Indigenous People in Africa

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English
196 Pages
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This volume is an attempt to provide this intersectional and reflexive space. The thinking behind the book began in Lamu in mid-2010. It was a time when growing community resistance emerged towards the Kenyan government's plan to build a second seaport under a trans-frontier infrastructural project known as the Lamu Port- South Sudan-Ethiopia Transport Corridor (LAPSSET). The editors agreed that a book that draws community activists, academics, researchers and policy makers into a discussion of the predicament of indigenous rights and development against the backdrop of the Endorois case was timely and needed. Assembled here are the original contributions of some of the leading contemporary thinkers in the area of indigenous and human rights in Africa. The book is an interdisciplinary effort with the single purpose of thinking through indigenous rights after the Endorois case but it is not a singular laudatory remark on indigenous life in Africa. The discussion begins by framing indigenous rights and claims to indigeneity as found in the Endorois decision and its related socio-political history. Subsequent chapters provide deeper contextual analysis by evaluating the tense relationship between indigenous peoples and the post-colonial nation-state. Overall, the book makes a peering and provocative contribution to the relational interests between state policies and the developmental intersections of indigeneity, indigenous rights, gender advocacy, environmental conservation, chronic trauma and transitional justice.

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Published 05 May 2014
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EAN13 9780798304672
Language English
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Indigenous Peoples in Africa Contestations, Empowerment and Group Rights Edited by Ridwan Laher and Korir Sing’Oei
First co-published in 2014 by the Africa Institute of South Africa PO Box 630 Pretoria 0001 South Africa
and the Institute for Global Dialogue PO Box 14349 The Tramshed 0126
ISBN: 978-0-7983-04641
© Copyright in the chapters vests in the authors; copyright in this published work vests in the Africa Institute of South Africa 2012
No part of this publication may be reproduced, stored in a retrieval system, or transmitted by any form or by any means, electronic, mechanical, photocopying, recording or otherwise, without prior permission from the copyright owner. Any unauthorised copying could lead to civil liability and/or criminal sanctions.
To copy any part of this publication, you may contact DALRO for information and copyright clearance.
Telephone: 086 12 DALRO (from within South Africa); +27 (0)11 712-8000 Telefax: +27 (0)11 403-9094 Postal Address: P O Box 31627, Braamfontein, 2017, South Africa www.dalro.co.za
Opinions expressed and conclusions arrived at in this book are those of the authors and should not be attributed to the Africa Institute of South Africa.
The chapters in this book were each reviewed by at least two peers.
Project manager: ? Copy-editor: ? Proofreader: ? Layout, typesetting and cover design: Berekile Pila Projects
The Africa Institute of South Africa is a think tank and research Organization, focusing on political, socio-economic, international and development issues in contemporary Africa. The Institute conducts research, publishes books, monographs, occasional papers, policy briefs and a quarterly journal –Africa Insight. The Institute holds regular seminars on issues of topical interest. It is also home to one of the best library and documentation centres world-wide, with materials on every African country.
For more information, contact the Africa Institute at PO Box 630, Pretoria 0001, South Africa; Email ai@ai.org.za; or visit our website at http://www.ai.org.za
Contents
Preface Michelo Hansungule Notes and References
Acknowledgements
About the Editors
About the Contributors
Introduction Ridwan Laher and Korir Sing’Oei Notes and References
CHAPTER 1 Indigenous as equals under the African Charter: The Endorois Community versus Kenya Cynthia Morel
Introductîon Inîtîal Steps Exhaustîon of Domestîc Remedîes Recognîtîon Relîgîous Freedom (Artîcle 8) Cultural rîghts (Artîcle 17(2) and 17(3)) Fîndîngs Property rîghts (Artîcle 14) Ownershîp versus access Rîght to Natural Resources (Artîcle 21) Scope and publîc-înterest test Rîght to Development (Artîcle 22) The transformatîve împact of the Endoroîs Rulîng Notes and References
CHAPTER 2 Historical development of indigenous identification and rights in Africa Dr Felix Ndahinda
Introductîon
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The emergence of îndîgenous îdentîicatîon and rîghts în Afrîca The development of the îndîgenous rîghts movement în Afrîca Conclusîon: achîevements and substantîve deicît of the îndîgenous rîghts movement în Afrîca Notes and References
CHAPTER 3 The Impact of Dominant Environment Policies on Indigenous Peoples in Africa Melakou Tegegn
Introductîon Envîronmental challenges that Afrîca’s îndîgenous peoples face Indîgenous peoples as envîronmental refugees of globalîsatîon, neo-lîberalîsm and consumerîsm Re-examînîng the land and envîronment nexus and îts sîgnîicance to îndîgenous peoples Encroachment on îndîgenous peoples’ land The condîtîons of the Basarwa of Botswana: a reectîve glîmpse Conclusîon Notes and References
CHAPTER 4 Gender and indigenous peoples’ rights Soyata Maiga
Introductîon The înternatîonal and regîonal legal framework Challenges facîng îndîgenous women Increasîng publîc role for women Human rîghts concerns for women and gîrls Conclusîon Notes and References
CHAPTER 5 Constitutional reform and minority exclusion: The case of the Bajuni and Lamu county Dr Paul Goldsmith
Introductîon The regîonal hîstorîcal backdrop The post-îndependence mîlîeu
