B. Indigenous Peoples' Identity: ‘Indigenousness’ in Africa

The debate on the definition of who are the indigenous peoples of Africa, and whether this legal category is relevant to the continent, has undermined progress on the protection of their rights in Africa. There is general agreement at the international level that a strict legal definition of indigenous peoples might not be necessary; however, some voices have also expressed the need to define who the rights holders of the emerging human rights regime for indigenous peoples are.Footnote ²⁴ This need for a definition was highlighted by several of the African States involved in the debate that lead to the adoption of the UNDRIP.Footnote ²⁵ While there is no universally accepted legal definition for indigenous peoples under international law, the definition proposed by United Nations Special Rapporteur Cobo is usually accepted as authoritative.Footnote ²⁶ It states that ‘[i]ndigenous communities, peoples and nations are those which, having a historical continuity with pre-invasion and pre-colonial societies that developed on their territories, consider themselves distinct from other sectors of the societies now prevailing in those territories, or parts of them.’Footnote ²⁷ This proposed definition emphasises whether the people in question are descendants of those inhabiting an area at the time of the arrival of other groups. In the context of Africa, the reference to ‘pre-invasion’ and ‘pre-colonial’ societies is often viewed as problematic since the emphasis is on the fact that certain communities would be more ‘aboriginal’ or ‘native’ to the continent than others.Footnote ²⁸ While such a criterion of identification might be effective in countries that have witnessed large colonial settlements, in most African countries nearly all communities are actually ‘pre-colonial’ in the sense of being ‘original’ to the continent. This aspect of the definition of the ‘original inhabitant’ has resulted in its rejection, and has been labelled as being an overly Western approach to ethnicity, akin to a form of neo-colonization.Footnote ²⁹ Under colonial rules all Africans were usually considered as being ‘natives’, and in this sense the interpretation of terms such as ‘indigenes’, ‘natives’ or ‘indigenous’ was usually being ‘not a foreigner’. In general the focus on the meaning of ‘aboriginality’, or ‘being first’, is probably the most controversial and has led to a suspicious approach to the emerging international human rights regime regarding indigenous peoples' rights.Footnote ³⁰

On this issue, the Commission in its Advisory Opinion stated: ‘in Africa, the term indigenous populations does not mean ‘first inhabitants’ in reference to aboriginality as opposed to non-African communities or those having come from elsewhere. This peculiarity distinguishes Africa from the other Continents where native communities have been almost annihilated by non-native populations.'Footnote ³¹ This is an important statement, highlighting that the narrow focus on the issue of being ‘first’ or not should not be the main focal point in Africa. The Commission's view is that ultimately any African can legitimately consider him/herself as ‘indigene’ (or autochthonous) to the continent. This statement highlights that the emphasis (often more political than legal) on the colonial aspect of the definition is irrelevant in the context of Africa. Instead, moving away from the political issue, the Commission concluded that: ‘it is much more relevant and constructive to try to bring out the main characteristics allowing the identification of the indigenous populations and communities in Africa.’Footnote ³²

This pragmatic focus on practical characteristics echoes the findings of the Working Group on the issue of definition, which had proposed a list of ‘possible criteria for identifying indigenous peoples.’Footnote ³³ Highlighting that under international law there is no agreed definition, and that such a definition is neither necessary nor desirable, the Report of the Working Group proposed to focus on the contemporary characteristics of identification. The report portrays how throughout Africa, several communities are victims of pernicious human rights violations, including systematic discrimination, since they are viewed as being ‘underdeveloped’, ‘backward’, or ‘primitive’.Footnote ³⁴ One of the first characteristics put forward by the report is that indigenous communities are societies facing extreme forms of marginalization and discrimination. The Working Group noted that the groups who identified themselves as indigenous peoples share the following characteristics:

1. a) their culture and way of life differ considerably from the dominant society, to the extent that their culture is under threat of extinction;

2. b) the survival of their particular way of life depends on access to lands and natural resources;

3. c) they suffer from discrimination as they are being regarded as less developed and less advanced than other more dominant sectors of society;

4. d) they often live in inaccessible regions and are often geographically isolated;

5. e) they are subject to domination and exploitation within national political and economic structures.Footnote ³⁵

The principal message of the report of the Working Group is that the focus on ‘aboriginality’ in the sense of being ‘first’ is counter-productive and also goes against the ‘modern analytical understanding’ which concentrates on marginalization, cultural difference and self-identification at the international level.

The report also highlights how most of the communities that have identified themselves as being indigenous are predominantly pastoralist or hunter-gatherer societies.Footnote ³⁶ It states that: ‘[T]he favouring of settled agriculture over hunting, gathering and nomadic cattle herding has been instrumental in both marginalizing and stigmatizing some peoples and inspiring them to identify themselves as indigenous groups.’Footnote ³⁷ While the report highlights that by no means should the focus on hunter-gatherers and pastoralist communities be seen as conclusive, the fact that the report concentrates so much on these specific communities might nonetheless be seen as an indication of the specificity of indigenous peoples in Africa. It could be argued that while at the international level there has been much emphasis on ‘pre-colonial’ societies in the sense of being different from the colonial settlers' societies, in Africa the term settlers' societies should be taken in the context of the relationship between predominately settled societies and marginalized nomadic or semi-nomadic societies.

