The Indigenous World 2022: African Commission on Human and Peoples’ Rights (ACHPR)

Written on 01 April 2022. Posted in African Commission on Human and Peoples’ Rights (ACHPR)

The African Commission on Human and Peoples’ Rights (ACHPR) was established in accordance with Article 30 of the African Charter on Human and Peoples’ Rights, with a mandate to promote and protect human and peoples’ rights on the continent. It was officially inaugurated on 2 November 1987 and is the premier human rights monitoring body of the African Union (AU). In 2001, the ACHPR established a Working Group on Indigenous Populations/Communities in Africa (WGIP), marking a milestone in the promotion and protection of the rights of Indigenous Peoples in Africa.

In 2003, the WGIP produced a comprehensive report on Indigenous Peoples in Africa which, among other things, sets out common characteristics that can be used to identify Indigenous communities in Africa. The report was adopted by the ACHPR in 2003 and was subsequently endorsed by the AU in 2005. The report therefore represents the official position of the ACHPR, as well as that of the AU, on the concept and rights of Indigenous Peoples in Africa. The 2003 report serves as the basis for constructive engagement between the ACHPR and various stakeholders based inside and outside the continent, including states, national human rights institutions, NGOs, Indigenous communities and their organizations.

The continued participation of Indigenous Peoples’ representatives in the sessions of the ACHPR as well as in the various activities of the WGIP, which include sensitization seminars, country visits, information activities and research, also plays a crucial role in ensuring and maintaining this vital engagement and dialogue.

In 2020, at the 66^th Ordinary Session, the mandate of the WGIP was also renewed and expanded to include the rights of minorities, with the following amended title: “Working Group on Indigenous Populations/Communities and Minorities in Africa”.^[1]

This article is part of the 36th edition of The Indigenous World, a yearly overview produced by IWGIA that serves to document and report on the developments Indigenous Peoples have experienced. The photo above is of Indigenous Women standing up and taking the lead in the land rights struggle of their community in Jharkhand, India. This photo was taken by Signe Leth, and is the cover of the Indigenous World 2022 where the article is featured. Find The Indigenous World 2022 in full here

Continued monitoring of the situation of Indigenous Peoples’ rights

The ACHPR continued to closely monitor the situation of Indigenous Peoples on the African continent in 2021. All ACHPR sessions were held online due to COVID-19. The rights of Indigenous Peoples were on the ACHPR agenda during its 68^th Ordinary Session held in April-May 2021 and 69^th Ordinary Session held in November-December 2021. As part of this monitoring exercise, the Chairperson of the WGIP gave updates on the status of Indigenous Peoples in Africa in her activity reports to the 68^th and 69^th Ordinary Sessions.

In the report at the 68^th Ordinary Session,^[2] Commissioner Amesbury, Chairperson of the WGIP, highlighted both positive developments and areas of concern regarding the recognition and protection of the rights of Indigenous Peoples on the continent. Among other things, she expressed her concern at several attacks in Niger. It is alleged that massacres were perpetrated by armed men on motorbikes in January and March 2021 in the Tillabery region close to the border with Mali, killing more than 300 civilians, including Indigenous Peoples. The attacks were reportedly carried out by members of the Islamic State group.

In her report to the 69^th Ordinary Session,^[3] Commissioner Amesbury noted with satisfaction that, on 7 April 2021, the National Assembly of the Democratic Republic of Congo (DRC) passed a bill on the protection and promotion of the rights of Indigenous Peoples. The text of the law provides for free health care, primary and secondary education and assistance before the courts. It also recognizes the rights of Indigenous Peoples to land and natural resources. Nevertheless, she also noted that the law fails to provide redress for the dispossession of ancestral territories that were taken prior to the law’s enactment, which represents a serious shortcoming. The law still needs to be reviewed by the Constitutional Court and approved by the Senate before being enacted into law by the President of the Republic. The Working Group is of the view that the law’s effectiveness will depend on the mechanisms and resources deployed for sensitization, implementation and monitoring.

The Commissioner also commended Kenya on the process providing an opportunity for Indigenous Peoples and historically marginalized minority groups who have been dispossessed of their ancestral lands to file claims for redress through the National Land Commission. She did, however, emphasize that the National Land Commission needs to take concrete steps to ensure that the rights of Indigenous Peoples and historically marginalized communities in Kenya are upheld in the process, in accordance with international standards. A first step towards providing redress for historical land injustices would entail fully implementing successful court judgments and human rights rulings obtained by Indigenous Peoples in Kenya (including the Endorois decision rendered by the Commission in 2010 and the African Court judgment in the Ogiek case rendered in 2017).

