finally, advanced commercial rights, which incorporate ‘entity shielding rules, limited liability and capital lock-in rights, mechanisms for perpetual succession of the firm and transferring its value, mechanisms to allow the use of standardised accounting, mechanisms to establish firm, manager and employee liability rights, protect minority shareholders and default rules’ (Commission on Legal Empowerment of the Poor and United Nations Development Programme, 2008, p. 201).

The additional features embedded in intermediate and advanced business rights are oriented toward even greater formalisation. The bulk of the business rights framework can be characterised as essentially legal and regulatory in nature – in fact, the World Bank’s ‘Doing Business’² reforms offer a sort of natural experiment in the application of intermediate and advanced business rights – and intrinsically individualistic and liberal in principle.³ (Advanced commercial rights, which apply to more developed business entities, have the least relevance for the African poor, especially indigenous groups.)

The ultimate objective of the business rights pillar is to extend to the poor a broad range of business opportunities generally unavailable to them. As noted by CLEP and UNDP (2008), ‘Economic policies and commercial law, which in the great majority of poor countries are most often geared to large enterprises, have to change to become inclusive of the vast numbers of business owners at the base of the economic pyramid’ (p. 71). The latter are mostly micro- or small-scale enterprises (MSEs), and are typically concentrated in the informal sector. Within the CLEP’s business rights schema, these MSEs comprise the ‘users’ or intended beneficiaries of basic business rights – that is, ‘the right to vend, have a workspace and access to necessary infrastructure’ (Singh, 2009, p. 150). The business rights agenda holds that the poor and marginalised should enjoy legal access to business, and these business rights reforms in and of themselves are presumed sufficient to have a salutary impact on the problems of poverty and exclusion.

Especially for indigenous minorities, however, the articulation of business rights in the LEP literature tends to be vague and non-actionable. Indeed, discussions about business rights in the literature and among policy-makers tend to consider ‘the poor’ in a rather holistic way, without regard for group-based inequalities, or the covariation between poverty and ethnicity in the African context. Thus, the LEP agenda tends, in practice, to treat ethnicity as epiphenomenal. By this logic, all the poor, regardless of identity, can be empowered – and, ipso facto, reduce their poverty – through legal reforms and the extension of business rights. Thus, the notion of business rights generally is not preoccupied with equality of outcome; it concentrates instead on equality of opportunity. However, the right to do something is of little practical worth without the ability to do such a thing (see Golub, 2012, p. 38).

In fact, despite the emergence of a robust worldwide indigenous rights movement and the issuance of the CLEP and UNDP (2008) report Making the Law Work for Everyone nearly a decade ago, the business rights of indigenous communities have seen little visible advancement and the agenda has scarcely taken root (evidenced, in part, by the paucity of both scholarly and policy literature on the subject). Ironically, those in the worst position prior to business rights reforms are the least able to take advantage of them. What explains the failure of an ambitious business rights agenda to yield tangible benefits for the poor, particularly among indigenous minority groups?

This paper makes three principal arguments. First, those that dominate the political economy, including settlers, multinational corporations (MNCs), and dominant ethnicities, are inclined to resist the real or perceived advances by indigenous groups; such changes to the status quo risk diminishing the latter’s hegemony in a context frequently regarded as zero sum. Hence, dominant actors have both incentive and capacity to capture the resources historically governed by or intended for use by indigenous minorities.

Second, the impetus for legal empowerment of the poor is largely exogenous, but such external validation of indigenous minorities alone is inadequate – and perhaps even counter-productive. Development partners and international non-governmental organisations (NGOs), particularly those with a human rights orientation, are the principal champions of indigenous rights, although not necessarily business rights. States may be directly, through wilful disregard and even in defiance of international norms, or indirectly, through neglect, resistant to external pressures to address the manifold needs of poor indigenous communities. Donors and development partners, as numerous studies have noted, suffer short attention spans and an occasional tolerance for ‘partial reforms’ (Rakner, van de Walle, & Mulaisho, 2001). Partly as a result of these misaligned interests and objectives, LEP inclines less toward ‘empowerment’, and more toward human rights issues, such as group recognition, welfarist policies, and so on. Where more bona fide business rights are supported, they tend ultimately to be ad hoc or the preserve of small sub-populations of ‘the poor’.

Third, and most fundamentally, this paper contends that proposing business rights as an antidote to minorities’ marginalisation is plagued by a fatal contradiction: the LEP’s broad agenda (like the indigenous rights movement) necessarily sees the poor, including indigenous minorities, as a group, and thereby in need of collective rights; LEP’s focus on the group, however, is incompatible with the individualism intrinsic to business and capitalism. This confusion between collective rights and individual also confounds potential solutions to inequality, inasmuch as the latter are associated with liberal notions of equality of opportunity, whereas the former imply that community empowerment occurs through a focus on equality of outcomes.

Drawing principally on studies of the economic activities (and lack thereof) of indigenous minorities, this paper takes a novel approach by bringing into dialogue the LEP initiatives specific to the business rights pillar, and the unique constraints faced by indigenous minorities in achieving the objectives of LEP. In so doing, the paper simultaneously tries to impose some order on this ‘inchoate array of initiatives’ that characterises LEP (Golub, 2012, p. 40), while also demonstrating why the various initiatives related to business rights have failed to cohere among Africa’s poorest communities. Those communities are taken for granted in the business rights framework and have failed to benefit from the recent enthusiasm for Africa’s improved business climate in both the scholarly literature and popular media, and the much-heralded private sector development on the continent. In fact, despite the privileged position business rights enjoys as the fourth pillar of LEP, the nascent business roles, and rights, of the most marginalised indigenous groups receive scant attention, however, except largely in relation to subsistence activities.

‘Empowerment’ can be socially, politically, and economically advantageous; it can also be considered morally just (UNDP & CLEP). Yet governments in sub-Saharan Africa have a poor record in meeting the needs of indigenous minority populations. Moreover, whereas the LEP/business rights literature highlights the poverty and marginalisation of groups, the solutions offered are both inadequate and naïve. Although the aim of this paper is not to advance policy, the findings nonetheless have clear policy implications inasmuch as they elucidate the shortcomings of the Legal Empowerment of the Poor/Business Rights (LEP/BR) agenda and the challenge of moving from a morally sound ideal – minority rights and equality – to a practicable idea – empowerment and poverty reduction through business. The findings would appear to apply widely across sub-Saharan Africa.

