Indigenous People in Africa: Contestations, Empowerment and Group Rights

4. Gender and indigenous peoples’ rights

64 Africa Institute for South Africa 4 Gender and indigenous peoples’ rights Soyata Maiga INTRODUCTION African indigenous women are often subjected to double discrimination.1 First, being a woman in Africa subjects a person to differentiated citizenship within the family, the community and the state.2 Second, indigenous women face further discrimination as a result of being indigenous. Indigenous peoples in Africa are still among the most vulnerable groups, and continue to be subjected to various forms of discrimination, in particular because of their livelihood and their attachment to their culture. Indigenous communities in Africa have thus had their most basic rights violated by authorities of their countries who refuse to grant them equal recognition before the law. Instead, they are treated as disadvantaged minorities who, due to their lifestyle, are self-marginalised with little desire to play a role in the nation-building project.3 In this context it is difficult for indigenous women to have their rights respected. Many indigenous women are victims of several forms of physical, psychological and sexual violence, and live in vulnerable conditions and often extreme poverty.4 Within their own communities, indigenous women confront customs and traditions which place little emphasis on women’s rights and which may be justified through the protection of collective rights at the expense of the individual rights of women to dignity and safety.5 This is a false dichotomy, however, given that the protection of indigenous women’s rights is consistent with empowered, dynamic cultural communities. This view is given poignancy by Sylvain’s comments: The situation of indigenous women complicates efforts to reconcile individual and group rights because intersectional discrimination also implicates political dynamics internal to their communities. This is often the case because ‘internal’ political dynamics are shaped by the broader context of intersecting inequalities in which indigenous communities are embedded.6 65 Indigenous People in Africa: Contestations, Empowerment and Group Rights Gender and indigenous peoples’ rights | Soyata Maiga Ensuring that indigenous women benefit from the protection of their cultural heritage as well as their human rights is a responsibility of all states under international law. However, many governments lack the political will to ensure the effective implementation of the rights of indigenous women as recognised by international and regional human rights instruments on the rights of women. Conveniently, states often blame indigenous cultures for non-action in addressing gender violence against indigenous women. While it may be acceded, as do Banda and Chinkin, that the potential for gender oppression increases when women are viewed as the embodiment of group identity and the repositories of culture,7 other scholars such as Tamale and this author hold a contrary view, namely that ‘[r]adical transformation of women’s sexuality can happen within culture’.8 Protecting the rights of indigenous women within their own communities depends on many factors, including developing partnerships with communities themselves to ensure the implementation of national laws of the country where they live as well as international and regional human rights instruments which are ratified by states. Protecting indigenous women’s rights is a twofold process: protection of individual rights and protection of collective rights.9 Individual rights in this context include the right to equality, the right to education, the right to health including reproductive health services, the rights to bodily integrity and security, and the right to marry the person of one’s choosing and to form a family. Collective rights include the rights to culture, language, beliefs, development, self-determination and control over natural resources and communal lands, as well as the right to participation in decision making that affects the community. In this chapter we will review the legal framework at international and regional level in juxtaposition with the specific challenges that indigenous women face in exercising their individual and collective rights. THE INTERNATIONAL AND REGIONAL LEGAL FRAMEWORK It is difficult to speak about the rights of African indigenous women without reference to the international law of human rights. African states have ratified several international legal instruments, and the heads of states and governments committed themselves, in the Solemn Declaration of Heads of States on Gender Equality in Africa adopted in 2004,10 to eliminate all forms of discrimination against women.11 African indigenous women are rights holders under both the international women’s rights framework as well as international legal frameworks on minorities and indigenous peoples. The Beijing Declaration of Women of 1995 urges governments and non-state actors to...