The Contribution of the African Court on Human and Peoples' Rights to the Protection of Indigenous Peoples' Rights

On the 26^th May 2017, the African Court on Human and Peoples’ Rights (hereinafter the ''ACtHPR'' or the ''Court'') rendered its first judgement on an indigenous peoples’ rights case. Originated from a complaint submitted by the African Commission on Human and Peoples’ Rights (hereinafter the ''AfrCommHPR'' or the ''Commission'') pursuant to Article 5 (1) of the 1998 Protocol to the African Charter on Human and Peoples' Rights establishing the Court, the case dealt with the forced eviction of the Ogieks, a Kenyan hunter-gatherer indigenous community of approximately 20.000 members, from their ancestral lands in the Mau Forest. Having established that the Ogieks should be recognised as an "indigenous people" deserving special legal protection, the Court, widely endorsing the Commission’s allegations, held that the Government of Kenya had violated several of the Ogieks’ rights under the African Charter on Human and Peoples’ Rights (hereinafter the Charter or the ACHPR), including their rights to equality (Article 2), to property (Article 14), to freedom of religion and culture (Articles 8 and 17), to free disposal of wealth and natural resources (Article 21), and to economic, social and cultural development (Article 22). The ruling, which has been extensively welcomed as a «huge victory» and a «landmark» for the protection of indigenous peoples’ rights in Africa, touches on many complex and sensitive issues concerning the situation of indigenous peoples all over the continent. Several studies have shown that in many African States, like in many other regions of the world, indigenous peoples experience evictions and forced displacement from their ancestral lands and lose access to fundamental natural resources, such as clean water and healthy food, for the benefit of conservation interests, agriculture and livestock farming, commercial enterprises, such as mining, logging, and oil exploration, and large-scale development initiatives. As a result, their traditional subsistence and cultural practices are gravely undermined and their very survival seriously threatened, often in an irreversible manner. Since the beginning of the 2000s, these and other related issues have constituted the object of an increasing attention by the AfrCommHPR. First, it has set up a Working Group on the Rights of Indigenous Populations/Communities (hereinafter the ''Working Group'' or the ''WGIPC'') as an expert body in charge of studying the condition of indigenous peoples in Africa and promote the protection of their human rights and fundamental freedoms. Secondly, it has started to question the human rights situation of indigenous peoples in its examination of States’ periodic reports under Article 62 of the ACHPR and to develop a progressive ''case law'' on indigenous rights in its individual communication procedure under Article 55 of the Charter. This, notwithstanding the absence of an express reference to indigenous peoples in the text of the ACHPR and, essentially, by way of drawing inspiration, in interpreting its provisions, from a variety of international law instruments and jurisprudence in the field, including both specialized indigenous rights instruments – mainly the International Labour Organization Convention No. 169 concerning Indigenous and Tribal Peoples in Independent Countries (ILO Convention No. 169) and the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) – as well as universal and regional general human rights treaties – particularly the International Covenants on Civil and Political Rights and on Economic, Social and Cultural Rights (ICCPR and ICESCR), the Convention on the Elimination of All Forms of Racial Discrimination (CERD), and the American Convention on Human Rights (ACHR) – as interpreted by relevant quasi-judicial and judicial bodies in order to accommodate indigenous peoples’ specific claims. Against this background, the aim of the present contribution is to use the recent ACtHPR’s decision in the Ogiek case to study the Court’s approach to indigenous peoples’ rights and to examine more broadly, by juxtaposing it to the latest international legal practice concerning the protection of the indigenous peoples’ rights at both the African and global levels, the extent to which the Court’s determinations are in line with current relevant international standards and their potential significance for the progressive advancement of indigenous peoples’ rights. To this end, the following sections focus on two of the Ogiek decision’s most interesting features: the protection of indigenous peoples’ communal rights over their ancestral lands and the articulation of indigenous peoples’ right to natural resources vis-à-vis the principle of States’ permanent sovereignty over them... (segue)