The remainder of the paper proceeds as follows. It begins with a brief review of the marginalisation suffered by indigenous minorities in sub-Saharan Africa. Their historical challenges in fact are existential, and extend well beyond a lack of business rights. The discussion highlights the experience of four groups, Batwa, Basarwa, Baka and Maasai, representing a cross-section of forest peoples, hunter-gatherers, and nomadic pastoralists across a range of African regions. These examples are not comprehensive case studies, but are intended instead to offer illustrations of the challenges faced by genuinely marginal groups and the difficulty of promulgating even basic business rights in such communities. The paper then turns to an analysis of the three factors that explain the intrinsic shortcomings of LEP as a catalyst for actual empowerment of indigenous minorities using business rights. The conclusion revisits the limits to reform and offers some observations on the demand for business rights in such communities.

3. Business rights and indigenous ethnic minorities

3.1. Indigenous group marginalisation

There are manifold populations that might fall into the category of national ethnic minorities, or ‘indigenous peoples’ as defined by ACHPR and IWGIA (2005), however, the most marginalised are the forest peoples, nomadic groups, and traditional hunter-gatherer communities.⁴ Scholars as well as a host of international organisations have highlighted the plight of indigenous peoples, including their poverty and social and political marginalisation. Indigenous peoples suffer high levels of land alienation and a range of restrictions on their livelihoods (ACHPR & IWGIA, 2005). Indeed, as Ronald Niezen (2003) notes,

Their territories are imposed upon by extractive industries; their beliefs and rituals imposed upon by those who would convert them; and their independence is imposed upon by states striving for social and political control. They are those people whose position in the modern world is least tenable. (p. 5, quoted in Igoe, 2006, p. 403)

Emanating from indigenous community activists and their international advocates, a global movement emerged focusing on the legal rights and recognition of these communities, particularly around preserving cultural integrity and traditional lands (ACPHR & IWGIA, 2005; Beswick, 2011; Igoe, 2006; United Nations Regional Information Centre for Western Europe [UNRIC], n.d.).

As noted, indigenous communities are found all over the globe, though the concept was not applied to Africa until the 1990s (Igoe, 2006, p. 402; Niezen, 2003). Precisely who qualifies as ‘indigenous’ and who does not is sometimes contested. I refrain from engaging that debate in this paper, except to note that the number of communities in Africa is potentially quite large. Although indigeneity has an instrumental dimension (Hodgson, 2011), most observers would agree that the traditional hunter-gatherer communities of the Batwa, Basarwa and Baka, and the nomadic pastoralist Maasai fit the IWIGA definition (see note 1). They represent a range of geographies – southern, western, central, and eastern Africa, respectively – but the issues of marginalisation and a general absence of business rights unites all of the cases. In addition to regional variation, their experiences include some attempts at empowerment, albeit in a narrow band. These range, modestly, along a decidedly unenviable continuum, from deliberate non-empowerment in the case of Rwanda’s Batwa, to the duplicitous treatment of the Basarwa, to the mixed results of the Baka and Maasai. Admittedly, even the relatively more positive case has only a negligible impact on community-level ‘empowerment’. However, the limited variation is less the result of selection bias than a demonstration of the consistently dire circumstances of indigenous populations across sub-Saharan Africa, and of the widespread absence of group-level empowerment through business rights; the cases highlighted here merely reflect these grim realities. Unsurprisingly, such communities are less able to engage in modern business and commerce, and are on the whole far poorer than other groups that have greater representation in national, political and economic life.

3.2. Rwanda’s Batwa: ‘nowhere to start’

The Batwa are a hunter-gatherer community residing traditionally in Rwanda and the Great Lakes region. Facing extreme poverty and marginalisation and numbering only about 30,000 people in Rwanda (and some 10,000 and 135,000 in Uganda and Democratic Republic of Congo, respectively) (Bamuturaki, 2010), the Batwa are ‘discriminated against with relative impunity’ (Beswick, 2011, p. 492). They are regarded by their neighbours as ‘filthy and uneducated’ (Thomson as cited in Beswick, 2011, p. 494), and suffer a similar ‘despised status’ in Uganda (Bamuturaki, 2010, p. 41). As a population, Batwa are illiterate, drop out of school at disproportionate rates, ‘and are underrepresented in decision-making bodies’ (Beswick, 2011, p. 501). Even at the personal level, there is scant evidence that individual Batwa have thrived in Rwanda, although there are some examples in Uganda (Bamuturaki, 2010).

For decades, the Batwa have been systematically forced out of traditional subsistence activities and land use, both for the creation of national park areas and conversion of forest to farmland (Beswick, 2011, p. 494). Concomitantly, their traditional livelihoods as hunter-gatherers and potters have been devalued, and are not viewed as ‘legitimate and equally valid as those of agriculturalists and pastoralists’ (Beswick, 2011, p. 492). The Batwa now find themselves land poor, and often totally landless, particularly in the context of Rwanda’s population density and competition (Beswick, 2011, p. 494). Lamenting the loss of identity, status in the community, security, and freedom, one Rwandan Batwa leader noted that ‘The displacement has forced us to live as squatters and we are not free. Our culture has been destroyed. We have been pushed into the cash economy with nowhere to start’ ([Charles] Uwiragiye as cited in Bamuturaki, 2010, p. 42). As if to underscore their invisibility in business or modern land use (as well as politically), Batwa activities ‘rarely leave signs of investment’ (Beswick, 2011, p. 493), almost half now support themselves through begging (Thomson as cited in Beswick, 2011, p. 495).

The solution for some Batwa, is ‘to be recognised and compensated by the government’ (Bamuturaki, 2010, p. 42), however, the Batwa of Rwanda are particularly unlikely to be recipients of any kind of targeted programme that engages in positive-discrimination, such as affirmative action: Batwa-specific empowerment conflicts with Rwanda’s post-1994 policies to erase ethnic identity. In other words, the state, quite deliberately, has done nothing to empower the Batwa, ostensibly because of the post-genocide prohibition against ‘divisionism’ and any official recognition of ethnic identity (Beswick, 2011). (In neighbouring Uganda, at least, they have been allowed to maintain an ethnic organisation, the United Organization for Batwa Development in Uganda [UOBDU], which promotes Batwa rights, however limited, in the country [Bamuturaki, 2010, p. 39].)⁵ In April 2016, speaking before the UN Committee on the Elimination of Racial Discrimination, Rwanda’s representative Francois Ngarambe explicitly ruled out group recognition, let alone affirmative action, noting that Rwanda had ‘resolved to never again return to the politics of divisionism’ (Mugisha, 2016). Instead, the policy of Rwanda’s government is assimilation, but the preoccupation with the Hutu-Tutsi dichotomy means that the Batwa are even further marginalised and thus likely to remain ‘a largely invisible minority’ (Hintjens as cited in Beswick, 2011).