The Commissioner also welcomed the judgment of the Constitutional Court of Uganda rendered on 19 August 2021 directing the government to provide redress and compensation to the Indigenous Batwa people for the unlawful evictions that have taken place to create forest reserves and protected areas on their ancestral lands. Two of the three respondents in the case, the Attorney General and the Uganda Wildlife Authority (UWA), have appealed the judgment at the Supreme Court. These are the same respondents that have failed to uphold a 2005 consent judgment recognizing the Indigenous Benet people’s rights to their ancestral lands in Mt. Elgon. The continued non-compliance of the 2005 consent judgment has resulted in ongoing serious violations of the Benet people’s rights and threatens their very survival as an Indigenous Peoples. In March 2021, the local government of Kween district of Uganda began negotiating the terms of a Memorandum of Understanding (MoU) with UWA to grant the Benet access to Mt. Elgon National Park in compliance with the 2005 consent judgment. The Working Group regrets that, in the end, the MoU was not signed because a disagreement arose between the UWA and the Benet on some of the terms of the agreement. This effectively means that the 2005 consent judgment remains unimplemented and that the attendant human rights violations remain ongoing.

In 2021, the WGIP sent letters of appeal to the DRC (March & August) and Algeria (September). The first letter to the DRC addressed allegations received regarding 46 members of the Batwa/Bambuti community who were killed by an unidentified armed group in the village of Masini, Ituri province, Eastern DRC. It was alleged that among the victims of the massacre were 10 men and 36) women, 15 of whom were children aged between three months and 16 years. It was further alleged that more than 180 households (Indigenous Batwa/Bambuti and other local communities) from the villages of Abembi, Masini, Musango, Zunguluka 4 and Maitatus were affected by this attack, leading to the displacement of over 100 people. In the Letter of Appeal, the WGIP informed His Excellency that if the allegations were correct, the Government of the DRC would be in violation of Article 4 on the right to life as enshrined in the African Charter, and Article 5 (Survival and Development) of the African Charter on the Rights and Welfare of the Child. The Letter of Appeal urged the Government of the DRC to inter alia: provide clarification to the Commission regarding the above-stated allegations; conduct prompt and impartial investigations into the allegations, without delay, and hold the perpetrators accountable; and ensure full and effective reparations to address the harm suffered by victims, including their families and dependents. Such reparations should comprise the implementation of guarantees of non-repetition.

The second letter to the DRC addressed reports alleging that two members of the Indigenous Batwa community and six militia were killed in an army operation aimed at dislodging Batwa from the Kahuzi-Biega National Park, a habitat of lowland gorillas, in the east of the DRC. According to information, this occurred as a result of a joint operation of the Armed Forces of the DRC and eco-guards in Muyange. It was reported that at least 87 mostly straw huts were burned during the operation. In the Joint Letter of Appeal, the Government of the DRC was informed that, if the allegations were correct, the DRC would be in violation of Article 4 on the right to life and Article 14, which states that the right to property shall be guaranteed and may only be violated in the interest of public need or in the general interest of the community and in accordance with the provisions of appropriate laws. The Joint Letter of Appeal urged the Government of the DRC to: provide clarification to the Commission regarding the allegations; conduct prompt and impartial investigations into the allegations and hold the perpetrators accountable; ensure full and effective reparations to address the harm suffered by victims; adhere to the provisions of General Comment No. 3 on the Right to Life; and, generally, comply with the letter and spirit of the African Charter, General Comment No. 3 on the Right to Life, as well as other relevant human rights instruments to which the DRC is a party.

