Africa and the UN Declaration on the Rights of Indigenous Peoples

Abstract

This article examines the efforts of a transnational indigenous peoples' civil society network to convince African states to the support the 2007 UN Declaration on the Rights of Indigenous Peoples (UNDRIP). Indigenous peoples' activism with regards the UNDRIP was successful despite the challenges. The author argues that success with UNDRIP was due to the effectiveness of the main African transnational indigenous peoples' network, though there were favourable conditions including a surge of idealism associated with African bloc politics at the United Nations, South Africa's democratisation and focus on human rights, a global awareness of the need for more effective human rights mechanisms for non-dominant peoples and an unwillingness by Africa to forsake the benefits and alliances of the international system. The emergence of an indigenous peoples' movement in Africa represents an evolution of civil society on the continent and the lobbying in favour of UNDRIP was a measure of its capacity. The reactions of African diplomats provide an opportunity to examine Africa's relationship with its own legal and cultural traditions, its openness to pluralist forms of governance and non-state institutions in post-colonial regimes, as well as Africa's relationship with the international human rights system.

Keywords:

• indigenous peoples
• UNDRIP
• Africa
• human rights
• transnational civil society
• IPACC

Notes

144 states in favour, four votes against (Australia, Canada, New Zealand and the United States) and 11 abstentions (Azerbaijan, Bangladesh, Bhutan, Burundi, Colombia, Georgia, Kenya, Nigeria, Russian Federation, Samoa and Ukraine). Since the vote, Australia and New Zealand have reversed their positions. Canada and United States have indicated that reviews are underway.

Three African states abstained from the vote and 15 states were not present during the vote. Thirty-five African States voted in favour: thus 66 per cent of Africa voted in favour of UNDRIP in 2007.

See: United Nations, UN Declaration on the Rights of Indigenous Peoples, 2007, http://www.un.org/esa/socdev/unpfii/en/drip.html.

See the articles by Naomi Kipuri, ‘The UN Declaration on the Rights of Indigenous Peoples in the African Context’, in C. Charters et al. (2009), 252–62; and Albert Barume, ‘Responding to the Concerns of the African States’, in Making the Declaration Work: The United Nations Declaration on the Rights of Indigenous Peoples, Document no. 127 eds. C. Charters and R. Stavenhagen (Copenhagen: IWGIA, 2009), 170–83.

IPACC's negotiation team for New York included Saoudata Aboubacrine (Burkina Faso), Vital Bambanze (Burundi), Hassan id Belkassm (Morocco), Mohamed Ewangaye (Niger), Leonard Fabrice Odambo (Gabon), Handaine Mohammed (Morocco), Kanyinke Sena (Kenya), Mary Simat (Kenya), and Adele Wildschut (IPACC Trust, South Africa). Others lobbied inside Africa and in other forums.

Each of these terms from southern, eastern and central Africa respectively refer to hunter-gatherers by generic, somewhat pejorative national terms.

Statistics on who is claiming to be indigenous are not available, in part because many of the peoples referred to here are not recognised by African census instruments. Approximately, there are over 40 hunter-gatherer peoples and 12 major pastoralist peoples making claims to indigenous peoples' status in their respective countries. None of the hunter-gatherers claim territorial sovereignty and only the Tuareg pastoralists are claiming administrative rights in their desert territories and have been involved in armed conflict with their national state authority. The Tuareg movement is not calling for secession from any existing states, rather they are emphasising equity between agricultural and pastoralist territories in national governance and expenditures. A number of indigenous peoples are involved in court disputes over land tenure and land rights.

See among others H. Claudot-Hawad et Hawad, ed., Touaregs: Voix Solitaires sous l'Horizon confisqué, Ethnies-Documents (Paris: Peuples Autochtones et Développement, 1996), 20–1.

See IWGIA, The Indigenous World 2008, ed. Kathrin Wessendorf (Copenhagen: IWGIA, 2008), 444.

Early efforts to formalise IPACC started as early as 1994, but it was only in July 1997 that the African Caucus at the UNWGIP meeting adopted the founding constitution of IPACC.

See for example Sidsel Saugestad, ‘Beyond the “Columbus Context”: New Challenges as the Indigenous Discourse is Applied to Africa’, in Indigenous Peoples: Self-determination, Knowledge, Indigeneity, ed. H. Minde (Delft: Eburon, 2008), 157–73; Céline Smekens, Les réseaux autochtones transnationaux: Exemple du Comité de Coordination des Peuples Autochtones d'Afrique (unpublished Masters dissertation, «Stratégie des Echanges Culturels Internationaux», Institut des Etudes Politiques de Lyon/Université Lumière Lyon 2, France, 2006–2007); Nigel Crawhall, ‘The Rise of Indigenous Peoples Civil Society in Africa 1994–2004’, Indigenous Affairs 3 (2004), 40–6.

