INTERSESSION REPORT OF THE WORKING GROUP ON INDIGENOUS POPULATIONS/COMMUNITIES IN AFRICA
Commissioner Soyata MAÏGA
Chairperson of the Working Group
55th Ordinary Session of the African Commission on Human and Peoples’ Rights
28 April – 12 May 2014
In accordance with Rule 23(3) of the Rules of Procedure of the African Commission on Human and Peoples’ Rights (the Commission) and in my capacity as the Chairperson of the Working Group on Indigenous Populations/Communities (the Working Group), I present this report on the promotion activities carried out since the 54th Ordinary Session of the Commission held in Banjul, The Gambia, from 22 October to 12 November 2013.
The report also covers activities carried out by other members on behalf of the Working Group.
I – Activities undertaken in my capacity as the Chairperson of the Working Group
Participation in Seminars/Forums
5 – 6 February 2014
The Working Group in collaboration with its focal point in Tunisia and Algeria, Congres Mondial Amazigh, organized a Regional Sensitization Seminar on the Rights of Indigenous Peoples’ in North Africa in Tunis, Tunisia, from 5 to 6 February 2014. A total of forty-seven delegates participated at the Seminar representing the Office of the High Commissioner for Human Rights, the Working Group, and national human rights institutions, non-governmental organizations and indigenous communities from the North African sub-region.
The main objectives of the Seminar were to sensitize key stakeholders in North Africa about the work of the Working Group; to identify the main challenges faced by indigenous communities in the sub-region and the principal tenets of a strategy for better collaboration among the various stakeholders present at the Seminar. In view of these objectives, various issues pertinent to the topic were discussed including:
The state of indigenous peoples in Africa;
International legal and institutional frameworks for the promotion and protection of indigenous peoples’ rights;
The African human rights system and indigenous peoples’ rights;
Key challenges facing indigenous peoples in North Africa;
Recognition and legal protection of indigenous peoples’ rights at the regional and international level, and best practices; and
Development of a strategy to strengthen advocacy and promote networking among NGOs in the North African region involved in the protection of indigenous peoples’ rights.
In my opening address, I underscored how important it was for the Working Group to exchange with the various stakeholders, for the first time and after several failed attempts, on the general situation of the rights of indigenous communities in North Africa, especially in light of new developments in the region since the start of the Arab spring.
I emphasized the need for participants to focus their interventions and contributions on challenges being faced relating in particular to arabization policies, the recurring question of respect for the identity, language and culture of populations concerned as well as their specific needs in the area of justice and socio-economic and political rights. I also urged the various stakeholders attending the Seminar to deliberate on possible solutions likely to enhance the living conditions of indigenous peoples enabling them to contribute to the development of their countries, as full citizens.
At the end of the Seminar participants adopted a Final Communiqué wherein concrete recommendations were made to all stakeholders including the Commission, governments, national human rights institutions, NGOs and indigenous communities of the North African sub-region. The English, French and Arabic versions of this Final Communiqué are available on the website of the Commission www.achpr.org.
The African Development Bank (AfDB), which commissioned a study on the need to develop a specific policy for this institution in favour of indigenous peoples, could not participate in the Seminar, though the Working Group had met earlier with the consultant undertaking the study and discussed the draft report of the study. The Working Group hopes that the AfDB, like other development institutions, will develop such a policy within a short timeframe.
B. Letters / Urgent Appeals
It will be recalled that in 2011 the Commission adopted Resolution no. 197/2011 regarding the protection of indigenous peoples' rights in the context of the World Heritage Convention and the designation of Lake Bogoria as a World Heritage Site. Through this Resolution the Commission expressed its concern over the designation of Lake Bogoria as a World Heritage without obtaining the free, prior and informed consent of the Endorois, an indigenous community living in the area, and despite the fact that the Endorois Welfare Council had urged the World Heritage Committee to defer the nomination because of the lack of meaningful involvement and consultation with the Endorois.
In the Resolution, the Commission further noted that the inscription of Lake Bogoria on the World Heritage List without involving the Endorois in the decision-making process and without obtaining their free, prior and informed consent contravenes the Commission’s decision in Communication 276/2003, Centre for Minority Rights and Development & Minority Rights Group International on behalf of Endorois Welfare Council v Kenya, which affirms the rights of ownership of the Endorois to their ancestral lands around Lake Bogoria and that these rights are protected by Article 14 of the African Charter on Human and Peoples’ Rights.
As a follow-up to this Resolution, on 5 November 2013 I wrote a letter to Mr. Kishore Rao, Director of the UNESCO World Heritage Centre, reiterating the above-raised concerns of the Commission and calling on his office to:
review and revise its current procedures to ensure that the implementation of the World Heritage Convention is consistent with the UN Declaration on the Rights of Indigenous Peoples;
establish measures to ensure full transparency in the processing of nominations, including making nominations publicly available as soon as they are received to enable the affected indigenous peoples, communities and other stakeholders to have adequate time to review and respond to the nominations being assessed by the World Heritage Committee;
work with the IUCN, responsible in carrying out technical evaluations of World Heritage nominations, to recommend if required, the deferral of nominations pursuant to its powers under the Operational Guidelines, where it cannot be verified that the affected indigenous people have been adequately consulted, involved and their concerns reflected in the nomination documents and management plans, and that their free, prior and informed consent has been obtained;
review and revise its procedures for evaluating the state of conservation of World Heritage sites, with a view to ensuring that indigenous peoples' rights are respected, protected and fulfilled in the management of World Heritage areas;
collaborate with the Government of Kenya, the World Heritage Committee and UNESCO to ensure the effective participation of the Endorois in the management and decision-making of the ‘Kenya Lake System’ World Heritage area through their own representative institutions;
urge the Government of Kenya to fully implement the Commission’s Endorois Decision in the World Heritage Area.