Finally the letter to Algeria addressed reports alleging that, in May 2021, the government classified an Amazigh political movement for the self-determination of Kabylia (which has been in existence for 20 years) in the region of Kabylia, and all political movements calling for an autonomous status for Kabylia, as “terrorist movements”. Reports alleged that the police have been arresting all members of these movements and that at least 160 Kabyl are currently imprisoned without trial. In June and July 2021, it is also alleged that, after the government forbad village communities in Kabylia from organizing their own lockdown measures and controlling the entry of outsiders to their villages, the number of Delta variant COVID-19 cases increased dramatically. A lack of respirators in the health structures and the insufficient production of oxygen reportedly resulted in thousands of deaths, and the Algerian foreign affairs administration is reported to have blocked the delivery of respirators sent by the Kabyl diaspora in Europe. Furthermore, it is alleged that, on 9 August 2021, civil protection structures counted more than 70 fires in densely populated and wooded mountain areas of Kabylia. According to reports, the fires were deadly (from 140 to 250 deaths) and devastating (destruction of entire villages, crops, livestock, fruit trees and thousands of hectares of forest) because the means with which to fight the flames were derisory. It is alleged that the government has not opened any investigation aimed at finding the arsonists. Additionally, on 24 August 2021, Kamira Nait Sid, co-president of the World Amazigh Congress (CMA), was allegedly kidnapped from her home in Tizi-Wezzu, in Kabylia region, and her family was reportedly not informed. According to reports, Kamira Nait Sid was unlawfully held in detention for eight days, without trial and with no contact with the outside world. Consequently, it is alleged that Kamira Nait Sid was put in pre-trial detention pending her trial, which will take place at an unknown date. In the Joint Letter of Appeal, the Government of Algeria was informed that, if the allegations were correct, the Government of Algeria would be in violation of Article 4 on the right to life; Article 6 on the right to Personal Liberty and Protection from Arbitrary Arrest; Article 7 on the right to Fair Trial; Article 9 on the right to receive information and free expression; Article 10 on the right to Freedom of Association; Article 14,on the right to property; Article 16 on the right to health; Article 19 on the right of all peoples to equality and rights; and Article 20 on the right to self-determination. The Joint Letter of Appeal urged the Government of Algeria to inter alia: provide clarification to the Commission regarding the stated allegations; conduct prompt and impartial investigations into the allegations, without delay, and hold the perpetrators of the fires accountable; ensure full and effective reparations to address the harm suffered by victims, in terms of loss of property and life; ensure fair trials for those detained without trial; adhere to the provisions of General Comment No. 3 on the Right to Life, in particular as it relates to the requirement for accountability; and generally, comply with the letter and spirit of the African Charter, General Comment No. 3 on the Right to Life, as well as other relevant human rights instruments to which Algeria is a party. 

ACHPR study on the impact of COVID-19 on Indigenous Peoples in Africa

At its 68^th Ordinary session in May 2021, the ACHPR adopted Resolution 476 on Conducting a Study on the Impact of COVID-19 on Indigenous Populations/Communities in Africa.^[4] The resolution noted that the COVID-19 pandemic has had an adverse impact on various human rights guaranteed by the African Charter, and that Indigenous populations and communities have also experienced variant effects of the pandemic. It highlighted the fact that Indigenous populations/communities do not have access to health services due to lack of resources and the distant location of health centres, as well as the inappropriateness of national health policies to the Indigenous way of life. It therefore tasked the WGIP with conducting a study on “the impact of COVID-19 on Indigenous Populations/Communities in Africa” and to present it to the Commission for its consideration and adoption within two years. It is anticipated that the study will be useful for the global and regional mechanisms as it will fill the knowledge gap in this area and improve the situation of the rights of Indigenous populations/communities in Africa.

New resolutions to ensure Indigenous Peoples’ land rights

The ACHPR adopted two key resolutions relevant to Indigenous Peoples’ rights to land in 2021: Resolution 489 on Recognition and Protection of the Right of Participation, Governance and Use of Natural Resources by Indigenous and Local Populations in Africa^[5] and Resolution 490 on Extractive Industries and the Protection of Land Rights of Indigenous Populations/Communities in Africa.

Resolution 489 notes the increasing rural poverty, loss of wildlife and habitat, lack of inclusion of communities in decision-making, and lack of respect for the specific rights of Indigenous and local peoples in Africa. It acknowledges that a key component of Africa’s economic potential lies in its biodiversity and wildlife economy, and that the use of Community-Based Resource Management, a community conservation effort, offers a unique competitive advantage with which to fight poverty and build resilient Indigenous and local communities. It recognizes Indigenous populations’ and local communities’ right to participation in, and governance and use of, natural resources as share-holders and not mere stakeholders. The ACHPR, among other things, calls on African states to recognize the rights of Indigenous populations and communities to the conservation, control, management and sustainable use of their natural resources, including wildlife. It urges African states to take the necessary measures to strengthen community governance and institutions. It finally strongly encourages governments, Indigenous and local populations, intergovernmental organizations, national human rights institutions, civil society organizations and academic institutions to support the Working Group on Indigenous Populations/Communities and Minorities in Africa in building and enhancing the local capacity of communities to govern, manage, and sustainably use and benefit from their natural resources.