The issue of definition resurfaced in the Endorois case. One of the arguments put forward by the Government of Kenya (the Government) was that the Endorois do not constitute a specific community, or clan on their own, but are part of the larger Kalenji ethnic group dominating the area.Footnote ³⁸ The Government argued that ‘the inclusion of the Endorois in ‘modern society’ has affected their cultural distinctiveness, such that it would be difficult to define them as a distinct group that is very different from the Tugen sub-tribe or indeed the larger Kalenjin tribe.'Footnote ³⁹ Behind this claim, the Government was inviting the Commission to define whether the Endorois constitute a distinct indigenous community, and by extension to outline what the criteria were to define indigenous peoples. The Commission was returned to the contentious issue of defining whether the category of indigenous peoples could be legally defined, but this time by reference to a specific case. The Commission started by highlighting that ‘as far as ‘indigenous peoples’ are concerned, there is no universal and unambiguous definition of the concept, since no single accepted definition captures the diversity of indigenous cultures, histories and current circumstances.'Footnote ⁴⁰ Nonetheless, relying on the Report of the Working Group, the Commission recapitulated that the important criterion to take into consideration are:

1. a) the occupation and use of a specific territory;

2. b) the voluntary perpetuation of cultural distinctiveness;

3. c) self-identification as a distinct collectivity, as well as recognition by other groups; and

4. d) an experience of subjugation, marginalisation, dispossession, exclusion or discrimination.Footnote ⁴¹

The Commission clearly viewed the cultural and spiritual attachment to a specific territory as a strong indication of ‘indigenousness’, highlighting that what is ‘clear is that all attempts to define the concept of indigenous peoples recognize the linkages between peoples, their land, and culture and that such a group expresses its desire to be identified as a people or have the consciousness that they are a people.’Footnote ⁴² Looking at the different proposed international definitions, the Commission noted that ‘there is a common thread that runs through all the various criteria that attempts to describe indigenous peoples—that indigenous peoples have an unambiguous relationship to a distinct territory and that all attempts to define the concept recognise the linkages between people, their land, and culture.’Footnote ⁴³ In this case, the Commission focused on the fact that the Endorois culture, religion, and traditional way of life are intimately intertwined with a special relationship to their ancestral lands. The Commission highlighted that without access to their ancestral land, the Endorois are unable to fully exercise their cultural and religious rights, and feel disconnected from their land and ancestors.Footnote ⁴⁴

The other important factor for the Commission was self-identification as indigenous. In this case, the Commission accepted that ‘self-identification for Endorois as indigenous individuals and acceptance as such by the group is an essential component of their sense of identity.’Footnote ⁴⁵ Interestingly, the Commission did focus on decisions from the Inter-American Court of Human Rights (IACtHR), in which the IACtHR had to decide whether the Afro-American community (Maroons) could qualify as indigenous.Footnote ⁴⁶ The Commission saw these cases as relevant since the Afro-American communities, not being part of the ‘narrow/aboriginal/pre-Colombian’ society, were not strictly within the category of being ‘indigenous’.Footnote ⁴⁷ Also relevant was the fact that some members of the Maroons community had opted out the traditional way of life, an argument advanced by the Government in the Endorois case. On this issue, and based on the decisions of the IACtHR, the Commission found that ‘the Endorois cannot be denied a right to juridical personality just because there is a lack of individual identification with the traditions and laws of the Endorois by some members of the community.’Footnote ⁴⁸ In the view of the Commission, the important factors to bear in mind were the fact that the tribal community had ‘a profound and all encompassing relationship to their ancestral lands’ that was centred, not ‘on the individual, but rather on the community as a whole.’Footnote ⁴⁹ This special relationship with land, as well as their communal concept of ownership, was considered a central aspect of the definition of ‘indigenousness’. The Commission concluded:

To summarize, the important criteria put forward by the African Commission are:

1. 1. ‘distinctiveness’: this includes self-identification as being indigenous but also a shared history of marginalisation;

2. 2. ‘peoplehood’: being a distinct people, sharing a common history, culture and religion; and

3. 3. ‘territoriality’: the centrality of land as a source of culture and spirituality.

Removing the debate from the theoretical trap of ‘aboriginality’, which in the context of Africa has little significance, the Commission's decision demonstrates a willingness to adopt a resolutely pragmatic approach by primarily focusing on marginalization, self-identification and the cultural importance of territory. Such a constructive approach to definition is consistent with the Report of the Working Group as well as the Commission's Advisory Opinion, These clear statements by the Commission on the issue of definition will hopefully close a long and frustrating period that has focused predominately on political issues regarding ‘aboriginality’, and herald a new era focusing on the specificity of ‘indigenousness’ in Africa, and targeted towards addressing their marginalization.

C. Indigenous Peoples and the Right to ‘Cultural Integrity’

In recent years, international human rights law has placed great emphasis on the importance of recognizing indigenous peoples' cultural rights.Footnote ⁵¹ More specifically, there has been the emergence of what has been labelled as a ‘right to cultural integrity’ for indigenous peoples.Footnote ⁵² While the right to cultural integrity does not appear in any of the international human rights treaties, it refers to a bundle of different human rights such as rights to culture, subsistence, livelihood, religion and heritage.Footnote ⁵³ At the international level, the UN Human Rights Committee (the Committee) has developed a strong legal connection between access to land and cultural rights for indigenous peoples based on article 27 of the International Covenant on Civil and Political Rights, which protects cultural rights for minorities.Footnote ⁵⁴ In an important General Comment, the Committee has stated that ‘with regard to the exercise of the cultural rights protected under article 27, the Committee observes that culture manifests itself in many forms, including a particular way of life associated with the use of land resources, especially in the case of Indigenous peoples.’Footnote ⁵⁵ At a regional level, the IACtHR has also developed jurisprudence on cultural integrity by focusing on the right to property, the right to life, and right to health.Footnote ⁵⁶ In the context of Africa, the right to cultural integrity was advanced by the Endorois community in their communication to the Commission. They claimed that access to their ancestral territory ‘in addition to securing subsistence and livelihood, is seen as sacred, being inextricably linked to the cultural integrity of the community and its traditional way of life.’Footnote ⁵⁷ As the Endorois highlighted, access to traditional lands relates to ‘health, livelihood, religion and culture’, as they ‘are all intimately connected with their traditional land, as grazing lands, sacred religious sites and plants used for traditional medicine are all situated around the shores of Lake Bogoria.’Footnote ⁵⁸ There is no specific provision in the African Charter referring to a ‘right to cultural integrity’. Instead the Endorois claimed that their removal meant a violation of their right to practice their own religion (article 8), their right to culture (article 17) and their right to access natural resources (article 21).