Thus, the Batwa’s experience places them at the farthest end of the LEP continuum, and theirs is hardly a propitious environment for even basic business rights. As a group, they are unable to obtain the most fundamental prerequisite for empowerment of any kind: recognition.

3.3. The Basarwa: legal rights without empowerment

Botswana’s Basarwa people, also known as the San, face similar pressures on their lands and livelihoods, but a government that is more directly hostile to indigenous interests than Rwanda’s. Yet, uncommonly among indigenous communities, the Basarwa were able to use the law to challenge their alienation at the hands of the Botswana government. Instead of seeking to use formal legal institutions to facilitate business rights and advance their position in the modern economy, however, the Basarwa sued to restore the status quo ante: traditional access to land and their nomadic practices.

The Basarwa number only about 50,000–60,000, representing barely 3 per cent of Botswana’s population. Long exploited and manipulated by various entrenched elite ‘power blocs’ among the majority Batswana, the Basarwa have experienced systemic poverty and marginalisation (Lucas, 2008, p. 124). For millennia, the Basarwa inhabited the area now covered by the Central Kalahari Game Reserve (CKGR), but since the mid-1990s they have been progressively displaced by the Botswana government, under the pretext of the ecological conservation of the reserve (Fihlani, 2014). The Basarwa were relocated to New Xade, a village about 12 hours from their original territory. In CKGR, their main livelihood had been hunting and gathering. Relocation to the peri-urban settlement of New Xade meant that the Basarwa people had no vital skills for survival.

The Basarwa’s plight came to widespread international attention through a 2006 case in Botswana’s High Court, Roy Sesana vs. Attorney General, which arose out of the maltreatment of the Basarwa by the majority Batswana-dominated government. At the heart of the legal claim was the infringement on the Basarwa’s traditional use of land and resources in the CKGR. In fact, the government zealously obstructed the Basarwa land claims, ostensibly in the interest of promoting tourism and conservation in the CKGR although, according to human rights organisations, the government sought as well to exploit diamond deposits discovered in the region (Fihlani, 2014; http://www.survivalinternational.org/tribes/bushmen).

The Sesana case was spearheaded and brought to international attention by the international indigenous rights NGO Survival International. Somewhat astonishingly, the action resulted in a December 2006 court ruling in favour of the Basarwa, establishing indigenous rights to development. In the landmark decision, the 242 claimants won the right to live on ancestral lands and the right to enjoy a traditional way of life. Yet the favourable legal outcome did not necessarily herald a shift to a Basarwa ‘empowerment’ agenda on the part of majority Tswana state and society. In fact, despite winning in court, presumptive legal protections, and anti-discrimination laws, the overall treatment of the Basarwa community has improved little. Years after Sesana, the US State Department noted that in 2013

the Basarwa remained marginalised economically and politically and generally did not have access to their traditional land. The Basarwa continued to be geographically isolated, had limited access to education, lacked adequate political representation, and were not fully aware of their civil rights. (2013, p. 20)

The legal victory affirming their access to their traditional homeland in the CKGR was substantially ignored by the government and the community suffered continued alienation (Fihlani, 2014; US State Department, 2013).

A tragic irony of the Basarwa’s ‘compensation’ for their lost lands, and pyrrhic legal victory was a political effort to bestow a set of opportunities that essentially approximate basic business rights. Indeed, once unmoored from their traditional existence, the Basarwa were then ‘free’ to do business – albeit outside the borders of CKGR. Using its Economic Promotion Fund, government initiatives, such as the Remote Area Development Program (RADP), have been emplaced to support livestock and agricultural schemes, small industrial projects, and training in animal husbandry, as well as social welfare needs – potable water, roads and a maternity ward (Qare, 2004). Yet these initiatives to encourage settled agriculture and other ‘business’ development have been unsuccessful, and there is an overall lack of economic activity in the New Xade settlement.

In fact, with scarce economic means, their poverty has deepened (Fihlani, 2014). In New Xade, the Basarwa have had difficulty adjusting to the agro-pastoral life of cattle breeding, animal husbandry and farming, as well as brick building and basket weaving. This inability to adapt to a new way of life has thwarted economic productivity and tarnished their (self-)image as a hardworking, resilient people (Qare, 2004). This in turn has contributed to hopelessness and a vicious cycle of poverty remains endemic in New Xade (Meldrum, 2004). Overall, the Basarwa are the poorest community in middle-income Botswana, suffering from high rates of unemployment, illiteracy, alcoholism and shortened lifespans. Many of the Basarwa have also become beggars to the region’s many tourists.

With the return to the status quo ante foreclosed, communities such as the Basarwa face even greater marginalisation. To engage the modern economy as equal participants and beneficiaries requires an active form of legal empowerment – far beyond the passive bestowal of some amorphous ‘right to vend’ – that not only grants business rights, but facilitates the emergence of business, community-wide. Yet a full-throated affirmative action programme that guarantees business contracts, training, and financing, in order to achieve equal outcomes on behalf of the Basarwa, would be incongruous in Botswana. Such would depend on the largesse of the same majority Tswana government that has marginalised and dispossessed the Basarwa minority in the first place. That government has proved to be unreceptive to the indigenous and their international interlocutors in Survival International and other human rights NGOs. In addition, even if such affirmative action-style policies were to be implemented, they would face the additional challenge of requiring the Basarwa themselves to embrace a form of liberal economic modernity that they have explicitly sought to reject. Indeed, the CKGR case, and its aftermath, demonstrate a larger point about people actually wanting empowerment in the form of business rights; such demand simply cannot be assumed. Efforts to shoehorn unenthusiastic communities into a business rights agenda can itself yield disastrous results. This is a subject to which I return in the conclusion.