See African Commission on Human and Peoples' Rights (ACHPR), Advisory Opinion of the African Commission on Human and Peoples' Rights on the United Nations Declaration on the Rights of Indigenous Peoples (Copentagen: ACHPR, 2007), at http://www.iwgia.org/graphics/Synkron-Library/Documents/InternationalProcesses/DraftDeclaration/07-08-08 AdvisonsOpinionENG.pdf; Minde, Indigenous Peoples: Self-determination, Knowledge, Indigeneity; S. James Anaya, Indigenous Peoples in International Law, 2nd ed. (New York and Oxford: Oxford University Press, 2004); and Patrick Thornberry, Indigenous Peoples and Human Rights (Manchester: Manchester University Press, 2002).

P. Thornberry, International Law and the Rights of Minorities (Oxford: Clarendon Press, 1992); P. Thornberry, Indigenous Peoples and Human Rights (Manchester: Manchester University Press).

S. J. Anaya, Indigenous Peoples in International Law (2nd ed) (New York: Oxford University Press).

For a detailed discussion see Anaya, Indigenous Peoples in International Law.

See Yash Ghai, ‘Ethnicity and Autonomy: A Framework for Analysis’, in Autonomy and Ethnicity: Negotiating Competing Claims in Multi-ethnic States, ed. Y. Ghai (Cambridge: Cambridge University Press, 2000), 1.

Henry Minde, ‘The Destination and the Journey of Indigenous Peoples and the United Nations from the 1960s through 1985’, in Indigenous Peoples: Self-determination, Knowledge, Indigeneity, ed. H. Minde (Delft: Eburon, 2008), 55–6.

For a full review of the UNDRIP process from start to finish, see Claire Charters and Rodolfo Stavenhagen, eds, Making the Declaration Work: The United Nations Declaration on the Rights of Indigenous Peoples, Document No. 127 (Copenhagen: International Work Group for Indigenous Affairs, 2009).

The problem of the term ‘indigenous’ in Africa is more evident in English than in French. The French term ‘indigène’ has pejorative connotations for all Africans, and the term ‘autochtones’ is generally associated with aboriginal peoples or people living by non-dominant subsistence modes such as hunting and gathering. For a case study of ‘indigenous’ as an inconvenient term and social reality in Africa see: Sidsel Saugestad, The Inconvenient Indigenous: Remote Area Development in Botswana, Donor Assistance, and the First People of the Kalahari (Uppsala, Sweden: The Nordic Africa Institute, 2001).

See Thomas N. Huffman, ‘Bantu Migrations in Southern Africa’, in The Prehistory of Africa, ed. Himla Soodyal (Cape Town: Jonathan Ball Publishers: 2006), 97–108; and Rosalie Finlayson, ‘Linguistic Interrelationships: How Genetic are They?’, in The Prehistory of Africa, ed. Himla Soodyal (Cape Town: Jonathan Ball Publishers: 2006), 125–33. The term ‘Bantu’ means ‘people’ and is used to designate a language family associated with agricultural and agro-pastoralist expansion across Africa over the last several thousand years.

See Thilo Schadeberg, ‘Batwa: The Bantu Name for the Invisible People’, in Central African Hunter-Gatherers in a Multidisciplinary Perspective: Challenging Elusiveness, ed. K. Biesbrouck, S. Elders and G. Rossel (Leiden: CNWS Publications, 1999), 21–40.