The Endorois argued that the decision to remove them from their traditional territories was directly affecting their right to religious freedom. Access to Lake Borogia plays an important role in the religious tradition of the Endorois, as it is a place of an annual religious ritual and at the centre of other important places of worship for the community. The Endorois contended that their dispossession amounted to a violation of article 8 of the African Charter which states: ‘Freedom of conscience, the profession and free practice of religion shall be guaranteed. No one may, subject to law and order, be submitted to measures restricting the exercise of these freedoms.’ They claimed that their spiritual beliefs and ceremonial practices attached to the land constitute a religion. In their complaint, the Endorois highlighted that an indigenous group whose spiritual belief is intimately tied to the land requires special protection that should fall under the protection of freedom to practice a religion. By not allowing them to access their ancestral spiritual sites, the Government had violated their right to practice their religion.

The issue for the Commission was to determine whether such spiritual beliefs and ceremonial practices could constitute a ‘religion’ for the purpose of the African Charter. The Commission did recognize that the concerned territory was a significant spiritual place for the community, on the basis that the Endorois pray and regularly hold religious ceremonies at several spiritual sites situated around Lake Bogoria, and that their ancestors are buried near the Lake. The Commission acknowledged that ‘religion is often linked to land, cultural beliefs and practices, and that freedom to worship and engage in such ceremonial acts is at the centre of the freedom of religion.’Footnote ⁵⁹ Taking into consideration the Committee's General Comments on religion,Footnote ⁶⁰ as well as its own jurisprudence,Footnote ⁶¹ the Commission accepted that the Endorois spiritual beliefs and ceremonial practices constitute a religion under the African Charter. However, the Commission also highlighted that the freedom to practice religion is not absolute, and the right can in some circumstances be restricted. Hence, the issue was to determine to what extent the Government could legitimately restrict the access of the Endorois to their spiritual sites. As the Commission highlighted:

The Commission found that the restriction imposed on the Endorois to practice their religion was a significant restriction to their religious freedom, not justified by any public security interest or other justification. In particular, the Commission was of the view ‘that allowing the Endorois to use the land to practice their religion would not detract from the goal of conservation or developing the area for economic reasons.’Footnote ⁶³ The Commission concluded that Kenya had violated article 8 of the African Charter since the forced eviction of the Endorois from their ancestral land ‘interfered with the Endorois’ right to religious freedom and removed them from the sacred grounds essential to the practice of their religion, and rendered it virtually impossible for the Community to maintain religious practices central to their culture and religion.'Footnote ⁶⁴ Regionally, this decision represents an important development as it is the first time that the Commission has acknowledged that indigenous peoples have a specific religious attachment to land that could be qualified as being spiritual as well as religious, and therefore protected under the African Charter. Moreover, the recognition that access to a territory is part of the freedom to practice their religion for indigenous peoples is an important statement at the international level, since little jurisprudence exists on such a correlation.Footnote ⁶⁵

The spiritual attachment to their territory was only one part of the Endorois claim that their displacement was violating their cultural integrity. The second focus was on cultural rights. The community contended that their eviction from their ancestral lands was a violation of their right to enjoy their own culture, protected under the African Charter in article 17 (2) which states: ‘Every individual may freely, take part in the cultural life of his community.’ They argued that ‘Article 17 extends to the protection of indigenous cultures and ways of life’ and that by encroaching on their land rights, the government had committed a violation of their cultural rights.Footnote ⁶⁶ Generally speaking, cultural rights refer to the protection of social and artistic expression, arts, beliefs, or any social forms, and material trait of a racial, religious, or social group.Footnote ⁶⁷ Again at the international level, the issue of cultural rights has been at the forefront of the recognition of indigenous peoples' human rights with the Human Rights Committee making a clear connection between cultural rights and access to land.Footnote ⁶⁸ In the Endorois case, the issue was to define whether access to a territory could be regarded as part of the cultural life of the community. The Commission found that the Government had violated the Endorois' right to take part in the cultural life of their community, and highlighted that in general States have an obligation to ensure that the access of indigenous communities to their traditional territories is protected under article 17 of the African Charter as constituting cultural rights. The Commission concluded that the Government had ‘denied the community access to an integrated system of beliefs, values, norms, mores, traditions and artefacts closely linked to access to the Lake.’Footnote ⁶⁹ This broader approach to cultural rights integrates indigenous peoples' claim that cultural rights are part of their way of life, which includes access to land central to their own culture.