3.4. Business rights and elite capture among the Baka

The experience of the Baka, an indigenous community in eastern Cameroon, reveals a somewhat less adversarial state, than in Rwanda or Botswana, but a similar outcome: a minority group’s constrained ability to avail itself of the presumed opportunities that accompany business rights. Like the Batwa, the Baka are historically hunter-gatherers and referred to, somewhat pejoratively, as Pygmies. The Baka, who number about 30,000 (Bahuchet, 2006, p. 10), were the original inhabitants of what is now Cameroon’s Dja Faunal Reserve area, where they accumulated vast knowledge on the use of the natural resources in the forest for cultural and economic purposes (Shikongo, 2005, p. 37). The expulsion of the Baka actually began in 1950, with the creation of the reserve under French colonial rule (United Nations Environment Program). In the post-colonial period, which has seen expansion of conservation sites, national parks, and protected lands throughout the sub-region, the Baka have been progressively removed from the forest areas (Mvondo, 2006, p. 681). Between 1996 and 2003, for example, some 7800 Baka people, who depended on the reserve for more than half of their livelihoods, were forcefully displaced (Awuh, 2016, p. 55). The consequence of these state- and internationally-led conservation efforts has been a loss of the economic livelihood for the Baka, without suitable compensation (Mvondo, 2006, p. 681). Indeed, the relegation of Baka to sedentary lifestyles in nearby settlements alongside more dominant Bantu ethnic groups has depleted their economic sustenance and marginalised them even further.

Cameroon’s system of Community Forests (CFs) is an example of an intervention designed to compensate for such alienation and rural poverty among the Baka and other communities. Cameroonian law establishes ‘a community forest [as] “a forest of non-permanent forest estate, subject to a management agreement between a village community and the forestry authority”’ (Belibi, Van Eijnatten, Mala, & Ingram, 2015, p. 382). Supported by Cameroon’s development partners, including the Dutch aid organisation SNV and the World Bank (Chomitz, 2007, pp. 168–170), the broader goal of the initiative to ‘create jobs and generate income in rural areas; to improve the livelihoods and sustainable management of the environment while meeting the basic needs of rural communities’, including especially the Baka (Belibi et al., 2015, p. 382). As of 2011, Cameroon had established 182 CFs, which are designed to enable local communities to profit from some portion of the revenues generated by forest assets, including the sale of timber (Belibi et al., 2015; Chomitz, 2007). As such, their design is consistent with a business rights-based empowerment scheme aimed at marginalised groups.

At least ostensibly, however, the aim of the CF model is more expansive, strictly speaking, than the right to vend that embodies basic business rights. CFs proceed from the explicit acknowledgement of Baka displacement from their historical forest habitation, and the corresponding loss of traditional livelihoods. Implicit in the programme’s assumptions, therefore, is that complete reversion to some (neo-)traditional past is impossible, and that access to the modern economy is an essential component of community survival. At the same time, however, the effort to facilitate commercial activity for indigenous communities using the legal-institutional mechanism of CFs, represents an attempt to build a bridge between ‘business’ capacity and traditional livelihoods and geographies, or at least the vestiges thereof. Thus, according to Awuh (2015), the CF’s provide de facto acknowledgment that the Baka are more than one-dimensional, ‘timeless’, communities unsullied by encounters with the modern economy – a notable departure from the stance of Survival International in Botswana – and their empowerment is regarded as distinctly feasible in a modern context (p. 152).

Yet research on the efficacy of CFs as a legal vehicle for business-like advancement shows that the overall results were mixed. For instance, although CFs did achieve substantial price and revenue increases in 2011 (Belibi et al., 2015, p. 387), in general, the commercial returns to timber were not at the levels envisioned, as ‘[r]evenues generated were lower than foreseen’ (Belibi et al., 2015, p. 382). Without sufficient revenues, in many of the CFs it proved too costly to exploit the timber resources, and especially to comply with legal and regulatory requirements. Other assessments have noted negative impacts on both corruption (Chomitz, 2007, pp. 168–170) and the environment, which suffered ‘significant deforestation’ (Brockington, Duffy, & Igoe, 2008, p. 179), thus depleting the resource is essential to even this nascent exercise of Baka business rights.

Importantly, where business opportunities did emerge in timber management and sales, they were captured by better-positioned Cameroonian entrepreneurs, almost always drawn from less impoverished communities than the Baka (Brockington et al., 2008, p. 179). Thus, in actual practice, early on the CFs had the unintended result of confining the Baka to the less regulated, but also less commercially viable and less lucrative trade in non-timber forest products (NTFP) (Belibi et al., 2015, p. 388). Belibi et al. (2015, p. 388) notes that NTFPs too could be ‘important sources of revenue for social groups normally not included in forest management initiatives’ (p. 388), however, as markets for NTFPs developed, these too became hierarchical, again resulting in Baka exclusion. Access even to modest revenues can turn communities like the Baka into victims of their own success: once their initiatives began to show economic gains, the very activities that might contribute to their empowerment are primed to ‘be captured by dominant groups’ (Belibi et al., 2015, p. 388), thereby leaving the Baka trapped at the nexus of tradition and modernity and unable to profit from either. As with the Basarwa experience in Botswana, the conferral of business rights can represent a pyrrhic victory.

3.5. Kenya’s Maasai: business rights for all?

Finally, Kenya’s Maasai community stands out for its relatively positive positioning on our continuum of business rights’ utilisation and performance in Africa. As such, certain experiences of the Maasai can provide some insight on the prospects for empowerment through the dissemination of business rights within marginalised communities.

The Maasai are hardly Kenya’s poorest and excluded people. Although just over 2 per cent of the population, the Maasai community features prominently in the modern Kenyan political economy, particularly in the tourism sector. Although frequently objects of the tourist gaze, the Maasai are not entirely without power (Bruner, 2010; Hodgson, 2011). Various dimensions of Maasai life are celebrated, even revered, in literature, film, country guidebooks, television and scholarship (Bruner, 2010). Moreover, individual Maasai have held prominent positions in government, civil society, and business (Hornsby, 2011; Hughes, 2005), a level of achievement and status not widely seen among other indigenous communities. These characteristics thus distinguish the Maasai from their downtrodden counterparts among the Batwa and the Basarwa, for example. Yet the Maasai are considered among Africa’s indigenous groups and most Maasai have experienced the progressive erosion of their traditional way of life as nomadic pastoralists (ACHPR and IWGIA, 2005; Hughes, 2005). Maasai lands have been alienated by both colonial settlers and post-colonial governments. And although the 1968 Land (Group Representatives) Act encouraged land registration and settlement by ethnic groups, including the Maasai, non-elites have not fared well (Hornsby, 2011; Hughes, 2005, p. 213).

