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Land Rights of Indigenous Peoples in Africa

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Land Rights of Indigenous Peoples in Africa REVISED AND UPDATED 2014 IWGIA Land Rights of Indigenous Peoples in Africa Second Edition, Revised and Updated Professor of Law, Gudmundur Alfredsson This revised and updated edition of Albert Kwokwo Barume’s book from Land Rights writes about the first edition ofLand Rights 2010 reflects some of the latest developments affecting Africa’s indigenous of Indigenous Peoples in Africa: peoples and their land rights. Some of these developments have taken place at the international, “This book offers well-researched and regional and national levels and include a growing attention to indigenous well-written coverage of the land rights of rights throughout the U.N. system, the recognition of the existence of in- indigenous peoples in international human digenous peoples in Africa thanks to the work of the African Commission Albert Kwokwo Barume is an African trained rights legislation and in the domestic legis- on Human and Peoples’ Rights, constitutional and legal reforms in some lawyer and has a doctorate in international hu- lation of several [African] countries. In ad- African countries, etc. They all offer new opportunities for the promotion of man rights law from the University of Essex, dition, the concept of “indigenous” in African indigenous rights, including the protection of indigenous land rights. How- United Kingdom. For many years, his focus circumstances and a number of other rights ever, as this book also shows, the situation of indigenous peoples on the has been on indigenous peoples in general, are dealt with inasmuch as these relate to ground has hardly changed and the implementation gap when it comes to on African indigenous peoples in particular, land rights. laws and policies on land rights remains a major issue. The dispossession and the present book stems from more than of Africa’s indigenous peoples of their ancestral lands, which started during fifteen years of observations, research, analy- It is not only a first-class academic presen- colonial times, continues today at an alarming pace as the result of nature sis and interaction with indigenous com- tation but also a practical one, including a conservation, agro-industrial developments, mineral exploitations, and other munities in Africa. He has worked for many series of conclusions and recommendati- economic activities. in Africa of Indigenous Peoples international organizations, including the In- ons that are highly relevant to any imple- Indigenous peoples have not and do not let this happen without re- ternational Labour Organisation (ILO). He has mentation and monitoring efforts at the na- acting and in some cases they have gone to court, challenging those who written and advocated for indigenous rights in tional and international levels. threatened them—colonial authorities, governments or corporate compa- several international and regional fora and nies. But defending the land rights of indigenous peoples in court has been in 2007 he became member of the African This is a highly recommended book that an uphill battle with few successes, and as this new edition shows, this Commission on Human and Peoples’ Rights any university press or a major publishing remains the case. Why? What went wrong? What could have been done Expert Group on Indigenous Populations/ company would have been proud of relea- otherwise? The purpose of this book has been to analyze some of the land Communities. He is the author of several ar- sing”. cases filed by indigenous peoples in selected African countries, in order to ticles and books, including the book Heading see how the judiciary has dealt with this human rights thematic, and what Towards Extinction? Indigenous Rights in Af- IWGIA has since the early 1980s published lessons can be learned from these court cases, including the few which rica: The case of the Twa of The Kahuzi-Biega books, documents and articles dealing with have recognized indigenous claims. What should judges, lawyers and con- National Park, Democratic Republic of Congo indigenous issues in Africa. The most re- cerned people know about indigenous land rights? What legal frameworks (IWGIA 2000) and the chapter “Responding cent can be downloaded or viewed at IW- should they refer to in order to better defend these rights in African courts? to the Concerns of African States”, in Mak- GIA’s Web page – http://www.iwgia.org What international instruments could possibly be relevant to bring up in ing the Declaration Work: The United Na- court? What global and regional mechanisms could provide some support tions Declaration on the Rights of Indigenous and help? These are some of the key questions which this book aims at Peoples, edited by Rodolfo Stavenhagen and answering. Claire Charters (IWGIA, 2009). (2d. edition) Land Rights of Indigenous Peoples in Africa INTERNATIONAL WORK GROUP FOR Albert Kwokwo Barume INDIGENOUS AFFAIRS LAND RIGHTS OF INDIGENOUS PEOPLES IN AFRICA With Special Focus on Central, Eastern and Southern Africa Second edition – revised and updated Albert Kwokwo Barume IWGIA Document 128 Copenhagen 2014 LAND RIGHTS OF INDIGENOUS PEOPLES IN AFRICA With Special Focus on Central, Eastern and Southern Africa Second edition - revised and updated Author: Albert Kwokwo Barume Copyright: The author and IWGIA - 2010, 2014 - All Rights Reserved First edition 2010 - Second edition, revised and updated, 2014. Editorial Production: Marianne Wiben Jensen and Diana Vinding Cover and layout: Jorge Monrás Proofreading: Diana Vinding Prepress and Print: Eks-Skolens Trykkeri, Copenhagen, Denmark ISBN: 978-87-92786-40-1 ISSN: 0105-4503 HURIDOCS CIP DATA Title: LAND RIGHTS OF INDIGENOUS PEOPLES IN AFRICA With Special Focus on Central, Eastern and Southern Africa – Second edition, revised and updated, 2014 Author: Barume, Albert Kwokwo Corporate editor: IWGIA Place of publication: Copenhagen, Denmark Publisher: IWGIA Distributor Europe: IWGIA, Classensgade 11E, DK Copenhagen 2100 – www.iwgia.org Distributor North America: Transaction Publishers, 390 Campus Drive, Somerset, New Jersey 08873 – www.transactionpub.com Date of publication: March 2014 Pages: 390 Reference to series: IWGIA Document Series, no.128 ISBN: 978-87-92786-40-1 ISSN: 0105-4503 Language: English Bibliography: Yes Index terms: Indigenous peoples/Land rights/Legal frameworks/International jurisprudence Geographical area: Central, Eastern and Southern Africa Geographical code: 5200 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 is dedicated to all African indigenous peoples who have lost or continue losing their ancestral lands CONTENTS Preface to the second edition ...................................................................................................10 Preface .................................................................................................... ....................................12 Acknowledgements ...................................................................................................................16 List of Abbreviations.................................................................................................. ................18 PART I CONCEPTUALISING INDIGENOUS LAND RIGHTS IN AN AFRICAN CONTEXT I The Term “Indigenous”—An Evolving Concept .............................................................24 The colonial meaning of the concept “indigenous” .......................................................25 ILO Convention No. 107 ...............................................................................................27 A modern human rights understanding of the term “indigenous” ..................................30 Why do certain communities self-identify as “indigenous peoples”?...................................................................................................34 II Relevance and Applicability of the Concept “Indigenous” in Central, Eastern and Southern Africa ........................................................................ 36 What does the term “indigenous peoples” mean in Africa? ......................................... 37 Self-identification ..........................................................................................................40 Non-dominant sector of society ...................................................................................45 History of severe discrimination ....................................................................................49 Land rights prior to colonization or to the occupation by other African groups ................................................................................................50 Land-based culture ......................................................................................................52 Conclusion ...................................................................................................................52 III The Lands of Indigenous Peoples: Importance and Justification ..............................55 Land as the incarnation of culture ................................................................................55 Right to lands and right to life ......................................................................................59 Ancestral lands and indigenous languages ..................................................................63 IV Indigenous Peoples’ Land Dispossession: Causes and Reactions ................................66 Main causes of land
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