Another important aspect of the Endorois decision was on the connection between cultural rights and access to natural resources. The land around Lake Bogoria is a fertile soil and rich in salt licks providing great support to the cattle, which represent an important aspect of the pastoralist way of life of the community. The lack of access to these specific lands, the water and the salt licks resulted in serious loss of cattle for the Endorois. Outside the economic aspect of the restriction, one of the arguments put forward by the community was that such infringement was disrupting their pastoralist way of life and therefore encroaching on their cultural rights. In the view of the Commission this restriction constituted a violation of the community's cultural rights since ‘by forcing the community to live on semi-arid lands without access to medicinal salt licks and other vital resources for the health of their livestock, the Respondent State have created a major threat to the Endorois pastoralist way of life.’Footnote ⁷⁰ For the Commission, this constituted a violation of article 21 of the African Charter which states that ‘all peoples shall freely dispose of their wealth and natural resources.’ In finding a violation of article 21, the Commission did acknowledge that the right to freely dispose of natural resources is of crucial importance to indigenous peoples and their way of life.Footnote ⁷¹ On this issue, the Commission quoted a report from the former UN Sub-Commission Promotion and Protection of Human Rights which stated:

Overall, the African Commission in the Endorois case evinces the recognition of what has been labelled the ‘right to cultural integrity’ for indigenous peoples. As stated earlier, although this right is not strictly speaking integrated into international human rights norms, in recent years it has become an important part of the international jurisprudence on the human rights of indigenous peoples. It refers to the holistic approach that indigenous peoples have with their ancestral territories which are a source of spirituality, culture and social norms, and are central to the integrity and survival of their culture. The decision of the Commission embraced this international evolution but also developed its own approach on the meaning and content of the right to cultural integrity for indigenous peoples. The decision indicates that the right to cultural integrity is now to be considered part of the Commission's jurisprudence based on freedom of religion (article 8), right to culture (article 17), and access to natural resources (article 21). Regionally, it means that States have to consider the spiritual, cultural and social aspect of land dispossession for indigenous peoples. Globally, this adds another chapter to the emergence of indigenous peoples' right to cultural integrity by establishing a connection between access to ancestral territories and freedom of religion, cultural rights, and right to access natural resources. The affirmation of the right to cultural integrity involves the recognition that culture for indigenous peoples is much more than the traditional expression of culture, such as art or literature, but also embraces the social and spiritual values embedded in their territorial connections. This marks an important evolution towards the recognition of indigenous peoples' specific cultural, spiritual and holistic approach to their ancestral territories which is fundamental to the survival of their distinct culture.

D. Customary Land Rights as Property Rights

Land rights have become a central aspect of indigenous peoples' human rights at the international level.Footnote ⁷³ Regarding indigenous peoples in Africa, the Commission's Working Group has made clear that land rights are probably the most important human rights issue for indigenous peoples, since ‘the protection of rights to land and natural resources is fundamental for the survival of indigenous communities in Africa (…).’Footnote ⁷⁴ The Working Group's 2005 report also reveals that dispossession of land rights is widespread across the continent. One of the central issues for indigenous peoples is the lack of recognition of their customary land rights. The marginalization of indigenous peoples own forms of land tenure was a central feature of the colonial enterprise which was based on the premise that land held by pastoralist or hunter-gathering societies was de facto empty, or terra nullius.Footnote ⁷⁵ The rejection of indigenous customary land tenure has been perpetuated in most of post-colonial Africa.Footnote ⁷⁶ In the words of the Working Group:

In the Endorois case, the recognition of the community's rights to their ancestral lands was at the heart of the case. The community had put forward that they have traditionally occupied these lands for centuries under their own customary laws. The Endorois argued that their removal from their ancestral territories constituted a violation of their right to property as protected under article 14 of the African Charter.Footnote ⁷⁸ As with most land rights claims, there were some historical roots to the dispossession of the community. In 1963, with the independence of Kenya, the land of the Endorois was classified as ‘Trust Land’. The trust creates an obligation for the Government to act for the benefits of the communities living on ‘Trust Land’, and also to ensure that their customary rights are protected.Footnote ⁷⁹ The land in question was held in trust by the County Council under Sections 114 and 115 of the Constitution of Kenya.Footnote ⁸⁰ However, with the gazetting of the land as a Game Reserve in 1973, the Endorois were factually expelled from their lands. The Government accepted that traditionally the concerned land was part of the territory of the Endorois, but argued that having classified the land as ‘Trust Land’ and as a Game Reserve, it had legally extinguished the right of the community and provided proper compensation. Relying on decisions of national courts of other States, which have recognized that indigenous customary land rights have survived the colonial annexation of lands,Footnote ⁸¹ the Endorois argued that their traditional land rights should have been clearly recognised by the Government. The community argued that the establishment of a ‘Trust Land’ did not legally extinguish their land rights, and that they did not receive proper compensation for their removal. The argument was that the breach of the trust not only constituted a violation of Kenyan law but also was a violation of article 14 of the African Charter, since their removal was not in accordance with the provisions of the law. In a statement which is worth quoting at length, the Commission dismissed the whole system of trust land, stating:

This is a groundbreaking assertion rejecting whole system of ‘Trust Land’ for indigenous peoples, with implications far beyond the present case. The system of ‘Trust Land’ is quite common, and many States have adopted this system for indigenous peoples and continue to hold land in trust for indigenous peoples.Footnote ⁸³ By discarding the system of ‘Trust Land’ for not providing real right of ownership,Footnote ⁸⁴ the Commission emphasized that only proper ‘ownership ensures that indigenous peoples can engage with the state and third parties as active stakeholders rather than as passive beneficiaries.’Footnote ⁸⁵ The affirmation that ownership only and not usage is protected under the right to property is an important statement, since most States usually favour a right of usage for indigenous peoples rather than a right of ownership over their traditional territories.Footnote ⁸⁶