Some Maasai sub-groups have successfully used contemporary business practices as a source of empowerment, however. In particular, numerous Maasai communities have embraced community-based tourism (CBT) as a means of both earning hard currency and engaging in conservation (Butler & Hinch, 2007, pp. 2–3). In the CBT model, communities set ‘aside land for wildlife conservation in exchange for a cash benefit and/or private business venture’ (Brockington et al., 2008, p. 127). A much-heralded example of CBT is the 16,500 acre Il N’gwesi Group Ranch, located in Kenya’s Laikipia County, where the local Maasai community has established a high-end tourist destination whose revenues are intended to support the community (‘Milking the Rhino’).

In Kenya, the idea of CBT emerged through an empowerment scheme designed to deliver the complementary outcomes of conservation and autonomous (business) livelihoods for members of poor communities. Importantly, the policies and funding for CBT neither originated with the Kenyan state, nor with the Maasai, but emerged instead through the Conservation of Biodiverse Resources Areas initiative (COBRA), a programme of USAID; Il N’gwesi was established in 1996, with funding from COBRA. Building on the framework established by COBRA, this model is now employed widely in Kenya, especially among Maasai sub-communities (Manyara & Jones, 2007; Wood, 2017).

Il N’gwesi Group Ranch contributes to local empowerment by delivering a sustainable business outcome in a key sector (Manyara & Jones, 2007). The reserve employs 16 rangers and the lodge employs 10 (‘The il Ngwesi Story‘), whereas the combined operations of the lodge, conservation area and trust support more than 7,000 people. Il N’gwesi lodge is a high-end, luxury travel experience that garners excellent reviews on travel websites, for example (Trip Advisor, n.d.), among other tourist review web platforms. Revenues from the operation fund various dimensions of community development and this is one reason Il N’gwesi has been internationally recognised, including by UNDP’s Equator Prize (equatorinitiative.org). The case demonstrates that CBT can be a modestly effective tool for conservation and community empowerment (‘Milking the Rhino’; Brockington et al., 2008; Manyara & Jones, 2007), although as discussed below, there are several limits to the model, not least in its ability to benefit the group as a whole, rather than merely a subset of it. There are also limits to its applicability as a solution to indigenous poverty and the execution of business rights in other cases and country contexts.⁶

4. Discussion

Why have indigenous groups seen so little success? In the cases of the Batwa and Basarwa, the answer lies in their direct conflict with state objectives, including ‘national unity’ in Rwanda and land claims in the Botswana example. But even in Cameroon and Kenya, where state politics are less explicitly hostile to minority interests, indigenous empowerment at the level of the group is not in evidence. There are three explanations for this, revealed by the different cases.

This paper identifies three principal variables that explain the failure of the LEP pillar on business rights to gain traction among indigenous minority communities in sub-Saharan Africa. The first explanation for business rights failure is rooted in the state capture of the resource base that minorities need to succeed. Indigenous populations typically occupy geographies with valuable resources, including, among all the groups identified in this paper, the land itself; indigenous lands have been coveted for conservation, geological resources, and tourism. Under the cover of law and the pretext of national development, such appropriation by elites can be seen as part of a zero sum competition for increasingly scarce resources. Likewise, empowerment initiatives aimed at small, indigenous minority groups may be opposed by state and local elites because they entail the effective surrender of valuable resources, or are perceived as such. In the Basarwa and Batwa cases, access to these resources was foreclosed, severely limiting the business and entrepreneurial prospects for indigenous communities.

Another form of capture, revealed most starkly by Cameroon, is post hoc, whereby even modestly successful business rights interventions are subject to elite capture. Although indigenous minorities regularly encounter indifference if not hostility from the majority (Beswick, 2011) – indeed, such treatment is at the core of their marginality – some remedies are so limited in scope and aimed at such small, peripheral minorities, that they may be expected to escape notice. The Baka case suggests instead, that ethnic-based remedies aimed at the legal empowerment of indigenous minorities may themselves pique the interest of the larger majority population, and/or their state representatives. In other words, even where emergent business rights are dependent on the community’s traditional asset – Cameroonian forest areas, for example – other groups are better positioned to appropriate it. Thus, programmes aimed explicitly at promotion of business rights for marginalised communities are themselves highly vulnerable to elite capture due to the same factors that gave rise to marginalisation in the first place, namely indigenous groups’ small population, geographic isolation, and lack of political and economic power. Business rights, beyond meagre ‘rights to vend’, are unlikely to be measurably expanded for ‘the poor’ if their expansion threatens or reduces the position of status quo actors.

The second variable relates to external validation or, more specifically, its inadequacy. If the state is compromised or unwilling to act, the attention, however limited, that indigenous minorities do attract comes primarily from international human rights organisations and occasionally donors. Yet these sources provide non-replicable, individual or small sub-group-oriented initiatives, and often come to be centred around social welfare, rather than business per se. Thus, external validation of indigenous rights is not sufficient to entrench business rights-based empowerment among minority communities.

Whereas the Baka and Basarwa experiences clearly raise questions about the limits of empowerment and the unstable commitment of local and national political and economic elites to pursuing it, the cases also highlight the essential stimulus provided by international actors, including SNV and the World Bank in Baka forest areas, or Survival International in the Kalahari, or perhaps even USAID in Kenya’s rural communities. Indeed, given the marginality and historic exclusion of indigenous minorities in these environments, the role of international human rights and/or development organisations becomes essential to advancing the interests of the marginalised. Although such efforts are likely to achieve only partial success in the face of national and local intransigence – and may themselves exacerbate hostility and outright racism toward indigenous groups – they may contribute to legitimising or at least publicising discrimination. International intervention may also provide essential resources when the state itself is unwilling or unable to fund such programmes, thus serving as a replacement for state-led affirmative action/empowerment. Even a celebrated example like the Maasai-run Il N’gwesi depends heavily on external validation such as the advocacy and assistance of donors and the international development community to begin, and the vagaries of international assistance and aid budgets to continue. COBRA, for example, was established and funded by USAID to serve as a funding vehicle for the Kenya Wildlife Service in support of CBT initiatives like Il N’gwesi (Hall, Little, & de Queiroz, 1996).