In Resolution 490, the ACHPR refers to the Report of the African Commission’s Working Group on Indigenous Populations/Communities. Extractive Industries, Land Rights and Indigenous Populations’/Communities’ Rights. East, Central and Southern Africa, adopted by the Commission in 2017, which recognizes among other things the right of Indigenous populations to consultation and negotiation in decision-making processes in ways that are consistent with the principles underlying the right to Free, Prior and Informed Consent (FPIC). The ACHPR urges State Parties to, among other things:

• Adopt policies and laws that safeguard Indigenous populations’/communities’ rights to customary ownership and control over their lands, and recognize the lifestyle of the Indigenous populations, especially hunting and pastoralism;
• Ensure that the legislation governing the granting of concessions includes provisions on consultation and FPIC, consistent with international human rights standards;
• Together with the extractive industries, develop and implement national public participation models for the sector, taking into account all citizens of the country, including full participation of Indigenous populations/communities;
• Ensure that, in addition to an environmental assessment, a participatory social, cultural, economic and human rights impact assessment is conducted prior to the implementation of any extractive activities within Indigenous community lands. Social impact assessments should be required by law and undertaken prior to any phase of an extractive industry project. Assessments should be monitored to ensure full compliance;
• Recognize Indigenous populations’/communities’ customary laws and traditional mechanisms of conflict resolution, and undertake capacity-building within these communities to develop their own representative structures and ensure effective participation in key decision-making processes;
• Put grievance mechanisms in place that are accessible to Indigenous populations/communities in the event that their rights are violated.

Advanced course on the rights of Indigenous Peoples in Africa

The 11^th Advanced Course on the Rights of Indigenous Peoples in Africa was held online from 1-5 November 2021 by the Centre for Human Rights of the University of Pretoria in South Africa, in collaboration with the WGIP and the International Work Group for Indigenous Affairs (IWGIA). The course was attended by around 30 participants from various African countries. Participants included postgraduate students, human rights activists, academics, consultants, judicial officers and policymakers.

Themes explored during the course included the definition and conceptualization of indigeneity, Indigenous Peoples’ rights within the African regional human rights system, Indigenous knowledge systems, Indigenous women, Indigenous Peoples’ land rights, Indigenous Peoples and conservation, the impact of COVID-19 on Indigenous Peoples’ rights, Indigenous Peoples vis-a-vis the Convention on Biological Biodiversity, UNESCO’s World Heritage Convention and the Nagoya Protocol. Course participants made country presentations on the issues discussed throughout the week. Selected experts working on the issue of Indigenous Peoples as well as Working Group members served as resources to course participants.

Geneviève Rose is senior advisor for IWGIA. She is the programme coordinator of the African Commission on Human and Peoples' Rights project. She has a Master's degree in conflict resolution from the University of Bradford in the UK. For the last 10 years, she has been working mainly with the African continent and Indigenous Peoples' rights on various themes including, among others, business and human rights, gender, land rights and participation in regional processes.

This article is part of the 36th edition of The Indigenous World, a yearly overview produced by IWGIA that serves to document and report on the developments Indigenous Peoples have experienced. The photo above is of Indigenous Women standing up and taking the lead in the land rights struggle of their community in Jharkhand, India. This photo was taken by Signe Leth, and is the cover of the Indigenous World 2022 where the article is featured. Find The Indigenous World 2022 in full here

Notes and references 

^[1] African Commission on Human and Peoples' Rights. “455 Resolution on the Renewal of the Mandate, Appointment of the Chairperson, Reconstitution and Expansion of Mandate of the Working Group on Indigenous Populations/Communities, in Africa - ACHPR/Res. 455 (LXVI) 2020.” August 7, 2020. https://www.achpr.org/sessions/resolutions?id=486

^[2] Amesbury, Alexia Gertrude. “Inter-session Activity Report of Honourable Commissioner Alexia Gertrude Amesbury Chairperson of the Working Group on Indigenous Populations/Communities and Minorities in Africa.” 68^th Ordinary Session of the African Commission on Human and Peoples’ Rights, 14 April - 4 May 2021. https://www.achpr.org/sessions/intersession?id=362

^[3] Amesbury, Alexia Gertrude and Jamesina Essie L. King. “Intersession Activity Report of The Working Group on Indigenous Populations/Communities and Minorities in Africa. Honourable Commissioner Alexia Gertrude Amesbury (Chairperson) and Honoroubale Commissioner Jamesina Essie L. King (Vice-Chairperson)69^th Ordinary Session of the African Commission on Human and Peoples’ Rights, 15 November - 5 December 2021. https://www.achpr.org/sessions/intersession?id=377

^[4] African Commission on Human and Peoples' Rights. “476 Resolution on Conducting a Study on the Impact of COVID-19 on Indigenous Populations/Communities in Africa - ACHPR/Res. 476 (LXVIII) 2021.” May 4, 2021.https://www.achpr.org/sessions/resolutions?id=507

^[5] African Commission on Human and Peoples' Rights. “489 Resolution on the Recognition and Protection of the Right of Participation, Governance and Use of Natural Resources by Indigenous and Local Populations in Africa - ACHPR/Res. 489 (LXIX)2021.” December 5, 2021.https://www.achpr.org/sessions/resolutions?id=520

Tags: Global governance