Having established that the right of the community was not extinguished by the Trust, the next step for the Commission was to determine whether the Endorois could exercise some form of proprietary rights over the land. Two central issues were at stake: first, to determine if a community could collectively exercise property rights, and secondly, whether customary land possession could constitute a source of property rights. Regarding the first issue, the High Court in Kenya had previously held that it could not address the issue of the Endorois community's collective right to property, referring throughout to ‘individuals’ affected and stating that ‘there is no proper identity of the people who were affected by the setting aside of the land … that has been shown to the Court’.Footnote ⁸⁷ The High Court relied on the Kenyan Bill of Rights contained in the Constitution, which does not protect collective property but only an individual right to property.Footnote ⁸⁸ The rejection of a collective right to property was a major issue for the Endorois, who have always had a collective approach to the use of the land, as have most of the traditional rural communities in Africa. From a global perspective, the individual approach to property rights is a serious restriction on the indigenous peoples' approach to collective land rights.Footnote ⁸⁹ While international human rights law has incrementally begun to recognize a collective right to property, the traditionally western individualist approach to property rights is still predominant.Footnote ⁹⁰ Only the Universal Declaration of Human Rights (UDHR) mentions that property rights might be exercised collectively by affirming that ‘everyone has the right to own property alone as well as in association with others.’Footnote ⁹¹ At the regional level, the Commission had previously been confronted with a clash between individual property rights and a collective claim to land rights by the Ogoni community in its claim against Nigeria.Footnote ⁹² However, the Commission avoided ruling on the possibility to have a collective approach to property rights by focusing on the right to housing instead of land rights. Hence, the Endorois claim represented the first real opportunity for the Commission to address the issue of collective ownership rights and it accepted that property rights protect both individual and collective forms of ownership. This is an important recognition which could a significant impact for the protection of collective land holding systems throughout the continent. From an international perspective, this also represents a positive evolution which is moving away from the traditional individual western approach to property rights towards a more universal approach to human rights law.

As in many other situations involving the rights of indigenous peoples to land, one of the issues in the Endorois case was to define whether customary possession could constitute ‘property’. This is a central issue for most indigenous communities in Africa, who usually do not hold formal title to their lands, but rely on customary occupation as proof of ownership. The Endorois have enjoyed possession of their lands for centuries, including during colonization, but do not hold any formal title to the land. Referring to other regional standards, the Commission noted that the IACtHR had recognized that that possession of the land should suffice for indigenous communities lacking real title to obtain official recognition of that property.Footnote ⁹³ Based on this comparative analysis, and guided by the UNDRIP, the Commission concluded that for indigenous peoples traditional possession of land ‘has the equivalent effect as that of a state-granted full property title’ and ‘entitles indigenous people to demand official recognition and registration of property title.’Footnote ⁹⁴ This recognition meant that the rights of the Endorois over their ancestral territory qualified as property protected under article 14 of the African Charter. More generally, the Commission highlighted that ‘the first step in the protection of traditional African communities is the acknowledgement that the rights, interests and benefits of such communities in their traditional lands constitute ‘property’ under the Charter and that special measures may have to be taken to secure such ‘property rights’.'Footnote ⁹⁵

The Commission then had to examine whether the dispossession of the Endorois constituted a violation of the community's property right. Article 14 of the African Charter establishes a two-pronged test, whereby encroachment can only be conducted ‘in the interest of public need or in the general interest of the community’ and ‘in accordance with appropriate laws’. In the case of indigenous peoples, the Commission highlighted that the ‘public interest’ test must be met with a much higher threshold than in cases involving individual private property since the land is so central to their culture. Taking into consideration the impact on the Endorois survival and right to life, the Commission found that ‘the upheaval and displacement of the Endorois from the land they call home and the denial of their property rights over their ancestral land is disproportionate to any public need served by the Game Reserve.’Footnote ⁹⁶ The Commission did recognize that the aim of establishing a Game Reserve was of itself legitimate, but that the means used to achieve such aims were not proportionate, since it could have been achieved by other ways which would respect the property rights of the Endorois. The Commission notably found that ‘the contested land is the site of a conservation area, and the Endorois—as the ancestral guardians of that land—are best equipped to maintain its delicate ecosystems’; and ‘the Endorois are prepared to continue the conservation work begun by the Government (…).’Footnote ⁹⁷ The community had also argued that ‘the upheaval and displacement of an entire community and denial of their property rights over their ancestral lands are disproportionate to any public need served by the Game Reserve.’Footnote ⁹⁸ On the issue of proportionality, the Commission concluded that the ‘continued dispossession and alienation from their ancestral land continues to threaten the cultural survival of the Endorois’ way of life, a consequence which clearly tips the proportionality argument on the side of indigenous peoples under international law.'Footnote ⁹⁹

Based on this finding, the Commission highlighted that article 14 not only imposes an obligation to respect property rights but also a duty to protect them. During the oral hearing of the case the Government had advanced the argument that specific legislation to protect the Endorois land rights would be discriminatory towards other members of the population. The Commission reminded the State that under international law, and within the African Charter, special measures to combat discrimination are not discriminatory but actually necessary.Footnote ¹⁰⁰ Referring to several recent decisions of the IACtHR, the Commission asserted that ‘special measures of protection are owed to members of the tribal community to guarantee the full exercise of their rights.’Footnote ¹⁰¹ Overall, examining the international jurisprudence on land rights for indigenous peoples, the Commission concluded that:

1. a) traditional possession of land by indigenous people has the equivalent effect as that of a state-granted full property title;

2. b) traditional possession entitles indigenous people to demand official recognition and registration of property title;

