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Report of the African Commission's Working Group of Experts on Indigenous Populations/Communities REPORT OF THE AFRICAN COMMISSION’S WORKING GROUP OF EXPERTS ON INDIGENOUS POPULATIONS/COMMUNITIES Submitted in accordance with the “Resolution on the Rights of Indigenous Populations/Communities in Africa” Adopted by The African Commission on Human and Peoples’ Rights at its 28th ordinary session 2005 REPORT OF THE AFRICAN COMMISSION’S WORKING GROUP OF EXPERTE ON INDIGENOUS POPULATIONS/COMMUNITIES © Copyright : ACHPR and IWGIA Typesetting: Jorge Monrás, IWGIA Prepress and Print: Eks/Skolens Trykkeri, Copenhagen, Denmark ISBN: 87-90730-82-8 Distribution in North America: Transaction Publishers 390 Campus Drive / Somerset, New Jersey 08873 www.transactionpub.com African Commission on Human and Peoples’ Rights (ACHPR) Kairaba Avenue - P.O.Box 673, Banjul, The Gambia Tel: (220) 4377 721/4377 723 - Fax: (220) 4390 764 E-mail: [email protected] - Web: www.achpr.org INTERNATIONAL WORK GROUP FOR INDIGENOUS AFFAIRS Classensgade 11 E, DK 2100 - Copenhagen, Denmark Tel: (45) 35 27 05 00 - Fax: (45) 35 27 05 07 E-mail: [email protected] - Web: www.iwgia.org This book has been produced with financial support from the European Union and the Danish Ministry of Foreign Affairs TABLE OF CONTENTS PREFACE .........................................................................................................8 CHAPTER I Introduction ...................................................................................10 CHAPTER II The Human Rights Situation of Indigenous Peoples in Africa ..................................................................14 2.1 Human rights issues of concern to indigenous peoples in Africa ....................................................19 2.2 Rights to land and productive resources ........................................21 2.3 Discrimination .......................................................................................34 2.4 Denial of justice ......................................................................................38 2.5 Examples of violation of cultural rights .................................................40 2.6 Denial of the right to political recognition, representation and participation ............................................................45 2.7 Constitutional and legislative recognition .............................................47 2.8 Marginalisation from social services ......................................................50 2.9 The right to health and medical attention ..............................................51 2.10 The right to education ...........................................................................54 2.11 Denial of the right to existence and to their own development ................................................................56 2.12 What has been done locally .....................................................................57 2.13 International human rights instruments ...............................................59 2.14 Conclusion ..............................................................................................59 CHAPTER III An Analysis of the African Charter and its Jurisprudence on the Concept of ‘Peoples’ ...............................................68 3.1 The Mandate of the Working Group on Indigenous Populations/ Communities in Africa ...........................................................................68 3.2 The African Charter on Human and Peoples’ Rights ............................71 3.3 Protection of Collective Rights ...............................................................72 3.4 Jurisprudence from the African Commission on Human and Peoples’ Rights ...................................................................................................72 3.5 Member States’ Periodic Reports to the African Commission .........................................................................78 3.6 Conclusion ..............................................................................................79 CHAPTER IV Possible Criteria for Identifying Indigenous Peoples ............................86 4.1 Characteristics of indigenous peoples in Africa ....................................89 4.2 Existing approaches to the term ‘indigenous peoples’ ............................91 4.3 Indigenous peoples and minorities .........................................................95 4.4 International fora involving indigenous peoples in Africa... .................97 4.5 The importance of the recognition of indigenous peoples in Africa... .............................................................101 4.6 References... ..........................................................................................103 CHAPTER V Conclusion ................................................................................. 106 5.1 Recommendations to the African Commission ....................................114 ANNEX I Resolution adopting the Report of the Working Group .................................................................................116 ANNEX II Acknowledgements .....................................................................................120 8 REPORT OF THE ACHPR WORKING GROUP OF EXPERTS ON INDIGENOUS POPULATIONS/COMMUNITIES PREFACE he African Commission on Human and Peoples’ Rights (ACHPR) has T been debating the human rights situation of indigenous popula- tions/communities since 1999, as these are some of the most vulnerable groups on the African continent. Since the 29th Ordinary Session of the ACHPR in Libya in 2001, representatives of these communities have at- tended every session of the ACHPR and have given strong testimonies as to their desperate situation and the gross human rights violations to which they are victim. They have informed the ACHPR about the discrimination and contempt they experience, about their land dispossession and the de- struction of their livelihood, culture and identity, about their extreme pov- erty, about their lack of access to and participation in political decision- making, about their lack of access to education and health facilities. In sum, the message is a strong request for recognition, respect and human rights protection on an equal footing with other African communities. It is a re- quest for the right to survive as peoples and to have a say in their own fu- ture, based on their own culture, identity, hopes and visions. Representatives of indigenous populations and communities have re- quested that the ACHPR ensures the protection and promotion of their fundamental human rights, and the ACHPR has responded to this call. The ACHPR recognizes that the protection and promotion of the human rights of the most disadvantaged, marginalized and excluded groups on the continent is a major concern and that the African Charter on Human and Peoples’ Rights must form the framework for this. In order to achieve a better basis on which to advance discussions and formulate recommendations, in 2001 the ACHPR set up a Working Group on the Rights of Indigenous Populations/Communities with the partici- pation of members of the ACHPR as well as expert representatives of in- digenous communities and an independent expert. In consultation with human rights experts and representatives of indigenous communities, the Working Group drafted this comprehensive report that was adopted by the ACHPR in November 2003. With the adoption of this report on the human rights situation of indig- enous populations and communities in Africa, the ACHPR has placed itself 9 in a key position in Africa as well as internationally. The report, and the ACHPR’s approach, has already been complimented from many sides, and even before its official publication it is being frequently referred to by related UN bodies and donor agencies, as well as by human rights advocates and academics. The UN Special Rapporteur on the situation of the human rights and fundamental freedoms of indigenous people has stated that: … the work being carried out by the African Commission and in particular the establishment of the Working Group dealing with the main challenges being faced by indigenous peo- ples in Africa is not only a milestone for the protection of indigenous peoples’ rights in the region but it will also contribute to the advancement of the discussions related to the challenges being faced by indigenous peoples the world over. The report is the ACHPR’s official conceptualisation of, and frame- work for, the issue of the human rights of indigenous populations and as such it is a highly important instrument for the advancement of indige- nous populations’ human rights situation. The report can help facilitate constructive dialogue between the ACHPR/AU and member states and it will serve as a platform for the ACHPR’s forthcoming activities on pro- moting and protecting the human rights of indigenous populations. The report was adopted by an ACHPR resolution that also provides for the continuation of the Working Group for an initial two-year term with a mandate to continue the work to promote the human rights of in- digenous populations in Africa. The specific tasks include, among others, to undertake a number of country visits and formulate recommendations and proposals on appropriate measures and activities. The resolution fur- thermore provides for cooperation between the ACHPR and the UN, as well as other relevant regional human rights organizations. In 2004, the Working Group adopted a comprehensive work pro- gramme that also includes research on legal and constitutional issues and sensitization activities, and it
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