See for example: Serge Bahuchet and H. Guillaume, ‘Aka-farmer Relations in the Northwest Congo Basin’, in Politics and History in Band Societies, ed. E. Leacock and R. Lee (Cambridge: Cambridge University Press, 1982), 189–211; Allan Barnard, ‘Hunters and Herders of Southern Africa: A Comparative Ethnography of the Khoisan Peoples’, Cambridge Studies in Social and Cultural Anthropology (Cambridge: Cambridge University Press, 1992), 85; Janette Deacon, ‘Later Stone Age People and Their Descendants in Southern Africa’, in Southern African Prehistory and Palaeoenvironments, ed. R.G. Klein (Rotterdam: AA Balkema, 1984), 221–328; Jared Diamond, 1998. Guns, Germs and Steel: A Short History of Everybody for the Last 13,000 Years (London: Vintage, 1997); Daniel Nettle and S. Romaine, Vanishing Voices: The Extinction of the World's Languages (Oxford: Oxford University Press, 2000); Luigi Luca Cavalli-Sforza, Genes, Peoples and Languages (London: Penguin Books, 2001); Nigel Crawhall, ‘Languages, Genetics and Archaeology: Problems and the Possibilities in Africa’, in The Prehistory of Africa, ed. H. Soodyal (Cape Town: Jonathan Ball, 2006), 109–22; and Nigel Crawhall, ‘Indigenous Peoples in Africa’, Occasional Paper 03/2007 (Oslo: Norwegian Church Aid, 2007).

Thornberry, Indigenous Peoples and Human Rights; Anaya, Indigenous Peoples in International Law.

Res nullius literally means ‘nobody's thing’ in Latin. It refers to something without an owner, hence in a public domain under Common Law. This doctrine was applied to indigenous lands, not because they were necessarily empty, but because European law only recognised certain types of land usage as demonstrating ownership, the French concept of ‘mise en valeur’, to extract value through working the land. See Radio National – Counterpoint, ‘Terra Nullius – The History Wars’, presented by Michael Duffy, 16 August 2004, Australian Broadcasting Corporation, ABC Online, http://www.abc.net.au/rn/talks/counterpoint/stories/s1172945.htm (accessed 15 November 2010).

Thornberry, Indigenous Peoples and Human Rights, 84, quoted from ICJ Rep. 1975, 86–7.

Nettle and Romaine, Vanishing Voices: The Extinction of the World's Languages, 45.

Ibid., 14.

Africa Group, ‘Draft Aide Memoire’, Unpublished Manuscript, 2006, http://www.ipacc.org.za/uploads/docs/Africanaidememoire.pdf (accessed 15 November 2010).

See for example Abraham K. Sing'Oei, ‘Indigenous People's Struggles for Recognition of their Rights’, Centre Tricontinental, 2008, http://www.cetri.be/spip.php?article808 (accessed 15 November 2010).

African Commission on Human and Peoples' Rights, Report of the African Commission's Working Group of Experts on Indigenous Populations/Communities (Copenhagen: IWGIA, 2005), http://www.iwgia.org/graphics/Synkron-Library/Documents/publications/Downloadpublications/Books/AfricanCommissionbookEnglish.pdf (accessed 15 November 2010).

H. Minde, ‘The Destination and the Journey of Indigenous Peoples’, 49–86.

South Africa initiated a dialogue with indigenous peoples in 1998 and by 2006 had adopted only a Cabinet memorandum setting out a ‘road-map’ for policy instruments to be put in place. See IWGIA, The Indigenous World 2005, ed. Diana Vinding and Silla Stidsen (Copenhagen: IWGIA, 2005), 510. For a more detailed study on South Africa's legal issues see T.M. Chan, ‘The Richtersveld Challenge: South Africa Finally Adopts Aboriginal Title’, in Indigenous Peoples' Rights in Southern Africa, Document 110, ed. Robert Hitchcock and Diana Vinding (IWGIA: Copenhagen, 2004), 114–33.

IWGIA, The Indigenous World 2005, 510–11.

IWGIA, The Indigenous World 1999–2000, ed. Christian Erni (Copenhagen: IWGIA, 2000), 374.

IWGIA, The Indigenous World 2000–2001, ed. Anette Molbech (Copenhagen: IWGIA, 2001), 284.

IWGIA 2004, ed. Diana Vinding (Copenhagen: IWGIA, 2005), 424.

Zephyrin Kalimba, personal communication, 1999.

See Nigel Crawhall, ‘The Rise of Indigenous Peoples Civil Society in Africa 1994-2004’, Indigenous Affairs 3 (2004).

See United Nations, African Charter on Human and Peoples Rights (Geneva, Switzerland: Centre for Human Rights, 1990); and ACHPR 2007.

These positions were communicated to IPACC in a series of bilateral meetings with diplomats in New York, particularly in 2007.

African Commission on Human and Peoples' Rights, Advisory Opinion of the African Commission on Human and Peoples' Rights on the United Nations Declaration on the Rights of Indigenous Peoples (Copenhagen, Denmark: African Commission on Human and Peoples' Rights, 2007), http://www.iwgia.org/graphics/Synkron-Library/Documents/InternationalProcesses/DraftDeclaration/07-08-08AdvisoryOpinionENG.pdf (accessed 15 November 2010).

