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This publication provides an overview of status and trends regarding the constitutional, legislative and administrative protection of the rights of indigenous peoples in 24 selected African countries. Overview Report of the Research Project by the International Labour Organization and the African Commission on Human and Peoples’ Rights on This report provides the results of a research project by the International Labour Organization and the African Commission’s Working Group on Indigenous Communities/Populations in Africa with the Centre for Human Rights, University of Pretoria, acting as implementing institution. The project examines the extent to which the legal framework of 24 selected African countries impacts the constitutional and legislative protection of on and protects the rights of indigenous peoples. the rights of indigenous peoples For an electronic copy of this report and of the 24 country studies, see www.chr.up.ac.za/indigenous in 24 African countries African Commission on International Labour EUROPEAN Human and Peoples’ Rights Organization Published with the support of: COMMISSION Copyright © 2009 International Labour Organization and African Commission on Human and Peoples’ Rights First published 2009 For rights of reproduction or translation, permission should be obtained by both the ILO Publications (Rights and Permissions), International Labour Office, CH-1211 Geneva 22, Switzerland, or by email: [email protected], and the Information and Documentation Centre, African Commission on Human and Peoples’ Rights, PO Box 673, Banjul, The Gambia, or by e-mail: [email protected] <mailto:[email protected]> . ILO/ACHPR Overview report of the research project by the International Labour Organization and the African Commission on Human and Peoples' Rights on the constitutional and legislative protection of the rights of indigenous peoples in 24 African countries / International Labour Office. – Geneva, ILO, 2009 xv 155 p. ISBN: 978-92-2-122512-6 (print) ISBN: 978-92-2-122513-3 (web pdf) Indigenous people / economic and social rights / cultural rights / international law / constitutional law / legislation / comment / application / Africa 14.08 Also available in French: Aperçu du Rapport du Projet de Recherche par l'Organisation Internationale du Travail et la Commission Africaine des Droits de l'Homme et des Peuples relatif à la protection constitutionnelle et législative des droits des peuples autochtones dans 24 pays africains (ISBN 978-92-2-222512-5), Geneva, 2009 In Arabic: (ISBN 978-92-2-622512-1), Geneva, 2009. ILO Cataloguing in Publication Data The designations employed in this publication, and the presentation of material therein, do not imply the expression of any opinion whatsoever on the part of the International Labour Office and the African Commission on Human and Peoples’ Rights concerning the legal status of any country, area or territory or of its authorities, or concerning the delimitation of its frontiers. The ILO and the African Commission on Human and Peoples’ Rights shall accept no responsibility for any inaccuracy, errors or omissions resulting from the use of the data. Printed in the Republic of South Africa. OVERVIEW REPORT of the Research Project by the International Labour Organization and the African Commission on Human and Peoples’ Rights on the constitutional and legislative protection of the rights of indigenous peoples in 24 African countries FOREWORD When the African Commission on Human and Working Group), composed of members of the Peoples’ Rights (African Commission) was Commission and independent experts to, inter established more than two decades ago, the alia, undertake studies and research on issues of question, and the very concept of indigenous indigenous populations on the continent. Since peoples in Africa was the least of its priorities. In its establishment in 2003, the African fact, it was not until 1999 that the question of Commission Working Group has undertaken the rights of indigenous peoples first featured on four country visits to Botswana, Namibia, Niger, the agenda of the African Commission. This and Burkina Faso, and six research and seeming lack of interest was not deliberate but information visits to Congo, Burundi, Uganda, rather was a reflection of the general approach, Central Africa Republic, Gabon and Libya. These perception or understanding of the general visits have revealed that while there are gradual public and African decision-makers on the improvements in the treatment of indigenous question of indigenous peoples in Africa. The populations in some countries, the situation in seeming lack of information and insufficient other countries still remain a source of concern. literature on indigenous populations, coupled They also reveal the need for concerted efforts with the strong resistance from many African to bring all relevant stakeholders on board to States to embrace the idea on the continent, explore ways and means to enhance the meant that African NGOs did not have sufficient promotion and protection of the rights of room to express themselves on the issue. indigenous peoples on the continent The African Commission was seen by civil It is on this premise that the International society organizations on the continent as the Labour Organization (ILO) in collaboration with most appropriate forum to table up the plight of the African Commission, working through the indigenous populations. Thus, for at least four Centre for Human Rights of the University of consecutive sessions, the African Commission Pretoria, South Africa, as the implementing was constantly reminded by African and institution, decided to undertake a much more international NGOs of the plight of indigenous focused study, looking specifically at the peoples on the continent, characterized by constitutional, legislative and admini- marginalization, exploitation, dispossession, strative provisions concerning indigenous harassment, poverty, illiteracy, etc. The African peoples in 24 African countries, with a view to Commission could no longer remain indifferent compare and share best practices. This study to the plight of indigenous populations on the entitled Overview report of the research project by continent, and thus decided to establish a the ILO and the African Commission on the Working Group on the Rights of Indigenous constitutional and legislative protection of the rights Populations to, inter alia, examine the concept of of indigenous peoples in 24 African countries, lasted indigenous populations/communities in Africa. for over three years, and involved full-time researchers who conducted desk as well as field After two years of research, the African research. The findings were validated at a Commission in 2003 adopted the report of the workshop held in May 2009, prior to the 45th Working Group in a document entitled Report of Ordinary Session of the African Commission, at the African Commission’s Working Group of Experts which most of the researchers, representatives on Indigenous Populations/Communities in Africa. from the ILO, members of the African This Report has stood the test of time and Commission, the implementing institution – the served national, regional and international Centre for Human Rights – and other relevant audience in the area of indigenous rights, stakeholders were present. The study was including students, lecturers, researchers, social subsequently discussed and adopted by the workers, human rights activists and defenders, Commission during its 45th Ordinary Session. the African Union, as well as United Nations agencies. This depth of this joint study, running into hundreds of pages, is the first of its kind under One of the recommendations of the the auspices of the ILO and the African Working Group was the establishment of a full Commission. While it does not claim to be time Working Group on Indigenous Populations/ exhaustive, it provides the most comprehensive Communities in Africa (African Commission information on indigenous issues in these 24 iii countries, and to that extent is relevant to all stakeholders: politicians, scholars, students, human rights activists, indigenous communities. The level of our success in this study will be measured by the impact that these findings and recommendations will have in the lives of indigenous populations, the policies, regulations, laws and practices of states. If we pay heed to the findings of this study, we will be able to come up with suitable policies, administrative, legislative and constitutional measures to ameliorate the plight of indigenous populations/ communities in Africa. In my view, therefore, the work has just begun. Commissioner Musa Ngary Bitaye Chairperson, African Commission’s Working Group on Indigenous Populations/ Communities in Africa (WGIP) iv EXECUTIVE SUMMARY A Introduction Through ILO Convention No. 169 and the UN Declaration on the Rights of Indigenous Peoples World-wide, indigenous peoples are faced with (UNDRIP), international human rights law injustices such as dispossession of historical land provides important standards on the rights of and resources and forced assimilation into the indigenous peoples. However, no African State way of life of dominant groups. Indigenous has as yet ratified ILO Convention No. 169, and peoples in Africa face even bigger challenges as a UNDRIP is not a binding legal instrument. result of the fact that African States have been Nevertheless, African States have become State reluctant to acknowledge the very existence of parties to many other international

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