On 3 December 2013, Mr. Rao responded to my letter indicating that the appeal and concerns of the Endorois community are under consideration. He detailed the various safeguard measures that are put in place to ensure the rights of indigenous peoples living in and around World Heritage Sites are not adversely affected. I would, therefore, like to seize this opportunity to commend UNESCO for considering my appeal and for taking measures to prevent similar situations from happening again.
On 6 August 2013, I sent an Urgent Appeal to the Government of Botswana on allegations of the effect that Mr. Gordon Bennett, a lawyer of the Basawara people, was prevented from entering this State Party where he was due to represent this indigenous community before the national courts. We are still awaiting the response of the Government. However, it was indicated in my Appeal that these allegations, if true, amount to serious violations of the rights of defence and the right to a fair hearing, guaranteed in the African Charter as well as other relevant regional and international instruments ratified by Botswana.
II - Activities carried out by Expert Members of the Working Group
Report of the Research and Information Visit to the United Republic of Tanzania
The Working Group undertook a Research and Information Visit to the United Republic of Tanzania in January 2013 and the report was adopted by the ACHPR at its 15th Extraordinary Session held in Banjul (Gambia) in March 2014.
In line with Rule 60(4) of the Rules of Procedures of the Commission the report has been forwarded to the State to give its comments, if any, within sixty (60) days.
Regional Sensitization Seminar in Tunis
Expert members of the Working Group participated in the Regional Sensitization Seminar in Tunis and greatly contributed to discussions through their expertise and high quality presentations on examples of best practices observed in other regions. They enhanced the level of discussions and facilitated the formulation, by participants, of pertinent recommendations for consideration by their governments. I would like to take this opportunity to once again commend them and also thank our partner IWGIA, whose financial contribution made it possible to successfully conduct this activity.
Some other organizations have also expressed their interest to serve as focal points of the Working Group. The Working Group will decide upon these requests at its next meeting. Organizations that want to serve as focal points of the Working Group are kindly advised to contact Mr. Samuel Tilahun, the assistant to the Working Group.
Electronic Newsletter of the Working Group – The Voice of the Indigenous
The Working Group is soliciting articles, news or any other stories relating to indigenous communities in Africa for the second edition of its E-newsletter – The Voice of the Indigenous. And hence anyone interested in publishing an article or news on this E-newsletter can contact Mr. Samuel Tilahun Tessema at email@example.com.
Study on Extractive Industries
The “Study on Extractive Industries, Land Rights and the Rights of Indigenous Communities/Populations in East, Central and Southern Africa” that is commissioned by the Working Group is progressing as per the timelines set for it. The consultant who is undertaking the Study forwarded the first draft of the report to members of the Working Group for their comments and inputs. Once inputs are made by members of the Working Group, the first draft of the report will be finalized and presented at a validation seminar that is planned to be held in June or July of this year.
The report is expected to be finalized by the end of this year. ….
Participation at a World Bank meeting
In December 2013 Dr. Naomi Kipuri and Ms. Lesle Jansen, expert members of the Working Group, attended a Consultation Meeting of African Indigenous Peoples organized by the World Bank in Cape Town, South Africa.
As I reported in my last inter-session report, although the Working Group organized in Nairobi, and invited the Government of Kenya to a Workshop on the Status of Implementation of the Endorois Decision of the African Commission in September 2013, the government was regrettably absent during the Workshop. I, therefore, want to once again call upon the Government of Kenya to honour its promises and report on the status of implementation of the Endorois decision.
I would also like to call upon the Government of Botswana to respond to my Urgent Appeal of 6 August 2013 concerning the alleged prevention of Mr. Gordon Bennet, a Lawyer of the Basawara People, from entering the Republic of Botswana.
IV. Planned Activities of the Working Group
Several activities are planned for the coming months. I would like to draw the attention of State parties to their obligation to support and facilitate implementation of the African Commission’s general mandate.
For the successful execution of our planned activities, which are geared towards the betterment of the situation of indigenous communities in Africa, we rely on the support and assistance of all stakeholders particularly States and NGOs. I call on the governments of Cameroon and South Africa to invite us to undertake the planned visit to their countries, and NGOs, national human rights institutions and other partners to continue providing us with the necessary information and logistical support that are indispensable in discharging our mandate.
During the inter-session major improvements in the human rights situation of indigenous communities has not been reported. Rather intimidation of indigenous peoples’ rights activists and eviction of indigenous communities have been reported in Kenya and Tanzania.
I, therefore, would like to urge states to refrain from taking any regressive measures that adversely affect the rights of indigenous communities, and to ensure that indigenous communities are well informed and consulted in line with internationally agreed standards with regards to projects that affect them.
States are urged to take specific legislative, administrative, institutional and other measures to promote and protect the rights of indigenous peoples.
States are also urged to ratify the ILO Convention 169, and continue collaborating with the Working Group.
They should also undertake to incorporate the relevant provisions of the UN Declaration in their domestic legislation and ratify the ILO Convention 169 without delay.
States, TFPs, NHRIs and NGOs are as well urged to work closely with the Working Group for the recognition and realization of the rights of indigenous peoples in Africa/.