See Thornberry, Indigenous Peoples and Human Rights, 30.

See Hanne Veber, J. Dahl, F. Wilson and E. Waehle, eds, ‘“…Never Drink from the Same Cup”: Proceedings of the Conference on Indigenous Peoples in Africa, Tune, Denmark, 1993’, IWGIA Document No. 74 (Copenhagen, Denmark: International Work Group for Indigenous Affairs, 1993).

Resolution Ref. ACHPR/Res.65 (XXXIV) 03.

Patrick Thornberry, International Law and the Rights of Minorities (Oxford: Clarendon Press, 1992), 185.

Thornberry, Indigenous Peoples and Human Rights; Anaya, Indigenous Peoples in International Law; and Minde, ‘The Destination and the Journey of Indigenous Peoples and the United Nations from the 1960s through 1985’, 49–86.

Anaya, Indigenous Peoples in International Law, 103–4.

See ACHPR, Report of the African Commission's Working Group of Experts on Indigenous Populations/communities (Copehagen: IWGIA, 2005), at http://www.iwgia.org/graphics/Synkron-Library/Documents/publications/Downloadpublications/Books/AfricancommissionbookEnglish.pdf (accessed 15 November 2010).

United Nations, African Charter on Human and Peoples Rights (Geneva, Switzerland: Centre for Human Rights, 1990), 10.

Despite Namibia's negative leadership during the 2006 UNDRIP process, its Embassy continued to welcome and assist indigenous delegates to the UN Permanent Forum and Namibia has been flexible about recognising the vulnerability of San communities. A summary of rights issues is given in Clement Daniels, ‘Indigenous Rights in Namibia’, in in Indigenous Peoples' Rights in Southern Africa, Document No. 110, ed. Robert K. Hitchcock and D. Vinding (IWGIA: Copenhagen, 2004), 44–62; Sydney L. Harring, ‘Indigenous Land Rights and Land Reform in Namibia’, in Indigenous Peoples' Rights in Southern Africa, Document No. 110, ed. Robert K. Hitchcock and D. Vinding (IWGIA: Copenhagen, 2004), 63–81.

Indigenous Peoples of Africa Coordinating Committee, United Nations Declaration on the Rights of Indigenous Peoples: ‘Draft Aide Memoire’ of the African Group: A Brief Commentary, 16 January 2007 (Cape Town: IPACC, 2007), 1.

IPACC, United Nations Declaration on the Rights of Indigenous Peoples: ‘Draft Aide Memoire’ of the African Group: A Brief Commentary.

Ibid., 10 and 20.

See IPACC, United Nations Declaration on the Rights of Indigenous Peoples: ‘Draft Aide Memoire’ of the African Group: A Brief Commentary.

Only the Ugandan mission to the United Nations refused to meet with IPACC leaders, but in 2009 Uganda had started to work with IPACC on adaptation and mitigation projects.

Anaya, Indigenous Peoples in International Law, 53.

See Rebeca Leonard and J. Longbottom, Land Tenure Lexicon: A Glossary of Terms from English and French Speaking West Africa (London: IIED, 2000), http://www.iied.org/pubs/display.php?l=919&n=363&o=7411IIED&w=NR (accessed 15 November 2010); and IIED, Innovations in Securing Land Rights in Africa, Briefing Paper (London: IIED, 2006), 9, http://www.sdinet.co.za/static/pdf/land_rights_mitlin.pdf (accessed 15 November 2010).

See the joint 2006 IPACC – Association Tunfa Report on Saharan Nomadic Peoples and Development Conference, IPACC, Cape Town.

IPACC's 2008 conference on participatory mapping provided case studies of indigenous peoples' traditional governance over natural resources in different ecosystems. The electronic version of the report from the Windhoek conference is available on the IPACC website, at http://ipacc.org.za/uploads/dbcs/Windhoek_English_Second_Edition_Web.pdf.

Kipuri, ‘The UN Declaration on the Rights of Indigenous Peoples in the African Context’, 258–60.

News item on IPACC Bamako conference resolutions, 25 July 2009, http://ipacc.org.za/eng/news_details.asp?NID=213 (accessed 15 November 2010).

Yash Ghai, ‘Ethnicity and Autonomy: A Framework for Analysis’, in Autonomy and Ethnicity: Negotiating Competing Claims in Multi-ethnic States, ed. Y. Ghai (Cambridge: Cambridge University Press, 2000), 1–24.