Yet such international validation of indigenous communities – whether pro-bono legal intercession, as in the case of the Basarwa, or as donor-initiated and funded community empowerment schemes like CFs – are, at best, partial correctives to the plight of excluded ethnic groups denied business rights, or more fundamental rights like access to and use of traditional lands. International champions of collective rights in NGOs and human rights organisations are but a partial and temporary bulwark against the hegemony of local and their international liberal global partners keen to preserve the status quo. Rather than business rights-fuelled empowerment, the gains are likely to be limited and ephemeral.

Neither the CKGR case nor the CF example augurs particularly positively for the achievement of a genuine ‘empowerment’ that needs to be locally owned, and state- (nationally-)driven to ensure sustainable success that leads to poverty reduction. International support tends to be more oriented toward subsistence for these communities; in terms of empowerment beyond mere survival, international action cannot easily offset domestic resistance to LEP and business rights. Indeed, as the Basarwa case reveals, international activism can be insufficient to sway recalcitrant national elites. Paradoxically, the Basarwa’s sustained encounter with the ‘modern’ economy in New Xade generally served to degrade the community even further. In the wake of such degradation (like that of the Batwa), the only ‘empowerment’ schemes likely to be adopted take the form, not of business, but of (oft inadequate) social programmes and welfarism.

The final factor is the fundamental disconnect between collective or group rights and individual rights. This disconnect is replicated throughout indigenous rights advocacy. Indeed, applying a business rights agenda to indigenous communities as a whole presents many of the same challenges as a broader human rights agenda: although ‘human rights treaties and instruments guarantee individual rights, indigenous peoples ask for protection of their collective rights as a group’ (UNRIC, n.d.). Yet the economic liberalism that has come to dominate Africa, and in many respects the individualist nature of business and capitalism, are often hostile to the broader needs of indigenous minorities, as groups, and certainly any hope that they or their advocates may have for business rights.

Thus, business rights are, almost by definition, targeted at individual beneficiaries. Individuals, or relatively small subsets of indigenous populations may be able to profit and reduce (their) poverty; that is not group empowerment, however. Indeed, as Igoe (2006) notes, some actors are able to leverage their indigeneity – or overcome it – into individual gain: ‘Even within [the] group, the ability to claim indigenous status is far from evenly distributed, much less the connections and ability necessary to translate these claims into economic and political capital’ (p. 405). In short, members of groups can see gains, but this is not necessarily inclusive of the whole group, nor does it address the problem of group poverty, exclusion and marginalisation. Indeed, some Baka actually showed substantial capacity to adapt in terms of livelihoods, although Awuh (2015, p. 152) indicates that these are only a privileged few. Kenya’s Il N’gwesi and similar CBT facilities give the appearance of group empowerment – after all, the principal beneficiaries are the Maasai. However, it is also clear that the distribution of benefits both within and outside of the locally resident community is uneven. CBT, therefore, is not an avenue for collective business rights, unless ‘the collective’ is so narrowly defined as to include only those living in the vicinity of a given ranch; the vast number of Kenya’s 900,000 Maasai are excluded from CBT’s ostensible benefits. After all, as Brockington et al. (2008, p. 127) note, ‘the extent to which [such interventions] actually benefit local people is often in the eye of the beholder’. The successful experiment with CBT in Kenya, and especially at Il N’gwesi, then, is the exception that proves the rule.⁷

Notably, this individual versus collective rights dichotomy also renders the application of group-based business rights politically and socially challenging. As K. Anthony Appiah (2011) notes, whereas legal remedies for individual victims of discrimination may be deemed morally appropriate by the wider society, ‘Controversy begins when we move towards remedies that are not so individualised’ (p. 271).

5. Conclusion: the political economy of business rights

The three principal variables identified in this paper: elite capture, dependency on external validation, and the contradiction between collective and individual rights, all help to explain the failure of the LEP pillar on business rights to gain traction among indigenous minority communities in sub-Saharan Africa. These factors all share a common thread inasmuch as they suggest a role for the state, both as one of the principal obstacles to minority empowerment and business rights, and as the principal arbiter of ‘legal empowerment of the poor’, and thus the leading architect of potential remedies to the poverty and discrimination suffered by those groups.

The need for empowerment in Africa, inarguably, is vast, and expanding the legal access to business rights can be a powerful tool in reducing poverty. Yet, as the cases explored here demonstrate, the mere bestowal of business rights is hardly sufficient to enable indigenous minorities to do business, let alone meaningfully reduce group poverty. To be successful, reforms cannot be simply titular in nature, or entirely exogenously driven by international NGOs or donor pressure for example.

Stephen Golub (2012) critiqued the UN’s initial CLEP report and the policies that stemmed from it on the basis of its ‘top-down, government-centred approach’ (p. 40). Whereas Golub’s critique betrays a justified scepticism about the reformist capacities of the African state, and is consistent with non-state solutions like business rights, in fact, Africa’s indigenous minorities need more government, not less. Only government protection and promotion can make their business rights actionable. As Lyons (2013) observes, business rights, from basic to advanced, to complex economic interventions like South Africa’s Black Economic Empowerment (BEE), all depend on government (p. 79). In fact, a compelling argument can be made for a more robust state role and presence in the form of affirmative action, entailing deliberate policy-making to affect outcomes, that is, business establishment and proliferation, not merely business rights. State consent to and validation of minority rights claims generally, and to business rights specifically, are essential.

