INDIGENOUS PEOPLES’ RIGHTS IN SOUTHERN AFRICA Edited by Robert Hitchcock and Diana Vinding IWGIA Document No. 110 - Copenhagen 2004 3 INDIGENOUS PEOPLES’ RIGHTS IN SOUTHERN AFRICA Editors: Robert K. Hitchcock and Diana Vinding Copyright: IWGIA 2004 – All Rights Reserved Cover design, typesetting and maps: Jorge Monrás Proofreading: Elaine Bolton Prepress and Print: Eks/Skolens Trykkeri, Copenhagen, Denmark ISBN: 87-91563-08-9 Distribution in North America: Transaction Publishers 390 Campus Drive / Somerset, New Jersey 08873 www.transactionpub.com 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 4 This book has been produced with financial support from the Danish Ministry of Foreign Affairs 5 CONTENTS Introduction Robert K. Hitchcock and Diana Vinding ......................................8 1. The Indigenous Peoples of Southern Africa: An Overview Sidsel Saugestad ...............................................................................22 NAMIBIA 2. Indigenous Rights in Namibia Clement Daniels ...............................................................................44 3. Indigenous Land Rights and Land Reform in Namibia Sidney L. Harring ............................................................................63 4. Civil Rights in Legislation and Practice – A Case Study from Tsumkwe District West, Namibia Richard Pakleppa with inputs from the WIMSA team ..............................................82 SOUTH AFRICA 5. The Rights of Indigenous Peoples in South Africa Roger Chennells and Aymone du Toit .........................................98 6. The Richtersveld Challenge: South Africa Finally Adopts Aboriginal Title T.M. Chan ........................................................................................114 BOTSWANA 7. Equality and Ethnicity: How Equal are San in Botswana? Isaac Mazonde ................................................................................134 8. The Past and Future of San Land Rights in Botswana Michael Taylor ................................................................................152 6 9. Indigenous Women in Botswana: Changing Gender roles in the Face of Dispossession and Modernization Robert K. Hitchcock, Melvin Johnson and Christine E. Haney .................................................................166 THE REGION 10. Human Rights and Participation among Southern African Indigenous Peoples Joseph Akpan, Ignatius Mberengwa, Robert K. Hitchcock and Thomas Koperski ..............................184 11. Natural Resource Management Among Kalahari San: Conflict and Cooperation Robert K. Hitchcock .......................................................................202 12. Indigenous Rights in Education: The San of Southern Africa in Local and Global Contexts Jennifer Hays ..................................................................................228 Appendix Khoe-San Languages, an Overview Sidsel Saugestad .............................................................................250 List of Acronyms and Terms ............................................................254 Bibliography ........................................................................................258 Contributors .........................................................................................276 7 INDIGENOUS PEOPLES’ RIGHTS IN SOUTHERN AFRICA: AN INTRODUCTION Robert K. Hitchcock Diana Vinding ndigenous peoples in Africa and their rights have been the focus of I much deliberation and debate in recent years.1 These discussions have taken place in academic institutions and journals in Africa, Eu- rope and North America, as well as within the European Union, the World Bank and the United Nations. A major area of dissent has been whether the concept of “indige- nousness”, and hence of specific “indigenous” rights, could be used in an African context. Most African governments have until now main- tained that all their citizens are indigenous or, alternatively, argued that there is no such thing as an indigenous group in their country. Some researchers and social scientists have stressed that the problems faced by certain ethnic minorities have more to do with poverty than cultur- al differences and the problems they face should therefore be alleviated by welfare and development measures (see Saugestad, this volume). There is no single, agreed-upon definition of the term “indigenous peoples” but, as Saugestad mentions in her Overview (this volume), the four most often invoked elements are: (1) a priority in time; (2) the voluntary perpetuation of cultural distinctiveness; (3) an experience of subjugation, marginalisation and dispossession; (4) and self-identifica- tion. Often, the term indigenous is used to refer to those individuals and groups who are descendants of the original populations (that is, the “first nations”) residing in a country. In the case of Africa this rais- es particular problems. Africa is the continent with the longest history of human occupation, and it contains the greatest range of human ge- netic and cultural diversity. In many cases, it is difficult to determine antecedence since a variety of populations have moved into and out of local areas over time. There have been complex interactions between “first peoples” and newcomers, often with the result that the former groups are marginalized. In no country in Africa are indigenous peo- ples in control even at local government level, and far less in positions of power at national level. However, an important criterion for “indigenousness” is the iden- tification by people themselves of their distinct cultural identity. Most people prefer to reserve for themselves the right to determine who is 8 and is not a member of their group. There exist in Africa a number of population groups who define themselves - and are defined by oth- ers - as “indigenous” i.e. they feel that they are culturally distinct from their neighbors and the dominant ethnic groups and, as a result, share a common experience that includes dispossession of land and natural resources, impoverishment, discrimination and human rights abuses. An important number of the people, who in an African context, define themselves as indigenous, live in southern Africa and while some countries in the region, such as South Africa, have taken im- portant steps toward recognizing their rights, others have abrogated these rights, with members of indigenous groups being discriminat- ed against, dispossessed of their ancestral lands and deprived of their rights to resources. This book aims to look at some of the complex issues relating to the situation of these indigenous peoples. It examines their human rights in the broad sense, taking into consideration their civil and political rights, their social, economic and cultural rights, as well as their rights to devel- opment, participation, a healthy environment and peace. More specifi- cally it deals with land rights, gender issues, natural resource manage- ment, education and with some of the efforts being made by indigenous groups and their supporters to defend and promote these rights. Attention is focused primarily on six countries, where ethnic groups, who historically have been characterized as indigenous, still live. These populations used to be called Bushmen and, in the case of Botswana, Basarwa, while others were known as Nama or Hottentot (Schapera 1930, 1933). Today, they are usually generically known as San and Khoe respectively but use of the names they give themselves is be- coming ever more prevalent. Khoe and San peoples are found in An- gola, Botswana, Namibia, South Africa, Zambia, and Zimbabwe (Bar- nard 1992; Suzman 2001a). There are also other groups who claim in- digenous status such as, for example, the Himba of Namibia and the Vadema of Zimbabwe (see the chapters by Daniels, Harring and Ak- pan et al.). In all six of these southern African countries, the San and Khoe are numerical minorities, though there are regions within the boundaries of the states where they outnumber other groups. There are also smaller indigenous groups, like the Ju|’hoansi of north-western Botswana and north-eastern Namibia, who overlap national borders. The transbound- ary nature of many indigenous peoples puts them in a special position vis-à-vis nation-states, many of whom are concerned about their sover- eignty and security and are attempting to prevent movements of peo- ple and goods across their borders. Zambia is a case in point since its government does not recognize the San living in the country as being Zambian citizens but sees them primarily as refugees or immigrants from Angola, as noted by Akpan et al. (this volume). 9 The claims of indigenous peoples in southern Africa are relative- ly similar to those of indigenous peoples in other parts of the world: they wish to have their human rights respected; they want ownership and control over their own land and natural resources; and they want the right to participate through their own institutions in the political process at the nation-state, regional and international levels. Howev- er, as this book documents, they live in a region where discrimination and human rights abuses have been rife and where they are still dom- inated by a mainstream society that deals with them “injudiciously and with impunity at the three levels of the individual, the communi- ty and the state” to quote Mazonde (this volume). The