3. c) the members of indigenous peoples who have unwillingly left their traditional lands, or lost possession thereof, maintain property rights thereto, even though they lack legal title, unless the lands have been lawfully transferred to third parties in good faith; and

4. d) the members of indigenous peoples who have unwillingly lost possession of their lands, when those lands have been lawfully transferred to innocent third parties, are entitled to restitution thereof or to obtain other lands of equal extension and quality.Footnote ¹⁰²

In the case of the Endorois, this last point was critical as the community was not in possession of the land since they were removed in 1973. The Commission highlighted that ‘possession is not a requisite condition for the existence of indigenous land restitution rights.’Footnote ¹⁰³ Generally, land rights are a contentious issue for the continent as a whole. The affirmation that dispossession should give rise to restitution is an important statement since in several African States indigenous communities have been illegally dispossessed of their lands. The decision of the Commission on land rights and the finding that States have a duty to recognise customary land rights as constitutive of property rights represents a significant step, as does the affirmation that the importance of land rights for indigenous peoples is a human rights issue.

E. Indigenous Peoples and the Right to Development

Large-scale developmental projects may have a negative impact on indigenous peoples' culture and identity.Footnote ¹⁰⁴ The imposition of large infrastructure projects on indigenous lands without their consent often results in removal. Generally speaking, for indigenous peoples, large scale developments occurring on their traditional territories usually means encroachment on their right to live on their lands.Footnote ¹⁰⁵ The connection between development projects and the destruction of indigenous livelihood has been labelled as ‘development aggression’.Footnote ¹⁰⁶ In the context of Africa, the report of the Working Group has put forward that when it comes to human rights violations of indigenous communities, and especially their land rights, such violations are emerging from similar situations: the establishment of national parks and conservation areas; mining, logging, plantations, oil exploration and dam constructions; biased development policies and expansion for agricultural production.Footnote ¹⁰⁷ In this regard, it is not surprising that in the Endorois case the issues behind the removal of the community from its ancestral territory were similar. While the main aim was the establishment of a conservation area to allow the development of tourism in the region, there was also a project to allow ruby mining in the area.

When it comes to development and exploitation of natural resources, States often argue that they cannot stop such large scale developments that will bring significant wealth to the whole country to protect just a few people.Footnote ¹⁰⁸ Here, the Government argued that tourism and the exploitation of natural resources (notably the mining of ruby) would bring significant resources to the region. The Government highlighted the fact that the project for tourism around Lake Borogia was seen as a potential positive development and all the revenues raised by the Game Reserves were re-used to support development projects carried out by the County Council for the area. The Government suggested that the establishment ‘of a Game Reserve under the Wildlife laws of Kenya is with the objective of ensuring that wildlife is managed and conserved to yield to the nation in general and to individual areas in particular optimum returns in terms of cultural, aesthetic and scientific gains as well as economic gains as are incidental to proper wildlife management and conservation.’Footnote ¹⁰⁹ The Government argued that other communities, and the country as a whole, would benefit from the development. Moreover, the community was aware of the mining concession and would benefit from its exploitation. The Government concluded that ‘the task of communities within a participatory democracy is to contribute to the well-being of society at large and not only to care selfishly for one's own community at the risk of others.’Footnote ¹¹⁰

The Endorois argued that the development was taking place in violation of their right to development protected under article 22 of the African Charter, since they were not involved in the development process and were not benefiting from it. Article 22 states: ‘All peoples shall have the right to their economic, social and cultural development with due regard to their freedom and identity and in the equal enjoyment of the common heritage of mankind.’ The Endorois contended that as a result of the development taking place on their lands, their only choice was to leave the lake; they argued that this lack of choice was a violation of their right to development which should be equitable, non-discriminatory, participatory, accountable and transparent. The pastoralist community contended that the Government had violated their right to development by its failure adequately to involve them in the development process taking place on their customary lands as well as its failure to ensure the continued improvement of the community's well-being. Finally, the Endorois highlighted that the Government ‘did not embrace a rights-based approach to economic growth, which insists on development in a manner consistent with, and instrumental to, the realisation of human rights and the right to development through adequate and prior consultation.’Footnote ¹¹¹ It is not so much the legitimacy of the decision of the government in turning the land into a tourism and wildlife reserve that the community was contesting, but rather the way such decisions were made and notably the lack of consideration of their culture and survival. They believed that the Game Reserve and their pastoralist way of life should not be mutually exclusive. An important point put forward by the community was that ‘self-determination also include the ability to dispose of natural resources as a community wishes, thereby requiring a measure of control over the land.’Footnote ¹¹² Linking self-determination and development, they highlighted that they had ‘suffered a loss of well-being through the limitations on their choice and capacities, including effective and meaningful participation in projects that will affect them.’Footnote ¹¹³

From a global legal perspective, this aspect of the case is extremely appealing since there are few cases that have specifically focused on the right to development in the context of large scale developmental projects taking place on indigenous peoples' territories.Footnote ¹¹⁴ Under international human rights law there has been debate on the theoretical implications of the right to development but very rare instances of legal adjudication.Footnote ¹¹⁵ Hence, the fact that the Commission had to balance the two competing claims on the scope of the right to development in a legal decision is significant. Regarding the scope of the right to development, the Commission highlighted that ‘the right to development is a two-pronged test, that it is both constitutive and instrumental, or useful as both a means and an end.’Footnote ¹¹⁶ Pragmatically, the Commission concentrated on two principal issues: to what extent was the community consulted prior to the establishment of the wildlife reserve on their lands; and whether such development provides benefit to the concerned community.