Embedded in the notion of business rights is that a level playing field – equal opportunity – is a panacea. In short, the legal right to do business is sufficient for the poor and marginalised to begin to achieve a measure of success. After decades of stultifying discrimination at the hands of the colonial state and corporations, hostile post-colonial regimes, and dominant ethnic groups, however, the inherent passivity of ‘equal opportunity’ is not sufficient. After all, even if the amorphous ‘level playing field’ somehow were achievable, the cumulative effects of intergenerational poverty and persistent resource limitations, communities’ collective capacity to avail themselves of such ‘opportunities’ remain highly constrained. For minorities in traditional nomadic or forest groups, overcoming continued systemic discrimination is a lofty but unreachable goal under the relatively modest conventional norms of legal empowerment and business rights. Equal outcomes cannot be achieved based on remedies that are explicitly targeted at individuals; if historical discrimination is linked inextricably to identity and membership in a group, then solutions also must be identity based and group-based. As Appiah (2011) notes, ‘What justifies remedial affirmative action is not the fact that its agent has done some wrong but rather the fact that some group has been wrongly disadvantaged’ (p. 272)

In one of the earliest articulations of affirmative action, US President Lyndon Johnson captured the scope of the problem as well as the enormity of the challenge, which he noted was to ‘seek not just legal equity but human ability, not just equality as a right and theory but equality as a fact and equality as a result’ (Lyndon Baines Johnson Presidential Library, n.d.). Active, state-led interventions like affirmative action policies therefore may offer a credible if partial supplement to conventional business rights approaches, but there are few such successful examples, particularly in Africa. And, though Appiah (2011) makes a forceful moral case for group-based remedies in the United States, his defence is necessitated by the widespread resistance to such putatively illiberal efforts.

Nonetheless, there are several examples of affirmative action-style programmes in Africa aimed at fostering business participation by blacks. These are found especially in the former settler economies, but they have been pursued throughout the continent. Admittedly, the model applies imperfectly to business rights for indigenous minorities, inasmuch as initiatives such as Zimbabwe’s Indigenization programme and South Africa’s Black Economic Empowerment (BEE) and later Broad-Based BEE (BB-BEE) were proposed as solutions to the marginalisation of the majority and on the basis of race, that is, black Africans, in the face of historical economic dominance by Indians, white settlers, and others. Moreover, though the promulgation of such programmes does suggest that solutions based on identity and dependent on state support have a precedent in African political economy, it is worth noting that they have not been altogether successful.

South Africa implemented an affirmative action programme known as BEE in 2003 and a more encompassing version, BB-BEE in 2007. The country adopted sweeping legal reforms, mechanisms for sub-contracting and employment, and corporate ‘scorecards’ to uphold compliance. BEE has helped to create the foundation for a black business class, and helped foster the emergence of a black middle class.⁸ In addition, it has marshalled state expenditure as well as the buy-in of South Africa’s predominantly white corporations as well as multinationals. However, BB-BEE is dogged by corruption, capture by elites and resistance by beneficiaries of the status quo (Iheduru, 2004; Ponte, Roberts, & Van Sittert, 2007), and critics have suggested that only an ‘elite few [seemed] to have benefited from Black Economic Empowerment’ (Juggernath, Rampersad, & Reddy, 2011, p. 8228).

This paper is not intended as an exploration of affirmative action policies in Africa, and the comparability to indigenous minority-focused initiatives should not be overstated. Importantly, South Africa’s architects faced little political resistance, since BEE in theory is designed to benefit nearly 90 per cent of the South African population. Even then, however, the programme has hardly led to economic uplift (including widely exploited business rights) for the vast number of South Africa’s poor. Yet South Africa at least demonstrates that states can spearhead comprehensive programmes targeted at disenfranchised groups and that group empowerment can be articulated in a context of individual rights.

At bottom, however, we must be clear eyed about the limits, both in capacity and political will, of states to play such a substantial role. There is little evidence that states are committed to positive discrimination, especially in favour of small indigenous populations. States typically lack capacity and/or tend to be dominated by the same resistant, self-interested economic elites. Indeed, government and national political authorities lack strong commitment to ‘empowerment’ and ‘business rights’ of any measure, and outside of countries like South Africa, with its comprehensive BEE programme, most states lack such an appetite. In the case of indigenous minorities specifically, local initiatives like the Laikipia Maasai’s CBT can contribute, but it is important to avoid overestimating the potential of such ‘grassroots’ initiatives. If sustainable, collective business rights are truly the objective, these require a comprehensive framework of intersecting community enterprises and greater integration into the local and national economies.

This paper focused on explaining the relative failure of the business rights agenda among indigenous groups in Africa. Although it alluded to the possibility of alternatives (embodied, for example, in the revanchist aspirations of the Basarwa), in the main, the analysis adhered to the implicit assumption of the LEP/business rights literature: namely, that, ceteris paribus, Africa’s indigenous communities want to do business and use business and capitalism as a means of poverty reduction and economic empowerment. However, the assumption that widespread demand exists for business rights itself warrants interrogation. This is an important avenue for further research, nevertheless, a few observations are possible here.

Business rights, as a route to meaningful, sustainable poverty reduction requires the emergence of a business class, not merely a relatively modest proliferation of marginal microenterprises unlikely to outlive their founders. Organic interest in entrepreneurship is a prerequisite for even a modicum of success. Unquestionably, indigenous communities face discrimination – but are they genuinely interested in ‘business?’ Do indigenous people want to be part of the formal economy envisaged by the business rights agenda? In fact, this demand is hardly universal, as the case of the Basarwa perhaps best illustrates. Hence, one under-examined node of resistance to empowerment-as-business rights might be found in the indigenous groups themselves. Although Survival International’s advocacy on behalf of the erstwhile CKGR residents was criticised for over-romanticising and over-essentialising Basarwa culture, portraying it as an unchanging, ‘timeless’, ideal (Ndahinda, 2011, pp. 341–342), this stereotype may, in fact, capture the sentiment of large segments of the Basarwa community (Fihlani, 2014), whose desire was simply to return to the CKGR.

Ironically, the business rights pillar is distinct from the human rights-indigenous rights literature, and indeed, the three other pillars of LEP; the latter sources all find that many if not most indigenous people want restored access to land and the maintenance of their traditional livelihoods.⁹ The very notion of ‘business rights’ is rooted in gaining access, that is, rights, intrinsically through formally established firms, to the modern economy. In the cases of the Basarwa, Batwa, Baka, and to some extent the Maasai, however, advocating business rights was a post hoc solution to the problem of land alienation; ‘business rights’ per se were not actually proactively sought by the community itself, and the desire to return to the land does not necessarily reflect an attempt to ‘profit’ off their land in a capitalist sense. This raises questions about whether ‘business rights’, as articulated by CLEP and others, are even valid concepts in such a context. Therefore, for the Basarwa, and perhaps many other such groups, a truer representation of business rights would have to include the right not to do business, as this would seem to conform to the wishes of the community (Fihlani, 2014).