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64 65 71 73 74 79 80
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Lamu’s endemîc securîty problems The cîvîl socîety response The marîtîme sector and the Magogonî Port Conclusîon: the exît optîon and Kenya’s reform process Notes and References
CHAPTER 6 Advocacy for indigenous peoples’ rights in Africa: Dynamics, methods and mechanisms George Mukundi Wachira and Tuuli Karjala
Introductîon Advocacy on îndîgenous peoples’ rîghts în Afrîca Background of îndîgenous peoples’ rîghts advocacy în Afrîca Key outcomes of advocacy înîtîatîves by Afrîcan îndîgenous peoples Conclusîon Notes and References
CHAPTER 7 A challenging nexus: Transitional justice and indigenous peoples in Africa Laura A. Young
Introductîon Transîtîonal justîce în the Afrîcan context Transîtîonal justîce and îndîgenous peoples Case studîes of îndîgenous peoples and transîtîonal justîce processes Transîtîonal justîce and îndîgenousness Remaînîng questîons and recommendatîons for further research Conclusîon Notes and References
CHAPTER 8 The past is never just in the past: Indigenous peoples and a framework for confrontation and redress Ridwan Laher
Introductîon Dîspossessîon as hîstorîcal context The post-colonîal natîon-state as a sîte for dîsigurement Understandîng îndîgenous dîspossessîon as a collectîve trauma Confrontîng chronîc trauma through truth tellîng
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Towards a moral communîty The stodgy îssue of polîtîcal wîll Conclusîon Notes and References
CHAPTER 9 Conclusion Ridwan Laher and Korir Sing’Oei
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Preface
Michelo Hansungule
At what point does an advocacy intervention acquire the status of ‘best practice’? Is it because of its notoriety in the literature or ubiquity in being referenced in judicial determinations? Dr Siri Gloppen, the highly acclaimed Norwegian political scientist and an authority on social impacts of judicial processes in explaining the scope of public interest litigation as an instrument for effecting social change, posits that:
… the value of litigation should not only be judged in terms of how a case fares in court (success in the narrow sense), or whether the terms of the judgment are complied with (immediate impact). It is as important to look at the systemic impact – the broader impact of the litigation process on social policy, directly and through influencing public discourses on social rights and the development of 1 jurisprudence nationally and internationally.
2 Endorois v Kenyais one of the few cases decided by Africa’s premier human rights mechanism, the African Commission on Human and Peoples Rights, whose impact reverberates not only in relation to the immediate beneficiaries, but rather across a range of indigenous rights actors for several reasons. First, drawing from the Report of the Working Group on Indigenous Populations to deconstruct indigeneity, the Commission makes an important and poignant observation thus:
Domination and colonisation has not exclusively been practiced by white settlers and colonialists. In Africa, dominant groups have also after independence suppressed marginalized groups, and it is this sort of present-day internal suppression within African states that the contemporary African indigenous movement seeks to address … if the concept of indigenous is exclusively linked with a colonial situation, it leaves us without a suitable concept for analysing internal structural 3 relationships of inequality that have persisted after liberation from colonial dominance.
The Commission’s bold exposure of the pretensions of many an African state which mask internal exclusionary processes through the language of equal protection is crucial in recalibrating states’ response to unjust expropriation of communal resources of the poor. Second, the implication of this decision on restitution law and the governance of land injustices that crave resolution in many sub-Saharan countries suggests that there are means 4 for less-volatile approaches to the issue. Additionally, the decision has done more to develop the law in relation to the right to development and natural resource right law beyond its 5 worthy predecessor, the Ogoni case.
Indigenous People in Africa: Contestations, Empowerment and Group Rightsv
Preface | Michelo Hansungule
By judicial fiat, the Commission placed theEndorois decision in the conveyor belt of judicial precedents of note on the continent. This publication in turn reinforces the precedent value of the decision by using the case to examine various indigenous rights discourses on the continent. The multidisciplinary approach to the complex discussion on indigenous rights is critical to a more holistic appraisal of the issue. By so doing, the material in this publication exposes existing opportunities for more inquiry among various social science researchers and activists for social change.
NOTES AND REFERENCES
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4
5
Gloppen, S., 2007.Courts and the marginalized: Comparative perspectives. African Commission on Human and Peoples’ Rights, Communication, 276/2003. Centre for Minority Rights Development (Kenya) and Minority Rights Group International on behalf of Endorois Welfare Council v Kenya. Report of the African Commission’s Working Group of Experts on Indigenous Populations/Communities, submitted in accordance with the Resolution on the Rights of Indigenous Populations/Communities in Africa, IWAGIA (Copenhagen) and ACHPR, Banjul 2005, p.92. Compare with the Zimbabwe case in Moyo, S. & Yeros, P., 2013.The Zimbabwe model: Radicalisation, reform and resistance.Codesria. Available at http://www.codesria.org/IMG/pdf/9-Land_and_Agrarian_ Reform_in_Zim_Moyo_and_Yeros.pdf African Commission Communication No. 155/96, 2001.The Social and Economic Rights Action Center for Economic and Social Rights v Nigeria.
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