Regarding participation, the Government had argued that the community had been involved in the process since the community's mining committee had entered into an agreement with the Kenyan company prospecting for minerals. The Endorois responded that the Government had refused to include their own representative leaders in the decision-making process. Traditionally the Endorois community's leadership is based on elders. However, more recently and due to external pressure on the survival of the community, they have established the Endorois Welfare Committee (EWC) to represent their interests. The local authorities have refused to register the EWC since its creation in 1996, despite two separate efforts to do so. In their complaint the Endorois highlighted that ‘this failure to register the Endorois Welfare Committee (..) has often led to illegitimate consultations taking place, with the authorities selecting particular individuals to lend their consent ‘on behalf’ of the community.'Footnote ¹¹⁷ This is important, since many indigenous communities find themselves in similar situations where States (and multinational corporations) consult with selected members of indigenous communities rather than customary leaders.Footnote ¹¹⁸ On this point, the Commission drew on the decision of the IACtHR in the Saramaka case, where the court highlighted that the government has a duty to actively consult with the community according to their customs and traditions and such consultations must be in good faith, through culturally appropriate procedures and with the objective of reaching an agreement.Footnote ¹¹⁹ The Commission highlighted that, to protect indigenous peoples' special relationship with their ancestral territories, States have to put in place three safeguards. First, the government has to ensure the effective participation of the members of the community in conformity with their customs and traditions, regarding any development, investment, exploration or extraction plan that will take place on their lands. Second, there should be a guarantee that the concerned community will receive a reasonable benefit from any such plan within their territory. Third, the government should ensure that no concession will be issued unless and until independent and technically capable entities, with the State's supervision, perform a prior environmental and social impact assessment.Footnote ¹²⁰

Moreover, the Commission added that the government ‘did not obtain the prior, informed consent of all the Endorois before designating their land as a Game Reserve and commencing their eviction.’Footnote ¹²¹ In this part of the decision the Commission endorsed the view that the State has a duty not only to consult with the community, but also to obtain their Free, Prior, and Informed Consent (FPIC), according to their customs and traditions. While the African Charter does not refer to FPIC as such, international human rights law has gradually developed such a right for indigenous peoples.Footnote ¹²² More precisely, the UNDRIP places great emphasis on the right to FPIC for indigenous peoples, especially in the context of development.Footnote ¹²³ It requires a process of consultation, which has to be free from manipulation and coercion, respect traditional decision-making processes, and be held in sufficient time in advance of project execution with adequate information provided to enable informed decisions to be taken.Footnote ¹²⁴ Ultimately, FPIC means that the concerned communities have to give their consent before any development takes place on their traditional territories. Adopting this approach, the Commission stated that ‘any development or investment projects that would have a major impact within the Endorois territory, the State has a duty not only to consult with the community, but also to obtain their free, prior, and informed consent, according to their customs and traditions.’Footnote ¹²⁵ In this case, the Commission found that the Government ‘did not impress upon the Endorois any understanding that they would be denied all rights of return to their land, including unfettered access to grazing land and the medicinal salt licks for their cattle.’Footnote ¹²⁶ The Commission added that the fact that the members of the community consulted by the Government were mainly illiterate impaired their ability to understand the documents and therefore did not constitute informed consent. Moreover, the Commission was ‘convinced that the inadequacy of the consultations left the Endorois feeling disenfranchised from a process of utmost importance to their life as a people.’Footnote ¹²⁷

The Commission was of the view that ‘no effective participation was allowed for the Endorois, nor has there been any reasonable benefit enjoyed by the community. Moreover, a prior environmental and social impact assessment was not carried out.’Footnote ¹²⁸ From a global perspective, the adoption of the right to FPIC by the Commission is significant since it is an area of the law where there is little legal adjudication. This aspect of the decision highlights how participation is important to the process of development. In the words of the Commission: ‘closely allied with the right to development is the issue of participation.’Footnote ¹²⁹

The Commission addressed another point regarding the scope of the right to development, the benefits of development. In the view of the Commission, a crucial point to judge whether the right to development benefited the community is through benefit-sharing, which ‘may be understood as a form of reasonable equitable compensation resulting from the exploitation of traditionally owned lands and of those natural resources necessary for the survival of the Endorois.’Footnote ¹³⁰ Again this is an area where there has been considerable theoretical debate on how development should mean benefit-sharing between the different stakeholders (eg the State, the citizens and the local communities), but very few judicial determinations.Footnote ¹³¹ The Commission found that the Government had not provided sufficient evidence to substantiate the claim that the community had benefited substantially from the tourism and mineral prospecting activities. The Commission concluded that the ‘result of development should be empowerment of the Endorois community. It is not sufficient for the Kenyan Authorities merely to give food aid to the Endorois. The capabilities and choices of the Endorois must improve in order for the right to development to be realised.’Footnote ¹³² As such the Commission highlighted that governments bear ‘the burden for creating conditions favourable to a people's development.’Footnote ¹³³ In the words of the Commission, ‘the right to development will be violated when the development in question decreases the well-being of the community.’Footnote ¹³⁴ More pragmatically, the Commission was of the view that ‘pursuant to the spirit of the African Charter benefit sharing may be understood as a form of reasonable equitable compensation resulting from the exploitation of traditionally owned lands and of those natural resources necessary for the survival of the Endorois community.’Footnote ¹³⁵

Overall, regarding the right to development the Commission found that ‘the failure to guarantee effective participation and to guarantee a reasonable share in the profits of the Game Reserve (or other adequate forms of compensation) also extends to a violation of the right to development.’Footnote ¹³⁶ While the 1986 Declaration on the Right to Development placed the individual at the centre by affirming that ‘the human person is the central subject of development and should be the active participant and beneficiary of the right to development’, this decision from the Commission placed the survival of the group as another important factor to include in the process of development. This focus on the content of the right to development is likely to provide a relevant practical guideline on the meaning of a human rights based approach to development when it comes to indigenous peoples' rights. As such the Commission has not only provided a relevant interpretation on the meaning of the right to development but has also provided guidelines on how to apply it pragmatically. The approach has to be praised as it is taking the right to development away from its ‘moral’ or ‘aspirational’ focus to a more legal and pragmatic content focusing on the process (participation) and outcomes (benefit-sharing) of development. Undoubtedly, this should greatly enhance the normative function of the right to development.