Nonetheless, given the right tools and conditions, actors can succeed in business, at the level of the individual; this is the essence of entrepreneurship. At the community level, however, there may be a persistent ethos that is the antithesis to entrepreneurship.

As Larson (1966) noted half a century ago, changing longstanding cultural practices and traditional norms to make indigenous populations into businesspeople-cum-capitalists faces serious social impediments.¹⁰ High-growth entrepreneurs cannot easily be crafted out of populations comprised of entrepreneurs-by-necessity who do not aspire to business success or who lack entrepreneurial zeal, regardless of the progressivity of the business rights regime (see, for example, Herrington & Kelley, 2012, p. 12). Indeed, as Lyons (2013) observed, in its original formulation of LEP, UNDP underestimated the barriers to legal empowerment: they are not simply political and institutional, but they may be cultural as well (p. 79). In this context, business rights for indigenous minorities in sub-Saharan Africa are unlikely to progress at a rapid pace – or even on a group level at all. Against formidable odds and lacking recourse to state actors, functional affirmative action politics, and the sustained commitment of outsiders, a few exceptional individuals may succeed in exploiting opportunities that might accompany business rights. To the degree this yields favourable outcomes for the community as a whole, however, these remain to be seen.

Acknowledgements

An earlier version of this article was presented at the UNU-WIDER workshop on legal empowerment of the poor. The author is grateful to Naman Trivedi, Kwabena Akuamoah-Boateng and Regina Titi-Ofei for their helpful research assistance, and to Rachel Gisselquist, Wendy Hunter and two anonymous reviewers for their valuable comments.

Disclosure statement

No potential conflict of interest was reported by the author.

Notes

1. Although the interpretation of ‘indigenous’ peoples is contested, this paper defines them as ‘mainly nomadic/semi nomadic pastoralists and hunter-gatherers (or former hunter-gatherers). The hunter-gatherers include among others the Pygmies [Baka and Batwa] of Central Africa, the San [Basarwa] of Southern Africa, the Hadzabe and Akie of Tanzania and the Ogiek, Sengwer, Watta, Yaaku of Kenya. The nomadic or semi-nomadic pastoralists include among others the Maasai of Kenya and Tanzania, the Barabaig of Tanzania, the Endorois, Samburu, Turkana, Rendille, Orma, Borana and Pokot of Kenya, the Karamojong of Uganda, the numerous pastoralist communities in Sudan, Somalia and Ethiopia, the Touareg of Mali, Niger and Burkina Faso, the Fulani in Niger, Mali, Burkina Faso and numerous other West African countries, the Mbororo in Cameroon, Chad and other West African countries, the Toubou in Niger and the Himba in Namibia’ (http://www.iwgia.org/regions/africa/indigenous-peoples-in-africa). See also, United Nations Regional Information Centre for Western Europe, n.d.

2. Doing Business is intrinsically linked to formalisation: the economies that rank highest on legal, regulatory, and procedural metrics correlate with lower informality (World Bank, 2015; p. 22; CLEP & UNDP, 2008; pp. 71–3). Similarly, LEP’s underlying assumption that formalisation is good reflects the worldview of Peruvian economist Hernando de Soto, who co-chaired the CLEP. De Soto’s (2000) widely read book, Mystery of Capitalism, emphasised the establishment of formal property rights and land titles for the poor, which he saw as the key vehicle for poverty reduction (Lyons, 2013, p. 78).

3. Despite its provenance, the LEP initiative is not particularly well known outside practitioners and scholars of poverty research. Yet, whereas the nomenclature of LEP and, specifically, business rights, is not generally part of the development lexicon, the thesis behind expansion of business rights nonetheless is quite prominent. It has been proffered in a host of recent initiatives promoting entrepreneurship in the developing world, including the Global Enterprise Monitor (GEM) and the World Bank’s Enterprise Surveys, and numerous donor programmes. In fact, the idea of getting the poor to do business and engage in entrepreneurship has become de rigueur and is arguably most clearly reflected in the World Bank’s Doing Business reports, which are something of an heir to the less familiar business rights/LEP agenda.

4. Although the indigenous peoples are invariably minorities, it is important to note that this does not refer to national minority groups per se, some of which may be quite influential in political and economic life (see Arriola, 2012).

5. However, rights without empowerment are non-fungible for indigenous peoples, and even Uganda’s alienated Batwa, who at least have ‘recognition’, have little land as compensation and find themselves largely dependent on government hand-outs.

6. It is important to note that there are limits to the generalisability of CBT. CBT assumes access to land and land rights; hence it illustrates the intersection with other LEP pillars, namely indigenous legal rights, and land rights. Yet whereas a CBT model may have promise for the Maasai, such opportunities would not be available in instances where traditional land has been appropriated, and/or designated for other uses, such as in Botswana’s CKGR or Rwanda’s Volcanoes National Park. In Botswana, Cameroon and Rwanda, indigenous community members were evicted: absent access to land, there is no recourse available to peoples forcibly moved (literally) to the margins of the modern economy.

7. Recent field research in Kenya by Sophia Wood (2017) at another Maasai CBT initiative, Oldarpoi Mara Camp, finds that success is significantly dependent on the quality of the individual leading the effort. This too, suggests limited institutionalisation of the CBT approach to LEP.

8. There is no consensus on the size of the new middle class, but it is variously estimated at between 9 and 10 per cent of the population (BusinessTech, 2015).

9. Indeed, both IWGIA (n.d.) and the African Commission (ACHPR & IWGIA, 2005) seem to indicate that land dispossession is the primary threat, along with lack of access to justice, representation, and the like. Tellingly, ‘business’ is mentioned only twice in the 119 page ‘Report of the African Commission’s Working Group of Experts on Indigenous Populations’ (ACHPR & IWGIA, 2005). It is worth considering whether indigenous groups, according to their principal international interlocutors, desire to be in business (as conventionally understood) at all.

10. Interviews conducted in January 2010 with informants in Zambia’s Southern Province revealed that these attitudes remain prevalent in various ethnic communities, (although they exist alongside emergent cattle farmers that are commercially integrated, suggesting that cultures do adapt to modern economic conditions). How much demand exists for opening, for instance, a small business, may vary considerably across communities.