F. Conclusion

At the outset this article affirmed that the recent adoption of an Advisory Opinion, a recommendation, and the establishment of a working group focusing on indigenous issues by the African Commission constituted a pragmatic revolution. Probably the most visible aspect of this revolution concerns the Commission's approach to the contested issue of definition. The rejection of the ‘being first’ argument should put to rest the view that the concept of indigenous peoples is irrelevant since all Africans are indigenous to Africa. This is an important move away from the political, diplomatic and anthropological debate which has been undermining any development of indigenous peoples' human rights in the last few decades.Footnote ¹³⁷ By unravelling the impasse over issues of definition, citizenship or states' territorial integrity, the Commission has potentially unlocked the future of indigenous peoples' rights in Africa. The focus on discrimination and marginalization should assuage the fear that the recognition of indigenous peoples' rights will create ethnic tensions by establishing some sort of hierarchy amongst rights holders. On this issue, faithful to its pragmatic approach, the Commission highlighted that ‘in Africa, the term indigenous populations or communities is not aimed at protecting the rights of a certain category of citizens over and above others. This notion does not also create a hierarchy between national communities, but rather tries to guarantee the equal enjoyment of the rights and freedoms on behalf of groups, which have been historically marginalized.’Footnote ¹³⁸ Furthermore: ‘the term ‘indigenous’ is also not intended to create a special class of citizens, but rather to address historical and present-day injustices and inequalities.'Footnote ¹³⁹ The affirmation that some marginalized communities in Africa have access to the protection offered the category of indigenous peoples' human rights is an important step for the continent, but arguably also globally. When it comes to indigenous peoples, Africa and Asia are often used as illustrations on how the human rights discourse on indigenous peoples' rights is predominantly a Western Anglo-Commonwealth issue. The resolute steps undertaken by the Commission to tackle this issue of definition should have resounding effects on the understanding that indigenous peoples are present all over the globe, and not only in predominantly post-colonial settlers societies.

While it is certain that the contribution of the Commission regarding the definition is significant, its ruling on the content of the rights of indigenous peoples is equally important. Outside the key issue of definition, the work of the Commission in the last few years has seen the emergence of clear jurisprudence on the rights of indigenous peoples. As highlighted earlier, the rights that indigenous peoples have under international law is greatly influenced by developments taking place at the regional level.Footnote ¹⁴⁰ The contribution of the Inter-American system of human rights is usually seen as seminal to the content of indigenous peoples' human rights globally. The Commission's recent jurisprudence on indigenous peoples' human rights is likely to play an important role on the rights of indigenous peoples globally. From this perspective, Commission statements on issues of cultural integrity, land rights and development are indicative of how human rights law has become important to the survival of indigenous peoples. It is also worth noting that the Commission focus on the marginalization of pastoralists and hunter-gathering communities is significant since under international law, the rights of nomadic peoples are usually very poorly addressed. Generally the fact that the Commission has acknowledged that property rights include the protection of collective customary land holding systems is remarkable in the context of Africa. This recognition goes well beyond the rights of indigenous peoples as many rural communities in Africa are struggling to get recognition of their collective customary land rights.Footnote ¹⁴¹ At a time when the acquisition of lands by foreign companies is rampant, the recognition of customary land rights could become a significant source of litigation for the whole continent.Footnote ¹⁴² As stated above, the fact that the Commission applied the right to development in the context of indigenous peoples' human rights will contribute greatly to this underdeveloped aspect of indigenous peoples' rights, but also human rights in general. The right to development is a neglected aspect of human rights which many still view as aspirational. The fact that the Commission provided a practical analysis on the content of the right by clearly stating that it implies both a process of participation and access to the benefits of development is clearly a groundbreaking statement on the potential contribution of a human rights-based approach to development. It also places the right to development within the sphere of the right to self-determination, what can be termed ‘self-determined development’.Footnote ¹⁴³ The Commission approach is putting culture, identity, participation and benefits sharing at the centre of development, one of the first legal expressions of this right.

One can wonder if this is the start of new era for indigenous peoples' human rights in Africa. Looking back to the evolution of indigenous rights under international law, the Inter-American system is certainly leading the way with an extensive and developed jurisprudence regarding indigenous peoples' human rights.Footnote ¹⁴⁴ It is worth remembering that such jurisprudence began with the Inter-American Commission starting to adopt recommendations on the issue of indigenous peoples which enabled several cases regarding indigenous peoples' rights.Footnote ¹⁴⁵ At a time when the African Court on Human Rights is finally becoming operative, it is to be hoped that such developments will take place in Africa. Traditionally, the African system of human rights is not regarded as part of the ‘strong’ regional systems of human rights. Then again, a few years back neither was the Inter-American system. It took strong jurisprudence from the Inter-American Commission established by the regional treaty to give birth to what is now regarded as an effective regional monitoring system of compliance. The nascent jurisprudence of the African Commission on the rights of indigenous peoples could mark the emergence of the African system as a standard for other regions.